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PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System

BACKGROUND TO THE MAL AND THE ENACTMENT BY STATES

INTRODUCTION

The UNCITRAL Model Law on International Commercial Arbitration and the UN Convention on Contracts for the International Sale of Goods are the two most successful products of the UN harmonization and unification program in the filed of international commercial law. Both of them reflect the needs of the rapid increase of international trade relations, and consequently, the need for harmonization and unification of international trade law and practices in these fields. The growth in international trade and commerce has revived the interest of governments and businesses in legal harmonization.

This is not, however, a new phenomenon. Efforts to harmonize laws across nations through negotiation of bilateral and multilateral treaties of unification or harmonization, some of which still in force, can in fact be traced back to the 19th century. 2

Of course, times have since changed. One of the most obvious differences between the current harmonization process and earlier efforts is the existence nowadays of a number of both governmental and business organizations dedicated to this work – sometimes even exclusively. Another distinct feature of contemporary harmonization is the wide range of tools used to formulate and implement uniform rules. The aim of enhancing legal certainty and predictability is still the main driving force of international harmonization efforts. The positive role of legal harmonization in reducing transaction costs and facilitating business worldwide is now well recognised.

Obviously, UNCITRAL was not the first international organization to act in the field of harmonization of commercial and private law. Other prestigious organizations, such as the Hague Conference on Private International Law and the Institute for the Unification of Private Law (UNIDROIT), or non-governmental institutions such as the International Chamber of Commerce (ICC) or the Comité Maritime International (CMI) had been active long before the United Nations was established, in 1945.

However, the work of those other organizations had two important limitations: uniform rules and standards produced by non-governmental organizations could only achieve the expected harmonization effect to the extent that private parties agreed to use them and courts upheld that agreement; as regards intergovernmental organizations, their membership was typically limited to the developed economies of the West, with little involvement by developing or socialist countries.

Those were two of the main reasons that led member States to see a role for the United Nations, as the one truly universal organization, in the area of trade law harmonization. In the United Nations, arguments for unification have tended to emphasize the economic benefits to be gained by the unification of trade law, especially for the developing nations. Yet member States have also recognized that the activity of international trade could itself provide a basis for friendly relations if it were structured by a common set of rules, informed by the principles of equality and mutual respect. Business and political representatives have recognized the relationship between trade promotion and facilitation – two of the aims of legal harmonization

  • and the broader goals of the United Nations, such as promotion of world peace and human

development.

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