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TRANSNATIONAL COMMERCIAL LAW
Texts, Cases and Materials
SECOND EDITION
 TRANSNATIONAL
COMMERCIAL LAW
Texts, Cases and Materials

SECOND EDITION

Edited by
Roy Goode
Emeritus Professor of Law, University of Oxford, and
Emeritus Fellow of St. John’s College, Oxford

Herbert Kronke
Professor of Law and Director of the Institute for Comparative Law, Conflict of Laws
and International Business Law at Heidelberg University

Ewan McKendrick
Registrar of the University of Oxford, Professor of English Private Law and Fellow
of Lady Margaret Hall, Oxford

3
 3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© R Goode, H Kronke, E McKendrick 2015
The moral rights of the authors have been asserted
First Edition published in 2007
Second Edition published in 2015
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
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Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
 PREFACE

It is some 20 years since the subject of transnational commercial law was first introduced
into the Oxford University BCL/MJur programme. It proved popular with postgraduate
students and since that time law schools around the world have taken the subject into their
curricula, with variations reflecting local interests and conditions.
This book is designed for teachers of transnational commercial law and their students as well
as for others interested in the subject. The first edition was experimental but rapidly became
adopted by those law schools teaching the subject. Further impetus for other law schools to
include transnational commercial law in their curricula was provided by the establishment
of what has now become an annual conference for transnational commercial law teachers,
with students of the host institution also participating. The first in the series was held at
Oxford University in 2009, followed by conferences at the University of Heidelberg, the
International Hellenic University and the Universities of Washington, Kyushu, and Eötvös
Loránd. The seventh annual conference will take place at the University of Western Australia
in November 2015.
In the eight years since the first edition of this book was published there have been a great
many developments. The International Chamber of Commerce has published new revi-
sions of the Uniform Customs and Practice for Documentary Credits (UCP 600), the
Uniform Rules for Demand Guarantees (URDG 758), Incoterms (2010), and the ICC
Rules of Arbitration. UNIDROIT has also been very active during the past eight years.
Under the auspices of UNIDROIT and the Organisation Intergouvernmentale Pour Les
Transports Internationaux Ferroviaires (OTIF) the Luxembourg Protocol to the Cape Town
Convention on international interests in mobile equipment was adopted in 2007, while the
Space Protocol to the Convention was approved in 2012. Also adopted were the UNIDROIT
Convention on substantive rules for intermediated securities, the UNIDROIT Model Law
on leasing, the UNIDROIT Principles on the operation of netting provisions, and a revised
edition of the UNIDROIT Principles of International Commercial Contracts. At regional
level an EC regulation on the service of judicial and extrajudicial documents was adopted, as
well as other instruments in the area of procedure, while this year there have been major revi-
sions of the European Insolvency Regulation. All of these developments have been reflected
in this new edition.
But that is not all. It was felt that there were certain major fields not covered in the first edi-
tion which should be included in the second. Accordingly the following three new chapters
have been provided by the specialist contributors named below:
Regional Harmonization Professor Anna Veneziano, who also revised the
chapter on the international harmonization of
commercial law
Carriage of Goods by Sea Professor Caslav Pejovic
The Relationship between International Professor Jeffrey Wool
Conventions and National Law

v
 Preface

In preparing the last-mentioned chapter Professor Wool has drawn freely on the following arti-
cles: Jeffrey Wool, ‘Compliance with Transnational Commercial Law Treaties: A Framework
as Applied to the Cape Town Convention’ (2014) Cape Town Convention Journal 5 and
Jeffrey Wool and Andrej Jonovic, ‘The Relationship Between Transnational Commercial
Law Treaties and National Law—A Framework as Applied to the Cape Town Convention’
(2013) Cape Town Convention Journal 65.
It would not be possible to include all the fields covered by this new edition in a single
course. What we have sought to do is to provide law teachers with a range of choices, leaving
it to each teacher to decide which subjects are of particular interest and to make a selection
accordingly. Again, there is no single approach to the teaching of transnational commercial
law. Each teacher will wish to fashion his or her own course, and while we have included
at the end of each chapter a set of questions for seminar discussion, together with recom-
mended further reading, these can be adapted or replaced as necessary.
In the preparation of this new edition we have incurred debts to a number of people. We
should like in particular to thank Professor Alan Boyle, of the University of Edinburgh,
for reading the chapter on international law and making a number of valuable comments;
Professor Stefan Vogenauer, who is about to hand over as Director of the Institute of
European and Comparative Law at the University of Oxford to become Director of the Max
Planck Institute for European Legal History, and who made several helpful observations on
the chapter on comparative law; Associate Professor Kristin van Zwieten of the University
of Oxford, who performed a similar service in relation to those parts of the chapter on
cross-border insolvency dealing with the recast European Regulation, approved only this
year; Thomas Traschler, an Oxford DPhil student, for his assistance in updating the reading
lists; Professor Marcel Peeters of the University of Amsterdam for his illuminating observa-
tions on the new chapter on transactions in securities, and Patricia de Seume, formerly part
of the UNIDROIT editorial team engaged on the Uniform Law Review, for linguistic assis-
tance with the same chapter; Simon Mills, for providing advance sight of the definition of
factoring in the forthcoming fifth edition of Salinger on Factoring; and Kyle Brown, Project
Manager of the Cape Town Convention Academic Project at the University of Washington
School of Law, for his assistance in connection with the chapter on the relationship between
international conventions and national law.
Finally, we are greatly indebted to the team at Oxford University Press for all their hard work
in helping to accelerate the publication of this new edition. We should like in particular to
thank Rachel Mullaly, Senior Commissioning Editor; Eleanor Reedy, the former Assistant
Commissioning Editor; Emma Taylor, Editorial Assistant; Kizzy Taylor-Richelieu, Senior
Production Editor; Cheryl Prophett, Copy Editor; Kim Harris, the indexer; Angela Foskett,
who prepared the tables; Ian Pickett, the proof-reader; and Louise Murgatroyd, Marketing
Executive, Commercial Law.
We hope that we have succeeded in some degree in conveying not only the essentials of trans-
national commercial law but also the sheer intellectual excitement of studying and teaching
this complex subject.
Roy Goode
Herbert Kronke
Ewan McKendrick
3 August 2015
vi
 CONTENTS—SUMMARY

Preface v
Table of Cases xxvii
Table of Statutes, Constitutional Provisions and Statutory Instruments xxxiii
Table of Codes xxxv
Table of Conventions, Protocols and Model Laws xxxvii
Table of EC/EU Treaties and Legislation xlix
Table of Uniform Rules, Uniform Trade Terms, Restatements and Model Forms liii
Table of Other Instruments lix
Table of Abbreviations lx
Introduction lxv
Introductory Reading lxvii

I╇ GENERAL PRINCIPLES

1. The Nature, History, and Sources of Commercial Law€ 3
2. The Conflict of Laws in Commercial Transactions€ 49
3. International Law as it Affects Private Law Conventions Governing
Cross-Border Commercial Transactions€ 77
4. Comparative Law and its Relevance to Transnational Commercial Law€ 115
5. The Harmonization of Commercial Law:€Instruments and Institutions€ 163
6. Harmonization and Regionalization€ 181
7. The Harmonization Process€ 191

II╇ A VIEW THROUGH ILLUSTRATIVE CONTRACTS

AND HARMONIZING INSTRUMENTS
8. International Sales and the Vienna Sales Convention€ 215
9. Carriage of Goods by Sea€ 269
10. Agency and Distribution€ 293
11. International Bank Payment Undertakings€ 321
12. Financial Leasing:€The 1988 UNIDROIT Convention and
the UNIDROIT Model Law€ 355
13. Receivables Financing:€The UNIDROIT Convention on
International Factoring and the United Nations Convention
on the Assignment of Receivables in International Trade€ 369
14. International Interests in Mobile Equipment and the Cape Town
Convention and Aircraft Protocol:€Adding a New Dimension
to International Lawmaking€ 393
15. Transactions in Securities€ 425

vii
 Contents—Summary

III HARMONIZATION OF GENERAL CONTRACT LAW

16. Restatements of Contract Law  461

IV TRANSNATIONAL INSOLVENCY
17. Harmonization and Co-Operation in Cross-Border Insolvency  493

V INTERNATIONAL DISPUTE RESOLUTION

18. International Civil Procedure  519
19. International Commercial Arbitration  555

VI RECURRENT ISSUES OF HARMONIZATION

20. The Sphere of Application of a Convention; the Role of the Conflict
of Laws; Determining the Connecting Factor; Co-existence
and Conflicts of Instruments  609
21. Uniformity in Transnational Commercial Law  621
22. The Relationship between Transnational Commercial Law Treaties
and National Law  643

Index 669

viii
 CONTENTS

Preface v
Table of Cases xxvii
Table of Statutes, Constitutional Provisions and Statutory Instruments xxxiii
Table of Codes xxxv
Table of Conventions, Protocols and Model Laws xxxvii
Table of EC/EU Treaties and Legislation xlix
Table of Uniform Rules, Uniform Trade Terms, Restatements and Model Forms liii
Table of Other Instruments lix
Table of Abbreviations lx
Introduction lxv
Introductory Reading lxvii

I╇ GENERAL PRINCIPLES

1. The Nature, History, and Sources of Commercial€Law
A. The Nature of Commercial Law 1.01
Three definitions 1.01
Commercial law 1.02
Transnational commercial law 1.03
Lex mercatoria 1.04
What drives commercial law? 1.05
A medieval example 1.06
A later example 1.07
A modern example 1.08
Commercial law and civil law 1.11
The transition from planned economies to market economies 1.15
B. The History of Commercial Law 1.16
The early and medieval codes 1.16
Characteristics of the medieval law merchant 1.21
The nationalization of commercial law 1.25
The return to internationalism and the growth
of transnational commercial law 1.26
The perceived benefits of harmonization 1.27
The growth of regionalism 1.34
C. The Sources of National Commercial Law 1.35
Contract 1.36
Usage 1.37
Suppletive rules of common law 1.38
Domestic legislation 1.39

ix
 Contents

D. The Nature and Sources of Transnational Commercial Law 1.40

Is there an autonomous transnational commercial law? 1.41
The lex mercatoria and the conflict of laws 1.42
External validation by a court or tribunal 1.48
Determination in accordance with law 1.50
The sources of transnational commercial law 1.55
Lex mercatoria 1.56
International and regional instruments 1.57
Conscious or unconscious judicial or legislative parallelism 1.58
Contractually incorporated rules and trade terms promulgated
by international organizations 1.59
Standard-term contracts 1.60
Restatements of scholars 1.61
General principles of international law 1.62
E. Lex Mercatoria 1.63
The sources of the lex mercatoria 1.63
The normative force of usage 1.64
International conventions as evidence of usage 1.68
General principles of law 1.69
Questions
Further reading

2. The Conflict of Laws in Commercial Transactions

A. The Nature of Conflict of Laws 2.01
Definition 2.01
The structure of a conflicts rule (‘meta law’) 2.04
B. The Role of Conflict of Laws in International Commercial Law 2.07
Prior to the advent of transnational commercial law 2.07
A new era: The Warsaw Convention of 1929 2.10
C. Selected Issues of General Conflict of Laws Theory 2.14
Jurisdiction 2.14
Rules v ‘approaches’ 2.15
Connecting factors of particular relevance in commercial law 2.22
Contracts 2.23
Property 2.38
Other important connecting factors 2.43
Characterization 2.46
Public policy (ordre public) 2.49
Mandatory rules in the law of contracts 2.52
Neo-statutist theory and market regulation 2.58
Renvoi 2.59
D. The Future: Will We Continue to Need Conflict of Laws? 2.62
Questions
Further reading

x
 Contents

3. International Law as it Affects Private Law Conventions Governing

Cross-Border Commercial Transactions
A. Nature and Sources 3.01
International law as law 3.04
Relationship between international law and soft law 3.06
Relationship between international law and domestic law 3.07
Implementation of treaties 3.10
Applications of international law 3.11
Influences on international law 3.12
Impact of sophisticated and specialized international law-making organizations 3.12
Impact of increased complexity of the international law-making process 3.13
Impact of trade and development 3.14
Impact of the enhanced role of the individual under international law 3.15
International law and the European Union 3.16
The sources of international law 3.20
Customary international law 3.22
Treaty law 3.27
B. The Typical Structure of Private Law Conventions 3.32
Preamble 3.33
Body of the Convention 3.36
Sphere of application and general provisions 3.37
Substantive rules 3.39
Public law provisions in a private law convention 3.40
Final clauses 3.41
C. Interpretation of Conventions 3.47
Interpretation under the Vienna Convention on the Law of Treaties, 1969 3.48
An illustration: CISG 3.53
Treatment of errors in a convention 3.56
A procedure for the correction of errors 3.57
Uncorrected errors and interpretation 3.58
D. Enforcement of Private Conventional Rights Against States 3.61
The consequences of internationally wrongful acts and the concept
of diplomatic protection 3.61
E. Private Law Conventions and Public Law 3.67
F. Reservations and Declarations 3.69
G. Withdrawal from a Treaty 3.70
H. Conflicts Between Conventions 3.72
Questions
Further reading

4. Comparative Law and its Relevance to Transnational Commercial Law

A. Nature of Comparative Law and a Brief History 4.01
Nature of comparative law 4.01
A brief history 4.04

xi
 Contents

B. Classification of Legal Systems 4.07

The traditional classification by family 4.07
An issue-based classification system 4.11
Civil law and common law 4.12
Mixed jurisdictions 4.17
Islamic law 4.18
C. Aims of Comparative Law 4.19
Educational aims of comparative law 4.20
Practical uses of comparative law 4.24
Enhancement of understanding of one’s own law 4.27
Updating of national legal jurisprudence 4.29
Aid to the drafting of new legislation 4.32
Guide to the policy implications of a new development
in national jurisprudence 4.33
Development of transnational commercial law 4.34
Refinement of the conflict of laws 4.41
Commercial law dispute resolution 4.42
Consistency of interpretation of uniform laws 4.43
Consistency of determination of international trade usage 4.48
Role of comparative law in transnational practice 4.49
Cultural aims of comparative law 4.50
D. Methodology 4.51
The functional approach to comparative law 4.51
Common solutions or best solutions? 4.55
Working methods in international harmonization projects 4.57
E. Problems 4.60
The pitfalls of comparison 4.60
The knowledge problem 4.60
Language 4.63
Legal transplants and comparative law 4.64
Similarities and differences 4.64
Transplantation not attributable to comparative study 4.66
The effectiveness of legal transplants 4.71
How necessary is a knowledge of comparative law to the development
and practical application of transnational commercial law? 4.73
Questions
Further reading

5. The Harmonization of Commercial Law:€Instruments and Institutions

A. Introduction 5.01
The reasons for harmonization 5.01
Substantive law harmonization and harmonization of conflicts rules 5.06
B. The Instruments of International Harmonization 5.07
International instruments intended to become legally binding 5.07
Facultative instruments 5.08

xii
 Contents

Contractually incorporated non-binding rules promulgated

by international organizations 5.11
Guides 5.15
The dialogue of sources 5.16
C. The Principal Institutions in the Harmonization of Commercial Law 5.17
General 5.17
The Hague Conference on Private International Law 5.19
UNIDROIT 5.22
UNCITRAL 5.28
The International Chamber of Commerce (ICC) 5.32
The role of international and regional professional and industry organizations 5.33
Coordination of legislative activities 5.34
Questions
Further reading

6. Harmonization and Regionalization

A. Introduction 6.01
The reasons for regional harmonization 6.01
Risks and challenges of regional harmonization 6.03
B. Instruments of Regional Harmonization 6.05
Legislative instruments and model laws 6.05
The specificity of EU normative production 6.10
Regional non-binding principles 6.11
C. Global and Regional Harmonization: Conflicts and Coordination 6.12
Conflicts between global and regional instruments 6.12
Coordination through recognition of regional specificities 6.15
Regional organizations as actors in international negotiations 6.17
Questions
Further reading

7. The Harmonization Process

A. Introduction 7.01
B. Stages in a Harmonization Project 7.05
A bright idea 7.05
Establishing the existence of a problem and support for its solution 7.06
Economic benefit analysis 7.08
Is the agency the most suitable for the project? 7.09
Survey of the current legal environment 7.11
Approval of the project by the relevant organ of the agency 7.14
Establishment of a study or working group and sub-groups 7.15
What type of instrument? 7.16
Distribution of drafts and consideration at meetings 7.17
Approval of the text 7.18
Committee of governmental experts 7.19

xiii
 Contents

Diplomatic Conference/Session 7.20

Explanatory Report/Official Commentary 7.26
Promotion of the instrument 7.27
C. Problems of Harmonization 7.28
Over-ambition 7.31
Tensions arising in the preparation of international conventions 7.34
Technical problems 7.36
Differences in legal concepts 7.37
Drafting and language 7.38
Interpreters 7.39
Organizational problems 7.40
D. Harmonization and Regionalization 7.44
Questions
Further reading

II A VIEW THROUGH ILLUSTRATIVE CONTRACTS

AND HARMONIZING INSTRUMENTS
8. International Sales and the Vienna Sales Convention
A. General Introduction 8.01
B. The Genesis of the Convention 8.02
Rabel and UNIDROIT 8.03
Assessment of the Hague Conventions 8.04
The origin of the CISG 8.07
Entry into force 8.08
C. The Sphere of Application 8.09
Types of contract covered 8.11
The internationality requirement 8.12
The connecting factor 8.14
Both parties in Contracting States 8.15
Rules of private international law leading to law of Contracting State 8.16
Exclusions from the Convention 8.20
Contracting out of the Convention 8.22
D. Interpretative Rules and the Role of Good Faith 8.26
Autonomous interpretation 8.28
The problem of uniformity 8.29
Access to case law and commentaries on the CISG 8.34
The problem of good faith 8.36
Three views on good faith 8.37
First view: no positive duty 8.38
Second view: Article 7(1) imposes positive duty of good faith 8.41
Third view: good faith as a general principle 8.45
E. Usages 8.56
F. Formation 8.60

xiv
 Contents

G. The Rights and Duties of the Parties 8.62

General provisions 8.63
The obligations of the seller and the remedies of the buyer 8.65
The obligations of the buyer and the remedies of the seller 8.67
Fundamental breach 8.68
‘Breach’ 8.71
‘Fundamental’ 8.72
H. Interest 8.78
Does the Convention govern determination of the rate of interest? 8.82
What is the general principle? 8.83
I. Force Majeure and Exemptions for Non-Performance 8.88
J. Risk 8.92
K. Conclusion 8.95
Questions
Further reading

9. Carriage of Goods By Sea

A. Introduction 9.01
The role of carriage in international trade 9.01
‘Conflict of interests’ 9.04
B. Development of Legal Regulation of Carriage by Sea 9.08
Roman law 9.08
Lex mercatoria 9.11
Nineteenth century 9.14
The Harter Act 9.20
C. Unification of the Law Regulating Carriage by Sea 9.22
The Hague Rules, 1924 9.22
The Hague-Visby Rules, 1968 9.28
The Hamburg Rules, 1978 9.31
The Rotterdam Rules, 2008 9.34
D. Types of Carriage and Transport Documents 9.37
Liner and tramp carriage 9.37
Charter parties 9.40
E. Bills of Lading 9.43
Definition and functions 9.43
Bill of lading as evidence of the contract 9.44
Identity of the carrier 9.47
Bill of lading as a receipt 9.51
Reservations 9.54
Reservations referring to the nature, marks, number, and weight 9.57
Notations referring to the condition 9.59
‘Said to contain’ clauses 9.62
Letters of indemnity 9.66
Bill of lading as a document of title 9.68

xv
 Contents

Transfer of possession 9.69

Transfer of property 9.71
Stoppage in transit and the right of control 9.73
Delivery of the goods against a bill of lading 9.75
F. Other Transport Documents 9.80
Straight bill of lading 9.80
Sea waybill 9.85
Electronic transport documents 9.87
Questions
Further reading

10. Agency and Distribution

A. Introduction 10.01
B. The First Company Directive (EEC) 10.06
C. The EEC Directive on Commercial Agents 10.09
Introduction 10.09
Scope of application 10.11
Rights and obligations 10.12
D. The UNIDROIT Convention on Agency in the International
Sale of Goods 10.16
The relationship with CISG 10.19
Sphere of application 10.20
The legal effect of the acts of the agent 10.21
Termination of the agent’s authority 10.23
Assessment 10.24
E. The UNIDROIT Principles of International Commercial Contracts
and the Principles of European Contract Law 10.27
F. Franchising 10.29
Introduction 10.29
UNIDROIT Model Franchise Disclosure Law 10.31
Scope of application 10.32
Delivery of disclosure document and information to be disclosed 10.33
Remedies 10.34
No waivers 10.35
Questions
Further reading

11. International Bank Payment Undertakings

A. Introduction 11.01
The role of banks in financing international trade 11.01
Some terminological problems 11.07
The different interests 11.08
Rules of banking practice and the International Chamber of Commerce 11.09
Why bank payment undertakings are interesting 11.10
Documentary credits: the contract of sale as the central contract 11.13
xvi
 Contents

B. Documentary Credits: the UCP and the eUCP 11.14

Classification of credits by payment method 11.17
Principles of documentary credits law 11.18
Autonomy of the credit 11.19
A documentary credit takes effect upon issue 11.20
Documentary character of the credit 11.21
Banks are concerned only with the apparent good order of the documents 11.22
Banks deal as principals, not as agents 11.23
The terms of a credit must be strictly complied with 11.24
A credit is not transferable unless expressly designated as such 11.25
The eUCP 11.26
C. Demand Guarantees: the URDG 11.29
Purpose of the URDG 11.29
Nature of a demand guarantee 11.31
Distinguished from letter of credit 11.31
Distinguished from suretyship guarantee 11.33
International character of demand guarantees 11.34
Guarantee structures 11.35
Advantages 11.36
Fundamental principles 11.37
Irrevocability and coming into effect 11.39
The demand for payment 11.40
Extend or pay demands 11.42
Amendments 11.43
Force majeure 11.44
Termination of the guarantee 11.45
Governing law and jurisdiction 11.46
D. The International Standby Practices (ISP98) 11.48
E. The United Nations Convention on Independent Guarantees
and Stand-by Letters of Credit 11.53
Features of the UN Convention 11.53
Relationship between the Convention and the URDG 11.55
F. ICC Uniform Rules for Contract Bonds 11.56
Default 11.58
Governing law and jurisdiction 11.59
Questions
Further reading

12. Financial Leasing:€the 1988 UNIDROIT Convention and

the UNIDROIT Model€Law
A. Introduction 12.01
B. Background to the Leasing Convention 12.02
C. Sphere of application 12.07
The transaction is a financial leasing transaction 12.08
The equipment is not to be used primarily for the lessee’s personal,
family, or household purposes 12.11
xvii
 Contents

The lessor and the lessee have their places of business in different States 12.12
Those States and the State in which the supplier has its place of business
are Contracting States or both the supply agreement and the leasing
agreement are governed by the law of a Contracting State 12.13
D. Exclusion of Convention 12.14
E. Purposes of the Convention 12.15
Removal of responsibility from the lessor to the supplier 12.16
Conferment of rights against the supplier 12.19
Exculpation of lessor from liability under the leasing agreement 12.21
Liability to third parties 12.23
Protection against lessee’s insolvency 12.24
Default remedies of lessor 12.26
F. Evaluation of the Leasing Convention 12.27
G. Leasing under the Mobile Equipment Convention and Protocol 12.28
H. The UNIDROIT Model Law 12.29
Questions
Further reading

13. Receivables Financing:€the UNIDROIT Convention on International

Factoring and the United Nations Convention on the Assignment
of Receivables in International€Trade
A. Introduction 13.01
The nature of receivables financing 13.01
The need for an international regime 13.03
B. Some Facts about Factoring 13.05
What is factoring? 13.05
C. The UNIDROIT Convention on International Factoring 13.11
Genesis of the Convention 13.11
Sphere of application 13.13
Sphere of application ratione materiae 13.14
Internationality 13.16
Connecting factor 13.17
Derogation 13.18
Interpretation 13.19
Removal of barriers to acquisition of receivables 13.21
Other provisions 13.26
Evaluation 13.28
D. The United Nations Convention on the Assignment of Receivables
in International Trade 13.29
Nature of Convention: substantive rules and conflicts rules 13.30
Sphere of application 13.31
Effectiveness of assignments 13.36
Relations between assignor and assignee 13.37
Debtor provisions 13.38
Priorities 13.39
xviii
 Contents

Conflict of laws rules 13.39

Substantive law rules 13.41
Questions
Further reading

14. International Interests in Mobile Equipment and the Cape Town

Convention and Aircraft Protocol: Adding a New Dimension
to International Lawmaking
A. Background and Key Features 14.01
Underlying principles 14.12
Five key features of the Convention 14.14
Key features of the Protocols 14.16
B. The Two-Instrument Approach 14.17
C. Sphere of Application 14.21
When the Convention applies 14.21
Principal matters covered by the Convention 14.22
Definitions 14.24
Interpretation 14.25
Relationship between the Convention and national law 14.26
D. The Concept of the International Interest 14.27
The international interest defined 14.27
The nature of the international interest 14.28
Formalities 14.31
The connecting factor 14.32
E. Default Remedies 14.33
F. The International Registry and the Registration System 14.37
The International Registry 14.37
A fully automated system 14.39
What is registrable? 14.40
Searches and search certificates 14.42
Duration of registration 14.43
Liability of the Registrar 14.44
G. Jurisdiction 14.45
H. Priorities 14.46
The approach to priority rules 14.46
Assignments 14.48
I. Insolvency 14.49
J. The Declaration System 14.50
K. The Cape Town Convention and the European Union 14.51
L. Monitoring Implementation 14.52
M. Evaluation of the Convention and Aircraft Protocol 14.53
Questions
Further reading

xix
 Contents

15. Transactions in Securities

A. Introduction 15.01
The intermediated system 15.03
The movement for law reform 15.08
B. Geneva Securities Convention: Core Components of
the Intermediated System 15.18
Introduction 15.18
Overarching policy considerations 15.19
Rights of account holders and obligations of intermediaries 15.26
Transfer of intermediated securities 15.38
Integrity of the intermediated system 15.35
C. Financial Collateral 15.44
Introduction: from private to regulatory law reform 15.44
Core characteristics of security interests 15.47
Abolition of formal requirements 15.48
Right of use 15.50
No recharacterization 15.52
Enforcement 15.54
Approximation of transfer and security interest 15.56
Insolvency treatment 15.57
Scope 15.63
Regulatory provisions 15.65
D. Close-out Netting 15.69
E. Private International Law Reform 15.79
US Uniform Commercial Code 15.84
EU Settlement Finality and Financial Collateral Directives 15.87
Hague Securities Convention 15.91
Scope 15.92
Applicable law: the primary rule and fall-back rules 15.95
F. Roadmap of Imminent Transnational Developments 15.100
Questions
Further reading

III HARMONIZATION OF GENERAL CONTRACT LAW

16. Restatements of Contract Law
A. Introduction 16.01
B. Restatements of Contract Law 16.04
Introduction 16.04
The nature of the Principles 16.07
The purposes of the Principles 16.10
The scope of the Principles 16.15
The sphere of application of the Principles 16.17
The Principles ‘shall’ be applied 16.18
The Principles ‘may’ be applied 16.28
xx
 Contents

The substantive content of the Principles 16.40

Freedom of contract 16.41
Pacta sunt servanda 16.42
Good faith 16.43
Interpretation 16.49
Adequate assurance of performance 16.50
Specific performance as a primary remedy 16.51
Other remedies 16.53
Hardship and change of circumstances 16.54
Assignment and novation 16.56
Agency 16.57
The Principles and mandatory rules 16.58
Questions
Further reading

IV TRANSNATIONAL INSOLVENCY
17. Harmonization and Co-operation in Cross-Border Insolvency
A. Introduction 17.01
B. The Opposing Jurisdiction Principles 17.06
C. The UNCITRAL Model Law on Cross-Border Insolvency 17.14
Nature and purpose 17.15
Sphere of application 17.17
Access by foreign representative and recognition of foreign proceedings 17.19
Automatic stay 17.21
Cooperation with foreign courts and foreign representatives 17.22
D. Judicial Cooperation in Concurrent Insolvency Proceedings 17.23
E. The European Insolvency Regulation 17.25
Background to the Regulation 17.25
Scope of the Regulation 17.26
Classification of insolvency proceeding 17.27
The COMI 17.28
Applicable law 17.30
The principle of recognition 17.32
Establishment and interconnection of insolvency registers 17.36
Insolvency of corporate groups 17.37
Questions
Further reading

V INTERNATIONAL DISPUTE RESOLUTION

18. International Civil Procedure
A. Introduction 18.01
The nature of the problem and the challenges ahead 18.01
Sources 18.06

xxi
 Contents

B. Jurisdictional Immunities 18.09

C. Jurisdiction to Adjudicate 18.13
Traditional autonomous rules in national systems 18.13
Modernization, international coordination, and the needs
of international business 18.20
General 18.20
Party autonomy and forum selection 18.29
Discretionary limitations of jurisdiction: the doctrine
of forum non conveniens 18.38
D. Provisional and Protective Measures 18.44
E. Conduct of the Proceedings and Judicial Assistance 18.52
Service abroad of judicial documents 18.52
Taking of evidence 18.57
F. Recognition and Enforcement of Foreign Judgments 18.61
Brussels I Regulation (recast) 18.61
The Las Leñas and Buenos Aires Protocols 18.62
G. From International to Transnational Civil Procedure:
The ALI/UNIDROIT Principles of Transnational Civil Procedure 18.63
Objectives 18.63
Selected solutions 18.65
Questions
Further reading

19. International Commercial Arbitration

A. The Nature of International Commercial Arbitration and
its Distinguishing Features 19.03
Arbitration and litigation 19.03
Arbitration and expert determination 19.07
Arbitration and adjudication 19.10
Arbitration and alternative dispute resolution 19.12
When is arbitration ‘international’? 19.14
When is arbitration ‘commercial’? 19.18
B. The Harmonization of the Law of International Commercial
Arbitration 19.22
The UNCITRAL Model Law 19.26
The arbitration agreement 19.27
The composition of the arbitral tribunal 19.29
Jurisdiction of the arbitral tribunal 19.30
Interim measures and preliminary orders 19.31
Conduct of arbitral proceedings 19.32
Making of award and termination of proceedings 19.33
Recourse against the award and the recognition and enforcement of awards 19.34
1958 New York Convention on the Recognition and Enforcement
of Foreign Arbitral Awards 19.35

xxii
 Contents

Rules of arbitration as party-determined framework for dispute

settlement through arbitration 19.39
Ad hoc arbitration and institutional arbitration 19.39
Major arbitration institutions and their rules 19.41
An outline of the UNCITRAL Rules and the ICC Rules 19.43
Commencing the arbitration 19.43
Arbitral Tribunal 19.45
Arbitral proceedings 19.50
Arbitral awards 19.56
Costs 19.59
The principles which underpin the harmonization of international
arbitration and the tensions in the modern law 19.60
C. Arbitration and the Conflict of Laws 19.67
The law governing the arbitration agreement and the performance
of that agreement 19.70
The law governing the existence and proceedings of the arbitral
tribunal—the lex arbitri 19.73
The ‘delocalization’ debate 19.78
The law, or the relevant legal rules, governing the substantive issues
in dispute 19.109
Other applicable rules and non-binding guidelines and recommendations 19.120
The law governing the recognition and enforcement of the award 19.121
D. The Review of Arbitral Awards 19.122
E. Recognition and Enforcement of Arbitral Awards 19.131
Questions
Further reading

VI╇ RECURRENT ISSUES OF HARMONIZATION

20. The Sphere of Application of a Convention;€the Role of the Conflict
of Laws; Determining the Connecting Factor; Co-existence
and Conflicts of Instruments
A. Sphere of Application in General 20.01
B. The Role of the Conflict of Laws 20.06
C. The Selection of the Connecting Factor 20.08
D. Co-existence, Concurrence, and Conflicts of Conventions 20.11
Questions
Further reading

21. Uniformity in Transnational Commercial€Law

A. The Obstacles to Achieving and Maintaining Uniformity 21.01
B. Responses (I): Public International Law and its Reception
in Domestic Law 21.05

xxiii
 Contents

C. Responses (II): Devices in Private-Law Instruments 21.07

D. Uniformity through Interpretation in a Uniform System? 21.10
E. Reservations and Declarations 21.13
F. Structural Issues and Technical Support Devices for Achieving
and Maintaining Uniformity 21.15
G. Contract Practice 21.22
H. Do Divergences Matter? 21.23
Questions
Further reading

22. The Relationship between Transnational Commercial Law Treaties

and National€Law
A. Introduction 22.01
B. Analytic Framework for TCL Treaty–National Law Relationship 22.04
Force of law of TCL Treaties 22.05
Prevailing nature of TCL Treaties 22.14
Insufficient implementation action 22.17
Operation of adverse hierarchical rules 22.18
Public law 22.21
Scope of treaties and the continuing relevance of national law 22.22
Transactions within core scope—application of substantive TCL Treaty terms 22.23
Penumbra issues—application of substantive TCL Treaty terms
or national law, depending on whether a general principle applies 22.25
Issues outside of scope—application of substantive national law terms 22.28
Internal treaty terms—application of substantive national law terms 22.30
The applicable national law 22.32
Application of TCL Treaties to non-Contracting States 22.33
C. Compliance with TCL Treaties 22.35
Nature and meaning of compliance with TCL Treaties 22.36
Definition and main elements of compliance 22.36
Main sources of non-compliance 22.38
Unintentional non-compliance 22.39
Intentional non-compliance 22.40
Evidence of compliance with TCL Treaties 22.41
Measuring and modelling 22.41
Nature and source of data on compliance 22.42
Problems assessing data 22.44
Expectations of compliance with TCL Treaties 22.45
Theoretical reasons to expect compliance 22.45
Demonstrating expectation of compliance 22.49
Case study I: Bilateral Investment Treaties 22.51
Case study II: IMF Article VIII 22.54
Consequences of non-compliance with TCL Treaties 22.56
National law remedies 22.62
Transactional and economic consequences 22.63
xxiv
 Contents

Enhancements to compliance with TCL Treaties 22.67

Objectively clear and precise rules, rather than standards 22.68
Educational and practical compliance-related information and resources 22.69
Transparency and related reporting systems 22.70
Quantifying the consequences, economic and reputational 22.72
Legal effects, such as contemplated dispute resolution procedures 22.73
D. Conclusion 22.75
Questions
Further reading

Index 669

xxv
 TABLE OF CASES

52 Entscheidungen des Bundesgerichtshofs in Zivilsachen, Decision 25 June 1969����������������������21.05

Aegean Sea Continental Shelf case (Greece v Turkey) ICJ Rep 1978 p 3����������������������������������尓������18.44
Aetna Ins Co v General Terminals (1969) AMC 2449����������������������������������尓����������������������������������9.64
‘Agent Orange’ Product Liability Litigation, re 580 F Supp 690 (ED NY, 1984)������������������������������2.12
Agrosin Pte Ltd v Highway Shipping Co Ltd (The Mata K) [1998] 2 Lloyd’s Rep 614��������������������9.63
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo),
Preliminary Objections ICJ Reports 2007, p 582����������������������������������尓��������������������������������3.64
Air France v Haddad, judgment of 19 June 1997, Cour d’Appel de Paris����������������������������������尓������4.45
Air France v Saks 470 US 392, 105 S Ct 1338 (1985)����������������������������������尓����������������������������������4.45
Alfred Dunhill of London Inc v Republic of Cuba 425 US 682 (1976), 69 S Ct 1854,
15 ILM (1976) 735 ����������������������������������尓������������������������������������尓������������������������������������尓����4.30
Ali Shipping Corp v Shipyard Trogir [1999] 1 WLR 314 (CA) ����������������������������������尓������������������19.06
Allied Chemical International Corp v Comphania de Navegacao Lloyd Brasiliero [1986]
AMC 826 (2d Cir 1985) ����������������������������������尓������������������������������������尓��������������������������������9.78
AMCO Asia Corp and others v Republic of Indonesia (1983) 1 ICSID Rep 389����������������������������3.21
Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case C-106/77) ��������������������������22.12
Ap Antwerp, 27 May, 2013 ETL (2013) 581����������������������������������尓������������������������������������尓������������9.64
Ap Paris, 11 January 1985 (1986) DMF 166����������������������������������尓������������������������������������尓������������9.78
Ap Paris, April 17, 1985 (1986) DMF 173����������������������������������尓������������������������������������尓��������������9.60
Ap Rennes, 16 May 2002 (unreported)����������������������������������尓������������������������������������尓��������������������9.84
Ap Rouen, Oct 10, 1991 (1993) DMF 108����������������������������������尓������������������������������������尓��������������9.60
Arab Republic of Egypt v Chromalloy Air Services 939 F Supp 907
(DCC 1996) ����������������������������������尓������������������������������������尓������������� 19.90, 19.92, 19.98, 19.104
Arbitration Award No 602–A15(IV), A24–FT rendered by the Iran-United States
Claims Tribunal on 2 July 2014 ����������������������������������尓������������������������������������尓��������������������18.63
Arnhold Karberg & Co v Blythe Green Jourdain & Co [1916] 1 KB 495; [1915] 2 KB 379������������9.06
A/S Hansen-Tangens Rederei III v Team Transport Corporation (The Sagona) [1984] 1
Lloyd’s Rep 194����������������������������������尓������������������������������������尓������������������������������������尓����������9.78
Asahi Metal Industry Co Ltd v Superior Court of California, Solano County 480
US 102, 107 S Ct 1026 (1987)����������������������������������尓������������������������������������尓����������������������18.22
Arbitral award dated 15 June 1994 (Austrian Arbitral Tribunal, Vienna, SCH-4318)����������������������8.87
Associated Electric and Gas Insurance Services Ltd v European Reinsurance Company
of Zurich [2003] UKPC 11, [2003] 1 WLR 1041����������������������������������尓������������������������������19.06
Atlantic Star, The [1974] AC 436����������������������������������尓������������������������������������尓��������������������������18.38
Awas 39423 Ireland Ltd v Director General of Civil Aviation, High Court of Delhi at
New Delhi, 19 March 2015����������������������������������尓������������������������������������尓��������������������������14.36
Azinian v United Mexican States (1999) 5 ICSID Reports 269����������������������������������尓������������������22.57

Babanaft International Co SA v Bassatne [1990] Ch 13 (CA) ����������������������������������尓��������������������18.48

Baker Marine (Nig) Ltd v Chevron (Nig) Ltd 191 F 3d 194 (US Ct App (2nd Cir) 1999)������������19.90
Banco Santander SA v Bayern Ltd [2000] 1 All ER (Comm) 776����������������������������������尓����������������11.17
Bank Mellat v Helleniki Techniki SA [1984] QB 291 (CA)����������������������������������尓������������������������19.93
Banque de l’Indochine case����������������������������������尓������������������������������������尓������������������������������������尓��1.67
Barcelona Traction, Light and Power Case (Belgium v Spain) (1970) ICJ Rep 3��������������������� 3.21, 3.64
Barclays Bank Ltd v Commissioners of Customs and Excise [1963] 1 Lloyd’s Rep 81����������������������9.77
Beam Technology (Mfg) Pte Ltd v Standard Chartered Bank [2003] 1 SLR 597����������������������������11.22
BGH NJW 1990, 975 ����������������������������������尓������������������������������������尓������������������������������������尓��������4.52
Black and White Taxicab & Transfer Co v Brown and Yellow Taxicab & Transfer Co
276 US 518 (1928) ����������������������������������尓������������������������������������尓������������������������������������尓����2.12

xxvii
 Table of Cases

Booth Steamship Co, Ltd v Cargo Fleet Iron Co, Ltd [1916] 2 KB 570 (AC) (UK)������������������������9.73
Bottling Companies v Pepsi Cola Panamerica, 9 October 1997, SC Venezuela������������������������������16.36
Brown Jenkinson and Co Limited v Percy Dalton (London) Limited [1957] 2 QB 621������������������9.67
Bruynzeel Deurenfabrik NV v Ministre d’Etat aux Affaires Etrangères de la République
Malgache, Cass le civ 30 June 1976, 104 JDI 114 (1977) ����������������������������������������������������19.84
Bundesgerichtshof, VIII ZR 51/95 (3 April 1996)����������������������������������������������������������������� 8.74, 8.75
Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd [1979]
1 WLR 401 (CA)������������������������������������������������������������������������������������������������������������������8.61

Cable and Wireless plc v IBM United Kingdom Ltd [2003] EWHC 316 (Comm) ����������������������19.13
Cambridge Gas Transportation Corp v Official Committee of Unsecured Creditors of
Navigator Holdings plc [2007] 1 AC 508 (PC)��������������������������������������������������������������������17.09
Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358,
[2006] BLR 15��������������������������������������������������������������������������������������������������������������������19.10
Carnival Cruise Lines Inc v Shute 499 US 585, 111 S Ct 1522 (1991)������������������������������������������18.30
Castell v De Greef, Cape High Court Full Bench, South Africa 1994 (4) SA 408 (c) ����������������������4.62
Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] AC 1101����������������������������16.49
Chilewich Partners v MV Aligator Fortune 853 F Supp 744, 753 (SDNY 1994)����������������������������9.81
Chorzów Factory Case (Interpretation of Judgments 7 and 8, Germany v Poland) (1928)
PCIJ (Series A) No 17 ������������������������������������������������������������������������������������������������� 3.21, 3.61
Cole v North Western Bank (1874–75) LR 10 CP 372������������������������������������������������������������������9.69
Com. Antwerp September 29, 1987 (1988) ETL 72����������������������������������������������������������������������9.60
Commission v Germany (International Dairy Arrangement) Case C-61/94 [1996]
ECR I 3989��������������������������������������������������������������������������������������������������������������������������3.48
Compania Naviera Vascongada v SS Cristina [1938] AC 485 ������������������������������������������������������18.10
Conoco (UK) Ltd v Limai Maritime Co Ltd (The Sirina) [1988] 2 Lloyd’s Rep 613������������������������9.63
Coreck Maritime GmbH v Handelsveem BV (Case C-387/98) [2000] ECR I-9337��������������������18.42
Corocraft v Pan American Airways [1969] 1 QB 616 ������������������������������������������������������������������21.05
Costa v Enel (Case 6/64) [1964] ECR 585 ����������������������������������������������������������������������������������22.12
Cour de Cassation 173 P/B 93-16.542 (23 January 1996)��������������������������������������������������������������8.75
Cox v Troy (1822) 5 B & Ald 474; 106 ER 1264����������������������������������������������������������������������������4.14
Crédit Suisse Fides Trust SA v Cuoghi [1998] QB 818 (CA) ��������������������������������������������� 18.48, 18.50
Crocs Europe BV v Anderson [2012] EWCA Civ 1400; [2013] 1 Lloyd’s Rep 1����������������������������10.12
Culmer, re 25 BLR 621 (Bankr. SDNY 1982)������������������������������������������������������������������������������17.08
Custom Made Commercial Ltd v Stawa Metallbau GmbH (Case C-288/92) [1994]
ECR I-2913; [1994] IL Pr 516��������������������������������������������������������������������������������� 18.27, 21.09

Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs,

Government of Pakistan [2010] UKSC 46, [2011] 1 AC 763����������������������������������������������19.93
Delchi Carrier SpA v Rotorex Corp 71 F 3d 1024 (US Ct of Apps (2nd Cir)) 1995��������������� 8.30, 8.75
Delfini, The [1990] 2 Lloyd’s Rep 252��������������������������������������������������������������������������������������������9.78
Dent v Glen Line Ltd (1940) 67 Ll L Rep 72����������������������������������������������������������������������������������9.60
Deutsche Schachtbau und Tiefbohrgesellschaft mbH v Shell International
Petroleum Co Ltd [1990] 1 AC 295 (HL) 310��������������������������������������������������������������������19.72

Eastern Airlines Inc v Floyd 499 US 530 (1991) (US SC) ������������������������������������������������������������21.04
Edward Owen Engineering Ltd v Barclays Bank International Ltd [1978] QB 159 ����������������������11.22
Edye v Robertson, 112 US 580 (1884)����������������������������������������������������������������������������������������22.18
Emirates Trading Agency v Prime Mineral Exports Pte Ltd [2014] EWHC 2014
(Comm); [2014] 2 Lloyd’s Rep 457 ������������������������������������������������������������������������� 16.43, 19.13
Erie RR v Tompkins 304 US 64, 90 F 2d 603 (US Ct of Apps (2nd Cir)) (1938)����������������������������2.12
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 (HC) ��������������������������������������������19.06
Eurofood IFSC Ltd, Re [2004] 1 EHC 54, [2004] BCC 383 (Irish High Court);
aff’d [2006] 1 ESC 41 (Irish Supreme Court) ����������������������������������������������������������������������17.33
Eurofood IFC Ltd (Case C-341/04) (ECJ Grand Chamber, 2 May 2006)�������������� 17.29, 17.33, 17.34

xxviii
Another random document with
no related content on Scribd:
 Varieties.

Pun.—While the repairs were going on in State street, Boston,

two gentlemen of the bar happening to meet, one said, “I think this
looks like putting new cloth upon an old garment.” “I think so too,”
replied the other; “but it will make the rent greater.”

Humor.—A number of years ago, an eccentric old gentleman,

residing in a cottage in England, was greatly annoyed by noctural
depredators, who broke the fences in his garden, in order to get at
the good things contained therein. As he did not care so much for
the loss of the fruit as the damage done to the enclosures, and as he
was rather fond of witticisms, he had the following notice put up: “All
thieves are in future to enter by the gate, which will be left open for
the purpose.”

Has a Dog Wings?—“Father, has a dog got wings?”

“No, my son.”
“Well, I thought so—but mother told me, the other day, that as she
was going along the road, a dog flew at her.”

Irish Wit.—An honest Hibernian, upon reading his physician’s

bill, replied, that he had no objections to pay him for his medicines,
but his visits he would return.
 Death of the President.

William Henry Harrison, who became President of the United

States on the 4th of March last, died on the night of the 4th of April,
just thirty days after he had entered upon the duties of his high
office.
This event is calculated to cast a gloom over the whole nation, for
Gen. Harrison was generally esteemed a good man, and most
persons believed that he would govern the country in a manner to
promote the happiness of the people. He had lived to be almost
seventy years of age; and now, being elevated to the highest office
in the gift of the people, he is suddenly cut down, and laid in the
same dust that must cover ordinary men. This dispensation of
Providence seems almost like quenching a great beacon-light upon
the sea-shore at night, just at the moment when its illumination had
begun to scatter the darkness around.
A solemn thought is suggested by this event. Gen. Harrison has
lived a long life, and has often been in the midst of seeming peril. He
has often been in battle with savages and with the British soldiery.
He has often trodden the forest amid all the dangers and vicissitudes
that beset the traveller there. He has spent many days of toil in the
field, laboring as a farmer. In all these situations and conditions—
from youth to age—he has enjoyed the protecting care of
Providence. But at last he was elevated to a great office; he became
the occupant of a palace; he was the hope of a great nation; he was
surrounded with friends, with mighty men, with skilful physicians,
with tender nurses—with the great, the good, the prayerful—but all in
vain. His time had come—the arrow was sped from the bow, and no
human arm could stay its flight. And this should warn us all to
consider well the lesson conveyed by this event—which is, that life
and death are in the hands of God. He can protect us everywhere—
in the cottage or the log-cabin, in the forest or the field; or he can
take us away in the midst of power and pomp and riches. Let us
therefore be ever prepared for the decisions of his wisdom.
 THE APRIL SHOWER, A SONG.
the words and music composed for
merry’s museum.

Patter, patter, let it pour,

Patter, Patter, let it roar,
Down the steep roof let it rush,
Down the hill side let it gush,
’Tis the wlecome April shower
Which will wake the sweet May flower.

Patter, patter, let it pour!

Patter, patter, let it roar!
Let the gaudy lightning flash—
Let the headlong thunder dash—
’Tis the welcome April shower,
Which will wake the sweet May flower.

Patter, patter, let it pour!

Patter, patter, let it roar!
Soon the clouds will burst away—
Soon will shine the bright spring day,
Soon the welcome April shower
Will awake the sweet May flower!
ROBERT MERRY’S MUSEUM.
 My own Life and Adventures.

(Continued from page 71.)

CHAPTER VII.
My uncle’s influence.—​The influence of the tavern.—​State of society
forty years ago.—​Liquor opposed to education.—​The church
and the tavern.—​The country schoolhouse.—​Books used in
the school.—​A few words about myself.

I pass over a space of several years in my history, and come to

the period when I was about fifteen. Up to this time, I had made little
progress in education, compared with what is done at the present
day. I could indeed read and write, and I knew something of
arithmetic, but my advance beyond this was inconsiderable. A brief
detail of certain circumstances will show the reason of this.
In the first place, my uncle had no very high estimation of what he
called larnin; he was himself a man of action, and believed that
books render people dull and stupid, rather than efficient in the
business of life. He was therefore opposed to education in general,
and particularly so in my case; and not only was his opinion
equivalent to law with respect to me, but it was of great force in the
village, on account of his character and position.
He kept the village tavern, which in those days of rum and punch
was an institution of great power and authority. It was common, at
the period of which I speak, for the church or meeting-house and
tavern to stand side by side; but if one day in the week, sobriety and
temperance were preached in the former, hard drinking and
licentiousness were deeply practised in the latter during the other
six. The tavern, therefore, not only counteracted the good effect of
the preacher, but it went farther, and in many cases corrupted the
whole mass of society. The members of the church thought it no
scandal to make regular visits to the bar-room at eleven o’clock in
the forenoon, and at four P. M.; the deacon always kept his jugs well
filled, and the minister took his toddy or his tansy bitters, in open day,
and without reproach.
In such a state of society as this, the tavern-keeper was usually
the most influential man in the village, and if he kept good liquors, he
was irresistible. Now my uncle was a prince of a tavern-keeper for
these jolly days. He was, in fact, what we call a whole-souled fellow:
generous, honest, and frank-hearted. His full, ruddy countenance
bespoke all this; and his cheerful, hearty voice carried conviction of it
to every listener. Beside, his tavern was freely and generously kept:
it was liberally supplied with good beds, and every other luxury or
comfort common to those days. As I have said before, it was situated
upon the great road, then travelled by the mail stages between
Boston and New York. The establishment was of ample extent,
consisting of a pile of wooden buildings of various and irregular
architecture—all painted a deep red. There was near it a large barn
with extensive cow-houses, a corn-crib, a smoke-house, and a pig-
sty, arranged solely with a view to ease of communication with the
house, and consequently all drawn closely around it. The general
effect, when viewed at a distance, was that of two large jugs
surrounded with several smaller ones.
Before this heap of edifices swung the tavern sign, with a picture
of a barn-yard cock on one side, and a bull upon the other, as I have
told you before: and though the artist that painted it was only a
common house-dauber, and though the pictures were of humble
pretensions when compared with the productions of Raphael, still,
few specimens of the fine arts have ever had more admirers than the
cock and bull of my uncle’s sign. How many a toper has looked upon
it when approaching the tavern with his feverish lip, as the emblem
and assurance of the rum that was soon to feed the fire kindled in his
throat; how many a jolly fellow, staggering from the inn, has seen
that sign reeling against the sky, and mixing grotesquely with the
dreamy images of his fancy!
If we add to this description, that in the street, and nearly in front
of the tavern, was a wood-pile about ten feet high, and covering
three or four square rods of ground; that on one side was a litter of
harrows, carts and ploughs, and on the other a general assortment
of wagons, old sleighs, broken stages, and a rickety vehicle
resembling a modern chaise without a top; and if we sprinkle
between all these articles a good supply of geese and pigs, we shall
have a pretty fair account of the famous Cock and Bull tavern that
flourished in Salem nearly forty years ago.
The proprietor of such an establishment could not, in those days,
but be a man of influence; and the free manners and habits of my
uncle tended to increase the power that his position gave him. He
drank liberally himself, and vindicated his practice by saying that
good liquor was one of the gifts of providence, and it was no sin—
indeed it was rather a duty—to indulge in providential gifts freely. All
this made him a favorite, particularly with a set of hard drinkers who
thronged the bar-room, especially of a wet day and on winter
evenings.
As I have said, my uncle was opposed to education, and as he
grew older and drank deeper, his prejudice against it seemed to
increase; and though I cannot easily account for the fact, still every
drunkard in the place was an enemy to all improvements in the
school. When a town-meeting took place, these persons were
invaribly in opposition to every scheme, the design of which was to
promote the cause of education, and this party was usually headed
by my uncle. And it is not a little curious that the tavern party also
had its influence in the church, for my uncle was a member of it, and
many of his bar-room cronies also. They were so numerous as to
cast a heavy vote, and therefore they exercised a good deal of
power here. As in respect to the school, so in the house of worship,
they were for spending as little money as possible, and for reducing
its power and influence in society to the lowest possible scale. They
even held the minister in check, and though he saw the evil tendency
of intemperance in the village, he had not nerve enough to attack it,
except in a very soft and mild way, which probably served to
increase the vice at which he aimed; for vice always thrives when
holy men condemn it gently.
Now I have said that my uncle was a kind-hearted, generous
man, by nature; how then could he be so narrow-minded in respect
to education and religion? The answer to this question is easy. He
was addicted to the free use of liquors, which not only tends to
destroy the body, but to ruin all the nobler parts of the mind. As he
came more and more under the influence of ardent spirits, he grew
narrow-minded, sottish and selfish. And this is one of the great evils
of taking ardent spirits. The use of them always tends to break down
the mind; to take away from us those noble feelings and lofty
thoughts, which are the glory of man; in short, to sink us lower and
lower toward the brute creation. A determined drunkard is usually a
great part of the time but little elevated above a beast.
Now I have been particular about this part of my story, for I wished
to show you the natural influence of the habits of my uncle, and their
operation upon my own fortunes. I have yet a sadder story to tell, as
to the effect of the village tavern, not only upon myself, but upon my
uncle, and several others. That must be reserved for some of the
sad pages through which my tale will lead you. For the present, I
only point out the fact, that a man who encourages the sale of liquors
is usually unfriendly to the education and improvement of mankind;
that his position tends to make him fear the effect of light and wish
for darkness; that hard drinking will ruin even a generous and noble
mind and heart; and that the habit of dealing in liquor is one to be
feared, as it induces a man to take narrow, selfish, and low views of
human nature and human society. It appears to me that a trade
which thrives when men turn drunkards, and which fails when men
grow temperate, is a trade which is apt to injure the mind and soul of
one who follows it. Even my noble-hearted and generous uncle fell
under such sinister influences.
But to return to the school. I have already described the situation
of the house. The building itself was of wood, about fifteen feet
square, plastered within, and covered with benches without backs,
which were constructed by thrusting sticks, for legs, through auger
holes in a plank. On one side, against the wall, was a long table,
serving as a desk for the writers.
The chimney was of rough stone, and the fire-place was of the
same material. But what it lacked in grace of finish, was made up in
size. I believe that it was at least ten feet wide, and five in depth, and
the flue was so perpendicular and ample, that the rain and snow fell
down to the bottom, without the risk of striking the sides. In summer,
the school was kept by a woman, who charged the town a dollar a
week, boarding herself; in winter it was kept by a man, who was paid
five dollars a month and found. Here about seventy children, of all
sizes, were assembled during this latter portion of the year; the place
and manner of treatment being arranged as much as possible on the
principle that a schoolhouse is a penitentiary, where the more
suffering, the more improvement.
I have read of despots and seen prisons, but there are few of the
former more tyrannical than the birch-despot of former days, or of
the latter, more gloomy than the old-fashioned schoolhouse, under
the tyrant to which it was usually committed.
I must enter into a few details. The fuel for the school consisted of
wood, and was brought in winter, load by load, as it was wanted;
though it occasionally happened that we got entirely out, and the
school was kept without fire if the master could endure the cold, or
dismissed if the weather chanced to be too severe to be borne. The
wood was green oak, hickory, or maple, and when the fire could be
induced to blaze between the sticks, there was a most notable
hissing and frying, and a plentiful exudation of sap at each end of
them.
The wood was cut into lengths of about five feet, by the scholars,
each of the larger boys taking his turn at this, and at making the fire
in the morning. This latter was a task that demanded great strength
and patience; for, in the first place, there must be a back-log, five
feet in length, and at least fifteen inches in diameter; then a top-stick
about two-thirds as big; and then a forestick of similar dimensions. It
required some strength to move these logs to their places; and after
the frame of the work was built, the gathering of chips, and the
blowing, the wooing, the courting that were necessary to make the
revolting flame take hold of the wet fuel, demanded a degree of
exertion, and an endurance of patience, well calculated to ripen and
harden youth for the stern endurances of manhood.
The school began at nine in the morning, and it was rare that the
fire gave out any heat so early as this; nor could it have been of
much consequence had it done so, for the school-room was almost
as open as a sieve, letting in the bitter blast at every window and
door, and through a thousand cracks in the thin plastering of the
walls. Never have I seen such a miserable set of blue-nosed,
chattering, suffering creatures as were these children, for the first
hour after the opening of school, on a cold winter morning. Under
such circumstances, what could they do? Nothing, and they were
expected to do nothing.
The books in use were Webster’s Spelling Book, Dilworth’s
Arithmetic, Webster’s Second and Third Part, the New Testament,
and Dwight’s Geography. These were all, and the best scholars of
the seminary never penetrated more than half through this mass of
science. There was no such thing as a history, a grammar, or a map
in the school. These are mysteries reserved for more modern days.
Such was the state of things—such the condition of the school,
where I received my education, the only education that I ever
enjoyed, except such as I have since found in study by myself, and
amid the active pursuits of life. But let me not blame the schoolhouse
alone; I was myself in fault, for even the poor advantages afforded
me there, I wilfully neglected; partly because I was fond of amusing
myself and impatient of application; partly because I thought myself
worth ten thousand dollars, and fancied that I was above the
necessity of instruction; and partly because my uncle and his bar-
room friends were always sneering at men of education, and praising
men of spirit and action—those who could drive a stage skilfully, or
beat in pitching cents, or bear off the palm in a wrestling-match, or
perchance carry the largest quantity of liquor under the waistcoat.
Such being the course of circumstances that surrounded me at
the age of fifteen, it will not be surprising if my story should at last
lead to some painful facts; but my succeeding chapters will show.
(To be continued.)
 The Artists’ Cruise.

About the first of August, 1840, an excursion was set on foot, by

five young men of Boston, for recreation and amusement—one full of
interest and excitement, conducive equally to health and pleasure.
The plan was this—to embark in a small pleasure-boat called the
Phantom, built and owned by one of the company, who was also well
skilled in nautical affairs, and proceed by easy distances along the
coast as far “down East” as time or inclination would admit—letting
the events and adventures of the day determine the movements of
the next.
The company consisted of young artists—lovers of nature—ready
to appreciate all the new and beautiful points that might meet the
eye. The boat was hauled up at Phillip’s beach, Lynn, to which place
the party proceeded, and fitted her out with all the conveniences and
comforts proper for the cruise. Everything being ready, they sailed on
the first of the week, with a fair southwest wind, passed Marblehead
and Salem gaily, and stretched onward for Cape Ann. As night came
on they were becalmed, but it was very clear, and the moon shone
gloriously, as they moved, creeping lazily along, catching a slight puff
at intervals. The musical portion of the company contrived to make
the time pass pleasantly away in singing certain old airs which
chimed in with the feeling and situation of the company. At last the
breeze came again, and about ten at night they found themselves in
the little cove before the quiet town of Gloucester. Here they cast
anchor; and so much pleased were they, that they stayed the next
day and enjoyed the pleasure of a ramble along the rocky shores,
fishing for perch, &c. They found an excellent host at the Gloucester
hotel, where they passed the next night. I cannot do better than to
tell the rest of the story in the words of these adventurers.
 “With a bright sun, a fresh breeze, and a calm sea, we left
Gloucester and shaped our course around Cape Ann for the Isles of
Shoals, a group which lie at the farther extremity of Ipswich bay,
across which we merrily steered, embracing the opportunity of
initiating the inexperienced in the duties of amateur seamanship. In a
few hours we ran in between the rocky isles, which, as we gradually
neared them, seemed to rise from out the waves. Anchoring in the
midst of a fleet of fishing boats, we prepared our supper, which was
soon despatched with much mirth, owing to the primitive simplicity of
our arrangements. We passed the night at our anchorage, after
witnessing the effect of a magnificent thunder-storm, and spent the
morning in strolling among the rocks along the shore, and amusing
ourselves with the characteristic traits of the islanders whom we met;
their isolated position, and constant devotion to the single occupation
of catching and curing fish, appearing to interpose a bar to their
advancement in any other qualification. From the Isles of Shoals we
had the next day a fair run to Wood Island, and anchored in Winter
harbor, near the mouth of Saco river—a place of considerable
importance at the time of the last war, owing to the exertions of an
enterprising merchant by the name of Cutts. During the war the
British entered the harbor and wantonly sawed through the keel of
three of the largest class of merchant vessels, then in progress of
building, and whose remains are still to be seen. We had plenty of
fowling, fishing, and sporting apparatus, and we here had ample
opportunity for exercising our skill as sportsmen—plover, curlew,
sand-birds, &c. being abundant. In this manner we passed the time
until the afternoon of the next day, when we left for Portland.
“Favored with a fine breeze, we dashed merrily over the waves,
which had now begun to be tipped with foam, and, under the
influence of the freshening wind, had assumed a size that, in
comparison with our miniature bark, might have been termed
mountain-high; but there was no danger, for our craft was as buoyant
on the sea as one of its own bubbles. The weather had gradually
been growing “dirty,” as seamen call it, and we raced into the harbor
of Portland with a small squadron of coasting vessels, all crowding
for shelter. The wind during the night blew a gale from the southeast,
which however did not prevent us from sleeping soundly. Our
appetites having assumed a remarkable punctuality since leaving
Boston, reminded us early of breakfast, and, in spite of wind and
rain, we resolved upon cooking a quantity of birds shot the day
previous. Having formed an imperfect shelter by means of a spare
sail, a fire was kindled, coffee made, birds broiled, and our meal
concluded amid a rain so drenching as to be quite a curiosity in its
way. Each person bent over his dish to prevent the food being fairly
washed away, and covered his mug of coffee to avoid excessive
dilution, and used many other notable expedients suited to the
occasion, which will certainly not be forgotten if never again
practised. It was most emphatically a washing-day with us, though
not accompanied with the ill-humor generally reputed to exist upon
those occasions.
“The storm and its effects being over, we received a visit from the
proprietors of the elegant pleasure-boat, Water Lily, who very kindly
invited us to accompany them to Diamond cove, a romantic spot in
one of the many beautiful islands that so thickly stud Casco bay—a
place much frequented by parties of pleasure from the city of
Portland. We left the harbor with a fine breeze, our pennants
streaming gallantly. We were soon upon the fishing-grounds,
anchored, and for a moment all was bustle and excitement, each
hoping to be the first to pull a ‘mammoth’ from the deep. Success
crowned our efforts, and a boat was despatched with the treasure to
the cove, to be there converted into a savory chowder; while we
again anchored near the rocks of one of the smaller islands, where
fortune favored us, and we soon had a goodly store of perch for the
fry.
“The sun was just sinking as we entered the cove, and the gray
shadows of twilight were fast gathering under the grove of fine old
oaks that crowned the shore. Soon the woods resounded with the
shouts and merry laughter of the party. Misty twilight yielded to the
brilliant rays of the full moon, which, streaming through the openings
of the forest, touched here and there, lighting up the picturesque and
moss-grown trunks with almost magical effect. The word was given,
and each one searched for his armful of brush to light us at our feast,
and soon it crackled and blazed away, lighting up a scene almost
beyond description. The party numbered about fifteen or twenty,
including the Phantom’s crew, and were scattered about in all the
various groups and postures that inclination or fancy might suggest,
each with his plate and spoon, or for the want of them a clam-shell
and box-cover, doing such justice to the feast as an appetite
sharpened by fasting, salubrious sea-breeze and wholesome
exercise would induce. Not the least important feature of the scene
was the picturesque costume assumed by our “Phantoms;” it
consisting of white pants, Guernsey frocks, belts, knives, and small
Greek caps tight to the head. Above us hung the blest canopy of
glowing foliage thrown out from those old oaks; each mass, each
leaf was touched and pencilled with a vivid line of light, whose
brightness might compare with that of sparkling gems. The more
distant groups were relieved from the dim and shadowy background
by a subdued and broad half-light. Fainter and fainter grew the light,
till all was lost in the deep and gloomy shadows of the forest.
“Amid this fairy-like scenery all was mirth, jollity, fun, and frolic; not
a moment passed unenjoyed. At ten o’clock our party broke up, and
we returned to our boats. We here parted with our kind friends, who
were soon on their way to Portland. We seized our flutes, and
breathed forth a farewell with all the pathos we were masters of. This
was soon answered by a smart salute from a cannon, which awoke
the echoes of the cove. Three cheers were given and returned, and
all was still.
“The next was a beautiful day, and it being Sunday, we remained
at anchor in the cove, enjoying the silence and repose of nature in
that lovely and sequestered spot. The succeeding morning being
fine, we started with a light southerly wind, which carried us slowly
along among the islands of Casco, and gave us a fine opportunity to
observe all their beauties. The scene was continually changing—
new islands opening upon us almost every moment. Before evening
we had made the little harbor called Small Point, where we remained
that night. The succeeding day we doubled cape Small Point and
made the mouth of the Kennebec, which we entered with a fine
breeze, that carried us briskly up to Bath, where we spent the
remainder of the day. Having taken a pilot, we continued up the river
with a fair wind and tide, which took us as far as Hallowell.
Considerable curiosity was here excited, in consequence of our
having come so far in so small a boat, it being thought a rather
hazardous enterprise. In the morning a council was held, and we
determined to return; accordingly this and the succeeding day were
spent in getting back to Bath. We did but little more than float with
the tide, in consequence of its being so calm. The scenery of the
Kennebec has been so often and minutely described, that it is best
to pass over it without comment.
At Bath we were treated with all the attention and kindness we
could wish for. The succeeding day we beat down the river, and
doubled the point, encountering a head sea, which tossed us about,
to the great detriment of our culinary apparatus. We again anchored
and passed the night at Small Point. We proceeded the next day, by
a difficult and somewhat dangerous channel, between ledges and
islands as far as Haskell’s Island, and anchored in the cove.
Continuing our course the next day, we stopped at Portland, saw our
friends of the Water Lily, and proceeded as far as Winter harbor,
where we arrived at twelve o’clock at night. We continued here a day
to take advantage of the fine shooting, and had very good luck. We
went as far the next day as York, where we anchored, cooked our
birds, and, with the help of good appetites, made a glorious supper.
“Leaving the town of Old York, we rowed slowly out of the small
river which forms its harbor, accompanied by numerous fishing-
boats, which came in the evening previous. It was a dead calm, and
continued so about two hours. The time passed however without the
usual tedium attendant upon the want of wind, it being employed in
the preparation and discussion of a hearty breakfast. The wind came
at last, a light breeze and ahead, and we soon exchanged the
swinging and rolling motion of the glassy ground-swell for the regular
rise and fall and cheerful dash of the ripple against the bow, and the
music of the breaking bubbles as they whirled away in the wake.
With all our canvass set, we stretched slowly along the narrow coast
of New Hampshire.
“Passing the harbor of Portsmouth, with its lighthouse built upon a
ledge so low that the tide sweeps over its foundation, as is the case
with the famous Eddystone, at nightfall we were off the mouth of
Merrimac river, yet some fifteen or twenty miles from our destined
port. A few clouds that had collected about dark now dispersed, and
the stars shone clear and beautiful from the heavens, while the
beacon lights blazed in rival brightness from the shore. About two in
the morning we approached the entrance of our port, which is
situated near the mouth of a small river which intersects Cape Ann,
and which, like most rivers, has a bar at its mouth. After passing the
lighthouse, being within half a mile of our anchorage, the wind fell
suddenly, and the rapid current swept us aground upon the highest
part of the bar, where the receding tide soon left us high and dry
upon the sand. Being stopped thus abruptly, we gazed about in
search of some means to ‘define our position,’ which measure was
presently vetoed by the rolling in of so thick a fog that in ten minutes
everything in sight could have been touched with a boat-hook.
Finding sight unavailing at this juncture, we resorted to sound, and
commenced firing signal guns, which were heard and answered from
the shore, and in a short time assistance arrived in the person of the
keeper of the lighthouse, who informed us that we should not float
again for six hours. Day broke upon us in this position, and having
plenty of time, we despatched two ashore for provisions in the pilot’s
skiff, and in a short time the sand-bar presented a singular
appearance, our baggage of all kinds being strewed about upon the
sand, and in close fellowship with cooking utensils, loose sails, spare
baskets, boxes, rigging, &c. &c.; for we had entirely unladed the
boat, for the purpose of washing and cleansing the inside from the
effects of an unlucky basket of charcoal, which had been upset in the
confusion consequent upon our endeavors to get into deeper water.
Upon the return of our purveyors all hands displayed great activity in
providing and eating breakfast. The fog still encompassed us, so that
we enjoyed all the uproar and fun of the meal in our own way, as our
apparent horizon was hardly more extensive than a common room. It
was a memorable breakfast, that seemed much like a day’s eating
condensed into a single meal, the whole being much enlivened by
the cheerfulness and local anecdotes of our old friend from the
lighthouse, to whom we were indebted for sundry excellent hints
touching the best method of extricating vessels in difficult and