Complexity of Transnational Sources : Reports to the XVIIIth International Congress of Comparative Law: Complexity of Transnational Sources: Canada

Much has been written about the fragmentation of transnational law, and the complexity that derives from the proliferation of normativities transcending the borders of the nation state. However, “globalization cannot exist without the state” (Harry W. Arthurs): the impact of transnational law is felt and discussed, eventually, in a national forum. The “foreign law debate” in the U.S.A. shows that such a discourse is shaped by the parameters of a national legal and political culture.In this report to the International Academy of Comparative Law, we describe the Canadian response to the transnational challenge while in particular focusing on the “complexity” of transnational law as one of its most challenging characteristics. Our inquiry is divided into two sections that address two different aspects of this complexity. First, we set out to find a trace of a specifically Canadian “legal culture” in response to the challenge that global legal pluralism poses to a legal discourse accustomed to thinking in terms of national positive law and national sovereignty; we will outline the reactions in academia, legal education, and the judiciary. Second, we turn to another, maybe less lofty aspect: the fact that the application of law is made technically more difficult by the proliferation of transnational legal sources. In this second section, we will outline the intricacies of the implementation of international instruments in Canadian law, and discuss the problematic repercussions of the technical complexification of law in core areas of private law, with a focus on the “plight” of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in Canada