2.2. The Instruments of International Law Harmonization
It has to be conceded that the international commercial law has experienced a dramatic transition at the beginning of the twentieth century. This transition contributes in creating a wide spectrum of international instruments (irrespective whether this variety is positive or negative). The instruments of international harmonisation can be classified according to their degree of binding, into four distinct groups; international instruments intended to become legally binding such as international uniform commercial law conventions; facultative instruments such as model law (in French, loi-type); contractually incorporated non-binding rules, promulgated by international organisations such as international trade terms (INCOTERM); legislative guide such as UNIFROIT guide to international Master Franchies Arrangements (2002) . These instruments are playing critical role in facilitating international trade through filing the legal vacuum that parties may confront as a result of the nature of international trade.
3. Benefits and Drawbacks of The Harmonisation of Commercial Law.
While some scholars approve of harmonisation of law, others have been more critical. They question whether harmonisation of law is necessary and argue about the disadvantages entailed. Paul B. Stephan believes that harmonisation of law has proved futile for many reasons. He perceives that harmonisation of law provides a high degree of certainty which reflects negatively on international trade. Many parties (he alleged) would favour flexibility over certainty, through looking for lenient or ambiguous contracts instead of fettered or superfluous detailed contracts. He also maintains that in the way toward harmonisation and unification law, optimal rules, which domestically improved by local expertise, may be jettisoned, as the price of international harmonisation of law.
No less scathingly, Loukas Mistelis alleged that the harmonisation of law through conventions has many pitfalls. It is not just the length of the harmonisation process including the ratification mechanism, but also the high cost of the process. He claims that owing to sensitive issues arisen in the context of international trade law such as sovereignty and prerogatives besides, natural asymmetry between the participating countries, the conventions spawns may be less than expected . Nevertheless, It is generally recognised that unification of international commercial laws has its merits .
By virtue of harmonised commercial law, the expenses associated with international trade transactions have been reduced. The nature of international trade law entails considerable number of risks. Parties are bound to be concerned about the applicable law and jurisdiction in case things go wrong. Also they bear in mind issues such as mandatory law, government interference etc. These inherent risks in turn leading to increasing the expenses of international trade transactions. Harmonised law play permanent role in reducing these risks as well as its associated expenses. Furthermore , because of the nature of harmonised law process which involves many different countries, besides expertise from all over the world , international harmonisation of commercial law is not just provides a compatible neutral law but also takes a part in comprising legal frame work which seems to be tailored to business community's needs. In addition, harmonised law is very likely to be a contributing factor in protecting fledgling parties from falling prey to Opportunism and hostility of some practitioners, thanks to the high level of certainty and clarity provided by harmonised law.
5. Conclusion
This essay has briefly shown the feasible advantages and disadvantages of harmonisation of commercial law with a brief overview of ''harmonisation'' definition and instruments . To sum up briefly, The urgency of harmonisation is evident in reducing a considerable number of inherent risks vis-a-vis international trade which emerged in parallel with the Buoyancy of international trade . In addition, harmonisation of law is almost certain to be a key factor in filling the existent legal vacuum through producing a significant proportion of neutral, compatible and tailor-made commercial law. Yet, the Criticisms raised above may denote that the harmonisation of law is no absolute virtue. There are Many factors that ought to be taken into consideration when harmonised law is produces ,ratified and applied.
BIBLIOGRAPHY :
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Goode, R., Kronke, H,s,. Mckendric, E., and Jeffrey Wool Transnational Commercial Law Text, Cases and Materials (OUP, April 2007)
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Paul B. Stephan, The Futility of Unification and Harmonization in International Commercial Law (University of Virginia School of Law, June 1999)
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Loukas Mistelis, Is Harmonisation a Necessary Evil?( Sweet & Maxwell 2001)
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William C. Burton, Burton's Legal Thesaurus(U.S 2007 )4th Ed
- Alastair Mullis, A Typical International Trade Transaction ( University of East Anglia 2009 )
- Roy Goode, Reflection on the harmonisation of Commercial law ( OUP 1990 )
