I. PROCEDURAL OPTIONS - THE NEW CHALLENGE
Transnational harmonization results from either planned changes in legal systems aimed at achieving harmonization or from interaction that spontaneously occurs between different legal systems. The latter phenomenon may be described as 'osmotic' harmonization.
Unique challenges and opportunities were presented to comparative and international lawyers after the transition year of 1990 generated by the collapse of the Soviet system. With the twenty-first century upon us, the globalization of the world economy continues unabated and profound geopolitical changes continue to simultaneously occur.
European developments by themselves suggest the vast scope of the changes involved. The phenomenon of Eastern European countries and the former republics of the former Soviet Union moving from controlled to free economies and developing multi-party democratic governments is only an example of these changes. The unification of Germany also generated a wave of public and private comparative and international legal problems all demanding instant attention. Massive privatization and democratization issues had to be addressed. More recently the effort of the European Union to implement a constitution for twenty-five member states, with twenty-one different languages, over four hundred fifty million people, and individual national cultural traditions, continue to require coordination of the legal systems of the member states.
Commenting as early as 1978 on the pervasive importance of Community Law to member states, Lord Denning stated:
. . . all this shows that the flowing tide of Community Law is coming in fast. It has not stopped at the high water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much so that we have to learn to become amphibious if we wish to keep heads above the water.1
What do such developments mean for comparative lawyers? A plethora of constitutional and administrative (that is, taxation, environmental law, labor law, social security, and so on) public law issues arose as new governments were created or old governments were restructured. Simultaneously a plethora of private law issues arose with the use of new trading entities and new contract procedures as free economies replaced controlled economies. These issues have generated rethinking of traditional categories of international and comparative law. A half century ago Phillip Jessup stated:
The subject to which these chapters are addressed is the law applicable to the complex interrelated world community which may be described as beginning with the individual and reaching on up to the so called "family of nations" or "society of states". . . Part of the difficulty in analyzing the problems of the world community and the law regulating them is the lack of an appropriate word or term for the rules we are discussing. Just as the word "international" is inadequate to describe the problem, so the term "international law" will not do. . . . I shall use, instead of "international law", the term "transnational law" to include all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.2
Are the traditional techniques and categories of law for producing harmonized international legislation responsive to the needs of the twenty-first century?
A. General Considerations - Key Actors - Selecting Harmonization Areas and Procedures
Primary actors in the process of producing transnational harmonized legislation such as the Hague Conference,1 UNIDROIT,4 UNCITRAL,5 the International Chamber of Commerce,6 the Council of Europe,7 the European Union,8 and so on, have attempted to identify the need for proposed legislation and the likelihood of its acceptance and adoption before allocating limited resources to such projects. …