Lloyd's Maritime and Commercial Law Quarterly
Harmonization and how not to do it: agency in the UNIDROIT Principles of International Commercial Contracts 2004
Thomas Krebs *
The UNIDROIT Principles of International Commercial Contracts have been compared with the American Restatements—they are meant to do for commercial law worldwide the same job that the Restatements have done for American law. This article scrutinizes this claim, using the example of the recently added section of the Principles governing the authority of agents. The central thesis of the article is that the new section on agency demonstrates some fundamental problems of “soft-law” harmonization.
National and international harmonization
The common law has had a problem for a number of centuries, essentially ever since a bunch of colonists decided to treat Boston Harbour as one enormous tea cup: it is not particularly “common”. The United States having long gone their own way, even Commonwealth courts, such as the High Court of Australia and the Canadian Supreme Court, increasingly decide to write themselves out of the common law by refusing to follow long-standing English authority.1
This is bad news for English lawyers, whose know-how is no longer in such demand in countries with magnificent beaches and climates, but it is also bad news for the British economy, which stands to lose at least a proportion of the “invisible earnings” generated by the City of London. While precipitated by the American Revolution, the drifting apart of the common law within the Commonwealth began relatively recently: fewer and fewer Commonwealth jurisdictions recognize the Privy Council (essentially the House of Lords sitting in Downing Street rather than Westminster Palace) as a final appeal court.2
It can therefore no longer be
* Barrister, Fellow and Tutor in Law, Brasenose College Oxford; University Lecturer in Commercial Law, University of Oxford. I am grateful to Professor Franco Ferrari for his comments on an earlier draft; all remaining errors are entirely his fault!
1. Some examples: Bryan
v. Maloney
(1995) 182 CLR 609 (High Court of Australia expressly refusing to follow the House of Lords’ decisions in D&F Estates Ltd
v. Church Commissioners of England
[1989] AC 177 and Murphy
v. Brentwood District Council
[1991] 1 AC 398); Pettkus
v. Becker
[1980] 2 SCR 834 (Supreme Court of Canada adopting essentially a civilian approach to unjust enrichment, emphatically parting company with both English law and US law).
2. For Australia, appeals from State Courts to the Privy Council were abolished by the Privy Council (Limitation of Appeals) Act 1975, from Commonwealth courts by the Australia Act 1986, which is really two Acts of Parliament, one of the Parliament of Australia (No. 142 of 1985), the other of the Parliament of the United Kingdom (c 2 1986). The last appeal to the Privy Council from Canada was decided in 1959 (PonokaCalmar Oils
v. Wakefield
[1960] AC 18. New Zealand allowed appeals to the Privy Council until 2003, Malaysia until 1985, Singapore until 1989 and the Caribbean Community until 2001. Countries which still allow appeals include Jersey, Guernsey, Isle of Man, Antigua and Barbuda, Bahamas, Belize, Grenada, Jamaica, St Kitts and Nevis, Saint Lucia, Saint Vincent, Tuvalu, Bermuda, Caymans, Falklands, Gibraltar, Montserrat, St Helena and several others.
LLOYD’S MARITIME AND COMMERCIAL LAW QUARTERLY
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