The Political Economy of International Sales Law

Fonte: http://www.sciencedirect.com/science?_ob=MImg&_imagekey=B6V7M-4JGJJ92-1-...
Acesso em: 28 out. 2009.

The United Nations Convention on Contracts for the International Sale of Goods, or CISG, purports
to harmonize the law that applies to international sales contracts. In this paper, we argue that the effort
to create uniform international sales law (ISL) fails to supply contracting parties with the default terms
they prefer, thus violating the normative criterion that justifies the law-making process for commercial
actors in the first instance. Our argument rests on three claims. First, we contend that the process by
which uniform ISL is drafted will dictate the form that many provisions take. Second, we contend that
the legal form dictated by the drafting process has significant substantive consequences, particularly
for the policy objectives of uniform ISL. Third, we predict that in order to achieve uniform ISL that
is widely adopted, those involved in the drafting process will systematically promulgate many vague
standards that contracting parties would not choose for themselves. These defaults cannot be justified
as the inevitable cost of achieving an optimal level of uniformity. If the products of a uniform ISL are
default terms that parties do not want, then the underlying justification for the law-making function ?
reduction of contracting costs ? vanishes.
We find significant correspondence between our predictions about the drafting of uniform international
sales law and the CISG. The CISG was drafted by parties whose objectives did not necessarily
coincide with those of the commercial actors whose conduct the treaty was intended to regulate. The
result is a variety of vague standards and compromises that appear inconsistent with commercial
interests. We conclude by suggesting that commercial actors involved in international sales would
prefer to choose governing law from among legal regimes that compete to supply parties with more
desirable substantive terms.
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