Conciliation of Laws in the NAFTA Countries

• Author: H. Patrick Glenn
• Position: Peter M. Laing Professor of Law, Faculty of Law & Institute of Comparative Law, McGill University
• Pages: 1103-1112

Page 1103

Peter M. Laing Professor of Law, Faculty of Law & Institute of Comparative Law, McGill University.

Symeon Symeonides has brought to his work on the codification and reporting of private international law a vast knowledge of the efforts of many states, and of many authors, in bringing about international legal harmony. His work on the codification of Louisiana conflicts rules reflects this background, in its insistence that interest analysis be conducted in an even-handed manner through the process of comparative impairment.¹ This essay is also an effort towards international legal equilibrium, and it is a pleasure to dedicate it to Professor Symeonides and to his ongoing work. Its thesis is that the North American Free Trade Agreement (NAFTA)² should require us to think of North American private law in terms of conflict avoidance rather than in terms of conflict. How can we help to bring about a conciliation of the private laws of the NAFTA countries?

I Nafta And The European Union

NAFTA came into force on January 1, 1994 and immediately brought about comparison with the integrating mechanisms of the European Union.³ As a free trade arrangement, NAFTA removes tariff and non-tarriff barriers to trade in goods between the member countries, without creating a common, external tariff wall. The European Union, as an integrating customs union, creates such a common, external tariff wall and, as well, creates a complex set of institutions to insure uniformity or harmony of national European laws. These include the European Council and Commission (having extensive legislative authority through enactment of pan-European, private law Directives) and the European Court of Justice, charged with overseeing the application of the basic norms of the Union. The next stage of European legal integration would be the creation of a European "judicial space," in which the judgments of the courts of each country would be automatically Page 1104 recognized and executable in the other countries.⁴ In contrast, it has been said that NAFTA is characterized by an "institutional meagerness," which eventually leaves the playing field to the discretion of the national legal institutions and processes of each of the Member States.⁵

To what extent, however, does a common market require a common law? It may depend on the common market. The European market is composed of sovereign, unitary states in which judicial review at the national level has been the exception rather than the rule. There has often been no internal recourse against legislative over-reach. The law of the European continental States, those of the original Common Market, is also in principle codified law, such that differences in national codification can be easily seen as conflicts of laws. The conflicts are clearly visible in the opposition of bright line, codified rules. Conflict is less apparent, however, in the casuistic case law of common law jurisdictions. Thus, the European common market is one in which a need for pan-European institutions could be seen as evident, given the absence of any other means of reconciling national legislative wills.

The North American situation is different. All three states are federal or confederal,⁶ in character, such that in each state there are judicial institutions which have long arbitrated between competing jurisdictions. The territorial reach of the legislation of the states and provinces of North America is thus, necessarily, limited by the national constitutions. Much of North America also adheres to the common law tradition and this inevitably reduces conflicts of laws, either through the commonality of shared rules or through the submerging of conflicts in the mass of decisional law. All three North American jurisdictions, moreover, constitute internal common markets which have functioned with a diversity of internal laws. Page 1105 The "institutional meagerness" of NAFTA may therefore be seen as an indication of continuing faith in the adaptability of federal structures and in informal processes of harmonization, and not simply as hostility or indifference to NAFTA objectives.

The range of conflicts in North America will be exacerbated, however, by the operation of NAFTA. Under NAFTA, there is an increase in trans-border activity, which will have the effect of raising conflicts which have thus far remained latent. The weight of the civil law has also been increased in North America, since now Mexico, Louisiana and Quebec find themselves important participating units in a larger structure, as opposed to separate or isolated civil law jurisdictions. NAFTA also presents a challenge in bringing together three different economies, those of the world's largest economic power (the United States of America), a developing country (Mexico) and a middle power in transition from a resource-based economy to a technology-based economy (Canada). There is, therefore, ample room for private law conflicts, if we think in terms of conflicts, and no NAFTA institutions for their resolution. In these circumstances, what are the means of conflict avoidance? They can be found at the level of legal structures and at the level of legal techniques. Taken together, they may provide an efficient process of continental conflict avoidance.

II Structures Of Conflict Avoidance

Since the nationalization of western law in the nineteenth and twentieth centuries, western lawyers have been trained to think in terms of conflict of laws rather than in terms of their conciliation. Hence, we have an entire discipline of conflicts of laws, which accepts the existence of conflict as a given, and resolves each conflict by declaring a winner. There has been great debate, and rightly so, as to how this process can best be justified. Professor Batiffol thus traced the philosophical foundations of private international law, or conflicts of laws, to the allegedly systemic character of national laws, and conflict is necessarily found in the competing, national claims to exclusivity.⁷

This nineteenth century attitude towards sources of law, however, is changing. There appear to be two primary reasons for this. One is found in the process of regionalization, two examples of which are now provided by Europe and North America. The European process of regionalization has resulted in the creation of pan-European law, such that conflicts are necessarily reduced through the creation of pan-national sources of law. There has been less of this in North America, but the process of regionalization in North America has shifted the emphasis of legal thought, in some measure at least, away from national sovereignty towards efficiency, harmony and prosperity in regional trade.

The second reason for a shift away from nineteenth century ideas is the large process of informal harmonization of laws which has been taking place in the world. There are many features of this. Most significantly, for North American purposes, is the increasingly visible commensurability between civil and common law Page 1106 traditions.⁸ In the nineteenth century, in France, the SociÈtÈ de lÈgislation comparÈe was created because it was not thought possible to compare the codified law of Europe with the case law of the common law world. Realistic comparison was possible only between comparable sources of law and, given the civilian tradition, only legislation provided these comparable sources. Today, jurisprudence or case law has grown in importance in civil law jurisdictions while common law jurisdictions are filled with legislation. In structural terms, the common law has abandoned what was for centuries its most characteristic institution, the writ system, and now expresses itself in terms of substantive law (whether legislative or jurisprudential in origin) which can be applied by a judge.⁹ There are no longer major differences in sources of law; there are only more minor differences in the specific content of rules.

Regionalization and harmonization have been accompanied, moreover, by corresponding changes in professional structures and legal education. The trans- border law firm is a new phenomenon in legal history and places legal practitioners, in a sense, above national sources of law.¹⁰ The intellectual resources of these firms are rooted in the laws of many jurisdictions, allowing assessment and comparison of national laws within a single professional unit. Formal or superficial differences in law may thus be identified as such, given deeper knowledge of the entire normative base of each jurisdiction and its actual application. In the context of NAFTA, these larger professional structures are now accompanied by an increased measure of individual mobility, given NAFTA's endorsement of the concept of the Foreign Legal Consultant, authorized to practice the law of...