Restatement Of Law In The Perspective Of International Commercial Law

The topic of this dissertation is the restatement of law in the perspective of the international commercial law. Under this subject, some issues concerning the restatement of law itself and it’s relationship with the international commercial law will be discussed, and five logic chapter has been tailored into.ChapterⅠhas set a background of times for understanding why the model of restatement of law is used by the international commercial law to get to the new level of unification. Everything is the choice of special situation and everything can be comprehended in a particular circumstance. Without the atmosphere provided by the economic globalization, there is no strong push for the world economy itself therefore there may be no corresponding need for new commercial rules of law which is useful for the changed situations. Each country has its own system of law, and the rules of law are different from one another. If the businessmen do their trade out of their country boundary, they have to face the law which they are unfamiliar with. Under this circumstance, they do not know if they will violate or has already violated the law, and also do not know the relative consequences. This will bring inconvenience for the businessmen as well as will affect the efficiency for the international trade. Therefore, the conflict of law may do bad to the economy. Unifying the different laws may reduce legal impediments and the barriers to the cross-boundary trade activity. Any method which can bring about the uniform no matter in what extent are encouraged under the huge background of economic development and economic globalization. The approach of restating the laws which have existed in the international commercial field can provide unification we need. The background of times tell us why we need the uniform law including restatement of laws to bringing vigor to the flourishing trade.ChapterⅡhas traced the history of how the restatement of law came about in the American. The harmonization of the international commercial law need new way to get a fresh level of unification, so it has chosen the way to restating the rules of trade law. But whether or not the restating way can meet the garget depends on the restating itself. This part mainly analyses the characteristics of the law restatement to see if it presents the core for uniformization. From the concept of the restatement of law, and its structure, its language feature, its legal nature as well as legal jurisprudence, we can find such potential unification. Restatements are addressed to courts and others applying existing law. Restatements aim at clear formulations of common law and its statutory elements or variations and reflect the law as it presently stands or might plausibly be stated by a court. Restatement black-letter formulations assume the stance of describing the law as it is. Restatement is to promote the clarification simplification of the law and its better adaption to social needs,to secure the better administration of justice, and to seek stylistic uniformity. Deeply speaking, the American Law Institute created the restatement to make the two great merits, which are flexibility and certainty, of the common law in balance. The international commercial law which came from the practice is flexible, but if people want to identify it and apply it, the certainty is inevitable. If the restatement of law can get the two merits in great harmony, there is no reason to abandon this way.ChapterⅢpresents the usefulness brought by the restatement into the development of the international commercial law. On the international level, the law which has been restated mainly focus on the rules of international commercial law, especially on those of the international contract. It is UNIDROIT Principles of International Commercial Contracts (PICC) that typified such kind of international restatement of law, which means the drafters use the model of restating the law to arrange the content and its structure of the PICC. The dissertation regards the PICC as the international restatement on nature, because the PICC and the American restatement resemble each on in following facets:firstly, the targets of the both are to make evolution to the existing system by some new creation. They tried to balance the uncertainty and certainty, flexibility and stabilization to of the law. Secondly, the manner used by both to meet the needs are restating the rules though the black letter and its comment and illustration. Thirdly, the PICC and the American restatement are soft law and without legal binding force granted by sovereignty. Fourthly, these two documents of this kind can give different objects including lawyers, judges, businessmen, and the domestic legislators guidance. Based on the analysis above, the nature of the PICC is obviously international restatement. PICC is not international custom and usage, not general principles, even not model law. It has its own applying way. It shall be applied when the parties have agreed that their contract be governed by PICC; may be applied when parties invokes the general principles; may be used to interpret or supplement the international or domestic law instruments and also can serve as a model law.ChapterⅣexplores some inner features of restatement both on national and international level. The Restatement of the Law shall contain three divisions: Principles, Comments, and Illustrations. The Principles will be direct and positive statements of law, expressing the law in great fullness of detail made possible by the care with which the rules pertaining to the application of more general principles have been considered in the decisions of courts. A principle will be followed by Comment which set forth in non-argumentative manner the reason for the Principle and give explanatory rules for it application. The Principles in the Restatement is extremely significant, not only because it forms the frame for the entire documents, but it represents the values within each legal works, for example the Good Faith Doctrine. The Principles extracted from both domestic and international rules of commercials, and more than a collection and comparison of statutes and decisions, more than an exposition of existing law. The principles are the common core within the human beings. So finding the common things out and use it to guide the people can generate unification to some extent. Historically speaking, the modernist jurisprudence and pragmatist, both of which emerged in the common law reform in America, had a hot argument concerning the function of principles in the Restatement. At last, the Principles are used as a way to simplify the common law and made it more certain. The spirit lasted to the PICC, the PICC values the harmonization giving by the Principles.ChapterⅤdiscusses whether the Restatement of Law can become a new formal sources of international commercial law. The international commercial law have had a huge development in the economic globalization currency. However some maybe still argue that there is actually no international commercial law system because the rules of which are hard to identify and the application of which is not clearly enough. If we have a way to distinguish the commercial rules from others, and make them applicable, we can say that the international commercial law is systematic. Actually, the international law has many ways to demonstrate itself. It can be told apart from international commercial convention, international commercial usage, general principles of law, model law and etc. Each of the formal sources of international commercial law means a kind of uniform way. Each of these formal sources makes positive contributions to the entire commercial law system, but each has its own flaw. The restatement which helps to realize harmonization is an old legal form but newly adopted by the international commercial law. And the restatement has its own characteristics for driving the international commercial law forward but overcomes the shortcomings existing in other formal sources. From this point of view, I recommend treating the Restatement as a fresh international commercial law formal source.