ARTICLES

 

UNIFICATION OR HARMONISATION ATTEMPS IN INTERNATIONAL TRADE LAW

 

INTERNATIONAL TRADE HAS ALWAYS BEEN A FOREFRONT TO HARMONISE AND UNIFY THE LAW. THE NEEDS OF INTERNATIONAL TRADE HAS BROUGHT NATIONAL SOVEREIGNS TO COMPROMISE TOWARDS UNIFICATION OF PRIVATE LAW BOTH ON REGIONAL AND ON INTERNATIONAL LEVEL. AT REGIONAL LEVEL, BESIDES THE EUROPEAN UNION WHICH IS A REGIONAL SINGLE MARKET CONTINUING UNIFICATION PROCESS THROUGH DIRECTIVES AND THE WORKS IN PREPARATION FOR UNIFIED COMPANY AND CONTRACT CODE, THE WORLD ALSO HAS WITNESSED THE OTHER REGIONAL HARMONISATION ATTEMPTS THAT HAVE OCCURRED IN AFRICA AND MOST RECENTLY IN ASIA IN THE AREA OF CONTRACT LAW. AT INTERNATIONAL LEVEL UNIFICATION HAS BASICALLY BEEN ACCOMPLISHED IN THE FOLLOWING MATTERS (BUT NOT LIMITED TO):  INTERNATIONAL COMMERCIAL ARBITRATION, INTERNATIONAL SALES OF GOODS, CARRIAGE OF GOODS BY SEA, SECURITY INTERESTS, INTERNATIONAL PAYMENTS, ELECTRONIC COMMERCE AND THE INTERNATIONAL CHAMBER OF COMMERCE’S INTERNATIONAL RULES FOR INTERPRETATION OF TRADE TERMS (INCOTERMS) AND THE UNIFORM CUSTOMS PRACTISE FOR DOCUMENTARY CREDITS. THIS STUDY IS  DEDICATED  TO EXAMINE  THE  INSTRUMENTS THAT HAS BEEN  FORMED TO HARMONISE CONTRACT LAW, CARRIAGE OF GOODS BY SEA AND TRADE TERMS IN CONJUNCTION WITH THE NEEDS OF INTERNATIONAL COMMERCE FOR UNIFICATION.  

PAST, PRESENT AND FUTURE NEGOTIABLE INSTRUMENTS IN THE CHANGING WORLD

 

MUCH HAD BEEN WRITTEN ABOUT THE NEGOTIABLE INSTRUMENTS, AND MORE HAD THEY BEEN USED.  OFFERS IN WRITING, ADDRESSED BY ONE PERSON TO ANOTHER, SIGNED, AND PROMISING TO PAY A SPECIFIED PERSON OR BEARER A FIXED SUM IN EXCHANGE FOR GOODS IN CERTAIN FUTURE TIME.  DOCUMENTS WHICH HAD BEEN USED SINCE THE DAWN OF TRADE BY THE MERCHANTS OF OLD EUROPE, AND PERHAPS BEST SPECIFIED THEIR OWN NATURE IN THE BILL OF EXCHANGE ACT 1882. BEST SPECIFIED BECAUSE OF THE PRACTICAL ESSENCE OF THAT PARTICULAR ACT OF PARLIAMENT. THE NEGOTIABLE INSTRUMENTS ARE, FURTHERMORE, VIEWED AS ENCOURAGING INTERNATIONAL TRADE BASED ON THEIR EASILY TRANSFERRABLE NATURE. HOWEVER, IN THE 21ST CENTURY THE TRADITIONAL NEGOTIABLE INSTRUMENTS COULD BE DEEMED UNSATISFACTORY FOR BUSINESS, UNCLEAR AND OF DUBIOUS NATURE. AS COMPUTERS HAD TAKEN OVER THE MARKETS IN AN EFFORT TO EASE THE BURDEN ON INTERNATIONAL TRADE, NEGOTIABLE INSTRUMENTS HAD BEEN VIEWED AS OBSOLETE BY MANY DUE TO THEIR ORIGINAL PAPER FORM. ANOTHER POINT OF CRITICISM IS THE FACT THAT THE BILL OF EXCHANGE ACT 1882 HAD BEEN REGULATING THE USAGE OF NEGOTIABLE INSTRUMENTS FROM A TIME WHEN THE USE OF NEGOTIABLE INSTRUMENTS COULD HAVE BEEN DEEMED AS INVALUABLE IN TRADE – WHICH IS NOT THE CASE OF TODAY, HAVING THE WORLD TRADE CURRENCIES OF THE US DOLLAR, JAPANESE YEN AND THE EUROPEAN UNION’S OWN EURO. THE UNIFORM COMMERCIAL CODE (OF THE UNITED STATES OF AMERICA) HAD ALSO BEEN AT THE SCENE, HOWEVER BOTH SIGNIFICANT PIECES OF LEGISLATION MUST NOW STAND THE TEST OF THE ELECTRONIC NEGOTIABLE INSTRUMENTS. AND FURTHER BELOW IT WOULD BE EXPLAINED HOW EXACTLY DOES THE METHOD OF PAYMENT OF THE PAST FARE IN THE MODERN TIMES.

CROSS BORDER TRANFERS OF THE COMPANIES WITHIN THE EU

 

FREEDOM OF ESTABLISHMENT PRESENTS A SIGNIFICANT   PRINCIPLE OF THE EUROPEAN UNION AS A REQUIREMENT FOR FORMING A SINGLE MARKET. ARTICLE 48 OF THE EC TREATY CONFIRMS THAT THE EU COMPANIES SHALL BE TREATED AS A NATURAL MEMBER STATE’S CITIZENS TO APPLY THE RIGHT OF FREEDOM OF THE ESTABLISHMENT.  HOWEVER, THE MOBILITY OF THE COMPANIES WITHIN THE EU STILL CONSTITUTES DIFFICULTIES WHEN PERFORMING THE CROSS BORDER TRANSFERS.  THE INTERPRETATION OF THE COURT OF JUSTICE ENLIGHTENS THE SCOPE OF THE RIGHT THROUGH ITS DECISIONS ON THE SIGNIFICANT CASES IN THE ABSENCE OF THE HARMONISED CODIFICATION WITHIN THE EU. IN THIS PAPER, FIRSTLY THE EXTENT OF THE RIGHT OF FREEDOM OF ESTABLISHMENT WILL BE EXAMINED IN THE CONTEXT OF APPROACH TAKEN BY COURT OF JUSTICE TO DEMONSTRATE ITS RESPOND TO CONFLICTS BETWEEN NATIONAL LAWS AND EU PRINCIPLES. SECONDLY, THE OPPORTUNITIES SUPPLIED BY THE STATUE FOR EUROPEAN COMPANIES (SE) AND THE PROPOSED STATUE FOR EUROPEAN PRIVATE COMPANIES (SPE) TO FREEDOM OF ESTABLISHMENT RIGHT WILL BE ARGUED.

GSC & PATNERS