国际法之商事合同.ppt

Chapter 2 Commercial ContractsoLaw of contract (revision + additional points)oDrafting / reading of contracts (sample contract)oInternational commercial contracts2Drafting / 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:nproof of termsnavoidance of legal disputes (risk to lose, expensive, time consuming, detrimental to reputation) 4Drafting of Contracts (2)Essential points:ouse of term „contract“ocorrect name of partiesodefinition of all important termsodetermination of rights and dutiesouse of plain languageodate + signature of all parties Typical sources of mistakes in international contracts:odifferent date formates (e.g. 03/04/2008 = 3 April or 4 March 2008)odifferent currencies (e.g. exchange rates, $ = USD or AUD)odifferent units of measurement (e.g. ton = metric ton (1000 kg) or short ton (907 kg) or long ton (1016 kg))oimprecise translation5Drafting of Contracts (3)Typical structure of an international commercial contract (see sample contract):oheading (type of contract)oname + address of parties actual clausesodescription of goods to be delivered or services to be provided (incl. quality, quantity, time etc.)ofixation of price and details of paymentoother duties and rights of the parties (e.g. warranty, payment of tax/duty)olimitation of liabilityoremedies in case of breach of duties… 6Drafting of Contracts (4)Typical structure of an international commercial contract:oconfidentiality clauseoduration / termination of contractoforce majeure clause (excuse of non-fulfilment in case of natural disasters, war etc.)oclause on governing law + arbitrationomiscellaneousodate + signature of partiesosupplements containing definitions, timetables etc.7International Commercial ContractsContract Law and Global Business (1)Problem:oContract law (like most other fields of private law) is mainly national lawoThis does not satisfy the needs of global business:ncontracts can touch different national lawsndetermination of applicable law and enforcement of rights difficultnhaving expertise in law of numerous jurisdictions is expensivensame legal term can have different meanings in different jurisdictionsnlanguage / translation issues9Contract Law and Global Business (2)Possible solutions:oapplication of one national private law to be determined by conflict of laws principles (see 1st IL II session)oharmonisation or unification of national laws (e.g. EU, WTO TRIPs agreement)ocreation of universal laws / sets of rules applicable regardless of national borders (today‘s topic)oarbitration (see session on international arbitration)10Universal 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 international commercial transactions)oUN Convention on Contracts for the International Sale of Goods 1980 (CISG)oUnidroit Principles of International Commercial Contracts 2004oICC Incoterms 2000 Application (depends on the set of rules in question):oeither automatically oroonly if parties to a contract agree application (difference to national law) onot all sets of rules available in all states11UN Convention on Contracts for the International Sale of Goods 1980 (CISG) (1)Link: http://www.uncitral.org/pdf/english/texts/sales/cisg/CISG.pdf Background:oset of rules covering certain aspects of international sale of goodsodrafted by UNCITRAL (United Nations Commission on International Trade Law)oadopted in 1980, came into force in 1988ooriginally signed by 11 states (Argentina, China, Egypt, France, Hungary, Italy, Lesotho, Syria, United States, Yugoslavia and Zambia)onow 70 parties (incl. most European states)12UN Convention on Contracts for the International Sale of Goods 1980 (CISG) (2)Application (see Article 1-6 CISG):oautomatic application to contracts of sale of goods between commercial parties whose places of business are in different states and neither both of those states are contracting states nor the rules of private international law lead to the application of the law of a contracting stateoparties can exclude application of the CISG or derogate from or vary the effect of any of its provisions (freedom of contract) Contents:oformation of contracts (e.g. offer, acceptance, counter-offer)oobligations of buyer and seller (e.g. delivery, quality of goods, payment)oremedies 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)13Unidroit Principles of International Commercial Contracts 2004 (1)Link:http://www.unidroit.org/english/principles/contracts/principles20 04/blackletter2004.pdf Background:oset of general rules fo。