Object and purpose as interpretation tool in international commercial law conventions: How to make the 'top down approach' work

Abstract

By creating unworkable rules based on misaligned object, content and purpose states fail to achieve their public policy goals by exceeding the limits of their remit and are responsible for the continued necessity for a spontaneous, non-state informal private legal order in cross border trade, the so-called bottom up approach to self-regulation. This in turn appears to prompt a need for state regulation in order to safeguard the very public policy goals. Only a reflection on the relationship between object and purpose can be a basis for successful modern treaty law in the area of international private commercial law. This chapter examines the role of object and purpose as recognized by Art. 31 of the 1969 Vienna Convention on the Law of Treaties, VCLT. The author looks at object and purpose separately and explains the meaning of each of these two terms with regard to selected international conventions regulating private commercial law including tax treaties. In combination with interpretation rules contained in the commercial law conventions themselves, an expanded meaning and use of object and purpose of a treaty can be discerned and used to form a reinforced comprehensive autonomous interpretation method. While the purpose of any convention is discernible by recourse to the texts and materials of a treaty, the object plays a decisive role in successful drafting, application and interpretation of a commercial law treaty. The author argues that it is exclusively the international character of the object that requires the creation of transnational substantive uniform law and other types of international commercial law.