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Lex Mercatoria: Private International Commercial Law

Lex Mercatoria

Rights: Copyright ©  2004 Lex Mercatoria


Lex Mercatoria: Private International Commercial Law


Private International Commercial Law

Agency

Applicable Law (Conflict of Laws / Proper Law)

Contract Principles

"Lex Mercatoria?" Contract Principles / Commercial Codes
Transnational Law Principles - Creeping Codification
Unidroit
EU
US

Customs

Insolvency

other

Insurance

English Marine Insurance Act
Cargo Insurance

Jurisdiction and Enforcement

Arbitral Recognition and Enforcement
EU & EFTA

Limitation Periods in the International Sale of Goods

Payment Mechanisms and Guarantees

Guarantees and Payment Mechanisms
International Transfers
Letters of Credit
Guarantees
Bills of Exchange and Promissory Notes
Factoring
Leasing
Assignment of Receivables
US UCC

Procedure and Evidence

Procedure
Evidence

Procurement of Goods, Construction and Services

Sale of Goods

CISG
Bibliographies:
Recommended reference texts:
ULIS & ULF
Incoterms
England
Norway
US
Other

Endnotes

Endnotes





Lex Mercatoria: Private International Commercial Law




Private International Commercial Law




Agency

See also Sale of Goods

Unidroit Convention on Agency in the International Sale of Goods (1983)

Council Directive 86/653/EEC EC Directive for the co-ordination of the laws of Member States related to Self-employed Commercial Agents 1986

EU Member States

Convention on the Law Applicable to Agency (The Hague, 1978)

UNCTAD Minimum Standards For Shipping Agents 1988

Status




Applicable Law (Conflict of Laws / Proper Law)

See also

Contract Principles

Sale of Goods

Convention on the Law Applicable to International Sales of Goods (The Hague, 1955).; The Hague Conference on Private International Law.

Convention on the Law Applicable to Contracts for the International Sale of Goods; (The Hague, 1986) The Hague Conference on Private International Law.

EC Convention on the Law Applicable to Contractual Obligations; (Rome, 1980)

EU Member States

Convention on the Law Applicable to Agency; (The Hague, 1978)




Contract Principles

See also

Applicable Law

Sale of Goods

Dispute Settlement

International & Transnational Law sites




"Lex Mercatoria?" Contract Principles / Commercial Codes
Transnational Law Principles - Creeping Codification

Transnational Law Database at CENTRAL's Transnational Law database on rules and principles of Lex Mercatoria based on Prof. Klaus Peter Berger's concept of the Creeping Codification of Lex Mercatoria is inaugurated on October 26th 2001 at the Conference Globalization of International Business Law held at CENTRAL, Muenster University, Germany. Guest speakers include Lord Mustill.

Unidroit

Principles of International Commercial Contracts, 2004; - UNIDROIT, Rome 2004. Black letter rules only

Complete Commented version of the UNIDROIT Principles of International Commercial Contracts, 2004 "The complete version of the UNIDROIT Principles contains not only the black?letter rules reproduced hereunder, but also detailed comments on each article and, where appropriate, illustrations. The volume may be ordered from UNIDROIT at ‹http://www.unidroit.org

For an update of international case law and bibliography relating to the Principles see ‹http://www.unilex.info› ."

UNIDROIT Principles Collection

Principles of International Commercial Contracts, 1994; - UNIDROIT, Rome 1994. Commented Version

Representing "a significant step in the globalization of legal thinking". J.M. Perillo

"The success of even binding uniform law instruments ... depends at least to a great extent, on their being brought to the attention of the potential users. This is all the more true of non-binding instruments such as the UNIDROIT Principles" M.J. Bonell

This is a copy of the official commented version of the Unidroit Principles of International Commercial Contracts prepared using the UNIDROIT presentation. The hardcopy integral edition of the English, French, German, Italian and Spanish versions ISBN 88-86449-00-3 may be ordered directly from Unidroit Publications, Via Panisperna 28, 00184 Italy (fax +39-6 69 94 13 94).

Source Document - UNIDROIT

UNIDROIT Principles for International Commercial Contracts: A New Lex Mercatoria?

Principles of International Commercial Contracts

UNIDROIT, Rome, 1994. Text without commentary.

alternative source - Unidroit

alternative source - Law Journal Extra

Other Language editions

Dutch (Prof. Matthias Storme)

Contributors

UNILEX on CISG and UNIDROIT Principles and the product ‹http://www.cnr.it/CRDCS/unilex.htm› International Case Law and Bibliography

EU

Principles of European Contract Law 2002; by the Commission on European Contract Law.

Other Language Versions and Members of the Commission

[REMOVED] Primary source and other language versions Matthias E. Storme

Contributors 1994 Lando Commission

EU Member States

"The Principles of European Contract are the product of work carried out by the Commission on European Contract Law a body of lawyers drawn from all the Member States of the European Community, under the chairmanship of Professor Ole Lando. They are a response to a need for a Community-wide infrastructure of contract law to consolidate the rapidly expanding volume of Community law regulating specific types of contract"

Commented version of the Principles of European Contract Law edited by Ole Lando & Hugh Beale ISBN 9041113053

For more information, write to the Secretary of the Commission, Matthias E. STORME, ‹matthias@storme.be

"Leaving the Shadow for the Test of Practice - On the Future of the Principles of European Contract Law"; by Friedrich Blase, published in The Vindobona Journal of International Commercial Law and Arbitration, Volume 3 Issue 1, 1999 ISSN 1439-9741

US

US Uniform Commercial Code from the LII

US Contracts from the LII




Customs

Rather see: Customs

International Convention on the Simplification and Harmonization of Customs Procedures (Kyoto, 18 May 1973) | Amending Supplement No. 13 - January 1993 World Customs Organization




Insolvency

UNCITRAL Model Law on Cross-Border Insolvency 1997




other

INSOL International International Federation of Insolvency Professionals

World Internet Insolvency & Bankruptcy Resources

The Insolvency Service UK Executive Agency within the Department of Trade and Industry

The UK Bankruptcy and Insolvency Website




Insurance

See also Carriage of Goods




English Marine Insurance Act

Marine Insurance Act 1906 (English Statute - highly influential, and selected as applicable law by the Institute Cargo Clauses, (the minimum cover of which is in turn selected by default if nothing else is agreed by INCOTERMS 1990 CIF and CIP these being the only INCOTERMS which impose upon the seller an insurance obligation))




Cargo Insurance

The Institute Marine Cargo Clauses A B C War and Strikes Clauses (London, 1982) Standard terms of insurance. Subject to English law - by choice of law clause.

Institute Marine Cargo Clauses - A - "All Risks"

Institute Cargo Clauses - B - "intermediate cover"

Institute Cargo Clauses - C - "minimum cover"

(the minimum cover that is required by INCOTERMS CIF and CIP (A3b) if nothing else is agreed)

Institute Cargo Clauses - War Clauses

Institute Cargo Clauses - Strikes Clauses

UNCTAD Model Clauses on Marine Cargo Insurance (Geneva, 1987)

All Risks Cover

Intermediate Cover

Restricted Cover

4{!  Intellectual Property




Jurisdiction and Enforcement

Dispute Settlement - Arbitration




Arbitral Recognition and Enforcement

United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards; (New York, 1958)

Contracting States/ Status of the Convention




EU & EFTA

EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters; (as Amended by the Convention of Accession) (Brussels 1968)

EU Member States

EFTA Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters; (Lugano)

Full text (with indexed table of contents) only




Limitation Periods in the International Sale of Goods

Sale of Goods

United Nations Convention on the Limitation Period in the International Sale of Goods 1974.

Contracting States/ Status of the Convention

United Nations Convention on the Limitation Period in the International Sale of Goods 1974 as amended 1980.

Contracting States/ Status of the Convention




Payment Mechanisms and Guarantees

See also Electronic Commerce.




Guarantees and Payment Mechanisms
International Transfers

UNCITRAL Model Law on International Credit Transfers

UNCITRAL Guide to Electronic Funds Transfers

Letters of Credit

ICC's Uniform Customs and Practice for Documentary Credits 1993 (UCP 500).

ICC Copyright notice and ordering information

Guarantees

UNCITRAL Convention on Independent Guarantees and Standby Letters of Credit (New York, 1995)

Bills of Exchange and Promissory Notes

Convention Providing a Uniform Law For Bills of Exchange and Promissory Notes, Geneva, 1930; League of Nations

UNCITRAL Convention on International Bills of Exchange and International Promissory Notes 1988

Contracting States/ Status of the Convention

Factoring

UNIDROIT Convention on International Factoring

text from Fletcher's.

Leasing

UNIDROIT Convention on Financial Leasing

text from Fletcher's.

Assignment of Receivables

United Nations Convention on the Assignment of Receivables in International Trade, 2001

US UCC

US Uniform Commercial Code from The LII.




Procedure and Evidence

See also Limitation Periods




Procedure

Convention Abolishing The Requirement Of Legalisation For Foreign Public Documents; (Concluded October 5, 1961) Hague Conference on Private International Law

Related materials at the HC PIL

Related materials at the HC PIL




Evidence

Related materials at the HC PIL




Procurement of Goods, Construction and Services

UNCITRAL Model Law on Procurement of Goods, Construction and Services 1994




Sale of Goods

Contract Principles

Applicable Law

Agency

Limitation Periods

Carriage of Goods

Marine Insurance

Payment Mechanisms




CISG

Contracting States/ Status of the Convention . Entered into force 1 January 1988. Today with 62 contracting States representing over two thirds of world trade, this convention provides a (potentially) uniform regime for international sales.

For advice on the implementation of this Convention contact UNCITRAL.

⌠Printable text⌡gopher://gopher.law.cornell.edu/00/foreign/fletcher/KAV2420.txt from The LII.

See also:

Conventions on Applicable Law

Conventions on Agency

Limitation Periods

"Because of the abundance of information, [on the CISG] there is a need to sort out the most helpful publications and determine the types of materials needed. Publications come in a variety of formats--print, disc, and increasingly in electronic form. These recent electronic projects represent breakthrough developments for legal researchers because they use new technologies (i.e., the Internet) and promote cooperation among scholars, practitioners, librarians, and computer specialists. Pace University School of Law is responsible for the major project in this regard. Largely due to the initiative and vision of Albert Kritzer, who is leading the Pace Project, a new tool is being created that will bring together all CISG sources and scholars. Mr. Kritzer, working tirelessly and with experts worldwide, is devoted to making the CISG better known." Claire M. Germain

CISG sites include:

CISG - International Trade Database at The Institute of International Commercial Law, Pace University, School of Law. The most comprehensive effort to chart the growing domain of the CISG, See also The Autonomous Network of CISG Websites

CISG Advisory Council

CISG Rabel Website University of Freiburg, Institute of Foreign and International Law

CISG France Professor Claude Witz

CISG Japan Professor Hiroo Sono, Kyushu University, Japan

CISG Finland Professor Tuula ?mm?l?, Faculty of Law, University of Turku

CISG Israel Chief Editor: Dr. Arie Reich, Faculty of Law, Bar-Ilan University

CISG Spain & Latin America Prof. Dr. Pilar Perales, University of Madrid

Case Laws on UNCITRAL Texts (CLOUT)

UNILEX on CISG and UNIDROIT Principles and the product International Case Law and Bibliography




Bibliographies:

The United Nations Convention on Contracts for the International Sale of Goods: Guide to Research and Literature by Claire M. Germain (Cornell Law Library)

Bibliography of CISG English-Language Publications by Peter Winship

CISG Bibliography at CISG Database, IICL, Pace University




Recommended reference texts:

Uniform Law of International Sales under the 1980 United Nations Convention, John Honnold, Kluwer 1991

International Contract Manual Guides to Practical Applications of the [CISG], Albert Kritzer, Kluwer, 1994

ULIS & ULF

Uniform Law on the International Sale of Goods 1964 (ULIS)

Uniform Law on the Formation of Contracts for the International Sale of Goods (1964)

Incoterms

ICC's Incoterms 1990 "International Commercial Terms."

ICC Copyright notice and ordering information

England

English Sale of Goods Act 1979. (an incomplete presentation of Parts II to VII) England, usually one of the more active participants in the drafting of such Conventions (as the #CISG CISG ), is frequently one of the last States to implement them, as is the case with this Convention. See list of CISG Contracting States

England applies the earlier Uniform Law on International Sale of Goods 1964 (ULIS) to international sales, but only if adopted by the parties to such a sale.

TOC - table of contents for individual articles

Full text (with indexed table of contents)

Norway

English Translation of the Norwegian Sale of Goods Act 1988.

TOC - table of contents for individual articles

Full text (with indexed table of contents)

The challenges related to the harmonization of a given area of law are many, and go beyond the important agreement of a common text. Such agreement in itself does not guarantee uniformity of application, even where the convention attempts to encourage this through its provisions on interpretation . For an excellent article placing the issues in perspective, read "Uniform Words and Uniform Application. The 1980 Sales Convention and International Practice" John Honnold.

There has been much success with the #CISG CISG and its uniform adoption (admittedly with not infrequent reservations), there being over Contracting States. On the whole, academics and practitioners the world over, can be confident that when they discuss an article of the CISG, and its interaction with other articles, they are discussing the same text, (whether or not they agree as to its meaning).  1 

It appears that Norway alone amongst the contracting States has implemented the #CISGCISG through "transformation" thought Israel notably is considering it   Neither the numbering nor the substantive provisions are the same. Obviously this means that for Norway alone amongst the contracting States it is necessary to search to find e.g. Article 74 (or any other provision of the CISG).  2  A question raised is that of the conformity of the transformed text with the original. This is supposedly ultimately taken care of by the "supremacy" clause, ( ?88 with ideas which equate to Article 7 of the CISG). As pointed out, even with identical texts, the problems that arise can be substantial. Even within Norway not everyone is agreed that this transformation is such a wonderful innovation - see for example: Kj?psrettskonvensjon, Norsk Kj?pslov og Internasjonal Rettsenhet, Tidskrift for Rettsvitenskap 4/1995 p. 569 - "et siktem?l ? pr?ve ? reversere det som har skjedd." V. Hagstr?m. Other authoritative Norwegian authors including Professor Kai Kr?ger have expressed their agreement.

It would have been extremely unfortunate for the CISG, (and mitigated considerably the success it today represents in the harmonization of international sales law), if several countries had chosen such a course of implementation.

This is no criticism of the Norwegian domestic sales law or the Norwegian Sale of Goods Act (which incidentally, is in other respects substantially the same as that of other Nordic countries), but of Norway's implementation of the CISG. From an international (harmonization of law) perspective it is a mistake which hopefully will not be repeated elsewhere.

For advice on the implementation of this Convention contact UNCITRAL. See the:

Norwegian Sale of Goods Act - CISG concordance table, and; the

CISG - Norwegian Sale of Goods Act concordance table

Only the article by article version of the Norwegian Sale of Goods Act is presented here.

The full text ISBN 82-7511-003-3 may be obtained from: The Confederation of Norwegian Business and Industry, Midelthunsgata 27, P.O. Box 5250 Majorstua, 0303 Oslo 3, Norway.

Tel. 22 60 32 90. Fax 22 69 55 93.

None of the Nordic countries implement Part II of the Convention on formation of contracts (having made Article 92 reservations to this effect); and have a reservation not to apply the CISG in transactions between Nordic States ( Article 94 ).

For a Scandinavian view of the CISG see:

"Understanding the CISG in Scandinavia" Joseph Lookofsky. DJ?F Publishing 1996 ISBN 87-574-7420-6

US

US Uniform Commercial Code from The LII.

Other

The Autonomous Contract: Reflecting the borderless electronic-commercial environment in contracting; Ralph Amissah (September 1997, Bergen) Paper presented at the XIII nordiske konferanse i rettsinformatikk 17-19 september 1997 "Ulike juridiske aspekter ved et elektronisk marked" organised by the Norwegian Research Center for Computers and Law.

Revisiting the Autonomous Contract: Transnational contracting, trends and supportive structures; (2000) Ralph Amissah




Endnotes

 1. Not all harmonization/ unification efforts lend themselves equally well to this approach. Transformation is more appropriate where there is necessarily a large domestic law element in the area of law concerned. In these circumstances, the legal text is more likely to be promulgated as a model law. Even here it is vital that as far as possible the text (and article numbering) remain intact. Yet other approaches are appropriate in given circumstances - e.g. where agreement is reached on part of a complex area of law and it is left to the individual States to ensure the changes are implemented; or the EU approach with directives, which member states are left to implement individually - note that in that case there is recourse to the European Court if legislation is not implemented correctly or on time.

 2. And to understand what it has become/ how it has been implemented.

Lex Mercatoria

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