2 The role of transnational law Flashcards
UPICC
UNIDROIT Principles of International Commercial Contracts
PECL
Principles of European Contract Law
DCFR
Draft Common Frame of Reference
CESL
Common European sales law
Sources of transnational law
(1) Usages of the trade of customs, lex mercatoria. They are a source of law to all effects and, once proven, they are binding.
(2) General principles of law. Once established, they are applied and given effect to.
(3) Soft law. Synonym for transnational law. Originally - refers to sources that do not have binding force, but that are taken into consideration to such an extent that parties voluntarily apply them.
CISG
An uniform law that not only creates binding law as an international convention that is ratified by so many states, but that even gives recognition to the spontaneous rules born out of commercial practise and itself becomes an autonomous body of international regulation that adapts to the changing circumstances independently from the legal systems of the ratifying states.
The CISG is a binding convention, nevertheless, it is sometimes referred to as having, in addition to its direct binding effect, an authoriative effect that goes beyond its territorial and substantive scope of application, and supposedly makes it one of the most important sources of soft law for general contract law.
Harmonisation of specific areas can be achieved through:
(1) through binding instruments such as the 1980 Vienna convention CISG, which creates a uniform law for certain aspects of sale contracts
(2) through instruments issued by international bodies but without binding effect, such as the 1985 UNCITRAL model law on international commercial arbitration, revised in 2006 and meant to be a model for legislators, or the UNCITRAL arbitration rules of 1976, revised in 2010 and meant to be adopted by the parties as an integration of the arbitration agreement
(3) through instruments issued by private organisations such as ICC, and without binding effect, unless the parties to the contract adopt them
INCOTERMS
A publication by the ICC, illustrate how transnational sources may reach harmonisation by supplementing national law.
Apply to the cross-border delivery of goods, and are divided into eleven different terms
UCP 600
A publication by the ICC regulating the payment mechanism of letters of credit (L/C, also called documentary credits), are another example of soft law that supplements the governing law.
The UCP 600 enjoy a general recognition as regulations for letters of credit. They are, at the same time, a source of regulation and a codification of generally acknowledged practices within that area.
Opinio juris ac necessitatis
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