PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
I. TECHNIQUES OF HARMONIZATION AND UNIFICATION
When discussing techniques used for legal harmonization, it is essential to distinguish between supranational organizations, such as the European Union, and classical international organizations, such as the United Nations. The European Union has itself the power to promulgate texts that have the force of law in all its member States without the need for any act of acceptance of incorporation into the domestic legal order, the EU may bind the member States to achieve a certain legislative objective, leaving them only the choice of implementation for that purpose.
In contrast, instruments produced by UNCITRAL may only become binding law after a State has decided to adopt it – either by ratification or by domestic enactment – but no State is obliged to do so. Thus, the entire work of harmonization done by UNCITRAL is of voluntary nature and takes full account of State sovereignty. This characteristic explains the continuous and often difficult search for consensus in the work of UNCITRAL, which relies only on the acceptability of its texts to achieve wide adoption.
A. GENERAL PROBLEMS IN INTERNATIONAL RULE-MAKING
The search for consensus between different legal traditions is not an easy enterprise level, and international uniform rules are often subject of criticism by domestic readers, who point out the superiority of national law over the product of international negotiations– if not in substance, at least in style.
These are general problems faced by international legal harmonization, irrespective of the subject matter and the form of the instrument. One area of particular difficulty is the operation of the judicial system and, although there are a number of conventions on judicial cooperation, none that attempts to unify the procedure in the courts. It is generally easier to prepare a legal text for activities that take place entirely or primarily in the international sphere, although this is by no means an assurance of speedy or smooth negotiations.
Another difficulty of international legal harmonization is that the search for compromise often means that the preferred rule in a given legal system may be eventually mitigated or abandoned altogether, especially when it is unlikely that it will obtain support of other legal systems. Countries considering adoption of internationally negotiated instruments have to be aware of reasons leading to such deviations from rules familiar to them and be ready to accept the possibility of having to apply different rules depending on whether a particular transaction is governed by purely domestic or by uniform law.
These difficulties are well known. Yet the challenging question is still open: what to do where disharmony is not acceptable?3 In the ambit of organizations such as UNCITRAL (and also UNDROIT and the Hague Conference) all stages of the preparation, negotiation and adoption of an international instrument depend exclusively on the will of States. One must assume that States make decisions to undertake work and to carry it through despite the difficulty, length, cost and uncertainty inherent to the process because they have concluded that a certain degree of harmonization in a given area is desirable. Once States have decided that harmonization is necessary or desirable, they have to use the tools available to them.
B. CHOICE OF INSTRUMENT FOR HARMONIZATION
The factors discussed above affect the form in which the international legislator will draft the resulting text. Treaties have been the traditional vehicle for legal relations between States and have been the primary vehicle for the international unification of domestic law. Model laws and other forms of legal unification have been a more recent innovation.