SSRN Electronic Journal · 2006 · 124 citations · 0 references
Open access
LawContract LawInternational LawComparative International LawContractsPublic International LawCross-border Contract LawInternational CooperationInternational Sales ContractsSources Of International LawTransnational LawCisg ApplicationCivil Law SourcesCommon Law LegalityContract Law ReformPrinciples Of International LawRegional Legal HarmonizationTransnational Contract LawUniformity In Sales Law
Asian countries increasingly seek uniform commercial law, yet adoption of international uniform laws has been slow and often fails to reflect non‑Western legal traditions. The study asks whether Asia should pursue its own regional harmonisation or simply adopt internationally negotiated uniform laws. The author concludes that, despite the CISG’s neglect of non‑Western traditions, Asian nations should adopt it, enabling them to shape its interpretation to reflect Asian values.
Asian countries increasingly see the need for uniform or harmonised law at least in commercial matters, but the adoption of international uniform laws has nonetheless often been slow in many parts of Asia. How should Asia harmonise its laws? Should there be an Asian harmonisation or should Asian nations simply adopt internationally negotiated uniform law? Do the internationally negotiated laws sufficiently take into account the legal traditions of Asia or are they simply compromises between the main Western legal traditions (civil and common law)? Using the CISG as an example, the author readily concedes that it does not take into account non-Western legal traditions but argues that Asian nations should nonetheless adopt such international instruments. First, for better or for worse, either Western civil law or Western common law is the formal law in force in commercial matters in most Asian countries and therefore any harmonisations of these formal laws would be useful in Asia. Furthermore, the adoption of these formal international instruments in Asia would allow Asians to (more informally) influence their interpretation and make sure that they are applied taking into account Asian experiences and values.