Ley 1620 de 2013

Some of the methods for achieving harmonisation or unification include, inter alia, conventions, model laws, legislative guides and recommendations. The choice of technique depends on a number of factors such as: whether the object is to unify or harmonise the laws;

the complexity of the subject matter; the composition of the States negotiating the text and their particular interests.⁴⁵² The instruments vary in terms of their level of formality,

447 Tussies ‘Regionalism: Providing a substance to multilateralism?’ 115. See also a detailed discussion on TRIPS and how it fails to reflect the interests of developing countries in chapter 1.

448 Stiglitz Globalisation and its discontents ix.

449 In the negotiations leading to TRIPS, developed countries imposed their set of norms on developing countries and in turn made relatively few concessions: Gervais ‘The changing landscape of international intellectual property’ (2006) 4 (1) Journal of Intellectual Property Law & Practice 249.

450 A common market will function properly if laws are harmonised. As already discussed, the establishment of a common market forms part of the African agenda to achieve economic integration, enhance trade and economic growth. Harmonisation of laws is a requirement for the success of the common market.

451 Wandrag (2011) 13 European Journal of Law Reform 454.

452 Clift ‘The UNCITRAL experience with harmonisation and modernisation techniques’ (2009) 11 Yearbook of Private International Law 409, hereafter Clift (2009) 11 Yearbook of Private International Law.

flexibility and enforceability.⁴⁵³ The objectives of the States negotiating an instrument, therefore, determine the appropriate instrument for their purpose.⁴⁵⁴

Conventions are designed to unify the laws of the Member States; they take the form of a multilateral or regional treaty with countries acceding to a single standard.⁴⁵⁵ A convention is therefore used where the objective is to achieve a significant degree of uniformity in the laws.⁴⁵⁶ Although conventions are generally rigid and inflexible, they may allow Member States to make reservations to specified provisions.⁴⁵⁷ A convention needs to be domesticated or ratified to be binding on the Member States.⁴⁵⁸ Boele-Woelki rightly contends that conventions have the advantage of encouraging compliance amongst those countries which are party to it.⁴⁵⁹ Its disadvantages are that, first, the period between adoption and its entry into force as well as its domestic implementation can take several years.⁴⁶⁰ The delay is because signatories may be hesitant or even unwilling to ratify the convention due to the requirements placed on a sovereign State.⁴⁶¹ Secondly, a convention generally takes long to negotiate and implement. Third, it is also more difficult to amend and update since the amendments needs to be ratified by all the original signatory States.⁴⁶² Lastly, provisions of the convention may be applied differently by the national courts unless if there is a supranational court which is established to ensure consistency and uniformity in the interpretation and application of the rules.⁴⁶³ The process of formulation and implementation

453 These instruments operate at different levels and involve different types of compromises: Faria ‘Legal harmonisation through model laws: the experience of the United Nations Commission on International Trade law (UNCITRAL)’ 11 available at

http://www.justice.gov.za/alraesa/conferences/2005sa/papers/s5_faria2.pdf (accessed 12 October 2013);

Boele-Woelki Unifying and harmonising substantive law 90-91 and Faria ‘Future directions of legal harmonisation and law reform: Stormy seas or prosperous voyage?’ (2009) Unif.L.Rev 12 available at http://www.unidroit.org/english/publications/review/articles/2009-1&2-faria-e.pdf (accessed 12 October 2013).

454 Boele-Woelki Unifying and harmonising substantive law 90-91.

455 Its chief advantage is the creation of uniform rules: McCormack Secured Credit and the Harmonisation of Law: The UNITRAL Experience (2011) 20, hereafter McCormack Secured Credit and the Harmonisation of Law.

456 Faria ‘Legal harmonisation through model laws: the experience of the United Nations Commission on International Trade law (UNCITRAL)’ 11 available at

http://www.justice.gov.za/alraesa/conferences/2005sa/papers/s5_faria2.pdf (accessed 12 October 2013).

457 Faria ‘Legal harmonisation through model laws: the experience of the United Nations Commission on International Trade law (UNCITRAL)’ 11 available at

http://www.justice.gov.za/alraesa/conferences/2005sa/papers/s5_faria2.pdf (accessed 12 October 2013).

458 Boele-Woelki Unifying and harmonising substantive law 56.

459 Boele-Woelki Unifying and harmonising substantive law 56.

460 McCormack Secured Credit and the Harmonisation of Law 20 and Faria ‘Future directions of legal harmonisation and law reform: Stormy seas or prosperous voyage?’ (2009) Unif.L.Rev 8.

461 Boele-Woelki Unifying and harmonising substantive law 72.

462 McCormack Secured Credit and the Harmonisation of Law 21. Faria (2009) Unif.L.Rev 9.

463 Boele-Woelki Unifying and harmonising substantive law 56.

of a convention is time consuming and prospects of subsequent adaptation are prohibitive.⁴⁶⁴ Faria correctly contends that conventions have been traditionally been the primary vehicle for unification of domestic law.⁴⁶⁵ An example of a convention is the Convention on Contracts for the International Sale of Goods (CISG).⁴⁶⁶

A model law is a legislative text which is ‘recommended’ to the Member States for enactment as part of their national law.⁴⁶⁷ Model laws are flexible since they allow Member States to adjust the text to accommodate the prevailing circumstances or the specific needs of the State.⁴⁶⁸ Model laws appear to be the preferred method of modernisation and harmonisation as they leave room for adaptation.⁴⁶⁹ Their application depends on the Member States’ legislatures; they are free to adopt Model Laws and Model Acts in whole or in part.⁴⁷⁰ Consequently, Member States are permitted to exclude, or modify some provisions of the Model Law. These instruments do not impose a ‘one-size-fits all’ approach as does a convention.⁴⁷¹ Model laws are thus easier to negotiate because of their flexibility which has the potential to encourage more countries to become involved in the harmonisation process.⁴⁷² Clift correctly argues that a model law is more readily acceptable than a convention which contains binding obligations.⁴⁷³ The UNCITRAL⁴⁷⁴ has adopted model

464 McCormack Secured Credit and the Harmonisation of Law 21.

465 Faria ‘Future directions of legal harmonisation and law reform: Stormy seas or prosperous voyage?’ (2009) Unif.L.Rev 8 available at http://www.unidroit.org/english/publications/review/articles/2009-1&2-faria-e.pdf (accessed 12 October 2013) and Faria ‘Legal harmonisation through model laws: the experience of the United Nations Commission on International Trade law (UNCITRAL)’ 10 available at

http://www.justice.gov.za/alraesa/conferences/2005sa/papers/s5_faria2.pdf (accessed 12 October 2013).

466 United Nations Convention on Contracts for the International Sale of Goods which came into force on 1 January 1988 available at http://www.uncitral.org/pdf/english/texts/sales/cisg/V1056997-CISG-e-book.pdf (accessed 24 June 2013).

467 Boele-Woelki Unifying and harmonising substantive law 72. See also Faria ‘Legal harmonisation through model laws: the experience of the United Nations Commission on International Trade law (UNCITRAL)’ 13 available at http://www.justice.gov.za/alraesa/conferences/2005sa/papers/s5_faria2.pdf (accessed 12 October 2013).

468 McCormack Secured Credit and the Harmonisation of Law 21. See also Faria ‘Legal harmonisation through model laws: the experience of the United Nations Commission on International Trade law (UNCITRAL)’ 13 available at http://www.justice.gov.za/alraesa/conferences/2005sa/papers/s5_faria2.pdf (accessed 12 October 2013).

469 Member States may adopt the model law in part or they can transplant it into their domestic law: McCormack Secured Credit and the Harmonisation of Law 21 and Clift (2009) 11 Yearbook of Private International Law 407.

470 Boele-Woelki Unifying and harmonising substantive law 56.

471 McCormack Secured Credit and the Harmonisation of Law 21 & 22.

472 Boele-Woelki Unifying and harmonising substantive law 73.

473 Clift ‘The UNCITRAL experience with harmonisation and modernisation techniques’ (2009) 11 Yearbook of Private International Law 407.

474 Is an organisation which draft and adopt instruments aimed at harmonising and unifying substantive law. It was established by the General Assembly of the United Nations with the object that it would play an active role in reducing obstacles to the flow of trade: Boele-Woelki Unifying and harmonising substantive law 46-47.

laws such as UNCITRAL Model law on Electronic signatures (2001); UNCITRAL Model on International Commercial Conciliation (2002) and UNCITRAL Model Law on Cross-border Insolvency (1997).⁴⁷⁵ The UNIDROIT⁴⁷⁶ has also adopted Model Laws that include, among others, the UNIDROIT Model Law on Leasing. Model laws need to domesticated or transformed into the laws of the Member States in the same way as a convention. The disadvantages of model laws are that it is difficult to assess the level of adherence of the national law to the text which shows that it may not be effective in integrating laws. The degree of flexibility provided by these instruments and the extent to which States take the opportunity to make changes also has the potential of giving rise to divergences in the laws of the Member States and thus reducing the level of harmonisation that can be achieved.⁴⁷⁷ The other disadvantage is that model laws have no binding effect; they lack enforceability.⁴⁷⁸ Legislative guides and recommendations are techniques aimed at stating the general harmonisation objectives as well as possible legislative solutions to certain legal issues.⁴⁷⁹ Where Member States are not ready to agree on a single approach or common rule, it may be appropriate not to attempt to develop a uniform text.⁴⁸⁰ In such cases, Member States may choose to negotiate a ‘set of principles or legislative recommendations which may operate at different levels of specificity reflecting different levels of consensus.’⁴⁸¹ Legislative guides entail giving an explanation in respect of a particular issue.⁴⁸² Each Member State is, therefore, able evaluate and choose a policy which suits its national context. These methods of harmonisation are flexible and they can be adapted to suit local conditions of a particular State.⁴⁸³ Their disadvantages are that they have no binding force.⁴⁸⁴ They also result in a very

475 Faria ‘Legal harmonisation through model laws: the experience of the United Nations Commission on International Trade law (UNCITRAL)’ 14 available at

http://www.justice.gov.za/alraesa/conferences/2005sa/papers/s5_faria2.pdf (accessed 12 October 2013) and Faria ‘Future directions of legal harmonisation and law reform: Stormy seas or prosperous voyage?’ (2009) Unif.L.Rev 12 available at http://www.unidroit.org/english/publications/review/articles/2009-1&2-faria-e.pdf (accessed 12 October 2013).

476 Its purpose is to examine ways of harmonising and co-ordinating private law of the Member States: Boele-Woelki Unifying and harmonising substantive law 45.

477 Boele-Woelki Unifying and harmonising substantive law 73 and Clift ‘The UNCITRAL experience with harmonisation and modernisation techniques’ (2009) 11 Yearbook of Private International Law 407.

478 Boele-Woelki Unifying and harmonising substantive law 72 and Clift ‘The UNCITRAL experience with harmonisation and modernisation techniques’ (2009) 11 Yearbook of Private International Law 407.

479 Faria ‘Legal harmonisation through model laws: the experience of the United Nations Commission on International Trade law (UNCITRAL)’ 15 available at

http://www.justice.gov.za/alraesa/conferences/2005sa/papers/s5_faria2.pdf (accessed 12 October 2013).

480 Clift ‘The UNCITRAL experience with harmonisation and modernisation techniques’ (2009) 11 Yearbook of Private International Law 408, hereafter Clift (2009) 11 Yearbook of Private International Law 408.

481 Clift (2009) 11 Yearbook of Private International Law 408.

482 Clift (2009) 11 Yearbook of Private International Law 408.

483 Clift (2009) 11 Yearbook of Private International Law 408.

low degree of uniformity and it is difficult to assess the level of adherence as well as its effectiveness.⁴⁸⁵An example of a legislative recommendation is the Legislative Guide on Privately Financed Infrastructure Projects which was adopted by UNCITRAL in 2000.

Regulations and directives are also forms of unification and harmonisation.⁴⁸⁶ A regulation has general application and is binding in its entirety.⁴⁸⁷ A directive is binding as to the result to be achieved upon the Member States to which it is addressed.⁴⁸⁸ It leaves the choice of form and methods to the national authorities.⁴⁸⁹ The EU has used both regulations and directives to harmonise the laws in the Member States.⁴⁹⁰ It is worth noting that the common feature of all instruments is that they acquire a binding effect through a legislative act.⁴⁹¹ The above instruments require a common organisation that will make or produce the laws, for example model laws. Such an organisation relies on technical input from its experts to draft the required text. A specialist organisation is needed and its responsibility should be to carry out the work of governments which includes drafting and assessing the adherence of national laws to the text. The Organisation for the Harmonisation of Business Laws in Africa (OHADA) is such an organisation. I now discuss legal integration within the framework of OHADA.