Topic 1- Trends to harmonize Private

International Law:-
BY: Faisal Awais
LLM First Semester
Roll Number:1417

1- INTRODUCTORY REMARK:-
Private international law is unlike its public international law counterpart. Public
international law originated from commonly accepted ‘norms’ or ‘traditions’ within
the international community. On the other hand, the term ‘private international law’
is a misnomer. It is still domestically focused. Hence, academic discourses within
each jurisdiction focused on internal legal problems. For a successful harmonisation
of private international law there is a need to search for common norms or
methodologies which are widely accepted among international community. This
should not be a work of the Hague Conference on Private International Law whose
members do not even represent the half of the countries in the world. Likewise, this
task should not be delegated to any one international organisation in particular.
Such finding of common norms or traditions can only be achieved through extensive
comparative analysis and academic discourses.

2- WHAT IS PRIVATE INTERNATIONAL LAW:-

Private International Law may be defined as the branch of laws of a country which
determines:
(i) What laws, whether domestic or foreign, the courts shall apply to disputes
between individuals in their private legal relations but involving a foreign element,
and
(ii) What courts shall have jurisdiction or competence to decide those disputes.
According to this definition, following may be the principles of Private Int. Law:
(i) It is a branch of national law,
(ii) It is administered by the courts of nation, or the land,
(iii) It is generally administered over the individuals, whether citizens or individuals,
and
(iv) There is always a foreign element in all these cases
Thus, Private International Law is the means to find out the applicable law in case of
a dispute that involves a foreign element.

3- BASIS OF PRIVATE INTERNATIONAL LAW:-

The need to do justice

4- GENERAL RULES OF PRIVATE INTERNATIONAL LAW:-

 Private International Law exists to find out what will be the applicable law in the
dispute involving a foreign element.
These rules must involve one or more of these questions:
A-Does the court have jurisdiction?
B-Is there a foreign element on the point, and if there is, is it to be recognized
and
enforced?
C-Which system of laws to be chosen?

5- UNIFICATION OF PRIVATE INTERNATIONAL LAW:-

Dictionary meaning of unification is “being united or made into a whole.
Unlike its public international law counterpart, private international law traditionally
lies on domestic rules of each jurisdiction. Recently, some trends can be seen both
on the regional level and the global level to harmonise private international law
rules.

6- MODES FOR UNIFICATION OF PRIVATE INTERNATIONAL LAW:

There are two modes for unification of private international law:

1- Unification of the internal laws of the countries of the world:

The first step in the direction of the unification of internal laws was taken by the
Bern Convention of 1886 under which an international union for the protection
of rights of authors over their literary and artistic works was formed. [11]
After the First World War, an international institute for Unification of private
laws was established at Rome. [12] The institute has achieved some success in
the field of unification of civil laws of different countries of the world. The
Warsaw Convention of 1929 which has been amended by the Hague Convention
of 1955 is a landmark in this direction. This convention provides for uniform rules
relating to carriage of goods and persons by air.

2- Unification of the rules of private international law:

Before 1951, the main effort was directed at the unification of rules of private
international law of European Continental countries, since most of them follow
civil law systems. On the other hand, nothing could be done towards the
unification of rules of private international law of the commonwealth countries
and the United States on the account of fundamental differences between the
two systems of law. However, after 1951, some serious attempts have been
made with some success at the unification of rules of private international law of
all countries of the world. In 1951, a permanent bureau of Hague Conference
was constituted to look after this issue. The purpose of the Hague Conference on
Private International Law (HccH) is to work for the broad unification of the rules
of private international law. HccH develops and supports international
conventions in the domains of protection of children, family and property
relations, legal cooperation and litigation, as well as commercial and finance law.
 Today, the International Institute for Unification of Private Law (UNIDROIT) looks
after this matter. It is an independent intergovernmental organization with its
seat in Villa Aldobrandini in Rome. And its purpose is to study the needs and
methods for modernizing, harmonizing and coordinating private, and in
particular commercial law, as between states and group of states and to
formulate uniform law instruments, principles, and rules to achieve those
objectives. It was set up in 1926 as an auxiliary organ of the League of Nations.
The Institute was re-established in 1940 on the basis of multilateral agreement,
the UNIDROIT Statute. As of 2019, UNIDROIT has 84 state members from over 5
continents.

7- BENEFITS DERIVED FROM UNIFICATION:-

A- If such rules are unified then there would be no conflicting judgments on the
matter involving foreign elements by different courts.
B- Secondly, unification of laws will make the court proceedings less time
consuming, as the courts will be aware of what laws are applicable in a matter,
and would not have to spend time in deciding the applicable substantive law in
the matter.
C- Thirdly, as it is the era of globalization and people get involved in personal and
commercial relationships often, therefore, if there is unification then there
would be less conflict at the first place, and if it is still there, then it would be
easy to settle the dispute quickly.
D- Also, due to unification world can be brought up on same platform. If states have
contradictory rules, and benefits of avoiding the contradiction are large enough
then there will be an incentive for states to choose to unify their laws.

8- PROBLEMS AND CHALLANGES IN UNIFICATION OF PRIVATE INTERNATIONAL LAW:-

A- Major problem is that, although internal laws of countries are different from
each other as per their requirements.
B- Now even the private international law rules are different and not similar in all
the countries then the matter involving foreign elements is difficult to solve. The
court of any nation will face the same dilemma of what laws would be applicable
in a matter if there is involvement of foreign element.
C- Also, many a times courts will give up conflicting judgment on same matter as it
is up to the court to find appropriate applicable law and thus is discretion of
court. Thus, unification is very necessary in serving justice.

Now, challenge in unification is,

A- firstly, making the state agree of at least signing the unification conventions and
then later making them rectify such conventions.
B- Secondly, meeting the demands of states. As every state wants to architect the
convention as per their own requirements.
 C- Thirdly, enforcing such unification rules in all the countries of the world and then
monitoring the process and courts
.
9- WORKS ON UNIFICATION OR HARMONIZATION OF PRIVATE INTERNATIONAL LAW:-

1- SUPRANATIONAL ORGANIZATIONS:-
A- 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. The Action Plan is a joint
effort of the Internal Market, Enterprise and Health Protection and Consumer Affairs
Directorates General of the European Commission.
In 1989, the European Parliament first proposed the adoption of a European Civil
Code. The European Commission responded to the Parliament’s call in a Commission
document,
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.
B- 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.
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.
Unidroit is assisting OHADA in drafting a Uniform Act on Contracts.

2- 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- UN Convention on Contracts for the International Sale of Goods
UN Convention on Contracts for the International Sale of Goods,
Protocol Amending the Convention of the Limitation Period in the International Sale of
Goods,
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.
B- 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 84 members
and has produced ten formal conventions, most recently the UNIDROIT Convention on
International Interests in Mobile Equipment and numerous drafts and studies on
international private law.
C- 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
Convention on the Law Applicable to Contractual Obligations, Article 2.
1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters, 1998
The Brussels I Regulation replaced the above convention. On Jurisdiction and the
Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2001.
Lugano Convention (Oct. 24, 1998), 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).
D- 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
E- 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.
F- 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.

3- 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.
A- 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:
B- 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.
C- International Chamber of Commerce
This industry group based in Paris has been influential in harmonizing international contract
terms as well as arbitration practices.
D- INCOTERMS 2000
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 ICC has also published the definitions of terms and guidelines for their use in
documentary credits frequently encountered in international trade.

4- RESEARCH INSTITUTES AND THINK TANKS:-

A- 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.
B- Center for Transnational Law (CENTRAL), University of Cologne, Germany
C- 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.
D- 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.
E- 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.
F- 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.
G- 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.
H- 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.
I- 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.
J- 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.
K- 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.
L- 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.

5- RESEARCH GUIDES:-
A- 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.
B- 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.
C- 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.
D- 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.
E- 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
Guide to Doing Business in ….
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.
F- Zimmerman’s Legal Research Guide
This guide has entries on nearly every international organization mentioned in this article.

10- IDEA OF OPEN ACCESS IN CIVIL AND LEGAL SCIENCE:-

Open access is a mechanism by which research outputs are distributed online, free of
cost or other access barriers. The main focus of the open access movement is "peer
reviewed research literature”.

11- CONCLUSIVE REMARKS:-

Consequently, We can say that private international law is unlike its public interna-
tional law counterpart. Public international law originated from commonly accepted
‘norms’ or ‘traditions’ within the international community. On the other hand, the
term ‘private international law’ is a misnomer. It is still domestically focused. Hence,
academic discourses within each jurisdiction focused on internal legal problems. For
a successful harmonisation of private international law there is a need to search for
common norms or methodologies which are widely accepted among international
community. This should not be a work of the Hague Conference on Private
International Law whose members do not even represent the half of the countries in
the world. Likewise, this task should not be delegated to any one international or-
ganisation in particular. Such finding of common norms or traditions can only be
achieved through extensive comparative analysis and academic discourses. The idea
of ‘open access’ as pioneered by the Journal of Civil and Legal Sciences no doubt
facilitates such dialogues. With rapid turn-around time, scholars from different
jurisdictions will gain access to the most cutting-edge academic discourses within the
field. Policy makers and legislators can gain easy access to information available on-
line, without having to search for printed journals which may only be available in
large academic library. Therefore, the approach taken by the Journal of Civil and
Legal Sciences is no doubt something to be applauded. It is doubtlessly a suitable
forum for continuing debates on harmonisation of private international law.

__________________________________________________________________________