LDC Representation in Non-Legislative Drafting of International Contract Law

1. LDC Representation in Non-Legislative Drafting of International Contract Law Mateo Goldman

2. Main Issue To what degree do different drafting methods affect the representation of least developed nations’ interest in international contract law?

3. Trends in International Commercial Law • Traditional Method • UN Convention on the International Sale of Goods (CISG) • Hard law drafting body with close to 100 representatives requiring ratification upon completion • Only concerns contracts for the sale of goods • Current Trend • UNIDROIT Principles of International Commercial Contracts • Covers all forms of contracts, including for the goods, services, etc. • Soft Law drafting body composed of 15 academics requiring no ratification upon completion • Evolution of UNIDROIT Principles into Hard Law • Use by parties as Lex Contractus • Use as substantive law in international arbitration

4. Concerns for Least Developed Nations (LDCs) • Ratification of Treaties as the Typical Method of Protecting LDC’s Interests • Places accountability on drafters to assure all interests are met • If LDCs’ interests are not met, reservations are still an option • Evolution of Soft Law into Hard Law Limits LDC’s Ability to Protect its Interests • The UNIDROIT Principles may be applied as governing law in disputes between citizens of countries which do not approve of the law

5. So What? This paper will consider whether or not this new development has had any affect on the presence of LDC interests in the: • UN Convention on the International Sale of Goods (CISG) and, • a conventional treaty requiring ratification • UNIDROIT Principles of International Commercial Contracts • a soft law instrument which has transformed into hard law

6. General Questions • Is it possible to identify unique LDC interests in international contract law? • If so, to what degree are LDC interests represented in recent international contract law? • What affect, if any, do differences in drafting procedures have on LDC representation in international contract law?

7. Identification of LDC Interests • Arguments made by LDCs during negotiations in both instruments • Scholarly analysis identifying LDC-specific interests in international contract law • Civil vs. Common Law

8. UN Convention on the International Sale of Goods (CISG) • Procedures • Numbers and percentage of LDC representation during negotiations • Other procedures designed to assure participation • Substance • Number of provisions in favor of LDCs found in CISG • Number of compromises made by LDCs

9. UNIDROIT Principles of International Commercial Contracts • Procedures • Numbers and percentage of LDC representation during negotiations • Method in which members are invited to join • Substance • Number of provisions in favor of LDCs found in the UNIDROIT Principles • Number of compromises made by LDCs

10. Comparison and Analysis • To what degree did LDCs secure more or less of its desired provisions in either of the international instruments? • If there was a difference, to what degree can that be attributed to the greater democratic protections afforded in the CISG? • To what degree are any differences attributed to the different subject matter of the agreements • If there was no difference, what general conclusions can be made about the need for democratic assurances in the drafting of international commercial treaties?

11. Brief Overview • Trends in International Contract Law: Emergence of Soft Law and its Current Usage as Hard Law • Affect on LDC’s Ability to Protect its Own Interests • Identification of LDC Interests in International Contract Law • CISG: Procedural Representation and Substantive Analysis • UNIDROIT Principles: Procedural Representation and Substantive Analysis • Comparison and Analysis