Researching the Harmonization of International Commercial Law

Loren Turner is the Foreign, Comparative, and International Law Librarian at the University of Minnesota Law School where she specializes in and teaches foreign, comparative, and international legal research.

NOTE: This article is a complete re-write of the original by Duncan Alford and Matthew Novak.

1. Introduction

“International Commercial Law” (also called “transnational commercial law”) refers to all possible rules and standards that govern relationships between private companies engaged in commerce across national borders. These rules and standards derive from international, national, and non-State sources and cover a vast array of legal issues and topics. The particular rules and standards that apply to a particular cross-border transaction depend not only on the terms of a particular contract, but also on the interpretation of that contract within the broader context of the global commerce industry.

There are three foundational principles of international commercial law: party autonomy, predictability, and flexibility. Private commercial parties negotiating a cross-border contract want the freedom to choose which legal norms apply to their contracts (party autonomy), and they want the assurance that, in the event of a dispute, a court or tribunal will respect those choices and enforce the contract (predictability) while keeping an open mind to evolving business practices (flexibility). To support these principles (and to promote economic efficiency), States, industry groups, and academics have initiated projects to standardize terms and practices of cross-border trade.

“Harmonization” (also called “unification” or “uniformity”) is the process of identifying and reconciling differences in legal systems and cultures to create instruments that standardize terms and practices of cross-border trade. As Professor Twigg-Flesner explains that harmonization can be accomplished “(i) by replacing existing domestic rules with an internationally agreed rule or (ii) by supplementing domestic law with an internationally agreed rule applicable only to international dealings.[1]

Harmonization may result in instruments that establish binding legal obligations (sometimes called “hard law”) or non-binding norms (sometimes called “soft law”). Advocates of harmonization argue that standardizing cross-border commercial dealings reduces transaction costs and facilitates cross-border trade because it helps private companies spend less time and money trying to navigate the domestic laws of every State in which they do business.[2] Critics of harmonization assert that true synthesis of different legal systems and cultures is impossible and, when attempted, result in watered-down, meaningless standards that unfairly favor Western business interests.[3]

This guide surveys harmonization initiatives and the instruments they have produced. It begins with a typology of instruments that may result from a successful harmonization project. Then, it lists instruments that successful harmonization projects have created thus far. These instruments are organized first by the organization that fostered their development and then by the legal topic the instruments address. Additionally, this guide highlights ongoing harmonization projects and concludes with a list of additional sources to consult.

2. Types of Instruments of Harmonization

As explained above, the goal of a harmonization initiative is to create an instrument that reconciles, in whole or in part, differences in the ways legal systems define and interpret cross-border commercial contracts. There are several types of instruments that may result from a successful harmonization project. Some instruments create binding, mandatory or default rules that will apply whether or not they are expressly incorporated in a commercial contract. These instruments can include conventions, uniform acts, regulations, and directives. Still other instruments are “soft law” instruments that do not create binding obligations but do represent and promote industry norms. Soft law instruments can include model laws, standard terms and international trade terms, guides and guidelines, principles, and model clauses/provisions.

Conventions: The harmonization of international commercial law has frequently been brought about by the adoption and ratification of conventions (primarily multilateral) that govern selected topics within international commercial law. Conventions are international treaties that States may choose to join and to ratify into their domestic legal frameworks. Conventions create binding obligations for State parties on the international level and they may also create binding, mandatory or default obligations on private commercial companies. When private commercial parties negotiate contracts, they must situate the contract within a particular State’s law.[4] If the selected State is a monist country, any conventions joined by the State come into force within the State’s domestic legal framework without need of enabling legislation.[5] The convention, therefore, may form binding, mandatory or default rules for commercial contracts situated in that State’s law (unless the convention provides an “opt-out” feature that private parties can incorporate into their contracts). On the other hand, if the selected State is a dualist country, any conventions joined by the State require enabling legislation before the convention takes force domestically.[6] The enabling legislation may or may not include all parts of the convention, including any “opt-out” features.

Uniform Acts (within the OHADA): The Organization for the Harmonization of Business Laws in Africa (OHADA) is an intergovernmental organization discussed in further detail below, in section 3.5 of this Guide. It has initiated harmonization projects focused on many topics within international commercial law and, when successful, these harmonization projects have resulted in a “Uniform Act”, which is a type of instrument that, when it enters into force, has binding effect within the domestic legal framework of all OHADA State members, cancelling out any existing, conflicting domestic legislation.[7]

Regulations & Directives (within the EU): The European Union (“EU”) is a supranational, intergovernmental organization discussed in further detail below, in section 3.6 of this Guide. The harmonization of international commercial law is one of the overarching goals of the EU as part of the development of the internal market. The EU’s harmonization projects have led to conventions (as described above) as well as regulations and directives. A regulation is an EU legislative act that, when it enters into force, has binding effect within the domestic legal frameworks of all EU Member States, cancelling out any existing, conflicting domestic legislation. A directive is also an EU legislative act, and it also has binding effect, but it merely outlines a goal for EU Member States; it is up to each Member State to create its own national law(s) to reach the goals as outlined in the directive. For more information about the EU and its founding treaties, institutions, and legislative processes see the GlobaLex research guide on understanding European Union legal materials.

Model Laws: Model laws are templates for legislation that a State may adopt, in whole or in part, as part of national reform. Model laws are non-binding, soft law instruments, but they may create binding obligations on private commercial companies if those companies execute a contract for a cross-border transaction and situate that contract within the domestic legal framework of a particular State that has adopted the model law in whole or in part.

Standard Terms and International Trade Terms: Standard terms and international trade terms are words and acronyms that carry specific meaning within a particular industry. They are non-binding, soft law instruments, but private commercial companies can choose to include these terms in their contracts for cross-border transactions and, when they do, these terms will carry their intended meanings within the global trade industry.

Guides & Guidelines: Guides and guidelines are non-binding, soft law instruments that list issues and topics for national legislators to consider when drafting future legislation that may impact international commercial law.

Principles: Principles are also non-binding, soft law instruments. They attempt to restate the rules and standards in a particular area of law, and they are often the instrument of choice for harmonization projects involving academics who undertake extensive comparative study.

Model Clauses/Provisions/Rules: Model clauses/provisions/rules are non-binding examples of boilerplate language that private commerce companies can choose to incorporate in their contracts for cross-border transactions. Their use encourages the standardization of international commercial contracts.

3. Instruments of Harmonization by Organization

This section identifies the organizations that initiated and fostered harmonization projects as well as the instruments that resulted from those projects. The first three organizations below (HCCH, UNIDROIT, and UNCITRAL) are intergovernmental organizations that foster harmonization projects at the global level. The fourth organization (the ICC) is not an intergovernmental organization, but a private trade organization that initiates harmonization projects for the benefit of the international commerce industry. The remaining organizations listed below are intergovernmental organizations or academic initiatives that foster harmonization projects at the regional level. They are listed first by region (Africa, Europe, Latin America) and then by organization name.

3.1. The Hague Conference on Private International Law (HCCH)

The Hague Conference on Private International Law (HCCH) is an intergovernmental organization created in 1893 “to work for the progressive unification of the rules of private international law”. At present, there are 90 members of the HCCH, which are comprised of 89 States and the European Union.

HCCH has drafted dozens of instruments as a result of successful harmonization projects on topics within family law, testamentary disposition, and commercial law. The HCCH’s instruments of harmonization within the area of international commercial law include (in chronological order by conclusion/adoption date):

• Convention of 15 June 1955 on the Law Applicable to International Sales of Goods, 510 U.N.T.S. 147 (1955). This Convention was concluded in the Hague on June 15, 1955, and entered into force on September 1, 1964. It is currently in force for only eight countries. The full text of the treaty and a bibliography of resources regarding the treaty are available on the HCCH’s website.
• Convention of 30 June 2005 on Choice of Court Agreements, 44 I.L.M. 1291 (2005). This Convention was concluded in the Hague on June 30, 2005, and came into force October 1, 2015. It is the result of a harmonization project focused on choice of court agreements (also known as “forum selection clauses”) between parties to international commercial transactions. The HCCH website provides, in addition to the text and status of this Convention, an explanatory report of the Convention, and a bibliography.
• Principles on Choice of Law in International Commercial Contracts. This instrument, approved on March 19, 2015, is the HCCH’s first soft law instrument of harmonization. It aims to produce uniform choice of law rules for international commercial contracts. The HCCH website provides the text of the Principles with commentary as well as a bibliography of analytical materials. Additionally, the HCCH collaborated with other intergovernmental organizations that foster harmonization projects (UNCITRAL and UNIDROIT) to produce a legal guide that analyzes all the various instruments of harmonization within the area of international commercial contracts, particular in the area of international sale of goods.

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

The International Institute for the Unification of Private Law (UNIDROIT) began as part of the League of Nations and then became its own intergovernmental organization in 1940. It is located in Rome, Italy, and its purpose is “to study needs and methods for modernizing, harmonizing, and coordinating private and in particular commercial law as between States and groups of States and to formulate uniform law instruments…” At present, there are 63 members of UNIDROIT.

UNIDROIT has drafted numerous instruments as a result of successful harmonization projects within the area of international commercial law, including the following instruments, listed in a chronological order by conclusion/adoption date.

UNIDROIT Convention on International Factoring. This Convention was concluded in Ottawa on May 28, 1988, and came into force on May 1, 1995. It aims to provide a uniform legal framework to facilitate international factoring. The UNIDROIT website provides the text of the Convention as well as an explanatory report, preparatory works, a status table, and a select bibliography.

UNIDROIT Convention on International Financial Leasing. This Convention (along with the Convention on International Factoring, listed above) was also concluded in Ottawa on May 28, 1988, and it also came into force on May 1, 1995. Its focus, however, is on removing legal impediments to the international financial leasing of equipment. The UNIDROIT website provides the text of the Convention as well as the preparatory works, a status table, and a select bibliography.

Convention on International Interests in Mobile Equipment (“Cape Town Convention”). This Convention was concluded in Cape Town on November 16, 2001, and it entered into force on March 1, 2006. The Convention sets up a general regulatory framework to reconcile laws of secured transactions where the collateral consists of mobile equipment. In addition to the Convention’s general legal framework, there are four protocols to the Convention that focus on particular types of mobile equipment. The “Aircraft Protocol” focuses on aircraft equipment; the “Luxembourg Protocol” (also called the “Rail Protocol”) focuses on matters specific to railway rolling stock; the “Space Protocol” focuses on equipment associated with space assets; and the “MAC Protocol” focuses on equipment in the mining, agricultural and construction industries. Only one of these protocols (the “Aircraft Protocol”) has entered into force. It is described in further detail in the paragraph below. The other three protocols (the “Luxembourg Protocol”, the “Space Protocol”, and the “MAC Protocol”) have not yet entered into force and are, therefore, discussed much further below, in section 5.1 of this Guide. The UNIDROIT website provides the text of the Cape Town Convention along with a status table, official commentary, a list of national/domestic laws and policies relating to matters covered by the Convention and its Protocols (“national information”), preparatory work, and a select bibliography. Additionally, the website of the Cape Town Convention Academic Project, a joint collaboration between the University of Oxford Faculty of Law and the University of Washington School of Law, hosts a repository of legal and scholarly materials about the Cape Town Convention and each of its Protocols including annotations to the Official Commentaries, materials for practitioners and professionals, the Cape Town Convention Journal, and numerous academic texts and instructional materials.

Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (“Aircraft Protocol”). As mentioned above, the “Aircraft Protocol” is a protocol of the Cape Town Convention that focuses on the particular type of mobile equipment used in the aircraft industry. Like the Cape Town Convention, the “Aircraft Protocol” was concluded in Cape Town on November 16, 2001, and entered into force on March 1, 2006. The UNIDROIT website provides the text of the Aircraft Protocol along with a status table, official commentary, information on national implementation (“national information”), preparatory works, and a select bibliography. Additionally, as mentioned above, the website of the Cape Town Convention Academic Project, a joint collaboration between the University of Oxford Faculty of Law and the University of Washington School of Law, hosts a repository of legal and scholarly materials about the Cape Town Convention and each of its Protocols including annotations to the Official Commentaries, materials for practitioners and professionals, the Cape Town Convention Journal, and numerous academic texts and instructional materials.

UNIDROIT Model Law on Leasing. This Model Law, approved on November 13, 2008, offers developing economies and economies in transition with a legal framework to address the leasing of assets including, but in no way limited to, the leasing of equipment. The UNIDROIT website provides the text of the Model Law as well as an explanatory report, preparatory works, and a select bibliography.

UNIDROIT Principles of International Commercial Contracts. The original version of the UNIDROIT Principles of International Commercial Contracts (UPICC or PICC) was completed in 1994 (UNIDROIT Principles 1994) by an international working group of academic attorneys who set out to draft a non-binding restatement of the general principles of international commercial contract law. Since then, the UPICC has been amended three times: in 2004 (UNIDROIT Principles 2004), in 2010 (UNIDROIT Principles 2010), and in 2016 (UNIDROIT Principles 2016). The UNIDROIT Principles 2016 is the current version. More recently, the UNIDROIT Secretariat issued a note regarding the UPICC in the context of the COVID-19 health crisis, but stated that the note merely added to the public discussion without amending the current version of the UPICC. The UNIDROIT website has links to the preparatory works for each version of the UPICC and provides select bibliographies for the 2010 and 2016 versions. Additionally, the UNILEX database provides access to court decisions, arbitral awards, and secondary sources that construe and apply the UPICC. UNILEX offers myriad ways to search its database including by UPICC article number, legal issue, subject, nationality of the parties, case date, name of court or tribunal, etc.

Model Clauses for the Use of the UNIDROIT Principles of International Commercial Contracts. At its 92nd session in May 2013, the UNIDROIT Governing Council unanimously approved the Model Clauses for Use of the UNIDROIT Principles of International Commercial Contracts. These model clauses were created by a UNIDROIT working group composed of internationally renowned experts in the field of international contract law and arbitration. The purpose of the model clauses was to provide clear and unambiguous contract language that private commercial companies could insert to incorporate the UNIDROIT Principles of International Commercial Contracts (UPICC) into their contracts.

3.3. The United Nations Commission on International Trade Law (UNCITRAL)

The United Nations Commission on International Trade Law (UNCITRAL) is an intergovernmental organization established by the United Nations General Assembly by resolution 2205 (XXI) of 17 December 1966. Its mission is to promote and further the modernization and harmonization of laws relating to international business. Its 60 State members are selected on a rotating basis from the membership of the United Nations (read this guide for more basic facts about UNCITRAL). UNCITRAL is located in Vienna.

UNCITRAL has drafted numerous instruments as a result of successful harmonization projects within the area of international commercial law, including the following, listed in a chronological order by conclusion/adoption date.

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). The New York Convention was concluded in New York on June 10, 1958, and entered into force on June 7, 1959. Its purpose was to provide common legislative standards for the recognition of arbitration agreements and court recognition/enforcement of foreign and non-domestic arbitral awards. The UNCITRAL website provides the text of the New York Convention as well as the Secretariat’s Guide to the Convention, a status table, travaux préparatoires, and a link to the CLOUT database to find court and arbitral decisions that construe and apply the New York Convention. For more information on the New York Convention and on international commercial arbitration, see the GlobaLex research guide on international commercial arbitration.

Convention on the Limitation Period in the International Sale of Goods (the “Limitation Convention”). The Limitation Convention was concluded in New York on June 14, 1974, and amended by Protocol in Vienna on April 11, 1980 (the “1980 Protocol”). It entered into force as amended by the 1980 Protocol on August 1, 1988. The Limitation Convention establishes uniform rules governing the period of time that parties under a contract for the international sale of goods may commence legal proceedings against another party to assert a claim arising from the contract or relating to its breach, termination, or validity. Volume 1511 of the United Nations Treaty Series provides the official text of: the 1974 treaty, the 1980 Protocol, and the 1974 treaty as amended by the 1980 Protocol. Additionally, the UNCITRAL website provides the text of the Limitations Convention with an explanatory note as well as a status table, travaux préparatoires, commentary, and a link to the CLOUT database to find court and arbitral decisions that construe and apply the Limitation Convention.

United Nations Convention on the Contract for the International Carriage of Goods by Road (CMR Convention). The CMR Convention relates to various legal issues concerning transportation of cargo by road. It was originally concluded in Geneva on May 19, 1956 and entered into force on July 2, 1961 (its text appears in 399 U.N.T.S. 189). Its first Protocol (the Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR)) (published in 1208 U.N.T.S. 427) was concluded in Geneva on July 5, 1978 and entered into force on December 28, 1980. Its second Protocol (the Additional Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR) concerning the Electronic Consignment Note) was concluded in Geneva on February 20, 2008 and entered into force on June 5, 2011 (its text appears in 2762 U.N.T.S. 23). To find cases that construe and apply the CMR Convention, visit the jurisprudence database hosted by the French Institut du Droit International des Transports (IDIT) (click the magnifying glass icon to the right of the main search box to view all jurisprudence). In addition to the jurisprudence database, IDIT also provides access to country reports that provide information about the interpretation of the CMR Convention by national judges as well as a bibliography of sources that analyze the CMR Convention (click the magnifying glass icon to the right of the main search box to view all sources in the bibliography).

United Nations Convention on the Carriage of Goods by Sea (the “Hamburg Rules”). The Hamburg Rules established a uniform legal regime governing the rights and obligations of shippers, carriers, and consignees under contracts for the sale of goods transported by sea. The Hamburg Rules were adopted by a diplomatic conference in Hamburg on March 31, 1978, but didn’t enter into force until November 1, 1992. The UNCITRAL website provides the text of the Hamburg Rules as well as a status table and official documents from the diplomatic conference that established the Hamburg Rules.

United Nations Convention on Contracts for the International Sale of Goods (CISG). The United Nations Convention on Contracts for the International Sale of Goods (CISG), 1489 U.N.T.S. 3, 19 I.L.M. 671, opened for signature on April 11, 1980, and entered into force on January 1, 1988. It is arguably the most successful instrument of harmonization within international commercial law. At present, there are 94 nations that have ratified, accepted, approved, or acceded to the CISG, including the United States and most Western European nations (the United Kingdom and India are notable holdouts). Since it is a binding treaty in every nation that has adopted it, the CISG does serve as default law in commercial transactions that cross national borders; however, the CISG does provide private commercial parties the freedom to “opt out” of all or part of the CISG by including contract language that excludes or modifies the application of CISG to their cross-border transaction(s). The UNCITRAL website provides the text of the CISG along with an explanatory note, a status table, links to travaux préparatoires, links to related conventions (some listed below), and links to the CLOUT database and Digest to find court and arbitral decisions that construe and apply the CISG. Additionally, the UNILEX database provides access to court decisions, arbitral awards, and secondary sources that construe and apply the CISG. UNILEX offers myriad ways to search its database including by CISG article number, legal issue or subject, case date, etc. For additional research resources on the CISG, see the GlobaLex research guide on international commercial contracts, which focuses on contracts for the sale of goods across national borders.

UNCITRAL Model Law on International Commercial Arbitration. The UNCITRAL Model Law on International Commercial Arbitration is designed to assist States in reforming and modernizing their domestic laws on arbitration procedure so as to encourage international commercial arbitration as a method of dispute resolution. UNCITRAL released the first version on June 21, 1985, and then adopted and released an amended version on December 4, 2006. The UNCITRAL website offers the text of the original version as well as the text of the 2006 amended version with explanatory note. The UNCITRAL website also provides a status table, travaux préparatoires, and links to the CLOUT database and Digest to find court and arbitral decisions that construe and apply the Model Law.

UNCITRAL Model Law on International Credit Transfers. UNCITRAL adopted the Model Law on International Credit Transfers on May 15, 1992. It applies to credit transfers involving transactions in which a sending bank and a receiving bank are in different States. The UNCITRAL website provides the text of the Model Law.

United Nations Convention on Independent Guarantees and Stand-by Letters of Credit. The United Nations Convention on Independent Guarantees and Stand-by Letters of Credit was concluded on December 11, 1995, and entered into force on January 1, 2000. It establishes common basic principles and characteristics to facilitate the use of independent guarantees and stand-by letters of credit in cross-border transactions. The UNCITRAL website provides the text of the Convention as well as a status table, the travaux préparatoires, and an endorsement from the ICC.

UNCITRAL Model Law on Cross-Border Insolvency. The UNCITRAL Model on Cross-Border Insolvency was adopted on May 30, 1997, to help States equip their national insolvency laws with a modern legal framework to more effectively address cross-border insolvency proceedings. The UNCITRAL website has the text of the Model Law along with an enactment guide updated in 2013. The UNCITRAL website also provides a status table, links to the travaux préparatoires, links to the CLOUT database, and a Digest to find court and arbitral decisions that construe and apply the Model Law, and a practice guide for the business sector.

UNCITRAL Model Law on Electronic Commerce. The UNCITRAL Model Law on Electronic Commerce was adopted in on June 12, 1996, and amended to add an additional article (Article 5 bis) in June 1998. The Model Law provides a set of internationally acceptable rules aimed at facilitating e-commerce. According to UNCITRAL’s website, the Model Law on Electronic Commerce was the first legislative text to adopt fundamental principles of non-discrimination, technological neutrality, and functional equivalence, which are regarded as the founding elements of modern electronic commerce law. The UNCITRAL website provides access to the text of the Model Law, as amended, with a guide to enactment. It also offers a status table and the travaux préparatoires.

UNCITRAL Model Law on Electronic Signatures. UNCITRAL adopted the Model Law on Electronic Signatures on July 5, 2001. It offers States a modern, harmonized, and fair legislative framework to enable and facilitate the use of electronic signatures. The UNCITRAL website provides the text of the Model Law with a guide to enactment as well as a status table and the travaux préparatoires.

UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation. UNCITRAL adopted the first version of the Model Law, which was originally titled the “Model Law on International Commercial Conciliation” and only covered the conciliation procedure, on November 19, 2002. In 2018, UNCITRAL adopted an amended version, which broadened the scope of the Model Law to cover mediation procedures. The amended version is, therefore, renamed: the Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation. The UNCITRAL website offers the text of the original version as well as the text of the 2018 amended version. The UNCITRAL website also provides a status table and travaux préparatoires.

UNCITRAL Legislative Guide on Insolvency Law. The first two parts of the UNCITRAL Legislative Guide on Insolvency Law were adopted on June 25, 2004. Its third part (on the treatment of enterprise groups in insolvency) was adopted on July 1, 2010. Its fourth part (on the topic of Directors’ obligations in the period approaching insolvency (including in enterprise groups)) was first adopted on July 18, 2013, and then revised in a second edition on July 15, 2019. Its fifth part (on the insolvency of micro- and small enterprises) was adopted on July 8, 2021. The UNCITRAL website provides the text of all parts of the legislative guide (see parts one and two; part three; the second edition of part four; and part five). The UNCITRAL website also provides links to the travaux préparatoires and links to UNCITRAL Model Laws related to insolvency proceedings, cited in this guide.

United Nations Convention on the Use of Electronic Communications in International Contracts. The United Nations Convention on the Use of Electronic Communications in International Contracts was concluded on November 23, 2005, and entered into force on March 1, 2013. Its purpose is to facilitate the use of electronic communications in international trade. The UNCITRAL website offers the text of the Convention with an explanatory note. It also provides a status table, the travaux préparatoires, and links to the CLOUT database to find court and arbitral decisions that construe and apply the Convention.

UNCITRAL Model Law on Secured Transactions. UNCITRAL adopted its Model Law on Secured Transactions on December 13, 2016. It helps provide States with a legislative regime to deal with security interests in all types of tangible and intangible movable property. The UNCITRAL website provides the text of the Model Law along with a Guide to Enactment, a status table, and a Practice Guide to the Model Law on Secured Transactions.

UNCITRAL Model Law on Electronic Transferable Records. UNCITRAL adopted its Model Law on Electronic Transferable Records on July 13, 2017. It aims to provide States with a legislative framework to enable the use of electronic transferable documents typically including bills of landing, bills of exchange, promissory notes, and warehouse receipts. The UNCITRAL website provides the text of the Model Law with an explanatory note as well as a status table.

UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments. The UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments was adopted on July 2, 2018. It provides States with legislative guidance to create a straightforward and harmonized procedure for the recognition and enforcement of insolvency-related judgments, thus facilitating smooth cross-border insolvency proceedings. The UNCITRAL website provides the text of the Model Law along with a guide to enactment and links to the travaux préparatoires.

United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention on Mediation”). The Singapore Convention on Mediation was adopted on December 20, 2018, and entered into force on September 12, 2020. It establishes a harmonized legal framework for the existence and enforcement of international settlement agreements resulting from mediation. The UNCITRAL website offers the text of the Convention as well as a status table and the travaux préparatoires.

UNCITRAL Model Law on Enterprise Group Insolvency. The UNCITRAL Model Law on Enterprise Group Insolvency was adopted on July 15, 2019. It helps States develop legislation addressing domestic and cross-border insolvency proceedings relating to multiple debtors that are members of the same enterprise group. The UNCITRAL website provides the text of the Model Law with a guide to enactment.

3.4. The International Chamber of Commerce (ICC)

The International Chamber of Commerce (ICC) is a private organization governed by business executives that acts as an institutional representative of more than 45 million companies in over 100 countries. It was founded in 1919, in the aftermath of World War I, because its founders believed the private sector was best qualified to set global standards for business. Its mission, therefore, is to create standards for business and to ensure the “voice of business” is heard at the highest levels of intergovernmental decision-making.

The ICC is in Paris and is responsible for initiating harmonization projects that have yielded the following instruments, which have gained widespread acceptance in the global business community and are incorporated in most international commercial contracts, when applicable (in chronological order by conclusion date):

• Incoterms. “International Commercial Terms” or “Incoterms” identify and define essential terms used in international trade so that use of those terms in an international commercial contract carry a common trade understanding. In particular, the Incoterms discuss the point of delivery of goods and the passing of risk. The ICC published the first Incoterms in 1936 and has frequently revised them as international trade developed into the modern era. The latest version, Incoterms 2020, came into effect in 2019, but the prior version, Incoterms 2010, is still also in effect for any contracts that incorporate it. The ICC’s website provides (for free) some guidance on the history and use of Incoterms as well as an explanation of how the two versions differ, but the ICC does not offer free access to any version of Incoterms. Payment is required to access the 2010 version and the 2020 version of Incoterms. UNCITRAL has endorsed both versions of Incoterms.
• Uniform Customs and Practice for Documentary Credits (UCP). Since private companies engaged in international commerce usually rely on banks to finance their business transactions, the ICC decided to initiate a harmonization project to create common terms and standards for letter of credit transactions. The Uniform Customs and Practice for Documentary Credits (UCP) targets the banking industry and, according to the ICC’s website, it includes the most successful private rules for trade ever developed. The current version of the UCP is the UCP 600, which entered into force on July 1, 2007, and consists of 39 Articles that cover definitions and various arrangements in credit transactions. On July 1, 2019, the ICC released a supplement to the UCP 600 called the “Supplement for Electronic Presentation” or the “eUCP Version 2.0”, which adds an additional 14 Articles that update the UCP 600 to accommodate presentation of electronic records. The UCP 600 with its eUCP Version 2.0 supplement is available for purchase on the ICC’s website. The ICC does, however, provide free access to the eUCP Version 2.0, separately, as well as an article-by-article commentary on the eUCP Version 2.0.
• Model Contracts & Clauses. The ICC also develops model contracts and clauses to facilitate international trade. Private companies engaged in international commerce are free to pick and choose among these suggested contracts and clauses, which cover a range of topic areas, including agency, arbitration, confidentiality, force majeure, franchising, mergers and acquisitions, and many more. The ICC also offers dispute resolution services, including a “court” of arbitration, which helps resolve international commercial and business disputes that may or may not arise from use of the ICC’s model contracts, clauses, or other instruments of harmonization.

3.5. The Organization for the Harmonization of Business Laws in Africa (OHADA)

The Organization for the Harmonization of Business Laws in Africa (Organisation pour L’harmonisation en Afrique du Droit des Affaires) (OHADA) is an intergovernmental organization created by the Treaty on the Harmonization of Business Law in Africa, which was concluded on October 17, 1993, and revised on October 17, 2008. It currently consists of 17 Francophone State members within Africa. The OHADA’s website provides the text (in French) of the original 1993 Treaty on the Harmonization of Business Law in Africa (in html on its website and, separately, as published in No. 4 of OHADA’s official gazette). Also, it provides the text (again, in French) of the 2008 revision of the Treaty on the Harmonization of Business Law in Africa (in html on its website and, separately, as published in No. 20 of the official gazette). On November 24, 2016, in a Special Edition of its official gazette, OHADA published a compilation of official English translations of both versions of the Treaty on the Harmonization of Business Law in Africa (as well as the ten Uniform Acts listed below).

As noted above in Part 2 of this Guide, OHADA initiates harmonization projects that, when successful, result in a type of instrument OHADA calls a “Uniform Act.” When these Uniform Acts enter into force, they have binding effect within the domestic legal framework of all OHADA State members, cancelling out any existing, conflicting domestic legislation. OHADA publishes the Uniform Acts (as well as any case law construing and applying the Uniform Acts) in its official gazette. Unfortunately, OHADA does not maintain comprehensive access to its official gazette on its website.

The following is a list of OHADA’s Uniform Acts with links to the text in both French and in English. When possible, the links lead to the relevant official gazette from OHADA’s website; however, when an issue of the official gazette is missing from the OHADA website, the links will lead to the relevant issue of the official gazette available for free from third-party sources including the website of the Association for the Unification of Law in Africa (UNIDA), which, upon OHADA’s request, provides free access to OHADA’s legal texts if the researcher is willing to register with UNIDA.

• Uniform Act Organizing Simplified Recovery Procedures and Measures of Execution (Acte Uniforme portant Organisation des Procédures Simplifiées de Recouvrement et des Voies d’Exécution). OHADA adopted this Uniform Act in Libreville (Gabon) on April 10, 1998, and published its text in No. 6 of its official gazette on July 1, 1998. It entered into force on August 31, 1998. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.
• Uniform Act on Contracts for the Carriage of Goods by Road (Acte Uniforme relatif aux Contrats de Transport de Marchandises par Route). OHADA adopted this Uniform Act in Yaoundé (Cameroon) on March 22, 2003, and published its text in No. 13 of its official gazette on July 31, 2003. It entered into force on January 1, 2004. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.
• Uniform Act of General Commercial Law (Acte Uniforme portant sur le Droit commercial général). OHADA adopted this Uniform Act in Lomé (Togo), on December 15, 2010, and published its text in French in No. 21 of its official gazette on February 15, 2011. It entered into force on May 15, 2011. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.
• Uniform Act Organizing Securities Law (Acte Uniforme portant Organisation des Sûretés). OHADA adopted this Uniform Act in Lomé (Togo) on December 15, 2010, and published its text in No. 22 of its official gazette on February 15, 2011. It entered into force on May 15, 2011. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.
• Uniform Act on Cooperative Societies Law (Acte Uniforme relatif au Droit des Sociétés Coopératives). OHADA adopted this Uniform Act in Lomé (Togo) on December 15, 2010, and published its text in No. 23 of its official gazette on February 15, 2011. It came into force on May 15, 2011. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.
• Uniform Act on the Law of Commercial Companies and Economic Interest Groups (Acte Uniforme relatif au Droit des Sociétés Commerciales et du Groupement d’Intéret Économique) in Ouagadougou (Burkina Faso) on January 30, 2014, and published its text in a Special Issue of its official gazette on February 4, 2014. It entered into force on May 5, 2014. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.
• Uniform Act on the Organization of Collective Procedures for the Discharge of Liabilities (Acte Uniforme portant Organsation de Procédures Collectives d’Apurement du Passif). OHADA adopted this Uniform Act in Grand-Bassam (Cote d’Ivoire) on September 10, 2015, and published its text in a Special Edition of its official gazette on September 25, 2015. It entered into force on December 24, 2015. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.
• Uniform Act relating to Accounting Law and Financial Information (Acte Uniforme relatif au Droit Comptable et à l’Information Financière) (AUDCIF). OHADA adopted this Uniform Act in Brazzaville (Congo) on January 26, 2017, and published its text in a Special Issue of its official gazette on February 15, 2017. It entered into force for the personal accounts of entities on January 1, 2018, and for consolidated accounts, combined accounts, and financial statements produced under IFRS on January 1, 2019. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.
• Uniform Act relating to the Law of Arbitration (Acte Uniforme relatif au Droit de L’Arbitrage). OHADA adopted this Uniform Act in Conakry (Guinea) on November 23, 2017, and published its text in a Special Issue of its official gazette on December 15, 2017. It entered into force on March 15, 2018.
• Uniform Act relating to Mediation (Acte Uniforme relatif à la Médiation). OHADA adopted this Uniform Act in Conakry (Guinea) on November 23, 2017, and published its text in a Special Issue of its official gazette on December 15, 2017. It entered into force on March 15, 2018.

Additionally, the treaty that established OHADA also established a Common Court of Justice and Arbitration (CCJA) to adjudicate disputes arising under the Uniform Acts and, in particular, to make sure those Uniform Acts are interpreted in a consistent way. OHADA publishes these decisions in its official gazette and also in a separate page of its website for “case law”). UNIDA’s website on OHADA legal texts also includes a collection of jurisprudence from the CCJA.

3.6. The European Union (“EU”)

As the only supranational, intergovernmental organization, the EU has a unique role in the international system. It has its own legal status and, thus, can join any of the conventions listed above to further harmonization within international commercial law. Additionally, it can initiate its own harmonization projects to standardize terms and practices associated with cross-border trade within the EU. Its own harmonization projects contribute to the “acquis communautaire” (also called the “EU acquis” or, simply, “acquis”), which is the body of EU policies that States must adopt to join the EU. The acquis is currently divided into 35 chapters, many of which address issues within international commercial law.

The following instruments were created by EU-initiated harmonization projects. As noted above in Part 2 of this Guide, EU-initiated harmonization instruments may take many forms including the forms of conventions, regulations, directives, model laws, guidelines, principles, and model clauses. For more information about the EU and its founding treaties, institutions, and legislative processes see the GlobaLex research guide on understanding European Union legal materials.

1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (the “1968 Brussels Convention”). The 1968 Brussels Convention was concluded in Brussels on September 27, 1968, and entered into force on February 1, 1973. It established a uniform framework in the EU to guide civil and commercial litigation particularly with regards to determining which courts had jurisdiction and to recognizing/enforcing judgments from courts with proper jurisdiction. In March 2002, the Brussels Convention was largely replaced by Regulation 44/2001 (the “2001 Brussels Regulation”). Currently, the 1968 Brussels Convention only applies between the pre-2004 EU Member States and certain territories of EU Member States outside the EU (i.e., Aruba, French overseas territories, and Mayotte). The European Court of Justice provides two case databases for cases construing and applying the 1968 Brussels Convention. The Curia database offers an advanced search (select the ellipses icon (…) to the right of the subject-matter field and then select the box for Brussels Convention of 27 September 1968). The site hosts a case database on the 1988 Lugano Convention from the period between 1992-2011, which organizes cases by article number.

Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (the “Rome I Convention”). The Rome I Convention was concluded in Rome on June 19, 1980, and entered into force on April 1, 1991. It was replaced among all EU countries except Denmark by Regulation (EC) 593/2008 (the “Rome I Regulation”). The Rome I Convention continues to apply to Denmark for all contractual obligations concluded before the Rome I Regulation entered into force. EUR-Lex offers a summary of the Convention and links to related documents and an article-by-article analysis and brief history of the Rome I Convention (Mario Giuliano & Paul Lagarde’s report).

Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (the “1988 Lugano Convention”). The 1988 Lugano Convention was concluded in Lugano (Switzerland) on September 16, 1988. This Convention extended the 1968 Brussels Convention to the Members States of the EU and the European Free Trade Association (Iceland, Norway, and Switzerland). The 1988 Lugano Convention was superseded by the 2007 Lugano Convention (see below), but the 1988 Lugano Convention still applies to any proceedings in which the relevant circumstances giving rise to the case arose before the 2007 Lugano Convention came into force for the relevant EU Member State. The European Court of Justice provides two case databases for cases construing and applying the 1988 Lugano Convention. The Curia database offers an advanced search (select the ellipses icon (…) to the right of the subject-matter field and then select the box for Lugano Convention of 16 September 1988). The site hosts a case database on the 1988 Lugano Convention from the period between 1992-2011, which organizes cases by article number.

Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “2001 Brussels Regulation” or the “Brussels I Regulation”). The 2001 Brussels Regulation was adopted on December 22, 2000, and came into force on March 1, 2002. The 2001 Brussels Regulation replaced the 1968 Brussels Convention for all Member States except Denmark (although, later, it was extended to Denmark by a separate agreement). In turn, the 2001 Brussels Regulation has also been superseded by Regulation (EU) 1215/2012 (the “Recast Brussels Regulation”) (see below). The site hosts a case database on the 2001 Brussels Regulation from the period between 1992-2011, which organizes cases by article number.

Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (the “2007 Lugano Convention”). The 2007 Lugano Convention was concluded on October 30, 2007, and it took effect for all Member States except Denmark on May 18, 2009. The 2007 Lugano Convention replaced the 1988 Lugano Convention to mirror the changes adopted in the Brussels I Regulation. The 2007 Lugano Convention applies between EU Member States and members of EFTA (Norway, Iceland, and Switzerland) and Denmark.

Regulation (EC) 593/2008 of the European Parliament and the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (the “Rome I Regulation”). The Rome I Regulation replaced the Rome I Convention for contracts concluded after December 17, 2009. It sets out EU-wide rules for determining which national law should apply to contractual obligations in civil and commercial matters involving more than one country.

Regulation (EU) 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 (the “Brussels I Recast Regulation” or “Recast Brussels I Regulation”). The Brussels I Recast Regulation was concluded on December 12, 2012, and took effect on January 10, 2015. It replaced and updated the 2001 Brussels Regulation to make the circulation of judgments in civil and commercial cases faster and easier within the EU. But, it only applies to cases and judgments instituted on or after January 10, 2015.

Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market (the “Payment Services Directive”). The Payment Services Directive was concluded on November 25, 2015. It establishes the goal of a “harmonized legal framework” to facilitate electronic payments. Each individual Member State within the EU had until January 13, 2018 to create their own national laws to achieve the goals set forth in the Payment Services Directive.

3.7. The Commission on European Contract Law (CECL)

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. The CECL, also known as the “Lando Commission” because it was chaired by Ole Lando of the Copenhagen Business School, was composed of leading academics throughout Europe and 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). The CECL hoped 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, the European Union does not have a common law legal system and, thus, the CECL could not restate the contract laws of European countries. Instead, after extensive comparative analysis, the CECL drafted one instrument of harmonization, the Principleas of European Contract Law.

Principles of European Contract Law (PECL). The CECL drafted principles of contract law as it believed the law should be. The PECL consists of three parts, drafted 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. The PECL later contributed to the development of the EU’s Draft Common Frame of Reference, discussed in section 5.2 of this Guide, below.

3.8. The Research Group on the Existing EC Private Law (Acquis Group)

The Research Group on the Existing EC Private Law (Acquis Group), formed in 2002, included over 40 legal scholars from throughout the European Union. Its purpose was to work on a restatement of the existing acquis communautaire. The Acquis Group, as it came to be known, drafted two instruments of harmonization, both of which later contributed to the development of the EU’s Draft Common Frame of Reference, discussed in section 5.2 of this Guide, below.

• Principles of the Existing EC Contract Law (Acquis Principles or ACQP): Contract I. The first set of principles focused on pre-contractual obligations and on conclusion of contract. The text of the first set of principles is available for purchase.
• Principles of the Existing EC Contract Law (Acquis Principles or ACQP): Contract II. The second set of principles revised some aspects of the first set of principles and also presented new rules focused on general provisions, delivery of goods, package travel, and payment services. The text of the second set of principles is available for purchase.

3.9. The Academy of European Private Lawyers (Academia dei Giusprivatisti Europei)

The Academy of European Private Lawyers (Academia dei Giusprivatisti Europei, also called the “Pavia Group”) was formed in Pavia, Italy, in 1992, to “contribute, through scientific research, to the unification and the future interpretation and enforcement of private law in Europe” and “to promote the development of a legal culture leading to European unification. Thus far, the Academy of European Private Lawyers has drafted the following instrument of harmonization:

• European Contract Code. The European Contract Code was created to serve as a model law for harmonization of contract law in civil law countries. It consists of two books: the first book focuses on contracts in general and the second book addresses specific areas of contract law.

3.10. The Organization of American States (OAS)

Originally founded as the Pan-American Union, the Organization of American States (OAS) is an intergovernmental organization formed of all 35 independent States of the Americas. 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 has drafted many instruments of harmonization and the OAS’s Department of International Law (DIL) provides access to these instruments, organized by CIDIP Conference here. Additionally, the DIL provides a comprehensive status table of all Conventions adopted out of all CIDIPs (last updated on October 29, 2021).

The following are some, but not all, of the instruments of harmonization associated with international commercial law and arising from CIDIPs (in order of conclusion date):

• Inter-American Convention on International Commercial Arbitration. This Convention was adopted at CIDIP-I in Panama City (Panama) on January 30, 1975. It entered into force on June 16, 1976. The OAS website provides the text of the Convention and a status table in English.
• Inter-American Convention on the General Rules of Private International Law. This Convention was adopted at CIDIP-II in Montevideo (Uruguay) on May 8, 1979. It entered into force on June 10, 1981. The OAS website provides the text of Convention and a status table in English.
• Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards. This Convention was adopted at CIDIP-II in Montevideo (Uruguay) on May 8, 1979. It entered into force on June 14, 1980. The OAS website provides the text of the Convention and a status table in English.
• Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments. This Convention was adopted at CIDIP-III in La Paz (Bolivia) on May 24, 1984. It entered into force on December 24, 2004. The OAS website provides the text of the Convention and a status table in English.
• The Inter-American Convention on the Law Applicable to International Contracts. This Convention was adopted at CIDIP-V in Mexico City (Mexico) on March 17, 1994. It came into force on December 15, 1996. The OAS website provides the text of the Convention and a status table in English.
• The Model Inter-American Law on Secured Transactions. This Model Law was adopted at CIDIP-VI in Washington, D.C. (United States) on February 8, 2002.

3.11. Fundación Fernando Fueyo at Diego Portales University & Fondation pour le droit continental

In 2010, a group of academics from Argentina, Columbia, and Chile gathered in Rennes (France) to attend a conference on the evolution of French and Latin American contract law. The group began to consider harmonization projects, eventually earning the support of the Fundación Fernando Fueyo at Diego Portales University in Chile and the Fondation pour le droit continental. After several years, the academic initiative yielded an important instrument of harmonization, the Principles of latin American Contract Law.

Principles of Latin American Contract Law (PLACL) (Principios latinoamericanos de derecho de los contratos (PLDC)). The final version of the Principles of Latin American Contract Law (PLACL) was approved by the drafting committee in August 2017. Its aim was to harmonize the contract laws of Latin America, or at least to inspire the modernization of contract law in Latin America. Thus, the PLACL was intended to be used as a model law for legislators (despite its title as “Principles”). The PLACL are freely available in Spanish with commentary and in English without commentary. For an analysis of the PLACL and an unofficial, but credible, translation of the PLACL, see Rodrigo Momberg and Stefan Vogenauer, The Principles of Latin American Contract Law: text, translation, and introduction, 23 Uniform L. Rev. 144 (March 2018).

4. Instruments of Harmonization by Topic

This section re-organizes the instruments of harmonization previously listed above into topic area within “international commercial law”. Within each topic area, below, the instruments are listed in the same order they appear in Part 3 of this Guide (in other words, by organization and then by conclusion/adoption date).

4.1. General International Commercial Contract Law

General international commercial contract law includes several instruments of harmonization.

UNIDROIT Principles of International Commercial Contracts. The original version of the UNIDROIT Principles of International Commercial Contracts (UPICC or PICC) was completed in 1994 (UNIDROIT Principles 1994) by an international working group of academic attorneys who set out to draft a non-binding restatement of the general principles of international commercial contract law. Since then, the UPICC has been amended three times: in 2004 (UNIDROIT Principles 2004), in 2010 (UNIDROIT Principles 2010), and in 2016 (UNIDROIT Principles 2016). The UNIDROIT Principles 2016 is the current version. More recently, the UNIDROIT Secretariat issued a note regarding the UPICC in the context of the COVID-19 health crisis, but stated that the note merely added to the public discussion without amending the current version of the UPICC. The UNIDROIT website has links to the preparatory works for each version of the UPICC and provides select bibliographies for the 2010 and 2016 versions. Additionally, the UNILEX database provides access to court decisions, arbitral awards, and secondary sources that construe and apply the UPICC. UNILEX offers myriad ways to search its database including by UPICC article number, legal issue, subject, nationality of the parties, case date, name of court or tribunal, etc.

UNIDROIT Model Clauses for the Use of the UNIDROIT Principles of International Commercial Contracts. At its 92nd session in May 2013, the UNIDROIT Governing Council unanimously approved the Model Clauses for Use of the UNIDROIT Principles of International Commercial Contracts. These model clauses were created by a UNIDROIT working group composed of internationally renowned experts in the field of international contract law and arbitration. The purpose of the model clauses was to provide clear and unambiguous contract language that private commercial companies could insert to incorporate the UNIDROIT Principles of International Commercial Contracts (UPICC) into their contracts.

ICC’s Model Contracts & Clauses. The ICC also develops model contracts and clauses to facilitate international trade. Private companies engaged in international commerce are free to pick and choose among these suggested contracts and clauses, which cover a range of topic areas, including agency, arbitration, confidentiality, force majeure, franchising, mergers and acquisitions, and many more. The ICC also offers dispute resolution services, including a “court” of arbitration, which helps resolve international commercial and business disputes that may or may not arise from use of the ICC’s model contracts, clauses, or other instruments of harmonization.

OHADA’s Uniform Act of General Commercial Law (Acte Uniforme portant sur le Droit commercial général). OHADA adopted this Uniform Act in Lomé (Togo), on December 15, 2010, and published its text in French in No. 21 of its official gazette on February 15, 2011. It entered into force on May 15, 2011. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.

OHADA’s Uniform Act on Cooperative Societies Law (Acte Uniforme relatif au Droit des Sociétés Coopératives). OHADA adopted this Uniform Act in Lomé (Togo) on December 15, 2010, and published its text in No. 23 of its official gazette on February 15, 2011. It came into force on May 15, 2011. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.

OHADA’s Uniform Act on the Law of Commercial Companies and Economic Interest Groups (Acte Uniforme relatif au Droit des Sociétés Commerciales et du Groupement d’Intéret Économique) in Ouagadougou (Burkina Faso) on January 30, 2014, and published its text in a Special Issue of its official gazette on February 4, 2014. It entered into force on May 5, 2014. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.

OHADA’s Uniform Act relating to Accounting Law and Financial Information (Acte Uniforme relatif au Droit Comptable et à l’Information Financière) (AUDCIF). OHADA adopted this Uniform Act in Brazzaville (Congo) on January 26, 2017, and published its text in a Special Issue of its official gazette on February 15, 2017. It entered into force for the personal accounts of entities on January 1, 2018, and for consolidated accounts, combined accounts, and financial statements produced under IFRS on January 1, 2019. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.

CECL’s Principles of European Contract Law (PECL). The CECL drafted principles of contract law as it believed the law should be. The PECL consists of three parts, drafted 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. The PECL later contributed to the development of the EU’s Draft Common Frame of Reference, discussed in section 5.2 of this Guide, below.

The Acquis Group’s Principles of the Existing EC Contract Law (Acquis Principles or ACQP): Contract I. The first set of principles focused on pre-contractual obligations and on conclusion of contract. The text of the first set of principles is available for purchase.

The Acquis Group’s Principles of the Existing EC Contract Law (Acquis Principles or ACQP): Contract II. The second set of principles revised some aspects of the first set of principles and also presented new rules focused on general provisions, delivery of goods, package travel, and payment services. The text of the second set of principles is available for purchase.

The Academy of European Private Lawyers’ European Contract Code. The European Contract Code was created to serve as a model law for harmonization of contract law in civil law countries. It consists of two books: the first book focuses on contracts in general and the second book addresses specific areas of contract law.

Fundación Fernando Fueyo at Diego Portales University & Fondation pour le droit continental’s Principles of Latin American Contract Law (PLACL) (Principios latinoamericanos de derecho de los contratos (PLDC)). The final version of the Principles of Latin American Contract Law (PLACL) was approved by the drafting committee in August 2017. Its aim was to harmonize the contract laws of Latin America, or at least to inspire the modernization of contract law in Latin America. Thus, the PLACL was intended to be used as a model law for legislators (despite its title as “Principles”). The PLACL are freely available in Spanish with commentary and in English without commentary. For an analysis of the PLACL and an unofficial, but credible, translation of the PLACL, see Rodrigo Momberg and Stefan Vogenauer, The Principles of Latin American Contract Law: text, translation, and introduction, 23 Uniform L. Rev. 144 (March 2018).

4.2. E-Commerce

The following are instruments of harmonization that fall within the topic of e-commerce:

• UNCITRAL Model Law on Electronic Commerce. The UNCITRAL Model Law on Electronic Commerce was adopted in on June 12, 1996, and amended to add an additional article (Article 5 bis) in June 1998. The Model Law provides a set of internationally acceptable rules aimed at facilitating e-commerce. According to UNCITRAL’s website, the Model Law on Electronic Commerce was the first legislative text to adopt fundamental principles of non-discrimination, technological neutrality, and functional equivalence, which are regarded as the founding elements of modern electronic commerce law. The UNCITRAL website provides access to the text of the Model Law, as amended, with a guide to enactment. It also offers a status table and the travaux préparatoires.
• UNCITRAL Model Law on Electronic Signatures. UNCITRAL adopted the Model Law on Electronic Signatures on July 5, 2001. It offers States a modern, harmonized, and fair legislative framework to enable and facilitate the use of electronic signatures. The UNCITRAL website provides the text of the Model Law with a guide to enactment as well as a status table and the travaux préparatoires.
• United Nations Convention on the Use of Electronic Communications in International Contracts. The United Nations Convention on the Use of Electronic Communications in International Contracts was concluded on November 23, 2005, and entered into force on March 1, 2013. Its purpose is to facilitate the use of electronic communications in international trade. The UNCITRAL website offers the text of the Convention with an explanatory note. It also provides a status table, the travaux préparatoires, and links to the CLOUT database to find court and arbitral decisions that construe and apply the Convention.
• UNCITRAL Model Law on Electronic Transferable Records. UNCITRAL adopted its Model Law on Electronic Transferable Records on July 13, 2017. It aims to provide States with a legislative framework to enable the use of electronic transferable documents typically including bills of landing, bills of exchange, promissory notes, and warehouse receipts. The UNCITRAL website provides the text of the Model Law with an explanatory note as well as a status table.
• EU’s Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market (the “Payment Services Directive”). The Payment Services Directive was concluded on November 25, 2015. It establishes the goal of a “harmonized legal framework” to facilitate electronic payments. Each individual Member State within the EU had until January 13, 2018 to create their own national laws to achieve the goals set forth in the Payment Services Directive.

4.3. Private International Law (Conflicts of Laws)

As stated above in Part 2 of this Guide, private commercial parties must situate their contract(s) within a particular State’s law. Consequently, as further explained by Professor Twigg-Flesner, “for every international commercial contract, there are three key questions: (i) Which national law applies to the contract? (ii) In which court can a claim in respect of that contract be launched; and (iii) How can a judgment be enforced in another country? These questions all fall within the remit of private international law.”[8] The following are instruments of harmonization that fall within the topic of private international law (also called “conflicts of law”).

• HCCH’s Convention of 30 June 2005 on Choice of Court Agreements, 44 I.L.M. 1291 (2005). This Convention was concluded in the Hague on June 30, 2005, and came into force October 1, 2015. It is the result of a harmonization project focused on choice of court agreements (also known as “forum selection clauses”) between parties to international commercial transactions. The HCCH website provides, in addition to the text and status of this Convention, an explanatory report of the Convention, and a bibliography.
• HCCH’s Principles on Choice of Law in International Commercial Contracts. This instrument, approved on March 19 2015, is the HCCH’s first soft law instrument of harmonization. It aims to produce uniform choice of law rules for international commercial contracts. The HCCH website provides the text of the Principles with commentary as well as a bibliography of analytical materials. Additionally, the HCCH collaborated with other intergovernmental organizations that foster harmonization projects (UNCITRAL and UNIDROIT) to produce a legal guide that analyzes all the various instruments of harmonization within the area of international commercial contracts, particular in the area of international sale of goods.
• EU’s 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (the “1968 Brussels Convention”). The 1968 Brussels Convention was concluded in Brussels on September 27, 1968, and entered into force on February 1, 1973. It established a uniform framework in the EU to guide civil and commercial litigation particularly with regards to determining which courts had jurisdiction and to recognizing/enforcing judgments from courts with proper jurisdiction. In March 2002, the Brussels Convention was largely replaced by Regulation 44/2001 (the “2001 Brussels Regulation”). Currently, the 1968 Brussels Convention only applies between the pre-2004 EU Member States and certain territories of EU Member States outside the EU (i.e., Aruba, French overseas territories, and Mayotte). The European Court of Justice provides two case databases for cases construing and applying the 1968 Brussels Convention. The Curia database offers an advanced search (select the ellipses icon (…) to the right of the subject-matter field and then select the box for Brussels Convention of 27 September 1968). The site hosts a case database on the 1988 Lugano Convention from the period between 1992-2011, which organizes cases by article number.
• EU’s Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (the “Rome I Convention”). The Rome I Convention was concluded in Rome on June 19, 1980, and entered into force on April 1, 1991. It was replaced among all EU countries except Denmark by Regulation (EC) 593/2008 (the “Rome I Regulation”). The Rome I Convention continues to apply to Denmark for all contractual obligations concluded before the Rome I Regulation entered into force. EUR-Lex offers a summary of the Convention and links to related documents and an article-by-article analysis and brief history of the Rome I Convention (Mario Giuliano & Paul Lagarde’s report).
• EU’s Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (the “1988 Lugano Convention”). The 1988 Lugano Convention was concluded in Lugano (Switzerland) on September 16, 1988. This Convention extended the 1968 Brussels Convention to the Members States of the EU and the European Free Trade Association (Iceland, Norway, and Switzerland). The 1988 Lugano Convention was superseded by the 2007 Lugano Convention (see below), but the 1988 Lugano Convention still applies to any proceedings in which the relevant circumstances giving rise to the case arose before the 2007 Lugano Convention came into force for the relevant EU Member State. The European Court of Justice provides two case databases for cases construing and applying the 1988 Lugano Convention. The Curia database offers an advanced search (select the ellipses icon (…) to the right of the subject-matter field and then select the box for Lugano Convention of 16 September 1988). The site hosts a case database on the 1988 Lugano Convention from the period between 1992-2011, which organizes cases by article number.
• EU’s Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “2001 Brussels Regulation” or the “Brussels I Regulation”). The 2001 Brussels Regulation was adopted on December 22, 2000, and came into force on March 1, 2002. The 2001 Brussels Regulation replaced the 1968 Brussels Convention for all Member States except Denmark (although, later, it was extended to Denmark by a separate agreement). In turn, the 2001 Brussels Regulation has also been superseded by Regulation (EU) 1215/2012 (the “Recast Brussels Regulation”) (see below). The site hosts a case database on the 2001 Brussels Regulation from the period between 1992-2011, which organizes cases by article number.
• EU’s Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (the “2007 Lugano Convention”). The 2007 Lugano Convention was concluded on October 30, 2007, and it took effect for all Member States except Denmark on May 18, 2009. The 2007 Lugano Convention replaced the 1988 Lugano Convention to mirror the changes adopted in the Brussels I Regulation. The 2007 Lugano Convention applies between EU Member States and members of EFTA (Norway, Iceland, and Switzerland) and Denmark.
• EU’s Regulation (EC) 593/2008 of the European Parliament and the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (the “Rome I Regulation”). The Rome I Regulation replaced the Rome I Convention for contracts concluded after December 17, 2009. It sets out EU-wide rules for determining which national law should apply to contractual obligations in civil and commercial matters involving more than one country.
• EU’s Regulation (EU) 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 (the “Brussels I Recast Regulation” or “Recast Brussels I Regulation”). The Brussels I Recast Regulation was concluded on December 12, 2012, and took effect on January 10, 2015. It replaced and updated the 2001 Brussels Regulation to make the circulation of judgments in civil and commercial cases faster and easier within the EU. But, it only applies to cases and judgments instituted on or after January 10, 2015.
• OAS’s Inter-American Convention on the General Rules of Private International Law. This Convention was adopted at CIDIP-II in Montevideo (Uruguay) on May 8, 1979. It entered into force on June 10, 1981. The OAS website provides the text of Convention and a status table in English.
• OAS’s Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards. This Convention was adopted at CIDIP-II in Montevideo (Uruguay) on May 8, 1979. It entered into force on June 14, 1980. The OAS website provides the text of the Convention and a status table in English.
• OAS’s Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments. This Convention was adopted at CIDIP-III in La Paz (Bolivia) on May 24, 1984. It entered into force on December 24, 2004. The OAS website provides the text of the Convention and a status table in English.
• OAS’s The Inter-American Convention on the Law Applicable to International Contracts. This Convention was adopted at CIDIP-V in Mexico City (Mexico) on March 17, 1994. It came into force on December 15, 1996. The OAS website provides the text of the Convention and a status table in English.

4.4. International Sale of Goods

The international sale of goods include several instruments. HCCH’s Convention of 15 June 1955 on the Law Applicable to International Sales of Goods, 510 U.N.T.S. 147 (1955). This Convention was concluded in the Hague on June 15, 1955, and entered into force on September 1, 1964. It is currently in force for only eight countries. The full text of the treaty and a bibliography of resources regarding the treaty are available on the HCCH’s website.

UNCITRAL Convention on the Limitation Period in the International Sale of Goods (the “Limitation Convention”). The Limitation Convention was concluded in New York on June 14, 1974, and amended by Protocol in Vienna on April 11, 1980 (the “1980 Protocol”). It entered into force as amended by the 1980 Protocol on August 1, 1988. The Limitation Convention establishes uniform rules governing the period of time that parties under a contract for the international sale of goods may commence legal proceedings against another party to assert a claim arising from the contract or relating to its breach, termination, or validity. Volume 1511 of the United Nations Treaty Series provides the official text of: the 1974 treaty, the 1980 Protocol, and the 1974 treaty as amended by the 1980 Protocol. Additionally, the UNCITRAL website provides the text of the Limitations Convention with an explanatory note as well as a status table, travaux préparatoires, commentary, and a link to the CLOUT database to find court and arbitral decisions that construe and apply the Limitation Convention.

United Nations Convention on Contracts for the International Sale of Goods (CISG). The United Nations Convention on Contracts for the International Sale of Goods (CISG), 1489 U.N.T.S. 3, 19 I.L.M. 671, opened for signature on April 11, 1980, and entered into force on January 1, 1988. It is arguably the most successful instrument of harmonization within international commercial law. At present, there are 94 nations that have ratified, accepted, approved, or acceded to the CISG, including the United States and most Western European nations (the United Kingdom and India are notable holdouts). Since it is a binding treaty in every nation that has adopted it, the CISG does serve as default law in commercial transactions that cross national borders; however, the CISG does provide private commercial parties the freedom to “opt out” of all or part of the CISG by including contract language that excludes or modifies the application of CISG to their cross-border transaction(s). The UNCITRAL website provides the text of the CISG along with an explanatory note, a status table, links to travaux préparatoires, links to related conventions (some listed below), and links to the CLOUT database and Digest to find court and arbitral decisions that construe and apply the CISG. Additionally, the UNILEX database provides access to court decisions, arbitral awards, and secondary sources that construe and apply the CISG. UNILEX offers myriad ways to search its database including by CISG article number, legal issue or subject, case date, etc. For additional research resources on the CISG, see the GlobaLex research guide on international commercial contracts, which focuses on contracts for the sale of goods across national borders.

ICC’s Incoterms. “International Commercial Terms” or “Incoterms” identify and define essential terms used in international trade so that use of those terms in an international commercial contract carry a common trade understanding. In particular, the Incoterms discuss the point of delivery of goods and the passing of risk. The ICC published the first Incoterms in 1936 and has frequently revised them as international trade developed into the modern era. The latest version, Incoterms 2020, came into effect in 2019, but the prior version, Incoterms 2010, is still also in effect for any contracts that incorporate it. The ICC’s website provides (for free) some guidance on the history and use of Incoterms as well as an explanation of how the two versions differ, but the ICC does not offer free access to any version of Incoterms. Payment is required to access the 2010 version and the 2020 version of Incoterms. UNCITRAL has endorsed both versions of Incoterms.

4.5. International Transportation of Goods

United Nations Convention on the Contract for the International Carriage of Goods by Road (CMR Convention). The CMR Convention relates to various legal issues concerning transportation of cargo by road. It was originally concluded in Geneva on May 19, 1956 and entered into force on July 2, 1961 (its text appears in 399 U.N.T.S. 189). Its first Protocol (the Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR)) (published in 1208 U.N.T.S. 427) was concluded in Geneva on July 5, 1978 and entered into force on December 28, 1980. Its second Protocol (the Additional Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR) concerning the Electronic Consignment Note) was concluded in Geneva on February 20, 2008 and entered into force on June 5, 2011 (its text appears in 2762 U.N.T.S. 23). To find cases that construe and apply the CMR Convention, visit the jurisprudence database hosted by the French Institut du Droit International des Transports (IDIT) (click the magnifying glass icon to the right of the main search box to view all jurisprudence). In addition to the jurisprudence database, IDIT also provides access to country reports that provide information about the interpretation of the CMR Convention by national judges as well as a bibliography of sources that analyze the CMR Convention (click the magnifying glass icon to the right of the main search box to view all sources in the bibliography).

United Nations Convention on the Carriage of Goods by Sea (the “Hamburg Rules”). The Hamburg Rules established a uniform legal regime governing the rights and obligations of shippers, carriers, and consignees under contracts for the sale of goods transported by sea. The Hamburg Rules were adopted by a diplomatic conference in Hamburg on March 31, 1978, but didn’t enter into force until November 1, 1992. The UNCITRAL website provides the text of the Hamburg Rules as well as a status table and official documents from the diplomatic conference that established the Hamburg Rules.

ICC’s Incoterms. “International Commercial Terms” or “Incoterms” identify and define essential terms used in international trade so that use of those terms in an international commercial contract carry a common trade understanding. In particular, the Incoterms discuss the point of delivery of goods and the passing of risk. The ICC published the first Incoterms in 1936 and has frequently revised them as international trade developed into the modern era. The latest version, Incoterms 2020, came into effect in 2019, but the prior version, Incoterms 2010, is still also in effect for any contracts that incorporate it. The ICC’s website provides (for free) some guidance on the history and use of Incoterms as well as an explanation of how the two versions differ, but the ICC does not offer free access to any version of Incoterms. Payment is required to access the 2010 version and the 2020 version of Incoterms. UNCITRAL has endorsed both versions of Incoterms.

OHADA’s Uniform Act on Contracts for the Carriage of Goods by Road (Acte Uniforme relatif aux Contrats de Transport de Marchandises par Route). OHADA adopted this Uniform Act in Yaoundé (Cameroon) on March 22, 2003, and published its text in No. 13 of its official gazette on July 31, 2003. It entered into force on January 1, 2004. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.

4.6. International Finance & Secured Transactions

The international finance and secured transactions include several instruments of harmonization. UNIDROIT Convention on International Factoring. This Convention was concluded in Ottawa on May 28, 1988, and came into force on May 1, 1995. It aims to provide a uniform legal framework to facilitate international factoring. The UNIDROIT website provides the text of the Convention as well as an explanatory report, preparatory works, a status table, and a select bibliography.

UNIDROIT Convention on International Financial Leasing. This Convention (along with the Convention on International Factoring, listed above) was also concluded in Ottawa on May 28, 1988, and it also came into force on May 1, 1995. Its focus, however, is on removing legal impediments to the international financial leasing of equipment. The UNIDROIT website provides the text of the Convention as well as the preparatory works, a status table, and a select bibliography.

UNIDROIT Convention on International Interests in Mobile Equipment (“Cape Town Convention”). This Convention was concluded in Cape Town on November 16, 2001, and it entered into force on March 1, 2006. The Convention sets up a general regulatory framework to reconcile laws of secured transactions where the collateral consists of mobile equipment. In addition to the Convention’s general legal framework, there are four protocols to the Convention that focus on particular types of mobile equipment. The “Aircraft Protocol” focuses on aircraft equipment; the “Luxembourg Protocol” (also called the “Rail Protocol”) focuses on matters specific to railway rolling stock; the “Space Protocol” focuses on equipment associated with space assets; and the “MAC Protocol” focuses on equipment in the mining, agricultural and construction industries. Only one of these protocols (the “Aircraft Protocol”) has entered into force. It is described in further detail in the paragraph below. The other three protocols (the “Luxembourg Protocol”, the “Space Protocol”, and the “MAC Protocol”) have not yet entered into force and are, therefore, discussed much further below, in section 5.1 of this Guide. The UNIDROIT website provides the text of the Cape Town Convention along with a status table, official commentary, a list of national/domestic laws and policies relating to matters covered by the Convention and its Protocols (“national information”), preparatory work, and a select bibliography. Additionally, the website of the Cape Town Convention Academic Project, a joint collaboration between the University of Oxford Faculty of Law and the University of Washington School of Law, hosts a repository of legal and scholarly materials about the Cape Town Convention and each of its Protocols including annotations to the Official Commentaries, materials for practitioners and professionals, the Cape Town Convention Journal, and numerous academic texts and instructional materials.

UNIDROIT Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (“Aircraft Protocol”). As mentioned above, the “Aircraft Protocol” is a protocol of the Cape Town Convention that focuses on the particular type of mobile equipment used in the aircraft industry. Like the Cape Town Convention, the “Aircraft Protocol” was concluded in Cape Town on November 16, 2001, and entered into force on March 1, 2006. The UNIDROIT website provides the text of the Aircraft Protocol along with a status table, official commentary, information on national implementation (“national information”), preparatory works, and a select bibliography. Additionally, as mentioned above, the website of the Cape Town Convention Academic Project, a joint collaboration between the University of Oxford Faculty of Law and the University of Washington School of Law, hosts a repository of legal and scholarly materials about the Cape Town Convention and each of its Protocols including annotations to the Official Commentaries, materials for practitioners and professionals, the Cape Town Convention Journal, and numerous academic texts and instructional materials.

UNIDROIT Model Law on Leasing. This Model Law, approved on November 13, 2008, offers developing economies and economies in transition with a legal framework to address the leasing of assets including, but in no way limited to, the leasing of equipment. The UNIDROIT website provides the text of the Model Law as well as an explanatory report, preparatory works, and a select bibliography.

UNCITRAL Model Law on Secured Transactions. UNCITRAL adopted its Model Law on Secured Transactions on December 13, 2016. It helps provide States with a legislative regime to deal with security interests in all types of tangible and intangible movable property. The UNCITRAL website provides the text of the Model Law along with a Guide to Enactment, a status table, and a Practice Guide to the Model Law on Secured Transactions.

OHADA’s Uniform Act Organizing Securities Law (Acte Uniforme portant Organisation des Sûretés). OHADA adopted this Uniform Act in Lomé (Togo) on December 15, 2010, and published its text in No. 22 of its official gazette on February 15, 2011. It entered into force on May 15, 2011. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.

OAS’s Model Inter-American Law on Secured Transactions. This Model Law was adopted at CIDIP-VI in Washington, D.C. (United States) on February 8, 2002.

4.7. International Payments

The following are instruments of harmonization that fall within the topic of international payments:

• UNCITRAL Model Law on International Credit Transfers. UNCITRAL adopted the Model Law on International Credit Transfers on May 15, 1992. It applies to credit transfers involving transactions in which a sending bank and a receiving bank are in different States. The UNCITRAL website provides the text of the Model Law.
• United Nations Convention on Independent Guarantees and Stand-by Letters of Credit. The United Nations Convention on Independent Guarantees and Stand-by Letters of Credit was concluded on December 11, 1995, and entered into force on January 1, 2000. It establishes common basic principles and characteristics to facilitate the use of independent guarantees and stand-by letters of credit in cross-border transactions. The UNCITRAL website provides the text of the Convention as well as a status table, the travaux préparatoires, and an endorsement from the ICC.
• ICC’s Uniform Customs and Practice for Documentary Credits (UCP). Since private companies engaged in international commerce usually rely on banks to finance their business transactions, the ICC decided to initiate a harmonization project to create common terms and standards for letter of credit transactions. The Uniform Customs and Practice for Documentary Credits (UCP) targets the banking industry and, according to the ICC’s website, it includes the most successful private rules for trade ever developed. The current version of the UCP is the UCP 600, which entered into force on July 1, 2007, and consists of 39 Articles that cover definitions and various arrangements in credit transactions. On July 1, 2019, the ICC released a supplement to the UCP 600 called the “Supplement for Electronic Presentation” or the “eUCP Version 2.0”, which adds an additional 14 Articles that update the UCP 600 to accommodate presentation of electronic records. The UCP 600 with its eUCP Version 2.0 supplement is available for purchase on the ICC’s website. The ICC does, however, provide free access to the eUCP Version 2.0, separately, as well as an article-by-article commentary on the eUCP Version 2.0.

4.8. Debt Collection & Insolvency

The following are instruments of harmonization that fall within the topic of debt collection and insolvency:

• UNCITRAL Model Law on Cross-Border Insolvency. The UNCITRAL Model on Cross-Border Insolvency was adopted on May 30, 1997, to help States equip their national insolvency laws with a modern legal framework to more effectively address cross-border insolvency proceedings. The UNCITRAL website has the text of the Model Law along with an enactment guide updated in 2013. The UNCITRAL website also provides a status table, links to the travaux préparatoires, links to the CLOUT database and a Digest to find court and arbitral decisions that construe and apply the Model Law, and a practice guide for the business sector.
• UNCITRAL Legislative Guide on Insolvency Law. The first two parts of the UNCITRAL Legislative Guide on Insolvency Law were adopted on June 25, 2004. Its third part (on the treatment of enterprise groups in insolvency) was adopted on July 1, 2010. Its fourth part (on the topic of Directors’ obligations in the period approaching insolvency (including in enterprise groups)) was first adopted on July 18, 2013, and then revised in a second edition on July 15, 2019. Its fifth part (on the insolvency of micro- and small enterprises) was adopted on July 8, 2021. The UNCITRAL website provides the text of all parts of the legislative guide (see parts one and two; part three; the second edition of part four; and part five). The UNCITRAL website also provides links to the travaux préparatoires and links to UNCITRAL Model Laws related to insolvency proceedings, cited in this guide.
• UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments. The UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments was adopted on July 2, 2018. It provides States with legislative guidance to create a straightforward and harmonized procedure for the recognition and enforcement of insolvency-related judgments, thus facilitating smooth cross-border insolvency proceedings. The UNCITRAL website provides the text of the Model Law along with a guide to enactment and links to the travaux préparatoires.
• UNCITRAL Model Law on Enterprise Group Insolvency. The UNCITRAL Model Law on Enterprise Group Insolvency was adopted on July 15, 2019. It helps States develop legislation addressing domestic and cross-border insolvency proceedings relating to multiple debtors that are members of the same enterprise group. The UNCITRAL website provides the text of the Model Law with a guide to enactment.
• OHADA’s Uniform Act Organizing Simplified Recovery Procedures and Measures of Execution (Acte Uniforme portant Organisation des Procédures Simplifiées de Recouvrement et des Voies d’Exécution). OHADA adopted this Uniform Act in Libreville (Gabon) on April 10, 1998, and published its text in No. 6 of its official gazette on July 1, 1998. It entered into force on August 31, 1998. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.
• OHADA’s Uniform Act on the Organization of Collective Procedures for the Discharge of Liabilities (Acte Uniforme portant Organsation de Procédures Collectives d’Apurement du Passif). OHADA adopted this Uniform Act in Grand-Bassam (Cote d’Ivoire) on September 10, 2015, and published its text in a Special Edition of its official gazette on September 25, 2015. It entered into force on December 24, 2015. OHADA published the official English translation of this Uniform Act in a Special Edition of its official gazette on November 24, 2016.

4.9. Dispute Resolution and Judgment Enforcement

The following are instruments of harmonization that fall within the topic of dispute resolution and judgment enforcement:

• UNCITRAL’s Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). The New York Convention was concluded in New York on June 10, 1958, and entered into force on June 7, 1959. Its purpose was to provide common legislative standards for the recognition of arbitration agreements and court recognition/enforcement of foreign and non-domestic arbitral awards. The UNCITRAL website provides the text of the New York Convention as well as the Secretariat’s Guide to the Convention, a status table, travaux préparatoires, and a link to the CLOUT database to find court and arbitral decisions that construe and apply the New York Convention. For more information on the New York Convention and on international commercial arbitration, see the GlobaLex research guide on international commercial arbitration.
• UNCITRAL Model Law on International Commercial Arbitration. The UNCITRAL Model Law on International Commercial Arbitration is designed to assist States in reforming and modernizing their domestic laws on arbitration procedure so as to encourage international commercial arbitration as a method of dispute resolution. UNCITRAL released the first version on June 21, 1985, and then adopted and released an amended version on December 4, 2006. The UNCITRAL website offers the text of the original version as well as the text of the 2006 amended version with explanatory note. The UNCITRAL website also provides a status table, travaux préparatoires, and links to the CLOUT database and Digest to find court and arbitral decisions that construe and apply the Model Law.
• UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation. UNCITRAL adopted the first version of the Model Law, which was originally titled the “Model Law on International Commercial Conciliation” and only covered the conciliation procedure, on November 19, 2002. In 2018, UNCITRAL adopted an amended version, which broadened the scope of the Model Law to cover mediation procedures. The amended version is, therefore, renamed: the Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation. The UNCITRAL website offers the text of the original version as well as the text of the 2018 amended version. The UNCITRAL website also provides a status table and travaux préparatoires.
• UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments. The UNCITRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments was adopted on July 2, 2018. It provides States with legislative guidance to create a straightforward and harmonized procedure for the recognition and enforcement of insolvency-related judgments, thus facilitating smooth cross-border insolvency proceedings. The UNCITRAL website provides the text of the Model Law along with a guide to enactment and links to the travaux préparatoires.
• United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention on Mediation”). The Singapore Convention on Mediation was adopted on December 20, 2018, and entered into force on September 12, 2020. It establishes a harmonized legal framework for the existence and enforcement of international settlement agreements resulting from mediation. The UNCITRAL website offers the text of the Convention as well as a status table and the travaux préparatoires.
• OHADA’s Uniform Act relating to the Law of Arbitration (Acte Uniforme relatif au Droit de L’Arbitrage). OHADA adopted this Uniform Act in Conakry (Guinea) on November 23, 2017, and published its text in a Special Issue of its official gazette on December 15, 2017. It entered into force on March 15, 2018.
• OHADA’s Uniform Act relating to Mediation (Acte Uniforme relatif à la Médiation). OHADA adopted this Uniform Act in Conakry (Guinea) on November 23, 2017, and published its text in a Special Issue of its official gazette on December 15, 2017. It entered into force on March 15, 2018.
• OAS’s Inter-American Convention on International Commercial Arbitration. This Convention was adopted at CIDIP-I in Panama City (Panama) on January 30, 1975. It entered into force on June 16, 1976. The OAS website provides the text of the Convention and a status table in English.

5. The Instruments of Harmonization: Ongoing Efforts

There are several ongoing efforts that may yield an instrument of harmonization with legal force in the future.

5.1. Conventions Not Yet in Force (as of January 1, 2022)

Several harmonization projects yielded conventions that have not yet entered into force. A list of those conventions is below organized first by organization that initiated the harmonization project and then by the convention’s conclusion date):

• HCCH’s Convention of 22 December 1986 on the Law Applicable to Contracts for the International Sale of Goods, 24 I.L.M. 1573 (1986). This Convention was concluded on December 22, 1985. It aimed to revise the HCCH’s Convention of 15 June 1955 on the Law Applicable to International Sales of Goods (see section 3.1 of this Guide, above). Additionally, it was drafted to complement UNCITRAL’s CISG (see section 3.3 of this Guide, above). The CISG excludes certain contracts from its provisions, such as consumer contracts and contracts for aircraft, but the Convention of 22 December 1986 on the Law Applicable to Contracts for the International Sale of Goods would apply to those contracts. Per its Article 27, the HCCH’s Convention of 22 December 1986 on the Law Applicable to Contracts for the International Sale of Goods will come into force after five States have ratified, accepted, approved, or acceded to it and, at present, only two States have done so. The HCCH’s website provides the text of the Convention as well as a status table, an explanatory note, travaux préparatoires, and a bibliography.
• HCCH’s Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. This Convention was concluded on July 2, 2019. It establishes commonly accepted conditions for recognition and enforcement of judgments in civil and commercial matters, thereby providing legal certainty and predictability to parties involved in cross-border transactions. According to its Articles 28 and 29, the Convention will enter into force after at least two States file an instrument of ratification, acceptance, approval, or accession and, thus far, zero States have done so. The HCCH’s website provides the text of the Convention, an outline of the Convention, an Explanatory Report, a status table, travaux préparatoires, and a bibliography.
• UNIDROIT Convention on Agency in the International Sale of Goods. This Convention was concluded in Geneva on February 17, 1983. According to its Article 33, the Convention needs ten instruments of ratification, acceptance, approval, or accession before coming into force and, thus far, only five countries have ratified it. UNIDROIT’s website provides the text of the Convention as well as an explanatory report, a status table, preparatory works, and a select bibliography.
• UNIDROIT Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock (“Luxembourg Protocol” or “Rail Protocol”). As mentioned above in section 3.2 of this Guide, the “Luxembourg Protocol” (also called the “Rail Protocol”) is a protocol of the Cape Town Convention that focuses on secured interests in mobile equipment related to the railway industry. The Luxembourg Protocol was concluded in Luxembourg on February 23, 2007. According to its Article XXIII, the Luxembourg Protocol will enter into force after four States have ratified, accepted, approved, or acceded to it and, at present, only three States have done so. The UNIDROIT website provides the text of the Luxembourg Protocol along with a status table, official commentary, preparatory works, and a select bibliography. Additionally, as mentioned above in section 3.2 of this Guide, the website of the Cape Town Convention Academic Project, a joint collaboration between the University of Oxford Faculty of Law and the University of Washington School of Law, hosts a repository of legal and scholarly materials about the Cape Town Convention and each of its Protocols including annotations to the Official Commentaries, practitioners’ and professional materials, the Cape Town Convention Journal, and numerous academic texts and instructional materials.
• UNIDROIT Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets (“Space Protocol”). As mentioned above in section 3.2 of this Guide, the “Space Protocol” is a protocol of the Cape Town Convention that focuses on the particular type of mobile equipment associated with the space industry. The “Space Protocol” was concluded in Berlin on March 9, 2012. According to its Article XXXVIII, the “Space Protocol” will enter into force after ten States have filed instruments of ratification, acceptance, approval, or accession and, thus far, zero States have done so. The UNIDROIT website provides the text of the Space Protocol along with a status table, official commentary, preparatory works, and a select bibliography. Additionally, as mentioned above in section 3.2 of this Guide, the website of the Cape Town Convention Academic Project, a joint collaboration between the University of Oxford Faculty of Law and the University of Washington School of Law, hosts a repository of legal and scholarly materials about the Cape Town Convention and each of its Protocols including annotations to the Official Commentaries, practitioners’ and professional materials, the Cape Town Convention Journal, and numerous academic texts and instructional materials.
• UNIDROIT Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Mining, Agricultural and Construction Equipment (“MAC Protocol”). As mentioned above in section 3.2 of this Guide, the “MAC Protocol” is a protocol of the Cape Town Convention that focuses on the particular type of mobile equipment used in the mining, agricultural, and construction industries. The “MAC Protocol” was concluded in Pretoria on November 22, 2019. According to its Article XXV, the “MAC Protocol” will enter into force after five States have filed instruments of ratification, acceptance, approval, or accession and, thus far, zero States have done so. The UNIDROIT website provides the text of the MAC Protocol along with a status table, official commentary, preparatory works, and a select bibliography. Additionally, as mentioned above in section 3.2 of this Guide, the website of the Cape Town Convention Academic Project, a joint collaboration between the University of Oxford Faculty of Law and the University of Washington School of Law, hosts a repository of legal and scholarly materials about the Cape Town Convention and each of its Protocols including annotations to the Official Commentaries, practitioners’ and professional materials, the Cape Town Convention Journal, and numerous academic texts and instructional materials.
• United Nations Convention on International Bills of Exchange and International Promissory Notes. The United Nations Convention on International Bills of Exchange and International Promissory Notes was adopted by the United Nations General Assembly on December 9, 1988. According to its Article 89, it will enter into force after ten States have ratified, accepted, approved, or acceded to it, and, at present, only five States have done so. The UNCITRAL website provides the text of the Convention along with an explanatory note and a status table.
• United Nations Convention on the Liability of Operators of Transport Terminals in International Trade. The United Nations Convention on the Liability of Operators of Transport Terminals in International Trade was adopted by a diplomatic conference on April 19, 1991. According to its Article 22, it will enter into force after five States have ratified, accepted, approved, or acceded to it and, at present only four States have done so. The UNCITRAL website provides the text of the Convention with an explanatory note as well as a status table and the travaux préparatoires.
• United Nations Convention on the Assignment of Receivables in International Trade. The United Nations Convention on the Assignment of Receivables in International Trade was concluded on December 12, 2001. Per its Article 45, it will enter into force after five States have ratified, accepted, approved, or acceded to it and, at present, only Liberia and the United States have done so. The UNCITRAL website provides the text of the Convention with an explanatory note along with a status table, travaux préparatoires, several legislative guides, and a few endorsements from national and international private trade groups.
• United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”). The “Rotterdam Rules” were concluded in New York on December 11, 2008. Per its Article 94(1), it will enter into force after twenty States have ratified, accepted, approved, or acceded to it and, at present, only five have done so. THE UNCITRAL website provides the text of the Rotterdam Rules along with a status table, travaux préparatoires, a related bibliography, and a list of online resources.

5.2. Possible Future Developments

There are promises of future harmonization projects that may yield additional instruments of harmonization. According to the OHADA website, the organization is in the process of drafting a Uniform Act on Labor Law.

Possible future developments within the African Union: 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, the members of the OAU adopted a treaty (the Abuja Treaty, 30 I.L.M. 1241 (1991)) to establish an African Economic Community (AEC). The overarching objectives of the AEC included the creation of a single African common market with a common currency and central bank to help improve economic development in member nations. The AEC was intended to become 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 55 Member States, which represent all the countries on the African continent (Morocco was the last to join, in January 2017. The AU assumed 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. The African Union established an independent advisory commission, the African Union Commission on International Law (AUCIL) that focuses on the study and harmonization of international law within the African Union. The AUCIL website includes information regarding its functions and activities, but only provides a sparse collection of official materials and not yet any instruments of harmonization. However, the Research Centre for Private International Law in Emerging Countries at the University of Johannesburg has created a first draft of African Principles on the Law Applicable to International Commercial Contracts and has received a promise from the South African Minister of International Relations and Cooperation to approach the African Union for formal endorsement of the project.

Possible future developments within the European Union: Several interest groups have been trying for many years to create a “European Civil Code” that harmonizes the contract laws of the EU Member States. Thus far, none of the attempts have resulted in an instrument of harmonization. Nonetheless, past efforts may eventually yield one or more such instruments. To that end, the paragraphs below outline the history of such attempts. The European Parliament first proposed the adoption of a European Civil Code in 1989 (see: Resolution on action to bring into line the private law of Member States, 1989 O.J. (C 158) 400). In 2001, the European Commission responded to the Parliament’s call in a report (see: Communication from the Commission to the Council and the European Parliament on European contract law, 2001 O.J. (C255) 1). Annex I of the report summarizes the acquis communautaire that addresses the law of contract; annex II summarizes relevant international treaties dealing with substantive contract law issues; and annex III analyzes the structure of the then-existing EU directives on contract law and relevant international treaties. After the 2001 report, the European Commission began a process of public consultation and discussion regarding contract law, and, in 2003, the European Commission set forth an action plan on the harmonization of contract law within the EU (see: Communication from the Commission to the European Parliament and the Council – A more coherent European contract law – An action plan, 2003 O.J. (C 63) 1).

One suggestion arising from the action plan and subsequent discussion 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 (the Joint Network on European Private Law, also called the “CoPECL Network of Excellence”) to create the CFR. In 2009, the Joint Network on European Private Law issued the final version of the “Draft Common Frame of Reference (DCFR) for European Private Law. The DCFR had three goals: “[f]irst, improve the coherence of the European contract law legislation, known as the acquis. Second, guide Member States in the development of their own contract law. And third, serve as the foundation for a non-sector specific ‘Optional Instrument’.”[9]

Following on the heels of the DCFR, in 2010, the European Commission issued a green paper on European contract law. The green paper suggested several potential policy options on how to strengthen the internal market. 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.

In 2011, the Commission proposed a regulation for a Common European Sales Law (CESL). 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. Unfortunately, an additional five years passed without work on the proposal and, on October 21, 2019, the Conference of Presidents ruled that the Parliament should request the Commission formally withdraw the proposal.

Although the CESL was not adopted, several scholars believe that any “future European instrument would not stray too far from the interpretation principles and rules set out in the CESL, given that the provisions of the CESL build upon the work carried out in the Principles of European Contract Law (PECL) and the Draft Common Frame of Reference (DCFR).”[10]

6. Additional Resources

The following list of institutes, databases, and scholarly journals are additional resources to consult on the topic of the harmonization of international commercial 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 several 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.
• 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.
• Max Planck Institute for Comparative and International Private Law (Max-Planck-Institut für ausländisches und internationlaes Privatrecht). The Max Planck Institute for Comparative and International Private Law was founded in Berlin in 1926. One of its initial goals was to support international business transactions with information about foreign law and, today, its top research priority is on European private law and the standardization of private law. It has published several scholarly works, including The Concise Dictionary of European Private Law and The Max Planck Encyclopedia of European Private Law. Both of these texts tackle international commercial law, as it exists under the domain of private law, in the context of the European Union and its Member States.
• 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 its TransLex-Principles, which is a system of principles and rules related to transnational commercial law.
• UNCITRAL Yearbook. The UNCITRAL Yearbook (1968-2014) is a compilation of all substantive documents related to the work of UNCITRAL in any given year. The Annexes include bibliographies of scholarly works related to UNCITRAL’s work and a checklist of UNCITRAL documents.
• Uniform Law Review (Revue de Droit Uniforme). This law review is a quarterly, bilingual journal published by UNIDROIT that focuses on opportunities and challenges associated with the harmonization of international private commercial law.
• 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.
• Yearbook of Private International Law. The Yearbook of Private International Law is published by the Swiss Institute of Comparative Law in cooperation with Sellier European Law Publishers. It includes a collection of works dealing with private international law developments including efforts at harmonizing international law.

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[1] Christian Twigg-Flesner, Making International Commercial Law: Harmonization – process and methods, in Foundations of International Commercial Law 62 (2021).

[2] See e.g., Sandeep Gopalan, Transitional Commercial Law: The Way Forward, 18 Am U. Int’l L. Rev. 803, 804-5 (2003) (listing the top 10 motivations for supporting harmonization initiatives).

[3] See id. at 806-8 (listing 11 motivations for opposing harmonization initiatives). See also Richard Austen-Baker, Harmonization and Contract in a Globalized World, in Essays in Memory of Professor Jill Poole: Coherence, Modernisation, and Integration in Contract, Commercial, and Corporate Laws 50, 64-5 (Robert Merkin & James Devenney, eds. 2018 (claiming that uniform laws are “essentially doomed from the start”).

[4] See Christian Twigg-Flesner, The Features of International Commercial Law, in Foundations of International Commercial Law 1, 5-6 (2021) (explaining that a national contract regime is necessary for requirements of contract formation and validity).

[5] See Antony Aust, Treaties and Domestic Law, in Modern Treaty Law and Practice 159, 163-7 (3d ed. 2013) (describing a monist approach, with examples).

[6] See id. at 167-173 (describing a dualist approach, with examples).

[7] See Salvatore Mancuso, The New African Law: Beyond the Difference Between Common Law and Civil Law, 14 Annual Survey of Int’l & Comp. L. 39 (2008)

[8] Christian Twigg-Flesner, Private International Law, in Foundations of International Commercial Law 35, 35-6 (2021).

[9] Prince Saprai, Contract Law Beyond the State, in Contract Law Without Foundations: Toward a Republican Theory of Contract Law 199, 202 (2019).

[10] Lorna Richardson, Interpretation in the Principles of European Contract Law, the Draft Common Frame of Reference, and the Common European Sales Law, in interpretation of Commercial Contracts in European Private Law 55 (Jaap Baaij, David Cabrelli & Laura Macgregor, eds. 2021).