Courts, Tribunals, and Legal Unification-The Agency Problem

Any project to unify some part of the law across jurisdictions requires an adjudicatory body to apply the unified law to transactions and transactors. The available choices include domestic courts (which in the United States entails a further choice between federal and state courts), private arbitration, ad hoc arbitration under the auspices of an international organization (such as that conducted by the International Center for the Settlement of Investment Disputes), and a permanent international tribunal (such as the European Court of justice, the Dispute Settlement Body of the World Trade Organization, the International Court of Justice, or the new International Criminal Court). Most efforts to unify law take it on faith that the application phase will not present any significant problems, assuming that adjudicatory bodies will honor the commands of the legislator and, where discretion exists, will implement the underlying purpose of the unified legislation in a coherent and transparent fashion. I argue, to the contrary, that the application phase presents severe difficulties that will frustrate a wide range of unification projects. In particular, any legal unification project that has substantial redistributive dimensions will face significant obstacles, whatever the adjudicatory body chosen.1 First I discuss the roles of adjudicatory bodies in promoting the unification of law. Then I clarify the redistributive dimensions of unification projects. Working IMAGE FORMULA3within the familiar framework of game theory as applied to international relations, I distinguish between the coordination and defection problems that underlie most international interactions. I argue that adjudicatory bodies have the ability to generate solutions to some coordination problems, but face major obstacles when seeking to implement stable solutions to others, and to many defection problems. The difficulties vary depending on the types of adjudicatory bodies involved, but each type has its own drawbacks. I offer examples from a range of current unification projectscarriage of goods, antitrust, and environmental law-to illustrate how application problems can frustrate unification. 1. COURTS, TRIBUNALS, AND UNIFICATION Translating law-on-the-books into law-in-practice requires a mechanism to implement the prescribed rules. Certainly some rule internalization takes place without any need for enforcement, but doubts over the rules' meanings and the occurrence of operative facts usually arise and demand attention. No international legal unification project has avoided the need to rely on some kind of adjudication, whether it employs a system especially designed for the project or commandeers a preexisting system such as national courts. The responsibilities, and therefore the scope of the authority, of adjudicatory bodies vary. At a minimum, some body must resolve disputes over the application of accepted rules to contested facts. Certain kinds of international commercial arbitration do only this. The typical arbitration tribunal provides a definitive resolution of the dispute before it, but does not make its decision available to the general public. At a maximum, the dispute resolving body may have the responsibility not only to apply the rules, but to create them. Admiralty and antitrust law in the United States are cases in point. The federal courts have regarded themselves as possessing a mandate to develop a common law governing these subjects, a license they have exercised vigorously. Adjudicatory bodies normally operate in a range between these two extremes, generating different amounts of additional information about the law they apply as well as determining the outcomes of specific disputes. When seeking to achieve some coherence in the laws of multiple jurisdictions, the reformer must consider whether the project's ambition includes unified application, as opposed to unified expression. …