THE CONCEPT OF A MULTINATIONAL RULE

I am delighted to comment upon Professor Christoph Kern’s extensive and thoughtful report on “Multinational Rules and Systems of Dispute Resolution in an Era of Global Economy.” In his discussion of “multinational rules,” Professor Kern notes that the most obvious example of a “multinational rule” – which he defines as rules enacted by law makers of more than two nations – is the multilateral treaty. Indeed, if the concept is to embrace a formal rule that multiple nations accept as binding, it will usually be a treaty implemented in multiple jurisdictions that has that effect. Of course, in the absence of a supranational institution for interpretation of a particular treaty, non-uniformity in the interpretation of treaty provisions is not only possible but also likely.

A model law, if enacted in multiple countries, is another example of a “multinational rule” (per Kern’s definition), but, unlike with a treaty, each country is free to vary its enactment as well as to offer its own interpretation of the provisions of such a law. That is indeed the experience under the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration that Professor Kern highlights in his contribution to this volume. The UNCITRAL Model Law provides a structure for the relationship between courts and arbitral tribunals, but it is often implemented with variations in a number of jurisdictions. In addition, it should be noted that the most significant seats for international arbitration – New York, France, England, and Switzerland – do not have the Model Law and indeed depart from it dramatically.

In the United States, there is a Uniform Law Commission, made up of commissioners who come from every state in the United States, and that body promulgates uniform and “model laws” on various subjects for potential enactment in every state. But even in a federal system like the United States, there has been only limited success in achieving pervasive enactments of such Uniform Acts, and even when they do, there is not necessarily uniform adoption or interpretation. Moreover, most of these Acts do not address issues of procedure and the few that do have not had broad adoptions.