| I. Brief Introduction of UNIDROIT | | | | the decision to a single judge of the Tribunal by |
| The international Institute for the Unification of Private | | | | adopting its own rules of procedure. |
| Law, also known as UNIDROIT, set up in 1926 as an | | | | IV. Legislative Policies |
| auxiliary organ of the League of Nations; the Institute | | | | 1. Nature of instruments drawn up by UNIDROIT |
| was, following the demise of the League, | | | | Unidroit's basic statutory objective is to prepare |
| re-established in 1940 on the basis of a multilateral | | | | modern and where appropriate harmonized uniform |
| agreement, the UNIDROIT Statute. Its seat is in Rome, | | | | rules of private law understood in a broad sense. |
| Italy. | | | | However, experience has demonstrated the necessity |
| UNIDROIT is an independent intergovernmental | | | | of permitting occasional incursions into public law, |
| organization. Its purpose is to study needs and | | | | especially in areas of law where hard and fast lines of |
| methods for modernizing, harmonizing, and coordinating | | | | demarcation are difficult to draw or where |
| private international law and in particular commercial | | | | transactional law and regulatory law are intertwined. |
| law between states, and to draft international | | | | Uniform rules prepared by UNIDROIT are concerned |
| Conventions to address the needs. Moreover, | | | | with substantive law rules; they will only include uniform |
| UNIDROIT has to prepare gradually for the adoption | | | | conflict of law rules incidentally. |
| by the various states of Uniform rules of private law | | | | 2. Technical approach to harmonization or unification |
| such as preparing draft of law and conventions with | | | | favored by UNIDROIT |
| the object of establishing uniform internal law, preparing | | | | Unidroit's independent status amongst |
| draft of agreement with a view of facilitating | | | | intergovernmental Organizations has enabled it to |
| international relations in the field of private law, | | | | pursue working methods which have made it a |
| undertaking studies in comparative private law, taking | | | | particularly suitable forum for tackling more technical |
| an interest in project already undertaken in any of | | | | and correspondingly less political issues. |
| these fields by other institution with which it may | | | | 3. Factors determining eligibility of subjects for |
| maintain relations as necessary, organizing | | | | treatment |
| conferences and publishing works which the institute | | | | New technologies, commercial practices etc. call for |
| considers worthy of wide circulation. | | | | new solutions and, where transactions tend to be |
| What is the organizational structure of Unidroit like? | | | | transnational by their very nature, these should be |
| What is the legislative policy of Unidroit? What are the | | | | harmonized, widely acceptable solutions. Generally |
| achievements of Unidroit? Does Unidroit play important | | | | speaking, the eligibility of a subject for harmonization or |
| role in International law? | | | | even unification will to a large extent be conditional on |
| II. Membership of UNIDROIT | | | | the perception of States being willing to accept change |
| Unidroit member States are drawn from the five | | | | to their municipal law rules in favor of a new |
| continents and represent a variety of different legal, | | | | international solution on that subject. Legal and other |
| economic and political systems as well as different | | | | arguments in favor of harmonization on a subject |
| cultural backgrounds. In order to be a Unidroit member, | | | | have accordingly to be weighed carefully against |
| states have to accede to the Unidroit Statute. | | | | these considerations. Similar considerations will also |
| Moreover, the obligation of member states is to pay | | | | determine the most appropriate sphere of application |
| the premise to support the yearly expenditure relating | | | | to be given to such rules that are whether they should |
| to the operation and maintenance of the Institute. In | | | | be restricted to truly cross-border situations or relations |
| particular, the ordinary basic contribution of the Italian | | | | or extended to cover also purely internal situations or |
| Government, the promoter of the Institute, as | | | | relations. |
| approved by the Italian Parliament, which that | | | | 4. Factors determining choice of instrument to be |
| Government declares to be set, as from 1985, at 300 | | | | prepared |
| million Italian lire per annum, a figure which may be | | | | The uniform rules drawn up by UNIDROIT have, in |
| revised at the end of each period of three years by | | | | keeping with its intergovernmental structure, traditionally |
| the law approving the budget of the Italian State, as | | | | tended to take the form of international Conventions, |
| well as the ordinary annual contributions of the other | | | | designed to apply automatically in preference to a |
| participating Governments. | | | | State's municipal law upon completion of all the formal |
| Nowadays, there are 61 member states such as | | | | requirements of that State's domestic law for their |
| Argentina, Austria, Australia, Belgium, Bolivia, Bulgaria, | | | | entry into force. However, the low priority which tends |
| Brazil, Canada, Chile, China, Columbia, Croatia, Cuba, | | | | to be accorded by Governments to the |
| Cyprus, Czech Republic, Denmark, Egypt, Estonia, | | | | implementation of such Conventions and the time it |
| Finland, France, Germany, Greece, Holy See, Hungary, | | | | therefore tends to take for them to enter into force |
| India, Iran, Iraq, Ireland, Israel, Italy, Japan, Latvia, Lithuania, | | | | have led to the increasing popularity of alternative |
| Luxembourg, Malta, Mexico, The Netherlands, | | | | forms of unification in areas where a binding instrument |
| Nicaragua, Nigeria, Norway, Pakistan, Paraguay, Poland, | | | | is not felt to be essential. Such alternatives include |
| Portugal, Republic of Korea, Republic of Serbia, | | | | model laws which States may take into consideration |
| Romania, Russian Federation, San Marino, Slovakia, | | | | when drafting domestic legislation on the subject |
| Slovenia, South Africa, Spain, Sweden, Switzerland, | | | | covered or general principles addressed directly to |
| Tunisia, Turkey, United Kingdom of Great Britain and | | | | judges, arbitrators and contracting parties who are |
| Northern Ireland, The United States of America, | | | | however left free to decide whether to use them or |
| Uruguay and Venezuela. | | | | not. Where the subject is not judged ripe for the |
| III. Organizational Structure of UNIDROIT | | | | drawing up of uniform rules, another alternative |
| Unidroit structured is categorized into six organs, a | | | | consists in the preparation of legal guides, typically on |
| General Assembly, A president, a Governing Council, a | | | | new business techniques, types of transaction or on |
| Permanent Committee, an Administrative Tribunal, and | | | | the framework for the organization of markets both at |
| a Secretariat. However, the main three-tier organs that | | | | the domestic and the international level. Generally |
| play mighty crucial role in UNIDROIT operation are a | | | | speaking "hard law" solutions (i.e. Conventions) are |
| Secretariat, a Governing Council and a General | | | | needed where rules' scope transcends the bi-polar |
| Assembly. | | | | relationship underlying ordinary contract law and where |
| 1. General Assembly | | | | third parties' or public interests are at stake as is the |
| The General Assembly is the ultimate decision making | | | | case in the law of property. |
| organ of Unidroit. The General Assembly consists of | | | | V. Working Method |
| one representative from each of the participating | | | | 1. Preliminary stage: use of study groups |
| government. The diplomatic representative or persons | | | | Once a subject has been entered on Unidroit's Work |
| deputed by the participating member shall accredit to | | | | Program, the Secretariat, where necessary assisted |
| the Italian Government. | | | | by experts in the field, will draw up a feasibility study |
| The Assembly should be convened in Rome by the | | | | and/or a preliminary comparative law report designed |
| president at least once a year to approve the annual | | | | to ascertain the desirability and feasibility of law reform. |
| accounts of income and expenditure and the budget in | | | | Where necessary and provided funding is available, an |
| ordinary session. The general Assembly has to | | | | economic impact assessment study is carried out. The |
| approve the work program of the Institute on the basis | | | | report, sometimes including a first rough draft of |
| of a proposal by the Governing Council and, in | | | | principles or such uniform rules, will then be laid before |
| appropriate cases pursuant to paragraph 4 of Article | | | | the Governing Council which, if satisfied that a case |
| 16, revise by a majority of two thirds of the Members | | | | has been made out for taking action, will typically ask |
| present and voting the resolutions adopted in | | | | the Secretariat to convene a study group, traditionally |
| accordance with paragraph 3 of the said Article 16. | | | | chaired by a member of the Council, for the |
| The member of Unidroit is classified into different | | | | preparation of a preliminary draft Convention or one of |
| categories base on the yearly contribution of each | | | | the alternatives mentioned above. The membership of |
| country. The classification will be determined by a | | | | such study groups, made up of experts sitting in their |
| resolution through 2/3 vote of General Assembly. Also, | | | | personal capacity, is a matter for the Secretariat, |
| the classification is concerning with the national income | | | | which seeks to ensure as balanced a representation |
| of the country. | | | | as possible of the world's different legal and economic |
| Nonetheless, the classification of the member will be | | | | systems and geographic regions. |
| revised every 3 years by further resolution. The | | | | 2. Intergovernmental negotiation stage |
| resolution of the General Assembly adopted in | | | | A preliminary draft instrument established by a study |
| accordance with the classification shall be notified to | | | | group will be laid before the Governing Council for |
| each participating government by the Italian | | | | approval, and advice as to the most appropriate |
| government. | | | | further steps to be taken. Typically, in the case of a |
| During a period of one year following the notification, | | | | preliminary draft Convention, these will consist in its |
| each participating Government may put forward | | | | asking the Secretariat to convene a committee of |
| objections against resolutions concerning its | | | | governmental experts for the finalization of a draft |
| classification for consideration at the next session of | | | | Convention capable of submission for adoption to a |
| the General Assembly. The Assembly shall give its | | | | diplomatic Conference. In the case of one of the |
| decision by means of a resolution, adopted by a | | | | alternatives to a preliminary draft Convention not |
| majority of two thirds of the Members present and | | | | suitable by virtue of its nature for transmission to a |
| voting, which shall be notified by the Italian Government | | | | committee of governmental experts, the Council will be |
| to the participating Government concerned. The Latter | | | | called upon to authorize its publication and |
| Government shall, however, have the option of | | | | dissemination by UNIDROIT in the circles for which it |
| withdrawing from membership of the Institute. | | | | has been prepared. |
| The participating government that is arrear in payment | | | | Full participation in UNIDROIT committees of |
| the premise more than 2 years, will lose the right to | | | | governmental experts is open to representatives of all |
| vote in the General Assembly owing to the premise is | | | | UNIDROIT member States. The Secretariat may in |
| very important financial support and necessary to | | | | addition invite such other States as it deems |
| operate the work within the organization. | | | | appropriate, notably in view of the subject-matter |
| Institute establish a Working Capital Fund in purpose of | | | | concerned, and the relevant international Organizations |
| which is to meet current expenditure, pending the | | | | and professional associations to participate as |
| receipt of the contribution payable by the participating | | | | observers. A draft Convention finalized by a |
| government, and to meet unforeseen expenditure. | | | | committee of governmental experts will then be laid |
| Furthermore, it must deem with Unidroit regulation, and | | | | before the Governing Council for approval and advice |
| adopted by 2/3 majority vote by the general | | | | as to the most appropriate further steps to be taken. |
| assembly. | | | | Typically, where it judges that the draft Convention |
| 2. Governing Council | | | | reflects a consensus as between the States which |
| The Governing Council supervises all policy aspects of | | | | have participated in the committee of governmental |
| the means by which the Institute's statutory objectives | | | | experts and that it accordingly stands a good chance |
| are to be attained and in particular the Secretariat's | | | | of adoption at a diplomatic Conference, these steps |
| carrying out of the Work Program, the drawing up of | | | | will consist in its authorization of the draft Convention's |
| which is its responsibility. It is made up of one ex officio | | | | transmission to a diplomatic Conference for adoption |
| member, the President of the Institute, and 25 elected | | | | as an international Convention. Such a Conference will |
| members, typically eminent judges, practitioners, | | | | be convened by one of Unidroit's member States. |
| academics and civil servants. | | | | 3. Co-operation with other international Organizations |
| The 25 members are elected, and some may be | | | | UNIDROIT maintains close ties of co-operation with its |
| appointed by the General Assembly, and one other | | | | sister international Organizations, both |
| member is chosen from among the judges in office of | | | | intergovernmental and non-governmental, which in |
| the International Court of Justice. The president and | | | | many cases take the form of co-operation |
| members of the Governing Council shall hold office for | | | | agreements concluded at inter-Secretariat level. |
| a term of five years which shall be renewable. The | | | | By reason of its expertise in the international unification |
| president of Governing Council is appointed by the | | | | of law, UNIDROIT is moreover at times commissioned |
| Italian Government In case there is a replacement of | | | | by such other Organizations to prepare comparative |
| membership, a member of Governing Council shall hold | | | | law studies and/or draft Conventions designed to |
| office for the remainder of the term of his or her | | | | serve as the basis for the preparation and/or |
| predecessor. The Governing Council shall be convened | | | | finalization of international instruments in those |
| by the President whenever he or she considers it | | | | Organizations. |
| expedient and in any case at least once a year. | | | | 4. Network of correspondents |
| The Governing Council may invite representatives of | | | | Unidroit's ability to obtain up-to-date information on the |
| international institutions or organizations to take part in | | | | state of the law in all the various countries is essential |
| its meetings, in a consultative capacity, whenever the | | | | to the pursuit of its statutory objectives. This |
| work of the institute deals with subjects which are the | | | | information is sometimes difficult to obtain and |
| concern of those institutions or organizations. | | | | UNIDROIT therefore maintains a network of |
| Any participating Government, as well as any | | | | correspondents in both member and non-member |
| international institutions of an official nature, is entitled to | | | | States, who are appointed by the Governing Council |
| set before the Governing Council proposals for the | | | | amongst academic and practicing lawyers. |
| study of questions relating to the unification, | | | | VI. UNIDROIT Achievements |
| harmonization or coordination of private law. Therefore | | | | UNIDROIT has over the years prepared over seventy |
| the Governing Council shall decide any action to be | | | | studies and drafts. Many of these have resulted in |
| taken on proposals and suggestions made in this way. | | | | international instruments, including the following |
| The Governing Council may refer the study of | | | | international Conventions and Model Laws, drawn up |
| particular questions to commissions of jurists who | | | | by Unidroit and - in the case of Conventions - adopted |
| have specialized knowledge of those questions. The | | | | by a diplomatic Conferences convened by member |
| commissions shall, as far as possible, be presided over | | | | States of UNIDROIT: |
| by members of the Governing Council. Following the | | | | 1. 1964 Convention relating to a Uniform Law on the |
| completion of the study of questions in which it has | | | | Formation of Contracts for the International Sale of |
| engaged, the Governing Council has to approve any | | | | Goods (The Hague); |
| preliminary drafts to be submitted to Governments if | | | | 2. 1964 Convention relating to a Uniform Law on the |
| appropriate. It shall communicate such drafts to the | | | | International Sale of Goods (The Hague); |
| participating Governments or the institutions or | | | | 3. 1970 International Convention on the Travel Contract |
| associations which have made proposals or | | | | (Brussels); |
| suggestions to it, asking them for their opinion on the | | | | 4. 1973 Convention providing a Uniform Law on the |
| expediency and the substance of the provisions. In the | | | | Form of an International Will (Washington); |
| light of the answers received, the Governing Council, if | | | | 5. 1983 Convention on Agency in the International Sale |
| appropriate, approves final drafts. It communicates | | | | of Goods (Geneva); |
| these to the Governments and to the institutions or | | | | 6. 1988 UNIDROIT Convention on International Financial |
| associations which have made proposals or | | | | Leasing (Ottawa); |
| suggestions to it. The Governing Council shall then | | | | 7. 1988 UNIDROIT Convention on International Factoring |
| consider the steps to be taken to convene a | | | | (Ottawa); |
| diplomatic Conference to examine the drafts. | | | | 8. 1995 UNIDROIT Convention on Stolen or Illegally |
| 3. The Secretariat | | | | Exported Cultural Objects (Rome); |
| The Secretariat is the executive organ of UNIDROIT | | | | 9. 2001 Convention on International Interests in Mobile |
| responsible for the day-to-day carrying out of its Work | | | | Equipment (Cape Town); |
| Program. It is run by a Secretary-General, who is | | | | 10. 2001 Protocol to the Convention on International |
| appointed by the Governing Council on the nomination | | | | Interests in Mobile Equipment on Matters specific to |
| of the President of the Institute. The | | | | Aircraft Equipment (Cape Town); |
| Secretary-General is assisted by a staff of | | | | 11. 2007 Luxembourg Protocol to the Convention on |
| international civil servants and various ancillary staff. | | | | International Interests in Mobile Equipment on Matters |
| The Secretariat consists of a Secretary-General | | | | specific to Railway Rolling Stock (Luxembourg). |
| appointed by the Governing Council on the nomination | | | | UNIDROIT has prepared: |
| of the President, two Deputy Secretaries-General of | | | | 1. Model Franchise Disclosure Law (2002); |
| different nationalities also appointed by the Governing | | | | 2. Principles of International Commercial Contracts |
| Council, and the officers and employees provided for in | | | | (1994; enlarged edition 2004); |
| the rules governing the administration of the Institute | | | | 3. Principles of Transnational Civil Procedure (in |
| and its internal operations. The Secretary-General and | | | | co-operation with ALI) (2004) |
| the Deputy Secretaries-General are appointed for a | | | | Moreover, UNIDROIT has published: |
| period which shall not exceed five years. They shall be | | | | 1. Guide to International Master Franchise |
| eligible for reappointment. The Secretary-General of | | | | Arrangements (1998). |
| the Institute shall be ex officio Secretary of the | | | | Unidroit's work has also served as the basis for a |
| General Assembly. | | | | number of international instruments adopted under the |
| The Secretariat welcomes qualified staff from | | | | auspices of other international organizations which are |
| Member States to work or intern who are either | | | | already in force. These include: |
| required to carry out an internship with an international | | | | 1. 1954 Convention for the Protection of Cultural |
| organization or as part of their university studies or | | | | Property in Case of War (adopted under the auspices |
| wish to acquire experience within an organization such | | | | of UNESCO); |
| as UNIDROIT | | | | 2. 1955 European Convention on Establishment (Council |
| The official languages are Italian, English, French, | | | | of Europe); |
| German and Spanish. | | | | 3. 1955 Benelux Treaty on Compulsory Insurance |
| 4. The President | | | | against Civil Liability in respect of Motor Vehicles |
| The President is a representative of the institution. | | | | (Council of Europe); |
| Usually, the president is elected by the General | | | | 4. 1956 Convention on the Contract for the International |
| Assembly in other international organization, and also | | | | Carriage of Goods by Road (CMR) (UN/ECE); |
| the president of Unidroit. The president has no | | | | 5. 1958 Convention concerning the recognition and |
| executive power, but the Governing Council. The | | | | enforcement of decisions relating to maintenance |
| president has 5 years term. | | | | obligations towards children (Hague Conference on |
| 5. A Permanent Committee | | | | Private International Law); |
| The Permanent Committee shall consist of the | | | | 6. 1959 European Convention on Compulsory Insurance |
| President and five members appointed by the | | | | against Civil Liability in respect of Motor Vehicles |
| Governing Council from among its own members. | | | | (Council of Europe); |
| Members of the Permanent Committee shall hold | | | | 7. 1962 European Convention on the Liability of |
| office for five years and shall be eligible for re-election. | | | | Hotel-keepers concerning the Property of their Guests |
| The Permanent Committee shall be convened by the | | | | (Council of Europe); |
| President whenever he or she considers it expedient | | | | 8. Protocol No. 1 concerning rights in rem in Inland |
| and in any case at least once a year. | | | | Navigation Vessels and Protocol No. 2 on Attachment |
| 6. An Administrative Tribunal | | | | and Forced Sale of Inland Navigation Vessels annexed |
| The Administrative Tribunal has jurisdiction to deal with | | | | to the 1965 Convention on the Registration of Inland |
| any dispute between the Institute and its officers or | | | | Navigation Vessels (UN/ECE); |
| employees, or those entitled to claim through them, | | | | 9. 1980 United Nations Convention on Contracts for the |
| with particular regard to the interpretation or application | | | | International Sale of Goods (UNCITRAL); |
| of the Staff Regulations. Any dispute arising from | | | | VII. Conclusion Remark |
| contractual relations between the Institute and third | | | | In conclusion, Unidroit is a unique intergovernmental |
| parties shall be submitted to the Tribunal, provided that | | | | organization that responsible to prepare draft of law or |
| its jurisdiction is expressly recognized by the parties in | | | | international convention. Therefore it plays very |
| the contract giving rise to the dispute. | | | | important role in private international law because it |
| The Tribunal consists of three full members and one | | | | studies the needs and methods to modernize and |
| substitute, chosen from outside the Institute and | | | | harmonize the international private sectors, especially |
| preferably of different nationalities. They shall be | | | | international trade. The conventions, protocols and |
| elected for five years by the General Assembly. Any | | | | guides serve as a crucial instrument in legal practice. |
| vacancy on the Tribunal is filled by cooption. | | | | More importantly, the achievements of Unidroit are the |
| The Tribunal arrives at its decisions, which shall be | | | | wonderful contribution that this organization involves in |
| without appeal, by applying the provisions of the | | | | helping private persons, private companies to settle |
| Statute and of the Regulations as well as the general | | | | their disputes. Also, it is a mechanism to boost the |
| principles of law. It may also decide ex aequo et bono | | | | progress and development of international trade and |
| when such power has been given to it by an | | | | commerce prosperously and peacefully. However, |
| agreement between the parties. The President of the | | | | Unidroit can only prepare the draft of law or |
| Tribunal considers that a dispute between the Institute | | | | convention, but it has no execution power to enact the |
| and one of its officers or employees is of very limited | | | | law on their own. |
| importance, he or she may decide it or may entrust | | | | |