International Commercial Harmonisation and National Resistance: The Development and Reform of Transnational Commercial Law and its Application within National Legal Culture

Abstract

International contract and commercial law has recently been subject to reform through the process of judicial and commercial co-operation within the EU. A number of EU directives and regulations in the area of private and commercial law have been adopted or are being drafted and in the process of formal adoption. The complementary element to this growing effort of harmonisation and uniformisation in order to advance the internal market cross-border trade is of course the application of substantive legal norms forming part of international and transnational law. Without a culture of applying international and transnational legal rules, the process of harmonisation remains a 'top-down' process which might not achieve its ultimate objectives.In the area of private and commercial law, three elements of applying law to cross-border situations can be identified and illustrated here:* the skill, of applying substantive norms of transnational contract law,* the willingness to acknowledge foreign legal concepts and draft legislation with a view to international instruments,* the appropriate consideration of foreign legal positions or even precedence in domestic proceedings in international matters.This paper examines these elements by way of reference to recent case law and law reform projects in two jurisdictions.