Arden puts codification of commercial law on agenda

The Chair of the Law Commission, Mrs Justice Arden, has strongly hinted that the commission may soon embark on the codification of commercial law.

Speaking at the annual Commercial Bar Association (Combar) lecture last week, Arden said: “In most situations it is quicker and easier to find the answer to a legal problem in a code.

“The majority of legal problems do not raise new and interesting points of law but can be solved by applying existing well-established principles.”

Arden, who stressed that she was speaking from a personal standpoint, did not advocate codifying areas of the commercial law which are still subject to change but suggested there were certain areas of the law which were “candidates” for codification.

She added that the Law Commission was soon to consider subjects for its Seventh Programme of Law Reform, starting in 1998, and called on commercial lawyers to identify areas of the law which were ripe for codification.

John Jarvis QC, chair of Combar, welcomed Arden’s move to stimulate debate on the issue. “We should be considering codification and may well have to consider it because

Europe is pushing in that direction in any event,” he said.

Lawrence Collins, head of litigation at Herbert Smith, was also pleased that Arden had put the subject back on the agenda.

He said: “The American experience with the Uniform Commercial Code and the unofficial American Law Institute Restatements shows that codification can work - but there will have to be a struggle against the deep-seated resistance to codification in this country.”

Codification of English law has been attempted in the past. In 1960, a draft contract code was produced by Harvey

McGregor QC on behalf of the English and Scottish Law Commissions but its existence is not widely known. Jarvis said: “For some reason it has been kept under wraps.”

Although the McGregor Code was never completed because of differences of opinion between the two commissions, Arden believes it has some striking examples of what can be achieved by codification.

She said: “Complexities and distinctions which were introduced into the common law as a necessary part of its development, but which may safely be dispensed with, are stripped away. The core principles are extracted and clearly stated.”