UNIDROIT
INTERNATIONAL INSTITUTE FOR THE UNIFICATION OF PRIVATE LAW
INSTITUT INTERNATIONAL POUR L'UNIFICATION DU DROIT PRIVE

Unidroit: An Overview

PURPOSE

The International Institute for the Unification of Private Law (Unidroit) is an independent intergovernmental Organisation with its seat in the Villa Aldobrandini in Rome. Its purpose is to study needs and methods for modernising, harmonising and co-ordinating private and in particular commercial law as between States and groups of States.

 

ORIGINS

Set up in 1926 as an auxiliary organ of the League of Nations, the Institute was, following the demise of the League, re-established in 1940 on the basis of a multilateral agreement, the Unidroit Statute gif. The Unidroit Statute is also available in Arabic gif. Unidroit expresses its gratitude to Professors Dr Omaia Elwan (Heidelberg/Cairo) and Dr Hossam Loutfi (Cairo) for providing this unofficial translation into Arabic.

MEMBERSHIP

Membership of Unidroit is restricted to States acceding to the Unidroit Statute. Unidroit's 63 member States are drawn from the five continents and represent a variety of different legal, economic and political systems as well as different cultural backgrounds.

FUNDING

The Institute is financed by annual contributions from its member States which are fixed by the General Assembly as well as a basic annual contribution from the Italian Government. Extra-budgetary contributions for purposes identified by the donor may be established (trust funds).

STRUCTURE

Unidroit has an essentially three-tiered structure, made up of a Secretariat, a Governing Council and a General Assembly.

  • TheSecretariat is the executive organ of Unidroit responsible for the day-to-day carrying out of its Work Programme. It is run by a Secretary-General, who is appointed by the Governing Council on the nomination of the President of the Institute. The Secretary-General is assisted by a staff of international civil servants and various ancillary staff.
  • The Governing Council supervises all policy aspects of the means by which the Institute's statutory objectives are to be attained and in particular the Secretariat's carrying out of the Work Programme, the drawing up of which is its responsibility. It is made up of one ex officio member, the President of the Institute, and 25 elected members, typically eminent judges, practitioners, academics and civil servants.
  • The General Assembly is the ultimate decision-making organ of Unidroit: it votes the Institute's budget each year; it approves the Work Programme every three years; it elects the Governing Council every five years. It is made up of one representative from each member Government.

LANGUAGES

The official languages of Unidroit are English, French, German, Italian and Spanish; its working languages are English and French.

LEGISLATIVE POLICY

  • Nature of instruments drawn up by UNIDROIT
Unidroit's basic statutory objective is to prepare modern and where appropriate harmonised uniform rules of private law understood in a broad sense. However, experience has demonstrated the necessity of permitting occasional incursions into public law, especially in areas of law where hard and fast lines of demarcation are difficult to draw or where transactional law and regulatory law are intertwined. Uniform rules prepared by Unidroit are concerned with the unification of substantive law rules; they will only include uniform conflict of law rules incidentally.
  • Technical approach to harmonisation or unification favoured by Unidroit
Unidroit's independent status amongst intergovernmental Organisations has enabled it to pursue working methods which have made it a particularly suitable forum for tackling more technical and correspondingly less political issues.
  • Factors determining eligibility of subjects for uniform law treatment
New technologies, commercial practices etc. call for new solutions and, where transactions tend to be transnational by their very nature, these should be harmonised, widely acceptable solutions. Generally speaking, the eligibility of a subject for harmonisation or even unification will to a large extent be conditional on the perception of States being willing to accept change to their municipal law rules in favour of a new international solution on that subject. Legal and other arguments in favour of harmonisation on a subject have accordingly to be weighed carefully against these considerations. Similar considerations will also tend to determine the most appropriate sphere of application to be given to such uniform rules, that is whether they should be restricted to truly cross-border situations or relations or extended to cover also purely internal situations or relations.
  • Factors determining choice of instrument to be prepared

The uniform rules drawn up by Unidroit have, in keeping with its intergovernmental structure, traditionally tended to take the form of international Conventions, designed to apply automatically in preference to a State’s municipal law upon completion of all the formal requirements of that State’s domestic law for their entry into force. However, the low priority which tends to be accorded by Governments to the implementation of such Conventions and the time it therefore tends to take for them to enter into force have led to the increasing popularity of alternative forms of unification in areas where a binding instrument is not felt to be essential. Such alternatives include model laws which States may take into consideration when drafting domestic legislation on the subject covered or general principles addressed directly to judges, arbitrators and contracting parties who are however left free to decide whether to use them or not. Where the subject is not judged ripe for the drawing up of uniform rules, another alternative consists in the preparation of legal guides, typically on new business techniques, types of transaction or on the framework for the organisation of markets both at the domestic and the international level. Generally speaking "hard law" solutions (i.e. Conventions) are needed where rules' scope transcends the bi-polar relationship underlying ordinary contract law and where third parties' or public interests are at stake as is the case in the law of property.


WORKING METHODS

  • Preliminary stage: use of study groups
Once a subject has been entered on Unidroit's Work Programme, the Secretariat, where necessary assisted by experts in the field, will draw up a feasibility study and/or a preliminary comparative law report designed to ascertain the desirability and feasibility of law reform. Where necessary and provided funding is available, an economic impact assessment study is carried out. The report, sometimes including a first rough draft of principles or such uniform rules, will then be laid before the Governing Council which, if satisfied that a case has been made out for taking action, will typically ask the Secretariat to convene a study group, traditionally chaired by a member of the Council, for the preparation of a preliminary draft Convention or one of the alternatives mentioned above. The membership of such study groups, made up of experts sitting in their personal capacity, is a matter for the Secretariat, which seeks to ensure as balanced a representation as possible of the world’s different legal and economic systems and geographic regions.
  • Intergovernmental negotiation stage

A preliminary draft instrument established by a study group will be laid before the Governing Council for approval and advice as to the most appropriate further steps to be taken. Typically, in the case of a preliminary draft Convention, these will consist in its asking the Secretariat to convene a committee of governmental experts for the finalisation of a draft Convention capable of submission for adoption to a diplomatic Conference. In the case of one of the alternatives to a preliminary draft Convention not suitable by virtue of its nature for transmission to a committee of governmental experts, the Council will be called upon to authorise its publication and dissemination by Unidroit in the circles for which it has been prepared. Full participation in Unidroit committees of governmental experts is open to representatives of all Unidroit member States. The Secretariat may in addition invite such other States as it deems appropriate, notably in view of the subject-matter concerned, and the relevant international Organisations and professional associations to participate as observers. A draft Convention finalised by a committee of governmental experts will then be laid before the Governing Council for approval and advice as to the most appropriate further steps to be taken. Typically, where it judges that the draft Convention reflects a consensus as between the States which have participated in the committee of governmental experts and that it accordingly stands a good chance of adoption at a diplomatic Conference, these steps will consist in its authorisation of the draft Convention's transmission to a diplomatic Conference for adoption as an international Convention. Such a Conference will be convened by one of Unidroit 's member States.

  • Co-operation with other international Organisations
Unidroit maintains close ties of co-operation with other international Organisations, both intergovernmental and non-governmental, which in many cases take the form of co-operation agreements concluded at inter-Secretariat level. The Hague Conference on Private International Law, Unidroit and UNCITRAL, the three private-law formulating agencies, are quite appropriately referred to as "the three sisters". By reason of its expertise in the international unification of law, Unidroit is moreover at times commissioned by such other Organisations to prepare comparative law studies and/or draft Conventions designed to serve as the basis for the preparation and/or finalisation of international instruments in those Organisations.
  • Network of correspondents

Unidroit's ability to obtain up-to-date information on the state of the law in all the various countries is essential to the pursuit of its statutory objectives. This information is sometimes difficult to obtain and Unidroit therefore maintains a network of correspondents in both member and non-member States, who are appointed by the Governing Council amongst academic and practising lawyers.

WORK IN PROGRESS


NON-LEGISLATIVE ACTIVITIES AND OUTREACH RESOURCES

Essential support for Unidroit's core activity of the drawing up of uniform rules is provided by its maintenance of a world renowned library, its preparation of a number of specialised publications in the field of the unification of law, its legal co-operation programme, its data base on uniform law UNILAW and its periodic organisation of congresses, meetings and seminars.


ACHIEVEMENTS

Unidroit has over the years prepared over seventy studies and drafts. Many of these have resulted in international instruments, including the following international Conventions and Model Law, drawn up by Unidroit and - in the case of Conventions - adopted by diplomatic Conferences convened by member States of Unidroit:

1964 Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (The Hague);

1964 Convention relating to a Uniform Law on the International Sale of Goods (The Hague);

1970 International Convention on the Travel Contract (Brussels);

1973 Convention providing a Uniform Law on the Form of an International Will (Washington);

1983 Convention on Agency in the International Sale of Goods (Geneva);

1988 Unidroit Convention on International Financial Leasing (Ottawa);

1988 Unidroit Convention on International Factoring (Ottawa);

1995 Unidroit Convention on Stolen or Illegally Exported Cultural Objects (Rome);

2001 Convention on International Interests in Mobile Equipment and Protocol to the Convention on Matters specific to Aircraft Equipment (Cape Town);

2002 Model Franchise Disclosure Law

2007 Luxembourg Protocol on Matters specific to Railway Rolling Stock to the Convention on International Interests in Mobile Equipment.  

2008 Unidroit Model Law on Leasing

2009 Unidroit Convention on Substantive Rules for Intermediated Securities

In addition, Unidroit has published:

Principles of International Commercial Contracts (1994; enlarged edition 2004);

Guide to International Master Franchise Arrangements (1998 2nd ed. 2007);

Principles of Transnational Civil Procedure (in co-operation with the American Law Institute) (2004).

Unidroit 's work has also served as the basis for a number of international instruments adopted under the auspices of other international Organisations which are already in force. These include:

· 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted under the auspices of UNESCO);

· 1955 European Convention on Establishment (Council of Europe);

· 1955 Benelux Treaty on Compulsory Insurance against Civil Liability in respect of Motor Vehicles (Council of Europe);

· 1956 Convention on the Contract for the International Carriage of Goods by Road (CMR) (UN/ECE);

· 1958 Convention concerning the recognition and enforcement of decisions relating to maintenance obligations towards children (Hague Conference on Private International Law);

· 1959 European Convention on Compulsory Insurance against Civil Liability in respect of Motor Vehicles (Council of Europe);

· 1962 European Convention on the Liability of Hotel-keepers concerning the Property of their Guests (Council of Europe);

· Protocol No. 1 concerning rights in rem in Inland Navigation Vessels and Protocol No. 2 on Attachment and Forced Sale of Inland Navigation Vessels annexed to the 1965 Convention on the Registration of Inland Navigation Vessels (UN/ECE);

· 1980 United Nations Convention on Contracts for the International Sale of Goods (UNCITRAL).