《国际法之商事合同》ppt课件

1、Chapter 2,Commercial Contracts,Law of contract (revision + additional points) Drafting / reading of contracts (sample contract) International commercial contracts,2,Drafting / Reading of Contracts (Sample Contract),Drafting of Contracts (1),General rule: most contracts are valid in any form (no written contract required) Advice for (commercial) contracts: Draft a written contract as complete and precise as possible! Reasons: proof of terms avoidance of legal disputes (risk to lose, expensive, ti

2、me consuming, detrimental to reputation),4,Drafting of Contracts (2),Essential points: use of term contract“ correct name of parties definition of all important terms determination of rights and duties use of plain language date + signature of all parties Typical sources of mistakes in international contracts: different date formates (e.g. 03/04/2008 = 3 April or 4 March 2008) different currencies (e.g. exchange rates, $ = USD or AUD) different units of measurement (e.g. ton = metric ton (1000 k

3、g) or short ton (907 kg) or long ton (1016 kg) imprecise translation,5,Drafting of Contracts (3),Typical structure of an international commercial contract (see sample contract): heading (type of contract) name + address of parties actual clauses description of goods to be delivered or services to be provided (incl. quality, quantity, time etc.) fixation of price and details of payment other duties and rights of the parties (e.g. warranty, payment of tax/duty) limitation of liability remedies in

4、case of breach of duties ,6,Drafting of Contracts (4),Typical structure of an international commercial contract: confidentiality clause duration / termination of contract force majeure clause (excuse of non-fulfilment in case of natural disasters, war etc.) clause on governing law + arbitration miscellaneous date + signature of parties supplements containing definitions, timetables etc.,7,International Commercial Contracts,Contract Law and Global Business (1),Problem: Contract law (like most oth

5、er fields of private law) is mainly national law This does not satisfy the needs of global business: contracts can touch different national laws determination of applicable law and enforcement of rights difficult having expertise in law of numerous jurisdictions is expensive same legal term can have different meanings in different jurisdictions language / translation issues,9,Contract Law and Global Business (2),Possible solutions: application of one national private law to be determined by conf

6、lict of laws principles (see 1st IL II session) harmonisation or unification of national laws (e.g. EU, WTO TRIPs agreement) creation of universal laws / sets of rules applicable regardless of national borders (todays topic) arbitration (see session on international arbitration),10,Universal Rules on Contracts,There are numerous sets of universal rules on contracts, covering different aspects of international commerce and created by different institutions. Important sets of rules: (for internati

7、onal commercial transactions) UN Convention on Contracts for the International Sale of Goods 1980 (CISG) Unidroit Principles of International Commercial Contracts 2004 ICC Incoterms 2000 Application (depends on the set of rules in question): either automatically or only if parties to a contract agree application (difference to national law) not all sets of rules available in all states,11,UN Convention on Contracts for the International Sale of Goods 1980 (CISG) (1),Link: http:/www.uncitral.org/

8、pdf/english/texts/sales/cisg/CISG.pdf Background: set of rules covering certain aspects of international sale of goods drafted by UNCITRAL (United Nations Commission on International Trade Law) adopted in 1980, came into force in 1988 originally signed by 11 states (Argentina, China, Egypt, France, Hungary, Italy, Lesotho, Syria, United States, Yugoslavia and Zambia) now 70 parties (incl. most European states),12,UN Convention on Contracts for the International Sale of Goods 1980 (CISG) (2),Appl

9、ication (see Article 1-6 CISG): automatic application to contracts of sale of goods between commercial parties whose places of business are in different states and either both of those states are contracting states or the rules of private international law lead to the application of the law of a contracting state parties can exclude application of the CISG or derogate from or vary the effect of any of its provisions (freedom of contract) Contents: formation of contracts (e.g. offer, acceptance, counter-offer) obligations of buyer and seller (e.g. delivery, quality of goods, payment) remedies for breach of contract (e.g. performance, discharge of contract, price reduction, delivery of substitute goods, damages) (similar to sales contract provisions in a civil code),13,Unidroit Principles of International Commercial Contracts 2004 (1),Link: http:/www.unidroit.org/english/principles/contracts/principles2004/blackletter2004.pdf Background: set of general rules for international co

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