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Editura Universitara International Trade Law - Daniel-Mihail Sandru

28,90 Lei

ISBN: 978-973-749-988-2

Publisher year: 2011

Edition: II

Pages: 166

Publisher: Universitară

Author: Daniel-Mihail Sandru

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INTRODUCTION

Section 1. International trade law in the age of globalization

Legal acculturation and "lex mercatoria". About the transnational phenomenon in a globalizing era
Globalization is an economic, technical and financial phenomenon but it has an impact on all areas, including law. In the classical age of law, the state was the only sovereign to enact rules of law. This rule has changed with the globalization (globalization) of "legislation":

  • the flow of globalization to create a "race of norms", both national and international, to which are added the practices of participants in international trade;
  • it becomes mandatory to compare national legislations, in the situation where the flow of globalization becomes more and more constraining (for example, the protection or facilities offered to investors);
  • the form of legislation remains the same, but is changed, sometimes in a
  • The "chaotic manner" of more or less constraining international provisions.


Institutions of globalization
There is a new world economic structure that is changing classical systems of law. The main effect of this legal acculturation (discussing the Americanization of French law and the continentalization of English law) leads to a new legislation, in which the defining features of a system are no longer found in almost any field.

Areas of international trade law in which globalization takes effect Regional or global institutions are receiving more and more powers, which they share with Member States, having the opportunity to decide in international disputes (Court of Justice of the European Union - within the EU , respectively, the Dispute Settlement Body within the World Trade Organization).

Section 2. Definition of international trade law
International trade law is that branch of law which regulates the patrimonial relations between the subjects of international trade and which has the character of commerciality and internationality. France had the idea to propose (at the UNCITRAL session in New York in 1970) a Framework Convention on International Trade Law but the proposal was never debated. The content of international trade law consists of its own material norms but also norms of material law that belong to other fields (for example, civil procedural law - commercial arbitration; civil law - contracts; commercial law - commercial acts, etc.).

Section 3. Principles of international trade law
Principles of international trade law:

  • the principle of legal equality of the parties;
  • the principle of freedom of trade;
  • The sale of certain products, even authentic ones, without the manufacturer's consent, was considered counterfeit. In a case settled in France by TGI Paris, Microsoft's agreement was considered necessary for its products to be sold on eBay.
  • the principle of good faith;
  • the principle of fair competition.
  • There is an interpenetration between the principles of international trade law, which cannot be respected in the fullness of their effects separately, there is a relationship of determination and interdependence.


Section 4. Object of international trade law

The object of international trade law is given by the following features:

  • the patrimonial character;
  • The cultural field was the subject of discussions, 16 mentioning here the customs duties imposed on some art objects (Brancusi case, 1928) as well as the definition of goods given by the ECJ in the litigations regarding the free movement of goods.
  • commercial character;
  • international character.


Section 5. International trade law and other branches of law
Commercial law
International trade law regulates legal relations similar to those of commercial law (they have a patrimonial and commercial character) but in the international trade law the national norms are applicable only when they are lex causae. In most cases, international trade law regulates legal relations by its own, specific rules (for example: international conventions, international customs).

Civil procedural law
International trade law also contains references to the rules of civil procedure. Thus, the Rules of Arbitration Procedure stipulate that "these Rules shall be supplemented by the provisions of common law of Romanian civil procedure insofar as they are compatible with arbitration and the commercial nature of disputes" (art. 79).

Private international law.
The strongest links are with private international law. In the beginning, a chapter of this discipline, the law of international trade became in time an autonomous discipline. The literature discusses the composite nature of international trade law, as well as the fact that most authors treat it

Daniel-Mihail Sandru
University professor at the University of Bucharest, "Dimitrie Cantemir" Christian University. He founded and coordinates the Center for European Law Studies of the Institute for Legal Research „Acad. Andrei Radulescu ”of the Romanian Academy. Ad hoc judge at the European Court of Human Rights and arbitrator at the International Commercial Arbitration Court attached to the Romanian Chamber of Commerce and Industry. President of the Society of Legal Sciences and of the Romanian Association of European Law and Affairs. Editor-in-Chief of the Romanian Journal of European Law (Wolters Kluwer).

SUMMARY

ABBREVIATIONS / 7

INTRODUCTION / 9


Section 1. International trade law in the age of globalization / 9
Section 2. Definition of international trade law / 10
Section 3. Principles of international trade law / 11
Section 4. Object of international trade law / 11
Section 5. International trade law and other branches of law./ 12

CHAPTER I. THE ROLE OF INTERNATIONAL ORGANIZATIONS IN THE DEVELOPMENT AND UNIFORMIZATION OF INTERNATIONAL TRADE / 14
Section 1. World organizations / 14
Section 2. Regional organizations / 22
Section 3. Private institutes of international law / 32

CHAPTER II. SOURCES OF INTERNATIONAL TRADE LAW / 34
Section 1. Internal sources / 34
Section 2. International sources / 35
Section 3. Importance of international commercial usages./ 38
Section 4. Judicial and arbitral practice. / 39

CHAPTER III. SUBJECTS OF INTERNATIONAL TRADE LAW / 41
Section 1. Preliminary considerations. Individual trader / 41
Section 2. Trading companies / 41
Section 3. Representations of foreign companies and economic organizations / 53
Section 4. Integration of international companies / 56
Section 5. Participation of States in International Trade Relations / 56

CHAPTER IV. ACTS AND FACTS OF TRADE IN INTERNATIONAL TRADE LAW / 57
Section 1. Terminological specifications / 57
Section 2. Objective acts of trade / 58
Section 3. Subjective acts of trade / 65
Section 4. Unilateral acts of trade / 66
Section 4. Acts and facts of international economic and technical-scientific cooperation / 66


CHAPTER V. INSOLVENCY IN INTERNATIONAL TRADE LAW / 67
Section 1. The concept of insolvency in international trade law / 67
Section 2. International regulations in the field of insolvency / 72
Section 3. Insolvency regulation in the European Union / 75
Section 4. Model laws on insolvency / 82

CHAPTER VI. COMMERCIAL COMPETITION IN INTERNATIONAL TRADE LAW. EUROPEAN REGULATIONS / 84
Section 1. Preliminary information / 84
Section 2. Principles of European Union regulations / 86

CHAPTER VII. INTERNATIONAL TRADE CONTRACTS. INTERNATIONAL CONTRACT OF SALE OF GOODS / 88
Section 1. General rules / 88
Section 2. Assignment of receivables under international trade law / 103
Section 3. Contract for the international sale of goods / 111

CHAPTER VIII. INTERNATIONAL COMMERCIAL ARBITRATION / 124
Section 1. Regulations applicable to arbitration / 124
Section 2. Arbitrability of commercial disputes / 126
Section 3. Material jurisdiction of the arbitration court / 134
Section 4. Arbitral tribunal settling the dispute / 141
Section 5. The procedure for notifying the arbitral tribunal and the conduct of the arbitral proceedings / 146
Section 6. Abolition of the arbitral award / 152
Section 7. Execution of the arbitral award / 155
Section 8. ICSID competence - specialized institutional arbitration / 158

SELECTIVE BIBLIOGRAPHY / 162

INTRODUCTION

Section 1. International trade law in the age of globalization

Legal acculturation and "lex mercatoria". About the transnational phenomenon in a globalizing era
Globalization is an economic, technical and financial phenomenon but it has an impact on all areas, including law. In the classical age of law, the state was the only sovereign to enact rules of law. This rule has changed with the globalization (globalization) of "legislation":

  • the flow of globalization to create a "race of norms", both national and international, to which are added the practices of participants in international trade;
  • it becomes mandatory to compare national legislations, in the situation where the flow of globalization becomes more and more constraining (for example, the protection or facilities offered to investors);
  • the form of legislation remains the same, but is changed, sometimes in a
  • The "chaotic manner" of more or less constraining international provisions.


Institutions of globalization
There is a new world economic structure that is changing classical systems of law. The main effect of this legal acculturation (discussing the Americanization of French law and the continentalization of English law) leads to a new legislation, in which the defining features of a system are no longer found in almost any field.

Areas of international trade law in which globalization takes effect Regional or global institutions are receiving more and more powers, which they share with Member States, having the opportunity to decide in international disputes (Court of Justice of the European Union - within the EU , respectively, the Dispute Settlement Body within the World Trade Organization).

Section 2. Definition of international trade law
International trade law is that branch of law which regulates the patrimonial relations between the subjects of international trade and which has the character of commerciality and internationality. France had the idea to propose (at the UNCITRAL session in New York in 1970) a Framework Convention on International Trade Law but the proposal was never debated. The content of international trade law consists of its own material norms but also norms of material law that belong to other fields (for example, civil procedural law - commercial arbitration; civil law - contracts; commercial law - commercial acts, etc.).

Section 3. Principles of international trade law
Principles of international trade law:

  • the principle of legal equality of the parties;
  • the principle of freedom of trade;
  • The sale of certain products, even authentic ones, without the manufacturer's consent, was considered counterfeit. In a case settled in France by TGI Paris, Microsoft's agreement was considered necessary for its products to be sold on eBay.
  • the principle of good faith;
  • the principle of fair competition.
  • There is an interpenetration between the principles of international trade law, which cannot be respected in the fullness of their effects separately, there is a relationship of determination and interdependence.


Section 4. Object of international trade law

The object of international trade law is given by the following features:

  • the patrimonial character;
  • The cultural field was the subject of discussions, 16 mentioning here the customs duties imposed on some art objects (Brancusi case, 1928) as well as the definition of goods given by the ECJ in the litigations regarding the free movement of goods.
  • commercial character;
  • international character.


Section 5. International trade law and other branches of law
Commercial law
International trade law regulates legal relations similar to those of commercial law (they have a patrimonial and commercial character) but in the international trade law the national norms are applicable only when they are lex causae. In most cases, international trade law regulates legal relations by its own, specific rules (for example: international conventions, international customs).

Civil procedural law
International trade law also contains references to the rules of civil procedure. Thus, the Rules of Arbitration Procedure stipulate that "these Rules shall be supplemented by the provisions of common law of Romanian civil procedure insofar as they are compatible with arbitration and the commercial nature of disputes" (art. 79).

Private international law.
The strongest links are with private international law. In the beginning, a chapter of this discipline, the law of international trade became in time an autonomous discipline. The literature discusses the composite nature of international trade law, as well as the fact that most authors treat it

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