The Tripartite Legal Guide to Uniform Legal Instruments in the Area of International Commercial Contracts (with a focus on sales) is a document developed on the basis of an initiative of UNCITRAL, and in cooperation among the three Secretariats of UNCITRAL, HCCH and UNIDROIT. It aims at creating a roadmap to the existing uniform law texts in the area of international sales law prepared by each organisation, primarily though not exclusively, the CISG, the UNIDROIT Principles of International Commercial Contracts, and the HCCH Principles. It is an effort to clarify the relationship among them. promoting uniformity, certainty and clarity in this area of the law. The publication of the Legal Guide has been authorised by all three organisations in 2020.
On 14 December 2015, the Secretariat of the United Nations Commission on International Trade Law (UNCITRAL) invited UNIDROIT and the Hague Conference on Private International Law (HCCH) to cooperate on a project for the creation of a roadmap to the existing texts in the area of international sales law (sales contracts). This non legislative instrument would provide an overview of the applicability, scope and content of existing uniform law instruments as well as guidance on the interactions between them, with the goal to facilitate promotion of their appropriate use, uniform interpretation, and/or adoption.
The topic was adopted in the UNIDROIT Work Programme for the triennium 2017-2019 by the General Assembly at its 75th session on 1 December 2016. On 12 December 2019, the General Assembly, at its 78th session, endorsed the Governing Council’s recommendation to approve the continuation of the project until its completion in 2020.
In 2017, the three Secretariats devised an outline of the Guide and, in the interest of representing different legal traditions and geographic regions, identified a small joint panel of experts of international commercial contract law and/or private international law to produce it. The project Expert Group is composed of Professors Neil B. Cohen (Brooklyn Law School, US), Lauro Gama Jr (Pontifícia Universidade Católica do Rio de Janeiro, Brazil), Hiroo Sono (Hokkaido University, Japan), Pilar Perales Viscasillas (Universidad Carlos III de Madrid, Spain), and Stefan Vogenauer (Max Planck Institute for European Legal History, Germany).
In February 2019, a first non-consolidated draft entitled “Legal Guide to Uniform Legal Instruments in the Area of International Commercial Contracts (with a focus on sales)” was produced by the Experts. During 2019, the Secretariats of the three Organisations set up an intense plan of work with involvement of the Experts, which was implemented through access to an electronic platform and numerous conference calls to revise the first draft.
The Max Planck Institute for European Legal History, directed by Professor Stefan Vogenauer, has generously supported two face-to-face meetings, in October 2017 and September 2019, which enabled the experts and representatives from the three Secretariats to kick off and to further advance the Project, respectively.
The Guide was submitted to the HCCH membership for discussion at the Council on General Affairs and Policy (CGAP) on 3-6 March 2020, and at the same time shared with the members of the UNIDROIT Governing Council. The CGAP approved the first three Chapters of the Guide and invited the Permanent Bureau to continue its cooperation with UNCITRAL and UNIDROIT towards its finalisation, publication and promotion.
At the same time, the text was shared with the members of the UNIDROIT Governing Council who provided valuable comments, which were taken into consideration in the final draft.
On May 2020, The Guide was unanimously approved at the remote meeting of the 99th session of the Unidroit Governing Council, subject to such minor amendments as would result from the discussion of the text at the UNCITRAL Commission session scheduled for July 2020.
The Legal Guide will be available in Arabic, Chinese, French, English, Russian and Spanish.
For several decades, the Hague Conference on Private International Law (HCCH), the United Nations Commission on International Trade Law (UNCITRAL) and UNIDROIT have been preparing uniform law texts that promote the progressive harmonization and modernization of commercial contract law. Other international governmental and non-governmental organizations have also made significant contributions at the global and regional levels.
Over time, the HCCH, UNCITRAL and UNIDROIT have produced a series of texts that are complementary: the United Nations Convention on Contracts for the International Sale of Goods (CISG), the UNIDROIT Principles of International Commercial Contracts (UPICC) and the HCCH Principles on Choice of Law in International Commercial Contracts (HCCH Principles). Additionally, UNCITRAL has prepared treaties that are closely related to the CISG, and complement its regulation as to specific matters, such as the United Nations Convention on the Use of Electronic Communications in International Contracts, 2005 (Electronic Communications Convention) and the Convention on the Limitation Period in the International Sale of Goods, 1974, amended in 1980 (Limitation Convention). Several other uniform law instruments at global and regional level are also mention in so far as they may interact with the cited texts.
Uniform international trade law aims at achieving a harmonized and global set of rules which are international in their origin, formulation and in their framework of application and interpretation; consequently, uniform law diminishes the legal obstacles to the flow of international trade, levels the playing field among buyers and sellers, strengthens commercial relations among States, and generates investment opportunities. In light of the manifold advantages of uniform law in this sector, the above-mentioned uniform texts were developed to introduce balanced rules suitable to international transactions, and to assist parties in drafting their contracts and adjudicators in resolving disputes.
Each of the texts provides the parties with some autonomy to decide, by agreement, the extent to which the text will govern their transaction. However, information on how those texts relate to each other is not always readily available. As a result, commercial parties, lawyers, judges, arbitrators, academic researchers and legislators interested in adopting, applying or interpreting that vast legislative corpus may face challenges in identifying the relevant texts and placing them in context.
This Legal Guide to Uniform Legal Instruments in the Area of International Commercial Contracts (with a focus on sales) aims to clarify the relationship among these texts with a view to promoting their adoption, use and uniform interpretation and, ultimately, the establishment of a predictable and flexible legal environment for cross-border commercial transactions based on the principle of freedom of contract.
Accordingly, the Guide provides orientation to the reader on a range of legal issues relating to international commercial contract law, from choice of law to a description of legislative, contractual and guidance texts that may assist in a commercial transaction. The Guide is not intended to favour any particular interpretation, or to offer any new interpretation of uniform texts.
As to its content, the Guide first discusses private international law issues, focusing on the HCCH Principles and their relation to the CISG and the UPICC, with a view to explaining the extent to which the contractual parties may choose the law applicable and the consequences of not making such a choice. The Guide then provides an overview of the content of the CISG and the Limitation Convention, before turning to the nature, use and content of the UPICC, highlighting similarities and differences between the CISG and other uniform texts with which the UPICC may interact. Finally, the Guide refers to a number of recurrent legal issues related to sales contracts, including the use of electronic means, distribution, agency and software / data Intellectual Property Issues.
WHY READ THIS GUIDE?
The existence of different legal, political and economic systems around the world leads to legal fragmentation that is an obstacle to the flow of trade. Uniform law provides rules that are coherent and consistent on a global scale. In particular, uniform law provides a legal uniform regime for international sale of goods contracts. By doing so, it facilitates the development of international trade.
Parties entering into international contracts, particularly those for the sale of goods, are faced with a plethora of uniform law instruments. These instruments are very useful both because they lead to uniformity or harmonization of the laws of different States and because they can simplify, clarify, and modernize the law for this important aspect of commerce.
However, it is not always obvious how these uniform law instruments interact with and complement each other. The purpose of this Guide is to provide an introduction to, and a brief summary of, several important legal instruments concerning such contracts that have been prepared by the HCCH, UNCITRAL and UNIDROIT. Emphasis is placed on the complementary nature of these instruments when more than one instrument applies to a transaction.
In view of its purpose and nature, the Guide does not purport to offer an exhaustive treatment of the content of each instrument and of their interpretation by judges, arbitrators and scholars. Rather, it provides introductory guidance in navigating through them so as to understand their scope, their basic provisions, and their interactions.
CONFERENCES AND SEMINARS
A conference sponsored by UNIDROIT, HCCH and UNCITRAL had been organised to take place on Friday 8th May 2020, the last day of the UNIDROIT’s Governing Council, on matters related to the “Tripartite Guide” and on the cooperation between the three organisations. The conference was also meant to celebrate the 40th anniversary of CISG. Following postponement of the Governing Council in-person session, the Tripartite Legal Guide on International Sales Conference has been postponed, and took place on 22 September 2020, in a hybrid format.
The Programme of the Conference is available here.