UK Commercial Law has responded well to the needs of the international business community by facilitating international trade. Analyse

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“UK Commercial Law has responded well to the needs of the international business community by facilitating international trade”. Analyse.

Through the course of this essay it will be shown that the above statement can be partially supported and disagreed with. On the one hand it is true to say that UK Commercial Law facilitates international trade by having straightforward rules that are strictly applied by the English courts in relation to “free on board” and “cost, insurance and fright” contracts. On the other hand such treatment did not follow as a response to the needs of the international business community. This hypothesis will be proved by outlining the needs of the international business community. Followed by an outline of the rules and duties applicable to the seller and buyer under both “free on board” and “cost, insurance and freight” contracts. The examination will include the relevant case law, Acts of Parliament and Conventions. Lastly, some criticisms and analysis of problems, if they exist, that arise with interpreting and consequently applying international trade terms in relation to FOB and CIF contracts under Convention of Contracts for the International Sale of Goods 1980, Hague-Visby Rules 1924, the Sale of Goods Act 1979 and the Carriage of Goods by Sea Act 1971 and 1992, will be presented.

First of all it is important to outline the needs of the international business community. The most important is the free exchange of goods which had been promoted by many countries for a long time. This is evident from the creation of such big organisations as the General Agreement on Tariffs and Trade 1947. GATT was “a multilateral treaty that set out the principles under which its contracting states, on the basis of reciprocity and mutual advantage, were to negotiate a substantial reduction in custom tariffs and other impediments to trade” [I]. The General Agreement on Tariffs and Trade was followed by the Uruguay Round concluded in 1994, and as a result of which the World Trade Organisation (WTO) had emerged, transforming the GATT into a membership agreement [II].

Leaving those big-world organisations aside, it is worth mentioning that the European Community is also known for working on the promotion of the free circulation of goods within the community. This is evident from Articles 23 to 31, of the Treaty Establishing the European Community (Consolidated version established after the Treaty of Nice) and Directive 70/50/EEC [III]. Although the European Community has a great impact on the English Commercial Law, “it has so far had little impact on the laws relating to the international trade transactions.”[IV] There are also other inter-governmental and international agencies that had been working on the process of harmonisation for a long time. For example the United Nations’ Commission on International Trade Law (UNCITRAL), the International Institute for Unification of Private Law (UNIDROIT) and most importantly the International Chamber of Commerce (ICC).

The UNCITRAL was established to remove obstacles of international trade and its role is to prepare and promote conventions and model laws. For example, the UNCITRAL is responsible for the 1980 Vienna Convention on Contracts for the International Sale of Goods (United Nations) and the 1978 Hamburg Rules. The UNIDROIT, which is responsible for the whole of the private law, is responsible for the Hague Convention 1967. Finally the ICC is the international commercial community that, although involved in the international trade on a number of levels, it cannot produce laws or conventions, but one of the many documents produced by the ICC and the most relevant for the purposes of this essay is the establishment of INCOTERMS (International Rules for the Interpretation of Trade terms) [V].

Despite all the efforts of the above outlined agencies and communities, it does not look like the common objective of uniform contract laws, especially those relating to the international sale and purchase of goods and services[VI], will be successfully achieved in the near future. Firstly because harmonisation, particularly by convention, is a very slow process [VII] and although the achievement of the uniform contract law at first seems to appear to have a lot of advantages, in reality such achievement will lead to a lot of problems. The main argument of all those who oppose the harmonisation is that, if achieved, it will lead to difficulties in agreeing on the interpretation of the terms in “these international rules and it would be even more difficult to ensure the international compliance and uniformity in application of these rules” [VIII].

The second reason, which also proves the first part of the hypothesis of the essay, is the reaction to the UK to all of the above mentioned rules, laws and conventions that had been passed by various institutions. The Vienna Convention on Contract for the International Sale of Goods 1980, is not only difficult to apply and interpret as it “leaves out the issues of contractual validity, formality and property rights to national rules”, but it also does not apply in England [IX]. To further illustrate the point, the Hague-Visby Rules, which were originally called Hague Rules established by the International Law Association’s Maritime Law Committee (CMI) in 1924, although introduced into the English law system the same year through the Carriage of Goods by Sea, were nevertheless considered inadequate. After some amendments in 1963, by the CIM, the Hague rules came to be known as the Hague-Visby Rules and were once again incorporated into English law through the Carriage of Goods by Sea Act 1971. In an event of further developments of the law in relation to trade, the Convention of Carriage of Goods 1972 was produced by the UN otherwise known as the Hamburg Rules. Just like the 1980 Convention, Hamburg Rules have no legally binding force in the UK.

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Although on the one hand it could be argued that because UK Commercial law is not really a part to most [X] of the provisions, rules and Conventions that are set out above, aimed at the harmonisation of the international trade to simplify it, UK law cannot be said to “respond” to the needs of the international business communities as such. On the other hand, because of the straightforward rules that are applicable to both FOB and CIF contracts, sometimes referred to as “legal certainty and predictability” [XI], it could be argued that UK Commercial law facilitates international trade.

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