國際法與俄羅斯合同法之統(tǒng)一慣例ppt課件

1、Chapter 2Unification of International Contract Law and Russian Contract Law Unification Terminology: unification,approximation,standartisation,coordination,harmonisation Unification: a process of elaborating and adopting of uniform for different states rules aiming to regulate commercial relations a

2、nd to create uniform legal environment Main factors leading to Unification of contract law Political and economical factors:Economic development of different countries Internationalisation and globalisation of economy, transnational movement of goods and services, growth of transnational contacts an

3、d contracts Development of direct cooperation between private actors of commercial relations, diversification of economic contracts Contradiction between international character of economic relations and their national legislation Main factors leading to Unification of contract lawLegal factors: Dif

4、ferent legal systems in the World common law and civil law, legal systems in the new independent states, recent example: Baltic and CIS countriesImpossibility of adequate regulation of transnational commercial relations by national legislation Unification of private international rules (in Russian -

5、 Conflict of Law rules) versus unification of substantive rulesUnification of contract law Significance: development of uniform rules for transnational economy in the fields: universal and regional unification, unification of PIL rules and substantive rules, elaborating of new instruments and by new

6、 privates players Universalism-regionalism of unification of contract law Foreign and Russian academicians R.David, C.Schmitthoff, E.Rabel, J.Basedow, I.Bonnel, A.Farnthworth, J.Honnold Lunz L.A. Private International Law in 3 volumes, Boguslavskii M.M. Private International Law, 5th edition Zvekov

7、V.P. Private International Law, 2th edition, Authors of the Commentaries of the 3rd part of Russian Civil Code: T.Abova, M.Bardina, I.Zykin, E.Kabatova, A.Komarov, A.Makovskii, N.Marisheva, O.Sadikov, M.Rosenberg, N.Vilkova History of the unification R.David 2 periods:1. national codification, elimi

8、nation of “different legal dialects2. Canonic law, academic transnational law C.Schmitthoff 3 periods:1. development of transnational law merchant (the absence of national states and national legislation)- self-regulating process 2. creation and development of national states and of national jurisdi

9、ctions different legal systems 3. unification of law of international trade by adopting of international conventions , creation of international organisations (1893 - Hague conference on PIL, 1929 - International Institute for the unification of private law, 1966 - UNCITRAL XX beginning of XXI centu

10、ry - the forth period begins activity of formulating agencies, self-regulation of contract relations by actors of international tradeHistory of Unification Europe: 1851 Pascuale Mancini, Italian minister of foreign relations in Turin University gave a lecture “Prolusione- on the Civil law as a groun

11、d for the law of nations, 1873 Insitute of international law in Genoa decided to elaborate draft of convention on PIL, 1874 Mancini prepared a report “On uniform rules of PIL for avoiding conflicts of civil and criminal law of different states1883 Mancini proposed to organise international congress

12、with participation of 15 European states, USA and 14 states of Latin America1880 Tobias Acer (Netherlands) published an article “PIL and uniform law and proposed to the government to held a conference- the first Hague conference on PIL was held in 1893. The Hague conference adopted more than 30 inte

13、rnational conventions, including 2 conventions on the law applicable to international sale of goods, 1 on the law applicable to agency agreements and 1 on the law applicable to the transfer of title in the international sale of goods (only 1955 convention is in force now) History of Unification Lati

14、n America states: 1878 Treaty of Lima contained a comprehensive codification of international law in the field of private law civil procedure and criminal law (60 articles) 1889 Congress of Montevideo approved eight conventions dealing with PIL, law of civil procedure, copyright, patent and trademar

15、k law (on the basis of Paris Convention 1883 on protection of industrial property and 1886 Berne copyright Convention1928 Bustamante Code in force in 15 states (author Antonio Sanches de Bustamante and Sirven)Americas:1948 - Organisation of American States (1994 Mexico convention on law applicable t

16、o international contracts, 1975 Inter-americain convention on international commercial arbitration) African states: 1993 Organisation for the harmonisation of business law in Africa (OHADA) CIS: 1993,1996 - Inter-parlamentary assembly approved Model Civil Code for CIS countries, on the basis of whic

17、h all CIS countries adopted Civil Codes, Ukraine Civil and Economic Code (in force from 1 January 2004) Unification agencies Universal governmental international organizations the Hague conference on PIL, UN Economic commission for Europe, UNCITRAL, UNIDROIT, Universal nongovernmental international

18、organizations International Chamber of Commerce, International Federation of Engineers - Consultants (FIDIC) Regional governmental international organizations (Organisation of American States, CIS, OHADA) CIS countries regional unification: multilateral and bilateral -1992 Convention on resoling eco

19、nomic disputes, 1993 Convention on approximation of law, as well modernization of substantive law and private international law - on the basis of model laws (Model civil code and others) UNCITRAL Main goals: national or regional harmonisation promotes national or regional trade and facilitates inter

20、national harmonisation, helps to reduce the number of legal systems and provides a basis for international harmonisation. To avoid duplication of efforts and conflicts between the uniform and harmonised texts Working methods (Spiros V.Bazinas, senior legal officer, office of Legal Affairs, United Na

21、tions): Catholic participation beyond UNCITRAL members, all member States of the United Nations and international governmental of non-governmental organisations with an interest in the UNCITRALs work are invited to participate in the UNCITRALs work as “observers, they can participate fully both in t

22、he discussions and in the decision making, Orthodox consensus means that at the end. All participants must agree on a given result acceptable to all.The preamble of CISG contains a summary of UNCITRAL philosophy it refers to the need to promote the balanced development of international trade on the

23、basis of equality and mutual benefit. UNCITRAL products: international conventions, model laws, legislative guidesUNCITRAL Examination of the relationship between international and regional harmonisation reflects the practice and working methods Identify the real problem and to suggest effective sol

24、utions UNCITRAL mandates to further progressive harmonisation and unification of the law governing international trade (General Assembly resolution 2205 of 17 December 1966) Most significant achievements: 1985 UNCITRAL Model Law on international commercial arbitration 1985 and 1980 UN Convention on

25、Contracts for the International Sale of Goods (67 participants), UNCITRAL Model Law on Electronic signature, Endorsement of ICC documents Incoterms 2000, Uniform Customs for Payment by letter of creditHague conference on PIL 1893 Mains achievements: 33 international conventions, 1955 Hague conventio

26、n on the Law applicable to international sales, 1986 Hague convention on the Law applicable to international sales (not in force) the last one 2005 Hague convention on jurisdiction and recognition and enforcement of foreign Judgments UNIDROIT 1929 1988 Convention on International financial leasing 1

27、988 Convention on International factoring 1995 Convention on the return of stolen or illegally exported cultural objects 2004 Principles of International commercial contracts (1st redaction 1994) History: 1930 first draft of Sale of Goods convention (E.Rabel), drafting of the 1984 Hague convention o

28、n “Uniform law on formation of contract and on “Uniform Law of international sale of goods drafting of 1980 SIGS International Chamber of Commerce 1919 Main achievements: Incoterms 2000 (first Incoterms 1936) Uniform rules and customs for letters of credit, for collection of payment, stand-by letter

29、s of creditModel contract: of international sale of goods, of distributorship agreement, of agency agreement Methods of unification Unification of conflict of law rules 1955 and 1986 Hague conventions on law applicable to international sale of goods, 1980 Rome convention on law applicable to contrac

30、tual obligationsHistory: Council for mutual economic aid General conditions of delivery of goods regional multilateral unification (1958-1989) both substantive and conflict of rules regional unification Methods of Unification Unification of substantive rules1980 UN Convention on international sale o

31、f goods (Vienna convention, SISG)1988 UN Convention on International financial leasing 1988 UN Convention on International factoring 2005 UN Convention on electronic communication in commercial contracts Methods of Unification International unificationElaborating and adopting by international govern

32、mental organisations of international conventions and recommendation (model laws, guidelines, etc.)Private unification Elaborating by governmental and non-governmental organisations of soft law non binding rules adressed to private actors Realisation of international documentsRatification of international convention 1980 CISG 1988 entry into force, 1980 Rome convention 1988 entry into forceAdopting of national law on the basis of UNCITRAL