Volume 42 | Number 3 Summer 2007
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I. Unification, Harmonization, and Modernization
The United Nation’s General Assembly adopted a resolution to establish its Commission on International Trade Law in 1966. In justifying the creation of UNCITRAL, the General Assembly “[r]eaffirm[ed] its conviction that divergencies arising from the laws of different States in matters relating to international trade constitute one of the obstacles to the development of world trade.”20 Thus, the decision to establish a Commission, “which shall have for its object the promotion of the progressive harmonization and unification of the law of international trade,” was based on a belief that “the extensive development of international trade” could best be furthered by removing “divergencies arising from the laws of different States”—by harmonizing and unifying the law of international trade through “promoting the adoption of international conventions, uniform laws, standard contract provisions, general conditions of sale, standard trade terms and other measures.”21 The harmonization and unification of the law of trade was sought on the presumption that it enabled international trade and not simply for the sake of harmonizing and unifying laws. International trade was said to favor “the interests of all peoples” and “particularly those of developing countries” because “international trade cooperation among States is an important factor in the promotion of friendly relations and, consequently, in the maintenance of peace and security.”22
Over time, UNCITRAL has pursued its mission of the “progressive harmonization and unification” of trade law with a pragmatic vision of its primary purpose—the promotion of international trade. UNCITRAL is probably best known for its drafting of the Convention on Contracts for the International Sales of Goods,23 which has been adopted in nearly seventy countries including the United States.24 Over the past forty years, UNCITRAL has produced conventions, model laws, legislative guides and other international instruments on many areas of procedural and substantive law, including international arbitration,25 e-commerce,26 international payments,27 procurement, and infrastructure development,28 international transport of goods,29 and insolvency.30 There currently are six active UNCITRAL working groups, whose topics range from insolvency31 and secured transactions32 to electronic commerce, procurement, transport law, and international arbitration and conciliation.33 Consistent with its mandate to coordinate legal activities among international organizations working in the field of international trade law,34 UNCITRAL also partners loosely from time to time with entities such as the Hague Convention, the World Bank and the International Monetary Fund (IMF) for the drafting and implementation of core areas of commercial law in transitional and developing countries.35
Table 1 lists UNCITRAL’s work product over time. It also lists the legal technologies UNCITRAL employed for these projects. Table 1 demonstrates that UNCITRAL has historically relied on model laws and conventions to communicate to domestic legislatures. Over time, it has adopted two sets of rules, seven conventions, two recommendations, two sets of model legal provisions, eight model laws (four of which it combined with guides to enactment), one legal guide and one set of notes. Of the twenty-five international instruments produced by UNCITRAL since its inception, fifteen constitute model laws or conventions. When we focus exclusively on legal technologies directed to domestic legislatures and other public audiences, however, these technologies nearly uniformly have taken the form of conventions, model laws or model legal provisions (with three exceptions). On this ground, we exclude UNCITRAL’s product on arbitration and conciliation from the count, since these media are directed to private parties, including international arbitrators, rather than domestic legislatures. Similarly, we exclude UNCITRAL’s Legal Guide on Drawing Up International Contracts for the Construction of Industrial Works for nearly the same reason: it is directed to contracting parties, although in this case the intended audience includes both private parties and government agencies drafting construction contracts with an international focus. When it has spoken to domestic legislatures, UNCITRAL has overwhelmingly chosen to speak through conventions (of which it has produced seven), model laws (of which there are eight) and model legal provisions (of which there exist two sets). The only exceptions to this general observation include one recommendation (on the Legal Value of Computer Records) and two legislative guides (one on Privately Financed Infrastructure Projects and another on Insolvency Law).
UNCITRAL’s reliance on conventions, model laws and model legal provisions seem well matched with its core mission to produce “the progressive harmonization and unification of the law of international trade.”36 Conventions necessarily unify the law that a convention covers, at least for those nations who accede to it; where numerous countries agree to be bound by the terms of the convention, the unification of law follows a broad path. Model laws can have similarly unifying effects, although only where national legislatures implement the model law provisions by adopting domestic legislation that closely tracks the model law.37 Because model laws are not self-executing in that they depend upon national legislatures to adopt implementing legislation for their effectiveness, they intrude less on national sovereignty.38 In permitting national legislatures greater freedom to adjust the model law provisions to local social and political demands, model laws risk non-uniformity.39 Where implementing legislation differs only in small ways from the model law, however, the distinction between a convention and a model law pertains not so much to the uniformity of the resulting legal rules but to the number of countries who agree to be bound.40 The assumption is that fewer nations will sign and ratify a convention, given the lack of flexibility on its terms, than will support UNCITRAL’s promulgation of a model law and adopt their own implementing legislation.
Table 1. UNCITRAL Work Products and Legal Technologies, 1976-2005
| Year | UNCITRAL Work Product | Legal Technology |
|---|---|---|
| 1974 | Convention on the Limitations Period in the International Sales of Goods | Convention |
| 1976 | Arbitration Rules | Rules |
| 1978 | Convention on the Carriage of Goods by Sea (the “Hamburg Rules”) | Convention |
| 1980 | Conciliation Rules | Rules |
| 1980 | Convention on Contracts for the International Sale of Goods | Convention |
| 1982 | Recommendations to assist arbitral institutions and other interested bodies with regard to arbitrations under the UNCITRAL Arbitration Rules | Recommendations |
| 1982 | Unit of Account Provision and Provisions for the Adjustment of the Limit of Liability in International Transport and Liability Conventions | Model legislative provisions |
| 1983 | Uniform Rules on Contract Clauses for an Agreed Sum Due to Failure of Performance | Rules |
| 1985 | Model Law on International Commercial Arbitration | Model law |
| 1985 | Recommendation on the Legal Value of Computer Records | Recommendation |
| 1987 | Legal Guide on Drawing Up International Contracts for the Construction of Industrial Works | Legal guide |
| 1988 | Convention on International Bills of Exchange and International Promissory Notes | Convention |
| 1991 | Convention on the Liability of Operators of Transport Terminals in International Trade | Convention |
| 1992 | Model Law on International Credit Transfers | Model law |
| 1992 | Legal Guide on International Counter-Trade Transactions | Legal guide |
| 1993 | Model Law on Procurement of Goods and Construction with Guide to Enactment | Model law + guide to enactment |
| 1994 | Model Law on Procurement of Goods, Construction and Services, with Guide to Enactment | Model law + guide to enactment |
| 1995 | Convention on Independent Guarantees and Stand-by Letters of Credit | Convention |
| 1996 | Notes on Organizing Arbitral Proceedings | Notes |
| 1996 | Model Law on Electronic Commerce with Guide to Enactment | Model law + guide to enactment |
| 1997 | Model Law on Cross-Border Insolvency with Guide to Enactment | Model law + guide to enactment |
| 2000 | Legislative Guide on Privately Financed Infrastructure Projects | Legislative guide |
| 2001 | Model Law on Electronic Signatures with Guide to Enactment | Model law + guide to enactment |
| 2001 | Convention on the Assignment of Receivables in International Trade | Convention |
| 2002 | Model Law on International Commercial Conciliation with Guide to Enactment and Use | Model law + guide to enactment and use |
| 2003 | Model Legislative Provisions on Privately Financed Infrastructure Projects | Model legislative provisions |
| 2005 | Convention on the Use of Electronic Communications in International Contracts | Convention |
| 2005 | Legislative Guide on Insolvency Law | Legislative guide |
Table 1 also demonstrates that conventions and model laws retain importance even today, evidencing UNCITRAL’s continued commitment to the goals of unification and harmonization. UNCITRAL promulgated six conventions between 1978 and 2005.41 Its reliance on model laws is also evenly spread over time; between 1982 and 2003, UNCITRAL adopted ten model laws or model legislative provisions.42 Table 1 does not, however, demonstrate any obvious correlation between whether UNCITRAL chose to rely on a convention or model law and the subject matter of the instrument. Every Working Group has produced at least one model law. UNCITRAL was most likely to rely on conventions when international transport of goods43 and international payments44 were the topic, but there are also conventions regarding electronic commerce45 and the international sales of goods.46 Indeed, since 2000, UNCITRAL’s work has been fairly evenly divided between conventions (2), model laws (3) and legislative guides (2).47
When we look at UNCITRAL’s ongoing work, we see a similar pattern. There are six Working Groups, five of which met during 2006 and 2007. Working Groups I, II, and III are engaged in revisions to an earlier UNCITRAL model law or convention. Working Group I (procurement and project finance) continues to meet to discuss possible revisions to the UNCITRAL Model Law on Procurement of Goods, Construction and Services.48 Working Group II (international arbitration and conciliation) actively is considering revisions to the UNCITRAL Arbitration Rules.49 Moreover, in its meeting in June and July of 2006, the Commission adopted amendments to the Model Law on International Commercial Arbitration that Working Group II had approved in its earlier meetings.50 Working Group III (transport law) is engaged in a review of a draft convention on the carriage of goods by sea.51 Only Working Groups V (insolvency) and VI (secured transactions) are not working on revisions to a model law or convention. The Secured Transaction Working Group has been working steadily since 2000 on its Legislative Guide on Secured Transactions Law, with its work projected to be complete by some time in 2007 or 2008.52 Following ratification of its Legislative Guide on Insolvency Law by the Commission and the UN’s General Assembly, UNCITRAL directed the Insolvency Working Group to consider three additional topics: the treatment of corporate groups, particularly in cross-border insolvency proceedings; financing of cross-border insolvency proceedings; and court-to-court communication and the use of protocols in cross-border insolvency proceedings.53
A. The Shift Toward Modernization
What can be said about UNCITRAL’s work that did not take the form of a convention or a model law but still was addressed to legislatures and national actors (rather than private parties)? For instance, what of the Recommendation on the Legal Value of Computer Records, promulgated by UNCITRAL in 1985? We view this Recommendation as UNCITRAL’s first effort at modernizing the law of trade, and note that with this international instrument UNCITRAL walked very gingerly into the topic of automatic data processing, computer records and electronic communications. Comprising no more than two pages in length, it amounts to little more than a “Recommendation” to “Governments” that they review their “legal rules affecting the use of computer records as evidence in litigation in order to eliminate unnecessary obstacles to their admission,” as well as any “legal requirements” that “trade related documents” or “documents for submission to governments” be “in writing” or signed.54 The preamble paragraphs of the Recommendation make clear that, although the commercial practices associated with electronic communications were rapidly changing, domestic commercial laws had not.55 Because there were no existing domestic laws on the books, there was nothing particular to harmonize; instead, there was a sense that the technology was poised to mushroom in importance and a fear that international trade would be held back if commercial law was not brought up to speed with these commercial practices. The case for “in with the new” modernization was, thus, first made with this Recommendation.
The concepts of electronic commerce and, indeed, of UNCITRAL as an agent of modernization, were so new that eleven years passed before UNCITRAL next spoke on the topic of the computerization of commercial practices,56 but since then, UNCITRAL has promulgated two model laws and one convention on the topic57 and the term “modernization” is regularly employed with reference to these instruments and the topic of electronic communication and electronic commerce. For example, the UNCITRAL Model Law on Electronic Commerce explains its history and background as “prepared in response to a major change in the means by which communications are made between parties using computerized or other modern techniques in doing business”58 and, thus, “to enhance the needed modernization of legislation.”59 The Guide to Enactment of the Model Law on Electronic Commerce also employs the rhetoric of modernization, explaining the need both for the Model Law60 and for the accompanying Guide to Enactment61 in terms of a need to modernize. Similarly, the UNCITRAL Model Law on Electronic Signatures notes, in its Guide to Enactment, that it “is designed to assist States in establishing a modern, harmonized and fair legislative framework to address more effectively the issues of electronic signatures.”62 The United Nations Convention on the Use of Electronic Communications in International Contracts also justifies its need on the grounds that it “may help States gain access to modern trade routes.”63
An interest in the modernization of trade law, including revisions to existing UNCITRAL product, currently dominates the Working Groups’ work in progress and, frequently, the focus is on “in with the new” modernization intended to enable reliance on recent applications of electronic media to new industries. For example, among the reasons Working Group I (procurement and project finance) provides for its consideration of revisions to the Model Law on Procurement of Goods, Construction and Services is the need to add provisions in the Model Law addressing procurement by electronic means (for example, by email or over the Internet). Similarly, Working Group II (international arbitration and conciliation) proposed amendments to the Model Law on International Commercial Arbitration and is considering revisions to UNCITRAL’s Arbitration Rules partly to address issues raised by online dispute resolution. In addition, the work of Working Group III (international transport) on a draft convention on the carriage of goods by sea addresses, among other issues, questions regarding the validity and enforceability of electronic transportation documents.
References to the need for modernization are not limited to “in with the new” modernization. In its 1999 report on Possible Future Work on Insolvency Law, the UNCITRAL Secretariat noted that an important justification for authorizing the Working Group on Insolvency Law to begin its work on the Legislative Guide on Insolvency Law “was to modernize insolvency practices and laws.”64 With this reference, the term “modernization” took on a new meaning. Unlike UNCITRAL work to modernize commercial laws so that they reflect modern commercial practices involving electronic means of communication and commerce, the Legislative Guide on Insolvency Laws sought to “modernize insolvency practices and laws” by recommending to national actors that they replace their existing domestic insolvency laws with more modern ones. “Out with the old” modernization is not limited to insolvency reform. Similarly, a 2000 report on the then-current activities and possible future work of the Working Group on Secured Transactions justified authorizing it to begin work on the Legislative Guide on Secured Transactions Law on the grounds that “modernization and optimization of secured credit law can lead to expanded economic development and, therefore, promote the general welfare.”65 In every year since 2000, the Commission’s yearly report to the UN General Assembly reaffirms “its belief that the progressive modernization and harmonization of international trade law” both “reduce[es] or remov[es] legal obstacles to the flow of international trade” and “contribute[s] significantly to universal economic cooperation among all States on a basis of equality, equity and common interest . . . .”66
By now, UNCITRAL has incorporated the modernization of the law of international trade within its core mission. Although the term “modernization” nowhere appears in the UN Resolution establishing UNCITRAL,67 UNCITRAL’s mandate to “modernize” the law of international trade has become deeply ingrained in the ethos of the Commission—so much so that UNCITRAL describes its “business” as “the modernization and harmonization of rules on international business.”68
This focus on the modernization of the law of trade infuses more than UNCITRAL’s substantive choices about what projects to adopt. It also affects the legal technologies through which UNCITRAL articulates its recommendations to domestic legislatures. The development of more flexible international technologies derives in part from the expanded list of topics on which UNCITRAL has focused. In a 1981 Report to the Commission, UNCITRAL’s Secretariat reports success on its initial “four fields of interest: the law of international sales of goods, carriage of goods by sea, international negotiable instruments and international commercial arbitration.”69 In each of these fields, the Secretariat reported the adoption of “comprehensive texts,” but went on to opine that “[t]he subject matter of the Commission’s new programme of work does not always require a comprehensive solution. The difference in magnitude of the problems considered may have an impact of the final form which the Commission’s work might take.”70 Specifically, the Secretariat suggested that, if it was not feasible for the Commission to propose “a text ready for adoption,” then it might instead adopt a “guidelines approach” on the grounds that “the development of guidelines or recommendations may be an appropriate first objective, leaving until later a decision as to whether further actions are desirable.”71 By 1985, UNCITRAL promulgated its Recommendation on the Legal Value of Computer Records.72
Neither a convention nor a model law would seem appropriate tools when law reform looks to reject out-moded law in favor of new, more modern text. These sorts of international instruments are ill-suited to suggesting that national actors to reform existing bodies of law because, to some degree, they demand adherence to the terms of the international instrument. For example, national actors face a binary choice with regard to a convention: accede to the terms of the convention in full or fail to follow it at all. Model laws permit slightly greater freedom, in that domestic legislatures may adopt implementing legislation that fails to adopt all of the provisions of the model law, but it stretches the concept of a “model” law to invite national actors to pick and choose among the provisions of a model law. Not surprisingly, then, we find that both the Insolvency and Secured Transactions Working Groups consciously chose to work on legislative guides rather than a model law or convention.73 In its Reports to the Working Groups on Possible Future Work on Insolvency and Secured Transactions Laws, intended to convince the Commission to take on the task of drafting these legislative guides, UNCITRAL’s Secretariat talks openly about the need for flexibility in modernizing these areas of the law, particularly in light of the global dissensus the drafters faced. Both reports emphasize the need for a legislative guide rather than a convention or model law.
When reporting to the Working Group on Insolvency Law, the Secretariat put the issue this way:
It is not always possible to draft specific uniform provisions in a suitable form, such as a convention or a model law, for incorporation into national legal systems. One reason may be, for example, that national legal systems use widely disparate legislative techniques and approaches for solving a given issue, or that States are not yet ready to agree on a common approach or a common rule. A further reason may be that not all States perceive a sufficiently urgent need to find a uniform solution to a particular issue.74
In this event, “it may be appropriate not to attempt to elaborate a text in the form of a model statute, but to limit the action to a set of principles or legislative recommendations.”75 In other words, given the Working Group’s need for flexibility, it may be best to produce a legislative guide rather than a model law.
A similar debate on the form of reform occurred within the Secured Transactions Working Group. Before beginning to draft the Legislative Guide on Secured Transactions Law, Working Group VI debated the merits of a “convention unifying substantive rules governing security interests,” a “convention establishing uniform conflict rules,” a “convention or model law creating an international security interest,” a “statement of principles accompanied by a model law,” and “more limited solutions,” such as a “statement of principles accompanied by a legal guide.”76 The Secured Transactions Working Group favored the latter both because “at present the national legal systems are still too divergent” and because a convention or model law would not be “flexible enough to take into account the varying circumstances of the countries of the world . . . .”77
B. Redefining Harmonization to Meet the Challenges of Modernization
UNCITRAL reconciled its goal to promote “in with the new” and “out with the old” modernization with its core mission—the “progressive harmonization and unification” of the law of trade—by expanding the definition of harmonization to subsume modernizing law reform. Currently, UNCITRAL defines harmonization “as the process through which domestic laws may be modified to enhance predictability in cross-border commercial transactions,”78 but it did not always conceive of harmonization so expansively.
UN documents pre-dating the creation of UNCITRAL define “harmonization” in a way that approximates or, at least, approaches “unification.” In the year before UNCITRAL was created, the UN General Assembly requested the Secretary-General to submit to it a comprehensive report on the need for UNCITRAL.79 This Resolution 2102 (XX) explained the UN’s preliminary interest in establishing a UN-connected international organization on trade law as based on a recognition “that conflicts and divergencies arising from the laws of different States in matters relating to international trade constitute an obstacle to the development of world trade . . . .”80 It described the mission of such an organization as focused on the “progressive unification and harmonization”81 of trade law “by promoting the adoption of international conventions, uniform laws, standard contract provisions, general conditions of sale, standard trade terms and other measures . . . .”82
In response to Resolution 2102 (XX), the Secretary-General commissioned a report from Prof. Clive M. Schmitthoff of the City of London College, a prominent scholar on the law of international trade and conflicts of law, and, in September 1966, Prof. Schmitthoff submitted a lengthy report to the Secretary-General.83 Like Resolution 2102 (XX), the Schmitthoff Report referred to “the progressive harmonization and unification of the law of international trade . . . .”84 It referred to “harmonization” as a technique for “reduc[ing] conflicts and divergencies arising [in] international trade [law],”85 and described unification as “[t]he most effective method of conflict avoidance . . . .”86 Implicit in the Schmitthoff Report is a view of harmonization as the convergence of legal rules toward a unified code of conduct; in this view, harmonization would, over the long run, approach a unification of legal rules.
This substance-focused definition of harmonization also permeates UN Resolution 2205 (XXI), which subsequently established UNCITRAL.87 When it created UNCITRAL, the General Assembly “[r]eaffirm[ed] its conviction that divergencies arising from the laws of different States in matters relating to international trade constitute one of the obstacles to the development of world trade.”88 The decision to establish a Commission was based on a belief that “the extensive development of international trade” was best advanced by removing “divergencies arising from the laws of different States,” differences which would dissipate “by promoting the adoption of international conventions, uniform laws, standard contract provisions, general conditions of sale, standard trade terms and other measures . . . .”89 This is a “hard” definition of harmonization that views harmonization in terms of the convergence of non-uniform national laws around an agreed upon international standard. It is at the same time, however, a definition of harmonization couched in terms of the pragmatic and progressive ends it envisions: harmonization is sought in order to enable international trade and not for its own sake; international trade is viewed as favoring “the interests of all peoples” and “particularly those of developing countries” because “international trade cooperation among States is an important factor in the promotion of friendly relations and, consequently, in the maintenance of peace and security . . . .”90
Even this “hard” definition of harmonization leaves room for ambiguity. Did UNCITRAL view harmonization as intended to remove all dissensus among national laws, or simply to reduce the number of divergencies and their impact on international trade? Some support for a “unification over time” definition of harmonization can be found in the form of legal technologies employed by UNCITRAL: Conventions look for a single set of principles or legal rules that can garner international agreement; a model law differs from a convention more in terms of its means of implementation than in the number of options and alternatives it leaves open for national deliberation.91 UNCITRAL has relied predominantly on conventions and model laws when addressing national actors. We also find support for a “reduction of differences over time” perspective on harmonization, although evidence of this “softer” definition of harmonization emerges only slowly over time.
UNCITRAL’s first international instruments directed to national actors are conventions—namely, the Convention on the Limitations Period in the International Sales of Goods, the Convention on Carriage of Goods by Sea, and the Convention on Contracts for the International Sale of Goods, adopted in 1974, 1978, and 1980, respectively—but two years later, in 1982, UNCITRAL promulgated the Unit of Account Provision and Provisions for the Adjustment of the Limit of Liability in International Transport and Liability Conventions, model legal provisions but not a model law. Model legal provisions do not attempt to cover an area of commercial law in its entirety. Because they intentionally leave some portion of the topic for non-uniform national laws, they are best described as intended to reduce rather than eradicate divergencies among national laws; they look for harmony on only a limited set of issues. Nonetheless, model legal provisions do offer national actors a single set of options around which to converge.
The next UNCITRAL product directed to a public audience, the Recommendation on the Legal Value of Computer Records, dated 1985, cannot be described as seeking either uniformity or harmonization on the topic of computerization in commercial transactions. As noted earlier,92 the Recommendation speaks only in broad generalities and merely recommends that national actors review and update existing laws to account for technological developments. This Recommendation should not be viewed as a rejection by UNCITRAL of an interest in reaching international consensus on a single unified set of principles on the topics of computerization and electronic commerce, for the Recommendation was followed, nearly immediately, with a long string of conventions93 and model laws.94 We note, however, that the model law projects changed during this period. Beginning with the Model Law on Procurement of Goods and Construction, all subsequent model law projects are joined with an accompanying guide to enactment.
We see UNCITRAL’s reliance on guides to enactment as connected to its recognition of the pragmatic difficulties of promoting “the progressive harmonization and unification” of the law of trade by means of a model law. While on their face harmonizing, model laws reduce the divergencies among national laws only if national actors enact implementing legislation that replicates the terms of the model law. Guides to enactment are intended to explain the model law to a domestic legislature; they advocate enactment of implementing legislation. UNCITRAL recognized that national delegates’ willingness to adopt the text of a convention or model law as an UNCITRAL product did not guarantee that their nations would accede to the terms of the convention or adopt legislation modeled on the UNCITRAL model law.
If guides to enactment are used to bolster the “one rule” espoused in the model law, they would be consistent with a “unification over time” concept of harmonization, but UNCITRAL used its guides to enactment for other purposes, as well. Over time, UNCITRAL recognized that domestic legislatures could do more than enact legislation to implement a model law or reject its terms in toto. Where a Working Group could not reach consensus on some provisions in a model law, it needn’t abandon the model law project in favor of a more limited set of model legal provisions that did not cover the field. For example, it could include alternative provisions in the model law (option A; option B), and leave it to domestic legislatures to choose between the two;95 alternatively, a model law might on its face allow for domestic legislatures to adopt exclusions from its terms to reflect social or cultural norms contrary to the international norms expressed in the model law.96 In this event, guides to enactment developed a secondary purpose: With a model law that offered an array of choices to national audiences, the accompanying guide to enactment explained how alternatives might work in practice and the competing policies and principles embedded in the choices offered.
Alternative model law provisions and open-ended exclusions permitted by the terms of the model law promote a “softer,” “reduction of differences over time” concept of harmonization. By 1999, UNCITRAL’s Secretariat put the issue in this way:
165. Within the category of model laws prepared by UNCITRAL, two texts, the Model Law on International Commercial Arbitration and the Model Law on Electronic Commerce, illustrate the flexibility of the form. The Model Law on International Commercial Arbitration, which could be described as a procedural instrument, provides a discrete set of interdependent articles. It is recommended that, in adopting the Model Law, very few amendments or changes are required. Deviations from the Model Law text have, as a rule, very rarely been made by countries adopting enacting legislation, suggesting that it has been widely accepted as a coherent model text.
166. The Model Law on Electronic Commerce, on the other hand, is a more conceptual text. Legislation adopting or proposing to “enact” the Model Law largely reflects the principles of the text, but may depart from it in terms not only of drafting, but also in the combination of provisions adopted or proposed for adoption. As such, and so far as it is appropriate to distinguish between a model law and model provisions, the Model Law on Electronic Commerce perhaps can be regarded as establishing a set of model principles, which are drafted in the form of legislative provisions to facilitate consideration by legislators and assist in the development of laws.97
This is a pragmatic acceptance of the limitations of second-order decisionmaking in that these “more conceptual” model laws, such as the Model Law on Electronic Commerce, only indirectly and over the long haul accomplish the “harmonization” needed to promote international trade. This “conceptual” form of model law does not offer unification, even in the long run.98 But rather than despair of the inherent constraints of international lawmaking, UNCITRAL accepts these limits as part of the challenge.
Once UNCITRAL shifts its gaze from the accepted wisdom that a convention unifies and a model law harmonizes to the notion that unification and harmonization are to be judged by looking, not at international instruments, but at domestic practices, it is only a small step to the conclusion that a legal technology, such as a legislative guide, might also harmonize domestic practices even though a legislative guide provides national actors with more than one or two options. A recognition that what matters is, not so much harmonization “on the books,” but rather harmonization “in practice,” might also constitute an acceptance that the form of “the book”—that is, the form of the legal technology or international instrument employed by the decisionmaking institution—is less important than its practical consequences.
A changing context and a challenging diversity in the world’s legal systems stimulated UNCITRAL to shift its mission and invent new forms of modernizing instruments that vindicate that mission. What, then, are the formal properties of a legislative guide that allow it to function in ways that other UNCITRAL technologies do not? What is it about a legislative guide that might stimulate modernization concomitantly with enhancing global trade across an enormous diversity of the world’s legal systems? We turn to these questions in the next section.