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Summary Final Commercial Law 24
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Week 1 General Principles, Themes and Key Issues oftransnational commercial law
Materials
● Readings
○ Chapter 1
PP Notes
Class Notes
● Introduction
○ Body of transnational commercial law & its development over time:
■ What is commercial law, how has it developed over time, and the what is the
body of law governing commercial transactions?
○ The sale and receipt of goods and related governing conventions:
■ What are the main conflicts of interest between buyer and seller in the
international sale of goods?
■ How are they resolved, and what are the main conformity requirements for
documents required to support these agreements?
○ Financing mechanisms in international trade agreements:
■ What are the main payment mechanisms and conventions which are used in
international commercial agreements?
■ What are the insolvency rules which are applied when high valued assets are
purchased?
● Intro to commercial law
○ As an introduction, what do you need to know about (transnational) commercial law
generally?
■ 1. Nature of commercial law
■ 2. The historical development of transnational commercial law
■ 3. Sources of (transnational) commercial law
● Agenda
○ Part 1: An introduction to transnational commercial law
■ Drivers, nature, characteristics and development of commercial law
■ The Law of the Merchants "Midevial Law" and its charcteristics & limitations
○ Part II: Main sources of transnational commercial law
■ Contract Law
, ■ Customs & Usages
■ General principles of Law
■ National legislation, case & conventions
■ Harmonization of transnational commercial law
■ General knowledge exercises
○ Conclusion
● Nature of commercial law
○ Commercial law:
■ Body of law that governs commercial transactions.
■ What are commercial transactions?
■ "Arrangements and agreements between professionals for the provision
and acquisition of goods, services, and facilities in the way of trade"
(Roy Goode).
■ What drives commercial law?
○ "Commercial law can be defined as the special rules which apply to contracts for the sale
of goods, and such contracts that are ancillary to contracts for the carriage and insurance
of goods, and contracts for which the main purpose to finance the carrying out of
contracts of sale"
■ (H.C.Gutteridge).
○ Other examples:
■ Sale and receipt of goods (Carriage & insurance of goods)
■ equipment leasing
■ Receivables financing
■ financing of international mobile equipment
● Characteristics of Commercial transactions
○ Focus on
■ Transactions
■ Dealings between merchants
■ Centered upon contracts and use of market
■ Large mass of transactions
○ Excluded from a commercial code
■ Law governing institutional structures
■ Consumer law
■ Legal obligations from non-contractual source
■ Occasional transactions
● Lex mercatoria
○ law of merchants 10-13th century to address commercial matters directlky related to
merhcnats
■ it was derived from eurpean origin and resonated in broader trade contexts
■ it was enforced by merchants courts which were established by merchant
communities these courts adjudicated disputes absed on the prevalent customs
and pricniples of the law of merchants
■ It was predominantly customary, with rules often unwritten, making it adaptable.
, ■ The law was neutral, was not subject to the laws of a specific nation, and disputes
were often resolved through arbitration, ensuring fairness and impartiality.
● Characteristics of medieval law of merchant
○ Qualities
■ Objectivity
■ From usage to defined customary law
■ Universality
■ Transnational in nature
■ Reciprocity of rights
■ Procedural and substantive fairness in exchange
■ Participatory adjudications
■ Merchants select judges
■ Coherence and integrated body of rules
■ Organic growth of commercial instruments and institutions
● Urbanization
○ Led to the growth of the merchant class
○ Creation of merchant and consular courts
● Increased international trades
○ Opened trade routes between the East and the West
○ Merchants in search of new markets
● Need for new commercial instruments to attract and boost international trade
● Formation and international recognition of trade practices
● Nationalization or commer.
●
○ Central courts had a desire to expand jurisdiction.
○ The international character of lex mercatoria was eroded in England
○ Rise of modern nation state and elaboration of law codes
○ Increase of national laws governing international trade (thus declining role of law of
merchant)
○ Consequences: Narrowing of legal education, separate national laws etc.
○ Growth of conflict-of-laws rules to determine cases with foreign elements
○ By the end of the 18th century CL, had lost much of its international character.
, Week 2 International sales and the CISG 1
Materials
● Readings
○ Chapter 8
Class Notes
● Formation of the CISG
○ first 2 hague convention as a eurpean model low ratification due to lack of inclusion
■ didnt secure participation of developing nations
■ low impact due to non participation of many countries
■ opt in application
● Application
○ definition of international in regards to the applications
■ under the basis of contracting state or lead there by private international law
● Contract of sale
○ Article 2 and 3 deal with exclusion but not a definition
○ use of quantitative rather than qualitative basis to define if it falls under the scope of the
CISG
● International requirement
○ article 1 looks at the place of business
○ international sales law giving to uniformity and reliance
● Connecting factor
○ under article 1
○ 1.contract of both contracting states
■ Clearly laid out in Article 1(1)(a) - Convention applies to two different
contracting States
■ Initially Article 1(1)(b)was predominant
■ But Article 1(1)(a) is now predominant due to number of party States
○ 2. Rules of private international lead to law of contracting state
■ Extend application to situation one Contracting State and the other not
■ If PIL —> forum state being non-contracting —> domestic law
■ If PIL —> forum state being a contracting State - CISG
■ The result: diminishing the domestic law of a Contracting State in favor of the
CISG
● Article 95 Reservation
○ no obligation to apply the CISG
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