Commercial law - notes
Table of contents
Week 1. Introduction General principles and themes.........................................................................................2
Week 2. International sales of goods and the CISG I scope and interpretation ..................................................7
Week 3. International sales of goods and the CISG II key provisions................................................................16
Week 4. Carriage of goods by sea......................................................................................................................23
Week 5. International bank payment undertakings...........................................................................................33
Week 6. Agency & distribution...........................................................................................................................42
Week 7. Financial leasing...................................................................................................................................51
Week 8. Receivables financing...........................................................................................................................55
Week 9. International mobile equipment...........................................................................................................64
Week 10. Transactions in securities...................................................................................................................71
Week 11. Cross-border insolvency......................................................................................................................81
Week 12. Recurrent issues and challenges of international harmonization of commercial law.......................89
1
,Week 1. Introduction General principles and themes
Nature of commercial law
What drives commercial law?
Commercial law derives from the practices and needs
of merchants to uphold their transactions.
o These transactions should be widespread;
however, the flip side is that because they are so
widespread there are high cost to invalidate them.
The nature of commercial law
Body of law that governs commercial transactions.
What are commercial transactions?
o According to Roy Goode, they are:
Arrangements and agreements between
professionals for the provision and acquisition
of goods, services, and facilities in the way of trade.
Four key characteristics
In civil law states, typically there is a commercial law code, while in Anglo-American
jurisdictions there is not.
What essentially is commercial law and what is not commercial law?
Examples of typical commercial transactions
Carriage of goods | Distributorship
Warehousing | Insurance
Equipment leasing | Receivables financing
The development of transnational commercial law
The evolution of medieval law of merchant
Commercial law had a transnational nature historically.
2
,Characteristics of medieval law of merchant | qualities
Objectively.
o From usage to defined customary law
Universality.
o Transnational in nature.
Reciprocity of rights.
o Procedural and substantive fairness in exchange.
Participatory adjudications.
o Merchants select judges.
Coherence and integrated body of rules.
Organic growth of commercial instruments and institutions.
Characteristics of medieval law of merchant | shortcomings
Not an organized body of law, but disparate assortment of customary rules.
Varies from place to place.
Nationalization of commercial law
Born with an international nature, however it has been through a nationalization phase.
Desire of central courts to expand jurisdiction.
Rise of modern nation state and elaboration of law codes.
o Rise of national laws governing international trade (thus declining role of law of
merchant).
o Narrowing of legal education.
o Growth of conflict-of-laws rules to determine cases with foreign elements.
Return to internationalism and growth of transnational commercial law
Second half of 19th century – beginning 20th century.
Growing recognition that international commercial transactions are different than domestic
ones.
Diversity and inadequate of national legal systems give rise to uncertainty.
o Different laws, practices and expectations.
o Conflict of laws rules do not solve these differences.
These differences gave rise to efforts of harmonization of commercial law.
Problems with harmonization | benefits with harmonization
Many international private law
conventions remain unsuccessful.
3
, Sources of (transnational) commercial law
Sources of (transnational) commercial law
I. Contracts.
o Standard contracts.
o Contractually incorporated rules and trade terms.
II. Law of merchant (lex merchatoria) | trade customs and usages.
III. General principles of law.
IV. National legislation and case law.
V. International and regional documents.
o Conventions (instruments intended to be legally binding).
o Model laws and rules (facultative instruments).
VI. Restatements of scholars.
I. Contracts What about ‘’contract makes law’’?
Party autonomy what the parties agree will be.
o Binding on them and respected by courts or arbitral tribunals.
The validity of contractual provisions normally does not become an issue unless:
o A party challenges it, or
o It raises a public policy issue.
Thus, within the framework of external legal norms people can make their own law.
I. Standard form contracts
Standard contracts as a legal norm can be a debatable statement.
o In real life there are many standard contract terms and terms providers.
o Can be an oversimplification of real situation.
o Lack concrete criteria.
I. Contractually incorporated non-binding rules promulgated by international
organizations
International trade terms, like INCOTERMS, UCP600.
Take effect when incorporates into the contract.
o Help to facilitate uniformity of practices.
o Need to be consistent with the terms of the contract.
II. Customs and usages
Lex mercatoria as unwritten customs and usages of merchants.
o Custom a rule which has obtained the force of law in particular locality.
o Usage settles practice of a particular trade of profession.
Consistently adopted commercial practices can be a factual situation indicative of a legal
norm.
o E.g., the letter of credit binding upon issue.
The central question when can a usage be legally operative?
o By its mere existence (thus practices make law)?
o After the validation of certain external criteria?
II. The normative force of usages
A usage needs to be normative
o Burden lies on those alleging the existence of such custom and usage.
o But mere existence of a usage is not enough.
Certain external criteria of validity must be there in order for a usage to become a legally
binding obligation.
o External validation by a court or arbitral tribunal.
4
Table of contents
Week 1. Introduction General principles and themes.........................................................................................2
Week 2. International sales of goods and the CISG I scope and interpretation ..................................................7
Week 3. International sales of goods and the CISG II key provisions................................................................16
Week 4. Carriage of goods by sea......................................................................................................................23
Week 5. International bank payment undertakings...........................................................................................33
Week 6. Agency & distribution...........................................................................................................................42
Week 7. Financial leasing...................................................................................................................................51
Week 8. Receivables financing...........................................................................................................................55
Week 9. International mobile equipment...........................................................................................................64
Week 10. Transactions in securities...................................................................................................................71
Week 11. Cross-border insolvency......................................................................................................................81
Week 12. Recurrent issues and challenges of international harmonization of commercial law.......................89
1
,Week 1. Introduction General principles and themes
Nature of commercial law
What drives commercial law?
Commercial law derives from the practices and needs
of merchants to uphold their transactions.
o These transactions should be widespread;
however, the flip side is that because they are so
widespread there are high cost to invalidate them.
The nature of commercial law
Body of law that governs commercial transactions.
What are commercial transactions?
o According to Roy Goode, they are:
Arrangements and agreements between
professionals for the provision and acquisition
of goods, services, and facilities in the way of trade.
Four key characteristics
In civil law states, typically there is a commercial law code, while in Anglo-American
jurisdictions there is not.
What essentially is commercial law and what is not commercial law?
Examples of typical commercial transactions
Carriage of goods | Distributorship
Warehousing | Insurance
Equipment leasing | Receivables financing
The development of transnational commercial law
The evolution of medieval law of merchant
Commercial law had a transnational nature historically.
2
,Characteristics of medieval law of merchant | qualities
Objectively.
o From usage to defined customary law
Universality.
o Transnational in nature.
Reciprocity of rights.
o Procedural and substantive fairness in exchange.
Participatory adjudications.
o Merchants select judges.
Coherence and integrated body of rules.
Organic growth of commercial instruments and institutions.
Characteristics of medieval law of merchant | shortcomings
Not an organized body of law, but disparate assortment of customary rules.
Varies from place to place.
Nationalization of commercial law
Born with an international nature, however it has been through a nationalization phase.
Desire of central courts to expand jurisdiction.
Rise of modern nation state and elaboration of law codes.
o Rise of national laws governing international trade (thus declining role of law of
merchant).
o Narrowing of legal education.
o Growth of conflict-of-laws rules to determine cases with foreign elements.
Return to internationalism and growth of transnational commercial law
Second half of 19th century – beginning 20th century.
Growing recognition that international commercial transactions are different than domestic
ones.
Diversity and inadequate of national legal systems give rise to uncertainty.
o Different laws, practices and expectations.
o Conflict of laws rules do not solve these differences.
These differences gave rise to efforts of harmonization of commercial law.
Problems with harmonization | benefits with harmonization
Many international private law
conventions remain unsuccessful.
3
, Sources of (transnational) commercial law
Sources of (transnational) commercial law
I. Contracts.
o Standard contracts.
o Contractually incorporated rules and trade terms.
II. Law of merchant (lex merchatoria) | trade customs and usages.
III. General principles of law.
IV. National legislation and case law.
V. International and regional documents.
o Conventions (instruments intended to be legally binding).
o Model laws and rules (facultative instruments).
VI. Restatements of scholars.
I. Contracts What about ‘’contract makes law’’?
Party autonomy what the parties agree will be.
o Binding on them and respected by courts or arbitral tribunals.
The validity of contractual provisions normally does not become an issue unless:
o A party challenges it, or
o It raises a public policy issue.
Thus, within the framework of external legal norms people can make their own law.
I. Standard form contracts
Standard contracts as a legal norm can be a debatable statement.
o In real life there are many standard contract terms and terms providers.
o Can be an oversimplification of real situation.
o Lack concrete criteria.
I. Contractually incorporated non-binding rules promulgated by international
organizations
International trade terms, like INCOTERMS, UCP600.
Take effect when incorporates into the contract.
o Help to facilitate uniformity of practices.
o Need to be consistent with the terms of the contract.
II. Customs and usages
Lex mercatoria as unwritten customs and usages of merchants.
o Custom a rule which has obtained the force of law in particular locality.
o Usage settles practice of a particular trade of profession.
Consistently adopted commercial practices can be a factual situation indicative of a legal
norm.
o E.g., the letter of credit binding upon issue.
The central question when can a usage be legally operative?
o By its mere existence (thus practices make law)?
o After the validation of certain external criteria?
II. The normative force of usages
A usage needs to be normative
o Burden lies on those alleging the existence of such custom and usage.
o But mere existence of a usage is not enough.
Certain external criteria of validity must be there in order for a usage to become a legally
binding obligation.
o External validation by a court or arbitral tribunal.
4
