The Italian Ministry of Foreign Affairs informed the UNIDROIT Secretariat in a Note Verbale dated 17 December 2001 that the Embassy of Estonia had communicated the decision of its Government to accede to UNIDROIT as a new Member State, in accordance with Article 20 of the Institute’s Statute of 15 March 1940.
This brings the number of UNIDROIT Member States to 59: Argentina; Australia; Austria; Belgium; Bolivia; Brazil; Bulgaria; Canada; Chile; China; Colombia; Croatia; Cuba; Cyprus; Czech Republic; Denmark; Egypt; Estonia; Finland; France; Germany; Greece; Holy See; Hungary; India; Iran; Iraq; Ireland; Israel; Italy; Japan; Luxembourg; Malta; Mexico; Netherlands; Nicaragua; Nigeria; Norway; Pakistan; Paraguay; Poland; Portugal; Republic Of Korea; Romania; Russian Federation; San Marino; Slovakia ; Slovenia ; South Africa ; Spain ; Sweden ; Switzerland ; Tunisia; Turkey; United Kingdom; United States Of America; Uruguay; Venezuela; Yugoslavia (Federal Republic of).
The Governing Council appointed Mr Roland LOEWE and Ms Anne-Marie TRAHAN first and second vice-presidents, respectively, until its 81st session.
The Council then appointed the following new correspondents:
International Interests in Mobile Equipment - The Council took note of the preparations for the diplomatic Conference in Cape Town to adopt a Mobile Equipment Convention and an Aircraft Protocol and authorised the Secretariat and those members of the Governing Council present at the diplomatic Conference to take decisions in connection with any proposed amendments provided these were in line with the Institute’s policy, as well as any other action required to ensure the successful conclusion of the mobile equipment project.
The Council, taking note of the fact that the South African Government had indicated that it would not be in a position to assume the functions of depositary for the future UNIDROIT Convention, authorised the UNIDROIT Secretariat to propose UNIDROIT as depositary.
Preliminary draft Protocol to the draft UNIDROIT Convention on International Interests in Mobile Equipment on Matters specific to Space Assets – The Council authorised the Secretariat to transmit the preliminary draft Space Protocol communicated to UNIDROIT by the Space Working Group, to member Governments and to convene a first session of a UNIDROIT Committee of governmental experts at such time as a Steering and Revisions Committee composed inter alia of members of the Governing Council had had the opportunity to review the preliminary draft Protocol in the light both of the texts of the draft Convention and the draft Aircraft Protocol to be adopted at the diplomatic Conference in Cape Town and of the results of the ad hoc consultative mechanism1 of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). The Governing Council further authorised the Secretariat also to invite to such a session those member States of COPUOS that were not members of UNIDROIT as well as the U.N. Office for Outer Space Affairs.
The Governing Council also adopted a Resolution urging member States to provide to, or procure for the UNIDROIT Secretariat, the resources necessary to endow the UNIDROIT Space Working Group with the funding necessary to enable it to respond to the vital calls on its expertise that were to be expected in the following 12 months.
Model law on franchising - The Council expressed its appreciation at the progress made on the preparation of the Model Law and agreed to the convening of a Sub-committee meeting immediately prior to the next Council session to examine the draft Model Law on Franchising which will be adopted by the committee of governmental experts at its second session from 8 to 12 April 2002 and will be submitted to the plenary session of the Council for approval at that time.
UNIDROIT Principles of International Commercial Contracts - The Council noted with satisfaction the information communicated by the Secretariat and Council members concerning the ways in which the UNIDROIT Principles of International Commercial Contracts are being used world-wide and expressed its best wishes to the Working Group for every success in its work on a second enlarged edition of the Principles.
Principles and rules of transnational civil procedure - The Council took note of the current state of work of the Joint ALI/UNIDROIT Working Group for the preparation of Principles and Rules of Transnational Civil Procedure and requested the Secretariat to circulate the draft Principles and Rules to Council members prior to the 81st session of the Council.
Uniform Rules Applicable to Transport - The Governing Council approved the proposed EDI Additional Protocol to the CMR (introducing electronic data interchange – EDI – in lieu of the paper-based consignment note) presented by Mr PUTZEYS.
Capital Markets Law - In the light of favourable comments from Governments and the banking sector in relation to the proposed capital markets topic, the Council author-ised the Secretary-General, resources permitting, to set up one (or more) Study Group(s) on private law aspects of transactions on transnational and connected capital markets. The work is to focus on:
(ii) substantive rules applicable to “delocalised” transactions;
(iii) assistance for developing trading on emerging markets;
(iv) development of standards for “global shares”; and
(v) the feasibility of developing harmonised rules for world-wide takeover bids.
Adoption of the Work Programme for the triennial period 2002-2004 – The Council prepared the Work Programme for the triennial period 2002-2004 for approval by the General Assembly (see infra).
Activities related to the unification of law:
1 Implemented by U.N./COPUOS at its 44th Session in Vienna from 6 to 15 June 2001 with a view to verifying the compatibility of the Cape Town Convention and the preliminary draft Space Protocol with existing international space law. [Back to text]
INSTITUTIONAL ASPECTS
The Governing Council expressed its gratitude to those States which in 2001 supplied or renewed their voluntary support of the UNIDROIT Research Scholarships Programme: France (since 1993), the Republic of Korea (since 1997) and Finland (since 1999), as well as China which has announced its intention to contribute starting in 2002.
SCIENTIFIC ACTIVITY
(i) the taking of security in securities in indirect holding systems and other transactions carried out within clearing and settlement institutions;
At its 55th session (Rome, 7 December 2001), the General Assembly approved the Work Programme adopted by the Governing Council at its 80th session.
2. The UNIDROIT Principles of International Commercial Contracts
3. Franchising
4. Principles and rules of transnational civil procedure
5. Private law aspects of transactions on transnational and connected capital markets
6. Leasing
7. Secured transactions in general
8. Uniform rules applicable to transport
9. Transborder civil liability of the manufacturer *
10. Hotel contracts
11. Unfair clauses in consumer contracts and contracts between small and large enterprises *
2. Promotion of UNIDROIT activities and instruments (in particular, the Internet site)
3. UNIDROIT publications
4. Data base on uniform law
5. Uniform Law Foundation
I. PREPARATION OF UNIFORM LAW INSTRUMENTS
1. International interests in mobile equipment
II. ACTIVITIES CONNECTED WITH THE UNIFICATION OF LAW
1. Programme of legal co-operation
* The two topics marked with an asterisk will be addressed by UNIDROIT during the triennial period in question only on the understanding that sufficient external human and financial resources are made available. [Back to text]
I. – Adoption of the Convention on International Interests in Mobile Equipment and of its Protocol on Matters Specific to Aircraft Equipment (Cape Town, 16 November 2001)
The single most important achievement of the Institute during 2001 was the opening to signature in Cape Town on 16 November of the Convention on International Interests in Mobile Equipment (hereinafter referred to as the Cape Town Convention), already dubbed by one member of the UNIDROIT Governing Council “one of the most important commercial law Conventions in the history of international private law”, 2 and the Protocol thereto on Matters specific to Aircraft Equipment (hereinafter referred to as the Aircraft Protocol). The diplomatic Conference, which was organised under the joint auspices of UNIDROIT and the International Civil Aviation Organization (I.C.A.O.) moreover took the historic decision to confer depositary functions in respect thereof upon UNIDROIT.
The diplomatic Conference was attended by the representatives of 68 States, seven intergovernmental Organisations and six international non-governmental Organisations. Mr M.R. RWELAMIRA (South Africa) was elected President of the Conference, Messrs H.S. BURMAN (United States of America), GAO H. (China), S. EID (Lebanon), J.S. GAMA FILHO (Brazil) and J. ATWOOD (Australia) Vice-Presidents of the Conference, Mr A.T. LEINONEN (Finland) Chairman of the Commission of the Whole, Mrs J. THOMPSON (Ghana) Chairman of the Credentials Committee, Sir Roy GOODE (United Kingdom) Chairman of the Drafting Committee and Mr K.O. RATTRAY (Jamaica) Chairman of the Final Clauses Committee. 20 of the Negotiating States 3 signed both the Cape Town Convention and the Aircraft Protocol at the closing ceremony of the Conference on 16 November 2001. One further Negotiating State 4 signed both instruments on 6 December 2001.
Pursuant to a decision taken by the diplomatic Conference , in particular with a view to ensuring the full conformity of the six language-versions (English, Arabic, Chinese, French, Russian and Spanish) of the Cape Town Convention and the Aircraft Protocol – each of which constitutes an authentic text – with one another, the texts of that Convention and Protocol are subject to verification by the UNIDROIT and I.C.A.O. Secretariats under the authority of the President of the Conference within 90 days of their opening to signature.
The Cape Town Convention and the Aircraft Protocol remain open for signature until such time as they enter into force. 5 Both instruments are subject to ratification, acceptance or approval by signatory States 6 and non-signatory States may accede at any time. 7 The Cape Town Convention will enter into force on the first day of the month following the expiration of three months after the date of deposit of the third instrument of ratification, acceptance, approval or accession but only as regards a category of objects to which a Protocol applies, first, as from the time of entry into force of that Protocol, secondly, subject to its terms and, thirdly, as between States Parties to the Cape Town Convention and that Protocol. 8 The Aircraft Protocol will enter into force on the first day of the month following the expiration of three months after the date of deposit of the eighth instrument of ratification, acceptance, approval or accession. 9
I.C.A.O. has been invited by the diplomatic Conference to act as Supervisory Authority for the international registration system for aircraft equipment upon the entry into force of the Cape Town Convention and the Aircraft Protocol. Under that Convention the Supervisory Authority is responsible for the establishment of the international registration system for the category of equipment concerned and for the appointment of the Registrar who will in turn be responsible for the day-to-day management of the International Registry for that category of equipment and for ensuring its effective operation.
Pending the entry into force of the Cape Town Convention and the Aircraft Protocol, a Preparatory Commission, set up by the diplomatic Conference, has been given the power to act as Provisional Supervisory Authority, under the guidance and supervision of the I.C.A.O. Council. It will be the task of this body, to be made up of representatives of 20 States, 10 to oversee the process whereby the new system is to be established and made operational. The essential tasks of the Preparatory Commission will be to ensure, first, that the international registration system for aircraft equipment is set up in accordance with an objective, transparent and fair selection process and that it be ready to be operated by a target date of one year from the date of adoption of the Cape Town Convention and the Aircraft Protocol and at the latest by the date of their entry into force and, secondly, to ensure the necessary liaison and co-ordination with representatives of private industry that will in due course be using the international registry.
Those States that participated in the diplomatic Conference together with interested private parties have moreover been urged by the Conference to make available at the earliest possible date, on a voluntary basis, the start-up funding that will be necessary for the Preparatory Commission and I.C.A.O. to carry out the tasks with which they have been entrusted by the Conference.
Once the Cape Town Convention and the Aircraft Protocol have entered into force, a Commission of Experts, to be set up by I.C.A.O., pursuant to an invitation addressed to it by the diplomatic Conference, will have the task of assisting I.C.A.O. in its functions as Supervisory Authority. This Commission is to consist of not more than 15 members to be appointed by the I.C.A.O. Council from among persons nominated by those States signing and becoming Parties to the Cape Town Convention and the Aircraft Protocol, having the necessary qualifications and experience.
This meeting – a round-table – focused, on the one hand, on the work of UNIDROIT in drafting a Convention on international interests in mobile equipment with equipment-specific Protocols for particular types of equipment, in particular aircraft, and, on the other hand, on the draft model law to be submitted for approval to the VI Specialized Inter-American Conference on International Private Law (CIDIP VI) which will be held in Washington in February 2002 under the auspices of the Organization of American States (OAS). The purpose of the meeting was to fuel a debate and promote information on these two texts prior to their (imminent) adoption, involving representatives of the interests in play both from Uruguay and other Latin American countries. Professor Didier OPERTTI BADÁN, Minister of External Relations (and a correspondent of UNIDROIT) chaired the meeting.
Reports were presented at the meeting by the following persons: Prof. H. KRONKE (Secretary-General, UNIDROIT): The UNIDROIT draft Convention – purpose of a general regulation for security interests in mobile equipment; Dr D. WALTON (Aviation Working Group, USA): The UNIDROIT/ICAO Aircraft Protocol; Prof. B. KOZOLCHYK (USA): The OAS draft model law; Prof. Inés WEINBERG DE ROCA (Argentina): The UNIDROIT/OTIF Railway Protocol; Prof. Luiz Otavio PIMENTEL (Brazil): Solutions in domestic law; Prof. Ricardo OLIVERA GARCIA (Uruguay): Uruguay; Prof. María Blanca NOODT TAQUELA: Creditor’s remedies for non-performance by the debtor; Prof. Eugenio Xavier DE MELLO (Uruguay): The different kinds of interests, and equipment covered by the OAS model law; Prof. Ronald HERBERT (Uruguay): procedural obstacles in Uruguayan law as regards the secured transactions covered by the OAS draft; Prof. Paul ARRIGHI (Uruguay): security interests in private international law in the light of the OAS and UNIDROIT/ICAO drafts; Dr Luis G. GIORELLO SANCHO (Uruguay): The conclusions of the 33rd session of the ICAO Assembly (Montreal, Sept.-Oct. 2001); Prof. Eva HOLZ (Uruguay): Comments on the problem of bank guarantees in an international context; Prof. Raul Anibal ETCHEVERRY: The equipment covered by the OAS draft.
A report on this meeting by Prof. Cecilia FRESNEDO DE AGUIRRE (Uruguay) has been published in Revista Uruguaya de Derecho Internacional Privado, Año IV – No. 4, 181-241.
* This section was drafted by Martin J. STANFORD, Principal Research Officer, UNIDROIT. [Back to text]
2 Cf. Sir Roy GOODE, “The UNIDROIT draft mobile equipment Convention: confluence of legal concepts and philosophies” in Mélanges en l’honneur de Denis Tallon. D’ici, d’ailleurs: harmonisation et dynamique du droit, Paris, Société de législation comparée, 1999, 69 at 81. [Back to text]
3 Burundi, Chile, China, Congo, Cuba, Ethiopia, France, Ghana, Jamaica, Jordan, Kenya, Lesotho, Nigeria, South Africa, Sudan, Switzerland, Tonga, Turkey, United Kingdom and United Republic of Tanzania. [Back to text]
4 Italy. [Back to text]
5 Cf. Article 47(1) of the Cape Town Convention and Article XXVI(1) of the Aircraft Protocol. [Back to text]
6 Cf. Article 47(2) of the Cape Town Convention and Article XXVI(2) of the Aircraft Protocol. [Back to text]
7 Cf. Article 47(3) of the Cape Town Convention and Article XXVI(3) of the Aircraft Protocol. [Back to text]
8 Cf. Article 49(1) of the Cape Town Convention. [Back to text]
9 Cf. Article XXVIII(1) of the Aircraft Protocol. [Back to text]
10 Argentina, Brazil, Canada, China, Cuba, Egypt, France, Germany, India, Ireland, Kenya, Nigeria, Russian Federation, Senegal, Singapore, Switzerland, South Africa, Tonga, United Arab Emirates and United States of America. [Back to text]
I. INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT *
II. – SYMPOSIUM ON THE WORK OF UNIDROIT / ICAO AND THE OAS IN THE FIELD OF INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT – organised by UNIDROIT and the Ministry of External Relations of Uruguay, Montevideo, 8 October 2001.
The Convention was ratified by Croatia on 20 September 2000 (entry into force: 1 March 2001), by Argentina on 3 August 2001 (entry into force: 1 February 2002) and by Norway on 28 September 2001 (entry into force: 1 March 2002), bringing the number of Contracting States to 15: Argentina, Bolivia, Brazil, China, Croatia, Ecuador, El Salvador, Finland, Hungary, Italy, Lithuania, Norway, Paraguay, Peru and Romania. [status report]
To celebrate the 75th anniversary of its foundation, UNIDROIT is organising a Congress on “Global Harmonisation of Private Law and Regional Economic Integration” – which will be held in Rome on 27-28 September 2002. For the provisional programme of this event see elsewhere in this issue, p. 615.
The following scholars conducted research at UNIDROIT during the period 1 April – 31 December 2001:
Mr Mosgan SITUMORANG (Indonesia), Lawyer (business law), Ministry of Justice National Law Reform Agency, Government of Korea. Research period: April/May. Research topic: Cross Border Insolvency Law. Sponsored by the Korean Government.
Ms Galina YEROMENKO (Ukraine), Researcher and Professor, Institute of State and Law of the Ukrainian Academy of Sciences. Research period: April/May. Research topic: Conception of Civil Liability in modern law doctrine. Sponsored by UNIDROIT.
Ms Natalia TRIGOUBOVITCH (Russia), Lecturer, Saratov State Academy of Law. Research period: April/May. Research topic: Choice and application of law in int. commercial contracts Sponsored by UNIDROIT.
Mr Aliaksandre DANILEVICH (Belarus), Assistant Professor, Academy for Administration to the President of the Republic. Research period: August/September. Research topic: The arbitral award and recourses. Sponsored by UNIDROIT. In conjunction with the Swiss Institute of Comparative Law (Lausanne) (2 months).
Mr José Mauricio GAONA (Colombia), Assistant Professor, University Externado de Colombia (Bogota) – Research period: Sept./Oct. Research topic: “European Procedural Law”. Sponsored by the Government of Finland.
Mr Nikoloz DEVDARIANI (Georgia), Legal Attaché, Ministry of Justice (Tbilisi) – Research period: Sept./Oct. Research topic: “Unification of Private Law and the Activities of UNIDROIT”. Sponsored by UNIDROIT.
Mr Gaston KENFACK-DOUAJNI (Cameroon), Deputy Director of Civil, Commercial, Social and Tradi-tional Legislation, Ministry of Justice (Yaoundé). Research Period: 15 Sept./30 Oct. Research topic: “The role of arbitration in the OHADA system”. Sponsored ad personam by the French Government.
The UNIDROIT Secretariat’s invitation to Member States to designate libraries to serve as depositories for UNIDROIT Proceedings and Papers on CD-ROM and the Uniform Law Review, New Series has been well received. Thirty-eight libraries world-wide have been designated so far to serve this purpose. In addition to those indicated in this column in ULR 1999, 682, 1999, 932, 2000, 512 and 2001, 89 the following libraries have been designated depositories for UNIDROIT documentation: