International Commercial Agreements Research Articles

Structure and principles of international commercial contracts

The presented article describes in detail the main conditions, content, obligations of the seller and the buyer, according to the concluded international commercial contracts. International commercial agreements mediate the international business activities of the parties and differ from similar internal transactions, as well as transactions that, although complicated by a foreign element, are concluded with the participation of the consumer. The first stage refers to the period of the emergence of medieval law as a law merchant, representing a set of international trade customs that regulated the political community of merchants who traveled from port to port and from fair to fair. The second stage was marked by the emergence of national legal systems under the influence of the understanding of law as a national phenomenon and the approval of the idea of national sovereignty. The modern third stage, was marked by a movement from national isolation to universal unification, which allowed, on the basis of multilateral negotiations, to develop and adopt uniform legal norms.

Concept, Forms and Types of International Commercial Agreements

Concept, Forms and Types of International Commercial Agreements

LONDRA’DA DENİZ TİCARETİ TAHKİMİNE İLİŞKİN GENEL BİR DEĞERLENDİRME

Due to some reasons such as the need for secrecy, the protection of reputation, the fact that the disputes are resolved quickly and by experts in the field, arbitration has become the most popular method to be used in maritime disputes across the world. In practice, it seems that in many international commercial agreements, the arbitration venue is provided as London, and the law to be applied to the arbitration is English law. Within this scope, around the world, rather than arbitration institutions like ICC, especially LMAA with its ad hoc arbitration process is considered to be the most applied association. Consisting of many expert arbitrators in maritime disputes, LMAA has updated its arbitration rules of three sets along with its independent rules-FALCA Rules. Moreover, before the arbitration process begins, it is possible for parties to a dispute to sign an agreement voluntarily with an evaluator in order to obtain an early neutral evaluation. As being a form of an alternative dispute resolution method, in this process, parties apply to the evaluator for his objective and realistic opinion. However, in case that the dispute cannot be solved at any stage until arbitration, in this study, the LMAA Terms to be applied and the procedure regulated in these Terms should be examined and some matters regarding arbitral tribunals and legal remedies against tribunal awards should be discussed.

Efficiency of Rules of Law in Regulation of Property Relations in International Commercial Turnover

The article examines the essence and criteria for the effectiveness of the mechanism of legal regulation, the effectiveness of rules of law in international commercial agreements, given the distinction between the concept of «rule of law» as a mandatory rule of conduct adopted and protected by the state, and as a category covering not only certain national legal system, but also various legal regulators of non-national and non-state, international origin. It is established that ensuring the effectiveness of the rule of law is based on the need to achieve social, political, economic and other goals of its adoption, and is guaranteed by the construction of substantively and formally consistent, holistic within the relevant institution or branch of law and logically constructed legal prescription. It is proved that the complexity and variety of sources of legal regulation of international commercial agreements, the choice of the applicable law to which is based in general, indicates the inexpediency of limiting of the understanding of the construct of «rule of law» as exclusively sanctioned and enshrined by the state. In this regard, the thesis is put forward that in law-making activity it is necessary to construct provisions of new legislation on normative-legal acts and rule-making activity with awareness of needs and realities of international business, both Ukrainian and domestically located. Two ways to achieve this goal have been proposed: either by adjusting the proposed definitions of the rule of law or by establishing the scope of meaningful dissemination of the provisions of the future law on law-making activities exclusively within national borders and in relation to the Ukrainian legal system. Also, from the point of view of the effectiveness of legal regulation of international commercial agreements, it is justified that in this regard a broader and more modern understanding of legal norms, giving the parties a guaranteed opportunity to refer to general principles of law, trade customs, lex mercatoria, unified international instruments (for example, the UNIDROIT Principles, INCOTERMS), etc. should be implemented.

Reflecting on the Role and Impact of the Constitutional Value of uBuntu on the Concept of Contractual Freedom and Autonomy in South Africa

Private parties have the freedom and autonomy to enter into a contract. This autonomy is deeply rooted in their dignity and personal liberties. Private individuals, in furtherance of their autonomy and freedom to enter into a contract, have certain reasonable expectations, most fundamental of which is the desire that maximum respect is given to their legitimately concluded agreement. The concept of contractual freedom and autonomy connotes the idea that private individuals (natural and juristic) have the liberty to arrange their affairs in a manner that meets their economic interest without governmental inhibition, control and/or interference. However, the operative scope and the practical manifestations of the concept of contractual freedom are circumscribed in the constitutional, statutory, legislative and other socio-cultural orders of States. This article seeks to reflect on the role and influence of the constitutional value of ubuntu on the principle of contractual freedom and autonomy, and the naturally accompanying concepts of pacta sunt servanda and sanctity of contract in South Africa. The article provides an analysis of the judicial interpretation and views on the concept of contractual freedom and autonomy relative to other competing values that underlie the Constitution of the Republic of South Africa. Furthermore, the article appraises the impact of those judicial views on international commercial agreements. The article also discusses the extent to which communitarian values such as the concept of ubuntu have been infused into South African contract law and further reflects on the implication of infusing such communitarian values in both domestic and international contracts. The article concludes with a suggestion that the introduction of traditional African values in South African contract law fundamentally alters the theoretical foundations of the principle of contractual freedom and autonomy in both domestic and international contracts.

La crisis de la Organización Mundial del Comercio: problemas e (im) posibles soluciones

La Organización Mundial del Comercio atraviesa, en la actualidad, por una doble crisis que manifiesta su imposibilidad de cumplir con las funciones que le fueron asignadas por su propio tratado constitutivo. En primer lugar, el funcionamiento de dicha organización se caracteriza por un bloqueo institucional que le impide administrar eficazmente los acuerdos comerciales internacionales, concluidos bajo sus auspicios. En segundo lugar, la Organización Mundial del Comercio ha fracasado en su capacidad de servir de foro para las negociaciones comerciales multilaterales. Las causas de esta doble crisis son complejas y las posibles soluciones a la misma no son suficientes para que la organización pueda salir del impasse en el que se encuentra.

«Soft law» in the system of regulation of corporate relations

In modern terms, «soft law» is turning into an effective tool for regulating corporate and, in general, economic relations at the national level. International corporate governance standards serve as a benchmark for the development of corporate law in all countries of the world. The subject of «lawmaking» in this case is not a state, but an international organization that formulates and adopts recommendation acts.The problem of «soft law» in modern legal science is very popular; it is devoted to a considerable number of works of foreign and domestic scientists, in particular, G. M. Velyminov, T. M. Neshataeva, J. B. Fogelson, T. Matveeva and others. For the first time in the post-Soviet space the problem of «soft» corporate law was raised by S. O. Chekhovskaja in 2012.The purpose of the article is to define the role of «soft law» in the system of regulation of corporate relations.There are three basic approaches to understanding «soft law» in the legal science:1) «soft law» is reduced to recommendatory acts of international intergovernmental organizations;2) «soft law» covers both documents of international intergovernmental organizations, as well as non-governmental organizations, in particular, Principles of international commercial agreements of UNIDROIT, ICC acts, etc .;3) the most widespread approach, in which «soft law» is considered instruments of non-state regulation, both international and national.The greatest influence of soft law acts has been such a part of corporate relations as corporate governance relations. The «soft law» acts in the field of corporate governance include: The G20 / Organization for Economic Cooperation and Development (OECD) Principles of Corporate Governance 2015, Declaration on International Investments and Multinational Enterprises 1976 and the OECD Guidelines for Multinational Enterprises 2011 as a component of the latter.The «soft» standards of corporate governance, which are legally non-binding in nature, due to the authority of the organization they have developed, are used by the states to reform corporate law. The paper proposes to distinguish between «soft law» acts and normative legal acts of recommendation nature, such as those approved by the decisions of the National Securities and Stock Market Commission dated July 24, 2014 No. 955 Principles of Corporate Governance.Soft law recommendations of international organizations, and OECD, in particular, have an impact both on the member states of the organization and on all other states and their private entities. Attention is drawn to the practice of voluntarily taking States' international obligations to comply with soft law. So, Ukraine is in accordance with Clause «c» of Part 1 of Art. 387 of the Association Agreement with the EU has committed itself to further developing corporate governance policies in line with international standards, namely the OECD Principles.Voluntary compliance with international corporate governance standards of corporations interested in good business reputation and increasing its competitiveness leads to the formation of corporate business practices in corporate relations.Today «soft law» defines the vector of development of corporate relations at the national level, and also serves as a tool for harmonization of national laws of different countries of the world. Soft law regulates corporate relations indirectly - through the influence on the development of national legislation, as well as directly - through the voluntary introduction by corporations of international standards in local regulations statutes, regulations, principles (codes) of corporate governance, as well as the formation of international commercial usages.

An Empirical Study of Dispute Resolution Clauses in International Supply Contracts

International transactions present unique legal risks. When a contract touches several different nations, a party may not know where it will be called upon to defend a lawsuit or, alternatively, which nation’s law will be applied to resolve that dispute. To mitigate these risks, parties will often write dispute resolution provisions into their contracts. Arbitration clauses and forum selection clauses help to reduce uncertainty relating to forum. Choice-of-law clauses help to reduce uncertainty as to governing law. Over the past few decades, such provisions have become commonplace in international contracting. And yet there exist vanishingly few empirical studies exploring the use of these provisions in international commercial agreements. This Article aspires to help fill this gap. Drawing upon a hand-collected dataset of 157 international supply agreements, it describes the ways in which large corporations seek to mitigate their risk in international transactions via dispute resolution clauses. The Article first provides a thick descriptive account of choice-of-law clauses in these agreements to illustrate the myriad ways these clauses do (and do not) mitigate legal risk. It then undertakes the same project with respect to arbitration clauses and forum selection clauses, paying careful attention to the ways in which actual practice deviates from the model forms promulgated by arbitration groups, to show how these clauses mitigate forum risk. While the primary object of the Article is descriptive rather than normative — it seeks to describe the contents of agreements that have heretofore been largely ignored by legal scholars — it also discusses the normative implications of its descriptive account for three groups. First, legal scholars may draw upon this account to better understand how contract boilerplate evolves and changes over time. Second, judges called upon to interpret a contract may utilize this account to determine whether a phrase is typically included in clauses of a given type. Third, and finally, contract drafters may glean useful insights into how to craft dispute resolution provisions that maximize the reduction in uncertainty in international contracting.

The Law relating to syndicated loan agreements and its application in commercial practice

The Law relating to syndicated loan agreements and its application in commercial practice

BRASIL Y CHILE: DIVERSAS ESTRATEGIAS DE INTEGRACIÓN COMERCIAL, DIFERENTES LEYES Y POLÍTICAS DE PROPIEDAD INDUSTRIAL

<p>En la actualidad, hay una doble tendencia en materia de propiedad intelectual. Por una parte, un giro desde una lógica del derecho a una comercial, en la medida en que los acuerdos internacionales de propiedad intelectual se firman como “anexos” de acuerdos y tratados internacionales, y no como acuerdos legales autónomos. Por otra parte, una tendencia a la homogeneización de las leyes de propiedad intelectual orientadas a una mayor rigurosidad en plazos de protección y sanciones legales, sin tomar en cuenta las diferencias de países con estructuras productivas diversas, y sin evaluar el impacto de la propiedad intelectual en procesos de desarrollo. A partir de la observación de los casos de Brasil y Chile (acuerdos comerciales internacionales, leyes y políticas de propiedad industrial), se ofrece un contraste a estas tendencias, partiendo del supuesto de que diferentes estrategias internacionales de integración generan marcos legales y políticas públicas de propiedad industrial significativamente diferentes. A partir de la comparación, se concluye que poseer mayor autonomía internacional permite generar leyes y políticas de la propiedad intelectual que se convierten en un instrumento para el desarrollo.</p>

Regime type and international commercial agreements

AbstractPreferential trade agreements and bilateral investment treaties limit member‐states’ policy discretion; consequently policy uncertainty is mitigated. Reductions in policy uncertainty stemming from accession to an international agreement improve the resource allocation decisions of voters and reduce deadweight losses from the need to self‐insure against policy uncertainty. If electoral accountability makes expropriation of assets or discriminatory treatment of firms more costly to leaders (whereas electoral accountability has little effect on rent creation via tariff revenues) then among developing countries, democratic states sign preferential trade agreements relatively more frequently than autocratic states; however, autocratic states are more likely to sign bilateral investment treaties than are democratic states. We offer a simple model, and present some empirical regularities consistent with the theory.

Litigation or Arbitration? Forum Selection and Arbitration Clauses and the Prospects for Adjudicating International Human Rights Claims in Canada

Forum selection and arbitration clauses are a mainstay of international commercial agreements. Contracting parties often negotiate and insert a clause specifying either the chosen forum for adjudicating any disputes arising from the contractual relationship, or agreeing to arbitrate the dispute. This paper will briefly explore the implications of promoting a social contract model for advancing and adjudicating international human rights claims in Canada from the perspective of the differing judicial approaches to the enforceability of forum selection and arbitration clauses.

Drafting Arbitration Clauses in International Agreements - a Guide for European Lawyers

Increasingly, in Europe, the parties to international commercial agreements are specifying arbitration as the primary means of dispute resolution. The main reason for that it seems, is the perception that the high costs involved in the traditional national court dispute resolution processes, can be avoided where arbitration is chosen as the means of resolving disputes under the agreement. Secondly, it is felt that the matter can be decided informally and quickly by experts as opposed to a judge in a national court who may, or may not be an expert in the field of the issues concerned. Whilst there are some merits in this kind of thinking, it is becoming increasingly apparent to parties to such agreements, especially in the new European Union states where alternative dispute resolution methods have not been widely practiced in the past, that careful and skillful drafting of the arbitration clause are crucial to the avoidance of some serious problems concerning its effectiveness.In that regard, this paper intends to provide a background summary and a checklist for drafters to assist them in the construction of the desirable and effective contents of arbitration clauses in agreements that primarily concern international commerce.

A Murābaha Transaction in An English Court - The London High Court of 13th February 2002 in Islamic Investment Company of the Gulf (Bahamas) Ltd. V. Symphony Gems N.V. & Ors.

AbstractIslamic finance is based on the application of Sharī'a rules to modern financing transactions. The Islamic finance industry has grown considerably over the last two decades and Islamic financing transactions today often have a global reach. As a consequence, traditional Islamic contractual structures are reformulated in the language of international commercial agreements and Sharī'a a based transactions are adjudicated in non-Islamic jurisdictions. In examining a recent case of the London High Court dealing with an Islamic murābaha agreement this essay investigates the complex interaction between and among Islamic contractual structures, English style contractual drafting and principles of international commercial law.

Impacts of international trade, services and investment treaties on alcohol regulation.

There is an underlying incompatibility between government efforts to minimize the harm associated with alcohol, particularly by regulating its supply, and international commercial treaties that promote the freer flow of goods, services and investment. These treaties have already forced changes to many government measures affecting alcohol availability and control, primarily by constraining the activities of government alcohol monopolies and by altering taxation regimes. The North American Free Trade Agreement and the World Trade Organization agreements open new avenues for challenges against alcohol control measures. Some of these agreements extend beyond trade, border measures and differential taxation and allow challenges that intrude into areas of non-discriminatory domestic regulation affecting market access, intellectual property, investment and services. Effective protection from these agreements for vital public health measures has rarely been obtained, although it is increasingly essential. The WTO "services" agreement, basically unknown to the public, is currently being re-negotiated and poses the gravest new challenge to policies designed to influence patterns of alcohol use and minimize alcohol-related harm. In future, these international agreements will probably affect adversely those alcohol approaches considered to be the most effective or promising. These include: maintaining effective state monopolies, restricting the number and locations of retail outlets, taxing and regulating beverages according to alcohol strength, restricting commercial advertising, and maintaining and enhancing public alcohol education and treatment programs. These effects can, in turn, be expected to increase the availability and access to alcohol, to lower alcohol taxes, and to increase advertising and promotion, resulting in increased alcohol consumption and associated health problems. Until more balanced international rules are developed, the challenge facing alcohol policy researchers is to defend national and local alcohol measures from further erosion. This will require greater coordination with researchers in other affected sectors, intervention with government representatives in health and related areas and the promotion of alternative approaches to current international commercial agreements.

International Commercial Agreements, A primer on Drafting, Negotiating AND Resolving Disputes. Edited by William F. Fox, Jr.

International Commercial Agreements, A primer on Drafting, Negotiating AND Resolving Disputes. Edited by William F. Fox, Jr.

International Commercial Agreements. A Functional Primer on Drafting, Negotiating and Resolving Disputes. By William F. FoxJr . Deventer, The Netherlands: Kluwer Law and Taxation Publishers, 1988. Pp. xiii, 394. Dfl. 150.-; UK £ 45.-; US $75.- (excl. VAT). (softcover).

International Commercial Agreements. A Functional Primer on Drafting, Negotiating and Resolving Disputes. By William F. FoxJr . Deventer, The Netherlands: Kluwer Law and Taxation Publishers, 1988. Pp. xiii, 394. Dfl. 150.-; UK <i>£</i> 45.-; US $75.- (excl. VAT). (softcover).

East European Rules on the Validity of International Commercial Agreements

East European Rules on the Validity of International Commercial Agreements