: 
By Duncan Alford
Duncan E. Alford (formerly Head of
Reference at the Georgetown University Law Library, Georgetown University Law Center,
Washington, D.C.) is Associate Dean for Library and Information Services and Associate
Professor of Law at Charlotte School of Law, North Carolina.
Prior
to joining the staff of the Georgetown University Law Library, he was the Law
Librarian and European Union Specialist at Princeton University, and a
Reference Librarian at the Columbia University Law Library in New York
City. Before deciding on a career
in law librarianship he was a partner in the law firm of Robinson, Bradshaw
& Hinson in Charlotte NC and Rock Hill SC, and practiced corporate law in
Atlanta, GA. Mr. Alford has
published numerous articles on legal research and copyright law. He graduated
from the University of North Carolina School of Law and from the School of
Library and Information Science at the University of South Carolina, and received
his undergraduate degree from the University of Virginia.
Published February
2005
Read the Update!
Since
World War II, international trade has grown exponentially and with it the
importance of international law.
With the increased business between companies in different nations, the
need for increased harmonization of commercial laws has become apparent. Knowledge of international commercial
law has become important for the transactional lawyer, even those outside major
metropolitan areas. Recently,
Lexis Nexis and the International Bar Association jointly sponsored a survey of
attorneys in eight countries, including the United States. The results of the survey reveal that while
the practice of law is still largely domestic, the convergence of laws in certain
areas, particularly trade and investment, is occurring. The vast majority of the attorneys
surveyed believed that the international standardization of trade and investment
law would be beneficial.
This
guide collects sources for these harmonized commercial laws and guides the
legal researcher to Internet sources on this complicated area of international
law. The guide begins with a
discussion of the intergovernmental organizations (in some cases supranational)
whose purpose is to harmonize commercial laws. The guide then identifies the important treaties that have
harmonized commercial law, particularly the law of the sale of goods, and
finally identifies research institutes that support the harmonization of
commercial law. I have
purposefully excluded conventions dealing with the transport of goods, the
taking of evidence, arbitration and procedural matters from this article. Documents of GATT and the World Trade
Organization are also excluded. An
excellent guide to international trade sources -- International Trade Law Sources on the Internet
-- is available here: http://www.llrx.com/features/trade3.htm
One of the overarching
goals of the European Union is the harmonization of private law as part of the
development of the internal market.
The acquis communautaire refers to the body of European Union (“EU”)
law that must be adopted by each Member State upon joining the European
Union. A significant part of the acquis
includes uniform commercial law, which is a tool in developing the internal
market. The harmonization of
contract law among EU member states has occurred thus far by the passage of
directives and regulations, two types of EU legislation.
The EU has made strides in
this area and the European Commission in 2003 set forth an action plan on the
harmonization of contract law within the EU [A More Coherent European Contract
Law: An Action Plan, COM (2003) 68 (12 February 2003), 2003 O.J. (C 63) (March
15, 2003)]. The Action Plan is a
joint effort of the Internal Market, Enterprise and Health Protection and
Consumer Affairs Directorates General of the European Commission.
Further information on
this action plan is available at the Commission’s Health Protection and Consumer
Affairs web site.
Comments on the Action
Plan, both negative and positive, are available at the web site of the Directorate General for Health
Protection and Consumer Affairs.
In 1989, the European
Parliament first proposed the adoption of a European Civil Code. 1989 O.J. (C 158); 1994 O.J. (C 205);
2000 O.J. (C 377). The European
Commission responded to the Parliament’s call in a Commission document, COM
(2001) 398, 2001 O.J. (C255) (Sept. 9, 2001). Annex I of this document summarizes the acquis communautaire
that deals with private law, in particular, the law of contract. Annex II summarizes relevant
international treaties dealing with substantive contract law issues. Annex III analyzes the structure of the
then existing EU directives on contract law and relevant international
treaties. Documents published in
the Official Journal of the European Union (or O.J.) after January 1, 1998, are
available in full-text online.
Common Frame of Reference
Network – CFR Net
The European Commission is
organizing this network of experts who will aid in the development of the
“common frame of reference” called for in the Action Plan. Members will include attorneys and consumer
groups among other stakeholders in the development of European contract law.
European Judicial Network in
Civil and Commercial Matters
Sponsored by the European
Commission, this network aims to “outline various national systems of civil and
commercial law.” It does not
intend to provide legal advice.
The site includes a useful
page on “applicable law” or
choice of law, and a separate page on applicable law discussing the
relationship between the 1980 Rome Convention on the Law Applicable to
Contractual Obligations and the Brussels I Regulation discussed in the Treaties section below.
The EU has harmonized
selected national laws of Member States in the process of creating a unified
internal market. A detailed
discussion of European Union law, types of EU legislation, the legislative
process and EU institutions is beyond the scope of this article. However, several useful research guides
on EU law are available including:
International Jurisdiction in European Union
E-commerce Contracts
European Union Law: An Integrated Guide to Electronic
and Print Research
Accessing European Union Information,
European Commission Delegation, Washington, D.C.
This intergovernmental
organization was created pursuant to the Treaty on the Harmonization of
Business Law in Africa among Benin, Burkina Faso, Cameroon, Central African
Republic, Chad, Comoros, Congo, Cote d’Ivoire, Gabon, Equatorial Guinea, Mali,
Niger, Senegal and Togo. Oct. 17, 1993, 1997 Journal
Officiel de l’OHADA, No. 4, (Official Journal of the Organization
for the Harmonization of Business Law in Africa (OHADA)), November 1, 1997,
available online.
The treaty creates the
institutions and structure for the harmonization of the law of contract,
business organizations, securities, bankruptcy and arbitration in the member
states. A Common Court of Justice
and Arbitrage based in Abidjan, Cote d’Ivoire, is available to hear disputes.
OHADA has drafted and the
member nations have adopted several uniform acts, including a uniform act
relating to general commercial law adopted in 1997. The texts of these acts
are available online.
Unidroit (described below)
is assisting OHADA in drafting a Uniform Act on Contracts.
The harmonization of
commercial law has frequently been brought about by the adoption and
ratification of treaties (primarily multilateral) that govern selected areas of
commercial law. This section
describes the primary treaties dealing with commercial contracts. A discussion of treaty research is
beyond the scope of this article.
Useful guides on treaty research include:
Researching U.S. Treaties and Agreements
UN Convention on Contracts
for the International Sale of Goods, 1489 U.N.T.S. 3, 19 I.L.M. 671 (April 10,
1980) (UN Treaty Registration No. 25567).
Protocol Amending the Convention of the Limitation Period in the
International Sale of Goods, 1511 U.N.T.S. 77, 19 I.L.M. 696 (1980).
Arguably the
most successful of the international contract treaties, over 60 nations have
adopted the UN Convention, including the United States and most Western
European nations. Notable
exceptions are the United Kingdom and Japan. This treaty is frequently referred
to as CISG or UN CISG.
Because of the relatively
wide acceptance of the UN CISG, several excellent web resources on the treaty
and court decisions interpreting the treaty provisions are available. Some of the better resources include:
Claire
Germain, United Nations Convention on
Contracts for the International Sale of Goods: Guide to Research and Literature
Pace
University Law Library Database on CISG and
International Commercial Law
Contains
the text of the treaty, cases interpreting the treaty, and scholarly writings
on the treaty.
Unidroit Database on CISG Case Law
Contains
both cases and a bibliography on the CISG.
University of Freiburg,
Germany
In
German only
Provides
links to Japanese cases and arbitral awards on the CISG. Abstracts in English are available.
Autonomous Network of CISG Web Sites
This
site lists web sites on the CISG maintained by universities and other groups in
various countries around the world.
Thus far, there are 5 sites in the Americas, 11 sites in Europe, two in
the Middle East, and one each in Australia, Japan and Africa. The goal is to create a site in every
nation that will provide updates on the application of the CISG in that nation.
UNCITRAL Digest of Caselaw on the United Nations
Convention on the International Sale of Goods
A
digest of cases interpreting the UN Convention, organized by treaty
article. Provides links to PDF
versions of the digest and includes the United Nations document number for each
analysis.
This international
organization began as part of the League of Nations and became an official
international governmental organization in 1940. Unidroit currently has 59 members and has produced ten
formal conventions, most recently the UNIDROIT Convention on International
Interests in Mobile Equipment discussed further below, and numerous drafts and
studies on international private law.
This database, available
in both English and French, will eventually provide access to the Unidroit
conventions, cases interpreting each convention and secondary sources on the
convention. The database has begun
with the 1956 Convention on the Contract for International Carriage of Goods by
Road, 399 U.N.T.S. 189.
Unidroit Conventions
- Full text versions are available online.
UNIDROIT Convention on International
Interests in Mobile Equipment (November 2001), also known as the
Cape Town Convention, this treaty entered into force on April 1, 2004 and
harmonizes the laws of secured transactions where the collateral consists of
mobile equipment. Twenty (25)
nations signed the treaty, including the United States, France, Germany and the
United Kingdom. Protocol to the Convention on
International Interests in Mobile Equipment on Matters Specific to Aircraft
Equipment.
UNIDROIT publishes this
scholarly journal. The table
contents and the full-text of leading articles since 1997 are available on
their site. Further information on
obtaining back issues of this journal, which has been published since 1948, is
also available here.
This quarterly newsletter
on the various activities of UNIDROIT is a regular feature of the Uniform Law
Review described above. Selected
issues since 1997 are available full-text on the Web.
In addition to the
directives and regulations mentioned above, the Member States have entered into
several treaties governing contract law.
Some of these treaties were later replaced with EU regulations.
Rome Convention on Law
Applicable to Contractual Obligations, 1980 O.J. (L 266), 19 I.L.M. 1492
(1980). Consolidated version
published at 1998 O.J. (C 27) 36.
Report on the Convention on the Law Applicable to Contractual
Obligations by Mario Giuliano, Professor, University of Milan, and Paul
Lagarde, Professor, University of Paris I, 1980 O.J. (C 282) 1 (October
31, 1980). A fifty page
explanatory report on the Convention provides an article by article analysis
and a brief history of the negotiation of the Convention.
The European Court of
Justice based in Luxembourg has jurisdiction to hear disputes governed by this
treaty. See the First Protocol on
the Interpretation by the Court of the European Communities of the Convention on the Law
Applicable to Contractual Obligations, Article 2.
Rome-convention.org – On-line
database on the Convention on the Law Applicable to Contractual Obligations
The Academy of European
Law Trier maintains this very useful website that contains the text of the Rome
Convention and its protocols, the Giuliano-Lagarde explanatory report mentioned
above, a database of court cases that interpret the Rome Convention, and a
bibliography of articles and reports on the Rome Convention.
1968 Brussels Convention
on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters, 1998 O.J. (C27) 1. The
European Court of Justice has jurisdiction to issue preliminary rulings under
this Convention. See the Protocol to the Convention.
The Brussels I Regulation
replaced the above convention. Council Reg. 44/2001/EC of 22 December 2000, On
Jurisdiction and the Recognition and Enforcement of Judgments in Civil and
Commercial Matters, 2001 O.J. (L 12).
Lugano Convention (Oct.
24, 1998), 1998 O.J. (L 319) 9, 28
I.L.M. 620 (1998). This convention
adopts the same principles as the 1968 Brussels Convention above but applies to
the Member States of the EU and the European Free Trade Association (Iceland,
Norway, and Switzerland).
Originally founded as the
Pan-American Union, this international organization with headquarters in Washington, D.C.
has worked in many fields dealing with the Americas, with varying degrees of
success. Beginning in 1975, the
OAS has sponsored quadrennial conferences on private international law that
have resulted in the drafting of several conventions. More information on these conferences known as the
Inter-American Specialized Conferences on Private International Law (CIDIP) is
available on the OAS web site.
InterAmerican Convention
on the General Rules of Private International Law, Montevideo 1979, OAS Treaty
Series No. 54, 1457 U.N.T.S. 6, 18 I.L.M. 1236 (1979) (CIDIP II). Also available at the OAS Treaties database.
1994 InterAmerican
Convention on Law Applicable to International Contracts (Mexico City
Convention), OAS Treaty Series No. 78, 33 I.L.M. 732 (CIDIP V). Also available from the OAS web site. This treaty, signed by Bolivia, Brazil,
Mexico, Uruguay, and Venezuela, has been ratified by Mexico and Venezuela and
entered into force on December 15, 1996.
OAS Model Law on Secured
Transactions, OEA/Ser.K/XXI.6, CIDIP-VI/RES. 5/02, 41 I.L.M. 1038 (2002) reprinted
in the Final Act of Sixth Inter-American Conference on Private International
Law (CIDIP-VI).
Documents from the Sixth
and Seventh Inter-American Conferences on Private International Law (CIDIP-VI
and CIDIP-VII) are available on the OAS website. Click on “International Law” in the
Sectors and Areas drop down window at the top center of the OAS home page.
UNCITRAL consists of
delegations from 36 nations appointed by the U.N. General Assembly on a
rotating basis. The Commission
acts through expert working groups, and has drafted conventions dealing with
commercial law and been markedly more productive since the end of the Cold War.
Case Law on UNCITRAL Texts (CLOUT)
Database on court
decisions and arbitral awards related to UNCITRAL texts, including both
conventions and model laws.
The yearbook is a
compendium of UNCITRAL documents for that year. The Annexes include a bibliography of journal articles on
UNCITRAL’s work and a Checklist of UNCITRAL documents. Volumes 1 – 26 for the years 1968 –
1995 are available on the Web.
UNCITRAL Convention on Assignment of Receivables in International
Trade (July 2001) available on the page entitled Adopted Texts. Reprinted in full at 41 I.L.M. 776
(2002), 11 Tulane Journal of International and Comparative Law 247 (2003).
Founded in 1893, the Hague
Conference has as its purpose “to work for the progressive unification of the
rules of private international law.” Statute of the Hague Conference, Article
1. The conference has drafted
dozens of treaties dealing with family law, testamentary disposition and
commercial law, particularly the sale of goods and the recognition of foreign
judgments. The Hague Conference
has 45 members, many of which are also members of UNIDROIT.
Convention on the Law
Applicable to Contracts for the International Sale of Goods, 24
I.L.M. 1573 (1986). This
convention revised the 1955 treaty listed below and was drafted to complement
the 1980 UN Convention on the International Sale of Goods (“UN CISG”). Only four countries have signed this
treaty thus far and it is not yet in force. The UN CISG excludes certain contracts from its provisions,
such as consumer contracts and contracts for aircraft, and the parties to a
contract have the ability to opt out entirely from the UN treaty. This convention would apply to those
contracts excluded from the UN CISG where the parties have not specifically
selected the governing law. This web site contains
the full-text of the treaty and a bibliography of sources discussing or
analyzing the treaty.
Convention on the Law
Applicable to Contracts for the International Sale of Goods, 510 U.N.T.S. 147
(1955). Twelve nations have signed
this convention which entered into force in 1964. The full-text of the treaty
and a bibliography of sources
discussing or analyzing the treaty can be found online.
A project of the
International Economic Law Interest Group of the American Society of Law, this
collection of documents is available online through Westlaw and LexisNexis. While the online database does not
appear to have documents from the most recent few years, this fee database
provides relatively easy access to many of the treaties mentioned in this
article.
Maintained by the Office
of the Legal Adviser, the section entitled “Trade / Business Transactions Law”
is the most relevant section. It
contains a list of commercial treaties to which the U.S. is a party, treaties
the U.S. is considering for ratification, treaties to which the U.S. is not a
party, and other private international law documents and provides links to the
full-text of the treaties listed.
The
previous section describes the more important treaties dealing with contract
law and the intergovernmental organizations that either drafted or sponsored
such treaties. Other organizations
have issued standards, principles or best practices related to commercial
law. While these types of documents
do not rise to the level of an enforceable treaty, they have been influential
in the practice of international commercial law and have been cited by courts
and arbitrators as sources of authority.
These principles,
available currently in English and French, were originally developed in 1994 by
an international working group of academic attorneys representing all major
legal systems of the world. In
April 2004 the Unidroit Governing Council adopted this revised version of the
Principles. Documents of the
working groups that drafted the 2004 Principles are
also available at the Unidroit web site.
The 1994 Unidroit Principles
are available in 15 languages:
Database on Case Law and a Bibliography on the Unidroit
Principles
This commission (also
known as the Lando Commission), composed of leading academics in Europe,
drafted the Principles of European Contract Law in 1999 but began its
deliberations in 1982. The
European Parliament supported the Commission’s work (Resolution, 6 May 1994).
Principles of European
Contract Law
These
principles, available in six European languages, are roughly equivalent to the
Restatement of the Law of Contracts developed in the United States by the American Law Institute.
This industry group based
in Paris has been influential in harmonizing international contract terms as well
as arbitration practices.
International
Commercial Terms
defines certain terms used in international trade that are frequently
incorporated into international sales contracts. The latest version of Incoterms was published in 2000 with
the previous edition published in 1993.
The ICC began publishing these definitions in 1936 with subsequent
revisions. The preambles of the
thirteen terms are available on the web site. The table of contents of Incoterms
2000 can be found online.
The ICC has also published
the definitions of terms and guidelines for their use in documentary credits
frequently encountered in international trade -- Uniform Customs and Practice
for Documentary Credits -- UCP 500 (Table of contents only;
full-text is not available free online)
Sponsored by the
University of Girona in Spain, this web site provides links to sources on
European private law.
References on European Private Law
(updated regularly) is a bibliography of sources on private law.
Material on European Private Law provides
links to EU Directives, treaties and principles dealing with commercial law.
This
portal and bibliographic guide to international business law is intended as a
starting point for research. It
provides links to relevant treaties and conventions as well as sources of
information on the Web.
Organized
by legal principle or rule, the database provides access to material taken from
international arbitral awards, domestic statutes, international conventions,
standard contract forms, trade practices and usages, other sample clauses and
academic sources.
This joint initiative of
the University of Maastricht and the Catholic University of Leuven endeavors to
develop casebooks on various aspects of European law. The case books emphasize the effect of EU law and the law of
the European Court of Human Rights on the harmonization of European law.
A list of published casebooks and casebooks in process
is available online.
Of particular interest is
the casebook on Contract Law
published in 2002. Its detailed
table of contents is available online.
Founded in 2000, the
Institute focuses on the research and teaching of comparative law and includes
English translations of selected French and German statutes and cases from
selected foreign nations. The Institute
on its web site maintains translations in English of selected court decisions
from France, Germany, Austria, Italy and Israel.
A non-profit cooperative
with the purpose of providing free access to legal information worldwide, this
site includes a useful page on international contracts.
Based in Florence, Italy,
the European University Institute is an academic institution focused on all
aspects of European Union policy and law.
The European Private Law Forum, a part of the Law Department, conducts
research on and teaches in the area of European private law, broadly
defined. This web site provides
links to ongoing research projects and working papers.
Sponsored
by Cameron May, Ltd., the University of Oslo Faculty of Law and Pace
University’s Institute of International Commercial Law, this portal provides
links to primary sources dealing with international business law. The section entitled “Private
International Commercial Law” provides links to relevant documents on the
harmonization of contract law.
This research project has
the goal of determining the common principles of European private law among the
Member States of the European Union and secondarily of building a common
European legal culture.
Affiliated with the
University of Rome and UNIDROIT, this research center maintains the UNILEX
database covering the UN CISG and the Unidroit Principles on International
Commercial Contracts, both mentioned above. Publications of the Centre are available in PDF on its web
site.
Affiliated with the
Graduate Institute of International Studies, this non-profit research center
has promoted research in international banking and finance since 1972.
A joint venture of the
International Trade Centre of UNCTAD/WTO, the University of Nancy, France, and
the University of Montreal, Canada, this site contains model contracts,
international trade treaties, and other legal documents in searchable
databases. Documents are available
in English, French and Spanish.
More information about Juris International is available at this site: http://www.jurisint.org/pub/pres_en.htm.
The EBRD undertakes
initiatives to facilitate the transition of Central and East European nations
to free market economies that respect the rule of law. While it has not yet focused on
commercial contract law, programs have been initiated to reform the laws
governing insolvency, secured transactions, and capital markets among others.
Provides links and sources
to laws governing international sales and contracts. This guide is particularly good about highlighting relevant
web sites of the U.S. government.
A good overview of electronic
resources on private international law, this site discusses many of the
organizations mentioned in this article.
Provides links to primary
documents, web sites and research guides on various international legal
topics.
Germain’s Transnational
Law Research: A Guide for Attorneys, New York, Transnational Publishers,
updated annually. Chapter II:
Foreign and International Law: Substantive Issues - Two sections in this
chapter deal with the harmonization of international law: 03, Unification of
Laws, and 2.04, Unification of Private International Law in the U.S.
This international
consortium of 160 commercial law firms founded in 1989 provides guides to
business law on its web site. Two
of its better guides are:
Resource Guide to
International Business Transactions, Hazel Johnson, McGuire Woods,
LLP, Richmond, VA
Prepared
by attorneys in member firms of Lex Mundi, these guides give a brief overview
of the legal system and economies of various nations and selected states in the
United States.
This guide has entries on
nearly every international organization mentioned in this article.
This joint initiative of
the University of Maastricht and the Catholic University of Leuven endeavors to
develop casebooks on various aspects of European law. The case books emphasize the effect of EU law and the law of
the European Court of Human Rights on the harmonization of European law.
A list of published casebooks (including
tables of contents, citations to book reviews, and order information) and a list of casebooks in process with a
provisional table of contents are both available online.
George Mason University,
School of Law, Washington, D.C, USA
International Commercial
Transactions, Analysis of CISG, Professor Cavanaugh
University of Tromso,
Faculty of Law, Norway
International Sales Law (Spring
2002), Syllabus, Prof. Petri Keskitalo
University of Oslo,
Faculty of Law, Norway
Georgetown University,
School of Law
International Trade Law and
WTO, Study Plan, Prof. John H. Jackson
University of California
at Los Angeles
International Business
Transactions, Course Materials, Prof. Richard Steinberg
Indiana University, School
of Law, Bloomington, IN
International Business
Transactions, Course Materials, Prof. Christiana Ochoa
Jurist – Law School Course Pages
This
guide focuses on free Internet sites that are sources of information on the
harmonization of international commercial law, particularly contract law. Due to its relatively short length, I
necessarily limited my discussion to the more prominent treaties and
international organizations. The
related topics of European Union law, treaty research, and international trade
law are beyond the scope of this guide.
Detailed guides on these related topics (many of which were referred to
above) are available on LLRX and other web sites.