THE CONTEXT FOR TRANSACTIONAL LEGAL HARMONIZATION
IN THE AMERICAS
A Background to the SLA/CIDA Project
* Nadia Bourély
II. Globalization & legal harmonization
A) ECONOMIC AND LEGAL INTEGRATION
C) MARKET DRIVEN HARMONIZATION
1) Emergence of a modern Lex Mercatoria
2) Standardization in International Business Law
D) INSTITUTIONAL HARMONIZING PROGRAMS
3) Hague Conference on Private International Law
4) European Union
III. The Americas: Characteristics and prospects
A) SIGNIFICANCE AND IMPACT OF THE FTAA NEGOTIATIONS
B) COEXISTENCE OF TWO MAJOR LEGAL SYSTEMS
C) ORGANIZATION OF AMERICAN STATES (OAS)
1) Evolution of the Inter-American codification process
2) Exploring new possibilities
thThe late 20 century has been characterized by an increased interdependence
between the nations of the world. Unprecedented trade liberalization at the multilateral,
regional and bilateral level accompanied by the exponential development of new information
technologies have changed the way sovereign states, businesses and citizens interact among
themselves and with one another. In the Americas, important developments have
supplemented those global transformations: our Hemisphere is now well embarked on the
road to democratic consolidation and a significant number of social indicators have
improved. Remarkable trade liberalization and a switch from protectionist to open market
economies have provided the basis for the growth of transnational business activity while
democratic values and institutions have been progressively strengthened. However, the
* Ms. Nadia Bourély is a Canadian lawyer who worked as a legal consultant and coordinator of
the SLA/CIDA Project at the Secretariat for Legal Affairs of the Organization of American States
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Americas are still facing great challenges such as social inequalities, economic instability,
poor standards of living and lack of enforcement of human rights.
It is now well recognized that processes of globalization alone will not resolve such problems, and that there is a need for improved international cooperation mechanisms and
development policies to effectively address those issues. Indeed, the last decade of free
market reforms implemented throughout Latin America and the Caribbean brought a certain
level of growth, but were not as successful in diminishing the gap between the rich and the
poor. The slow results on the social front and the recent collapse of the Argentinean
economy have caused many to wonder about the possibility that certain countries would
move toward a more protectionist economy, shifting away from the open liberal policies
enforced during the last ten years. We take the position that while economic growth provides
no instant solution to inequality, further social development does require economic growth.
Strengthened regionalism and further economic integration have been increasingly seen as
fundamental steps towards both economic growth and social development in our Hemisphere,
1and the positive link between trade policy and poverty alleviation has been established.
Need for Legal Reform
Efforts aiming to establish a free trade zone encompassing the Western Hemisphere, the so-called Free Trade Area of the Americas (FTAA), are currently underway. In addition
to this hemispheric economic integration process, the creation or strengthening of other sub-
regional trading arrangements (such as the North American Free Trade Agreement (NAFTA),
the Common Market of the Southern Cone (MERCOSUR), the Central American Common
Market (CACM), the Caribbean Common Market (CARICOM) and the Andean Nations 2Community (ANC) to name a few), will support trade expansion. The market access
provisions and rules of origin provisions contained in those agreements provide incentives
for transnational commercial activities. In addition to the traditional advantages of market
access and reduction of customs duties, those agreements now typically cover a much
broader scope of topics, such as services and intellectual property rights. While this
expanded coverage of areas that were previously within the exclusive competence of the
sovereign nation-state raises complex new issues, it also provides a level playing field,
assists countries in designing new legal and regulatory framework (and may also help certain
countries to lock-in reforms otherwise politically risky), as well as increasing investors’
As economic integration progresses at the macro-level, the establishment of a legal and regulatory environment where private transnational exchanges can take place becomes
paramount for developing countries to attract further investment as well as promote local
private sector development. Legal and judicial reforms, aimed both at the domestic judicial
institutions and at the law itself, are core issues to be addressed in order to support further
economic development in the Americas. For instance, it might be necessary to harmonize
1 See Hoekman B., Michalopoulos C., Schiff M. & Tarr D., Trade Policy Reform and Poverty
Alleviation, World Bank, Development Research Group, Policy Research Working Paper 2733, December 2001. 2 For a full description of the trade agreements in force within the Hemisphere, see generally the
OAS Trade Unit Foreign Trade Information System at the following address: <
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law for internal or regional consistency, and to update existing provisions and adopt new
legislation in order to modernize a certain legal regime or respond to new international
business trends such as e-commerce and the multiplication of cross border exchanges. Such
reforms should ultimately support economic growth by facilitating transnational business
transactions, and may encompass everything from writing, or revising commercial codes,
bankruptcy statutes and company laws, and updating the mandate of regulatory agencies.
This process also permits the abolishment of uncertain provisions, promotes transparency,
and improves competitiveness for domestic and international trade in addition to attracting
more investment since transaction costs are reduced.
As international trade within the region of the Americas is facing unprecedented growth, following extensive economic reforms, as well as a profound shift in trade policy
and extensive market liberalization, there is a need for legal reform adapted to the inter-
American context, particularly with the current regional economic integration efforts
underway in the Hemisphere (FTAA, NAFTA, MERCOSUR, CACM, CARICOM, etc.).
While economic integration cannot take place without a previous political process, both at
the national and international level, it cannot subsist without a solid legal framework.
Worldwide Legal Harmonization
At the same time, international legal instruments developed in multilateral institutions and applicable to certain cross-border transactions have become increasingly
important to the development of a substantive transnational law. We broadly use the term
"transnational law" as referring to "all kinds of principles and rules of non-national character
3used in international business practice as an alternative to domestic law".
Indeed, a supranational framework encompassing business customs and instruments such as the UNIDROIT Principles of International Commercial Contracts, and dealing with
international trade and private international commercial law is slowly emerging. This
international legal framework developed through different intergovernmental and business
organizations or legal research centers, (such as UNIDROIT, UNCITRAL, The Hague and
the International Chamber of Commerce) does reinforce the trend for seeking harmonized
solutions to multi-jurisdictional issues.
This "emerging pattern of harmonized international commercial law" will be strengthened in the future: transnational legislative and regulatory harmonization will be
further pursued as the possibility of benefiting from a single and predictable set of rules 4becomes more attractive. The rationale is that following a single set of rules, instead of
having to consider various state laws, is more efficient, reduces transaction costs and thus
facilitates the expansion of economic activities. For instance, one can note the remarkable
trend towards denationalization of private law in Europe as it results from the impact of
European Union (EU) legislation on national law. This supports the progressive
development within the EU of a body of harmonized transnational commercial law.
3 Bonnel, Michael J., "The UNIDROIT Principles and Transnational Law", Uniform Law Review,
vol 5, 2000-2, 199. 4 Rosett, Arthur, "UNIDROIT Principles and Harmonization of International Commercial Law:
Focus on Chapter 7", Uniform Law Review, vol. 2, 1997, 441.
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While recognizing that the economic integration scheme followed within the
Western Hemisphere is very different from that of the EU, both in terms of level and scope of integration and of geo-political purposes, the socio-economic development of the Americas is related to the dynamism of the private sector and the development of appropriate tools to benefit from the commercial prospects offered by international trade. Therefore, even though the Americas are not currently seeking a deeper level of economic integration than that of a hemispheric free trade zone (FTAA) and increased cooperation (Summit of the Americas, Organization of American States), a certain level of legal harmonization is still desirable in order to benefit from the advantages of free trade agreements (macro-level convergence), in addition to facilitating transnational activities, attracting further investment and contributing to the development of the local private sector.
Objectives of this Background Paper
Taking into consideration both the need for domestic legal reform in commercial
matters and the importance of promoting harmonized commercial solutions for the Americas, we briefly review the concept of legal harmonization as well as current worldwide and market-driven efforts to establish harmonized legal frameworks. We then provide an overview of some characteristics of the region of the Americas: the impact of the FTAA negotiations, the co-existence of civil and common law regimes, and the evolution of the inter-American codification process under the auspices of the Organization of American States (OAS). We conclude by affirming the interest of further exploring the opportunities offered by increased harmonization/standardization of certain transactions in areas such as corporate law, finance and energy, and advocating for the development of new inter-American “soft law” instruments that would encourage legal convergence.
II. Globalization & Legal Harmonization
A) Economic and Legal Integration
The globalization phenomenon that is currently reshaping our world and way of life
is a multifaceted concept. While it encompasses a wide range of human activities such as employment, technology, finance, business, politics, environment, culture and entertainment, it primarily refers to an economic process related to a world-wide integration of markets. Economic integration is basically the process of eliminating discrimination, through the mechanism of free trade, among the economies of a group a countries.
The effort was first initiated after World War II with the creation of the Bretton
Woods institutions and the General Agreement on Tariffs and Trade (GATT), which has fostered unprecedented trade liberalization at the global scale through eight rounds of multilateral trade negotiations. The end of the Cold War and the collapse of the communist system then contributed to the consolidation of the global economic regime. Indeed, the conclusion of the Uruguay Round represented an enormous step along in the path of worldwide trade liberalization and a consecration of multilateralism that materialized in the creation of the World Trade Organization (WTO) in 1995, the first post-Cold War global
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5institution. Liberal economic policies, international trade and new technologies of
communication have progressively converged towards the establishment of a multi-level
integrated world system.
Multilateral economic integration is regulated through the GATT-WTO framework
that constitutes the basic set of rules regulating the global trading order, its core principles
being non-discrimination, reciprocity and transparency. However, numerous states are also
members of regional trading agreements, i.e. geographically discriminatory arrangements
among a subset of countries, which in fact discriminate trade of non-members. A special
provision was made with GATT Article XXIV to allow for the existence of these agreements
inconsistent with the non-discrimination principle. Those regional trading agreements are
varied in structure, level of integration and significance, as are the motives for creating such
groupings. However, they have been multiplying and nearly all of the WTO’s members have
now concluded such arrangements with other countries. Most notably, the countries of the
Americas have been particularly active in establishing a multitude of bilateral and regional
6trade agreements amongst them.
A form of macro-level regulatory convergence among a subset of countries will
happen through the implementation of commitments undertaken through negotiations aiming
at the closure of a multilateral trade round or at the establishment of a regional free trade or
other preferential agreements. But as processes of economic integration go deeper among a
subset of countries, a certain degree of concrete “bottom-level” legal harmonization also becomes highly desirable or even necessary in order to benefit from the commercial
advantages spurred by such integration. Any integrated system requires a certain co-
ordination and legal uniformity at the domestic level in order to function effectively, and this
facilitates exchanges between private parties located in different jurisdictions and other
transnational business activities. In other words, a certain level of legal integration should
follow economic integration.
Harmonization processes are varied and can take many forms, at the domestic,
international, or multilateral level. For instance, such a process can be embodied in (a) the
revision of a national code (e.g. Mexico modernizing and harmonizing the Código
Comercial and related statutes, or the National Commissioners on Uniform State Laws and
the American Law Institute working on revisions of the Uniform Commercial Code (UCC)),
(b) the creation of an international code such as the Convention on the International Sales of Goods (CISG by UNICTRAL), (c) an international restatement such as the UNIDROIT
Principles of International Commercial Contracts, (d) the adoption of regional choice of law conventions such as the Rome Convention (1980 European Convention on the Law Applicable to Contractual Obligations) or the Mexico City Convention (1994 Inter-
American Convention on the Law Applicable to International Contracts), (e) the adoption of
5 See generally Trebilcock, Michael J. and Howse, Robert, The Regulation of International Trade,
2nd ed., 1999, Routledge, 612 p. See also the World Trade Organization's website at:
Inter-American Development Bank (INTAL/ITD/STA), Working Paper 6 (2001).
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uniform private rules such as the Uniform Customs and Practices on Documentary Credits 7(UCP),and (f) the universal adoption of arbitral regimes in commercial disputes.
The more radical form of legal integration is uniformization, which is the legal technique seeking to erase the differences between the national provisions by replacing them
with a unique and identical text for all the states involved in the legal integration process.
Two possibilities then follow: the text is submitted to national parliaments who may adopt it
as is, modify it or even reject it, or the adopted text contains the principle of supra-8nationality, by which the uniform norm is directly integrated into the domestic legal order.
Harmonization is a less radical technique than pure uniformization. It basically consists of modifying domestic provisions from various countries that are not similar in
order to make them all coherent, or update them with a reform. Therefore, while respecting
the particularities of various national legal regimes, harmonization permits to reduce their
differences in specific areas, or to promote increased legal cooperation between the 9countries. Generally, such a result is obtained through the directives or recommendations adopted by an international organization who then directs them to its member states for
implementation. Member states remain free to choose the form of adoption of the new
instruments, as long as the result is the incorporation of the new harmonized norm (of course,
provided that there is sufficient incentive to do so), thus leaving much more flexibility.
Since the advent of modern international trade, efforts towards the international unification of law have essentially taken the form of binding instruments, such as
supranational legislation or binding international conventions. However, despite some
successes, the majority of bilateral or multilateral treaties of unification or harmonization
have generally not been very effective, as demonstrated by their subsequent limited use. It
seems that the development of a truly successful harmonized solution does not fit with the
rigidity of the traditional treaty-making process, where unification cannot go beyond the
terms of the treaty and amendments are difficult to adopt. But calls have been increasingly
made for recourse to non-legislative or non-binding means of unification or harmonization
of law, for example, through model laws or model clauses and contracts formulated on the
basis of current trade practices, or even through international restatement of general
principles of some particular legal domain, such as the UNIDROIT Principles of
International Commercial Contracts for contract law, which have been very successful.
As levels of integration deepen, increased legal convergence would become useful for the Americas, specifically through processes of informal harmonization. Informal
harmonization may consists merely in a new awareness among the participants to a new
initiative, but generally refers to the development of new soft law, i.e. non-binding
instruments such as model laws, codes of conduct, guiding principles, etc., which presents
the advantage of flexibility.
7 See Rosset, Arthur, "UNIDROIT Principles and Harmonization of International Commercial Law:
Focus on Chapter 7", Uniform Law Review, vol. 2, 1997, 441. 8 See Issa-Sayeh, Joseph, "Quelques aspects techniques de l'intégration juridique: l'exemple des
actes uniformes de l'OHADA", Uniform Law Review, vol. 4, 1999, 5. 9 Ibid.
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C) Market Driven Harmonization
1) Emergence of a Modern Lex Mercatoria
Between the ninth and sixteenth century, a transnational uniform body of customary
mercantile law was formed in medieval Europe. This lex mercatoria constituted a legal
system with codified principles that would be applied in commercial disputes by merchants
courts throughout Europe. More recently, the possibility of having binding transnational
norms not embodied into contracts, statutes or conventions, but that would be applicable to
an international contract, became reality again with the resurgence of a "modern" lex
mercatoria. Indeed, some instruments have recently brought significant developments in the
area of international transactions, and a form of modern lex mercatoria based upon common
principles, rules and standards of international commercial law reconciling civil and 10common law traditions has progressively emerged.
As mentioned before, this resurgence of non-domestic transnational law is explained
by a multifaceted phenomenon which "lies in the changing structures of commercial markets
and business practice as increased trade and rapid communication have created large
regional and global markets. Change in commercial law is inevitable because it is driven by
powerful economic forces visible throughout the world. New legal regimes are a response to
the changes in transactions and relationships that mark the new economic and social 11situation".
For instance, the 1994 UNIDROIT Principles of International Commercial Contracts (UPICC) established the fundamental concepts and modern transnational rules
applicable to international commercial contracts. The UPICC basically represents a synthesis
of the law of international trade, and were drafted by experts from civil law, common law,
and even “socialist” legal systems. It is a “mixed” instrument seeking to establish a modern
compromise and to offer solutions for international parties located not only in different
jurisdictions, but also within different legal systems. Another international instrument that
can be viewed as providing a basis to the claims of a modern lex mercatoria is the
UNICTRAL 1980 Convention on the International Sale of Goods, often referred to as the
Vienna Convention or CISG, which brought a certain level of uniformization of the
substantive law relating to the international sale of goods.
Other international instruments have had tremendous impact and are now widely
used throughout the global market. Some of the most famous examples were published by
the International Chamber of Commerce (ICC) and include the 1993 Uniform Customs and
Practice for Documentary Credits (UCP 500), which established modern banking practices
now implicitly incorporated into the various documentary credit contracts, and the 2000
INCOTERMS, a transnational set of conditions on price and delivery applied uniformly in
international sale of goods contracts. The ICC proclaims that it possesses unrivalled
authority in making voluntary rules that govern the conduct of business across borders, and
10 See Tetley, Q.C., William, "Mixed Jurisdictions: Common Law vs Civil Law (codified and
uncodified)", Part II, Uniform Law Review, vol. 4, 1999, 877. 11 Rosset, Arthur, "UNIDROIT Principles and Harmonization of International Commercial Law:
Focus on Chapter 7", Uniform Law Review, vol. 2, 1997, 441.
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also provides for the ICC International Court of Arbitration, the world's leading arbitral
institution. The area of international commercial arbitration is also remarkable, with an
increasing number of arbitral awards rendered each year, and a great number of jurisdictions
that have adopted national legislation based on the 1985 UNCITRAL Model Law on
International Commercial Arbitration, which followed the 1958 United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Awards. The ultimate result is that
a body of world law on the procedure and regulation of commercial arbitration is
progressively being developed.
This emergence of transnational law, at the outset perceived as non-binding soft law, is therefore now reinforced as its norms are recognized as mandatory when the parties have
accepted it or are participating in an activity governed by it. Substantive norms become
applicable through the form of the above-mentioned international instruments or through
custom, practice, usage and principles, and basically aim to establish a fair and equitable
“best practice” standard. Therefore, while the whole concept of a modern lex mercatoria
remains disputable, some supranational norms which often reconcile differences between
distinct legal traditions are undoubtedly gaining in importance. Basically, as economic
activities become increasingly global, there is a strong incentive for the law to do the same.
The appeal of transnational legal solutions lies in the potential reduction in complexity, more
widely dispersed expertise, and resulting increased transaction efficiency.
Supranational and transnational legal norms and rules related to international trade and commerce will gain in importance in the future, provided that they promote flexibility,
best practice standard as well as bringing together common law and civil law principles.
The authority of those instruments also tends to get more widely acknowledged when they
deal with specialized fields of law and when they incorporate both practical and academic
2) Standardization in International Business Law
In a strict definition, business law generally refers to commercial law. However, if taken in a broader context, business law includes many other areas relating to the regulations
applicable to all economic activities (production, distribution, consumption), such as its legal
framework (antitrust and competition, credit), its actors (businessman, companies, agents)
and the corresponding goods and services. Therefore, under the general term business law
could be included legal areas such as commercial law, law of sales, company laws, labor law,
competition law, securities, bankruptcy law, debt collection, enforcement law, accounting,
arbitration, etc., in short, all the legislation relating to the economic environment.
International business transactions are complex operations that involve identifying and coordinating many issues such as the corporate, antitrust/competition, tax, and
regulatory requirements in different countries and multinational jurisdictions. A broad range
of legal sub-topics can arise in the course of closing such a transaction. For instance, the
determination of the structure of the proposed investment (asset vs. share investment, setting
up branches or foreign subsidiary, franchising or joint venturing, mergers and acquisitions,
international project financing and cross-border lending), the selection of international
representation (international agency and distributorship law), taking into account foreign
domestic considerations such as securities regulations, protection of intellectual property
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rights, regulations applicable to consumer contracts, international technology transfers, etc.
Other concerns relate to choosing the applicable law and jurisdiction, and international
Basically, issues arising can be grouped into three different sections: transactional
issues, litigation issues, and regulatory issues. Transactional issues to take into account will include, for instance, those related to agency and distributorship law, sale of goods and
services and letters of credit, international contract problems, regulation of international
trade including customs law, cross-border mergers and acquisitions, project financing and
structure of the foreign investment. Litigation matters will arise in connection to choice of
law and forum issues, force majeure events or expropriatory conduct, foreign domestic rules
of procedure and evidence, enforcement of judgements, sovereign immunity and
international commercial arbitration. Regulatory issues facing international business are also
very important since they relate to the wide scope of regulations in connection with trade
transactions and financing (bank, securities, etc.), tax regimes, bankruptcy and competition
or antitrust law in an international economy.
International instruments seeking to harmonize some of the aspects of cross-border
transaction issues may then cover a wide range of topics, establishing new substantive and/or
procedural norms for international transactional, litigation or regulatory issues.
D) Institutional Harmonizing Programs
Many issues arise with respect to the preparation and implementation of harmonizing legal instruments: the substantive scope of harmonization, the technical
procedure, its formulation, the scope of application of the international instrument in the
12domestic legislative order and its monitoring.
The substantive scope of the area to be harmonized is determined not only by the
choice of the international organization. The choice will also be affected by the mandate of the organization promoting the harmonization, by the fact that other international
organizations are working on similar issues (importance of avoiding duplication) and by the technical constraints that are part of the domestic legal order (public policy exception,
domestic procedural issues). On the technical front, the procedures used to elaborate and
create a new instrument vary widely and depend on the institutional structure of the
organization. Generally, and to simplify the process, the permanent secretary or a committee of experts or working group mandated by the decision-making body will present a draft or
submit recommendations, member states then present their comments and proposed
modifications after internal consultations, and the decision-making body adopts the final
draft. Issues to take into consideration in the formulation of the instruments are the official working languages of the organization and the style and wording that will be used.
Determining the scope of application of the new instrument is often problematic and
again varies according to the type of organization and its mandate. For instance, are member states automatically bound by the instrument once it is adopted by the organization or must
12 See generally Issa-Sayeh, Joseph, "Quelques aspects techniques de l'intégration juridique: l'exemple des actes uniformes de l'OHADA", Uniform Law Review, vol. 4, 1999, 5.
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they first sign and ratify it? When are the provisions of the international instrument
considered in force and enforceable in domestic law? Another issue is the application of the
instrument. Is there a supranational tribunal charged with overseeing the uniformity of
application or the conformity of the national provisions implementing the instrument? Is
there a consultative body charged with giving recommendations regarding the application of
the instrument? Are the member states bound by those recommendations?
This merely serves to outline some of the main issues that must be answered to determine the substance, scope and concrete applicability of a new legal instrument designed
to harmonize different provisions. We briefly review some of those processes of legal
harmonization leading to the unification of legal practice through regulation or otherwise,
including international conventions on private law, model laws and regional instruments.
13The United Nations Commission on International Trade Law (UNCITRAL) was
established by the General Assembly in 1966 with the mandate to further the progressive
harmonization and unification of the law of international trade. The Commission is
composed of thirty-six member States elected by the General Assembly for terms of six
years. The current UNCITRAL members from the Americas are Argentina, Brazil,
Colombia, Honduras, Mexico, Paraguay, United States of America, and Uruguay. The
Secretariat of UNCITRAL is the International Trade Law Branch of the United Nations
Office of Legal Affairs located in Vienna. The Commission has established three working
groups to perform the substantive preparatory work on topics within the Commission's
program of work and carries out its work at annual sessions
UNCITRAL has been particularly active in the following areas: international sale of goods, international transport of goods, international commercial arbitration and conciliation,
international payment, cross-border insolvency, construction and more recently e-commerce
and procurement. Among the most recognized UNCITRAL instruments in these areas are
? The United Nations Convention on Contracts for the International Sale of Goods
(Vienna, 1980). This Convention establishes a comprehensive code of legal rules
governing the formation of contracts for the international sale of goods, the
obligations of the buyer and seller, remedies for breach of contract and other aspects
of the contract. The Convention entered into force on 1 January 1988. ? The United Nations Convention on the Carriage of Goods by Sea, 1978 (the
"Hamburg Rules"). This Convention establishes a uniform legal regime governing
the rights and obligations of shippers, carriers and consignees under a contract of
carriage of goods by sea, and was prepared at the request of developing countries
and entered into force on 1 November 1992.
? The UNCITRAL Arbitration Rules. Adopted in 1976, the UNCITRAL Arbitration
Rules provide a comprehensive set of procedural rules upon which parties may agree
for the conduct of arbitral proceedings arising out of their commercial relationship.
13 See generally UNCITRAL's website at:
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