The Complexities of the Promotion of Harmonisation in International Trade Law
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Author Elaine Obika
Date July 2025
INTRODUCTION
International trade law is often described as a harmonised system, but in practice it is a dense and shifting network of treaties, conventions, domestic laws, commercial customs and political pressures. The pursuit of harmonisation is complicated not only by the diversity of legal instruments but by the practical realities of cross‑border contracting, arbitration, enforcement and technological change. This short analysis outlines the structural and doctrinal challenges that make harmonisation both necessary and inherently difficult.
International trade law weaves together trade terms, [1] [2] [3] conventions, [4] [5] treaties (bilateral, [6] regional [7] and multilateral), [8] supranational agreements, [9] regional trade agreements, [10] domestic laws, [11] and customs (some national, some regional) while balancing economic cooperation and the changing political climates [12] with national interests. [13] [14]
The mix is further nuanced by the fact that some of these instruments are legally binding (hard law) and some are persuasive (soft law). [15]
If we use the contract as a launchpad, other factors require attention, e.g., finance, [16] transportation, [17] passing of risk, [18] [19] [20] insurance, [21] and currency volatility, [22] each with their own legal requirements [23][24] which differ from state to state. An example of this is that where the contracts of the parties have conflicting terms. Principles such as the 'last shot rule' or 'knock out rule' may be applied. Their applications vary from jurisdiction to jurisdiction. [25]
Arbitration is another aspect. Several laws are applicable: The laws governing the arbitration. [26] The governing law of the contract. [27] The law applicable to the arbitration agreement (which determines its validity and interpretation) and where this is absent from the contract, the laws of the seat of arbitration apply. French and English arbitration courts have differed in their rulings on the same case. [28] [29] [30] Additionally, a party’s capacity to arbitrate [31] and the law of the enforcement of an award within the state where enforcement is sought. Acknowledgement of an award and its implementation are separate processes. Enforcement may be awarded by the New York Convention, but its execution will be implemented by the national law of the state who will also interpret the award according to its national laws. [32] [33]
Include in this ecosystem laws regarding corruption, [34] the regulation of electric commerce [35] [36] (which is yet to catch up with technology), AI, [37] cultural [38] and historical contexts, [39] climate change [40] and herein lies the technical intricacies of the promotion of harmonisation.
[1] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 5.
[2] International Chamber of Commerce ‘Incoterms 2020 Rules’ < https://iccwbo.org/business-solutions/incoterms-rules/ > accessed 11th July 2025.
[3] JUSDA-EN ‘Top 13 International Trade Terms’ 13th October 2024 <https://www.jusdaglobal.com/en/article/top-13-international-trade-terms-exw-cif-fob/ > accessed 11th July 2025.
[4]UNCITRAL ‘United Nations Convention on Contracts for the International Sale of Goods’ < https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09951_e_ebook.pdf > accessed 11th July 2025.
[5] Anish ‘What are the Hague Visby Rules’ Maritime Insight 9th June 2024 < https://www.marineinsight.com/maritime-law/what-are-hague-visby-rules/ > accessed 11th July 2025.
[6] ASEAN ‘Association of Southeast Asian Nation’ < https://asean.org/what-we-do > accessed 10th July 2025.
[7] OHADA ‘Organisation for the Harmonisation of Business law in Africa’ < https://www.ohada.org/en/category/our-institutions/common-court-of-justice-and-arbitration-ccja/ > accessed 10th July 2025.
[8] World Trade Organisation ‘General Agreements on Tariffs and Trade) GATT 1947 <https://www.wto.org/english/docs_e/legal_e/gatt47_e.htm > accessed 11th July 2025.
[9] European Union ‘Flying the Flag for 40 Years’ < https://european-union.europa.eu/index_en > accessed 11th July 2025.
[10] Office of the United States Representative ‘United States Mexico Canada Agreement’ < https://ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement > accessed 11th July 2025.
[11] Carriage of Goods by Sea Act 1971.
[12] Suhail Abboushi ‘Trade Protectionism: Reasons and Outcomes’ (2010) Vol 20 Competitiveness Review: An International Law Journal 384, 392-393. < https://www.researchgate.net/publication/235283803_Trade_protectionism_Reasons_and_outcomes > accessed 12th July 2025.
[13] Patrick Wintour and Daniel Boffey ‘EU Sets Course for US Clash with Law Blocking Iran Sanctions’ 17th May 2018 The Guardian < https://www.theguardian.com/world/2018/may/17/maersk-tankers-pull-out-of-iran-in-blow-to-nuclear-deal > accessed 12th July 2025.
[14] Anne Soy ‘Trumps Tariffs Could Be Death Knell for US-Africa Trade Pact’ 5th April 2025 BBC News < https://www.bbc.co.uk/news/articles/cqx4w1yj1vdo > accessed 12th July 2025.
[15] Sarah Joseph and Joanna Kyriakakis ‘From Soft Law to Hard Law in Business and Human Rights and the Challenge of Corporate Power’ (2023) Vol 36 335, 337 < https://www.cambridge.org/core/services/aop-cambridge-core/content/view/12DAE2DA75581B0126E44F965E6FC78A/S0922156522000826a.pdf/from-soft-law-to-hard-law-in-business-and-human-rights-and-the-challenge-of-corporate-power.pdf > accessed 11th July 2025.
[16] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) pp 174 and 461.
[17] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 82.
[18] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) pp 155, 157, 159-164.
[19] CISG Articles 66-70.
[20] Karibi – Botoye, N Ejims Enukwe and Tamuno Basssey Amiesimaka ‘The Interplay Between the Incoterms & CISG on the International Sale of Goods’ (2022) Vol 2 The Journal of Law and Policy 95, 96 -103 < https://cisg-online.org/files/commentFiles/Karibi-Botoye_2_2_JLPol_2022_95.pdf > accessed 12th July 2025..
[21] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 32.
[22] Udo Broll and Bernhard Eckwert ‘Exchange Rate Volatility and International Trade’ (1999) Vol 66 Southern Economic Journal 178, 184 < https://www.jstor.org/stable/1060843?if_data=e30%3D&seq=7 > accessed 12th July 2025.
[23] Insurance Act 2015.
[24] Sale of Goods Act 1979 s 20.
[25] Sieg Eiselen and Sebastian K Bergenthal ‘The Battle of Forms: A Comparative Analysis’ (2006) Vol 39 The Comparative and International Law Journal of South Africa 214.
[26] International Arbitration ‘The Seat of Arbitration in the Seat of Arbitration’ < https://www.international-arbitration-attorney.com/seat-arbitration-international-commercial-arbitration/ > accessed 11th July 2025.
[27] UNCITRAL Model Law on International Commercial Arbitration 1985 With Amendments as Adopted in 2006’ < https://www.acerislaw.com/wp-content/uploads/2020/12/2006-UNCITRAL-Model-Law-on-International-Commercial-Arbitration.pdf > accessed 11th July 2025.
[28] Kabab-jil SAL (Lebanon) v Kout Food Group (Kuwait) [2020] EWCA Civ 6.
[28] Kabab-jil SAL (Lebanon) v Kout Food Group (Kuwait) (CA Paris, 23 June 2020, no17/22943.
[30] Akin ‘Fourth (and Final)? Act in the Kabab-ji Saga – What Law Governs the Arbitration Agreement (Law of the Seat or Law of the Underlying Contract)? Akin Gump Strauss Hauer & Feld LLP 4th October 2022 < https://www.akingump.com/en/insights/alerts/fourth-and-final-act-in-the-kabab-ji-sagawhat-law-governs-the-arbitration-agreement-law-of-the-seat-or-law-of-the-underlying-contract > accessed 12th July 2025.
[31] The New York Convention Article V(1)(a).
[32] ICSID Convention Article 54.
[33] Convention pour le Règlement des Différends relatifs aux Investissements entre États et Ressortissants d'Autres États (French version of the ICSD).
[34] The Convention on the Organisation for Economic Co-operation and Development (OECD) < https://www.oecd.org/en/about/legal/text-of-the-convention-on-the-organisation-for-economic-co-operation-and-development.html > accessed 12th July 2025.
[35] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 125.
[36] Bill of Lading Electronic Registry Organisation (BOLERO) < https://www.bolero.net/company-overview/ > accessed 1st July 2025.
[37] Joshua P Meltzer 'The Impact of Artificial Intelligence on International Trade' December 2018 Centre for Technology Innovation at Brookings < https://www.hinrichfoundation.com/media/2bxltgzf/meltzerai-and-trade_final.pdf > accessed 12th July 2025.
[38] Mira Burri ‘Reconciling Trade and Culture: A Global Law Perspective’ (2011) Vol 41 The Journal of Arts, Management, Law and Society 1 < https://www.wti.org/media/filer_public/45/3d/453d419b-b86f-473b-b666-b33702825afa/jamls2.pdf > accessed 12th July 2025.
[39] Lord Irving ‘The Law: An Engine for Trade’ [2001] The British Academy 275, 276-280 < https://www.thebritishacademy.ac.uk/documents/2094/111p275.pdf > accessed 9th July 2025.
[40] Danae Kyriakopoulou, Georgina Kyriacou and Natalie Pearson ‘How Does Climate Change Impact on International Trade’12th June 2023 The London School of Economics and Political Science < https://www.lse.ac.uk/granthaminstitute/explainers/how-does-climate-change-impact-on-international-trade/ > accessed 12th July 2025.
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