Legal Traditions and Nonbinding Commitments: Evidence From the United Nations' Model Commercial Legislation

A key question in the study of international affairs concerns the impact of international agreements: When and under what conditions do international agreements matter? This study tackles this question by highlighting the role of implementation in giving effect to international agreements. Implementation transfers an international agreement to the domestic arena: the agreement is incorporated into the national legal system through legislation or regulation, and it is this incorporation that allows the agreement to create change on the ground. States, however, vary in their willingness to implement international agreements: some countries may implement a given agreement in their domestic legal system, while others might fail to do so. Why is that the case? This article examines the variation in the implementation of nonbinding international agreements, which are a common tool of global governance. States establish nonbinding agreements – such as declarations, plans of action, or codes of conduct – to address a variety of issues: from environmental challenges through transnational crime to human rights protection. Yet some states fail to implement these agreements, thereby denying them effect. The article identifies an important factor that influences a state's willingness to implement nonbinding agreements: legal tradition. Countries whose legal system is based on the English common law are more likely to implement nonbinding agreements than countries whose legal system builds on the civil law. Nonbinding agreements, which may be adapted to local needs and circumstances, are consistent with the legal style of the common law. By contrast, they uneasily fit the civil-law tradition and its formalistic thinking that neatly distinguishes between "law" and "nonlaw".

Empirical support for this argument comes from three nonbinding instruments: UN model laws that seek to harmonize commercial legislation in the areas of electronic commerce, cross-border insolvency, and international commercial arbitration. Analysis of the time to implementation reveals that common-law countries are indeed significantly more likely to pass legislation based on these model laws.

Overall, this study highlights implementation as a process of domesticating international norms, crucial to our understanding of how these norms work. It gives us insight into the link between legal traditions and international cooperation – specifically, how legal traditions shape states' preferences for legal or nonlegal agreements as vehicles for cooperation. While common-law countries may hold a distaste for treaties, this study shows that they are more favorable toward nonbinding agreements, as those can fit comfortably in their legal system. Furthermore, the evidence demonstrates that domestic actors might derail the implementation of nonbinding agreements. This challenges the conventional wisdom that highlights the relative ease and speed of cooperation through such agreements.  

 

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