What is international trade law? International
International commercial law can be defined as "the study of the rules applying to operators and operations in international trade".
The Lex Mercatoria has long governed international trade relations between traders. It was a set of unwritten rules of law based on custom and usage. These include loyalty in the conclusion and execution of contracts, the rights of the defense, the rule of the word given. After the First World War, the rapid expansion of international trade revealed the need for a set of common standards and rules. It was from this date that the foundations of the modern free trade order were laid.
International commercial law is the tool enabling the various economic actors to establish international commercial relations framed by the law. International trade law is a complex matter which involves several branches of law (commercial law, business law, company law, international payments law) and draws on multiple sources (national laws, international conventions, lex mercatoria) .
It is necessary to make a distinction between, on the one hand, private international trade law which is a branch of private international law, which governs trade relations between private parties, and on the other hand, international trade law which is a branch of public international law which governs trade relations between states.
The United Nations Commission on International Trade Law (UNCITRAL), established in 1966, is the principal legal body of the United Nations system in the field of international trade law. It is a legal body with universal participation specialized in the reform of the commercial law in the world for more than 50 years. UNCITRAL works to unify and harmonize the rules of international trade.
UNCITRAL should not be confused with the World Trade Organization (WTO) created in 1995 and which follows on from GATT (General Agreement on Tariffs and Trade) activities. The WTO deals with trade policy issues, such as trade liberalization, the removal of trade barriers and unfair trading practices, while UNCITRAL deals with the rules of law applicable to private law subjects in operations international and is therefore not interested in matters relating to relations between States, such as the fight against dumping, countervailing duties or import quotas.
UNCITRAL should not be confused with the International Institute for the Unification of Private Law (Unidroit), created in 1926 and based in Rome, whose purpose is to study means and methods with a view to modernizing, harmonize and coordinate private law, and in particular commercial law, between States or groups of States and, to this end, to develop uniform legal instruments, principles and rules.
Each of these organizations plays a particular role in international trade law. France actively participates in all the work of these international organizations.
International trade law comes from three sources:
- National laws, which are the fundamental source of international trade law.
- International sources, consisting of all international conventions relating to the fields of international commercial law. Three conventions are particularly important:
The Vienna Convention on the International Sale of Goods (1980) which aims to provide a modern, uniform and fair system for contracts for the international sale of goods and which contributes to the security of trade.
The Rome 1 Regulation (2008), which establishes uniform rules for determining the law applicable to contractual obligations of the European Union.
The 1988 Ottawa Convention on International Factoring.
- The Lex Mercatoria, which is a collection of customs and practices that form binding rules for those involved in international trade. Certain private associations have given themselves the objective of codifying these uses. For example, the International Chamber of Commerce is the source of "Incoterms" or Uniform Customs and Practice for Documentary Credits.
The actors of international trade are private and public actors. The particularism of international trade law is also at the stage of international trade operations: sales, transport, distribution, which obey specific rules.
The importance and originality of international trade is manifested in the use of arbitration, which has become the mode of ordinary law resolution of international trade disputes, with the exception of the courts.
Arbitration is an alternative method of dispute resolution, the main advantage of which is that parties to a contract do not have to choose a national jurisdiction. Thus, when the parties have recourse to arbitration, the law chosen to govern the contract will be applied impartially since the arbitrators chosen will generally have neither the nationality of the parties to the contract nor the nationality of the law applicable to the contract.