Efforts to harmonise international commercial law date back to the 19th century. Originally the harmonisation of conflicts of law and commercial law rules occurred by way of multilateral and bilateral treaties and conventions. This required the states which ratified them to adopt them into their domestic law.
Within the United States, model laws have operated to harmonise commercial law across most states. Within the United States, codes such as Uniform Commercial Code are adopted in almost identical terms in each state. Internationally, models are not as prescriptive.
A number of regional organisations have promoted model laws. Some have been relatively successful, while others have failed. One of the most successful is the UNCITRAL Model Law on International Commercial Arbitration.
Certain international bodies promote non-binding rules which may be incorporated into contracts. One of the best-known examples are the international trade terms, in particular the INCOTERM. The rules codifying custom and usage in international trade are widely used, most prominently the Uniform Customs and Practice for Documentary Credits.
Model contracts and conditions of contract have been produced in various sectors. There are model contracts for the international commercial sale of perishable goods, contractual joint venture model agreements and model occasional intermediary contracts, model commercial agency contracts and model distributorship contracts, including a sole importer distributorship.
Codifications and restatements by international scholars and practitioners include the UNIDROIT principles of international commercial contracts and principles of European Contract Law.
There are a number of international organisations which harmonise laws and measures in various sectors. The International Civil Aviation Organisation, ICAO and the International Maritime Organisation, IMO, although primarily involved in relation to technical standards, convened their member states from time to time for the purpose of drafting private and commercial law texts.
The World Intellectual Property Organisation has provided standards in relation to intellectual property. United Nations Economic Commission for Europe contributed towards the adoption and harmonisation of commercial laws in the former Eastern Bloc states so as to be compatible with trade with Western states.
Prominent regional bodies include the European Union, the Organisation of American States, the South American Common Market, MERCOSUR, and the Organisation for the Harmonisation of Laws in Africa, OHADA. the Asian Pacific Economic Cooperation, APEC, and the Association of Southeast Asian Nations, ASEAN, have promoted the harmonisation of law
The World Bank and the IMF, including regional banks, have facilitated commercial law reform in developing countries. The United Nations Conference on Trade and Development (UNCTAD) and the Organisation for Economic Cooperation and Development (OECD) produce commercial law instruments from time to time.
The Hague Conference on private international law seeks to work on the progressive unification of private international law rules. The conference was established at the end of the 19th century in the Hague. It has 65 members from all continents. Since 2005 membership has been opened to regional economic organisations such as the European Union.
The Hague Conference holds an ordinary session every four years. The session is prepared by a permanent bureau and Secretariat. It is headed by a Secretary General, assisted by qualified lawyers drawn from member states. The purpose is to provide draft conventions on all areas of conflicts of law.
The special commissions and diplomatic sessions are open to states and observer non-states, intergovernmental organisations and non-governmental organisations. The diplomatic session, held every four years, adopts draft conventions.
Thirty-six Hague conventions have been adopted in the last 60 years. They relate to such matters as international civil procedure, family law, and private and commercial law. The Hague Convention monitors the implementation of its conventions. It provides guides and databases, together with training programs for governmental bodies and judiciaries.
The International Institute for the Unification of Private Law, UNIDROIT, was established in 1926 as part of the League of Nations. It was re-established at a multilateral treaty in 1940 under the UNIDROIT Statute. Only states may be members. There are currently over 60 states from all five continents.
UNIDROIT consists of a General Assembly, Governing Council, and Secretariat. The General Assembly makes decisions of the Institute. It votes its budgets and adopts work programs tri-annually and elects a governing council for five years.
The General Assembly is made up of diplomatic representatives of governments. It is chaired by an ambassador of one government on a rotating basis.
The Governing Council is a unique feature of UNIDROIT. Its members are made up of persons with relevant professional backgrounds. They are proposed by their member state but do not represent it and are independent. They sit as experts. The Secretariat is the executive of the organisation and runs the work program and general administration.
UNIDROIT uses study groups. They are comprised of small groups of top experts, both academics and practitioners in the relevant fields. They are drawn from various states and represent legal systems and economic backgrounds.
Private sector advisors may be brought in with specific expertise and industry knowledge. Study groups are chaired by members of the governing council. Governments are not represented in them.
The study groups and Secretariat undertake a feasibility or comparative law study in order to assess the desirability and feasibility of reform. An economic impact assessment may be undertaken if funding is available. A preliminary draft instrument may be established by a study group to be laid before the general council for approval and for the determination of further steps.
Where there is a preliminary draft convention, the Secretariat will convene a committee of governmental experts for discussion and finalisation of a draft for submission and adoption to a diplomatic conference. The governing council will approve the draft and authorise its transmission to a diplomatic conference.
The conference is convened by one of the states. It may be on model laws, general principles or guides. The council or committee of governmental expertise may finalise the text. The council may convene the general assembly in order to give a proposed non-convention text governmental authority.
All states may participate in UNIDROIT committees of experts. Non-member states may be invited to take part depending on the areas concerned and the organisation’s wish to involve them in a discussion.
Non-member states, intergovernmental and international nongovernmental organisations, and professional and trade associations may be observers but fully participate in the discussion. All states, including non-member states, may participate in diplomatic conferences.
The UNIDROIT provides a specialised library with law reviews and databases. It provides outreach activities such as scholarship programs for lawyers in developing countries and transition economies, assistance with the implementation of international instruments and the elaboration of regional or national legislation in relation to transnational private law.
UNCITRAL is the United Nations Commission on International Trade law. It was established in 1966 and has a general mandate to further the harmonisation and unification of international trade law. There are now over 60 member states of UNCITRAL. The General Assembly elects members for 6 years. Various geographical regions and economic and legal systems in the world are represented.
The UNCITRAL Commission drafts texts referred to the commission by working groups and finalises and adopts them. Its members, including a Chairman, Vice-Chairpersons and reporters, are drawn from states representing five geographic regions. Proceedings are set forth in a report prepared by the Secretariat and formally adopted by UNCITRAL for submission to the UN General Assembly.
Working groups work on substantive topics in the Commission\’s program of work. Governments may make proposals for the inclusion of topics in the work program. General working groups hold a number of sessions a year.
UNCITRAL may invite other UN member states and intergovernmental and non-governmental organisations with an interest in the topic as observers. They may engage fully in the discussion. Decisions taken by the commission and working groups reconcile different positions put forward by consensus rather than vote.
The finalised documents are either adopted by a diplomatic conference or, more often, the United Nations General Assembly. The Secretariat assists the commission and the work groups in its deliberation.
The international law trade division of the United Nations office of legal affairs headquartered in Vienna provides a secretariat for UNCITRAL. There is a Secretary assisted by a number of international civil servants of various nationalities who are qualified lawyers.
International Chamber of Commerce
The International Chamber of Commerce dates from 1919. Its members comprise companies and associations, including associations of national Chambers of Commerce and national committees in over 130 countries. It is the international voice of business.
Commissions of experts work in specialised fields of concern to international business. The ICC seeks to set standards and rules. It operates particularly in the area of sales and banking transactions.
The ICC and its commission of experts cooperate closely with intergovernmental organisations engaged in the development of transnational commercial law. The ICC court of international arbitration is a leading institution in international dispute resolution.