Foreign economic activity. Sources of law in the field of foreign economic activity (the most important)

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Foreign economic activity. Sources of law in the field of foreign economic activity (the most important)

Lecture notes, cheat sheets

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63. Sources of law in the field of foreign economic activity

Legal regulation of foreign economic activity is a complex legal support, consisting of interacting and interrelated legal sources of international and national character.

International sources:

1) International Treaties of two types:

▪ establishing the basis of international economic relations (trade agreements, commodity agreements, loan agreements);

▪ creating uniform (unified, harmonized) legal regulation of international commercial transactions on the basis of uniform conflict of laws and substantive rules of private law (conventions containing unified rules aimed at uniform regulation of international commercial transactions - UN Convention on Contracts for the International Sale of Sales (1980) , Ottawa Convention on International Financial Leasing (1988));

2) Decisions of international courtswhich are of great importance for the legal support of international commercial contracts. The most significant in this area is the practice of European international courts considering conflicts in the sphere of economic relations - the precedents of the Court of Justice of the European Union (Luxembourg);

3) business practices - Uniform stable rules that have developed in business practice that do not have binding legal force, but become binding on participants in a commercial transaction, provided that this circumstance is indicated in the commercial contract. Generalized business practices are the International Rules for the Unified Interpretation of Terms (INCOTERMS), which contain the basic basic terms of delivery (for example, basic terms of delivery - a typical set of obligations of the seller and buyer in international trade); unified rules and customs for documentary credits, unified rules for INCASSO, unified rules for contractual guarantees, etc.

4) Conflict rules - establish the national legal system to be applied to the obligations of the parties. Conflict rules can be contained both in an international treaty and in national legislation. The law applicable to contractual obligations is determined in two ways:

▪ the parties to the contract can independently choose the applicable law (subjective binding);

▪ if the parties have not made such a choice, the legal order most closely related to the contract (objective binding) shall be applied.

It may turn out that the legal system has several conflict of laws rules for the same legal relations. In this case, the following conflict of laws rules apply:

a) of international legal origin;

b) special legislation; c) existing at the time the legal relationship arose.

The actions of the parties to a foreign economic transaction regarding the legal support of an international commercial contract should be as follows:

▪ determination of international conventions applicable to the transaction;

▪ choice of international customs applicable to the subject of the transaction;

▪ clarification of the rules in force in the field of regional or universal integration adopted within the framework of an international organization;

▪ clarification of the positions of international courts on these issues;

▪ drafting a contract with a set of conditions necessary for the parties;

▪ clarification of the issue of the possibility of using the conflict of laws link - “autonomy of will”;

▪ clarification of the law applicable to the form of the transaction and the status of the parties;

▪ determination of mandatory norms of national law applicable to a given legal relationship;

▪ familiarization with judicial practice;

▪ choice of the judicial system in case of possible conflicts.

Author: Bobkova O.V.

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