Hard and Soft forms of Globalisation Essay
Legal elements that make UNCITRAL a SOFT GLOBALIZATION Tool Before starting the discussion on UNCITRAL as a soft globalization tool, it is necessary to understand the concept of soft law and hard law. “Soft Law” Nonbinding legal principles are often referred to as soft law. They are of normative nature and are applied only through voluntary acceptance. They are established legal rules that are not positive and therefore not judicially binding (i.e Hard Law). “Hard law refers to legally binding obligations of the States that are precise and that delegate authority to interpret and implement the law while soft law refers to legal arrangement where one or more of the dimensions of obligation, precision or delegation have been significantly weakened” (Jane K. Winn) UNCITRAL is considered to be a tool of soft globalization because it was created with the intention to pursue progressive harmonization, unification and modernizing of the laws governing international trade to ensure smooth flow of international trade.
Moreover, the text produced by it belongs to the category of soft law which accommodates local law. UNCITRAL Text The text produced by the UNCITRAL is either legislative text or non-legislative text. Legislative Text It may be adopted by the states through enactment of domestic legislation. (Legislative Techniques) It includes: Convention It is designed to unify law by establishing legal binding obligations. It requires ratification and ensure a high degree of harmonization of law in the participating States. UNCITRAL generally do not permit reservations or declarations or allow them to a very limited extent. States are free to join or not to join any convention. Model Law is a legislative text that is recommended to States for enactment as part of their national law. It is tool for harmonization. States are allowed to alter the provisions of the model law to accommodate the local requirements. Legislative guides and recommendations If, for any reason, it is not possible to develop a uniform text like conventions or model laws, a set of principles or legislative recommendations may be offered to States to facilitate legislation on a particular aspect of international trade. Model Provisions When a number of conventions deal with a particular issue in a way that may require unification and modernization, model provisions may be developed and recommended for use in future conventions and in revision of existing ones.
Case law on UNCITRAL Texts UNCITRAL undertakes the task of collection and dissemination of court decisions and arbitral awards relating to UNCITRAL legislative texts to ensure uniform interpretation and application of those texts. Non-legislative Text It can be used by parties to international trade contracts. It includes the following: RULES In the drafting of contracts, there are issues that can be resolved by reference to a standard or uniform clause or set of clauses or rules. The process of standardization of these clause or set of clauses or rules has a number of advantages.
The inclusion of standard dispute resolution clauses in international trade contracts is an example to this effect. (Contractual Technique) Legal Guides when it is not feasible or necessary to form a standard or model set of contract rules, an alternative may be a legal guide giving explanations concerning contract drafting. Legal guides are of great help in drafting construction contracts. (Explanatory Techniques) Explanatory Texts It is a further example of explanatory text to achieve a uniform interpretation of a particular text. These are particularly useful in the case of conventions. These instruments are negotiated through an international process involving a variety of participants, including member states to UNCITRAL which represent different legal traditions and different levels of economic development; non-member states; IGOs and NGOs. Thus, these texts are widely acceptable as offering solutions appropriate to different legal traditions and to countries at different stages of economic development.
Quite often UNCITRA offers alternative rules among which the concerned State may pick up those solutions which it thinks best suit its internal situation. All of the legal elements mentioned above do not bind the States and are meant to provide an improved legal framework to facilitate international trade with due regard for local laws. This fact makes UNCITRAL a tool for soft globalization. Difference between soft form (UNCITRAL) and hard form (WTO) of Globalization Soft Form (The UNCITRAL)
Hard Form (The WTO)
UNCITRAL texts are non-binding (except for conventions) (soft law) WTO agreements are binding (positive law)
No need for ratification
Often offer alternative rules
No alternative rules are offered
No dispute settlement mechanism
Provides dispute settlement mechanism
Private international trade law
Public international trade law
Does not deal with inter-state trade issues
Deals with inter-state trade – trade policy issues
Purpose is to provide an improved legal framework acceptable to both the civil and the common law traditions. Purpose is to remove trade barriers
Many different types of institutions can create soft international law Only nation-states can create hard international law
A subsidiary body of the UNO
Participation in UCITRAL entails no further obligations except those already assumed by the State as a member of UNO Joining WTO involves unconditional acceptance of the agreement establishing the WTO The mandate of harmonizing is better achieved due to the independence of model law drafter. Harmonizing is hard to achieve due to the pre-occupation of the drafter with other considerations. Different legal traditions are better accommodated
Relatively difficult to accommodate different legal traditions Harmonizing the existing laws is not difficult even if the scope of the new law differ Harmonizing becomes difficult if the scope of the new agreement differ Lack certainty of enforcement
Certainty of enforcement is never an issue
Soft law instruments evolve through a more insular process
Tested in the political process of adoption
Ensures party autonomy and neutrality
Party autonomy and neutrality is undermined
Can not be considered a challenge to Sovereignty of States.
Can be viewed a challenge to Sovereignty of States