Deputy Secretary General, Unidroit
My time at Unidroit in Malcolm's company may indeed be said to have commenced precisely on a financial and structural note.
By 1972, the issue of international funding for Unidroit had been resolved and the interim period during which the Italian Government supported the Institute almost single-handedly - with no more than token contributions by the other member States - came to an end. One of the consequences of this development was that the Institute was now able to review its staffing policy and allow the then-Secretary-General, the late-lamented Mario Matteucci, to recruit professional staff abroad, a possibility hitherto reserved for the post of Deputy Secretary General.
The great architect of this change was indisputably Judge Jean-Pierre Plantard, who joined the Institute as Deputy Secretary General on 1 January 1970 after the departure of Willem Vis. The Institute's method of financing was drastically overhauled and staff salaries were pegged to those of the so-called co-ordinated organisations. Well do I recall the many hours spent with Jean-Pierre Plantard putting the new system into practice. The problem was how to reconcile the demands of member States' representatives with those of the then-President, Judge Ernesto Eula and the Secretary General who, although generally in favour of the change, sought to insulate UNIDROIT from any risk at this time of transition.
Malcolm Evans would probably never have come to Rome if it had not been for this "revolution", which lasted from 1966 into the early 1970s. He would most likely have continued to place his great energies and ability at the service of the Council of Europe or of some other international organisation, or he might have returned to the academic fold, having started out his professional life as a lecturer at Exeter University.
I first met Malcolm at a meeting in London in 1972 only months before, sponsored by Jean-Pierre Plantard, he joined the small Unidroit team as a researcher on 1 April 1973.
In those days, the Unidroit staff consisted, besides the President, the Secretary General and the Deputy Secretary General, of André Hennebicq, who became Second Deputy Secretary General that very year, and Professor Michael Joachim Bonell, who joined in 1973 and was soon to be entrusted with the task that has brought the Institute such renown since 1994. Other English-speaking colleagues were Martin Stanford, who mostly worked on the financial leasing project, together with Malcolm Evans with whom he formed a lifelong friendship reinforced by their common British roots, and Paula Howarth, whose work in the Unidroit Library was eventually to take her into the virtual world of Internet where she created the Unidroit website. Then there was François Mengin, who collected and prepared the material for the Uniform Law Review, which succeeded the "Unification of Law Yearbook" and "Uniform Law Cases" published on a regular basis until 1971.
Four new member States joined Unidroit in 1973: Australia, Iraq, Luxembourg and the German Democratic Republic, bringing the total membership to 48. Their joining was a powerful signal of the growing interest in the unification of law worldwide.
Such, then, was the institutional and organisational setting which Malcolm found on his arrival as a researcher at Unidroit, just when I was appointed director of the library in addition to my general administrative and management duties.
The year of Malcolm's arrival was a climacteric one for other reasons as well. The United States of America, which had joined Unidroit in 1964, sponsored a diplomatic Conference in Washington for the adoption of a Convention providing a Uniform Law on the Form of an International Will. It was the first time that a Unidroit project was submitted to a diplomatic Conference outside Europe, and it confirmed the Institute's standing as a international organisation of universal scope.
1973 also saw the conclusion of a round of meetings between organisations involved in the unification of law which Unidroit had organised on a more or less regular basis throughout the 1960s. The fifth and final meeting took place at Unidroit headquarters in Rome in April 1973, followed by a one-day seminar to study problems relating to the liability of transport operators, an area of the law in which Malcolm became increasingly absorbed as time went on, in part also following the untimely demise of the Unidroit expert in these matters.
As to the other subjects on the Unidroit work programme at the time, I particularly recall the first meeting of the committee of governmental experts set up to study a draft Uniform Law on the Acquisition in Good Faith of Corporeal Movables, a project based on a comparative law study conducted by Jean Georges Sauveplanne when he was Deputy Secretary General from 1958 to 1962. Although the governmental experts gave the green light at their third meeting in 1974, no Government could be found willing to organise a diplomatic Conference to turn it into an international Convention, consensus on some of the solutions put forward by the draft having proved elusive. The subject was dropped from the Unidroit Work Programme in 1985, but the idea lingered on and eventually UNESCO asked Unidroit to prepare a study which formed the basis for what, in the fullness of time, became the Unidroit Convention on Stolen or Illicitly Exported Cultural Objects, adopted in 1995.
The 1970s were years marked by a sustained effort to promote unification in transport law. While the Convention on the International Carriage of Goods by Road (CMR), which had been adopted in 1956 under the aegis of the United Nations Economic Commission for Europe on the basis of work carried out by Unidroit and was hailed as a major achievement, problems encountered in interpreting the instrument led to calls for its revision. The Unidroit Secretariat asked Professor Roland Loewe, a member of its Governing Council, to prepare a Comment to the Convention which has since become a classic of its kind.
Unidroit continued to work closely with the United Nations Economic Commission for Europe on several projects in the field of inland navigation. Unfortunately, a draft Convention relating to the Limitation of the Liability of Owners of Inland Navigation Vessels (CLN), adopted in 1973, never came into force, nor did the Convention on the Contract for the Carriage of Passengers and Luggage by Inland Waterway (CVN) adopted in 1976. As to the preparation of the draft Convention on the Contract for the Carriage of Goods by Inland Waterway, it was decided in 1975 to suspend work on this item after the third session of the committee of governmental experts in view of difficulties over the issue of exemption of carrier's liability for fault.
Other projects in the realm of transport included the question of the Legal Status of Air-cushion Vehicles; transport by pipeline; the gold clauses in the various transport Conventions; transport of live animals; and an idea first mooted during a study day organised in 1973, i.e. to harmonise carrier liability regimes in the various modes of transport. Work on some of these items never progressed beyond the preliminary study stage, whereas others made it to a committee of governmental experts, but in the end, for different reasons (lack of interest on the part of Governments, agreements concluded with other international co-ordinating bodies, or simply bad timing), no international instruments were adopted on any of these.
From transport to tourism was but a step. A study on hotelkeeper's liability had been launched some years earlier but was then suspended owing to the ill health of the rapporteur, W. Vanderperren. In 1973 however work resumed and a study group was formed which held its first meeting in 1974. A committee of governmental experts approved the draft prepared by the study group in 1978.
Malcolm Evans was involved in this project from its inception. Although the participating governmental experts were all favourably disposed towards the project, no Government could be found willing to brave the opposition of operators in the sector and organise the diplomatic Conference at which the draft might have become a Convention. Malcolm Evans, with the help of several members of the Governing Council, set out in person to revise the draft, seeking to eliminate or soften the impact of several provisions which placed the hotelkeepers at a disadvantage vis-à-vis their guests. To no avail, however: the hostility of the sector continued unabated. The Governing Council accordingly decided to drop the subject from the Work Programme in 1992.
It is my firm belief that the failure of this enterprise had a profound effect on Malcolm Evans' subsequent performance. It taught him, as it did all of us at Unidroit, that in drafting a legal text, the first golden rule is to make sure that all the various interests involved in a project are given due hearing. Malcolm, Joachim Bonell and I spent hours discussing this over the years, and in my view it was the miscarriage of the hotelkeepers scheme which subsequently encouraged Malcolm to develop his talent for finding the common ground, a talent for which he found ample outlet in his work in the Secretariat, in the Governing Council, in the General Assembly and in all the other bodies, study groups, expert committees and diplomatic Conferences in which he participated. Consensus was his watchword even where, for example in matters related to personnel management, this might at times be regarded as inappropriate. The curious thing about this aspect of his character was that in other ways, and in his private life, he loved a challenge, and in some of his enthusiasms even displayed just a hint of the fanatic.
For example, when there were elections in the air, be it at home in the United Kingdom or elsewhere in Europe or in the United States, he would get quite carried away and conduct his own statistical analyses and forecasts as though he were an opinion pollster himself. He would tell us not to expect him at the office, or perhaps to expect him late, the day after polling because he would be busy monitoring results minute by minute and comparing them with his own prognostications. Such unbridled passion was not what we were used to when he was working on Unidroit projects or seeing to the administrative affairs of the Institute.
I beg indulgence for this digression, but I think it throws light on Malcolm's subsequent method of operating. I now take up my pen again to resume my description of what life at Unidroit was like when Malcolm joined the Institute.
The Institute, then, was involved in a great many projects in those years and while some of these did not quite make the grade, for others on the contrary it was only the beginning of a process which twenty years on was to result in one of Unidroit's greatest achievements, one which has made legal history as far as the fundamental techniques and concepts of uniform law itself are concerned. Initially referred to as the "progressive codification of international trade law", the idea of devising harmonised rules for international commercial contracts acceptable to all legal systems matured in the wake of a study by Professor Tudor Popescu. The Governing Council had appointed a steering committee in 1973 made up, besides Professor Popescu, who represented what were then the Socialist systems, of Professors René David for the civil law systems and Clive Schmitthoff for the common law systems, and Michael Joachim Bonell on behalf of the Unidroit Secretariat. While the latter was heavily implicated in the work from the outset, and was subsequently appointed chairman of the working group set up in 1980 to prepare what were to become the UNIDROIT Principles, Malcolm Evans' involvement was more gradual. Once he did join the fray, however, the unmistakable imprint of his constructive mind was soon evident, not least in the drafting and presentation of the final version, and for this he deserves to be regarded as one of the architects of this opera magna.
In 1974, Jean-Pierre Plantard completed his mandate and returned to France. In the Spring of that same year Ernesto Eula, after fifteen years as President of the Institute, handed over the reins to Mario Matteucci, who for another year combined his charge with that Secretary General, a post he had held since 1945.
The following year was overshadowed by the demise, after a long illness, of André Hennebicq, depriving the Institute of his long experience in matters of transport. Professor Riccardo Monaco was appointed Secretary General and Malcolm Evans was asked by President Matteucci to take upon himself the duties of Deputy Secretary General ad interim.
1975 saw a host of new projects and Malcolm Evans threw himself into the work with great determination. Of course, he was able to rely on the guidance both of the President, who knew the Institute inside out, and of the Secretary General, a skilled negotiator who combined extensive diplomatic experience with great legal expertise.
Especially noteworthy that year were two studies which were to bear fruit many years later (in 1988). One was the Unidroit Convention on International Leasing, a project conducted by Martin Stanford on behalf of the Unidroit Secretariat, the other the Unidroit Convention on International Factoring, in which Frédérique Mestre also participated. Throughout the preparatory stages of these projects, Malcolm demonstrated that he had taken the lessons of the past to heart. He was always at pains to involve all the parties concerned, and set great store by the active participation, not only of the scholars whose job it was to solve the legal riddles arising along the way but also the professional (commercial) circles that would eventually have to live with the instruments thus prepared. His negotiating finesse and his human qualities came into their own at the diplomatic Conference held in Ottawa in 1988 at the invitation of the Canadian Government and at which the two Unidroit Conventions on International Financial Leasing and on International Factoring were adopted. Unidroit may be justly proud of these two instruments, not only because they continue to attract new accessions but also because they have since formed the starting point and become a yardstick for other work carried out both by Unidroit and by other organisations.
Another study carried out at the request of the United Nations Economic Commission for Europe, on Civil Liability for Damage Resulting from the Carriage of Dangerous Goods, eventually led to the adoption, under ECE/UN auspices, of the Convention on Civil Liability for Damages caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels in Geneva, 1989. The project had taken no fewer than seven sessions of governmental experts at Unidroit before it was completed in 1986. Malcolm Evans had been so involved in the work that the Commission asked him to prepare the explanatory report, a document crucial to the proper understanding of the Convention itself.
Still in 1975, the Governing Council commissioned a study from Dr Donald Hill on warehousing contracts, a preliminary draft Convention on which was submitted to UNCITRAL in 1983 and there substantially amended until it was adopted by a diplomatic Conference in Vienna in 1991, as the United Nations Convention on the Liability of Operators of Transport Terminals in International Trade.
All these projects were conducted under the overall guidance of Malcolm Evans. He followed every move, every development, he participated in countless meetings of study groups, committees of governmental experts or drafting committees, and organised the work so as to ensure it every chance of success.
Come 1976, Malcolm was formally appointed Deputy Secretary General, just as the Institute was celebrating its fiftieth anniversary with a major Congress on "Private and Public Aspects of International Commercial Law", held in Rome. It was an occasion which afforded Malcolm greater insight into just what the Institute had achieved in half a century.
In 1977 the Governing Council approved a work programme pruned of several items related to transport and including various new topics, among which a preliminary study on international procurement was conducted by the Swiss lawyer, Nico Zachman. As the main projects progressed, another French-language research officer joined the Secretariat, Marie Christine Rault. She, together with her English-speaking colleague, Claudia Vlok, who had joined the staff some time before, ensured the linguistic balance in the Institute's work. Malcolm meanwhile was Unidroit's ambassador for the various projects at the leading international organisations.
Work carried out by Unidroit in the early years of its existence on the subject of agency had resulted, in 1972, in the adoption by a committee of governmental experts of a draft Uniform Law dealing with the practical aspects of agency contracts of an international character for the sale and purchase of goods. As the 1970s drew to a close, the Government of the Socialist Republic of Romania hosted a diplomatic Conference in Bucharest in 1979 to adopt the draft but, partly because of working conditions, partly owing to the Socialist delegates' insistence that Chapter III on relations between agent and intermediary be discussed despite opposition by Western delegates, the Conference was unsuccessful.
As a consequence, the Governing Council decided to appoint a committee of wise men in 1981, which eventually recommended that Chapter III be deleted from the preliminary draft. That same year, the committee of governmental experts followed this advice and in 1983 a diplomatic Conference held in Geneva at the invitation of the Swiss Government culminated in the adoption of the Convention on Agency in the International Sale of Goods.
Malcolm's diplomatic talents and Joachim Bonell's tireless efforts in co-ordinating the solutions proposed by the committee of wise men proved vital in smoothing the ruffled feathers of Governments and those members of the Governing Council who, although well aware that there was little the Secretariat could have done to prevent the earlier unhappy turn of events, had tended rather to blame the Secretarial team for the Bucharest fiasco.
Upon the expiry of Mario Matteucci's mandate, Professor Riccardo Monaco became President of the Institute in 1985. He immediately proposed that Malcolm Evans' prodigious labours as Deputy Secretary General receive due reward by appointing him Secretary General, a proposal which the Governing Council, knowing Malcolm and his dedication to the Institute and its works, wholeheartedly seconded. It was this dedication and selflessness which was to come to full maturity in the years that followed.
1986 saw the advent of two new topics which broke with tradition, and very successfully so.
To begin with, the Institute was asked to include in its Work Programme the subject of franchising, and to explore whether there was a need for uniform rules in this field and whether the requisite pre-conditions existed. Work on this project was entrusted to Lena Peters and Marina Schneider, and together they prepared a comparative study on the basis of which the Governing Council decided to include the item in the Work Programme. This franchising project was initially given a fairly low priority rating, and it was not until 1993 that a study group was formed in whose work the International Bar Association took an active part. Eventually, thanks to the efforts of Lena Peters, the project resulted in the publication of a Guide to International Master Franchise Arrangements in 1998.
Secondly, at the request of UNESCO, Unidroit launched an enquiry into the international protection of cultural property, in the light in particular of the 1974 Unidroit draft Convention providing a uniform law on the acquisition in good faith of corporeal movables and of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This study was prepared by Dr Gerte Reichelt, and the Governing Council after due consideration decided to include the protection of cultural property in the 1987-1989 Work Programme.
The cultural property project immediately aroused great interest and a study group was set up, later followed by a committee of governmental experts, whose sessions were so well-attended and its deliberations so spirited as quite to evoke the mood of a diplomatic Conference. In 1995 a diplomatic Conference in Rome led to the adoption of the Unidroit Convention on Stolen or Illegally Exported Cultural Objects.
Malcolm, together with Marina Schneider, gave to this project, which was one of great technical and political complexity, the full measure of his experience and enthusiasm. Alongside Professor Pierre Lalive, the distinguished chairman of the committee of governmental experts and later of the Committee of the Whole at the diplomatic Conference, he played a key role in bringing the Convention to a successful conclusion. Together they steered this difficult project through many a sticky passage and kept it on course despite widespread scepticism as to its chances of success in the face of the overt hostility of art dealers and some of the more intransigent among the art exporting and importing countries. It is a great pity that Malcolm was not there to see his exertions vindicated by the entry into force, after barely three years, of this Convention, thanks also to Marina Schneider who carried on the promotional work.
In the light of his experience with the hotelkeepers project, Malcolm might have been forgiven for any misgivings he might have felt as to the likelihood of bringing this project to a happy conclusion. He was only too well aware of the technical difficulties that loomed and mindful, also, of the work put in hand by the European Community after Unidroit had commenced its own project. However, he was convinced that something had to be done to protect our cultural heritage and he steadfastly attended all the daytime and night-time sessions first of the expert committee, then of the diplomatic Conference where his tremendous energy, verve and consummate skill as a mediator helped to carry the day. It was this force of character which was to sustain him some years later in his battle against the disease which finally took him from us.
While the cultural property project was still only just getting into its stride, Unidroit organised its third private law congress in 1987 devoted to "Uniform Law in Practice". Like its predecessor in 1976, the event proved a huge success, thanks to the topic addressed and to the high level of contributions, both doctrinal and practical.
One lesson learned from this Congress was the need to foster greater public awareness of international law instruments and of their impact on the different legal systems. Malcolm, who had only just been appointed Secretary General, seized the opportunity to air his ideas on the proper function of the Secretariat of an international organisation. The debacle of the 1979 Bucharest Conference and the failure of the hotelkeepers' project prompted him to assert that it was not enough for a Secretariat simply to carry out whichever project might be wished upon it. Experience, he argued, had shown that once the procedure of "constituting study groups or committees of governmental experts had got underway, and then further down the road again, possibly towards the convening of a diplomatic Conference, it became increasingly difficult to halt the process."
That was why, he contended, "all organisations will probably have felt that it would perhaps have been desirable at some stage to have stopped work on a particular subject," and "while the Secretariat role must essentially be one of servicing the organisation and of actively promoting the task of unification ... it also has a duty, when appropriate, to counsel prudence." And prudence was the enduring hallmark of Malcolm's time at the helm of the Unidroit Secretariat.
In the aftermath of the adoption, in 1988, of the Unidroit Convention on International Financial Leasing, another project had been launched dealing with international interests in mobile equipment. Martin Stanford, as its co-ordinator for the Unidroit Secretariat, the ever-creative Professor Roy Goode, as chairman of the study group, and the energetic Jeffrey Wool, who represented aviation interests, only had the benefit of Malcolm's participation in the earlier stages of this project, which seems set to become yet another feather in the Institute's cap, particularly on the far side of the Atlantic, where the UNIDROIT Principles and the Cultural Property Convention had earlier afforded Malcolm a welcome opportunity to further the Institute's reputation.
1994 was marked by the demise of Mario Matteucci, who deserves greater recognition for what he did for the Institute. Professor Riccardo Monaco completed his term as President and in 1995 was succeeded by Professor Luigi Ferrari Bravo, whose arrival coincided with the refurbishment of the Uniform Law Review, a task entrusted to Frédérique Mestre who, with the technical and linguistic assistance of Patricia de Seume, created a publication in which Malcolm Evans grew increasingly absorbed. He spent long hours at home working on the new-style Review, making no secret of the fact that he found great intellectual solace in the analysis of uniform case law and the perusal of articles commenting the various international uniform law instruments. Diplomacy and the management of Unidroit's affairs were beginning to take a back seat as his earlier passion for meticulous scientific research re-surfaced.
In the last months of his life we spent much time in each other's company and although his illness progressed rapidly, what we talked about most was our work together and the hopes and plans we had for Unidroit. Of course, we did not always see eye to eye, but on the whole we shared a common vision of the future of the Institute to which we had confidently expected to say goodbye at much the same time.
Malcolm was so very fond of music. His collection of classical records - later also tapes and CDs in deference to the times - was one of the most extensive I have ever come across. He loved the harmony of musical composition, the natural sequence of overture, phrasing and finale. It was that harmony which he desired not only in his private life, but also wished his tenure at Unidroit to reflect. Alas, that not all dreams come true.