the resurgence of transnational commercial law

Third, refinement of the commerce law. By virtue of the process of making transnational commercial law which involved many talent expertise from all over the world, the quality of these devised laws is high. These high quality laws are not just taking part in facilitating international commerce but also filling the legal vacuum, which may exist in national legal systems dealing with cases which have a foreign element, through presenting neutral commercial rules tailored to meet the international trade needs.

The fourth factor is the dissemination of legal knowledge. Regardless of the efficacy of the transnational commercial law or not, legal advisers from all over the world will find themselves driven to understand these specific widespread laws and their applications, besides the conformity of these laws to their national law or not. This need will help to disseminate legal knowledge in a more comprehensive and broader way. Also it may be a good opportunity to narrow the wide gap between international attorneys themselves which may arise naturally due to cultural and linguistic diversity among these lawyers. In order to master these laws, lawyers will seek to work with other attorneys around the world.  As a result of such legal cooperation, as well as comprehensive understanding of the international commercial law, the products of legal counsels almost certain to be  improved which , respectively, will affect the world trade.

2.3. The Role of Merchants in comprising transnational commercial law

For the sake of comprehensive understanding of the transnational commercial law, it is vital to recognize that the purpose of commercial law, in general, was to meet merchants legitimate and practices requirements. It is, therefore, fair to say that the main source of commercial law is merchants themselves in tandem with international legislation . The commercial law could be seen as a product of their peculiar way to left the trade barriers which they may encounter while  producing their products, whether it were goods or services, in a more attractive, competitive and cost-effective forms. For example,  the forming of the bill of lading 'a document signed on behalf of the company carrying the goods, acknowledging that the goods have been shipped on board a particular vassel bound for a particular destination and stating the terms on which the goods are received' ,in general, was as a response to the middle ages merchants needs. Because of the lacking of a specific mechanism through which the goods could be sold in transit, merchants created the bill of lading which provides an absolute control of the goods to whoever the holder of the bill of lading, even before the goods have actually arrived. This  flexible mercantile mechanism entitled the buyer of the goods to sell them in transit or even use the bill of lading as collateral for a loan. This  previous example explicitly showed to what extent transnational commerce law is derived from merchants needs, customs and usages.

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2.4. The History of The Transnational Commercial Law

It is certainly correct that transnational commercial law has been existent since immemorial time. By one way or another the commercial law often is coupled with international trade due to its vital role in facilitating such trade. The Code of Hammurabi ,believed to date back to 1900 BC,  could be considered as the oldest existing commercial law. This code has indeed many of the rules of commercial law which affect both local and international trade. In the second or third century BC, the existing of transnational commercial law could be more discernible through the Rhodian Maritime Code which was accepted by Greeks and Roman and lasted somehow1,000 years. This code constitutes the first known law to represent the principles of general average in maritime insurance. Between the eleventh and fifteenth centuries, a number of compilations have appeared such as Rolles of Oleron ,in the twelve century; Black Book of the Admiratly ,in the med- thirteenth century; the Laws of Wisby, in the fourteenth century; and, the Consulate of the Sea , in the fourteenth or fifteenth century. The main subject of these compilations above is maritime law. Notably, lexmactoria (mercantile customs and usages) could be a predominant factor by which these completions were formed.

Also, one of the most explicit evidence in this field is The Great Fairs of  Europe. The powerful contribution of these medieval centuries fairs in developing merchant law is undeniable. These fairs have not just facilitated international commerce through devising a significant number of transnational commercial laws but also have played a permanent role in creating conducive environment for international transactions, by sporting the ideas of good faith and loyalty. With the passage of time this conducive environment led to increased international commerce, which in turn increased the issuance of transnational commercial laws in order to  maintain the security element and the high level of the regulations of these fairs .

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3. The resurgence of transnational commercial law in the 20th century.

3.1 The impact of  political and economical changes on transnational commercial law

It is conceded that  the twentieth century saw a considerable number of radical changes on several levels in the whole world. On the political level, world war I and the second besides the de- colonisation decades (between 1960s and 1970s) were enough to change the political map of the world. As a result of these changes, three worlds were formed. In addition, the collapse of the Soviet Union  in 1990s. And the enormous increase in the number of members of the United Nations ( from 50 states in the 1950s to 188 states in the late 1990s). These political events in one way or another, have contributed in forming a new transnational commercial law. The advent of a number of markets and its legal regimes could be seen also as a prelude to the legal revolution. This revolution stemming manly from national laws, foreign laws and transnational law which were devised by international formulating agencies. As a  result, considerable numbers of transnational laws were drafted in the first half of the 20th  century by relatively a limited number of states, as many states had not acquired their independence yet .

In the second half of the 20th century, in the wake of many countries gaining  their independence and formulating their own legal systems, as well as an increased incidence in emerging markets, the desire to comprise a new neutral transnational commercial laws has been increased. The needs for unified trade regulations sensitive to natural diversity among these markets became more urgent particularly with the buoyancy of  international trade in that time. This desire has been interpreted later primarily by creating a number of global conventions such as UNIDROIT, UNCITRAL and Hague Conference, as well as regional agreements such as the Organization of American States (OAS) and the  European Community (EC).

3.2 Examples of the prosperity of transnational commercial law in the 20th century

In the late twentieth century, transnational commercial law had been promoted by generating a wide spectrum of conventions. The eminent transnational laws enacted by such conventions had hoped to keep pace with rising economic growth and concomitant regulations needs at that stage. There are many success stories in this field.  The cross-border contract law devised by the United Nations Convention on Contracts for the International Sale of Goods (founded in 1988)was a loud example of the modern legal transition in the 20th century. This convention had ratified as a law in 54 countries and Its contract of sale  has been considered as the most essential commercial contract. It is worth menting that this transaction contract law is in reality a pure international law. Remarkably, it is not derived from any national or foreign laws. Also, the International Institute for the unification of private laws, known as UNIDROIT, was founded in 1962 as an organ of the league nations. In 1940 after the end of the league, the UNIDROIT was re-founded on the basis of a multilateral agreement (statue of  UNIDROIT) which was amended in 1993. At present the number of member states of  UNIDROIT is sixty-one member from all over the world.  This organisation still contributes in considering ways of unifying and coordinating the national private laws, and  to set up progressively for the international acceptance of transnational laws.

Another success story is the United Nations Commission of International Trade Laws (UNCITRAL) which was founded by the General Assembly of the United Nations in 1966. The effects of UNCITRAL on promoting transnational commercial law could be divided into two distinct functions. The first function is to provide many commercial legislations and rulings which codify the commercial processes worldwide. The second function is unifying and coordinating the transnational commercial laws and conventions among the international commercial community which presumably reflect positively on commercial progression for the member states. These conventions raised above take a vital part in the development of substantive transnational commercial law not just by providing a considerable number of transnational commercial rules but also through rising the quality of these laws. Thanks to the international expertise involved in such conventions.  In addition the success of these institutions and other global conventions was basically due to a willingness by the international trade community to provide a number of  rules governing international commercial transactions.

3.3 The urge of the prosperity of transnational commercial law in the 20th century 

One of the main reasons for this high leap of the transnational commercial laws in  the twentieth century may be lied in international impulse. The aspiration to left the international trade barriers ,namely national frontiers was overridden. This international aspiration mainly includes two prime elusive goals. The first is to generate an international devised legal system dealing with cross-border transactions, at the same time does not expose to national laws to local transactions. This purport has been achieved by creating a number of global conventions. The second purport is to find a common political and economic ground by which  transnational commercial law would  govern the local transactions besides the cross-border transactions. Thus, the barrier of national frontiers would begin to fade. This purport has been  fulfilled by forming many regional agreements. However, such motivation is not very likely to lead the world community to create and accept a conception of global commercial laws for many practical reasons.  

4. The Global Commercial Law.

4.1.The Theory of Global Commercial Law

The purport of the global commercial law may indicate a set of commercial rules adopted internationally and applied domestically all over the world. This universalistic view of law appeared clearly with comparative law studies which had been set out in Paris in 1990 by two well-known French jurists EDOUAED LAMBERT and RAYMOND SALEILES  who showed enthusiasm towards promoting a universal common law through comparative law studies:

A world law must be created-not today ,perhaps not even tomorrow-but created it must be, and comparative law must create it. As LAMBERT put it ... comparative law must resolve the accidental and divisive differences in the laws of peoples at similar stages of cultural and economic development, and reduce the number of divergences in law, attributable not to the political, moral or social qualities of the different nations but to historical accident or to temporary or contingent circumstances. 

However, This universalistic theory has attracted many criticisms and its realistic is questionable. Basically, This theory premised on a doctrine of the unity of humankind but the facts of life is, such theory is very likely to be overambitious. There are many intrinsic differences in national mind-sets as a natural result of the existence of diversity in languages, traditions and habits as well as the variations in legal systems dut to its sources, structures and technique differences. Moreover, some legal systems, at the present, are derived mainly from religions such as Islamic law. So, it is very difficult if not impossible to create universal law on the basis of compromising.      

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4.2. The Fertility of The approaches of Global Commercial Laws.

Basically, the global commercial law could be achieved through three main suggested methods. First, by international adoption of a specific uniformed substantive law governing the  international transactions or both domestic and international transactions. This method is time consuming. Given to the disparity between the legal cultures, the required time to elicit a necessary support for such universal substantive law is excessive long and  discouraging. For example, the success of the United Nations Convention on Contracts for the International Sale of Goods (CISG) could be seen as a product of twelve years of international co-ordinations ( from 1968 to 1980). Furthermore, in the way toward uniformed substantive law, optimal rules, which domestically improved by local expertise, may be jettisoned, as the price of producing such global law. Second, international adopting of uniformed choice of law rules in which the parties could select a particular substantive national law to govern their transactions (irrespective of  any other essential elements such as the location of dispute). Such method are neglecting the sensitivity of sovereignty issues which may arise by applying a choice of law rules. In other words, the reluctance of  embracing the conception of choice of law is predominant among legal systems which prefer to wield  enormous influence by applying their sets of  rules (mandatory rules) in order to remain the 'national interest'. So, its generally agreed that as long as global conventions do not expose to sovereignty issues, the possibility of  success such conventions is high. 

Third, by enforcing a supranational ' lex mercatoria'. In the last thirty years, many European scholars alleged that there are a sufficient commercial rules and general principles derived from  lex mercatoria (mercantile customs and usages) which could  regularise the international commercial contracts. This argument is premised on the fact that arbitrators often draw upon the customs and general principles of merchants in dealing with contract disputes. Notwithstanding, it could be argued that CISG is an optimal alternative and  practical solution then lex mercatoria because of the widely accepted of  CISG. Whereas the  lex mercatoria lacking of such international acceptance, besides that lex mercatoria is still unwritten. In the light of these shortcomings, it is fair to say that the capability of these methods to achieve a global commercial law are under consideration.

5. Conclusion.

This assay has briefly explored the nature of the transnational commercial law as a prelude and a condition to the consideration of Manifestations of ,and reasons for the return of international law in the last century. Also, it examined the allege that the 21th century could be the century of global commercial laws. Fourth sets of conclusions can be drawn from the exposition above and some forecasts will also be attempted. First, there are no doubts that transnational commercial law has made a great progress in the last century. This great progress is evident in the number of global conventions which have been held, as well as in  regional agreements. The truly international willingness and  the need of new transnational commercial law can accommodate the surge in international trade at that stage, both have contributed in developing transnational commercial law in the 21th century. Second, it could be observed from this dramatic transition in the 20th century that 'national pride' did not hold as much weight as today. The sensitivity of globalization was not a hinder to embrace internationally devised law. On the contrary, in this century  many countries tend to be  averse to embrace none national commercial law because of their desire to preserve their 'national identities'. 

Third, it would appear that the  approaches to achieve a complete global commercial law in this century are sterile. The cultural and political hurdles are still very hard to jump. Moreover, the compromise process to achieve such global law may involve many demerits. Fourth, it could be argued that the near global conventions might be the optimal alternative of global law, owing to the discernable capability of global conventions in raising the balance in favour of economic interests compared with or against maintaining the national identity.

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BIBLIOGRAPHY :

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• Paul B. Stephan, 'The Futility of Unification and Harmonization in International Commercial Law' [fall 1998] Virginia Journal of International Law

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