International Commercial Contract: Part 2

The international contract is a contract that has a foreign element, that is to say that the contract is in contact with one or more order (s) legal (s) abroad (s).

II - Some important legal aspects of International Commercial Contracts

Definition:
The international contract is a contract that has a foreign element, that is to say that the contract is in contact with one or more order (s) legal (s) abroad (s). Specifically, the foreign element may be resident abroad, a party to the contract, nationality, place of contract conclusion, and many other possibilities.

The commercial contract is a contract for a commercial transaction or a contract made by a trader for the purposes of his trade.

Therefore an international commercial contract is the addition of foreign elements in a commercial contractual relationship. Example is a contract between a French commercial agent to an American entrepreneur. Or it may be a contract between a French company and a provider of electronics in China.

Principle of freedom of contract:

In contract law, there is a general principle of contractual freedom. This principle allows contracting parties to choose the law applicable to such relationships, but also in cases of dispute, to appoint the judge (by a jurisdiction clause) or the appropriate arbitrator. Freedom of contract applies of course to international commercial contracts.

This freedom of contract bonus, in that it will consider the provisions of the contract as the law of parties.

But the contractual freedom has limits: mandatory rules. These are internal legislative rules mandatory, so that they become mandatory at international level too. If the parties to violate a law of police, the police law prevail over the law chosen and applied to the contract.

They thus represent a constraint on the parties who should not enter into a contract with these annoyance laws police. But how that legislation is a mandatory? We can mention certain subjects carrying police laws in French and European law: the consumer law and insurance law (provisions relating to the insured) among others.

For example, Article 7 of the Rome Convention of 1980 on the Law Applicable to Contractual Obligations states that:

1. When applying under this Convention the law of a particular country, may be given effect to the mandatory provisions of the law of another country with which the situation has a close connection, if and Since, under the law of that country, such provisions shall apply whatever the law governing the contract. (...).

2. The provisions of this Convention shall restrict the application of rules of law of the forum governing mandatory in the situation whatever the law applicable to the contract. "

But sometimes the parties do not specify in their contract.

Absence of choice by the parties:

In this case, you will find the law of the contract and the court having jurisdiction in any dispute.

However, in this research, international contracts, and therefore the international commercial contracts are subject to the rules of Private International Law (PIL). DIP to determine which law will apply to the international situation and what will be the competent court to hear the situation in case of dispute.

In DIP, there are many rules that can be classified into 3 types:

International substantive rules: it gives a direct solution to the question without going through the resolution of conflict of laws specific to the PID. For example, in international trade law, it is important to mention the Vienna Convention of 1980 on the International Sale of Goods.

The rules on conflict of laws: these are international rules (conventions) and national (internal rules for each state). Where international substantive rule exists, it will find the law applicable to international commercial contract through the first of an international carrier of conflict of laws, and failing such agreement, by the through conflict rules of domestic laws of States.

Among the international conventions bearing on conflict of laws rules may include:

The Hague Convention of 15 June 1955 on the law applicable to international sale of goods, the Hague Convention of 14 March 1978 on the law applicable to agency and representation, the Rome Convention of 1980 on the law applicable to contractual obligations etc. ...

The rules developed by private actors themselves: it is a part of usages and customs relating to international trade (lex mercatoria), and secondly, the arbitral jurisprudence abundant international trade law. Note in this connection the considerable efforts of the Chamber of Commerce (ICC) which brings together all the practices and customs to organize them.

Between the principle of contractual freedom, respect of mandatory rules, properties of Private International Law, the parties to an international commercial contract should be vigilant. But the technicality of the subject is difficult to understand, and whether at the stage of negotiating the contract to its conclusion, execution or poor execution, the advice of a lawyer "multi-skilled" in business law and international law deems necessary. In addition, it should be noted that international trade law and contract law including international trade, most of the time you apply national rules that may vary considerably from one state to another. Therefore, and particularly at the various regulations, the ICC seeks to promote international practices and customs, including international arbitration as an alternative to the diversity of legal systems worldwide.

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