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The distinction between ITL and other branches of law

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The distinction between ITL and other branches of law

 

  1. The ITL and the International Public Law (IPcL)

The IPcL consists of legal rules that regulate the relations between different states or between states and international organizations.

The distinction between ITL and IPcL: in the first place, the object under settlement of the ITL is wider than that of IPcL, thus, in the relations of international trade are involved not only the states but also merchants, natural or legal persons.

In the same time, the object under settlement of ITL is more restrained than the one of IPcL, thus, within all the relations between states, which may be cultural, political, military, the ITL regulates only those that are related to international trade.

Similarities between the 2 branches of law, mainly concerning the state as a common subject of law and the common international sources of law=the treaties.

  1. The ITL and International Private Law (IPvL)

The IPvL is a branch of each national system of law. It contains all legal rules that regulate the juridical relations between natural or legal persons which involve a foreign element.

Unlike the other branches of law, the IPvL contains legal rules that solve the conflict between several systems of law that may be applicable. In other words, the legal rules of IPvL indicate the foreign law that should apply to a certain juridical rule with a foreign element.

The rules of IPvL are reference rules because they send to the national legal rule which is applicable to a specific case.

Concerning the distinction between ITL and IPvL: in the first place, the object under settlement of the ITL is wider than the one of IPvL thus in the relations of international trade are involved not only natural or legal persons but also states. In the same time, the object under settlement of ITL is more restrained than that of IPvL, thus, within all relations between natural or legal persons which involve a foreign element, the ITL only regulates those that are commercial.

The similarities between ITL and IPvL:

      -the method of conflict of laws, which is a common regulating method for both branches;

-          the merchants, natural or legal persons, are common in both branches.

  1. ITL and Commercial Law (CL)

The legal rules of CL may actually be included in the ITL so, in a juridical relation of international trade, when we should apply a national legal rule, this one is selected among the national legal rules of CL.

The exact denomination of this branch of law

 In the juridical doctrine, the authors have used several denominations for this branch of law, as follows:

  1. the International Private Law of Commerce – this cannot be accepted because it suggests the existence of a single International Private Law which applies worldwide.
  2. the International Law of Trade- NOT-it suggests that this branch of law is, in fact, a part of the International Public Law, which is not true.
  3. the Commercial International Law-NOT-it suggests the existence of a single and unitary commercial law which applies worldwide.

As a consequence, the scientific denomination of the branch, as also stated in the works of World Trade Organization, is International Trade Law. This denomination reflects the object under settlement of the branch, that is the relation of international trade.

The fundamental principles of ITL

Being placed between the international systems of law and IPcL, the fundamental principles of ITL are, in fact, those that characterize the relations between states, as stated in the United Nations Charta.

Among these principles, we should mention those that are directly applicable to the relations of international trade, as follows:

1.      the Principle of Equality of the states;



2.      the Principle of a Peaceful settlement of disputes between states, including the economic ones;

3.      the Principle ‘Pacta sunt servanda’ (the accomplishment of obligations assumed through treaties or contracts is compulsory=the contract is the law  of the parties);

4.      the Principle of International Economic Cooperation and Mutual Advantage.

There are also specific principles of ITL, provided by the international agreement creating WTO. The most important are: the Principle of Freedom of Trade and the Principle of Free Circulation of goods, services and capital.

Another specific principle, derived from the Principle of Free Trade, is the one of Free Competition.

Due to national elements of the ITL, we should add the Principle of Contractual Freedom.

The sources of ITL

(the way in which rules are expressed)

The sources are as follows: international sources and national/internal sources.

  1. International sources are those sources of IPcL that also contain legal rules related to juridical rules of international trade. The international sources are: the custom and the treaty
    • The custom is the oldest unwritten source of the ITL. It represents a practice so long      established and respected that is applied by the states as a law, as a compulsory legal rule.

When a custom regulates a matter of international trade, it represents a source of ITL.

E.g. the carriage of goods by sea is regulated mainly by custom, so, even if there is no clause in the contract, the sender of the merchandise is obliged to bring the merchandise to the place of loading, because there is a custom that the ‘merchandise waits for the ship’

 As a source of law, the custom is different from the international usage and the international common practice. The international usage is an established rule of behavior, but it is not compulsory, so, its non-observance does not produce any juridical consequences.

The international common practices are rules for the delivery of merchandise and for sharing the shipment expenses in the international sale of merchandises. They are established by the practice of merchants and are not compulsory.

·         The treaty is the most important written source of ITL. Regardless of its denomination (protocol, agreement, convention, final act), the treaty represents the agreement between 2 or more states through which they agree to regulate, in a certain manner, their mutual relations within a specific field. When this specific field is related to international trade, the treaty becomes an international source of ITL.

The treaties may be classified as follows:

  1. General multilateral or bilateral treaties which regulate other matters and exceptionally they contain several legal rules related to the juridical rules of international trade.

The most complete international treaty is the UN Charta. This general treaty is not directly applicable to the international trade, but the principles provided by it are also applicable to the relations of international trade.

  1. Special/ specific multilateral/bilateral treaties which regulate directly issues of international trade (the most important sources of the ITL).

E.g. 1964 Convention concerning the Uniform law on the international sale of merchandise;

        1961 Convention of the Arbitration Agreement;

        1956 Convention concerning the carriage of merchandise by sea;

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