Navigating the Path to Harmonisation: The Imperative of Sound Legal Rules in International Private Law

International law, a realm that relies greatly on cooperation, consent, and good faith among states, continually tries to achieve the objectives of peacekeeping and harmonization. Yet, amid these ambitions, the intricate concept of uniform law-making and regulation has stirred some confusion. The focal point of this complexity lies in the idea of harmonisation and creating a uniform legal system within international private law. These rules serve as the bedrock upon which international standards rely on to address diverse issues when it comes to unity.

Harmonisation in international private law is the tricky but essential task of creating and maintaining a cohesively sound and predictable set of legal rules by which international standards can rely on, in determining the appropriate law to apply in solving problems with unity. This is achieved by removing any contradictions between various legal systems and reconciling their bodies in order to balance out differences and place emphasis on the consideration of various divergent regulatory norms in order to try and find a common ground of harmony.

Why is it then important for international private law to have sound legal rules to lean on for application? Scholars have argued that harmonisation is greatly prescribed by international institutions that are working to require governments to abide by a uniform set of values. Harmonisation of international private law will play a necessary and essential role in providing areas of the law such as commercial private international law a rigid set of sound legal norms and rules that are necessary to help boost investor confidence, increase economic growth, sustain development, and help aid in the ultimate alleviation of poverty on the African continent.[1]

Looking at trade beyond the Africa continent there have been numerous bodies and institutions established to help aid and maintain this goal, one such international institution is the United Nations Commission on International Trade Law (UNICITRAL), which has been mandated to help aid the progression of harmonization and unification of the legal rules of international trade.[2] Amongst other international organisations such as the Hague Conference, the International Institution for the Unification of Private Law ( UNIDROIT), the United Nations and the International Chamber of Commerce, in naming a few, have all helped paved the road to creating and maintaining the harmonisation in international law.[3] Through various activities such as legal standardisation through legal instruments which address gaps and inconsistencies in a number of areas such as international commercial law, arbitration and electronic commerce. The United Nations , through its specialized agencies has helped develop treaties and conventions that establish common legal norms,

Some might argue that the previously mentioned institution have achieved this and in the process neglected to involve African countries in the conversation in order to harmonise simultaneously the domestic legal norms and rules of African countries with those of Western countries. That perhaps is a conversation for another day, as it requires us to dive deeper into the Afrocentric forms of African legal rules and Eurocentric influences on the continent, but I feel that it is a conversation that is necessary when we are discussing harmonisation of international law in general.

Evidentially the road to creating sound legal rules is not as smooth and has seen slow progression over the years but the great advantage of international private law is that it makes provision for the harmonisation of legal systems without the rigid requirement of joining or eliminating substantive laws so there is great hope[4] . In encouraging continental engagement and providing ratification of international conventions, harmonisation can sere as catalyst for underdeveloped and developing countries on the path of continental unity and economic integration.[5]

[1] Neels & Fredericks, ‘An Introduction to the African Principles of Commercial Private International Law’ (2018) 347.

[2] The United Nations Commission on International Trade Law, G.A. Res. 2205 (XXI), UNICITRAL.

[3] Jose Angelo Estrella Faria, The Relationship between Formulating Agencies in International Legal Harmonization: Competition, Cooperation, or Peaceful Coexistence – A Few Remarks on the Experience of Uncitral, 51 LOY. L. REV. 253 (2005).

[4] Harmonisation of Private International Law in the African Union , Lisa Theunissen, 8 February 2020 https://www.afronomicslaw.org/2020/02/08/harmonisation-of-private-international-law-in-the-african-union( accessed 1 May 2023).

[5] Ad above n 4.