UPDATE: A Guide on the Harmonization of International Commercial Law

 

By Duncan Alford

Updated by Matthew Novak

 

Matthew Novak is an Associate Professor of Law Library and reference librarian at the Schmid Law Library of the University of Nebraska-Lincoln College of Law. Prior to joining the Schmid Law Library, he was an Assistant Public Defender with the Missouri Public Defender System. He teaches courses which focus on foreign and international legal research. He received his B.A. from the University of Nebraska-Lincoln, his J.D. from the University of Nebraska-Lincoln College of Law, and his M.A. in Library Science from the University of Missouri-Columbia.

 

Published October 2016

(Previously updated by Duncan Alford in Oct. 2009 and Oct. 2012)

See the Archive Version!

 

Table of Contents

1.      Introduction

2.     Supranational and Regional Organizations

2.1.   European Union

2.2.  Organization for the Harmonization of Business Law in Africa (OHADA)

2.3.  Union of South American Nations (UNASUR/UNASUL)

2.4.  MERCOSUR/MERCOSUL

2.5.   Andean Community of Nations

2.6.  African Union (AU)

2.7.   Arab Maghreb Union (UMA)

2.8.  Common Market for Eastern and Southern Africa (COMESA)

2.9.  Community of Sahel-Saharan States (CEN-SAD)

2.10.East African Community (EAC)

2.11. Economic Community of Central African States (ECCAS/CEEAC)

2.12.Economic Community of West African States (ECOWAS)

2.13.Intergovernmental Authority on Development (IGAD)

2.14.Southern African Development Community (SADC)

3.     Treaties

3.1. United Nations Commission on International Trade Law (UNCITRAL)

3.2. International Institute for the Unification of Private Law (UNIDROIT)

3.3.         European Union

3.4.         Organization of American States (OAS)

3.5.          Hague Conference on International Private Law

3.6.         Basic Documents on International Economic Law

3.7.          Private International Law Database - U.S. State Department

3.8.         African Commission on International Law (AUCIL)

4.     Soft Law

4.1. UNIDROIT Principles on International Commercial Contracts

4.2. Hague Principles on Choice of Law in International Commercial Contracts

4.3. Commission on European Contract Law

4.4. Study Group on a European Civil Code (SGECC)

4.5. Project Group Restatement of European Insurance Contract Law

4.6. European Research Group on Existing EC Private Law (Acquis Group)

4.7. Accademia dei Giusprivatisti Europei

4.8. International Chamber of Commerce

5.    Research Institutes and Think Tanks

6.    Research Guides and Bibliographies

7.    Teaching Materials

8.    Conclusion

 

1.     INTRODUCTION

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. Several years ago, LexisNexis 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 then believed that the international standardization of trade and investment law would be beneficial.

 

This guide collects sources for these harmonized commercial laws and leads 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, insolvency, 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 at the LLRX.com website.

 

2.     SUPRANATIONAL AND REGIONAL ORGANIZATIONS

 

2.1.          European Union

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 internal market comprises “an area without internal frontiers within which the free movement of goods, persons, services and capital is ensured” (TFEU art. 26). The acquis communautaire refers to the body of European Union (“EU”) law that must be adopted by each Member State upon joining the EU. The chapters of the acquis are available here. A significant part of the acquis includes uniform commercial law, which is a tool used for 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.

 

In 1989, the European Parliament first proposed the adoption of a European Civil Code. 1989 O.J. (C 158) 400; 1994 O.J. (C 205) 518; 2000 O.J. (C 377) 326. Throughout the 1990s, the European Parliament and European Commission issued a variety of documents regarding the harmonization of EU contract law. Finally, in 2001, the European Commission responded to the Parliament’s call in a Commission communication to the Council and Parliament, [On European Contract Law, COM (2001) 398 final (July 11, 2001), 2001 O.J. (C255) (Sept. 13, 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.) since the first edition (1952) are available in full-text from the EUR-Lex – Official Journal of the European Union website.

 

With the 2001 report, the European Commission began a process of public consultation and discussion regarding contract law, and then in 2003 the European Commission 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 final (Feb. 12, 2003), 2003 O.J. (C 63) (March 15, 2003)]. Several additional rounds of consultations and corresponding reports ensued. See COM (2004) 651 final (Nov. 10, 2004) and COM (2005) 456 final (Sept. 23, 2005).

 

The Action Plan was a joint effort of the Internal Market, Enterprise and Health Protection and Consumer Affairs Directorates General of the European Commission. Further information on the action plan is available at an archived version of the Commission’s Health Protection and Consumer Affairs website. Comments on the Action Plan, both negative and positive, are available at the archived website of the Directorate General for Health Protection and Consumer Affairs.

 

One major suggestion proposed by the action plan and subsequent reports was for the creation of a Common Frame of Reference (CFR) that would include common principles, definitions, and model rules for European contract law. The European Commission appointed an international academic network (Joint Network on EU Private Law, which consisted of several groups including the Study Group on a European Civil Code (SGECC), the Research Group on EC Private Law (Acquis Group), and the Project Group on a Restatement of European Insurance Contract Law) to create the CFR. The academic groups consulted with professional groups as they worked on the CFR. In 2009 the Draft Common Frame of Reference (DCFR) was published. An “outline edition,” which does not include the voluminous notes, comments, and illustrations that are included in the full edition, is available from the European Commission website. The work of various academic and professional groups who have worked on European contract law issues are discussed further at the end of this section and in the Soft Law and Research Institutes and Think Tanks sections of this guide.

 

Following on the heels of the DCFR, in 2010 the European Commission issued a green paper on European contract law [Policy Options for Progress Towards a European Contract Law for Consumers and Businesses, COM (2010) 348 final (July 1, 2010)]. The green paper suggested a number of potential policy options on how to strengthen the internal market. The green paper, overview, and comments are available here. Once again, the green paper initiated a round of analysis by a group of academic and professional experts. The Expert Group on European contract law ultimately published a feasibility study (“A European Contract Law for Consumers and Businesses: Publication of the Results of the Feasibility Study Carried out by the Expert Group on European Contract Law for Stakeholders' and Legal Practitioners' Feedback”) that outlined the possibility for a “future instrument in European Contract Law.” The feasibility study incorporated many of the components of the DCFR. Information regarding the Expert Group, background information, and the text of the feasibility study are available here.

 

Drawing from the work of the expert group and the feasibility study, in 2011 the Commission proposed a regulation for a Common European Sales Law (CESL) [Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law, COM (2011) 635 final (Oct. 11, 2011)]. The proposed regulation is based largely on the feasibility study and “harmonises the contract laws of the Member States not by requiring amendments to the pre-existing national contract law, but by creating within each Member State's national law a second contract law regime for contracts within its scope.” (Recital 9, pg. 14). This second regime is often referred to as an “optional instrument.” The CESL applies to cross-border contracts for the sale of goods. (Article 4, pg. 25). After much debate regarding the legality of the proposed CESL, in 2014 the Commission put the CESL on its list of proposals to be modified or withdrawn.

 

The 2003 action plan also initiated a review of the status of consumer contract law within the EU. After a variety of studies and Commission communications, a Directive on Consumer Rights was enacted [Directive 2011/83/EU, of the European Parliament and of the Council of 25 October 2011 on Consumer Rights, Amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and Repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, 2011 O.J. (L 304)]. This directive, which creates total harmonization amongst EU member states (art. 4), applies to consumer contracts for both tangible and digital goods. The main features of the directive impose information duties on sellers and provides consumers with the right to terminate a contract at will. The directive took effect June 13, 2014. The text of the directive as well as related documents are available here.

 

In 2015 the Commission proposed a Digital Single Market Strategy [A Digital Single Market Strategy for Europe, COM (2015) 192 final (May 6, 2015)], a multifaceted strategy aimed at enhancing the EU’s digital economy. One key element of the strategy is to fully harmonize consumer contract laws pertaining to “EU rules for online purchases of digital content,” and “EU contractual rights for domestic and cross-border sale of tangible goods.” In keeping with this objective, late in 2015 the Commission proposed two interrelated directives. [Proposal for a Directive of the European Parliament and of the Council on Certain Aspects Concerning Contracts for the Online and other Distance Sale of Goods, COM (2015) 635 final (Dec. 12, 2015] and [Proposal for Directive of the European Parliament and of the Council on Contracts for the Supply of Digital Content, COM (2015) 634 final (Dec. 12, 2015)]. They borrow elements from the CESL and expand contract rule coverage beyond what is covered in the Directive on Consumer Rights and several other consumer contract directives. The Commission engaged in a period of public consultation and received feedback from various groups. The directives are currently pending in the Parliament.

 

A number of academic and professional groups have been involved in the development of various aspects of European contract law. Some of these groups have drafted soft law instruments and are discussed further in the Soft Law section of this guide. Other important groups involved with European contract law issues include:

 

Common Frame of Reference Network - CFR Net (Archived Europa webpage)

The European Commission organized this network of experts who aided in the development of the common frame of reference. Members included attorneys and consumer groups among other stakeholders in the development of European contract law.

 

European Judicial Network (EJN) in Civil and Commercial matters

Sponsored by the European Commission, this network aims to “improve, simplify and expedite effective judicial cooperation between the Member States in civil and commercial matters,” and facilitate “effective access to justice for persons engaging in cross-border litigation.” The EJN website includes a number of useful citizens’ and practitioners’ guides regarding European, national, and international civil and commercial law. The EJN site is incorporated into the European e-Justice Portal site.

 

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, a number of useful research guides on general EU law as well as specific legal topics are available including:

 

European Union Research

 

European Union Research Guide

 

International Jurisdiction in European Union E-commerce Contracts

 

2.2.         Organization for the Harmonization of Business Law in Africa (OHADA)

This intergovernmental organization was created pursuant to the Treaty on the Harmonization of Business Law in Africa, which was signed October 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). The Treaty was revised October 17, 2008. The original members of OHADA include Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Cote d’Ivoire, Gabon, Equatorial Guinea, Mali, Niger, Senegal and Togo. Membership has now expanded to seventeen with the addition of Guinea, Guinea-Bissau, and most recently the Democratic Republic of Congo.

 

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, principally Francophone nations in Africa. 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 Contract Law.

 

2.3.         Union of South American Nations (UNASUR/UNASUL)

In 2004 the South American Community of Nations/Comunidad Sudamericana de Naciones (SACN/CSN) was created via the Cusco Declaration. In 2008 the South American Community of Nations became the Union of South American Nations (Unión de Naciones Suramericanas (UNASUR) in Spanish and União de Nacões Sul-Americanas (UNASUL) in Portuguese). One of UNASUR’s primary goals is to achieve economic integration in South America. An English translation of the Constitutive Treaty is available here. UNASUR’s 12 members include all members of the Andean Community of Nations and MERCOSUR, two regional trading blocs described below. The UNASUR website is available both in Spanish and English; however, the documents in the “Regulatory Documents of UNASUR” section are only available in Spanish.

 

2.4.         MERCOSUR/MERCOSUL

Begun in 1991 as the Common Southern Market, MERCOSUR solidified prior trade relationships between Argentina and Brazil while incorporating Paraguay and Uruguay (see Treaty of Asuncion, 30 I.L.M. 1041). Venezuela was admitted as a full member to MERCOSUR in 2012. That same year Paraguay was suspended from MERCOSUR (and UNASUR) for violation of the “democratic clause” that was adopted via the Protocol on Democratic Commitment in Mercosur (Ushuaia protocol). As of 2016 Paraguay has been reinstated and Bolivia is in the process of becoming a full member of MERCOSUR. Also, Venezuela is in danger of being suspended for alleged violations of the “democratic clause.” MERCOSUR’s goals include creating a common market for all member nations through harmonization of metrics, trade law, and economic policies. MERCOSUR is dependent upon each country enacting domestic laws enforcing the decisions of the organization. As a result, some policies are not enacted and others are not uniformly adopted. It should be noted that the MERCOSUR website is entirely in Spanish and Portuguese.

 

2.5.         Andean Community of Nations (CAN)

Bolivia, Columbia, Chile, Ecuador, and Peru created the Andean Group in 1969 with the signing of the Cartagena Agreement (8 I.L.M. 910). Venezuela joined the group in 1973 and subsequently withdrew in 2006. Chile withdrew in 1976. In 1996, the Andean Group became the Andean Community of Nations (CAN) via the Trujillo Protocol. The Andean Community of Nations has more effective supranational governance than MERCOSUR. The Andean Community of Nations is using a variety of efforts, including harmonization of law, in an effort to create a common market.

 

2.6.         African Union (AU)

In 1963, 32 African states formed the Organization of African Unity (OAU). The OAU had many objectives, including the harmonization of the members’ economic policies. To that end, in 1991 the members of the OAU adopted a treaty (Abuja Treaty, 30 I.L.M. 1241) to establish an African Economic Community (AEC). The overarching objectives of the AEC are to create a single African common market with a common currency and central bank to help improve economic development in member nations. The AEC is to be established through the gradual convergence and unification of various regional economic communities (RECs) in Africa. Accordingly, the RECs are often referred to as the “pillars” or “building blocks” of the AEC. Most African nations are members of one or more RECs. In 2002 the African Union (AU) succeeded the OAU. There are currently 54 AU members (every African nation except for Morocco). The AU subsumed many of the OAUs prior structures and agreements including the Abuja treaty. Under the current structure, the AU and RECs are working together to achieve the AEC. Currently, the AU recognizes eight RECs including:

 

2.7.         Arab Maghreb Union (UMA) – comprised of five member nations.

 

2.8.         Common Market for Eastern and Southern Africa (COMESA) – comprised of 19 member nations.

 

2.9.         Community of Sahel-Saharan States (CEN-SAD) – comprised of 29 member nations.

 

2.10.      East African Community (EAC) – comprised of five member nations.

 

2.11.       Economic Community of Central African States (ECCAS/CEEAC) – comprised of 10member states.

 

2.12.       Economic Community of West African States (ECOWAS) – comprised of 15 member states.

 

2.13.       Intergovernmental Authority on Development (IGAD) – comprised of eight member states.

 

2.14.       Southern African Development Community (SADC) – comprised of 15 member states.

 

A number of other regional organizations exist that have economic cooperation and development as one of their goals. Most of these organizations have reached various trade agreements amongst their members, however there has been little actual harmonization of the members’ commercial laws. Some of the more prominent regional organizations include:

 

African, Caribbean, and Pacific Group of States

 

Asia-Pacific Economic Cooperation (APEC)

 

Association of Southeast Asian Nations (ASEAN)

 

Caribbean Community (CARICOM)

 

3.     TREATIES

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 and provides references to relevant secondary resources and research tools. The international organizations that have drafted the treaties are also discussed. A discussion of treaty research is beyond the scope of this article. Useful guides on treaty research include:

 

Researching Non-U.S. Treaties

 

Researching U.S. Treaties and Agreements

 

3.1.          United Nations Commission on International Trade Law (UNCITRAL)

UNCITRAL consists of delegations from 60 nations appointed by the U.N. General Assembly on a rotating basis. UNCITRAL’s mission is promoting and working toward the modernization and harmonization of laws relating to international business. UNCITRAL drafts treaties and model laws as well as coordinates with a variety of other entities involved with international commercial law. The Commission acts through expert working groups and has drafted several conventions dealing with commercial law. UNCITRAL has been markedly more productive since the end of the Cold War in the late 1980s.

 

UN Convention on Contracts for the International Sale of Goods (CISG)

UN Convention on Contracts for the International Sale of Goods, opened for signature Apr. 11, 1980, 1489 U.N.T.S. 3, 19 I.L.M. 671 (UN Treaty Registration No. 25567).

 

This treaty, generally referred to as CISG or UN CISG, is arguably the most successful of the international contract treaties. Over 80 nations have adopted the CISG, including the United States and most Western European nations. Notable exceptions are the United Kingdom and India. The CISG applies to applies to cross-border sales of goods; however, the agreement is bound by freedom of contract principles, such that the parties can exclude or modify the application of CISG provisions. Related to the CISG is the Convention on the Limitation Period in the International Sale of Goods, as Amended by the Protocol of 11 April 1980, 1511 U.N.T.S. 77, 19 I.L.M. 696 (1980). This treaty establishes rules regarding the period of time within which a party must commence legal proceedings.

 

Due to its wide acceptance, the UN CISG is the focus of numerous secondary resources and research tools. Some of the better resources include:

 

Claire Germain, United Nations Convention on Contracts for the International Sale of Goods: Guide to Research and Literature, 24 Int’l. J. Legal Info. 48 (1996) – Although this research guide is dated, it still includes a wealth of useful information. The sections on “research methodology” and “where to start” are especially helpful.

 

Cyril Emery, International Commercial Contracts, GlobaLex (March 2016) is an article dedicated to researching issues related to transactions conducted under international commercial contracts, in particular those related to the sale of goods. It offers an overview of the major primary sources of law for international commercial contracts, in particular those related to sales, and the related research resources.

 

Autonomous Network of CISG Websites

This site lists websites dedicated to the CISG maintained by universities and other groups in various countries around the world. Thus far, there are five sites in the Americas, 13 sites in Europe (two pending and one’s content limited to early case law), three in the Middle East, four in Asia, and one each in Australia 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.

 

Albert H. Kritzer CISG Database

This website, published by Pace Law School, is a comprehensive CISG research resource. The website includes the text of the treaty, legislative history material, cases interpreting the treaty, and scholarly writings on the treaty. The section “legal materials organized by CISG article” provides an article-by-article arrangement of case law, legislative history material, and scholarly writings. The “UNCITRAL Digest Cases Plus Added Cases” page provides digests of case law beyond what is available in the 2012 UNCITRAL Digest discussed below.

 

CLOUT - Case Law on UNCITRAL Texts

CLOUT, created by UNCITRAL, is a database of worldwide court decisions and arbitral awards on UNCITRAL texts, including both conventions and model laws. UNCITRAL works with an international network of experts who collect the case law and prepare abstracts.

 

UNCITRAL Digest of Case Law on the United Nations Convention on the International Sale of Goods

Given the extensive body of case law that has developed regarding the CISG, UNCITRAL created a digest of cases interpreting the UN Convention. The digest is organized by treaty article. The latest version of the Digest was published in 2012.

 

UNILEX

UNILEX is a database of international case law and bibliographies on the UNIDROIT Principles and the UN CISG. It is a joint effort of the UNIDROIT, the Italian National Research Council, and the University of Rome. The database includes court decisions, arbitral awards and secondary sources on these two important instruments of international commercial law. Cases can be located by date, court, arbitral tribunal, article and issue, and subject. The case law database includes abstracts and full text in its original language from 1988 to 2016. This website also includes the text of the CISG as well as status information.

 

UNCITRAL has also been active in the area of electronic commerce across borders and has adopted two model laws and one convention governing electronic transactions.

 

Model Law on Electronic Commerce (1996)

 

This 1996 Model Law influenced the Uniform Electronic Transactions Act in the United States,  the Uniform Electronic Commerce Act in Canada and the Electronic Transactions Act in Australia.

 

Model Law on Electronic Signatures (2001)

 

U.N. Convention on the Use of Electronic Communications in International Contracts (2005)

 

UNCITRAL Yearbook

The yearbook is a compendium of UNCITRAL documents for a given year. The Annexes include a bibliography of recent writings related to UNCITRAL’s work and a Checklist of UNCITRAL documents. Volumes 1 – 43 for the years 1968 – 2012 are available on the UNCITRAL website.

 

In addition to UNCITRAL, there are a number of other UN committees that deal with the development of many aspects of international law, both public and private, and not merely international commercial law. A useful page listing the more important UN committees dealing with the codification and progressive development of international law is here.

 

3.2.         International Institute for the Unification of Private Law (UNIDROIT)

This international organization began as part of the League of Nations and became an official international governmental organization in 1940. Currently UNIDROIT has 63 members. UNIDROIT has produced numerous instruments including ten formal conventions, Principles of International Commercial Contracts (PICC) (discussed in the Soft Law section of this guide), and numerous drafts and studies on international private law. The full text of the UNIDROIT instruments are located under the “Instruments” tab of the UNIDROIT website. The UNIDROIT Convention on International Interests in Mobile Equipment is discussed further below.

 

UNIDROIT/IDIT CMR Database

This database, available in both English and French, provides access to the 1956 Convention on the Contract for International Carriage of Goods by Road (399 U.N.T.S. 189), cases interpreting the Convention, and secondary sources discussing the Convention. This resource began as the Unilaw Database, the aim of which was to provide an analysis of each UNIDROIT convention, but for financial reasons UNIDROIT ceased the project.

 

UNIDROIT Convention on International Interests in Mobile Equipment (November 2001)

This convention, also known as the Cape Town Convention, harmonizes the laws of secured transactions where the collateral consists of mobile equipment. The Convention utilizes a two-instrument approach such that the Convention sets up the general regulatory framework, while equipment specific protocols address the particular issues related to that type of equipment. Three Protocols have been concluded: the “Aircraft Protocol,” the “Luxembourg Protocol,” and the “Space Protocol.” The Convention and Aircraft Protocol entered into force on March 1, 2006.

 

Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (Aircraft Protocol). Status: Entry into force, 3/1/2006, 64 members

 

Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Railway Rolling Stock (Luxembourg Protocol). Status: Not in force

 

Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets  (Space Protocol)Status: Not in force

 

Capetown Convention Academic Project

This joint project between the University of Oxford Faculty of Law and the University of Washington School of Law, includes a repository of legal and scholarly materials regarding the Cape Town Convention, the Cape Town Convention Journal, annotations to the Official Commentaries, and numerous instructional materials.

 

Uniform Law Review

UNIDROIT publishes this scholarly journal. The table of contents and the full-text of leading articles since 1997 are available on the UNIDROIT website. Information on how to obtain back issues of this journal, which has been published since 1948, is also available on the website.

 

3.3.         European Union

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.

 

Rome I Regulation. Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations, 2008 O.J. (L 177) 6. The Rome I regulation applies to contracts concluded after December 17, 2009.

 

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).

This report provides an article-by-article analysis and a brief history of the negotiation of the Convention.

 

First Protocol on the Interpretation by the Court of the European Communities of the Convention on the Law Applicable to Contractual Obligations, Article 2.

As explained in the First Protocol, the European Court of Justice, which is based in Luxembourg, has jurisdiction to hear disputes governed by this treaty.

 

1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1998 O.J. (C27) 1 (consolidated version).

The European Court of Justice has jurisdiction to issue preliminary rulings under this Convention. See the Protocol to the 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) 1.

The Brussels I Regulation replaced the Brussels Convention.

 

Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (recast), 2012 O.J. (L351) 1.

This regulation, known as the Recast Brussels Regulation, went into effect January 10, 2015, replacing the Brussels I Regulation. One of the major changes in this legislation is the abolishment of the exequatur procedure that had to be employed before a judgment from one EU country was recognized in another EU country.

 

Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Sept. 16, 1988), 1988 O.J. (L 319) 9, 28 I.L.M. 620 (1989).

This convention adopts the same principles as the 1968 Brussels Convention but applies to the Member States of the EU and the European Free Trade Association (Iceland, Norway, and Switzerland).

 

2007 Lugano (Oct. 30, 2007) Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2007 O.J. (L339) 3.

This revision of the original Lugano Convention mirrors the changes adopted in the Brussels I Regulation.

 

National and International case law relating to the Brussels and Lugano Conventions

The European Union Court of Justice website includes a database of national and international case law relating to these conventions. The cases are arranged by year and convention. A classification scheme is also available, which can be used to find cases on specific aspects of the conventions.

 

3.4.         Organization of American States (OAS)

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 sponsored seven conferences on private international law known as the Inter-American Specialized Conferences on Private International Law (CIDIP). The CIDIP have resulted in the drafting of 26 international instruments including conventions, protocols, uniform documents, and model laws. Most of these instruments are available from the CIDIP page or the OAS documents webpage, including the OAS treaty series (O.A.S.T.S). Although there has been no CIDIP-VIII yet, OAS has listed a selection of possible topics for an Eighth conference. Some of the instruments related to international commercial law include:

 

Inter-American Convention on the General Rules of Private International Law, May 8, 1979, O.A.S.T.S. No. 54, 1457 U.N.T.S. 3, 18 I.L.M. 1236.

This convention was concluded during CIDIP-II held in Montevideo.

 

Inter-American Convention on Law Applicable to International Contracts (Mexico City Convention), Mar. 17, 1994 O.A.S.T.S. No. 78, 33 I.L.M. 732.

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. The convention was concluded during CIDIP-V held in Mexico City.

 

Model Inter-American Law on Secured Transactions, OEA/Ser.K/XXI.6, CIDIP-VI/RES. 5/02, 41 I.L.M. 1038 (2002).

This model law was reprinted in the Final Act of Sixth Inter-American Conference on Private International Law (CIDIP-VI), which was held in Washington, DC.

 

3.5.         Hague Conference on International Private Law

Founded in 1893, the Hague Conference’s mission is “to work for the progressive unification of the rules of private international law” (Statute of the Hague Conference, Article 1). Currently, there are 81 members, many of which are also members of UNIDROIT. 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. In 2015, the Conference completed its first soft law instrument, which is discussed in the Soft Law section of this guide.

 

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 five 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. A bibliography of resources regarding the treaty is available on the Hague’s website.

 

Convention on the Law Applicable to Contracts for the International Sale of Goods, 510 U.N.T.S. 147 (1955).

This convention, which entered into force in 1964, is currently in force for only seven countries. The full-text of the treaty and a bibliography of resources regarding the treaty are available on the Hague’s website.

 

3.6.         Basic Documents of International Economic Law (BDIEL), by Stephen Zamora and Ronald A. Brand

A project of the International Economic Law Interest Group of the American Society of International Law, this collection of documents related to international economic law was originally published as a two volume book in 1990. The specific topics covered include: international trade, international finance, foreign investment, protection of intellectual property rights, regional economic organizations, private commercial transactions, international litigation, and international arbitration. Each document is accompanied by an introduction and bibliography. BDIEL is available online through Lexis.com, LexisNexis Academic, and Westlaw where it is called “International Economic Law Documents.” Currently B.D.I.E.L. is not available on Lexis Advance. The online version was periodically updated through 2004.

 

3.7.         Private International Law - U.S. State Department

This website, which is maintained by the Office of the Legal Adviser for Private International Law, provides information regarding the Office as well as links to numerous private international law instruments. The “Commercial Law” page includes lists 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. The site also provides links to the full-text of the treaties listed.

 

3.8.         African Union Commission on International Law (AUCIL)

The African Union established an independent advisory commission that focuses on the study and harmonization of international law within the African Union. The AUCIL website includes information regarding the functions and activities of the Commission, but only includes a sparse collection of official materials and it has not been updated recently.

 

4.     SOFT LAW

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.

 

4.1.          UNIDROIT Principles on International Commercial Contracts (PICC)

The PICC were originally developed in 1994 (UNIDROIT Principles 1994) by an international working group of academic attorneys representing all major legal systems of the world. The PICC are meant to serve as a restatement of the general principles of international contract law. The UNIDROIT Governing Council adopted a new version of the Principles in April 2004 (UNIDROIT Principles 2004), which includes a few amendments and additions as well as numerous comments and illustrations. A third edition, which was adopted in 2010 (UNIDROIT Principles 2010), again added new articles, comments, and illustrations. Finally, in 2013 the Governing Council adopted Model Clauses that parties can use to incorporate the PICC into their contracts. An extensive collection of preparatory work documents produced by the working groups that drafted the three editions of the PICC is available on the UNIDROIT website.

 

UNILEX

UNILEX is a database of international case law on the PICC and the UN CISG. The database includes court decisions, arbitral awards and secondary sources on these two important instruments of international commercial law. Cases can be located date, court, arbitral tribunal, PICC and CISG article and issue, and by subject. UNILEX also includes and an extensive bibliography of secondary resources regarding the PICC and the CISG.

 

4.2.         The Hague Principles on Choice of Law in International Commercial Contracts

This instrument, approved on March 19 2015, aims to produce uniform choice of law rules for international commercial contracts. Other similar efforts include the Rome I regulation and the OAS Inter-American Convention on the Law Applicable to International Contracts. Unlike the Hague’s other instruments, the Rome I regulation, and the OAS Convention, the Principles were developed as a soft law instrument and are intended to serve as a model law. In 2015 Paraguay adopted national legislation based on the Principles. As with its other instruments, a bibliography of analytical materials is available on the Hague website. Additionally, the Principles include article-by-article commentary.

 

4.3.         The Commission on European Contract Law (Archived website)

In 1980, the Commission on European Contract Law (CECL) formed with the goal of drafting common principles of European contract law that could serve as the first step toward the creation of a comprehensive European civil code. CECL, also known as the Lando Commission as it was chaired by Ole Lando of the Copenhagen Business School, was composed of leading academics throughout Europe. Some members of the UNIDROIT PICC working group were also members of CECL. Supported by the European Parliament (see: Resolution of 6 May 1994 on the Harmonization of Certain Sectors of the Private Law of Member States, 1994 O.J. (C205) 518), CECL aimed to create a resource that had similar persuasive authority as the Restatement of the Law of Contracts developed in the United States by the American Law Institute. However, as the European Union does not have a common law, CECL could not restate the contract laws of the European countries. Instead, after extensive comparative analysis, CECL drafted principles of contract law as it believed the law should be. Ultimately, CECL published the “Principles of European Contract Law” (PECL) in three parts between 1995 and 2003. The PECL address a broad array of contract issues, such as: breach of contract, remedies for breach, formation, validity, interpretation, agency, and assignment of claims.  

 

4.4.         Study Group on a European Civil Code (SGECC)

Inspired by the “Towards a European Civil Code” conference that was held in 1997, the SGECC was founded as a successor to the CECL. The SGECC, under the leadership of Professor Christian von Bar of the University of Osnabrück in Germany, is comprised of nearly fifty law professors from EU member states, many of whom were members of the CECL. As with the CECL, SGECC engages in comparative analysis of European law with the ultimate goal of creating a model for a European Civil Code, facilitating the development of a fully integrated common market. The members meet every other year to review developments made by the day-to-day working groups. Each working group targets a particular area of international private law, particularly uniform laws for contracts and moveable property. SGECC adopted and integrated the PECL into its work, the "Principles of European Law" (PEL) series. As previously discussed in this guide, the SGECC was integral to the work on the DCFR, and much of the PEL (and the PECL) is integrated into the DCFR. The DCFR even includes a table of derivations and destinations pertaining to the PECL. Each volume of the PEL series includes an extensive comparative analysis of EU countries’ relevant laws that were studied.

 

4.5.         Project Group Restatement of European Insurance Contract Law

Sponsored by the European Commission, this group of academics, based at the University of Innsbruck in Austria, aimed to develop a restatement of insurance contract law in Europe with the goal of creating a model law. As with CECL and SGECC, the Project Group engaged in extensive comparative studies of the national laws of the EU member states. From this work, the group authored “Principles of European Insurance Contract Law” (PEICL). PEICL envisions an optional agreement, which would function as an alternative to national insurance laws, not a replacement to them. The English version is the authorized version with private translations available in seventeen other European languages. The Project Group, like the SGECC was a member of the network that prepared the DCFR.

 

4.6.         European Research Group on Existing EC Private Law (Acquis Group)

The Acquis Group, which consists of over 40 legal scholars from throughout the EU, formed in 2002 to work on a restatement of the existing EU consumer acquis. The Acquis Group published “Principles of the Existing EC Contract Law (Acquis Principles): Contract I” and “Principles of the Existing EC Contract Law (Acquis Principles): Contract II.” As a part of the European Commission’s Action Plan on European Contract Law mentioned above, the Acquis Group collaborated on the DCFR, and many of the Acquis Principles are reflected in the DCFR.

 

4.7.         Accademia dei Giusprivatisti Europei

The Accademia dei Giusprivatisti Europei (Academy of European Private Lawyers), also known as the Pavia Group, formed in Pavia, Italy, in 1992. The Academy’s goal is to aid in the harmonization of European private law through scientific research. The Academy has published a European Contract Code, to serve as a model law for harmonization of contract law in civil law countries. The Code is available in several languages, including English, from the Academy’s website.

 

4.8.         International Chamber of Commerce (ICC)

This industry group based in Paris has been influential in harmonizing international contract terms as well as arbitration practices.

 

Incoterms 2010

“International Commercial Terms” defines certain terms used in international trade that are frequently incorporated into international sales contracts. The ICC began publishing these definitions in 1936 with subsequent revisions. The latest version, Incoterms 2010, took effect January 1, 2011. In 2012, UNCITRAL endorsed the use of Incoterms 2010 in international sales transactions, as appropriate. The full-text of this resource is not available online for free.

                                                                                                                                                                                         

Uniform Customs and Practice for Documentary Credits - UCP 600

The ICC has also published “Uniform Customs and Practice for Documentary Credits.” This work includes the definitions of terms and guidelines frequently encountered in international trade as used in letter of credit transactions. The current revision of this work took effect in 2007. The full-text of this resource is not available online for free.

 

5.     RESEARCH INSTITUTES AND THINK TANKS

Institute of European and Comparative Private Law

The Institute of European and Comparative Private Law is sponsored by the University of Girona in Spain. The Institute’s website includes an extensive bibliography of References on European Private Law that is regularly updated. The Institute’s prior website, parts of which are still available, includes a page of Materials on European Private Law that provides links to EU Directives, treaties and principles on commercial law.

 

Center for Transnational Law (CENTRAL)

CENTRAL is a research facility located at the University of Cologne School of Law in Germany. CENTRAL’s activities focus on the research, teaching, and study of transnational commercial law. One of CENTRAL’s major activities is maintaining the Trans-Lex research website.

 

Trans-Lex

Created by Prof. Klaus Peter Berger, 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 a variety of international business law resources on the web. Available materials include information taken from international arbitral awards, domestic statutes, international conventions, standard contract forms, trade practices and usages, other sample clauses and academic sources. Relevant information can be located by keyword searching or browsing the main categories of information: bibliography, materials, and links. Additionally, the database has organized the material using it’s TransLex-Principles, which is a system of principles and rules related to transnational commercial law.

 

Ius Commune Casebooks for the Common Law of Europe

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 casebooks emphasize the effect of EU law and the law of the European Court of Human Rights on the harmonization of European law. Lists of published casebooks and casebooks in progress are available online.

 

Of particular interest is the casebook on Contract Law published in 2002 and revised in 2010. Its detailed table of contents is available online.

 

Institute of Transnational Law 

The Institute of Transnational Law at the University of Texas at Austin School of Law focuses on the study of international and comparative law. The Institute’s website includes English translations of selected court decisions in the areas of constitutional, administrative, contract and tort law from France, Germany, Austria, and Israel. The site also includes select English translations of relevant French and German statutes.

 

National Law Center for Inter-American Free Trade  

Affiliated with the University of Arizona School of Law, the Center initially focused on the promotion of free trade throughout the Americas. Early projects included helping countries implement the requirements of NAFTA and CAFTA. The Center’s focus has expanded over the years, but it continues to work on activities that address commercial law such as drafting model laws, promoting ADR, and providing educational opportunities to train legislators, judges, and regulators. Another one of its objectives is reforming the secured transactions legal framework in Latin America. Accordingly, the Center wrote 12 Principles of Secured Transactions Law in the Americas.

 

The Center also maintains the NatLaw World Database (formally known as the InterAm Database), an online collection of laws, regulations, case law, and secondary material from Latin America. The content can be searched and basic citation information obtained at no cost, but full-text of the documents is only available with a paid subscription to the database.

 

World Legal Information Institute (WorldLII)

WorldLII is a non-profit cooperative of several University-based Legal information institutes. Its goal is to provide free access to worldwide primary and secondary legal information. The website includes a page on international contracts.

 

European Private Law Forum

Based in Florence, Italy, the European University Institute (EUI) is an international academic institution that provides doctorate and post-doctorate education on major issues facing European society, particularly those caused by European integration. The European Private Law Forum, a part of the Law Department, researches and educates on a range of issues raised by the Europeanisation of private law. The Forum website provides links to ongoing research projects and publications.

 

Lex Mercatoria

Sponsored by the University of Oslo Faculty of Law and Pace University’s Institute of International Commercial Law, this website is a portal to many other sites that address international business law, as well as an archive of various primary legal documents. Although many of the links to external resources are dead, the site is still valuable as some of the available archived documents are difficult to find elsewhere. Additionally, there is an extensive list of commercial law-related treaties and international organizations. The section entitled “Private International Commercial Law” provides links to relevant documents on the harmonization of contract law.

 

Common Core of European Private Law

The Common Core of European Private Law project (also known as the Trento Common Core Project) began in 1994 with the primary 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. The project has sponsored the publication of numerous books and articles regarding European private law. The project stands in contrast to other scholarly endeavors such as the Study Group on European Civil Code (SGECC) and the Commission on European Contract Law (CECL) in that it does not aspire to create a codification of EU law.

 

Juris International/LegaCarta

Juris International was a joint venture of the International Trade Centre of UNCTAD/WTO, the University of Nancy, France, and the University of Montreal, Canada. The site contained model contracts, international trade treaties, and other legal documents in searchable databases. Documents were available in English, French and Spanish. Although Juris International is no longer available, some of the information is still accessible via the Internet Archive. Some elements of Juris International were transitioned to a resource known as LegaCarta, however it also not currently available.

 

European Bank for Reconstruction and Development (EBRD)

The EBRD was established to help facilitate the transition of central and eastern European nations to free market economies. The EBRD engages in a wide variety of financial and business related activities. Since its inception it has expanded its region of operations to include central Asia, the Mediterranean, and more. The EBRD only works with those countries that respect the rule of law. A major component of the EBRD is its Legal Transition Programme, which focuses on promoting legal reform in the areas of business and investment to promote market driven economies. While it has not yet specifically focused on commercial contract law, programs have been initiated to reform laws governing insolvency, secured transactions, and capital markets, among others. The “Where We Work in Legal Reform” page includes “Country Law Assessment” reports for most of the countries with which the EBRD works. These reports include an overview and assessment of each country’s commercial laws.

 

World Bank Doing Business Project

First published in 2003, the Doing Business project measures and analyzes business regulations and enforcement. The Doing Business 2016 report measured eleven indicator sets in 189 economies. The Doing Business Project gathers the data and analyzes it, to compare business environments around the world. In creating these reports, the Doing Business Project hopes to foster competition and make all economies more accessible. Also, by reporting the level of difficulty or ease, it helps governments create quantifiable benchmarks. This expansive and thorough report objectively measures business regulations around the globe and is a great asset when looking for economic data. The website even allows you to create your own reports

by choosing the area of law and the economies, you want to compare.

 

Institute for Private International Law in Africa

The Institute for Private International Law in Africa, at the University of Johannesburg, researches and publishes articles on private international law, concentrating on African issues. One of the primary goals of the institute is to harmonize African law. In keeping with this goal, its members also draft model laws, regulations, and conventions. In addition, the Institute serves as the information center for The Hague Conference on Private International Law in South Africa and other African states. Many of the Institute’s noteworthy publications can be found in Richard Oppong’s bibliography, Private International Law Scholarship in Africa (1884-2009), 58 Am. J. Comp. L. 319 (2010).

 

Investment Climate Facility for Africa (ICF)

Established in 2006 and centered in Tanzania, the ICF is working to improve African investment by making regulation of investments less burdensome and more transparent. The ICF is actively working to cut red tape on a country-by-country basis and is also trying to harmonize African commercial law, making the climate for foreign investment in Africa more attractive. Three of ICF’s current priority areas are property rights and contract enforcement, business registration and licensing, and financial markets. In all three areas, ICF hopes to improve transparency, uniformity, and subsequently greater access to African markets.  

 

Swiss Institute of Comparative Law (SICL)

Founded in 1978 and located on the campus of the University of Lausanne in Lausanne, Switzerland, SICL specializes in researching comparative law. Many of the institute’s resources are accessible on their website. Since 1999, SICL has published the Yearbook of Private International Law a collection of works dealing with private international law developments including efforts at harmonizing international law. The yearbook is a useful resource for secondary sources related to harmonization of all forms of private international law.

 

6.     RESEARCH GUIDES AND BIBLIOGRAPHIES

ASIL Electronic Resource Guide - International Economic Law

This research guide addresses a broad range of international economic law topics. The section on private international law covers the CISG and describes numerous private international law organizations. The guide provides links to many useful web-based resources and emphasizes relevant U.S. government websites.

 

ASIL Electronic Resource Guide - Private International Law

This research guide describes online resources relevant to a wide variety of private international law issues. The section on international organizations discusses many of the organizations mentioned in this article.

 

Electronic Information System for International Law (EISIL) - International Economic Law

The focus of this resource is providing links to online primary law documents. Additionally, websites and research guides on various international legal topics are also highlighted.

 

Lex Mundi

Lex Mundi, founded in 1989, is a worldwide network of over 160 commercial law firms. Membership provides opportunities for collaboration, information-sharing, and training. A number of business law related research and practice guides are available from the Resources page of the website. The Guide to Doing Business series of research guides, prepared by attorneys in member firms of Lex Mundi, provides brief overviews of the legal systems and economies of more than 100 jurisdictions worldwide.

 

Meritas Law Firms Worldwide

Founded in 1990, Meritas is an international alliance of more than 177 law firms in more than 80 countries. A variety of research guides are available, including business guides that primarily address Asian and Latin American countries.

 

Pacific Rim Advisory Council (PRAC)

Begun in 1984, this international law firm association of over 12,000 lawyers provides a public library of member publications that analyze a variety of business law issues in jurisdictions throughout the world.

 

Zimmerman’s Legal Research Guide

This guide has entries on nearly every international organization mentioned in this article. Although this resource was discontinued as of December 2015, much of the content is accessible via the Internet Archive.

 

American Journal of Comparative Law

First published in 1952, this quarterly peer-reviewed journal by the American Society of Comparative Law, Inc. (ASCL) includes articles, essays, and book reviews regarding comparative law and international private law. Since 2009, the journal has included a “Private International Law Bibliography,” of “U.S. and Foreign Sources in English,” which highlights recent books and journal articles. The 2012 and 2013 bibliographies are not in the published journal but are available from SSRN. The journal has also irregularly published a “Conflict of Law Bibliography.”

 

The International Lawyer

The International Lawyer, an official publication of the ABA Section of International Law, focuses on practical international law issues such as trade, finance, and taxation. Prior to 2013 the spring issue was an extensive review of the international legal developments of the previous year. Since 2013, this year in review is now in its own publication, the Year in Review. The review is organized by area of law and also by geographic region. Reviewing the sections on regional developments can reveal harmonization of law efforts from the previous year.

 

7.     TEACHING MATERIALS

Ius Commune Casebooks for the Common Law of Europe

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 casebooks emphasize the effect of EU law and the law of the European Court of Human Rights on the harmonization of European law. Lists of published casebooks (including tables of contents, citations to book reviews, and order information) and casebooks in progress (with provisional table of contents) are available online.

 

Selected Courses on International Commercial Law:

 

 

8.    CONCLUSION

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, the guide focuses on 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 Globalex, LLRX, LibGuides, and other websites.