However, "[b]ecause there have been few ratifications in some instances and a lack of awareness of their provisions in other cases, all the potential benefits have not been drawn from this enormous inter-American effort.
Why won’t Canadian employers hire more internationally trained law graduates?
We are now in a third phase or approach to developing inter-American legislation. The CIDIP-VI will be host for multilateral American discussions on specific matters of common interest, such as work on transportation and financial matters such as security interests, all of which will help facilitate international business transactions. The OAS will not limit itself to drafting treaties as the only method to promote legal cooperation.
As noted earlier, the OAS is developing model laws, studying harmonization of laws in the Member States, and drafting guidelines or declarations as alternative methods to increase legal cooperation. Examples of this third phase or approach that we can examine are the fight against corruption and the increasing popularity of conducting business over the Internet.
Consider for a moment the development of the Internet, regardless of whether you regard e-commerce as a cause or an effect of globalization. Besides the political debate over the "Digital Divide," use of the Internet presents practical legal questions when people and business begin engaging in what is called e-commerce. Legal questions include the validity of a signature in cyberspace, the formation and validity of contracts, the protection and enforcement of intellectual property rights, and court jurisdiction. As the OAS Secretary General noted in , e-commerce "is especially sensitive to government policies regarding market access, intellectual property protection, privacy protection, security of data, and delivery of telecommunications services, as well as anticompetitive business practices.
The United States is one of the latest countries to ratify and to deposit its instrument of ratification with the Secretariat, and Jamaica deposited its instrument of ratification with the OAS as recently as March 30 th. While this Convention is directed at acts of corruption against persons performing "public functions," the scope of the Convention extends to transnational bribery by natural or corporate persons of a foreign state official "in connection with any economic or commercial transaction.
The Inter-American Juridical Committee, responding to a mandate from the General Assembly, assisted countries in implementing this Convention by drafting legislative guidelines for possible parliamentary use in those Member States acceding to the treaty. The OAS Permanent Council is going to establish a voluntary fund to provide institutional support to individual State Parties to implement the Convention. The OAS also will study the scope and content of "corporate social responsibility" in the Hemisphere as a follow-up to the adoption of the Convention. All these initiatives involve not only some accommodation between the civil law and common law systems, but implicate as well the discipline of criminal law in both legal systems.
There are approximately nine inter-American conventions that can be described as having some relevance to international business transactions in the Americas. These are interesting examples of OAS efforts at harmonizing civil law and common law concepts. Sadly , no common law country has yet signed or ratified any of these nine treaties.
I have listed these conventions in the margin and noted the number of common law and civil law nations that either signed or ratified the individual treaty as of March 1, The attempt in this Hemisphere at harmonization and codification of private international law is a bit of a bumpy ride.
Promoting legal cooperation among common law and civil law Member States does not always meet with success when the treaty method is the approach undertaken. For example, note to date only five signatures and only two ratifications of the Inter-American Convention on the Law Applicable to International Contracts, or the Mexico City Convention.
Iucnael - GEHRING
This Convention sought "to facilitate international contracts by developing and codifying existing private international law principles. Second, the [treaty] aims to foster harmonization of results in international trade transactions. The OAS conference. Thus, the contract choice-of-law convention represents the consensus of a considerable number of nations of this hemisphere, including both civil law and common law countries.
It is fair to speak of genuine consensus because. In spite of the low number of countries from either legal system ratifying many of these OAS treaties, it is my opinion that the effort to harmonize law and to promote legal cooperation among diverse legal systems will continue in the OAS and elsewhere, if for no other reason than because of the legal issues arising in the context of international business transactions. Globalization and the new technology make this laundry list an urgent agenda. The phenomenon known as globalization is forcing some cooperation among the different major legal systems of the world, and in particular between the civil law system and the common law system here in the Americas.
In Montevideo in , I described "globalization" as "the set of trends towards expanding an array of economic activities on a world scale, scientific and technological advances, repercussions on culture, and especially the profound political changes of recent decades.
Since that speech globalization has undergone further scrutiny in the developed world as a result of street protests in Seattle in November and at the meeting of the International Monetary Fund in Washington in April Economic globalization. It is important to remember that what has been characterized as an essentially economic phenomenon takes place in a social, political, legal, and cultural settingnational and internationalthat has the capacity to slow and even reverse global economic trends.
Thus, while economic, technological, political, and other forces have both facilitated and promoted globalization, many industrial societies are also witnessing the rise of social, political, and cultural forces working in the opposite direction. At the level of domestic politics this countertrend has found its expression in the new economic nationalism and a politics of cultural identity, both of which reject closer international integration and link many of the problems these societies face, especially the social ones, to globalization.
When I use the term "globalization" I mean it in the sense of "a process of denationalization. Globalization is one of those indefinite words and concepts that are tough to define. Many commentators refer to globalization but do not say precisely what it is. He dates the advent of what he calls the new era of globalization to the fall of the Berlin wall in Often invoked but seldom described, let alone defined, globalization has only recently captured the attention of political elites.
In fact, there is no commonly held definition, let alone a comprehensive conceptual framework, that would enable decisionmakers to consider the possible implications of globalization for public policy, and thus better understand some of the sources of the frictions observed to accompany it. Globalization has been applied to different institutions: the economy itself, the market, an industry, a sector, or a firm. The term has been used to describe a trend, a strategy, a condition, and a structure. But whatever aspect one focuses on, in most cases globalization appears to be understood as a continuous process of increasing cross-border economic flows, both financial and real, leading, according to some, to greater economic interdependence among formerly distinct national economies.
In this frame of reference, globalization and interdependence are used interchangeably, and globalization becomes no more than the relabeling of a phenomenon that has already received much attention in the field of international political economy. An American law professor recently wrote that globalization is primarily an economic process the world-wide integration of markets for goods, services, capital and intellectual property.
To a lesser extent, he argues that globalization is also a political event as shown by the spread of democratic governments and human rights norms. In this scheme, law is another dimension of globalization like culture or philosophy, but important in managing economic globalization and potentially important regarding political globalization. But more than any other discipline, globalization since World War II has been associated primarily with economics and markets. The globalization of law could mean "the degree to which the whole world lives under a single set of legal rules.
For example, global law could mean unification of the law at the world level, or a process of transnationalization of the law where creating and applying law both increasingly escape the control of the individual nation state, or could even mean the "americanziation" of law, or the worldwide spreading of the legal practices and rules of the United States. Certainly all these ideas are qualitatively different than our common 20 th century ideas of what international law was. In speaking about the globalization of law I want to suggest that legal norms and remedies are harmonized between diverse legal systems.
In that sense then norms and remedies are theoretically "denationalized. This is all perhaps an inelegant way of simply saying that with the globalization of law business people, both managers and in-house counsels, increasingly will be looking to international instruments, such as treaties and conventions rather than the municipal laws of multiple countries, as the source of legal authority governing their particular transactions. I want to suggest that legal globalization in this Hemisphere will deal principally with a movement "toward a relatively uniform global contract and commercial law.
What is emerging is a global legal culture, largely shaped by the dominance of global economic markets. The values of this legal culture will emerge not from a closed, axiomatic statement of principles, or commands from a sovereign, but through a reiterative jurisprudential process in which values accrete and gain acceptance over time in the articulation of reasoned decisions to specific disputes.
The principles that emerge will not depend primarily on the positive authority of the state, but will be accepted to the extent that they embody the values of the global community that makes commercial contracts. That global community is expanding rapidly and becoming more diffuse as it grows bigger.
- You are here.
- On Education?
It will be more evident over time "that traditional domestic regulation will be largely ineffective and that global, or more frequently, regional arrangements, are needed to cope with the legal challenges posed by the new world economic order. State Department lawyer. In recent years, states have adopted international legislation in the field of private international law to try to regulate the uncertainties arising out of the operation of the two legal systems.
Yet, it is sadly true that these instruments are not widely used and when they are we see the problem of various countries interpreting the legislation differently. The OAS recognizes the need for positive approaches in assisting the development of the inter-American system in an increasingly "globalized" world. Much of the legal work necessary to complete the inter-American legal agenda ultimately will have to be done at the national level.
- Eltis, Karen | Faculty of Law – Civil Law Section | University of Ottawa!
- Chromatography Theory (Chromatographic Science, 88)?
- Customary International Law in Domestic Courts: Imbroglio, Lord Denning, Stare Decisis;
The OAS, though, can assist here too. The Organization has done so when the IAJC issued legislative guidelines on implementing the Convention Against Corruption and when the Secretariat prepared studies on harmonization. In the 19 th and 20 th centuries, private international law in many of the countries of the Western Hemisphere developed in tandem with the inter-American system. In recent decades, the process of drafting conventions has been fruitful while ratification has proved disappointing. One hopes that progress will be made in coming years and more of the Member States will ratify inter-American conventions.