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