Immanuel Kant Baltic Federal University
Kaliningrad, Russia
WHAT IS INTERNATIONAL
DISPUTE RESOLUTION AND
WHY IS IT IMPORTANT?
SESSION ONE
John B. Tieder, Jr., Esq.
McLean, Virginia USA
jtieder@watttieder.com
www.watttieder.com
SCOPE OF COURSE
• Introduction to International Dispute Resolution and
its Relationship to International Commercial Law
• Legal Framework
• Laws, Rules & Practices that Govern
• Treaties
• Uniform Laws
2
INTERNATIONAL COMMERCIAL LAW
• The law which governs international commercial
transactions
• Rules – generally accepted rules that are not law,
but have been promulgated by International
bodies
• Model Laws – laws that are recommended for
enactment by all countries
• Accepted practices
3
INTERNATIONAL COMMERCIAL
TRANSACTIONS
• Any business transaction between citizens of
different countries
• A business transaction between a citizen of one
country and the Government of another country or
a governmental entity in another country, e.g.
province, state, city
• Examples
•
•
•
•
•
•
Sale of commodities
Sale of goods
Sale of services
Sale of securities, e.g. shares, bonds
Licensing, e.g. patents, trademarks, copyrights
Sale of property
4
INTERNATIONAL COMMERCIAL
TRANSACTIONS
• Includes everything connected with such sales
•
•
•
•
•
•
•
•
Shipping
Setting up franchising
Hiring of employees and agents
Distribution Agreements
Methods of payment
Insurance
Resolution of disputes
Anything to do with business
5
PUBLIC INTERNATIONAL LAW WILL
NOT BE COVERED
Relations Of Countries
Border Disputes
Peace and War
Environmental, like Kyoto to reduce greenhouse
gases
• Immunity of Diplomats
•
•
•
•
6
NATIONAL LAW AND ITS LIMITS
• Every country has its domestic laws related to
commercial transactions
• Applies to citizens
• Applies to the state
• Applies to foreigners who work in the Country
• e.g. Civil code of Russian Federation
• Domestic law has no extra-territorial effect
7
INTERNATIONAL LAW AND ITS
LIMITS
• Public International Law is a matter for
Governments
• Commercial International Law applies to those who
engage in international business
• Where does International Commercial Law stop
and where does Domestic Law start?
• e.g. if a Russian company sells to a U.S. company, what law
governs?
8
THE EXTENT OF INTERNATIONAL
TRADE
• Conflict between Free Trade and Protectionism
• Free Trade – Each country can import or export
without taxes (tariffs) or with same level
• Protectionism – protect domestic industries or
products by setting a level of taxes (tariffs) which
make foreign goods more expensive than domestic
9
THE EXTENT OF INTERNATIONAL
TRADE
• Examples
• U.S. Auto Industry
• Good for a segment of economy
• Bad for consumers
• World Trade Organization (WTO)
• All major commercial states
• Russian membership is near
• Basic purpose is to agree on fair tariffs and taxes to assure free
trade
• Successor to General Agreement on Trade and Tariffs (GATT)
10
“THE WORLD IS FLAT” CONCEPT
• Goods and services are not produced by individual
companies in a single country but use the best and
least expensive resources of the world to produce
products or services
• Do not look to your own country
• Who is part of this?
•
•
•
•
•
•
•
•
U.S.
Europe
Russia
China
Japan
India
Pakistan
Approximately 80% of the world
11
REASONS - IMPORTANT TO
UNDERSTAND
• You can decide as business-people or as lawyers
how to employ them for your benefit
• Thomas Friedman, “World Is Flat” lists 10 reasons or
“flatteners”
1. November 9, 1989 – The
Day the Wall Came
Down
2. August 9, 1995 – World
Wide Web through
Netscape becomes
public
3. Work Flow Software
4. Uploading
5. Outsourcing
6. Offshoring
7. Supply – Chaining
8. Insourcing
9. In-Forming
10. New Technologies that
enhance the above
• Digital
• Mobile
• Personal
12
• Virtual
REASONS IMPORTANT TO
UNDERSTAND
• My prediction that International Trade will expand
more over next 10 years than over last 100 years
13
TRADE BETWEEN RUSSIA AND
UNITED STATES
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
U.S. Exports to Russia
$
2,112,500,000
$
2,970,300,000
$
2,578,000,000
$
2,823,400,000
$
3,345,800,000
$
3,364,800,000
$
3,552,700,000
$
2,059,800,000
$
2,092,500,000
$
2,716,200,000
$
2,396,400,000
$
2,447,200,000
$
2,961,000,000
$
3,962,400,000
$
4,700,300,000
$
7,283,300,000
$
9,334,600,000
$
5,332,100,000
$
5,993,700,000
$
8,318,400,000
$
10,695,300,000
$
11,144,500,000
$
10,752,800,000
Russian Exports to U.S.
$
481,400,000
$
1,743,400,000
$
3,244,900,000
$
4,030,100,000
$
3,576,900,000
$
4,319,000,000
$
5,747,200,000
$
5,920,700,000
$
7,658,500,000
$
6,264,400,000
$
6,870,100,000
$
8,617,900,000
$
11,891,300,000
$
15,306,700,000
$
19,828,300,000
$
19,314,200,000
$
26,783,000,000
$
18,199,700,000
$
25,691,100,000
$
34,619,000,000
$
29,364,800,000
$
27,085,700,000
$
21,658,100,000
14
MAJOR LEGAL SYSTEMS
• Three Major Legal Systems
• Civil Law
• Common Law
• Shariá (Islamic Law)
15
Kaliningrad
London
Moscow
Paris
New York
Los Angeles
Las Vegas
Berlin
Beijing
Washington, D.C.
Tokyo
New Delhi
Rio de Janeiro
16
17
18
CONTRACTS
• The heart of a working commercial system is an
enforceable contract
• What are the elements of an enforceable
contract?
•
•
•
•
Object – something contracted for
Some type of exchange
Binding
Mutual
• Does it have to be in writing?
19
CIVIL LAW SYSTEM OF CONTRACT
• Background
• Codified Law
• Started with Roman law which codified relations between
citizens
• Major update under napoleon
• Another re-codification in German in 1860’s and 1870’s
• Covers most of Europe, including Russian Federation
• Adopted in japan (German), Turkey (Swiss), Thailand
(German), Korea and many other Asian countries
• Also in former colonies, e.g. Indonesia (Dutch)
20
ELEMENTS OF CONTRACT
(OBLIGATIONS) UNDER CIVIL LAW
(CIVIL CODE OF RUSSIAN FEDERATION)
• Concept of Contract [Art. 420(1)]
1. A contract shall be considered to be an agreement of
two or several persons concerning the establishment,
change, or termination of civil rights and duties
21
ELEMENTS OF CONTRACT
(OBLIGATIONS) UNDER CIVIL LAW
(CIVIL CODE OF RUSSIAN FEDERATION)
• Freedom of Contract [Art. 421 (1)(2)]
1. Citizens and juridical persons shall be free in concluding a
contract
• Coercion to conclude a contract shall not be permitted except
for instances when the duty to conclude a contract has been
provided for by the present Code, by a law, or by an obligation
voluntarily accepted
2. The parties may conclude a contract which is either
provided for or is not provided for by a law or other legal
acts
22
ELEMENTS OF CONTRACT
(OBLIGATIONS) UNDER CIVIL LAW
(CIVIL CODE OF RUSSIAN FEDERATION)
• Basic Provisions on Conclusion of Contract [Art. 432]
1. A Contract shall be considered to be concluded when
agreement regarding all the material conditions of the
contract has been reached in the form required in
appropriate instances.
• Conditions concerning the subject of the contract, conditions
which are named in a law or other legal acts as material or
necessary for contracts of the particular type, and also all those
conditions relative to which agreement must be reached
according to the statement of one of the parties, shall be
material.
23
ELEMENTS OF CONTRACT
(OBLIGATIONS) UNDER CIVIL LAW
(CIVIL CODE OF RUSSIAN FEDERATION)
• Basic Provisions on Conclusion of Contract [Art. 432]
2. A Contract shall be concluded by means of sending an
offer (proposal to conclude a contract) by one party and
its acceptance (acceptance of the proposal) by the
other party
24
ELEMENTS OF CONTRACT
(OBLIGATIONS) UNDER CIVIL LAW
(CIVIL CODE OF RUSSIAN FEDERATION)
• Moment of Conclusion of Contract [Art. 433]
1. A Contract shall be deemed to be concluded at the
moment of receipt by the person who has sent an offer of
its acceptance.
2. If in accordance with a law the transfer of property also is
necessary in order to conclude a contract, the contract
shall be considered to be concluded from the moment of
the transfer of the respective property (Art. 224).
3. A contract subject to state registration shall be
considered to be concluded from the moment of the
registration thereof, unless established otherwise by a law.
25
ELEMENTS OF CONTRACT
(OBLIGATIONS) UNDER CIVIL LAW
(CIVIL CODE OF RUSSIAN FEDERATION)
• Offer [Art. 435]
1. A proposal addressed to one or several specific persons
which is sufficiently definite and expresses the intention of
the person who has made the proposal to consider
himself to have concluded a contract with the addressee
who will accept the proposal shall be deemed to be an
offer.
• An offer must contain the material conditions of the contract.
2. An offer shall bind the person who sent it from the
moment of its receipt by the addressee.
• If notice of the revocation of an offer has been received earlier
than or simultaneously with the offer itself, the offer shall be
considered to be not received.
26
ELEMENTS OF CONTRACT
(OBLIGATIONS) UNDER CIVIL LAW
(CIVIL CODE OF RUSSIAN FEDERATION)
• Offer [Art. 435]
• An offer received by the addressee may not be revoked
within the period established for its acceptance unless
otherwise stipulated in the offer itself or does not arise from
the essence of the proposal or situation in which it was
made.
27
ELEMENTS OF CONTRACT
(OBLIGATIONS) UNDER CIVIL LAW
(CIVIL CODE OF RUSSIAN FEDERATION)
• Interpretation of Contract [Art. 431]
• In the event of the interpretation of the conditions of a
contract by a court the literal meaning of the words and
expressions contained therein shall be taken into account.
The literal meaning of the condition of a contract in the
event of its ambiguity shall be established by means of
comparing with the other conditions and with the sense of
the contract as a whole.
28
ELEMENTS OF CONTRACT
(OBLIGATIONS) UNDER CIVIL LAW
(CIVIL CODE OF RUSSIAN FEDERATION)
• Interpretation of Contract [Art. 431]
• If the rules contained in paragraph one of the present
Article do not enable the content of the contract to be
determined, the true common will of the parties must be
elicited by taking into account the purpose of the contract.
In so doing all the respective circumstances, including
negotiations preceding the contract and correspondence,
practice being established in the mutual relations of the
parties, the customs of business turnover, and the
subsequent conduct of the parties, shall be taken into
account.
29
ELEMENTS OF CONTRACT
(OBLIGATIONS) UNDER CIVIL LAW
(CIVIL CODE OF RUSSIAN FEDERATION)
• Grounds for Change and Dissolution of Contract
[Art. 450]
1. A change and dissolution of a contract shall be possible
by agreement of the parties unless provided otherwise by
the present Code, by other laws, or by contract.
2. Upon the demand of one of the parties a contract may
be changed or dissolved by decision of a court only”
1) in the event of a material violation of the contract by the other
party;
2) in other instances provided for by the present code, by other
laws, or by contract
30
ELEMENTS OF CONTRACT
(OBLIGATIONS) UNDER CIVIL LAW
(CIVIL CODE OF RUSSIAN FEDERATION)
• Grounds for Change and Dissolution of Contract
[Art. 450]
• A violation of a contract by one of the parties which entails
for the other party such damage that it is deprived in
significant degree of that which it had the right to count on
when concluding the contract shall be deemed to be
material
3. In the event of a unilateral refusal to perform a contract
wholly or partially when such refusal is permitted by a law
or by agreement of the parties, the contract shall be
considered to be dissolved or changed respectively.
31
COMMON LAW
• Common Law is not codified but is based on
customs and practices which become basis of
decisions
• Decisions of Courts are relied upon to determine
how a particular matter will be resolved
• Look for analogous situation, e.g. is a late delivery
due to bad weather and excuse for nonperformance or is it a breach of contract?
• Seasons of the year
• Severity of weather
• Precautions normally employed
32
COMMON LAW
• Read prior cases and come up with closest analogy
• Cases develop as new factors are taken into
account; e.g. automobiles, airplanes, computers,
internet, etc.
33
COVERAGE
• Started in England and followed English colonization
•
•
•
•
•
•
England, Wales, Ireland
U.S.
Canada
Australia/New Zealand
Hong Kong prior to re-incorporation into China
India
34
UNITED STATES
• There are 50 states and each state has its own
common law
• Except for Louisiana which is a Civil Law state
• So have to look at law in each state
35
ELEMENTS OF CONTRACT UNDER
COMMON LAW
•
•
•
•
•
•
Offer
Acceptance that does not deviate from offer
Consideration, something of value
Promissory Estoppel
Mutuality
Legal Purpose
36
FREEDOM TO CONTRACT
• Some laws apply, e.g. U.S. Uniform Commercial
Code, Article 2 for sale of goods
• Limits on amount of interest for late payment
37
INTERPRETATION TOTALLY
OBJECTIVE
• Look only at words
• Intent is not considered
38
BREACH OF CONTRACT
• Material v. Immaterial Breach
• Material excuses performance
• Immaterial – only damages
• Damages
•
•
•
•
Compensatory
Foreseeable
Unforeseeable
Punitive
39
SHARIÁ LAW
• Traditional Islamic law based on the Koran and
teachings of legal scholars
• Four Schools
•
•
•
•
Hanafi
Maliki
Shafi’i
Hanbali
• Applied in its pure form in only limited places, like
Saudi Arabia, Pakistan
• More important for non-commercial matters like
marriage or other family relations
40
SHARIÁ LAW
• Covers or has effect throughout Muslim world
• Many predominately Muslim countries have
adopted Civil Codes
•
•
•
•
•
Egypt
Iraq
Syria
Lebanon
United Arab Emirates
• Civil codes conform to basic principles of Shariá
41
ELEMENTS OF A CONTRACT UNDER
SHARIÁ
Legal Purpose
Competent Person
Oral contracts are as binding as a written contract
Offer and acceptance
Only enforce provisions which are essential to
principal purpose
• Unanticipated Difficulties
•
•
•
•
•
• Allow recessions, not adjustments
• Interest (Riba/Usury) not permitted under Shariá
• Usury is a high rate of interest
• Civil codes allow interest at lower rates – 5% - 6%
42
LEGAL SYSTEM THAT WILL ENFORCE
CONTRACTS
• In addition to a legal system that recognizes
contracts, also need a legal system that will
enforce contracts
• Court system that will enforce agreements as written,
subject only to mandatory rules that may not have been
observed
• Not corruptible
• Difficult to understand
• Many foreigners are afraid of system they do not understand
• U.S. legal system is particularly frightening to foreigners
• Not corruptible
• Very complex and expensive
• Favors locals in some places
43
ALTERNATIVES TO TRIAL
• Negotiation
• Parties meet and try to resolve
• Mediation
• Similar to negotiation but with someone to guide and
explain
• Arbitration
• Less formal trial
44
INTERNATIONAL ORGANIZATIONS
• United Nations (UN)
• UN Educational, Scientific & Cultural
Organisation
• Council of the Baltic Sea States
• Organisation for Security & Co-Operation in
Europe
• Council of Europe
• Energy Charter Treaty
• European Bank for Reconstruction &
Development
• European Conference of Ministers of
Transport
• European Committee for Standardisation
• Hague Conference on Private International
Law
• Organisation for the Prohibition of
Chemical Weapons
• World Bank Food & Agriculture
Organisation
• Interparliamentary Union
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
World Trade Organisation
World Health Organisation
International Civil Aviation Organisation
International Labour Organisation
World Organisation for Animal Health
International Finance Corporation
International Maritime Organisation
International Criminal Police
Organisation
International Military Sports Council
International Organisation on Migration
International Council of Museums
International Committee of the Red
Cross
International Organisation of
Standardisation
International Telecommunication Union
Universal Postal Union
World Meteorological Organisation
45
HAGUE CONVENTION
• Hague Convention signed into effect on July 15,
1955 to, “work for the progressive unification of the
Rules of Private International Law”
• Russia is a member
• Prepare treaties that once accepted would govern the
particular matter addressed
46
HAGUE CONVENTION –
PRIVATE INTERNATIONAL LAW
• Statute of the Hague Conference on
Private International Law
• Convention of 1 March 1954 on civil
procedure
• Convention of 15 June 1955 on the laws
applicable to international sales of goods
• Convention of 15 April 1958 on the law
governing transfer of title in international
sales of goods
• Convention of 15 April 1958 on the
jurisdiction of the selected forum in the
case of international sales of goods
• Convention of 15 June 1955 relating to
the settlement of the conflicts between
the law of nationality & the law of
domicile
• Convention of 1 June 1956 concerning
the recognition of the legal personality of
foreign companies, associations &
institutions
• Convention of 24 October 1956 on
the law applicable to maintenance
obligations towards children
• Convention of 15 April 1958
concerning the recognition &
enforcement of decisions relating to
maintenance obligations towards
children
• Convention of 5 October 1961
concerning the powers of authorities
& the law applicable in respect of
the protection of minors
• Convention of 5 October 1961 on
the Conflicts of Law relating to the
Form of Testamentary Dispositions
• Convention of 5 October 1961
Abolishing the Requirement of
Legalisation for Foreign Public
Documents (4/29/01)
47
HAGUE CONVENTION –
PRIVATE INTERNATIONAL LAW
• Convention of 15 November 1965
on Jurisdiction, Applicable Law &
Recognition of Decrees Relating to
Adoptions
• Convention of 15 November 1965
on the Service Abroad of Judicial &
Extrajudicial Documents in Civil or
Commercial Matters (8/1/00)
• Convention of 25 November 1965
on the Choice of Court
• Convention of 1 February 1971 on
the Recognition & Enforcement of
Foreign Judgments in Civil &
Commercial Matters
• Supplementary Protocol of 1
February 1971 to the Convention on
the Recognition & Enforcement of
Divorces & Legal Separations
• Convention of 4 May 1971 on the
Law Applicable to Traffic Accidents
• Convention of 18 March 1970 on the
Taking of Evidence Abroad in Civil or
Commercial Matters (1/22/00)
• Convention of 2 October 1973
Concerning the International
Administration of the Estates of
Deceased Persons
• Convention of 2 October 1973 on the
Law Applicable to Products Liability
• Convention of 2 October 1973 on the
Recognition & Enforcement of
Decisions relating to Maintenance
Obligations
• Convention of 2 October 1973 on the
law applicable to Maintenance
Obligations
48
HAGUE CONVENTION –
PRIVATE INTERNATIONAL LAW
• Convention of 14 March 1978 on the
law Applicable to Matrimonial
Property Regimes
• Convention of 14 March 1978 on the
Celebration & Recognition of the
Validity of Marriages
• Convention of 14 March 1978 on the
Law Applicable to Agency
• Convention of 25 October 1980 on
the Civil Aspects of International Child
Abduction (8/1/03)
• Convention of 25 October 1980 on
International Access to Justice
(2/1/00)
• Convention of 1 July 1985 on the Law
Applicable to Trusts & on their
Recognition
• Convention of 22 December 1986 on
the Law Applicable to Contracts for
the International Sale of Goods
• Convention of 1 August 1989 on the Law
Applicable to Succession to the Estates of
Deceased Persons
• Convention of 29 May 1993 on the
Protection of Children and Co-operation
in respect of Intercountry Adoption
(9/1/02)
• Convention of 19 October 1996 on
Jurisdiction, Applicable law, Recognition,
Enforcement & Co-operation in respect of
Parental Responsibility & Measures for the
Protection of Children (2/1/07)
• Convention of 13 January 2000 on the
International Protection of Adults
• Convention of 30 June 2005 on the
Choice of Court Agreements
• Convention of 5 July 2006 on the Law
Applicable to Certain Rights in respect of
Securities held with an Intermediary
49
Civil Procedure
Legalisation (Apostille)
Service Abroad
Taking of Evidence
Protection of Children
50
UNITED NATIONS (UN) &
UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW (UNCITRAL)
• UN is an international organization created after
WWII to promote cooperation among nations
• Serves a variety of functions:
•
•
•
•
•
Peace-keeping efforts
Border disputes
Protection of individual rights
Famine relief
Environmental protection
51
UNITED NATIONS (UN) &
UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW (UNCITRAL)
• In Field of Trade Law:
• Various treaties
• UN commission on International Trade Law (UNCITRAL)
• World Intellectual Property Organization (WIPO)
• Protection of patents, trademark, copyrights and other
intellectual property
52
UNCITRAL
• To further the progressive harmonization and
unification of the law of international trade
• Multilateral treaties
• Some widely adopted
• Some new
• Model Laws
• Laws recommended as models for all countries
• Not effective unless adopted by a county
• Benefit of all countries having same law on a subject
• Guides and Recommendations
• No binding effect
• Helpful to those involved
53
OVERALL STATUS OF THE U.N. COMMISSION
ON INTERNATIONAL TRADE LAWS
(UNCITRAL) TEXTS
HTTP://WWW.UNCITRAL.ORG/UNICITRAL/EN/UNCITRAL_TEXTS.HTML
• International Commercial Arbitration and
Conciliation
• 2002 – UNCITRAL Model Law on International Commercial
Conciliation
• 1996 – UNCITRAL Notes on Organizing Arbitral Proceedings
• 1985 – UNCITRAL Model Law on International Commercial
Arbitration
• 1982 – Recommendations to assist arbitral institutions and
other interested bodies with regard to arbitrations under the
UNCITRAL Arbitration Rules – Recommendations to assist
arbitral institutions and other interested
• 1980 – UNCITRAL Conciliation Rules
• 1976 – UNCITRAL Conciliation Rules
• 1958 – Convention on the Recognition & Enforcement of
Foreign Arbitral Awards – the “New York” Convention
54
OVERALL STATUS OF THE U.N. COMMISSION
ON INTERNATIONAL TRADE LAWS
(UNCITRAL) TEXTS
HTTP://WWW.UNCITRAL.ORG/UNICITRAL/EN/UNCITRAL_TEXTS.HTML
• International Sale of Goods (CISG) & Related
Transactions
• 1992 – UNCITRAL Legal Guide on International Countertrade
Transactions
• 1983 – Uniform Rules on Contract Clauses for Agreed Sum
Due Upon Failure of Performance
• 1980 – United Nations Convention on Contracts for the
International Sale of Goods (CISG)
• 1974 – Convention on the Limitation Period in the
International Sale of Goods
55
OVERALL STATUS OF THE U.N. COMMISSION
ON INTERNATIONAL TRADE LAWS
(UNCITRAL) TEXTS
HTTP://WWW.UNCITRAL.ORG/UNICITRAL/EN/UNCITRAL_TEXTS.HTML
• Insolvency
• 2004 – UNCITRAL Legislative Guide on Insolvency Law
• 1997 – UNCITRAL Model Law on Cross-Border Insolvency
• International Payments
• 2001 – United Nations Convention on the Assignment of
receivables in International Trade
• 1995 – United Nations Convention on Independent Credit
transfers
• 1988 – United Nations Convention on International Bills of
Exchange & International Promissory Notes
56
OVERALL STATUS OF THE U.N. COMMISSION
ON INTERNATIONAL TRADE LAWS
(UNCITRAL) TEXTS
HTTP://WWW.UNCITRAL.ORG/UNICITRAL/EN/UNCITRAL_TEXTS.HTML
• Security Interests
• 2008 – Annex to the UNCITRAL Guide on dealing with
security interests in intellectual property
• 2008 – UNCITRAL Legislative Guide on Secured Transactions
• 2001 – United Nations Convention on the Assignment with
Receivables in International Trade
57
OVERALL STATUS OF THE U.N. COMMISSION
ON INTERNATIONAL TRADE LAWS
(UNCITRAL) TEXTS
HTTP://WWW.UNCITRAL.ORG/UNICITRAL/EN/UNCITRAL_TEXTS.HTML
• International Transport of Goods
• 1991 – United Nations Convention on the Liability of
Operators of Transport Terminals in International Trade
• 1982 – Unit of Account Provision and Provisions for the
Adjustment of the Limit of Liability in International Transport
and Liability Conventions
• 1978 – United nations Convention on the Carriage of Goods
by Sea – the “Hamburg Rules”
58
OVERALL STATUS OF THE U.N. COMMISSION
ON INTERNATIONAL TRADE LAWS
(UNCITRAL) TEXTS
HTTP://WWW.UNCITRAL.ORG/UNICITRAL/EN/UNCITRAL_TEXTS.HTML
• Electronic Commerce
• 2005 – United Nations Convention on the Use of Electronic
Communications in International Contracts
• 2001 – UNCITRAL Model Law on Electronic Signatures
• 1996 – UNCITRAL Model Law on Electronic Commerce
• 1985 – Recommendation on the Legal Value of Computer
Records
59
OVERALL STATUS OF THE U.N. COMMISSION
ON INTERNATIONAL TRADE LAWS
(UNCITRAL) TEXTS
HTTP://WWW.UNCITRAL.ORG/UNICITRAL/EN/UNCITRAL_TEXTS.HTML
• Procurement & Infrastructure Development
• 2003 – Model Legislative Provisions on Privately Financed
Infrastructure Projects
• 2000 – UNCITRAL Legislative Guide on Privately Financed
Infrastructure Projects
• 1994 – UNCITRAL Model Law on Procurement of Goods,
Construction and Services
• 1993 – UNCITRAL Model Law on Procurement of Goods and
Construction
• 1987 – UNCITRAL Legal Guide on Drawing Up International
Contracts for the Construction of Industrial Works
60
UNCITRAL
• UNCITRAL accepted International Chamber of
Commerce (ICC) – Private Body
•
•
•
•
•
•
•
•
2000 – Incoterms
1998 – International Standby Practices (ISP98)
1993 – Uniform Rules for Contract Bonds (URCB)
1993 – Uniform Customs and Practices for Documentary
Credits (UCP500)
1990 – Incoterms
1983 – Uniform Customs and Practices for Documentary
Credits
1974 – Uniform Customs and Practices for Documentary
Credits
1962 – Uniform Customs and Practices for Documentary
Credits
61
UNIDROIT INTERNATIONAL
RESTATEMENT OF CONTRACT LAW
• International Institute for the Unification of Private Law
• International Institution located in Rome
• UNIDROIT purpose:
• Study and implement methods of harmonizing Commercial
Law between States
• Contracts are center of International Trade
• Legally binding promise
• Unlike other areas of law, more similarities than
differences
• UNIDROIT is true International Law – set of rules that
would be of worldwide application
62
UNIDROIT INTERNATIONAL
RESTATEMENT OF CONTRACT LAW
63
UNIDROIT INTERNATIONAL
RESTATEMENT OF CONTRACT LAW
64
UNIDROIT INTERNATIONAL
RESTATEMENT OF CONTRACT LAW
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UNIDROIT INTERNATIONAL
RESTATEMENT OF CONTRACT LAW
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UNIDROIT INTERNATIONAL
RESTATEMENT OF CONTRACT LAW
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UNIDROIT INTERNATIONAL
RESTATEMENT OF CONTRACT LAW
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UNIDROIT INTERNATIONAL
RESTATEMENT OF CONTRACT LAW
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UNIDROIT INTERNATIONAL
RESTATEMENT OF CONTRACT LAW
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UNIDROIT INTERNATIONAL
RESTATEMENT OF CONTRACT LAW
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STANDARD FORMS OF CONTRACT
• Various areas of business have developed standard
forms of Contract
• Those involved in the industry understand the terms
and practices of that industry
• Contract forms which are understood by that
industry
• Examples
• Insurance
• Construction and Engineering
• Session VIII
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NEED FOR UNIFORM LAWS
• What as lawyers and business-people can we do to
facilitate this trade or to make it more difficult?
• What can Governments do to facilitate it or make it
more difficult?
• If the laws are the same in each country or the laws
for international business are the same, then we
can predict how our transactions will turn out
• Need uniform laws
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NEED FOR UNIFORM LAWS
• Then, having uniform laws, those laws must be
uniformly enforced
• The courts in Russia and the courts in the U.S. or China, or
India must reach the same conclusion when faced with the
same situation
• Legal system must function without corruption
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ASSIGNMENT
• One-half the class will be attorneys for a Russian
company located in Kaliningrad
• It has agreed to sell 1000 trees (logs) to a New York
company that builds wooden sailing yachts
• The other half of the class will be attorneys for the
U.S. company
• For reasons set forth in the problem, the Russian
company is unable to fulfill completely its contract
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ASSIGNMENT
• You will be required to develop the best arguments
for your client and then present that argument in 3
ways
1. Mock negotiation
2. Mock mediation
3. Request for Arbitration suitable for filing with the ICC
• Goal is to learn how the different methods of
dispute resolution work
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GLOSSARY
• In your materials is a glossary – English on left,
Russian on right
• Someone will give me the Russian terms
• I need, and expect, to learn something from these
two weeks, so I can go home and tell everyone that
I am an expert in Russian legal matters
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WHAT IS INTERNATIONAL
DISPUTE RESOLUTION AND
WHY IS IT IMPORTANT?
SESSION ONE