Both The Hague and the Rome conventions delved with the institution and establishment of a uniform conflict of laws rule in international contracts. Both conventions has the force of law, binding upon states, non-contracting states included, as the principles laid in the said conventions has been duly accepted and acceded to have a universal character. Hence, the compliance with rules in case of conflict of laws is obligatory among states as a sizable number of states have ratified and accepted the application of the said international conventions.
In short, The Hague and Rome conventions are considered authoritative when it comes to the question of determining which law should apply in cases of conflict of laws situation. They are remedial or procedural in character without providing for any substantive rights and obligations, which is considered the domain of the domestic or national law of respective states. The UN-CISG on the other hand had a different project in view. “Promulgated in 1980, the CISG is a self-executing treaty with the preemptive force of federal law.
” It was a response to a particular need in international transaction involving the sales of goods, which national or domestic laws cannot address. It deals with the most common problem in international law, not only the lapses in cases of forum, but more particularly the substantive rights and obligations of the parties to a contract. A substantive law in international transaction is not readily and directly available to each other as parties are subjects to different sets of laws.
The UN-CISG provides for certainty amidst the ambiguity of the legal standing and capacities of the parties to a contract as it provides for a common and uniform basis of the rights and obligations. It provides a guarantee and certainty to the parties to a contract of the rights and obligation of the other party with whom they have entered into a business transaction. It is “arguably the most successful of the international contract treaties, over 60 nations have adopted the UN Convention, including the United States and most Western European nations.
The problems in international transaction cannot always be remedied by the conflicts rules, which each state adopts. Such a remedy has been ascribed to be limited in scope and not responsive to the needs of international commercial transactions. The said system of dispute resolution is rather simplistic but does not correspond to the real problem that is inherent in international commercial transactions.
The main problem in international transactions especially in contracts for the international sales of goods can be attributed to the ignorance of parties as to their rights and obligation in relation to the other party who is the subject to another jurisdiction. Parties in international transaction have no knowledge beforehand which legal system should be followed about their rights and obligations under an international contract.
This uncertainty thereby poses a threat to parties who undertake either regularly or casually this particular kind of transaction as there is no sufficient mantle of protection in entering in the said international contracts. “The parties to this type of transaction cannot surely provide for and by themselves the adequate remedy and protection, but this problem simply needs the concerted actions of states for the protection of its subjects. ”
In the international field, the domestic substantive law would be an insufficient weapon against the uncertainty and precariousness in the international commercial transactions. While a state may be ready to protect its own citizen within its territory, the same may not be true when there is already an involvement of some foreign element. A uniform substantive law needs to be enacted and enforced in order to provide for better protection to parties in international transactions.
A uniform substantive law may however be imposed without prejudice to the domestic substantive law, the former being supplemental to the latter. While a uniform substantive law founded upon mere agreement of contracting states may not be so comprehensive, it is nevertheless a sufficient to provide the citizens of contracting state with sufficient guaranty and certainty that still they know that their rights are enforceable in the international field. Moreover, they are also certain of the rights of the other contracting party making the processes of every transaction convenient, expeditious and effective.
