I. Brief Introduction of UNIDROIT
The International Institute for the Unification of Private Law Also known as UNIDROIT was founded in the year 1926 to serve as an adjunct body that was part of the League of Nations; the Institute was in the aftermath of the collapse of the League established in 1940, based on an agreement multilateral known as which is known as the UNIDROIT Statute. Its seat is Rome, Italy.
UNIDROIT is an intergovernmental entity that is independent. Its mission is to research the need for and ways of modernizing, harmonizing and coordination of private international law, and particularly commercial law among states and to develop international Conventions to meet the requirements. Furthermore, UNIDROIT has to prepare slowly for the acceptance by various nations of Uniform rules of private law, such as creating drafts of laws and conventions with the aim of creating a uniform internal law, as well as preparing drafts of an agreement with the intention of improving international relations within the realm of private law, conducting studies on comparative law, expressing an interest in projects already carried out in these fields by other institutions and maintaining relations , if necessary, and organizing conferences and publishing publications that the institute believes are worthy of large-scale diffusion.
What is the structure of Unidroit as a whole? What is the policy of legislation of Unidroit? What are the successes of Unidroit? Does Unidroit play important role in International law?
II. Membership of UNIDROIT
The Unidroit member states are drawn from five continents and have a wide range of legal system, political and economic as well as diverse cultures. To be eligible to become an Unidroit members, countries must be able to join the Unidroit Statute.
Additionally members are also required to pay the premise. states is to contribute the base to fund the annual costs associated with the running and upkeep of the Institute. Particularly, the normal base amount of contribution from the Italian Government, which is the patron of the Institute which was approved by the Italian Parliament, that Government announces to be fixed, beginning in 1985 as 300 millions Italian lire annually and that figure can be amended at the end of each of the three years as per the law that authorizes the budget for the Italian State as well as the regular annual contributions of other governments that are participating.
Today, there are more than 61 member states like Argentina, Austria, Australia, Belgium, Bolivia, Bulgaria, Brazil, Canada, Chile, China, Columbia, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Greece, Holy See, Hungary, India, Iran, Iraq, Ireland, Israel, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Mexico, The Netherlands, Nicaragua, Nigeria, Norway, Pakistan, Paraguay, Poland, Portugal, Republic of Korea, Republic of Serbia, Romania, Russian Federation, San Marino, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Tunisia, Turkey, United Kingdom of Great Britain and Northern Ireland, The United States of America, Uruguay and Venezuela.
III. Organizational Structure of UNIDROIT
Unidroit structured is classified into six organs, including a General Assembly, A president of the Governing Council and the Permanent Committee, an Administrative Tribunal as well as the Secretariat. The three main organs that play an extremely important function in the UNIDROIT operation include three: a Secretariat as well as an Administrative Tribunal, a Governing Council, and the General Assembly.
1. General Assembly
The General Assembly is the ultimate organ that makes decisions for Unidroit. It is the General Assembly consists of one representative from each participating governments. The diplomatic representative, or any other person designated by the member will be accredited to the Italian government.
The luxury law is Assembly is required to be called to Rome by the President at least once per year to consider the annual accounts of expenses and income and the budget during ordinary session. The general Assembly is required to accept the work program for the Institute on the basis of a suggestion made by the Governing Council and, in the event of a need, in accordance with Paragraph 4 Article 16. 16, amend with the majority of two-thirds of the members present and voting on the resolutions approved according to paragraph 3 of said Article 16.
The Unidroit member Unidroit is divided into various categories based on the annual contribution from each country. The classification will be decided through a resolution passed by 2/3 votes of the General Assembly. The classification will also be related to the national income of the nation.
The classification of the Member will be reviewed each 3 years via a new resolutions. Resolutions of the General Assembly adopted in accordance to the classification will be notifying each government participating via the Italian government.
For a time of one year after the announcement, any participating Government is entitled to raise objections to resolutions regarding their classification to be considered in the next meeting of the General Assembly. The Assembly decides through an approved resolution with a majority of two-thirds of all members present and voting. This is notified from the Italian Government to the government concerned. The Latter Government however have the option of removing itself from membership in the Institute.
The government in behind in the payment of the premise for over a period of more than two years loses the right to participate in voting at the General Assembly owing to the principle that it is a crucial financial support , and is essential for the operation of the institution.
Institute create the Working Capital Fund in purpose of meeting current expenses, in anticipation of receipt of the contributions due by the government participating in the program as well as to cover unexpected expenses. In addition, it has to be in accordance in accordance with the Unidroit regulations, and it must be approved with a majority vote of 2/3 in the General Assembly.
2. Governing Council
The Governing Council oversees all aspects of policy of the methods that the Institute’s statutorily-required goals are achieved and, in particular, the Secretariat’s execution part of the Work Program, the drawing of which is their task. It is composed of an ex-officio member president of the Institute and 25 members elected, usually eminent judges, practitioners academics, civil servants and other professionals.
The 25 members are chosen by the members by the General Assembly, while some are selected by the General Assembly, and one additional member is selected from the judges who are who are appointed by the International Court of Justice. The president and the members of the Governing Council will serve for a period of five years that is renewalable. The President of Governing Council is chosen by the Italian government. In the event that there is a need to replace members, members of the Governing Council is appointed for the remaining term of the predecessor. It is the Governing Council shall be convened by the President at any time the President deems it necessary and, in all cases, at least once per year.The Governing Council may invite representatives from international organizations or institutions to attend its meetings in consultation capacity in the event that the activities of the institute deal with issues that are relevant to these organizations or institutions.
Any government that participates and any international institution with an official character are entitled to put prior to the Governing Council suggestions for the investigation of questions related to the harmonization, unification and coordination of the private law. This means that the Governing Council will decide on any actions to take on suggestions and proposals presented in this manner. It is the Governing Council may refer the examination of particular issues to jurist commissions that have expertise in these issues. The commissions must, so they can be supervised by the members of Governing Council. After the examination of issues the commission with the Governing Council must accept any drafts that are preliminary to be presented to the Governments, if necessary. The Council shall forward the drafts to participating governments or to the associations or institutions that have made suggestions or suggested ideas to the Governing Council, and ask them to give their views on the efficacy and content of the rules. In light of the responses received the Governing Council, if appropriate is able to approve the final drafts. They communicate these drafts to government and the institutions or associations that have made suggestions or submitted proposals to it. The Governing Council will then look at the steps that need to be taken to call an international Conference to review the versions.
3. The Secretariat
The Secretariat is the executive body of UNIDROIT that is responsible for day-to-day execution of the Work Program. It is managed by a Secretary-General whom is chosen by the Governing Council on the recommendation by The President of the Institute. The Secretary-General is supported by an international team of civil servants as well as other personnel from the ancillary.
The Secretariat is comprised of a Secretary-General chosen by the Governing Council upon the nomination from the President. There are two deputy Secretaries General of various nationalities selected by the Governing Council as well as the employees and officers stipulated in the regulations that govern the management of the Institute and its internal activities. The Secretary-General and deputy Secretaries-General are appointed for an amount that does not be more than five years. They will be qualified for reappointment. A Secretary General of the Institute will be the ex-officio secretary of the General Assembly.
The Secretariat accepts qualified staff members who are from Member States to work or interns who are required to complete an internship within an international organization during their academic studies or who wish to gain knowledge working for an organization, such as UNIDROIT
Official languages include Italian, English, French, German and Spanish.
4. The President
The President is a representative for the institution. The president is usually chosen through the General Assembly in other international organizations, as well as Unidroit’s president. Unidroit. The president does not have executive authority, however the Governing Council has that power. The president is granted a five-year term.
5. A Permanent Committee
Permanent Committee Permanent Committee shall consist of the president and five members selected by the Governing Council from its members. The members on the Permanent Committee shall hold office for five years and be eligible to run for renewal. It is the Permanent Committee shall be convened by the President at any time they believe it appropriate and, in all cases, at least once per year.
6. An Administrative Tribunal
The Administrative Tribunal has jurisdiction to handle any dispute that arises that arises between Institute and its officers or employees, Institute and its employees or officers, or the persons legally entitled to pursue claims through them, in particular with regards to the interpretation or implementation of Staff Regulations. Any dispute that arises from contractual relationships among both the Institute with third-party parties should be referred to the Tribunal as long as its jurisdiction is recognized by the parties to the contract that triggered the dispute.
The Tribunal is comprised of three members who are full members as well as a substitutewho is chosen from outside of the Institute and, ideally, of various nationalities. The members are elected for a period of five consecutive years at the General Assembly. Any vacant spot on the Tribunal is filled through cooption.
The Tribunal decides that are final and without appeal, by utilizing the rules in the Statute and the Regulations and the general rules of law. It is also able to decide ex aequo et pro bono in the event that such authority has been granted by an arrangement between two parties. When the president of the Tribunal believes that a dispute among Institute Institute with one or more of their employees or officers is of a very minor importance, he can decide on it or delegate the decision to one judge from the Tribunal through the adoption of its own procedures.
IV. Legislative Policies
1. Nature of the instruments that are drafted by UNIDROIT
The primary objective of Unidroit’s statute is to create modern and when appropriate, uniform rules for private law in the broadest sense. However, the experience has shown the need to allow occasionally to enter into public law, particularly in law areas that have hard and fast line of delimitation is not easy to define or in cases where the law of transaction and regulation are interspersed. Uniform rules developed by UNIDROIT focus on substantive law regulations but they only contain uniform rules on conflict of laws as an added bonus.
2. A technical approach to harmonization or unification that is favored by UNIDROIT
Unidroit’s autonomy as an intergovernmental organizations has allowed it to employ working methods that have made it a perfect venue for dealing with more technical and consequently less politically-motivated questions.
3. The factors that determine whether subjects are eligible to receive treatment
New technologies, commercial practices etc. require new approaches and in cases where transactions may be transnational in nature, they must be coordinated, broadly accepted solutions that are widely accepted. In general, the admissibility of a topic for harmonization, or even unification, will in large part be contingent on the view of States as willing to accept the change in the municipal law of their respective states to facilitate a new international approach to the issue. The legal or other argument for harmonization of a particular subject need been carefully evaluated against these arguments. Similar considerations will determine the best sphere of application to these rules, which is whether or not they ought to be confined to situations that are truly cross-border relations, or expanded to include all kinds of internal or internal relationships.
4. The factors that determine the choice of instrument
The uniform rules developed by UNIDROIT are, in line with its intergovernmental structure historically, taken forms of international Conventions that are designed to be implemented immediately in lieu of the municipal law of a State upon completeness of all formal requirements of that state’s internal law prior to their introduction into force. However, the low importance that is usually given by governments in the execution of these Conventions and the length of time they take for them to come into force has led to increasing interest in alternative ways of unification in which a binding document isn’t considered necessary. Alternatives include model laws that States might consider when they draft legislation for their own domestic laws concerning the subject they are covering or general principles that are addressed directly to arbitrators, judges and contracting parties. They are able to decide whether they want to apply these or not. When the topic is not thought to be suitable for the drawing up of uniform rules, a different option is to prepare of legal guides, usually regarding new business practices as well as types of transactions, or on the framework that governs the management of markets on a national and international scale. The majority of the time “hard law” solutions (i.e. Conventions) are necessary when the rules’ scope is beyond the bipolar relationship that underlies ordinary contract law, and when public or third party interest are at stake, as is the case with the area of property law.
V. Working Method
1. Initial stage: Study groups
After a topic has been added to Unidroit’s Work Program The Secretariat and, if necessary, with the assistance of experts from within the subject, will develop an feasibility study or a preliminary comparative law report to determine the viability and the feasibility of reforming law. When necessary, and if the funds are available an economic impact study is conducted. The report, often comprising an initial draft of the principle or standard rules, will be presented to the Governing Council which, if it is satisfied that the situation has been established for actions, may ask the Secretariat to establish a study group, usually headed by a member of the Council in preparation of a draft Convention or any of the options listed above. The composition of such study groups, which are comprised of experts in their individual capacities, is a matter to the Secretariat who seeks to ensure a fair representation as it is possible of the different legal and economic systems as well as geographical regions.
2. Intergovernmental negotiation stage
A draft document that has been drafted by the study group will be presented to the Governing Council for their approval and guidance on the most suitable actions to take. In the majority of cases, in the case of an initial draft Convention the steps will be of requesting the Secretariat to establish an expert group of government experts to finalize an draft Convention suitable for submission for approval to an international Conference. If one of the options to an initial draft Convention not being suitable because of its content to be passed to a committee comprised of governmental experts and the Council will be urged to approve the publication and distribution of the draft by UNIDROIT within the areas for that it was drafted.
Participation in UNIDROIT committees composed of experts from government is available to representatives from all UNIDROIT member states. The Secretariat may also invite any other State it thinks appropriate, especially considering the subject that is being discussed, as well as the relevant international organizations as well as professional associations to take part as observers. A draft Convention approved by a committee of experts from the government will be put before the Governing Council for approval and suggestions on the best actions to take. In general, it will decide it is the case that the Convention represents a consensus between the States that been part of the committee of experts in governmental affairs and therefore has an excellent chance of being adopted in the next diplomatic Conference the next step will be a part of its approval of the Draft Convention’s transfer to an international Conference to be adopted in the form of an international Convention. The Conference is scheduled to be held by any of the Unidroit member states.
3. Cooperation with other international Organizations
UNIDROIT maintains close relations of co-operation with its other international Organizations that are both intergovernmental and non-governmental. These relationships in most instances take the form of cooperation agreements reached at the level of inter-Secretariat.
Due to its experience in international unification and harmonisation of laws, UNIDROIT can also be asked by these other Organizations to create studies on comparative law and/or draft Conventions intended to be foundations for creation or finalization of international instruments within those Organizations.
4. Network of correspondents
The ability of Unidroit to get up-to-date information about the current state of law in the different countries is vital for the achievement of its legal objectives. It can be difficult to find and UNIDROIT therefore has an extensive network of correspondents across all member states as well as non-member countries that are appointed through the Governing Council, which includes academics and practicing lawyers.
VI. UNIDROIT Achievements
UNIDROIT has created more than seventy documents and studies. Many of them produced international instruments, such as these international Conventions and Model Laws, developed by Unidroit and in the case of Conventions that were adopted by diplomatic conference that is convened by members State of UNIDROIT:
1. 1964 Convention concerning the Uniform Law on the Formation of Contracts for the International Sale of Goods (The Hague);
2. 1964 Convention concerning the Uniform Law on the International Sale of Goods (The Hague);
3. 1970 International Convention on the Travel Contract (Brussels);
4. 1973 Convention which provides the Uniform Law on the Form of an International Will (Washington);
5. 1983 Convention on Agency in the International Sale of Goods (Geneva);
6. 1988 UNIDROIT Convention on International Financial Leasing (Ottawa);
7. 1988 UNIDROIT Convention on International Factoring (Ottawa);
8. 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome);
9. 2001 Convention on International Interests in Mobile Equipment (Cape Town);
10. Protocol of 2001 of Protocol to Convention on International Interests in Mobile Equipment Concerning Matters Specific for Aircraft Equipment (Cape Town);
11. 2007. Luxembourg Protocol in relation to the Convention on International Interests in Mobile Equipment Concerning Matters Specific related to Railway Rolling Stock (Luxembourg).
UNIDROIT has created:
1. Model Franchise Disclosure Law (2002);
2. Principles of International Commercial Contracts (1994 and a revised edition in 2004);
3. Principles of Transnational Civil Procedure (in cooperation together with ALI) (2004)
In addition, UNIDROIT has published:
1. Guide to International Master Franchise Arrangements (1998).
Unidroit’s work also serves as the foundation for several international agreements that have been adopted under the auspices other international organizations that are currently in force. They include:
1. 1954 Convention for the Protection of Cultural Property in Case of War (adopted under the auspices UNESCO);
2. 1955 European Convention on Establishment (Council of Europe);
3. 1955 Benelux Treaty of Compulsory Insurance against Civil Liability with regard to Motor Vehicles (Council of Europe);
4. 1956 Convention on the Contract for the International Carriage of Goods by Road (CMR) (UN/ECE);
5. 1958 Convention regarding the acceptance and enforcement of decisions regarding maintenance obligations to kids (Hague Conference on International Private Law);
6. 1959 European Convention on Compulsory Insurance against Civil Liability for Motor Vehicles (Council of Europe);
7. 1962 European Convention on the Liability of Hotel-keepers for the property of their guests (Council of Europe);
8. Protocol No. 1 on rights in rem Inland Navigation Vessels and Protocol No. 2 concerning attachment and forced Sale of Inland Navigation Vessels that are annexed to the Convention on the Registration of Inland Navigation Vessels (UN/ECE);
9. 1980 United Nations Convention on Contracts for the International Sale of Goods (UNCITRAL);
VII. Conclusion Remark