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Seminar on Legal Aspects of Regional Cooperation : Presentation of Prof. Mochtar Kusuma-Atmadja : Harmonization of Laws in the Region
An Approach to Regional HarmonizationThe first thing that comes to mind when speaking on "Legal Aspects of Regional Cooperation" is the question of harmonization of laws of the countries in the Region. The benefits of harmonization in the Region is a much broader concept than the harmonization of international trade laws of countries in the Region or regional cooperation which is intended to be the real topic of my speech. I will take the liberty of speaking of harmonization of law in the Region in general before dealing with harmonization of international trade law or regional cooperation in particular. Should all efforts at harmonization fail and parties have to settle a dispute, the choice of course is between going to court or submitting the dispute to arbitration. Arbitration frankly speaking is the preferred manner of settling disputes between people engaged in trade, commerce and investments. I will deal later with arbitration as a manner of settling disputes within a framework of cross-border legal remedies which will be the second part of my speech. Now for the first part i.e. harmonization of laws in the Region. A short sketch of efforts at harmonization of laws at the regional and sub-regional levels will be followed by a mention of efforts at harmonization of laws in nation states with a diversity of civil or commercial law regimes. Though not directly relevant to the subject matter at hand, the experience gained in these other efforts at harmonization both at national and sub-regional or regional levels will provide some perspective and give us comparative material at least as to the experience gained and techniques of harmonization employed. This short introduction will hopefully provide a useful perspective to our discussion later on harmonization of international trade laws in which we will be engaged this afternoon. When discussing the harmonization of international trade laws, the term or concept of "harmonization" will be used in a broad sense including in it efforts at codification, unification and standard setting in general. Harmonization of laws in the narrow or traditional sense of bringing harmony between various national laws governing civil law matters generally is not an easy task. Even within the European Economic Community, now named the European Union (EU), the process has taken decades to accomplish. Despite the high level of integration of the EU, harmonization resulting in hundreds of laws and regulations within the community has largely been achieved in the fields of commerce and industry and to a great extent the financial sector and services only after tremendous efforts and time-consuming hard work by a great number of committees. Matters related to the personal and family life of the citizens of EU member countries (i.e. the law of persons, family law, marriage and divorce, and inheritance), however, continue to be governed by their respective national laws. Conflicts between persons subject to different civil or private laws continue to be settled by conflict of law rules. In ASEAN where the level of integration is quite low and attempts at integration in an institutional sense are meeting strong resistance, efforts at harmonization have met with very little success, if anything has been achieved at all. The call made at the first ASEAN Law Association meeting in Manila in 1977 by the then Minister of Justice of Indonesia to harmonize the laws of contracts and the laws on corporations (company law) have to my knowledge not led to any result so far. Both examples show that efforts at harmonization, if done through the national legislative bodies or in cooperation with national governments, is a long and arduous process at best. Such an approach meets resistance rooted in the notion of national sovereignty and is often political in nature, even in matters which are recognized to be culturally neutral as is the case in laws dealing with trade and industry. In matters where cultural (including religious) values play a part, harmonization should not even be attempted as resistance to such efforts is bound to be greater. For example, I would advise against trying to harmonize the marriage and divorce laws of ASEAN member countries. The differences between the marriage and divorce laws of the Philippines on the one hand, and Indonesia and Malaysia with their Moslem populations on the other, would pose hurdles that are almost insurmountable. Here the traditional approach of solving such conflict situations through conflict of law rules would be preferable. Experience in Indonesia in 1974 has shown that harmonization of marriage and divorce laws even within one country between parts of the population subject to different civil law regimes is extremely difficult. It could in the end only be solved by having a special part in the national marriage and divorce law applicable only to persons embracing the Islamic faith. Chances of success for efforts at regional harmonization are much greater if the subject is culturally neutral. Once a culturally neutral subject matter is identified such as trade or commerce, including banking or financial transactions as closely related matters, harmonization should become easier. An indirect approach should be used with an agreed text as a model. One way to do it is through the dissemination and in-depth familiarization process of a draft code, draft convention with related model contract(s), standard forms and procedures. An example of this approach using a draft code as a model was the harmonization of the law on commerce and related matters in the more than 50 states of the USA using the Uniform Commercial Code (UCC) as a model. Through the dissemination and intensive familiarization process conducted through the law schools in the US since the early 1960s, the contents of the UCC have had a tremendous influence in the harmonization of commercial law throughout the 50 states of the US. This despite the fact that the UCC has not in a formal sense become a commercial code for the US through a legislative enactment at the federal level until a few years ago. The process has taken more than thirty years or roughly one generation. In my opinion this is the course to be followed with the draft conventions, draft codes, model laws and other drafts produced by UNCITRAL. The fact that international trade law is basically also politically neutral makes a familiarization process through inclusion in law school curricula eminently suitable. Periodically regional conferences could be held involvingly faculty and students in commercial law to speed up and complement the process. The UN through its regional offices should be able to organize such conferences with the help of members of the legal profession. This is being done in the Asia-Pacific Region (Indonesia, Malaysia, Singapore and New Zealand) at the initiation of the PECC. What I just said does not detract from or diminish the importance of the formal process of holding international (codification) conferences followed by the signature by governments of the various draft conventions and their subsequent ratification in the usual manner. Nor should the indirect method be a substitute for the more traditional formal process. It should be viewed, rather, as complementary and assisting the formal international lawmaking process. The problem of dealing with such mundane matters as international trade law is that it does not attract as much as attention as international political matters such as ethnic cleansing or genocide which scream for attention from the headlines. It is not easy to make governments aware of the importance of UNCITRAL and its work and get their enthusiastic support for inter-governmental or UN conferences to finalize the excellent work done by this UN Commission of experts in the laws on international trade. Singapore is the only country in ASEAN which has signed and ratified the UN Convention on Contracts for the International Sale of Goods, Vienna 1980 better known as the Vienna Sales Convention. The Convention demonstrates the advantages of using a model code to promote regional harmonization of laws. I will, therefore, describe the principal attributes of the Convention.
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