The Relations between International Conventions on International Trade Contracts

Article excerpt

ABSTRACT. The topic of this paper concerns mainly the relations, conflicts and problems raised by the application of international conventions on trade contracts with an element of extraneity and also the necessity to strengthen the coordination process regarding these international agreements. International conventions do not have a singular existence, being totally disconnected from any other 'foreign' reality; on the contrary, they require numerous connections both with national law systems as well as among themselves.

Keywords: uniform framework of international trade contracts; uniform legal framework; material uniform legal framework; conflictual uniform legal framework

1. Introduction

Most operations within international trade are realized by means of international trade contracts. What is specific to the international trade contract is precisely the fact that it is international, an element which determines potential conflict of laws. From this point of view the main challenge raised by the international trade contract is its juridical regime.

The norms that govern an international trade contract can be found in: a) international conventions applicable to the specific type of contract; b) in the absence of an international convention or for aspect which are not regulated, by an applicable convention or if the specific convention is eliminated through the will of the parties, by national law designated by the parties or by the conflictual norm; c) in the same circumstances as those already presented, by international commercial usage (in order to cover the deficiencies in international conventions or applicable national laws).1

Resorting to juridical norms pertaining to a national law system has a series of inconveniences. The norms of internal law are conceived in such as manner as to regulate juridical relations that have no extraneity elements whatsoever, this leading to an important deficiency concerning the solutions they provide in regulating international trade contracts. Moreover, any appeal to the national law system requires the application of a conflictual norm. Conflictual norms belong to state law, thus ensuing the large number and great variety of conflictual solutions. Taking this situation into account, a series of international conventions were created, conventions which contain conflictual norms within a uniform law.

The uniform framework of the international trade contract represents the ensemble of uniform norms which were elaborated by states or by other entities that are part of the international relations system and which are applicable to international trade contracts.

The uniform framework of the international trade contract is the result of the process of contractual uniformisation (contractual uniform framework), but the most important aspect is the fact that its source is represented by special inter-state conventions (uniform legal framework).

2. Classification of conventions on international trade contracts

Such a classification can be made according to several criteria, but a fondamental distinction must be made according to the nature of the said norms. Thus, bearing this criterion in mind, there are a) conflictual law conventions and b) material law conventions.

The purpose of conflictual law conventions is to establish conflictual uniform legal norms regarding a certain matter. In their turn these conventions can be classified in conventions on general conflictual law (they concern all categories of contracts with an element of internationality) and conventions on special conflictual law (they concern only a certain category of international trade contracts).

Conventions on general conflictual law, although not numerous, have had a major impact upon international trade contracts. Without directly regulating these contracts, they perform an uniformisation of conflictual regulations which are applicable upon the signatories. …