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Custom & Law Merchant PowerPoint PPT Presentation


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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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Custom & Law Merchant

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Custom & Law Merchant


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Plan

Introduction

  • Custom

  • Law merchant

  • Why a law merchant?

    Conclusion


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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 »


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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


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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


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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


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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


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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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