Harmonisation Projects: Lessons from the European Experience?
| Autor | John Cartwright |
| Cargo | University of Oxford, Faculty of Law, UK |
| Páginas | 163-184 |
HARMONISATION PROJECTS: LESSONS FROM THE
EUROPEAN EXPERIENCE?
John Cartwright
*
Abstract
In recent years a number of dif ferent projects of harmonisation
of private law, and in particular contract law, have been devel-
oped at both the regional level and the international level. In
Europe for twenty-ve years efforts were made to work out a pos-
sible model for the harmonisation of contract law: by the end of
2014 this appeared not to have succeeded, but there are lasting
results of the process which had a signicant inuence in the
process of the reform of the law of contract in France in 2016.
This illustrates the value which such projects can have, and can
provide a lesson for other regions such as Latin America.
Key words: Harmonisation, Contract law, Principles of European Contract law, Reform of
French contract law, Principles of Latin American Contract Law.
1. INTRODUCTION: THE ROLE OF HARMONISATION IN
PRIVATE LAW
1.1 The appetite for “harmonisation” in private law
In recent years there has been a real appetite for harmoni sation in private
law across national legal systems , and especially w ithin contract law. The notion
of “harmonisation” can take varying dif ferent form s.1 We may sometime speak of
the creation of a “uniform” law, or the “unication” of an area of the law, through
instruments which are desi gned to supplement or even to supersede national law for
* University of Oxford, Faculty of Law, UK (john.cartwr ight@l aw.ox.ac.uk). This article is based on
lectures presented at Universidad Adolfo Ibáñez, Santiago, and Ponticia Universidad Católica de
Valparaíso, in September 2017. Article received on November 16, 2017 and accepted for publication
on December 19, 2017.
1 In the European context, see
Zimmermann
(2006);
mCKendriCK
(2006); and in the Latin American
context, see
momberg
(2017), pp. 8-20. See also papers from the UNIDROIT 75th Anniversary
Congress on Worldwide Harmonisation of Private Law and Regional Economic Integration in
Uniform Law Review, Vol. 8, Nos 1 and 2 (2003), pp. 81-170.
2 CISG (1980), Preamble: “The State Parties to this Convention .... Being of the opinion that the adoption
of uniform rules which govern contracts for the international sale of goods and take into account
the different social, economic and legal systems would contribute to the removal of legal barriers in
John Cartwright
164
LATIN AMERICAN LEGAL STUDIES Volume 2 (2018)
tual instruments such as the UNIDROIT Principles of International Commercial
Contracts.3 Sometimes we may speak even of “codes” which would be designed to
replace whole areas of national law.4 But a more common (and, indeed, linguistically
more accurate5) use of the term “harmonisation” would refer to the process of bring-
ing national systems into alignment; not superseding them but reconciling them,
typically through “soft law” instruments—texts which contain model rules which
can inspire the reform of national law, and can even become “hard law” if national
lawmakers choose to adopt them through their normal internal legislative processes,
and which might be so adopted in whole, or in part, or with adaptations that are
designed to t the national system in question. This way of looking at the notion of
harmonisation is particularly apt in the context of the example that will be discussed
later in this article—the recent reform of the law of contract in France.6
This development of the modern movement for harmonisation of private law
has operated at both the international level and the regional level, and in this process
there has been interaction and inuence between international and regional actors.
Internationally, the main actors have been the United Nations Commission on In-
the International Institute for the Unication of Private Law (UNIDROIT9), which
produced the rst edition of the Principles of International Commercial Contracts
in 1994. Regional harmonisation projects have often drawn on these international
instruments. For example, the Organisation for the Harmonization of Business Law
in Africa (OHADA) has been working since its establishment in 1993 to harmonise,
or unify, various aspects of commercial law across its member states (currently num-
bering 17), including working with UNIDROIT on a draft OHADA Unifor m Act
on Contract Law during the 2000s.10 Perhaps the most well known, and most widely
international trade and promote the development of international trade, Have ag reed as follows:...”
3 UNIDROIT (2016), Preamble: “These Principles set forth general rules for international commercial
contracts. They shall be applied when the parties have agreed that their contract be governed by
them. They may be applied when the parties have agreed that their contract be governed by general
principles of law, the lex mercatoria or the like. They may be applied when the parties have not
chosen any law to govern their contract. They may be used to interpret or supplement international
uniform law instruments. They may be used to interpret or supplement domestic law. They may
serve as a model for national and international legislators.”
4 See the European Parliament resolution 26 May 1989, [1989] OJ C158/400, requesting “that a
start be made on the necessary preparatory work on drawing up a common European Code of
Private Law”.
5 OED Online (2017) “harmonization, n.”: “Reduction to harmony or agreement; reconciliation”.
6 Section 3 below.
7 http://www.uncitral.org.
8 CISG (1980).
9 http://www.unidroit.org.
10
Fontaine
(2004). For paper s from a colloquium held in November 2007 to discuss the draft, see
Uniform Law Review, Vol. 13, Nos 1-2 (2008). This draft has not, however, been nalised.
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