Private Uniform Law & Global Legal Pluralism: The Case of ICC's Incoterms and UCP

Abstract

Global legal pluralism comes in many forms and carries various implications. In this paper we shall trace the phenomena of legal pluralism in the field of commercial law. It is commonly held, that legal certainty is of paramount importance to merchants. Therefore, efforts to harmonize commercial law on the international level are pertinent, albeit with limited success. As states proved unwilling or unable to create uniform commercial law, a variety of private initiatives were established to achieve this end, the most prominent examples being the International Commercial Terms (Incoterms) and the Uniform Customs and Practice for Documentary Credits (UCP), both promulgated by the International Chamber of Commerce (ICC). From the perspective of global legal pluralism, such private-made uniform commercial law is an instance of legal pluralism. Interestingly, in this case it is not state law as the universal rule, which encounters conflicting normative claims of a sub-state social field, but it is a privately created normative regime, that claims universal authority over the fragmented domestic commercial law regimes. According to conventional legal theory, such claim is simply ridiculous, as it seems to be impossible for private uniform law to operate successfully. However, an analysis of English and German case law reveals, that the Incoterms and the UCP in fact are effectively operating as uniform law, and thus as a privately made functional equivalent to international instruments such as the Convention on the International Sale of Goods (CISG). This paper, therefore, argues that beyond theoretical discussions in textbooks, judges do practice what global legal pluralism suggests.