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Custom & Law Merchant

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Custom & Law Merchant. Plan . Introduction Custom Law merchant Why a law merchant? Conclusion. Custom . Definition : The custom is one the sources of law. It is not a written rule but its existence is due to the union of 2 elements: 1) The repetition of acts

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Presentation Transcript
slide2
Plan

Introduction

  • Custom
  • Law merchant
  • Why a law merchant?

Conclusion

custom
Custom
  • Definition :The custom is one the sources of law. It is not a written rule but its existence is due to the union of 2 elements:

1) The repetition of acts

2) The legal or psychological element which is composed by 3 aspects:

- The « opinion juris »

- The « opinion necesitatis »

- The «  estimacio communis »

This defintion is valid as well in french law as in internationa law

  • The custom in international law

- Custom is a fondamental source of international law.

- According to the article 38 of the charter of the United Nations: in

case of dispute, the court can apply «  the international customs as

proof of a general practice which is accepted as being law »

custom4
Custom
  • The custom cerficate:

The « custom certificate » is an attestation of a foreign lawyer

concerning the existence, the contents and the interpretation

of a foreign law.

Why a « custom certificate »?

  • In case of dispute between foreign persons who are oversea

Who deliver this « custom certificate »?

  • The consulate of the country of origin

Exemple with two japaneses traders

law merchant
Law merchant
  • Definition:

The Law Merchant was originally a body of rules and principles

laid down by merchants themselves to regulate their dealings.

It consisted of usages and customs common to merchants and

traders.

  • Origins of Law merchant
  • International Chamber of Commerce
  • International arbitrators
law merchant6
Law merchant
  • Content of Law merchant

Characteristics of rules:

It is not really rule of law

  • Content could : modified and adapted by the parts under the terms of their contractual will.
  • The commercial activity released, among the rules of Law merchant, three grounds privileged:
  • Incoterms
  • Credit on security
  • Institutions and rules of arbitrations
why a law merchant
Why a law merchant?
  • When apply the law merchant?
  • When traders have mentioned the will to apply it on the contract
  • When the the law previous in the contract is not enough adapted
  • Why apply the law merchant?
  • The Law merchant is more adapted to international trade
  • The need for quick and effective justice
  • The Law merchant is more pragmatic and less doctrinal
  • Some objections to law merchant
  • Law merchant it is not enough precise to be considered as a real law.
  • The law merchant do not from of a State but from customs
conclusion
Conclusion
  • To sum up:

- Custom and Law merchant are linked.

- Law merchant includes all international merchant customs BUT customs are valid in french and international law WHEREAS law merchant is practised only in international trades

- The main fonction is to be a system of law which is added to law of states and the international law, we can say that is a “third law” according to M. VIRALLY.

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