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Contents
- Preliminary Material
- Preface
- Contents—Summary
- Contents
- Table of Cases
- Table of Statutes, Constitutional Provisions and Statutory Instruments
- Table of Codes
- Table of Conventions, Protocols and Model Laws
- Table of EC/EU Treaties and Legislation
- Table of Uniform Rules, Uniform Trade Terms, Restatements and Model Forms
- American Law Institute
- Commission on European Contract Law (CECL)
- European Commission
- Institute of International Banking Law and Practice
- Inter-American Commercial Arbitration Commission (IACAC)
- International Bar Association (IBA)
- International Capital Market Association (ICMA)
- International Centre for the Settlement of Investment Disputes (ICSID)
- International Chamber of Commerce (ICC)
- International Federation of Consulting Engineers (FIDIC)
- International Law Commission (ILC)
- International Swaps and Derivatives Association (ISDA)
- International Trade Centre UNCTAD/WTO (ITC)
- Organisation for the Harmonisation of Business Law in Africa (OHADA)
- United Nations Commission on International Trade Law (UNCITRAL)
- UNIDROIT
- Table of Other Instruments
- Table of Abbreviations
- Introduction
- Introductory Reading
- Main Text
- Part I General Principles
- 1 The Nature, History, and Sources of Commercial Law
- Preliminary Material
- A The Nature of Commercial Law
- B The History of Commercial Law
- C The Sources of National Commercial Law
- D The Nature and Sources of Transnational Commercial Law
- 1.40
- Is there an autonomous transnational commercial law?
- The lex mercatoria and the conflict of laws
- The sources of transnational commercial law
- E Lex Mercatoria
- Questions
- Further Reading
- 2 The Conflict of Laws in Commercial Transactions
- Preliminary Material
- A The Nature of Conflict of Laws
- B The Role of Conflict of Laws in International Commercial Law
- C Selected Issues of General Conflict of Laws Theory
- D The Future: Will We Continue to Need Conflict of Laws?
- Questions
- Further Reading
- 3 International Law as it Affects Private Law Conventions Governing Cross-Border Commercial Transactions
- Preliminary Material
- A Nature and Sources
- 3.01
- 3.02
- 3.03
- International law as law
- Relationship between international law and soft law
- Relationship between international law and domestic law
- Implementation of treaties
- Applications of international law
- Influences on international law
- International law and the European Union
- Article 48—Regional Economic Integration Organisations
- The sources of international law
- Customary international law
- Treaty law
- B The Typical Structure of Private Law Conventions
- C Interpretation of Conventions
- D Enforcement of Private Conventional Rights Against States
- E Private Law Conventions and Public Law
- F Reservations and Declarations
- G Withdrawal from a Treaty
- H Conflicts Between Conventions
- Questions
- Further Reading
- 4 Comparative Law and its Relevance to Transnational Commercial Law
- Preliminary Material
- A Nature of Comparative Law and a Brief History
- B Classification of Legal Systems
- C Aims of Comparative Law
- 4.19
- Educational aims of comparative law
- Practical uses of comparative law
- 4.24
- 4.25
- 4.26
- Enhancement of understanding of one’s own law
- Updating of national legal jurisprudence
- Aid to the drafting of new legislation
- Guide to the policy implications of a new development in national jurisprudence
- Development of transnational commercial law
- Refinement of the conflict of laws
- Commercial law dispute resolution
- Consistency of interpretation of uniform laws
- Consistency of determination of international trade usage
- Role of comparative law in transnational practice
- Cultural aims of comparative law
- D Methodology
- E Problems
- Questions
- Further Reading
- 5 The Harmonization of Commercial Law: Instruments and Institutions
- Preliminary Material
- A Introduction
- B The Instruments of International Harmonization
- C The Principal Institutions in the Harmonization of Commercial Law
- Questions
- Further Reading
- 6 Harmonization and Regionalization
- 7 The Harmonization Process
- Preliminary Material
- A Introduction
- B Stages in a Harmonization Project
- A bright idea
- Establishing the existence of a problem and support for its solution
- Economic benefit analysis
- Is the agency the most suitable for the project?
- Survey of the current legal environment
- Approval of the project by the relevant organ of the agency
- Establishment of a study or working group and sub-groups
- What type of instrument?
- Distribution of drafts and consideration at meetings
- Approval of the text
- Committee of governmental experts
- Diplomatic Conference/Session
- Explanatory Report/Official Commentary
- Promotion of the instrument
- C Problems of Harmonization
- D Harmonization and Regionalization
- Questions
- Further Reading
- 1 The Nature, History, and Sources of Commercial Law
- Part II A View Through Illustrative Contracts and Harmonizing Instruments
- 8 International Sales and the Vienna Sales Convention
- Preliminary Material
- A General Introduction
- B The Genesis of the Convention
- C The Sphere of Application
- D Interpretative Rules and the Role of Good Faith
- E Usages
- F Formation
- G The Rights and Duties of the Parties
- H Interest
- I Force Majeure and Exemptions for Non-Performance
- J Risk
- K Conclusion
- Questions
- Further Reading
- 9 Carriage of Goods by Sea
- Preliminary Material
- A Introduction
- B Development of Legal Regulation of Carriage by Sea
- C Unification of the Law Regulating Carriage by Sea
- D Types of Carriage and Transport Documents
- E Bills of Lading
- Definitions and functions
- Bill of lading as evidence of the contract
- Identity of the carrier
- Bill of lading as a receipt
- Reservations
- Reservations referring to the nature, marks, number, and weight
- Notations referring to the condition
- ‘Said to contain’ clauses
- Letters of indemnity
- Bill of lading as a document of title
- Transfer of possession
- Transfer of property
- Stoppage in transit and the right of control
- Delivery of the goods against a bill of lading
- F Other Transport Documents
- Questions
- Further Reading
- 10 Agency and Distribution
- Preliminary Material
- A Introduction
- B The First Company Directive (EEC)
- C The EEC Directive on Commercial Agents
- D The UNIDROIT Convention on Agency in the International Sale of Goods
- E The UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law
- F Franchising
- Questions
- Further Reading
- 11 International Bank Payment Undertakings
- Preliminary Material
- A Introduction
- B Documentary Credits: the UCP and the eUCP
- 11.14
- 11.15
- 11.16
- Classification of credits by payment method
- Principles of documentary credits law
- 11.18
- Autonomy of the credit
- A documentary credit takes effect upon issue
- Documentary character of the credit
- Banks are concerned only with the apparent good order of the documents
- Banks deal as principals, not as agents
- The terms of a credit must be strictly complied with
- A credit is not transferable unless expressly designated as such
- The eUCP
- C Demand Guarantees: the URDG
- D The International Standby Practices (ISP98)
- E The United Nations Convention on Independent Guarantees and Stand-by Letters of Credit
- F ICC Uniform Rules for Contract Bonds
- Questions
- Further Reading
- 12 Financial Leasing: The 1988 UNIDROIT Convention and the UNIDROIT Model Law
- Preliminary Material
- A Introduction
- B Background to the Leasing Convention
- C Sphere of Application
- 12.07
- The transaction is a financial leasing transaction
- The equipment is not to be used primarily for the lessee’s personal, family, or household purposes
- The lessor and the lessee have their places of business in different States
- Those States and the State in which the supplier has its place of business are contracting States or both the supply agreement and the leasing agreement are governed by the law of a Contracting State
- D Exclusion of Convention
- E Purposes of the Convention
- F Evaluation of the Leasing Convention
- G Leasing under the Mobile Equipment Convention and Protocol
- H The UNIDROIT Model Law
- Questions
- Further Reading
- 13 Receivables Financing: The UNIDROIT Convention on International Factoring and the United Nations Convention on the Assignment of Receivables in International Trade
- Preliminary Material
- A Introduction
- B Some Facts about Factoring
- C The UNIDROIT Convention on International Factoring
- D The United Nations Convention on the Assignment of Receivables in International Trade
- Questions
- Further Reading
- 14 International Interests in Mobile Equipment and the Cape Town Convention and Aircraft Protocol: Adding a New Dimension to International Lawmaking
- Preliminary Material
- A Background and Key Features
- B The Two-Instrument Approach
- C Sphere of Application
- D The Concept of the International Interest
- E Default Remedies
- F The International Registry and the Registration System
- G Jurisdiction
- H Priorities
- I Insolvency
- J The Declaration System
- K The Cape Town Convention and the European Union
- L Monitoring Implementation
- M Evaluation of the Convention and Aircraft Protocol
- Questions
- Further Reading
- 15 Transactions in Securities
- Preliminary Material
- A Introduction
- B Geneva Securities Convention: Core Components of the Intermediated System
- C Financial Collateral
- D Close-out Netting
- E Private International Law Reform
- F Roadmap of Imminent Transnational Developments
- Questions
- Further Reading
- 8 International Sales and the Vienna Sales Convention
- Part III Harmonization of General Contract Law
- 16 Restatements of Contract Law
- Preliminary Material
- A Introduction
- B Restatements of Contract Law
- Introduction
- The nature of the Principles
- The purposes of the Principles
- The scope of the Principles
- The sphere of application of the Principles
- The substantive content of the Principles
- The Principles and mandatory rules
- Questions
- Further Reading
- 16 Restatements of Contract Law
- Part IV Transnational Insolvency
- 17 Harmonization and Co-Operation in Cross-Border Insolvency
- Part V International Dispute Resolution
- 18 International Civil Procedure
- Preliminary Material
- A Introduction
- B Jurisdictional Immunities
- C Jurisdiction to Adjudicate
- D Provisional and Protective Measures
- E Conduct of the Proceedings and Judicial Assistance
- F Recognition and Enforcement of Foreign Judgments
- G From International to Transnational Civil Procedure: The ALI/UNIDROIT Principles of Transnational Civil Procedure
- Questions
- Further Reading
- 19 International Commercial Arbitration
- Preliminary Material
- 19.01
- 19.02
- A The Nature of International Commercial Arbitration and its Distinguishing Features
- B The Harmonization of the Law of International Commercial Arbitration
- 19.22
- 19.23
- 19.24
- 19.25
- The UNCITRAL Model Law
- 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
- Rules of arbitration as party-determined framework for dispute settlement through arbitration
- An outline of the UNCITRAL Rules and the ICC Rules
- The principles which underpin the harmonization of international arbitration and the tensions in the modern law
- C Arbitration and the Conflict of Laws
- Other applicable rules and non-binding guidelines and recommendations
- D The Review of Arbitral Awards
- E Recognition and Enforcement of Arbitral Awards
- Questions
- Further Reading
- 18 International Civil Procedure
- Part VI Recurrent Issues of Harmonization
- 20 The Sphere of Application of a Convention; the Role of the Conflict of Laws; Determining the Connecting Factor; Co-Existence and Conflicts of Instruments
- 21 Uniformity in Transnational Commercial Law
- Preliminary Material
- A The Obstacles to Achieving and Maintaining Uniformity
- B Responses (I): Public International Law and its Reception in Domestic Law
- C Responses (II): Devices in Private-Law Instruments
- D Uniformity through Interpretation in a Uniform System?
- E Reservations and Declarations
- F Structural Issues and Technical Support Devices for Achieving and Maintaining Uniformity
- G Contract Practice
- H Do Divergences Matter?
- Questions
- Further Reading
- 22 The Relationship between Transnational Commercial Law Treaties and National Law
- Preliminary Material
- A Introduction
- B Analytic Framework for TCL Treaty–National Law Relationship
- 22.04
- Force of law of TCL Treaties
- Prevailing nature of TCL Treaties
- Scope of treaties and the continuing relevance of national law
- 22.22
- Transactions within core scope—application of substantive TCL Treaty terms
- Penumbra issues—application of substantive TCL Treaty terms or national law, depending on whether a general principle applies
- Issues outside of scope—application of substantive national law terms
- Internal treaty terms—application of substantive national law terms
- The applicable national law
- Application of TCL Treaties to non-Contracting States
- C Compliance with TCL Treaties
- 22.35
- Nature and meaning of compliance with TCL Treaties
- Evidence of compliance with TCL Treaties
- Expectations of compliance with TCL Treaties
- Consequences of non-compliance with TCL Treaties
- Enhancements to compliance with TCL Treaties
- D Conclusion
- Questions
- Further Reading
- Annex I
- Part I General Principles
- Further Material