1. ” “ International Trade Law  E-mail : dlwmdl@unife.itdlwmdl@unife.it  Cell: 333-2059733  Question hour : Tuesday 13.00-14.00 (after class, same room)  Course Website : Internal Trade Law (in lingua inglese) Internal Trade Law (in lingua inglese) http://www.unife.it/giurisprudenza/studi are  Place : Via Ercole I d’Este 37  Lezioni : Tuesday and Thursday  Time : 11.00-13.00  Requirement : (commercial law)  Credits : 6

2. ” “ Obligatory literature ITL - I.Carr., International Trade Law, fifth edition (2014), Routledge-Cavendih (extracts on website). - Extracts from manuals and legal journal articles. - Texts of International commercial instruments. Website ITL - Communication will be through ITL website. Consult it before each class. - The site provides, a.o: - Announcements (modifications in day and time classes etc..) - Course schedule (days, themes, type of class); - Reader which contains references to obligatory and optional literature/material to be studied; - Obligatory literature and other texts/documents/material to be studied.

3. ” “ International Trade Law Introduction (Lecture 1) Prof.ssa M.E. de Leeuw, Ph.D., Dr., Università di Ferrara (2015)

4. ” “ Introduction  What is international trade/commercial law?  What is the subject of this course?  What are the sources of ICL?  Harmonisation of the regulation of international commerce  Uniform interpretation of harmonising instruments/methods of interpretation

5. ” “ International Trade Law  Part I: deals with international commercial transactions focussing on the international sale of goods, carriage of goods, insurance and payment (16 classes).  Part II: The regulatory relationship between traders and public authorities, e.g. WTO/GATT rules on e.g. tariffs and dumping, and EU rules on import/export (4 classes)

6. ” “ What is meant with international commercial law?  Commercial: refers to business transactions between parties.  International : refers to the fact that:  the transaction is international;  the law studied is predominantly international, because it derives from international sources. Source: G.Moss

7. ” “ UNCITRAL Model Law on International Commercial Arbitration  CHAPTER I. GENERAL PROVISIONS  Article 1. Scope of application 1  (1) This Law applies to international commercial 2 arbitration, subject to any agreement in force between this State and any other State or States.  2The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.

8. ” “ CISG (1980): “This Convention applies to contracts of sale of goods between parties whose places of business are in different states” (art. 1.1); Hague Convention on the law applicable to international sales of goods (1955): “The mere declaration of the parties, relative to the application of a law or competence of a judge or arbitror, shall not be sufficient to confer upon a sale the international character provided for in the first par.” (art. 1)

9. ” “ An example of international sales transaction The private law aspect (trader-trader):  International sale of goods triggers the conclusion of a bundle of other contracts/documents:  Transport  Insurance  Payments

10. ” “ International sales of goods transaction payment Insurance transport Sale of goods Dispute settlement: court/arbitration

11. ” “ An example of international sales transaction Public law aspects (trader public authorities):  Traders are subject to import/export restrictions (for public policy reasons), custom tariffs or anti-dumping measures to safeguard competitive environment;  Some obligations derive from international sources (WTO, EU), whereas others are of a purely national nature.

12. ” “ Harmonising efforts  From 1950’ onwards there has been a trend in harmonising international commercial law, through instruments such as conventions, models law, standard forms, trade terms and model contracts etc..  The rationale behind the harmonising efforts are enhancing legal certainty and predictability for traders involved in international transactions.  Harmonisation through Conventions lead to unification, but numerous problems. More popular are model contracts, standard forms, trade terms…drawn up by private and branch organisations.  Is harmonisation succesful?  Harmonisation instruments, not comprehensive and harmonisation is far from complete. So the extent that harmonisation is sporadic and incomplete, most harmonising laws are designed to work within and with existing laws (see lecture 2).

13. ” “ Sources International commercial law  There is no unitary body of legal rules regulating international commercial transactions, issued by some international body with the appropriate authority (Conventions, harmonised laws)  Instead there are only a few authoritative sources of law within international commercial law (which do not provide exhaustive regulation of the subject matter)

14. ” “ Sources 1. International Conventions (binding); 2. International trade practice/usage- binding customary law (opinio juris proofed by practice; widely acknowledged and decades of general use in practice); 3. Trans-national sources (a-national law, non-national law, transnational law, soft law, lex mercatoria); 4. State law regulating international transactions (only if the law of that state is applicable to the contract)

15. ” “ Trans-national sources  Codes, standard agreements (contracts), model laws regulating specific international transactions or international contracts generally:  Authors are:  private associations ( ICC ), e.g. adopted INCOTERMS or UCP (..);  Branch associations issue their own standard agreements and codes, e.g. the Baltic and International Marine Council and charterparties (chartercontracts)  International organisations; e.g. UNCITRAL produced series of model laws (e.g. on international commercial arbitration; UNIDROIT which has produced the Principles of International commercial contracts.  Generally acknowledged principles and rules (list have been published- New lex mercatoria):

16. ” “ New lex mercatoria  There is no general definition of what constitutes “new lex mercatoria”, but it has been defined as, e.g.:  “A single autonomous body of law created by the international business community”;  “A set of general principles, and customary rules spontaneously referred to or elaborated in the framework of international trade, without reference to a particular national system of laws.”  It derives from many sources…  It has been criticised as too vague and difficult to determine.  http://www.trans-lex.org http://www.trans-lex.org

17. ” “ Interpretation of harmonised law  Judges have to construe (interpret) uniform international instruments autonomously.  Autonomous construction of a uniform provision can improve, but does not always lead to uniform construction (same solution);  Uniform construction means that the provisions of a uniform provision are construed in the same way by judges and arbitors over the world.  Uniform application is when the same results are reached worldwide (uniform construction and uniform application are not the same).  The aim of the uniform international law is to achieve the same result!

18. ” “ How can autonomous construction be achieved?  Court be aware that when it is constructing a provision of uniform law, he is performing an international function (it should assume the attitude of a supranational court); 1. This attitude means that the uniform instruments should be construed according to the wording (textual), intention (teleological) and background (history), whereby the system of the instrument should be taken into account.  No priority between different methods. 2. No solution  courts should consider foreign cases. Courts should follow the prevailing point of view in foreign cases. 3. National construction (ultimate remedy)

19. ” “ Practice: problems and solutions  Despite the acknowledgement by courts of uniform construction of uniform international instruments of commercial law, there are still many contrary judgments.  Article Hendrikse/Margetson, explain existing general problems regarding the unification of international commercial law, the uniform construction and application, AND discuss measures which can improve uniform constrution/application of provisions, e.g:  Creation of an International commercial Court for all Conventions. It will be the highest authority in the interpretation of international commercial law (questions by national courts/arbiters)  More attention to uniform construction and application in legal education!.......  ………

20. ” “ CISG 1980  Art. 7 (1): “in the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade”

21. ” “ “It is only possible to reduce the danger of diverging interpretations; it is not possible to eliminate it as such” (Lookofsky)