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International trade and business
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INTERNATIONAL TRADE AND BUSINESS:
LAW, POLICY AND ETHICS
Cavendish
Publishing
(Australia)
Pty Limited
Sydney • London
INTERNATIONAL TRADE AND BUSINESS:
LAW, POLICY AND ETHICS
Cavendish
Publishing
(Australia)
Pty Limited
Sydney • London
Professor Peter Gillies, MA, LLB, PhD
Landerer Professor of Business Law
School of Economics and Financial Studies
Macquarie University
Professor Gabriël Moens, JD, LLM, PhD
Professor of Law and Director
Australian Institute of Foreign and Comparative Law
TC Beirne School of Law
The University of Queensland
First published in 1998 by Cavendish Publishing (Australia) Pty Limited,
43 Albert Road, Avalon, Sydney, New South Wales 2107
Telephone: (02) 9918 2199 Facsimile: (02) 9973 1223
Email: [email protected]
URL: http://www.cavendishpublishing.com
© Gillies, P and Moens, G 1998
Reprinted 2000
All rights reserved. Except as permitted under the Copyright Act 1968 (Cth), no part of this
publication may be reproduced or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise, without the prior permission of the
publisher and copyright owner.
Any person who infringes the above in relation to this publication may be liable to criminal
prosecution and civil claims for damages.
Australia Cataloguing in Publication Data
Gilles, Peter
International Trade and Business: Law, Policy and Ethics
1. Foreign trade regulation 2. International business enterprises—Law and legislation
I. Moens, Gabriel, 1948 II. Gilles, Peter, 1938
341.75
ISBN 1 876213 25 6
Printed and bound in Great Britain
v
Chapter 1: The United Nations Convention on Contracts for the International Sale of
Goods (Professor Peter Gillies)
Chapter 2: The UNIDROIT Principles of International Commercial Contracts (Mr
Julian David Wagner with the assistance of Professor Gabriël A Moens)
Chapter 3: International Commercial Trade Terms—Incoterms 1990 (Professor Peter
Gillies)
Chapter 4: Carriage of Goods by Sea (Mr Howard Broderick)
Chapter 5: Carriage of Goods by Land and Air (Mr John Livermore)
Chapter 6: Financing Exports: Letters of Credit
(Professor Gabriël A Moens and Mr Ted Tzovaras)
Chapter 7: The General Agreement on Tariffs and Trade (GATT) and the World Trade
Organisation (WTO) (Mr Alexander Low)
Chapter 8: Anti-dumping and Countervailing Laws in the United States, Australia and
New Zealand (Mr ANG Smith)
Chapter 9: Trading Blocs: NAFTA (Mr Simon Fisher)
Chapter 10: Trading Blocs: the European Union (Professor Gabriël A Moens)
Chapter 11: International Commercial Arbitration
(Dr Suri Ratnapala and Ms Linda Haller)
Chapter 12: Extraterritorial Control of Business (Mr Alexander Bates)
CONTRIBUTORS
vii
This book deals with the core topics of international trade, which include international
sales contracts, international commercial terms, carriage of goods by sea, land and air,
financing of exports, regulation of imports, international commercial arbitration,
extraterritorial control of business, and trading blocs.
Every chapter offers a description and analysis of the relevant law, policies and, in
some cases, relevant ethical issues, tutorial questions, and a short list of references. In
addition, the most important international documents are reproduced in full or in part
to facilitate the study of international commercial law.
International trade and business law courses are increasingly offered by most law
and business schools. This increase is a response to repeated requests, by the legal and
business communities, to provide courses for lawyers and business people to enable
them to provide expert advice on international business practices and export trade law.
In particular, International Trade and Business: Law, Policy and Ethics is aimed at
students and practitioners, who are interested in international business transactions
and want to gain familiarity with the law and practice of international trade law,
policies and ethics. It is also hoped that this book will be used by academics as their
teaching and research tool in international trade and business law courses. However,
the book is not limited to law since it also aims to cover trade and business policies. In
addition, the book also deals with relevant ethical issues.
We would like to thank the contributors to this volume. Without their dedication
and commitment this book would not have been completed. The editorial process
was greatly facilitated by the excellent work of Cavendish Publishing, London who
ensured that the book met the highest editorial standards. The editors and contributors
are also indebted to Jo Reddy, Managing Editor at Cavendish Publishing, London
who decided to publish this book and provided us with moral support throughout
this project.
Professor Peter Gillies
Professor Gabriël A Moens
March 1998
PREFACE
ix
CONTENTS
Contributors v
Preface vii
Table of Cases xxi
Table of Legislation xxxv
1 THE UN CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS 1
INTRODUCTION 1
SPHERE OF APPLICATION OF THE CONVENTION 3
Overview 3
The international element 3
Goods—exclusions 7
Aspects of the contract covered by the Convention—exclusions 8
Convention does not apply to liability for death or personal injury 10
Exclusion of the Convention by the parties 10
GENERAL PROVISIONS OF THE CONVENTION 11
Interpretation 11
Determining intent and related matters 12
Usages 13
Requirement of writing; other requirements of form 13
FORMATION OF THE CONTRACT 14
Offer and acceptance 14
Consideration 17
Intention to create legal relations 18
SALE OF GOODS 18
General provisions 18
Obligations of the seller 20
Conformity of the goods and third party claims 22
Remedies for breach of contract by the seller 24
Obligations of the buyer 28
Remedies for breach of contract by buyer 29
Passing of risk 31
Provisions common to the obligations of buyer and seller 33
TUTORIAL QUESTIONS 41
FURTHER READING 44
UNITED NATIONS CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALE
OF GOODS (VIENNA SALES CONVENTION)
VIENNA—11 APRIL 1980 46
International Trade and Business: Law, Policy and Ethics
x
United Nations Convention on Contracts for the
International Sale of Goods (Vienna, 1980) 47
Declarations and reservations 48
United Nations Convention on Contracts for the
International Sale of Goods (Vienna Sales Convention) 49
CONVENTION ON THE LAW APPLICABLE
TO CONTRACTS FOR THE INTERNATIONAL
SALE OF GOODS, THE HAGUE—
22 DECEMBER 1986 70
Convention on the Law Applicable to Contracts for the
International Sale of Goods 71
2 THE UNIDROIT PRINCIPLES
OF INTERNATIONAL COMMERCIAL CONTRACTS 79
INTRODUCTION 79
THE UNIDROIT PRINCIPLES 80
Overview 80
THE UNIDROIT PRINCIPLES AND CONTRACT LAW 82
PRE-CONTRACTUAL NEGOTIATIONS 84
FORMATION 85
VALIDITY 87
INTERPRETATION 88
CONTENT 89
PERFORMANCE 89
HARDSHIP AND FORCE MAJEURE 91
Hardship 91
Force majeure 92
NON-PERFORMANCE 93
REMEDIES 94
Right to performance 94
Termination and restitution 95
Damages 95
CONCLUSION 97
TUTORIAL QUESTIONS 98
FURTHER READING 99
UNIDROIT PRINCIPLES OF INTERNATIONAL
COMMERCIAL CONTRACTS, ROME, 1994 100
Introduction of the Governing Council of UNIDROIT,
Rome, 1994 100
Contents
xi
UNIDROIT PRINCIPLES OF INTERNATIONAL
COMMERCIAL CONTRACTS 100
Preamble—purpose of the principles 100
3 INTERNATIONAL COMMERCIAL TRADE TERMS
—INCOTERMS 1990 121
OVERVIEW 121
SOME PRELIMINARY MATTERS 122
Incoterms—their functions 122
Legal status of the Incoterms 123
Incorporation of Incoterms 123
Transport developments impacting upon Incoterms 123
Use of intermediaries and related matters 124
Electronic data transmission 124
THE INCOTERM CATEGORIES, STRUCTURE
OF EACH INCOTERM 126
THE E CATEGORY—‘EX-WORKS’ 128
THE F CATEGORY—FCA, FAS, FOB 130
Free carrier (FCA) 130
Free alongside ship (FAS) 132
Free on board (FOB) 134
THE C CATEGORY—CFR, CIF, CPT, CIP 137
Cost and freight (CFR)/cost, insurance and freight (CIF) 137
Cost and freight (CFR) 142
Carriage paid to (CPT)/carriage and insurance paid to (CIP) 142
Carriage and insurance paid to (CIP) 144
THE D CATEGORY—DAF, DES, DEQ, DDU, DDP 145
Delivered at frontier (DAF) 145
Delivered ex-ship (DES) 146
Delivered ex-quay (duty paid) (DEQ) 148
Delivery duty unpaid (DDU) 150
Delivered duty paid (DDP) 151
TUTORIAL QUESTIONS 152
FURTHER READING 154
INCOTERMS 1990 155
Ex-works (ExW) 155
Free alongside ship (FAS) 157
Free on board (FOB) 160
Cost, insurance and freight (CIF) 162
Carriage and insurance paid to (CIP) 164
International Trade and Business: Law, Policy and Ethics
xii
Delivered at frontier (DAF) 167
Delivered duty unpaid (DDU) 170
4 CARRIAGE OF GOODS BY SEA 175
INTRODUCTION 175
COMPARISON OF HAGUE RULES, AMENDED
HAGUE RULES AND HAMBURG RULES 179
The Vita Food gap 181
Application of rules 182
Application of rules to third parties 184
Non-contractual liability of the carrier 185
Deck cargo 186
Live animals 187
Nautical fault and negligent management 188
Fire 189
When does carriage begin and end? 190
Delay 191
Time bars 193
The package or unit definition 193
Jurisdiction/arbitration 195
Liability under the Hague and the Hamburg rules 196
Limitation of liability 198
Compatibility 200
ARGUMENTS AGAINST THE INTRODUCTION
OF THE HAMBURG RULES 201
The status quo argument 201
The compatibility argument 202
The uncertainty argument 204
TUTORIAL QUESTIONS 206
FURTHER READING 207
APPENDIX 1 210
Details of cargo-carrying regimes of various nations
(as at 25 March 1994) 210
INTERNATIONAL CONVENTION FOR THE
UNIFICATION OF CERTAIN RULES OF LAW
RELATING TO BILLS OF LADING
(THE HAGUE RULES) BRUSSELS—25 AUGUST 1924 216
International Convention for the Unification of Certain
Rules of Law Relating to Bills of Lading 218
Protocol of signature 224
Contents
xiii
ANNEX 225
THE AMENDED HAGUE RULES 229
THE HAMBURG RULES 235
5 CARRIAGE OF GOODS BY LAND AND AIR 249
INTRODUCTION 249
CARRIAGE BY ROAD 250
Background 250
Common carriers 250
Private carriers 251
Carriage of passengers 255
FEDERAL ROAD TRANSPORT LEGISLATION
AND REGULATION 257
Freedom of interstate trade 257
Trade Practices Act 1974 (Cth) and road transport 257
Federal regulation of transport 257
The Interstate Road Transport Act 1985 267
The National Road Transport Commission 267
Ministerial Council 268
The Interstate Commission 268
Road transport: State and Territory legislation 269
State and Territory road transport legislation 269
CARRIAGE BY RAIL 284
Commission’s risk rate 287
Owner’s risk rate 288
INTERNATIONAL RAIL AND ROAD CARRIAGE
CONVENTIONS 292
International Carriage of Goods by Rail 292
International Carriage of Goods by Road 295
CARRIAGE BY AIR 298
Introduction 298
International carriage, baggage and cargo 302
Airlines and passenger liability 322
TUTORIAL QUESTIONS 327
FURTHER READING 330
CONVENTION FOR THE UNIFICATION OF
CERTAIN RULES RELATING TO INTERNATIONAL
CARRIAGE BY AIR (WARSAW
CONVENTION) WARSAW, 1929 332
International Trade and Business: Law, Policy and Ethics
xiv
UNIFORM RULES CONCERNING THE
CONTRACT FOR INTERNATIONAL CARRIAGE
OF GOODS BY RAIL (CIM), 1980 339
CARRIAGE OF GOODS BY ROAD ACT 1965—
SCHEDULE—CONVENTION ON THE CONTRACT
FOR THE INTERNATIONAL CARRIAGE OF
GOODS BY ROAD 371
IATA INTERCARRIER AGREEMENT ON
PASSENGER LIABILITY 384
INTERCARRIER AGREEMENT ON PASSENGER
LIABILITY 384
AGREEMENT ON MEASURES TO IMPLEMENT
THE IATA INTERCARRIER AGREEMENT 385
6 FINANCING EXPORTS: LETTERS OF CREDIT 387
INTRODUCTION 387
BASIC FORMS AND TYPES
OF DOCUMENTARY CREDIT 390
Basic forms of documentary credit 390
Types of letters of credit 391
FUNDAMENTAL PRINCIPLES 397
The doctrine of strict compliance 397
THE PRINCIPLE OF AUTONOMY OF THE
LETTER OF CREDIT 409
The principle 409
The fraud exception 412
The Mareva injunction 416
CONCLUSION 417
TUTORIAL QUESTIONS 418
FURTHER READING 420
ICC UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS 421
ICC arbitration 442
7 THE GENERAL AGREEMENT
ON TARIFFS AND TRADE (GATT) AND
THE WORLD TRADE ORGANISATION (WTO) 443
INTRODUCTION 443
THE GENERAL AGREEMENT
ON TARIFFS AND TRADE 444
THE GATT 1994 445
The framework of GATT 446