The UNCITRAL Model Law after Twenty-Five Years: Global Perspectives on International Commercial Arbitration - Chapter 13 - From Harmonized Legislation to Harmonized Law: Hurdles and Tools, Judicial and Arbitral Perspectives
Fabien Gélinas is an Associate Professor of Law at McGill University, where he was Associate Dean of Law and Director of the Institute of Comparative Law, and teaches international arbitration and contract law. He is a graduate of the University of Montreal and the Paris School of Diplomatic and Strategic Studies and holds a doctorate from the University of Oxford. A barrister of twenty years’ standing, he consults widely on matters of dispute resolution and legal reform, and acts as arbitrator in international cases. Professor Gélinas was formerly General Counsel of the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris and a member of the drafting committee for the new ICC Rules of Arbitration, which came into effect in January of 2012. He has acted as adviser and delegate to the United Nations Commission for International Trade Law (UNCITRAL), the United Nations Economic Commission for Europe (UNECE), and the European Commission. He was designated Appointing Authority by the Secretary General of the Permanent Court of Arbitration at the Hague (PCA) on several occasions. His teaching and scholarship span legal theory, dispute resolution, contract law, and constitutional law. His work has appeared in many countries in Arabic, English, French, Spanish, and Russian. He was a lecturer at the Institute of Comparative Law in Paris and taught at the Faculty of Law of the University of Paris, the Institute of World Business Law, Trinity College Dublin, and Sciences Po in Paris.
Although the 1985 version of the Model Law was silent on the question of its own interpretation, there was a relatively clear sense among informed commentators that judges ought to read and apply it in a spirit of international harmonization. This was made explicit in the 2006 revision, which now includes a provision stating that in the interpretation of the Model Law, “regard is to be had to its international origin and to the need to promote uniformity in its application.”1
In spite of its obvious importance for the effectiveness of the Model Law, the difficult question of harmonious interpretation has not received as much attention as one might expect. The travaux préparatoires relating to article 2A leave the observer with the impression of a provision that was easily adopted but not necessarily considered in depth.2 In fact, the question of harmonious interpretation is fraught with theoretical and practical difficulties that call into question the way in which we conceive of law, and particularly the relationship between what judges see as domestic law on the one hand, and foreign, transnational, or international law on the other. In every jurisdiction these difficulties challenge—or at least should challenge, constructively—received conceptions about the relevance of various sources of legal information and the implicit legal assumptions we make about the interpretive community within which the judge’s work takes place.
PART V: HARMONIZED INTERPRETATION IN THEORY AND PRACTICE
From Harmonized Legislation to Harmonized Law: Hurdles and Tools, Judicial and Arbitral Perspectives