Reproduced with permission from 146 University of Pennsylvania Law Review (1998) 687-793

Introduction

"[T]o alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an [page 687] usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this Court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to the subject matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops -- whatever may be the imperfections or difficulties which it leaves behind."[1]

With this passage in Chan v. Korean Air Lines, an opinion authored not surprisingly by Justice Antonin Scalia, a new strain of restrictive formalism in statutory interpretation spreads to the construction of an international treaty. Proponents of this "new textualism" assert that federal courts must refrain from any invasive interpretive techniques, regardless of the effects on the long-term health of a statutory body of law. Supporters of "dynamic" interpretation, in contrast, recognize an active judicial role in ensuring the vitality of statutes. As Chan illustrates, the construction of treaties has also now fallen under the influence of this enduring controversy over the powers of federal courts to develop statutory law.

Indeed, few subjects have fascinated -- and divided -- legal scholars in recent years as much as the appropriate role of the judiciary in the interpretation of statutes. For much of this country's legal history, statutory interpretation received little close scholarly attention.[2] Matters began to change in the latter half of this century, however, as the nation's social and economic problems increasingly required broad legislative (and in particular federal) solutions. By 1982, Guido Calabresi was able to observe with little risk of contradiction that this country had entered an "age of statutes."[3] The message was not lost on scholars. In the decade and a half since Judge Calabresi's telling observation, the interpretation of statutes as this nation's new [page 688] "primary source of law" [4] has become one of the most animated themes of American legal scholarship.[5]

But as courts and scholars continue to dissect the implications of our "age of statutes,"[6] the law is already rapidly progressing into the next significant stage in its development: unification on a transnational level. The initial focus in this direction has been on private, and in particular, commercial law. Recent years have witnessed the emergence of a whole new generation of international conventions designed to unify the law governing international commercial transactions. The forward edge for this new generation now also has become its paradigm: the United Nations Convention on Contracts for the International Sale of Goods (the "U.N. Sales Convention" or CISG).[7] In addition to the United States, this Convention has already been ratified by nations whose combined economies account for nearly two-thirds of all world trade.[8]

The push toward an international unification of the law has not ended there. In the last decade, international conferences have adopted conventions governing such diverse subjects as financial leasing, factoring, bills of exchange and promissory notes, and stand-by letters of credit. Drafting work is also proceeding apace on a variety of like-minded projects, including international security interests as well as receivables financing.[9] Taken together, these conventions form the foundation for a proto-"International Uniform Commercial Code.[page 689]

This maturation of the law into the international dimension also carries subtle but powerful consequences for the allocation of authority in our federal system. The law unification efforts of this new generation take the constitutional form of treaties.[10] Senate ratification of a particular convention thus results (as was the case with the U.N. Sales Convention) in the federalizing of the law within its scope.[11] A derivative consequence is that questions of interpretation and application will "aris[e] under ... [a] Treat[y]" of the United States,[12] and thus fall within the "federal question" jurisdiction of the federal courts.[13] At issue in the ratification process, in other words, is nothing less than federal arrogation of traditional state competence in the law governing private and in particular commercial relations.[14] [page 690]

Unfortunately, extant Supreme Court jurisprudence on the interpretation of treaties is ill-equipped to accommodate this next significant stage in the development of the law. In large measure, this jurisprudence remains rooted in the public international law premise that treaties solely reflect a "contract" between sovereign nations.[15] The consequence has been an inflated view of both the subjective intent of "the parties" and the degree of appropriate deference to the views of the Executive Branch in interpretive inquiries.[16] Whatever their propriety in that context, such considerations are considerably less compelling for international conventions that regulate solely commercial relations between private entities.[17]

Moreover, and more destructively, the Court's treaty jurisprudence has fallen under the strong influence of a resurgent strain of formalism in domestic statutory interpretation. Although sometimes liberal in rhetoric, the common practical outcome of treaty interpretation by the Court has been of a distinctly conservative nature. Echoing the Chan opinion with which this Article began, the Court has consistently refused to view a treaty as a body of integrated norms that is capable of generating internal solutions for gaps in its provisions.[18] Instead, when faced with an unsettled question under a treaty, the [page 691] common approach has been to retreat to otherwise-applicable domestic law, "'whatever may be the imperfections or difficulties' " [19] this may leave in the fulfillment of the international law project.

This Article will demonstrate that the new generation of international conventions rejects this narrow conception of the judicial function. Inspired by a paradigm established in the U.N. Sales Convention, these commercial law conventions contemplate an active role for the courts in developing the law within their scope. I will argue that an essential element of this dynamic interpretive process is a delegation of authority to fashion new substantive law as normative gaps emerge in a convention's express provisions. The consequence is a repudiation of the resurgent strain of restrictive formalism that has gained recent prominence in domestic statutory interpretation and that has influenced Supreme Court treaty jurisprudence as well.

Parts I and II set the context for an analysis of this dynamic interpretive process. Part I first explores the contention that much of the Supreme Court's treaty case law is inapposite for the interpretation of international conventions that regulate purely private relations. It then examines the continuing controversy in the United States over the appropriate role of the judiciary in domestic statutory interpretation. The goal of this exercise is to set the jurisprudential context for a parallel analysis of the "autonomous" interpretive regime embraced in the U.N. Sales Convention and its progeny.

Part II introduces the core elements of this interpretive regime. I demonstrate there that the interpretive paradigm established in the U.N. Sales Convention endorses a policy favoring an "internal" filling of gaps and resolution of ambiguities. That is, it empowers adjudicators to resolve unsettled questions not through a retreat to domestic law, but rather on the basis of the "general principles" reflected in a convention's regulatory scheme.

Part III is the heart of this Article, for it is there that I address the repudiation of the essential tenets of the "new textualism" that has gained recent prominence in domestic statutory interpretation. Part III.A first demonstrates that, contrary to the animating theme of textualism, the U.N. Sales Convention and its progeny sanction a broad repertoire of interpretive techniques in the judicial development of the law. This includes an active resort to the drafting history that gave life to the relevant international convention.[page 692]

But as Part III.B then shows, it is in the role of adjudicators in filling normative gaps that the effects of this dynamic interpretive process will be most pronounced. I argue that the "general principles" methodology amounts to a delegation of lawmaking authority to federal courts within the scope of an international convention. The particular significance of this conclusion emerges from an observation that such "general principles" are nowhere expressly identified, and many the existence of which is more evident (such as "good faith" and "reasonableness") have neither a preordained nor an immutable content. Implicit in this approach is thus an active role for the judiciary in identifying and giving substance to the principles that will guide the future development of the law.

This conclusion alone strikes at the foundation of a restrictive formalist approach to the lawmaking powers of federal courts. The international dimension raises its significance to a higher power. Bolstered by mandatory deference to the needs of international uniformity, I argue that the delegation of lawmaking authority amounts to an instruction to the federal judiciary to participate with courts of other member nations in fashioning an international common law around the frame of an international convention. Part III.B then contrasts this internal-development methodology with the substantial continuing influence of the preexisting common law under the Uniform Commercial Code in this country.

It is difficult to overstate the impact of an internal-development methodology as the law-unification movement progresses into the international dimension. Even a comprehensive effort such as the U.N. Sales Convention will fail to provide guidance on a variety of matters within its scope. Issues as significant as the treatment of a "battle of the forms" in contract formation, the appropriate role of "good faith" in international transactions, the proper interest rate on amounts in default (which alone has already generated well over one hundred reported decisions), and the power of equitable principles to discipline abuse all remain unresolved under the Convention. Unfortunately, such fissures in coverage are inevitable in the articulation of general legal standards to govern disparate cultural and legal traditions, and their frequency will only increase under the corrosive effect of time.

A restrictive formalist approach to interpretation permits domestic adjudicators to embrace their natural bias for familiar domestic legal norms in filling such gaps. The inevitable consequence is a progressive [page 693] disintegration of whatever international uniformity a convention has achieved in the first place.

The "general principles" methodology, in contrast, seeks to preclude such a destructive retreat to domestic law. As the inevitable unsettled questions emerge, it empowers domestic courts to participate in the fashioning of solutions on an international level. In doing so, this internal-development methodology promotes in a particular way the long-term success of an international law unification effort

Part III concludes with an examination of this methodology in action. Part III.C demonstrates that the authority delegated to adjudicators extends not only to filling substantive gaps. Rather, inspired by the dynamic jurisprudence of modern civil law courts, the "general principles" approach also empowers adjudicators to adapt a convention to accommodate social and technological changes in the regulated field of law. Finally, Part III.D examines certain procedural antidotes to the potential homesickness of domestic courts in this dynamic interpretive process.

Intense scholarly debate in this country in recent years has developed the jurisprudence of domestic statutory interpretation to a high art. But the boundaries of the debate are changing. As national economies continue to toward global integration, so too is the law progressing toward unification on an international level. New, broader perspectives on interpretation are required to accommodate the dynamics of this process. The sum of my thesis is that the "general principles" methodology embraced in the U.N. Sales Convention and its progeny represents the most promising interpretive paradigm for this next significant stage in the development of the law.

I. The Domestic Context for the Interpretation of International Conventions

Since the rise of modern nation-states in the nineteenth century, the interests of international uniformity in the law have been left to cooperation among the formally sovereign nations.[20] Initial efforts in [page 694] this direction began as early as the turn of the century.[21] After the upheavals of World War I brought the need for international cooperation into sharper focus, work began in earnest on the unification of the law governing the core international commercial transaction, the sale of moveable goods. Responsibility for this undertaking initially fell to one of the prime forces in the international unification of the law, the International Institute for the Unification of Private Law, commonly known by its French acronym, UNIDROIT.[22] After the delays occasioned by World War II, the drafting work of UNIDROIT led to the adoption at a conference in the Hague in April, 1964, of two separate conventions, one governing the substantive principles of international [page 695] sales law,[23] and the other the formation of international sales contracts.[24]

Although these "Hague Conventions" formally entered into effect for eight nations in 1972, the participants in their creation almost exclusively represented industrialised Western-European states.[25] The result was that nations of other cultural, legal, and political traditions did not regard the conventions as a serious attempt at a truly global unification of the law. It was clear almost from their adoption, therefore, that the Hague Conventions had "no chance for wide international acceptance."[26]

The failure of the Hague Conventions nonetheless led to the emergence of a second major force in the international unification of private law,[27] the United Nations Commission on International Trade Law (UNCITRAL).[28] As early as 1968, UNCITRAL began preliminary work for a comprehensive review of the Hague Conventions, and in [page 696] 1969 established a Working Group charged with this responsibility.[29] After nearly ten years of drafting efforts, this Working Group -- with the active participation of representatives of the United States [30] -- produced a unified convention governing both the formation and performance of international sales contracts. A diplomatic conference convened by the United Nations General Assembly in April, 1980, in Vienna, unanimously adopted the Convention on April 11, 1980.[31] The U.N. Sales Convention then entered into effect according to its terms on January 1, 1988, after the ratifications of the United States, China, and Italy exceeded the required threshold of ten member states.[32]

The success of this Convention has been little short of stunning. In the ten years since it entered into effect in 1988, fifty-one nations have either acceded to or ratified the Convention.[33] Significantly, represented among this number are nations from all geographic regions, from all political perspectives (including former socialist states as well as traditional western democracies), and from all stages of economic development (from highly and newly industrialized countries to developing economies).[34] [page 697]

This success has also inspired unification efforts in other fields of international commercial law.[35] An international conference conducted under the auspices of UNIDROIT adopted, in 1983, a Convention on Agency in the International Sale of Goods.[36] Following extensive drafting work, a similar conference held in Ottawa, Canada, in 1988, adopted separate conventions governing two significant classes of international financial transactions: the UNIDROIT Convention on International Financial Leasing,[37] and the UNIDROIT Convention on International Factoring.[38] These latter two conventions have already entered into force.[39]

Similarly, an international conference adopted, in 1988, a UNCITRAL Convention on International Bills of Exchange and International [page 698] Promissory Notes.[40] Most recently, UNClTRAL approved a Convention on Independent Guarantees and Stand-by Letters of Credit.[41] And work is proceeding under the auspices of UNIDROIT on a convention on security interests in large mobile equipment,[42] as well as under the auspices of UNCITRAL on a convention governing international receivables financing.[43] All of these projects have proceeded with the active participation of the United States.[44]

Taken as a whole, these conventions form a proto-"International Uniform Commercial Code."[45] To be sure, the diverse unification efforts reflect varying degrees of ambition, and stand at different stages in the ratification process. What is nonetheless significant is what they have in common. As we shall see below,[46] the projects (with certain exceptions) carry forward a core consensus achieved in the drafting of the U.N. Sales Convention on the methodology for their interpretation and supplementation. As a result, the depth and breadth of [page 699] the patterns established in the judicial elaboration of the U.N. Sales Convention will be of significance far beyond that unification effort alone.[47]

These private law conventions are of a curious legal nature, however. Viewed from one angle, they carry the constitutional character of self-executing treaties.[48] These obtain their authority as law from the power of federal preemption defined in the "treaty" clause of Article VI of the Constitution.[49] The U.N. Sales Convention thus entered into force in this country through the Senate treaty ratification procedure of Article II, Section 2 of the Constitution, and without separate legislation incorporating it into the formal body of the United States Code.[50]

From a substantive perspective, however, the conventions have the look and feel of standard federal statutes. Their operative provisions impose no formal obligations on the United States in its international conduct as a sovereign entity.[51] Rather, the focus is solely on the substantive law governing the interaction between private entities. That is, similar to a typical private law statute, the subjects of a convention's legal standards are solely private actors, and, derivatively,[page 700] the courts and arbitral tribunals whose jurisdiction is invoked to resolve disputes over scope and meaning.[52]

The interpretation of the new generation of international private law conventions [53] thus presents federal courts with somewhat of a paradox. On the one hand, because they regulate purely private relations, the interpretive standards developed for public international law treaties would appear inapposite in this context.[54] One can scarcely overlook, however, that the conventions are international in character. Indeed, their very mandate to interpreters is to bring about international uniformity in the regulated field of law.[55] A necessary component of this goal is harmony among the interpretive approaches of the domestic courts in the various member states that are charged with resolving disputes within their scope.

Part I.B sets the context for the resolution of this paradox. After a brief review in Part I.B.1 of the fundamental problem in interpretive inquiries, Part I.B.2 examines extant Supreme Court precedent on the interpretation of treaties. I then turn in Part l.B.3 to an examination of the continuing debate in this country over the appropriate role of the judiciary in domestic statutory interpretation. The goal in this process is to establish the jurisprudential environment for a parallel [page 701] analysis of the new generation of international conventions under consideration here.[56]

B. The Domestic Debate over the Rote of the Judiciary in Interpretive Inquiries

1. The Fundamental Problem

Much of the friction in the identification and application of law stems from the simple fact that the rules of law "are finite, and the subject of it infinite."[57] In other words, however seriously a legal system takes the familiar maxim that "like cases should be decided alike," no two cases are, in fact, exactly alike. Moreover, lawmakers will often fail to foresee the implications of applying general standards of conduct, even to the specific circumstances known at the time of adoption. And the "inventiveness of reality" will mean that many such implications will not be foreseeable at all.[58] Some degree of indeterminacy is thus inherent in all legal standards, however carefully defined, and certain essential equitable values of their nature are not susceptible to precise articulation in any event.[59]

These problems appear with particular force when the subject of legal standards spans disparate legal and political cultures. The heterogeneity of the participants in the lawmaking process itself,[60] the diversity [page 702] of cultural norms in the regulated sphere of conduct,[61] and the need to capture the agreed-upon legal concepts in different languages [62] all combine to increase substantially the risk of indeterminacy in transcultural legal standards.

International law unification efforts nonetheless share with traditional statutes an important institutional characteristic regarding the indeterminacy in legal standards: The institution charged with resolving the inevitable gaps and ambiguities (the Judiciary) is distinct and separate from that which established them (for statutes, the Legislature, in cooperation with the Executive; for treaties, the reverse). This poses a challenging jurisprudential problem. Controversies falling within the "open texture" [63] of a treaty or statute must be resolved just as those the outcome of which can be derived with relative clarity from their express provisions must be resolved. An adjudicator may not simply declare the law ambiguous and dismiss the litigants without a resolution of their dispute. But what is the appropriate role of [page 703] an interpreter in resolving ambiguities and, more important, in filling gaps? What principles should she apply to resolve such difficult cases?[64] And to what extent is she bound in her search for guidance?

Consider, for example, a statute that purports to regulate comprehensively the formation and performance of contracts, but fails to address (at least unambiguously so) the issue of liability for failed contractual negotiations.[65] Suppose, then, that a party's expectations are frustrated in the negotiation process and she now seeks judicial intervention in a dispute over reliance damages.

One is confronted squarely here with the problem of defining the appropriate standards and sources of law to resolve this issue left unsettled in the statute. Does the statute's failure to provide an express remedy preclude a court from recognizing one? Is the court limited to the statutory text in resolving the matter? May it step back a level of abstraction to consult the values of the drafters or to consider the broader spirit of the legislation? Finally, should it, in addition or instead, resort to the norms of the preexisting legal order, such as the customary or common law?

As the law assumes an increasingly international dimension, the significance of this complex of problems comes into sharper focus. With respect to international treaties, the adjudicators charged with filling in gaps and resolving ambiguities are themselves products of differing cultural, legal, and political traditions. Regardless of the substantive standards chosen, therefore, there is increased concern that adjudicators will turn to their familiar, and nonuniform, norms of domestic law in the interpretation of international standards. The risk, in other words, is that the verbal uniformity achieved by a particular unification effort may be frustrated by a "homeward trend" [66] in interpretation by the diverse domestic adjudicators.[page 704]

Unfortunately, much of Supreme Court treaty case law is at best unhelpful and at worst misleading in the resolution of these fundamental interpretive problems under the new generation of international private law conventions. We will see shortly that for conventions of such a "legislative" character, this caselaw merely returns the analysis to our original controversy over the appropriate role of the judiciary in developing statutory law.

2. The Limited Utility of the Existing Domestic Approaches to Treaty Interpretation

We have already observed that the U.N. Sales Convention and its progeny were born into a curious legal limbo. Although international in character, they directly implicate few public international law concerns.[67] The operative provisions of the U.N. Sales Convention, for example, impose no obligations on the United States in its conduct as a sovereign entity. Application of such a convention thus does not implicate as directly the foreign policy and sovereignty concerns inherent in treaties governed by public international law. Rather, these provisions merely regulate the relations between private entities involved in defined commercial transactions.[68] One might [page 705] thus conceive of a private law convention in this respect as a "legislative treaty."[69]

In light of the U.N. Sales Convention's private sphere of application, the specific rules developed for the interpretation of treaties governed directly by public international law will provide little authoritative guidance. This conclusion obtains in particular for the interpretive standards defined in the Vienna Convention on the Law of Treaties.[70] Whatever force they otherwise may have in this country,[71] these standards focus on the interpretation of the international obligations of nations in their conduct as sovereign entities. As a result, the better view is that they are inappropriate for the interpretation [page 706] of the new generation of self-executing private law conventions that is best characterized by the U.N. Sales Convention.[72]

For similar reasons, much of the jurisprudence of the Supreme Court on treaty interpretation is inapposite in this context as it, too, is premised largely on the public international law paradigm.[73] One thus commonly finds statements by the Court that "[i]n interpreting an international treaty, we are mindful that it is 'in the nature of a contract between nations'."[74] Because the subject of interpretation is presumed to be the definition by sovereign actors of their own formal obligations, the Court has traditionally placed particular emphasis on the subjective intent of "the parties" in construing the provisions of treaties.[75] In a similar vein, concerns about sovereignty and executive [page 707] control over foreign relations have led the Supreme Court to accord great deference to the interpretive views of the Executive Branch.[76]

There is reason to doubt the dispositive effect of these considerations even for the public international law obligations of the United States.[77] Whatever their merit in that context, they carry considerably less weight for the interpretation of legal standards applicable only to private entities. Even here, of course, the intent of the drafters will be of relevance.[78] Nonetheless, because a "legislative treaty" such as the U.N. Sales Convention imposes no formal obligations on the sovereign states in their conduct in the international arena, there is no compelling reason to give controlling deference to the intent of the "contracting" parties or to the views of the Executive Branch in interpreting its substantive provisions.[79] [page 708]

Stripped of these prudential considerations, we are left with the question of the appropriate interpretive standards for the substance international conventions themselves. Unfortunately, the guidance from the Supreme Court has been cryptic on this score. Most often, it has merely parroted the self-evident observation that "when interpreting a treaty, we begin with the text of the treaty and the context in which the written words are used."[80] And although the Court has often referred to drafting records in interpreting a treaty, it is difficult to discern any consistency in this practice.[81]

Beyond this, the Court has simply observed that the "'[g]eneral rules of construction apply.'"[82] More questions are raised by these statements than are answered. For few issues have been as controversial in modern scholarly debate as the identification of what "general rules" a federal court may apply in interpreting legal standards established by coequal branches of government.

We return, then, to the basic controversy with which this Article began. I will ultimately argue in Part II that the paradigm established in the U.N. Sales Convention will require the development of an "autonomous" interpretive regime.[83] Nonetheless, the fundamental tension over the judicial function in interpretive inquiries unavoidably arises in this context as well. Indeed, we shall discover that the construction of treaties in this country has itself been borne along by the same jurisprudential currents that have influenced the debate over statutory interpretation.[84] To set the context for an analysis of [page 709] the interpretive methodology embraced in the U.N. Sales Convention and its progeny, I turn to an analysis of this domestic debate.

3. The Jurisprudence of Statutory Interpretation in the United States

The classical approach to statutory interpretation in this country fastened on the statutory text as the sole depository of legislative intent. In its practical manifestation, this formalist view took the form of the plain meaning rule."[85] This familiar rule posits that when the words of a statute are unambiguous, the interpretive inquiry should come to an end, "regardless of the consequences."[86] On difficult issues, classical theory turned to "canons of construction,"[87] the most potent of which is reflected in the well-known maxim that "a statute in derogation of the common law is to be narrowly construed."[88] [page 710]

When faced with an issue not clearly resolved on the face of a statute, this "canon" authorized courts to disregard the statute entirely and return to the familiar domain of the preexisting common law.[89]

The forces of realism destroyed much of the false edifice of this "mechanical" [90] formalism in the early part of this century.[91] For a time, two other notable "grand theories" [92] of statutory interpretation emerged in an attempt to fill the void. The first advocated a return to the strict formalist conception that a federal court merely "acts as the enacting legislature's faithful servant, discovering and applying the legislature's original intent."[93] More recent proponents of this new [page 711] form of "intentionalism" [94] have also elevated the debate to a constitutional dimension. These commentators argue that principles of federalism and separation of powers preclude federal courts from developing substantive law without the consent of Congress.[95] The second unified theory suggests that the answers to difficult interpretive issues should be found in the purposes that animate a particular statutory scheme. This "purposivism" [96] then posits that these broader objectives of a statute can be employed to resolve issues addressed only imperfectly, or not at all.[97] Neither purposivism nor intentionalism,[page 712] however, has succeeded in producing a convincing unified theory of statutory interpretation.[98]

The debate over statutory interpretation in this country in recent years has been characterized instead by a tension between two other principal jurisprudential views. One group of scholars, as we shall see shortly, assimilates elements of both intentionalism and purposivism in a more pragmatic approach to interpretive inquiries. In response to a perceived excessive liberality in statutory interpretation, an opposing school of scholars and judges seeks refuge in a new, and perhaps more resistant, strain of formalist restriction to statutory text.[99]

Continuing realist skepticism about the capacity of any one interpretive theory to produce determinate results, either descriptively or normatively, has given rise in recent years to a more pragmatic approach to statutory interpretation. The essence of this approach, as aptly described by Professor Daniel Farber, is that in interpreting statutes courts have at their disposal an "eclectic mix" of "text, statutory purpose, public policy, and legislative history. "[100] In addition to Professor Faber, the principal recent proponents of this practical reasoning include professors William Eskridge and Philip Frickey.[101]

Practical reasoning, as described by Eskridge and Frickey, is founded on three premises. The first is that statutory interpretation "involves creative policy making by judges and is not just the Court's [page 713] figuring out the answer that was put 'in' the statute by the enacting legislature."[102] The second, closely related premise is that a judge's task involves a choice among several possible meanings.[103] There is, in short, no single "right" answer in interpretive inquiries. Finally, in making choices, judges will be influenced by a variety of competing values.[104]

As their own positive model of statutory interpretation, Eskridge and Frickey propose a "funnel of abstraction." This funnel orders interpretive sources from the concrete to the abstract; that is, from textual considerations to historical considerations (legislative history and legislative purpose) to evolutive considerations (evolution of the statute and current policy).[105] The proffered metaphor for interpretation in this sense is a cable: The task of a judge is to identify which of the competing values (threads) are the most important in a given circumstance, weigh the strength of each, and choose the interpretation that reflects "the strongest overall combination of threads."[106]

At the foundation of this approach to statutory interpretation is the pragmatic notion that no single source is adequate for all interpretive [page 714] issues.[107] Rather, "practical reasoning," like human decision making in general, is "polycentric, spiral, and inductive -- not unidimensional, linear, and deductive."[108] Statutory interpretation is thus best viewed as "problem-solving," in which the "practical reasoner" weighs the strengths of the various justificatory arguments (text, legislative history, current values) in applying the statute to the concrete dispute in need of resolution.[109]

The most innovative characteristic of this flexible, pragmatic approach to statutory interpretation is its "dynamic" element. Dynamic statutory interpretation proceeds on the premise that, when interpreting statutes, judges are not formally bound to the original value judgments of the enacting legislature.[110] That is, this view rejects the notion that "the meaning of a statute is set in stone on the date of its enactment."[111] Rather, it is argued, in the event of an evolution in the relevant public values, federal courts have the authority to develop new legal standards and even to adapt otherwise clear statutory text to accommodate a changed societal and legal environment.[112] An apt [page 715] metaphor for this view, as advanced by Alexander Aleinikoff, is a nautical one:

There is persuasive empirical evidence that the Supreme Court in some respect has followed a flexible approach in interpreting statutes.[114] But, as even one of its proponents has acknowledged, practical reasoning "is easier to invoke than define."[115] And in its dynamic dimension, this increased flexibility collides with the constitutional concerns advanced by "intentionalist" scholars.[116] If, in fact, constitutional constraints exist on the lawmaking powers of federal courts, then there also must be logical limits on the courts' authority to construct legal additions to statutory structures (or destroy existing wings) without a sufficient legislative foundation.

It is precisely these types of concerns that have provoked calls for a return to a more formalist approach to statutory interpretation. As [page 716] we shall see in the next section, the answer to the indeterminacy of statutory law for these "new textualists" is to be found not in increased flexibility but rather in a more restrictive adherence to the text actually adopted by the legislature.

C. The Rise of "New Textualism"

Statutory interpretation, like many collective social activities, appears to fall under the influence of trends. As one approach begins to establish itself, a countertrend emerges. The response to the increasing flexibility in interpretation in the last few decades thus should not come as a surprise. The late 1980s witnessed the rise of a new, and perhaps more powerful, species of formalism now commonly known as "new textualism."[117] The principal adherents to this new approach are Justices Antonin Scalia and Clarence Thomas,[118] and a number of appellate judges, most notably Frank Easterbrook of the Seventh Circuit.[119]

New textualism posits that the role of judges in a democratic society is to apply statutory text strictly as written, and in particular without regard to notions of legislative intent or purpose. In this respect, proponents of textualism return to the old formalist view that statutory words are the best indication of legislative intent.[120] Indeed, in his concurring opinion in INS v. Cardoza-Fonseca,[121] which signaled the [page 717] rise of "new textualism," Justice Scalia cited cases dating back as far as 1820 for the "venerable principle that if the language is clear, that language must be given effect -- at least in the absence of patent absurdity."[122]

Implicit in this approach is also a conservative premise about the role of federal judges in the development of law. In a system founded on legislative supremacy and separation of powers, it is argued, the appropriate forum for policy making -- for balancing the competing societal interests in the creation of generally applicable legal standards -- is the legislature. The function of the judiciary, in contrast, is restricted to identifying and applying the objective meaning of those legislative standards without the exercise of independent policy making discretion.[123]

This restrictive textualist philosophy thus has two principal corollaries, as discussed immediately below.

1. Rejection of Legislative History

The first principal corollary of new textualism is a rejection of extrinsic sources, in particular legislative history, in resolving statutory ambiguities.[124] Proponents have advanced a variety of arguments to [page 718] support this view. The prime argument carries forward the attack of realists fifty years earlier on the very notion that legislatures have any coherent collective "intent" at all.[125] Echoing Radin,[126] Judge Easterbrook, for example, has contended that "[i]ntent is elusive for a natural person, fictive for a collective body."[127] More recent support is found in "public choice theory," which is skeptical of the effectiveness of a legislative process influenced by powerful interest groups and the idiosyncratic motivations of individual legislators.[128]

Supporters of textualism further reject legislative history as lacking utility in resolving statutory ambiguities. That is, textualists contend that legislative history often proves more ambiguous than the text itself.[129] The variety of often conflicting statements in drafting records, textualists argue, enables judges to hide their own preexisting policy preferences behind a veil of citations to "legislative intent."[130] [page 719] Consulting such a source thus amounts to little more than "looking over a crowd and picking out your friends."[131]

A final argument against the use of statutory history is founded on constitutional concerns. Textualists assert that a restriction to statutory text is constitutionally mandated because it is only that text, and not the legislative drafting records, that is voted on by Congress and presented to the President.[132] In a similar vein, proponents argue that reliance on drafting records prepared by congressional staff (and influenced by interest groups) sanctions a usurpation of the legislative power vested by the Constitution exclusively in the elected members of Congress.[133]

2. Restrictive View of Judicial Lawmaking Powers

The second principal corollary of new textualism is a limited view of the role of judges in filling statutory gaps. Consistent with their [page 720] emphasis on legislative supremacy and the incoherence of legislative "intent", many textualists argue that courts should not engage in an active search for answers to questions a statute leaves unresolved. In particular, they argue, judges should not seek to craft substantive solutions from the broader spirit of a statutory scheme, nor from a dynamic adaptation of the meaning of the enacted text.[134]

Instead, when faced with a gap, a court should disregard the statute, admit the limits on its lawmaking powers, and resort to whatever law would otherwise apply to the issue in dispute.[135] In the words of Judge Easterbrook:

This aspect of new textualism, too, reflects a return to the restrictive approach of classical formalism.[137] But these recent textualists also find support in constitutional considerations. Proponents argue that the prohibition on filling statutory gaps follows from the exclusive grant of federal lawmaking power to the legislative branch. Because federal courts do not have independent power to create substantive law, recent textualists argue, they likewise have no power to fill gaps in legislative standards.[138] Textualists also see a derivative [page 721] utilitarian benefit in this approach: Limiting interpretation solely to text, they urge, creates an incentive for Congress to draft statutes carefully (thus avoiding gaps in the first place), and thereafter to be diligent in amending them as they become outdated.[139]

It is perhaps in this respect that textualism has most influenced conventional approaches to statutory interpretation. References to the traditional rule of strict construction of statutes in derogation of the common law continue to abound in federal-court opinions.[140] The Supreme Court itself has often looked to common law rules as guidance for the development of the law under federal statutes.[141] In fact, even proponents of dynamic approaches to statutory interpretation do not challenge the continuing vitality of the preexisting common law in filling some statutory gaps.[142] [page 722]

What is more significant for present purposes, however, is that this new strain of formalism has even influenced the Supreme Court's approach to the construction of treaties.[143] For an illustration of this point, let us return to the Court's opinion in Chan v. Korean Air Lines, Ltd. with which this Article began.[144] At issue in that case was the application of the Warsaw Convention on international air travel to the shooting down of an airliner by the Soviet Union in 1983.[145] The specific issue was whether the liability limitation defined in that Convention should be lifted if an airline fails to give adequate notice of the limitation to its passengers.[146]

Finding no express provision to that effect in the Convention, the Court quickly concluded that the interpretive inquiry was at an end. Although the issue of airline liability clearly fell within the Warsaw Convention's scope, the Court found that it had no authority to craft a substantive solution to fill the gap.[147] The pure formalist spirit embraced in the penultimate paragraph of Justice Scalia's opinion for the Court on this score is worthy of reemphasis here: " '[T]o alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty.' "[148] [page 723]

Chan is not an anomaly. For more than a decade, the Court has consistently applied a restrictive approach to the construction of international conventions. In opinions such as Société Nationale Industrielle Aérospatiale v. United States District Court,[149] Volkswagenwerk Aktiengesellschaft v. Schlunk,[150] and Zicherman v. Korean Air Lines, Co.,[151] the Supreme Court has consistently refused to engage in an active interpretive process to construct internal solutions for gaps in a convention's regulatory scheme. The implicit premise of this refusal is that an international convention merely represents a limited skeleton of rules. The consequence has been that the Court has resorted to otherwise applicable domestic law even for questions clearly within an international convention's sphere of application.[152] In short, although [page 724] sometimes liberal in rhetoric,[153] the common practical outcome of treaty interpretation by the Supreme Court has been distinctly conservative and formalist.[154]

To be sure, most proponents of textualism are not absolutists. Even Justice Scalia has acknowledged the importance of reading statutory text in its linguistic and structural context.[155] Nonetheless, in language reminiscent of the strict formalism of nearly one hundred years ago, Judge Easterbrook has summarized textualism as a "relatively unimaginative, mechanical process of interpretation."[156]

In domestic statutory interpretation, this "new textualism" apparently has not found unquestioning converts in a majority of the present [page 725] Supreme Court.[157] As Chan illustrates in the context of an international convention, however, new textualism remains one of the most potent jurisprudential forces in the contemporary debate over the role of the judiciary in developing the law created by its coequal branches of government.[158] It is in this atmosphere that we turn in Part II below to the interpretation of "legislative" treaties in the form of a new generation of international commercial law conventions.

II. Interpreting the New Generation of International Conventions: The Animating Philosophy

A. Textual Considerations

Although in varying proportions, the entry into force of any comprehensive body of international legal norms creates a fundamental tension with the prior legal order. This tension finds practical expression in two significant interpretive problems. The first is determining the extent to which the international convention should preempt the various national legal regimes in the first place. The second involves a concern that, however expansive the agreed preemption, the national adjudicators charged with applying the new international standards will nonetheless dilute their force through a covert reliance on the preexisting domestic norms in "interpretive" inquiries.

Given the background of these significant challenges, the subject of interpretation attracted intense interest as the law unification movement took root after the upheavals of the Second World War. The first ambitious effort in this direction, the ill-fated Hague Uniform Law in International Sales (ULIS),[159] aspired to a fully preemptive [page 726] and comprehensive model.[160] Article 17 of the Hague ULIS provided that all questions left unsettled in its express provisions were to be resolved internally, specifically "in conformity with the general principles on which [it was] based."[161]

In the charged political climate of the 1970s, this comprehensive displacement of national law quickly became a focus of controversy in the subsequent drafting of the U.N. Sales Convention. The deliberations over this issue coalesced around two fundamentally opposing views. One group of delegates rejected altogether the notion of a self-contained code of international legal standards; this nationalist camp instead advocated a model of a limited skeleton of rules devoid of unifying principles or values.[162] Others held higher aspirations. These delegates conceived of the U.N. Sales Convention as a comprehensive body of integrated norms that would both entirely preempt national law and be independent of its influence. Supporters of this view thus advocated a retention of the pure "general principles" approach of the Hague ULIS.[163]

In the early drafting stages, the Working Group adopted a compromise that appeared to evade the issue entirely. The resulting draft provision on interpretation stated simply: "In interpreting and applying the provisions of this Law, regard shall be had to its international character and to the need to promote uniformity."[164] Upon consolidation [page 727] of the sales draft with the formation draft in 1978, the Working Group extended this provision to the formation provisions [165] -- and incorporated language (of separate significance) that required consideration of "good faith" in interpretive inquiries [166] -- but otherwise left the primary issue unresolved. The resulting ambiguity over the preemptive effect of the Convention left room for advocates of both the restrictive "nationalist" view [167] and the ambitious "internationalist" [page 728] view [168] to press their cases at the Vienna Conference in 1980.

The position of the internationalists substantially prevailed in the final draft of the Convention. The delegates to the Vienna Conference first determined to retain the draft provision on the interpretation of the Convention. That provision, which now appears as article 7(1) of the Convention, establishes the promotion of international uniformity and the observance of good faith as the core policies of interpretation: "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."[169]

But the delegates also decided to supplement these standards with an express provision for filling in gaps in the Convention's regulatory scheme. It is here that those with higher aspirations for the Convention as "a step towards the creation of a new jus commune" [170] substantially triumphed. That new provision, now embodied in article 7(2), mandates as a prime policy that unsettled questions are to be resolved on the basis of the principles reflected in the Convention itself; it is only when those principles fail to provide guidance that resort may be had to national law:

The consensus achieved in the drafting of the U.N. Sales Convention has also had more fundamental implications. Subsequent international commercial law conventions have seized upon the approach of CISG article 7 as the paradigm for the interpretation and supplementation of the law within their scope. The UNIDROIT Conventions on International Financial Leasing,[172] International Factoring,[173] and Agency in the International Sale of Goods [174] all incorporate language on interpretation and gap-filling that is effectively identical to that in CISG article 7.[175]

Drafting work on the next generation of unification efforts is proceeding on the same basis: Article 7 of the UNIDROIT Draft Convention on International Interests in Mobile Equipment [176] incorporates the substance of CISG article 7, as does article 8 in the UNCITRAL Draft Convention on International Receivables Financing.[177] These subsequent unification efforts, in short, not only have embraced the principle of CISG article 7; most of them have adopted the provision effectively verbatim.

The result that emerges from this commonality is what might be termed "horizontal uniformity" in the commercial law unification movement.[178] That is, these international conventions have established [page 730] uniformity among themselves on the standards for their interpretation and supplementation. What is significant from this is that the interpretive philosophy embraced in the drafting of the U.N. Sales Convention also carries an impact for the future development of international private law in general. Before examining the substantial experience gained in the judicial elaboration of that Convention, I will turn first to an analysis of this underlying interpretive philosophy.

B. The Animating Philosophy and the Influence of Civil Code Methodology

There is a deceptive simplicity in the interpretive standards set forth the paradigm of CISG article 7. At first glance, notions of international uniformity and interpretation based on underlying principles would appear to be simple truisms: The very purpose of the commercial law conventions, after all, is to develop and bring uniformity to the law governing international transactions. Examination with a more powerful lens reveals a deeper message. That message is nothing less than a fundamental policy for the development of a truly transnational, substantively independent body of law.

Dissection of the interpretive standards in our paradigm reveals three separate elements. First, interpretation of a private law convention must proceed on the basis of its "international character."[179] This directive serves a separating and elevating function. That is, it suggests [page 731] an "autonomous" interpretation [180] free from the influence of national legal concepts and terminology,[181] and even from the domestic interpretive techniques themselves.[182] In doing so, this mandate amounts to an express direction to interpreters to view a convention as occupying an entirely different, elevated international dimension.

The second element requires that the interpretation of a convention have regard for "the need to promote uniformity in its application."[183] The focus of this standard, interestingly, is not the substantive provisions of the conventions, but rather the interpreters themselves. Implicit in the required deference to uniformity is an instruction to adjudicators to give mutual deference to prior interpretive decisions by courts of other member states, a point I will explore in greater detail below.[184] At its core, this directive thus reflects a recognition that interpretation is a social process and that effective unification of the law on an international level will require cooperation among the formally independent national courts.

Viewed in this light, the second element of our paradigm operates in a symbiotic relationship with the first. It bolsters the international character of a convention by requiring cooperation among [page 732] domestic courts on an international level. At the same time, the required regard for a convention's international character promotes uniformity by precluding recourse to nonuniform domestic norms in the interpretation of its substantive provisions.

The final element of CISG article 7 is perhaps the most significant. The second paragraph of that paradigm directs that, as a primary matter, questions left unresolved in a convention's express provisions must "be settled in conformity with the general principles on which it is based."[185] The function of this element is to complete the interpretive system. That is, even where the inevitable substantive gaps appear, article 7(2) directs an adjudicator to seek answers on an international level, specifically in the values reflected in the convention itself. Implicit in this approach is thus a conception of a convention as an integrated system whose cohesion arises from a set of unifying principles.[186]

Each of these three elements of CISG article 7 carries an important message on its own plane. But it is in their interaction with the broader preemptive effect of an international convention that the animating spirit of that interpretive paradigm fully emerges. The very purpose of a true international convention (as opposed to a simple model law that operates as a mere guideline for domestic legislation) [187] is to supersede national legal norms within its defined scope. The interpretive standards of CISG article 7 give full force to this preemptive effect. Beyond the displacement of domestic law, that provision establishes a means for interpreters to develop the law under an international convention in a manner entirely free from the influence of domestic legal norms.

This goal of creating a truly independent body of law has a prominent historical antecedent: the adoption of comprehensive civil codes by the new nation-states of continental Europe in the nineteenth [page 733] century.[188] Though different in their drafting styles and the historical context of their enactment, these codes shared the prime purpose of displacing all prior law within their scope.[189] A corollary to preemption was a claim to comprehensive coverage. Concurrent with the abolishment of all relevant prior law, the civil codes established a new and authoritative foundation for all legal standards governing the private legal relations within their scope.[190]

Even a code, however, cannot escape the affliction of indeterminacy. As with other forms of legislation, circumstances will arise for which the articulated standards are ambiguous, or for which no provision exists at all.[191] Civil codes thus share a final characteristic: a system or method governing the interaction and supplementation of their component parts.[192] To fulfill the aspiration of a self-contained, comprehensive body of law, in other words, the civil codes expressly or impliedly define an internal methodology for the future expansion of the law within their scope.[193] [page 734]

It is no coincidence that the codification movement first arose as modern nation-states coalesced in the nineteenth century. The leaders of that age of statism and positivism realized that the process of nation-building would require a common legal culture. The new states, such as France, Germany, and Italy, that arose out of the convulsions of the period did not, however, have the luxury of the slow accretion of private law norms that characterized the formation of a shared legal culture in England (and in its progeny, such as the United States).[194] One of the first projects undertaken in these newly unified nations, therefore, was the establishment of a commission of legal experts to draft a civil code to govern the private relations among their citizens.[195] The unmistakable goal of this process was to displace the old order with a new foundation for the development of a new system of shared legal values.[196] [page 735]

The defining characteristic of these comprehensive civil codes is their internal development methodology. When faced with gaps and ambiguities, a true code approach requires interpreters to seek the answers within the codes themselves; the specific targets for exclusion in this approach are the norms of the preexisting legal order.[197] This does not mean that the civil codes necessarily define all answers to all questions in a strict formalist sense.[198] Rather, as we shall later see in more detail,[199] modern civil law courts have seized upon certain abstract values reflected in the codes as delegations of broad authority to develop the law within their scope and to adapt the codes to accommodate changes in the regulated field of human activity.[200]

Indeed, the inherent indeterminacy of law will mean that the questions left unsettled -- ambiguities about scope and effect, the unforeseen cases -- will often take on a greater practical significance than the express code provisions themselves. The corrosive effect of time will also cause the express code rules to wane in relevance as social and technological changes in the regulated field of human activity reveal unresolved questions with greater frequency. The fissures in the law, in other words, will gradually become chasms. The civil code solution to this problem was to establish a common source not only for [page 736] the legal rules to resolve known problems but also for the broader, foundational values that would guide the future development of the law.

the paradigm established in CISG article 7 for the unification of the law on an international level proceeds on the same fundamental course.[201] Indeed, many civil codes contain an express requirement that an interpreter resort to internal "general principles" for the resolution of ambiguities in their express provisions.[202] It should thus not surprise that the analytical journey arrives at the same destination: The paradigm of CISG article 7, in particular its second paragraph, endorses a code-like interpretive methodology.[203]

Part III will examine the implications of this implicit endorsement of a civil code interpretive methodology. The practices established under any one civil code will not, to be sure, control the interpretation of an international convention, nor will even their collective experiences necessarily be dispositive. Nonetheless, as we shall see below, the dynamic jurisprudence that has animated much of modern interpretation of the European civil codes will provide inspiration for the parallel interpretive philosophy embraced in the new generation of international commercial law conventions.[page 737]

III. The Mandate for a Dynamic Jurisprudence in an Age of Transnational Statutes

Courts in the United States do not have extensive experience with the interpretation of true codes.[204] While the term abounds in our legal lexicon,[205] legislative enactments in this country [206] have traditionally not aspired to the preemptive, comprehensive, and systematic nature of the civil codes common in Europe and South America.[207] Instead, even comprehensive enactments styled as "codes" typically have adhered to a less ambitious "perpetual index" model, which organizes and adjusts the preexisting legal order, typically state common law, but nonetheless remains under its influence.[208] [page 738]

Most federal legislative enactments do not employ the "code" label, and it is likely that Congress pays little heed to the nominal distinction. But it is precisely because of their diversity in substance that doubt arises about the nature and scope of any particular congressional enactment. The problem inherent in developing a model of interpretation, in other words, is that not all legislative enactments are the same. Some are more complex than others. Some reflect a comprehensive solution to the whole complex of social ills within a field of human activity. Others pursue less ambitious goals.

The resultant ambiguity has served as the principal fuel for the controversy between textualists and dynamicists over the role of the judiciary in the interpretation of statutes. At the risk of oversimplification, this controversy can be distilled into two main dimensions, which for ease of reference might be termed "procedural" and "substantive." The procedural dimension relates to the appropriate techniques (or "evidence") an adjudicator may use in interpretive inquiries. The substantive dimension, on the other hand, addresses how courts should proceed where this "procedural" interpretation reveals that the legislative standards do not provide definitive guidance on the particular question presented.[209]

This Part will argue that the code-like methodology embraced in the paradigm of CISG article 7 for international conventions rejects the restrictive textualist approach on both levels. Part III.A will first demonstrate that CISG article 7 endorses an expansive view of the permissible repertoire of interpretive techniques. The impact of code methodology, as Part III.B explains, will be most profound in the substantive dimension of interpretation -- the role of adjudicators in filling normative gaps. I argue there that the internal development approach of CISG article 7(2) amounts to a delegation of lawmaking authority to the judiciary when confronted with such gaps in a convention's regulatory scheme. Part III.C-D will then explore the full implications of this delegation for the development of the law within the scope of an international commercial law convention.[page 739]

A. Rejection of Textualism (I): Expansion of the Repertoire of Interpretive Techniques

1. The Search for the Elusive "Plain Meaning"

"Throughout the work on uniform laws realists have told us: Even if you get uniform laws you won't get uniform results."[210] With these brief words, Professor John Honnold captured the fundamental challenge facing the transnational unification of the law. Whatever rules are chosen, uniform words risk remaining empty shells without a uniform methodology for their interpretation. The first element of the interpretive paradigm of CISG article 7 is directed to this challenge: Recall that the required regard for a convention's "international character" precludes resort to purely domestic techniques of statutory interpretation.[211] Properly appreciated, then, the interpretive paradigm of CISG article 7 requires the creation of a form of an international common law of "convention interpretation."

Unfortunately, the three elements of our paradigm largely define only the goals, and not the specific standards, to be applied in interpretive inquiries. Nonetheless, CISG article 7 did not arise in a vacuum, nor does it mandate some magical new formula.[212] Indeed, we have already seen that this paradigm was born under the influence of civil code methodology,[213] Moreover, substantial agreement already exists among domestic systems on the core elements of an interpretive process.[214] Admittedly, this domestic harmony may not be dispositive on an international level. It nonetheless confirms the intuition [page 740] that certain justificatory arguments are inherent in any rational attempt to determine the meaning of legal texts.

For instance, even in the transnational context there can be little disagreement on where the interpretive process should begin. Not surprisingly, recent comparative reviews across a number of jurisdictions have revealed that the ordinary meaning of statutory language is the prime source of interpretive argumentation.[215] Even the most devout adherents to dynamic interpretation in this country acknowledge the primary authoritative force of statutory text.[216] Textualists, of course, would quickly join in the chorus.[217]

There is also little potential for disagreement over the role of context. Comparative studies have revealed a near-universal acceptance of linguistic and systemic context as a means to ascertain a technical or specialized meaning of an ambiguous statutory provision.[218] No objection on this score is likely from new textualists either. Justice Scalia himself would apparently consider "structural arguments" such as how an ambiguous statutory term "is used elsewhere in the same statute, or . . . in other statutes," and how "the possible meanings fit in the statute as a whole."[219] [page 741]

Even on this basic textual level, however, one confronts the necessity for a more active interpretive process in an international context. This necessity emerges for two principal reasons. First, international conventions appear in not only one, but typically several, authoritative languages.[220] In what might seem an oxymoron, therefore, there are several potential "plain meanings." Reference to these other languages may thus reveal an ambiguity otherwise hidden behind an apparent "plain meaning" in any single text. The ambiguity in the English language text of the "good faith" provision in the U.N. Sales Convention offers a prime example of this.[221]

The role of a convention's broader "general principles" presents a second argument for a more active interpretive process even for apparently clear text. CISG article 7(2) requires reference to such principles for all "questions" not "expressly settled" in a convention's provisions.[222] The reasoned view of this directive holds that resort to such principles can uncover an ambiguity or gap even where an express provision appears to cover the matter in dispute.[223] The scope of the (apparently unqualified) provisions of the U.N. Sales Convention governing contract formation and notice requirements, for instance, will be limited by an application of the Convention's foundation "general principles."[224]

The message here is that even with this most basic of interpretive tools, interpreters must hold themselves out to a more active search for meaning. Beyond even the doubts about a "plain meaning" of words in any one language alone, therefore, the international dimension of a private law convention mandates a healthy skepticism about [page 742] the textualists' celebration of the value of objectively determinable meaning.

2. The Important Role of Drafting History

One of the most controversial issues in the debate over statutory interpretation in recent years has been the role of legislative history. Proponents of this source for interpretation argue that the drafting records of a statute may reveal an underlying legislative intent (so-called historical justifications) [225] or legislative purpose (teleological justifications).[226] These sources can then illuminate the meaning of, or give positive life to, the text of a statute. New textualists attack the very foundation of these arguments. Recall that adherents to new textualism argue that notions of legislative intent and purpose are incoherent, unhelpful, or downright misleading, and that the use of legislative history raises constitutional concerns in any event.[227]

This dispute over the role of drafting records (travaux préparatoires) has also played itself out in the practice of the Supreme Court in the construction of treaties. At times, the Court has relied expressly on such records on difficult issues of treaty interpretation.[228] Unfortunately, it is difficult to discern any coherence in the Court's approach on this score.[229] Indeed, in Chan, for example, the Court, in an overtly textualist manner, concluded that it was inappropriate to resort to treaty drafting records where "the text is clear."[230] [page 743]

The interpretive provisions of the Vienna Convention on Treaties likewise embrace a distinctly textualist approach.[231] Under those standards, resort to such extrinsic interpretive evidence "is meant to be only an exceptional occurrence."[232]

The arguments advanced by textualists against the use of drafting records hold little force in the active interpretive process contemplated by CISG article 7. At least four separate reasons support this conclusion. The first emerges from the very purpose of the enterprise: achievement of international uniformity. On a domestic level, and in particular in civil law countries, recourse to drafting records in resolving statutory ambiguities is a well-accepted practice.[233] It is not surprising, then, that civil law scholars,[234] as well as courts and arbitral [page 744] tribunals,[235] quickly embraced the same standard for the U.N. Sales Convention. In its practical effect, therefore, the mandated deference to the needs of international uniformity amounts to a direction to courts in the United States to be open to a similar interpretive approach.

The adoption process of an international private law convention likewise dilutes constitutional concerns about the use of drafting history.[236] Like all formal international treaties, such conventions are negotiated by representatives of the Executive Branch.[237] Concerns about unconstitutional "self-delegation" by Congress thus simply do not arise.[238] Moreover, the official drafting records of the conventions become publicly available long before the Senate is able to take up the issue of ratification.[239] This fact, together with the express direction [page 745] given by the conventions themselves to courts to defer to the interests of uniformity, disperses substantially the constitutional anxieties about the imprimatur of the Senate on the use of drafting history in interpretive inquiries.[240]

The utilitarian arguments of textualists against the use of drafting records are likewise unconvincing in this context. Recall that some proponents have argued that textualism enhances democracy by disciplining Congress to draft more carefully and to be more diligent in amending outdated legislation.[241] This argument simply holds no water for international conventions. First, the heterogeneity of the participants in the drafting of such conventions makes increased indeterminacy unavoidable.[242] More important, after broad international acceptance, corrective amendment to a convention is effectively impossible,[243] and unilateral amendatory action is also foreclosed.[244] [page 746] Precluding resort to drafting history notwithstanding inequitable or unjust results is thus unlikely in the extreme to achieve the utilitarian goals advanced by textualists.

A final argument for the use of drafting records flows from the consequences of the previous one. In light of the increased indeterminacy of international legal standards, as well as the improbability of a legislative rescue in the form of corrective amendment, drafting records simply are more important to an effective interpretation and application of international conventions.[245] In addition, more than is the case with domestic legislation, international unification efforts are characterized by a variety of necessary, if sometimes illusory, compromises.[246] The written product thus reflects, at best, an odd amalgam of legal philosophies and systems.

An active resort to drafting records increases the font of available interpretive material on these foreign concepts, as well as on the meaning of the related compromises among the drafters.[247] In this way, paradoxically, an active interpretive process promotes uniformity. It does so by diminishing the risk that domestic interpreters will [page 747] fail to appreciate ambiguities or even affirmatively misunderstand the international nature of the conventions.[248]

Drafting records, of course, are not dispositive in interpretive inquiries. The realist skepticism about collective intent [249] retains validity in the international context as well. Even when interpreting the drafting records of an international commercial law convention, therefore, adjudicators should proceed with caution in weighing the value of a statement by any particular delegate reproduced there.[250] The proper role of the drafting records is, rather, as one consideration in a broader weighing of all relevant evidence, as interpretive adjectives in a field of substantive nouns.[251] Within their limited field of operation, however, the records can be a valuable source for uncovering the motivations behind a solution to a particular normative problem; and in some cases a clear intent or purpose can even give substance to the determinative "general principles" under the interpretive paradigm of CISG article 7.[252]

In short, there are compelling grounds to support the growing consensus on the use of travaux préparatoires in the interpretation of international private law conventions. The arguments of new textualists against this source of interpretive material in domestic statutory interpretation provide no convincing reason to deviate from this course.[253] [page 748]

3. Expansion of the Interpretive Process

Often, interpretation of the express provisions of a convention will fail to supply the answer for the specific issue in need of judicial resolution.[254] However liberal an interpreter is in her search for relevant evidence (even after employing historical and teleological justificatory methods), the process will frequently reveal that the drafters were unable to agree on the appropriate resolution of the issue, or that the issue escaped their attention entirely.[255]

Here we depart the realm of interpretation in the narrow sense of meaning and enter under the influence of the broader philosophy for the development of the law. Here, too, the internal general principles" methodology assumes its full significance.

On a small scale, the process of identifying principles of a more general character implies resolution of unsettled questions by use of analogies.[256] This interpretive method involves discerning the values reflected in the resolution of one normative problem and applying those values to a separate, but analogous, situation. A provision requiring payment of the purchase price at the seller's place of business, for example, can be applied analogically to the place for the payment of damages for breach of contract. This method may be of limited value, however, for the result is only a specific solution to a [page 749] specific problem. Although important in its limited sphere, an analogy provides no broader basis for developing substantive standards to accommodate new social and technological trends.[258]

The more significant implication of the active interpretive process mandated by CISG article 7 is that it sanctions judicial recognition of entirely new substantive principles of general application. In rare cases, such principles may emerge from the distillation of a single provision. That is, a specific provision may reflect a value of such a force and breadth as to permit recognition of a "general principle" on that basis alone. Let us refer to these as "deductive general principles."

Consider, for example, the principle of "party autonomy" defined by CISG article 6.[259] That provision broadly elevates the agreement of the parties over even the express provisions of the Convention itself.[260] The potency of this provision alone gives rise to a "deductive general principle" of party autonomy that may be applied to formulate substantive solutions to questions left unresolved elsewhere in the Convention.[261] Other examples of such deductive general principles under the U.N. Sales Convention might include the required consideration of international trade usages,[262] the absence of form requirements,[263] and (more controversially) the principle of "good faith."[264] [page 750]

Most often, the identification of the determinative general principles will require a more searching analysis. On a structural level, this analysis involves discerning the general from the shared values of the specifics. As commonalities emerge, these shared values may then be applied to solve unsettled matters falling within their logical range of effect. What is at work here is a form of inductive reasoning. A German legal scholar long ago described the foundation for this reasoning in this way:

Implicit in the "general principles" approach is thus a requirement that an interpreter look beyond the face of the relevant convention's narrow constitutive provisions. Each such provision reflects a value judgment, a resolution or balancing of the interests of the parties in a particular way. Inductive reasoning requires an adjudicator to probe these value judgments and seek out common threads of principle. In doing so, broader policies and purposes may emerge. These "inductive general principles" can then provide guidance on the resolution of interpretive issues, and even in filling gaps within the convention's regulatory scheme.

Take, for example, the concept of "reasonableness" under the U.N. Sales Convention. The Convention nowhere imposes on the parties a general requirement of reasonable action.[266] In a number of individual provisions, the Convention nonetheless variously measures the parties' conduct from the perspective of a "reasonable person,"[267] defines rights or obligations with reference to what is "reasonable" or [page 751] "unreasonable,"[268] and requires certain actions or notices within a "reasonable" time.[269] Although the Convention imposes no such express requirement, the frequency and breadth of this substantive value of "reasonableness" permits the extraction of a principle of broader application.[270] The result is that an adjudicator may in an appropriate case impose a more general obligation of reasonable conduct on the parties to discipline an inequitable exercise of a right or performance of an obligation.

Applying this form of reasoning, scholars and adjudicators have suggested other examples of what are referred to here as "inductive general principles" under the U.N. Sales Convention. These include a duty to communicate relevant information,[271] a principle of full compensation in the event of breach,[272] a form of traditional estoppel,[273] and a duty to take reasonable measures to mitigate losses.[274] [page 752]

Use of this type of reasoning is a common feature of civil code interpretive methodology.[275] Similar to these civil codes, CISG article 7 calls upon interpreters to conceive of an international convention as reflective of an overall design. In contrast to the inevitable doubt on this score regarding legislation in the United States, in other words, interpreters are to begin with a presumption of consistency and coherence.[276] As uncovered issues emerge, one must look through the superstructure for the supporting principles below, and, failing these, to the very values that animated the structure's original design.[277] Upon completion of this process, the interpreter can then apply these underlying principles to correct unforeseen defects in the construction of a particular convention, and even to fashion additions to accommodate the unexpected needs of its inhabitants.

One should note here, however, that it would be error to view the paradigm of CISG article 7 as merely embracing a narrow strain of formalism. As Part III.C will demonstrate in greater detail, developing a convention's general principles does not involve solely "uncovering" any specific intent the drafters "embedded" in the convention.[278] What is at work here, rather, is a holistic form of reasoning in which text, context, and drafting history all provide the guideposts for a casuistic development of the law by domestic courts on an international level.[279]

B. Rejection of Textualism (II): Delegation of Lawmaking Power

1. The Delegation of Authority to Participate in International "Common Lawmaking"

The examination of the expansive interpretive techniques contemplated by the paradigm of CISG article 7 leads the analysis directly to the second, "substantive," dimension of the controversy between [page 753] textualists and dynamicists. At issue in this dimension is the appropriate role of courts in supplementing and adapting a statute where interpretation in the narrow sense reveals a substantive gap.[280]

Recall that textualists advocate a restrictive view on this score: Because federal courts have no independent lawmaking power, the textualist argument runs, a judge faced with a statutory gap lacks a constitutional foundation on which to craft a substantive solution.[281] Instead, she has no choice but to apply the value system of the preexisting legal order (often state law) to fill the gap in the federal legislation.[282] This view thus carries forward the traditional judicial hostility to the preemptive scope of statutes, in particular where they encroach on an area of well-developed common law.[283]

It is in this dimension that the endorsement of a code-like methodology in CISG article 7 has its most potent impact. Arguments based on internal general principles have been "developed to a high art" in civil law countries as a foundation for developing statutory law.[284] Indeed, this remains perhaps the principal difference between the civil law and common law approaches to statutory interpretation.[285] Consonant with the civil code methodology, the paradigm of CISG article 7 instructs interpreters to seek the values for the development of law on an international level, specifically in the "general principles" on which the relevant convention is based. The paradigm [page 754] thus directly rejects the new textualists' restrictive approach to the role of courts in filling substantive statutory gaps.[286]

This express instruction to courts to develop the law addresses the constitutional concerns of textualist and intentionalist commentators alike. Recall that the principal -- and highly controversial [287] -- argument of these commentators is that federal courts have no independent lawmaking authority.[288] The interpretive methodology of CISG article 7 dilutes these arguments entirely. It does so by delegating authority to federal courts to engage in what is, in effect, international common law-making on the basis of a convention's "general principles."[289] [page 755]

The significance of this delegation only increases when one considers that such "general principles" are nowhere expressly identified in the extant international conventions, and that many of those principles whose existence may be more evident ("good faith", "reasonableness," and the like) have neither a predetermined nor an immutable content in any event. CISG article 7 thus contemplates an active role for courts in seeking out and giving content to the substantive principles that will guide the future development of the law.

Properly appreciated, then, the "general principles" methodology reflects an instance in which "Congress has given the courts the power to develop substantive law."[290] In this respect, the paradigm of CISG article 7 can be likened to the Sherman Antitrust Act,[291] section 301(a) of the Labor Management Relations Act,[292] or (more controversially) Title VII of the Civil Rights Act of 1964.[293] In each of these [page 756] cases, examination of the statute at issue reveals that, implicitly or explicitly, Congress has delegated to the federal courts the power to engage in the kind of substantive lawmaking traditionally reserved to common law courts.

The authority delegated by CISG article 7 is, admittedly, more circumscribed than the power transferred by these domestic statutes. In contrast to these open-ended delegations,[294] the text, context, and drafting history of the new generation of international conventions will provide substantial guidance to courts on many issues within their scope. The important point is one of principle: Courts have authority on the basis of CISG article 7 to construct substantive solutions for gaps that emerge in a convention's regulatory scheme.[295] The significance of this authority will only increase as the corrosive effect of time reveals such gaps with greater frequency.[296]

CISG article 7 thus rejects the restrictive approach that is evident in much of the recent Supreme Court treaty jurisprudence. In contrast to the Court's approach in cases such as Chan, Zicherman, and Aérospatiale Nationate,[297] the interpretive paradigm of CISG article 7 empowers courts to construct substantive solutions to unresolved questions within the scope of an international commercial law convention. This alone is a noteworthy development. But as I will examine in greater detail below, the special significance of the methodology of CISG article 7 is that it contemplates the development of an [page 757] "international common law" through the cooperation of the formally independent national courts and arbitral tribunals.[298]

2. Contrast with the Uniform Commercial Code

The impact of the methodology contemplated by CISG article 7 is also illustrated by a contrast with what can best be described as the schizophrenic approach of the Uniform Commercial Code. At one location, the U.C.C. suggests that it adopts a civil code-like approach to the supplementation and elaboration of its provisions. Section 1-102 instructs that the U.C.C. "shall be liberally construed and applied to promote its underlying purposes and policies."[299] In language that should be reminiscent of the above discussion of civil code methodology, the comments to that section then proceed to propose something very much like an inductive method to fill gaps in the U.C.C.'s provisions:

Unfortunately, the very next section dilutes this apparent clarity of purpose. Contrary to section 1-102's suggested "internal" development, section 1-103 provides that supplementation of the U.C.C. should proceed on the basis of external sources of law, specifically the preexisting common law: "Unless displaced by the particular provisions of this Act, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake,[page 758] bankruptcy, or other validating or invalidating cause shall supplement its provisions."[301]

The comments to this section then affirmatively state that section 1-103 "indicates the continued applicability to commercial contracts of all supplemental bodies of law except insofar as they are explicitly displaced" by the U.C.C.[302]

This internal conflict on supplementation of the U.C.C. has produced no small amount of ambiguity. Some commentators have seized on the language of section 1-102 to argue that the U.C.C. adopts a "true code" methodology.[303] Others have emphasized that section 1-103 expressly endorses the continued vitality of the external common law principles, except where displaced by the "particular provisions" of the U.C.C.[304] Some have even argued that the equitable principles of the common law can "carve exceptions from or otherwise modify" the express provisions of the U.C.C.[305]

On the whole, courts have been open to a flexible approach to the interpretation and supplementation of the U.C.C., including [page 759] through the use of internal statutory analogies.[306] Nonetheless, cases continue to abound in which courts have looked to external sources to resolve questions clearly within the scope of the U.C.C.[307] The short of the matter is that a fair amount of confusion remains in reconciling the role of preexisting common law principles with the preemptive effect of the U.C.C. provisions.

The code methodology embraced in principle in CISG article 7 proceeds on a different course. As we have seen, that paradigm requires as a primary matter an internal search for the principles necessary to resolve interpretive inquiries within the scope of the relevant international convention.[308] A clear implication of this approach is a broader displacement of preexisting law than is suggested by U.C.C. section 1-103. In contrast with that national law unification effort, the paradigm of CISG article 7 reflects a fundamental policy goal to replace the prior legal order with a new foundation of shared international values, both legal and equitable.[309]

To be sure, CISG article 7(2), like U.C.C. section 1-103, permits resort to otherwise applicable law in some circumstances.[310] But, significantly, article 7(2) inverts the priority of its domestic counterpart. Under section 1-103, common law legal and equitable principles continue [page 760] to apply unless displaced by "particular" U.C.C. provisions. The paradigm of CISG article 7(2), in contrast, suffers a retreat to domestic law only after an active search for relevant values within the international convention itself.[311]

This more preemptive approach of CISG article 7 should not come as a surprise.[312] The variety of legal and cultural traditions governed by an international convention must be contrasted with the relative harmony in the common law of the various states of the United States.[313] Resort to the common law by state courts thus does not greatly imperil the goal of uniformity. Retreat to the preexisting national law, in contrast, may be fatal to an international law unification effort. The risks of destructive nonuniformity are apparent in the very statement that recourse to national law would mean application of legal standards of countries as diverse as the United States, Singapore, Jordan, and Ghana. It is precisely this need for detachment from the preexisting legal order(s) that animates the internal, "general principles" methodology of CISG article 7.

At its heart, the interpretive paradigm of CISG article 7 reflects a single unifying aspiration: to initiate a process for the development of a truly independent, international body of law. If a specific convention's express provisions are the corporal frame, then its "general principles" represent the moral values that will guide this new entity's growth to maturity. And to ensure the true independence of this process, the paradigm mandates that these values be fashioned free from the influence of the convention's numerous and disparate domestic parents. [page 761]

In these general principles, therefore, we find the foundation for the development of the law under an international commercial law convention. On the basis of the impressive body of interpretive case law that already exists under the U.N. Sales Convention, this section will demonstrate how the general principles fulfill that function. It will show that such principles can provide the conceptual tools to fill substantive gaps in a convention, coordinate the interaction of its constitutive parts, and even ameliorate the rigidity in its express provisions.

1. The Function of General Principles

The model for the aspirations of CISG article 7, as we have seen, was the adoption of comprehensive civil codes by the new nation-states of continental Europe in the nineteenth century.[314] It should thus not come as a surprise that much of the vitality of these civil codes has derived from an expansive interpretation of their foundation values. A common feature of civil codes is the so-called "general clause," a broad, abstract provision of an undefined moral or equitable content. After an early phase of extreme formalism,[315] modern civil law courts and scholars have seized on these general clauses as [page 762] expansive delegations of authority to develop the law within the scope of the civil codes.[316]

There is perhaps no better example of this than the standard provision in civil codes requiring the performance of legal obligations in "good faith," or, more broadly, in "equity."[317] These clauses do not have a defined target or content; they are, rather, "super control norm[s]" [318] that pervade all legal relationships within the scope of the civil codes. In the poetics of John Dawson, such general clauses "could be described as roving search lights, supplied with beams that could penetrate anywhere in private law."[319]

The courts of Germany have been at the forefront of the dynamic jurisprudence licensed by the moral force of general clauses. Seizing on such abstract clauses as a "good faith" requirement ("Treu und Glauben") [320] in legal relations and a nullification of contracts contrary to "good morals" ("die guten Sitten"), [321] together with principles derived [page 763] from inductive reasoning, modern German courts have developed a whole variety of legal institutions that are nowhere to be found in the civil code's more detailed provisions. For example, courts have in this manner restricted the misuse of legal rights, recognized a power to adjust legal relations to changed social or economic circumstances,[322] and created entirely new forms of liability.[323] Even the French judiciary (although in form continuing to adhere to a formalist approach) has developed in this manner vast areas of substantive law free from an express foundation in the Code civil.[324]

The drafters of CISG article 7 gained their insights from these developments. The gap-filling regime of CISG article 7(2) establishes a core aspiration that the unsettled questions in a convention should be resolved in conformity with the general principles on which it is based.[325] The only serious limitation on this goal is that the unresolved question must fall within the "matters governed by" the convention.[326] This limitation refers to issues that are otherwise logically [page 764] within a convention's regulated field of activity, but are nonetheless expressly excluded from its scope. The most common example of these so-called "gaps intra legem" is the exclusion of transactions with consumers.[327]

Apart from this (obvious) condition, the interpretive process founded on general principles is expansive indeed. "Unsettled questions" can arise in different substantive contexts and even at different times in the life of a convention.[328] In the substantive dimension, gaps may appear either when no express provision governs a particular issue (let us call these "true" gaps) or, if a relevant provision exists, when its precise scope and appropriate application are in doubt (let us refer to these as "hidden" gaps).[329] In the temporal dimension, unsettled questions may be present from a convention's very adoption,[page 765] or may first emerge in light of later developments in the field of regulated activity.[330]

General principles perform their most patent function in resolving true gaps. Behind such gaps lies a failure of the drafters either to foresee an issue at all or to achieve a consensus on its resolution (or, occasionally, an affirmative decision that the matter is best left to a casuistic development by the courts). Because the issue nonetheless falls within a convention's scope, a substantive rule must be constructed to fulfill the convention's regulatory scheme.

As an illustration of this function of general principles, consider the practically significant issue of the appropriate interest rate for amounts due under the U.N. Sales Convention. CISG article 78 provides a right to interest for any sum in arrears.[331] But no provision defines the rate at which the interest is to be calculated.[332] This issue is significant precisely because it arises in every disputed case, and because the wide substantive divergence in domestic solutions often elevates the interest rate issue to equal prominence with the underlying claim itself. Indeed, the interest rate issue alone has already generated well over one hundred reported decisions.[333]

Unfortunately, this "true gap" also provides an example of a failure of some interpreters to appreciate fully the unifying function of general principles. Finding no express "general principle" on the subject, a number of courts and arbitral tribunals have disregarded the Convention entirely; instead, they have retreated to the vagaries of conflict-of-law rules to identify domestic law solutions to the issue.[334] [page 766] The consequence has been an application of divergent substantive norms precisely in the manner the adoption of the Convention was designed to prevent.

Other adjudicators, in contrast, have appreciated the significance of the issue. These tribunals have seized upon the general principle of "full compensation" [335] as the basis for applying a uniform rule of the bank credit rate applicable at the injured party's place of business.[336] Such is the proper function of the interpretive paradigm of CISG article 7. By applying an internal solution, these interpreters have given effect to the potential of general principles to unify the law, even on matters left altogether unsettled in the Convention's express provisions.[337]

Not all instances of silence necessarily reflect a "true gap," however. Examination of related provisions in a convention in light of [page 767] their drafting history may reveal an affirmative decision by the drafters to reject a particular normative solution to a disputed issue. Consider, for example, the case of the effect of a written "confirmation" of contract negotiations under the U.N. Sales Convention. The well-established rule in one domestic legal system (Germany) holds that a merchant's failure to reply to such a confirmation amounts to assent to the contract terms set forth therein (whatever the actual results of the negotiations).[338] The Convention has no provision that addresses this issue. Examination of its drafting history nonetheless makes clear that the drafters expressly refused to grant effectiveness to such confirmations without some affirmative act indicating assent on the part of the recipient.[339]

The role of general principles in resolving "hidden" gaps presents a more delicate problem. Textualists might emphasize that the gap-filling regime of CISG article 7(2) only becomes relevant for questions that are "not expressly settled" in a convention.[340] From this, one might conclude that if a provision on its face provides an answer for a disputed issue, there is no relevant breach in the regulatory scheme. The convention's general principles thus never come into play.[page 768]

A more principled analysis reveals the flaws in this type of formalism. On a simple textual level, the "general principles" methodology defined by CISG article 7(2) broadly applies to all "questions" left unsettled by a convention's express provisions. Since the application of article 7(2) is not limited to unintentionally omitted substantive rules, an unresolved "question" can arise from uncertainty about the appropriate application of a general norm in a specific factual circumstance. Moreover, as we have seen, the dynamic approach embraced in the paradigm of CISG article 7 rejects the formalism of traditional common law statutory interpretation; instead, it instructs interpreters to probe not only the intent and purpose behind express provisions, but also their role in a convention's broader regulatory scheme.[341]

"General principles" can take on relevance, therefore, even where an express standard purports to provide a definitive answer to a disputed issue. Such "hidden" gaps can arise in three main situations. The first involves the preemptive scope of an express standard or set of standards. Suppose a provision defines specific rights or specific obligations in a given circumstance. In the absence of language of exclusivity, the hidden, "unsettled" question is whether the express standards preclude recognition of more expansive rights or obligations or different means by which to achieve the defined end.[342]

Consider, for example, the significant matter of contract formation under the U.N. Sales Convention.[343] The Convention's express [page 769] provisions adhere to the traditional notion that contractual obligations arise through a formal acceptance of a formal offer.[344] No mention is made of any other formation processes. What remains unclear is whether the defined traditional method precludes the recognition of contractual relations formed by other means.

This issue becomes particularly significant when the parties proceed to perform in the face of an obvious conflict between their standard business terms.[345] Some commentators fail to recognize a "gap" in this instance at all. In their view, the Convention leaves no option but to apply the traditional rigid notions of "mirror image" and "last shot" to impose a formal agreement on the parties.[346] Others suggest that the Convention entirely lacks guiding principles on this score. Because the matter is insoluble within the Convention, they argue, courts must retreat to nonuniform national law as the rule of decision.[347]

Both of these schools fail to see the full potential of the "general principles" methodology. Neither the Convention's express provisions nor the required analyses of their drafting history reveal a mandate [page 770] of exclusivity for the defined traditional method of formation.[348] It is precisely in such situations that the Convention's "general principles" fulfill their essential function.

I have argued elsewhere that the principle of party autonomy permits adjudicators to accommodate the reasonable expectations of both parties in the case of conflicting standard business terms.[349] In this way, the "general principles" methodology mitigates the rigidity of a formation scheme that would otherwise impose an arbitrary fiction of assent to the standard terms of one party in disregard of the other party's express intent to the contrary.[350] At the same time, the use of internal principles to resolve such a "hidden gap" precludes a destructive retreat to domestic law on an issue central to the fulfillment of the Convention's goal of international uniformity.

A "hidden" gap also may be present in a second, more direct form: conflict between two provisions on the same subject matter. This type of indeterminacy in legal standards results when the drafters either fail to recognize the significance of the conflict or are unable to agree on how to resolve it. The conflict between the price provisions of the U.N. Sales Convention illustrates this unfortunate phenomenon. In order for an offer to be valid, article 14(1) requires,[page 771] at a minimum, an "implicitly" determinable price;[351] article 55, however, provides a standard for determining the price for a "validly concluded" contract that does not "expressly or implicitly" include a provision for determining the price.[352]

"General principles" methodology also resolves this type of hidden flaw. The principles of party autonomy and reasonableness permit a court to recognize an enforceable contract, even without an implicitly determinable price, when it appears from the perspective of a reasonable person [353] that the parties intended to establish binding obligations.[354] In this way, general principles can operate to coordinate the interaction between a convention's express constituent elements.

The final principal form of a "hidden" gap is the most challenging. In this form, there is no doubt that an express provision purports to define the solution for the legal issue in dispute. The friction arises when the application of the standard in the specific factual circumstance runs contrary to broader notions of equity and fairness. Consider, for example, a statutory provision that requires a buyer of goods to give timely notice of a breach of contract.[355] Then suppose [page 772] that in a particular case notice of a breach is not timely forthcoming, but the seller either caused the delay herself or later induced detrimental reliance by the buyer through a failure to assert the defense of lack of notice. If mechanically applied, the notice provision would preclude recovery of damages. An unsettled question nonetheless exists regarding the extent to which equitable values can ameliorate the rigidity in the specific notice rule.

A recent opinion of an international court of commercial arbitration in Vienna illuminates how "general principles" can function as an equitable modulation of rights and obligations in such circumstances.[356] In that arbitration, a buyer's notice of defects in the goods failed to comply with an express time requirement in the parties' contract.[357] In subsequent dealings between the parties, however, the seller for a significant period did not assert his contractual rights.[358] Finding no express provision on the subject, the arbitral tribunal correctly probed the general principles of the U.N. Sales Convention for guidance. The tribunal concluded that the general notions of estopel and "good faith" implicit in the Convention's provisions precluded the seller from asserting even the rights expressly defined in the parties' contract.[359]

Similar concepts operate in many legal systems.[360] But it is precisely [page 773] because of the variety of domestic approaches [361] that the general principles methodology holds a particular significance for an international law unification effort. By rejecting a restrictive textualist approach and sanctioning an active use of equitable principles, CISG article 7 empowers adjudicators to do overtly what they are likely to do covertly anyway. In the international context, the almost unavoidable consequence of such a covert application of equitable values is a reliance on potentially idiosyncratic domestic notions of fairness and justice.

The dynamic jurisprudence advocated here attacks this hidden strain of homesickness by promoting transparency. That is, it licenses an open articulation and elaboration of equitable principles on an internal, and thus an international, level. Consonant with the primary goal of international uniformity, this dynamic jurisprudence will thus initiate the necessary casuistic process of consensus formation on the appropriate circumstances for the application of equitable principles.[362] As a result, the implicit adoption of the internal development methodology of the civil codes will secure in a particular way the long-term success of an international law unification effort.[363] [page 774]

Admittedly, the extant international commercial law conventions may not reflect the level of comprehensiveness and systematization of a civil code.[364] The implicit adoption of code methodology in the paradigm of CISG article 7 nonetheless requires adjudicators to undertake an active search for applicable general principles to fill the inevitable gaps in a convention's express provisions. To be sure, CISG article 7 permits a retreat to national law where this active search fails to yield relevant general principles. As I will explain in greater detail in Part III.D, however, the mandatory deference to the needs of international uniformity will mean that this route of escape to domestic law should be a narrow one indeed.[365]

2. Dynamic Interpretation in the International Context

When examined carefully, the expansive interpretive function of "general principles" advocated above creates a potential tension in the paradigm of CISG article 7. As we have seen, that paradigm contemplates an interpretive process founded on both textual analysis and an active probe for intent and meaning in a convention's drafting history.[366] In Part III.C.1, however, I argued that general principles can become relevant in interpretive inquiries even when a provision purports to define the rights or obligations in dispute (that is, in the case of a "hidden" gap).

This potential for a disconnect between an express general norm and its application in a particular factual circumstance will grow with the passage of time. Even comprehensive efforts such as the U.N. Sales Convention will show increasing signs of age under the effect of changes in the regulated field of activity. The unresolved tension, therefore, is the extent to which the actual expectations of the drafters operate to constrain the future development of the law under an international convention.

Recall that this tension is among the principal subjects of dispute in the debate over statutory interpretation in the United States. True formalists argue that the substantive content of a statute -- as determined [page 775] by its text or the original legislative intent, depending on the particular strain of formalism [367] -- is fixed as of the date of enactment.[368] If a statute becomes outdated, it is argued, the responsibility for needed corrections falls to the legislature.[369]

In contrast, proponents of dynamic statutory interpretation argue that "interpretation" should also include consideration of changes in societal values and in a statute's legal context subsequent to its adoption. The metaphor for this view, once again, is a nautical one in which the legislature "builds a ship and charts its initial course," but the "current course" is set primarily by judicial interpreters -- "the crew on board" a statutory vessel.[370]

The paradigm of CISG article 7, in my view, embraces this latter, dynamic approach to interpretation. The animating philosophy of the "general principles" methodology, as we have seen in Part III.C.1, is that interpreters must play an active role in filling substantive gaps and ameliorating the rigidity in an international commercial law convention.

For three principal reasons, the course of this dynamic jurisprudence is not rigidly anchored to the specific expectations of the original designers. The first reason flows from the very nature of "general principles." Notions such as "reasonableness," "cooperation," and good faith" mean little in isolation. They take on substantive meaning only through a consensus in the relevant interpretive community on the appropriate context for their application. Even if it were possible to reconstruct the drafters' original suppositions, there is little to suggest that the drafters intended the "meaning" of "good faith" and its conceptual cousins to be frozen as of their adoption.

The content of these concepts is fluid and mutable, their meaning subject to change with evolution in the consensus. Nevertheless, CISG article 7 instructs adjudicators to employ such principles to resolve [page 776] "unsettled" questions that emerge in the future. As the aging of a convention reveals such questions with greater frequency, these fluid values will increase in prominence. It would be pure fiction to suggest that their future content could be controlled by the "original intent" of the drafters.

The second reason emerges from the implicit endorsement of a code-like interpretive methodology in CISG article 7. We have seen that civil law courts have developed the codes' general clauses into "super control norms" far beyond anything contemplated by their drafters.[371] These norms have operated to give the codes the flexibility necessary to adapt to circumstances unforeseen at the time of their adoption. The experiences of the various codes have differed, of course, and nothing requires that an international convention steer the same course as any one of them. The "general principles" methodology nonetheless makes clear that the flexible navigational philosophy of the civil codes animates the interpretive paradigm of CISG article 7 as well.

Finally, a dynamic interpretation of an international convention is, perhaps paradoxically, also compelled by the needs of international uniformity. Without a means for adaptation, the inevitable social and technological changes in the relevant field of commerce will make any formal unification of legal standards fleeting. In addition, legal and practical obstacles effectively make a formal amendment of an international commercial law convention impossible.[372]

To paraphrase Judge Friendly's coincidental use of a similar nautical metaphor thirty years ago, therefore, only an active judicial interpretation of a convention can "keep the ship afloat," because there is little hope "that (legislative) rescue will arrive."[373] The long-term consequence of a rigid formalist approach, in contrast, would be an inevitable increase in reliance on nonuniform national legal concepts [page 777] to resolve the increasing indeterminacy in a convention's provisions. Such a result would run directly contrary to the primary goal of establishing and maintaining uniformity in the relevant field of international private law.[374]

The initial identification of the general principles themselves, to be sure, must proceed on the basis of the values reflected in the relevant convention. The interpretive paradigm of CISG article 7 speaks of the principles on which a particular convention is "based." Such considerations surely inspired the comment of Professor John Honnold that the recognition of a particular general principle must be "moored to premises that underlie specific provisions of the [U.N. Sales] Convention."[375]

One should not read too much into this observation, however. The "internal" development methodology described in CISG article 7 does not imply that all general principles are "embedded" by the drafters "in" each convention in some collective, if unconscious, process. Instead, the recognition of a particular general principle requires the