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International Commercial Law Soft Law. University of Oslo Giuditta Cordero Moss, Ph.D., Dr.Juris Professor, Oslo University. ”Soft Law”. A set of rules regulating international transactions Does not emanate from national sources of law or international treaties. Sources of ”Soft Law”.

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International commercial law soft law

International Commercial LawSoft Law

University of Oslo

Giuditta Cordero Moss, Ph.D., Dr.Juris

Professor, Oslo University


Soft law
”Soft Law”

  • A set of rules regulating international transactions

  • Does not emanate from national sources of law or international treaties


Sources of soft law
Sources of ”Soft Law”

  • ”Principles rooted in the good sense and common practice of the generality of civilised nations”

  • Usages and practices

  • Model Laws

    • E.g. UNCITRAL Model Arbitration Law

  • Private Codifications

    • E.g. INCOTERMS, UCP 500

  • Restatements

    • E.g. UNIDROIT Principles, European Principles


International conventions sources of soft law
International Conventions - Sources of Soft Law?

  • If they are applicable, they are not soft law but applicable law

  • If they are not applicable: Can soft law achieve application of convention in lieu of ratification?


Soft law grounds in favour
”Soft Law”- Grounds in Favour

  • National law is primarily aimed at regulating domestic relationships

  • National laws differ from one another

  • National laws are confusing and an hindrance for international trade

  • International commercial usages and practices are more adequate to regulate transactions across national borders


Soft law grounds against
”Soft Law” – Grounds against

  • Not a system but a fragmentary collection of rules

  • Rules are too vague

  • Rules are difficult to determine

  • Rules are not issued by competent authorities


Soft law scope of application
”Soft Law” – Scope of Application

  • Soft law is mostly compatible with national laws

  • Soft law is a desirable integration of national law

  • If conflict, the applicable national law prevails


Private codifications
Private Codifications

  • International Chamber of Commerce, ISDA, branch associations

  • INCOTERMS, UCP 500, Model Agreements, Codes, Definitions

  • May be considered as expression of trade practices

  • Are applicable if incorporated by the parties

  • May not prevail over conflicting madatory rules of the applicable law

  • Have a clearly determined scope of application


Incoterms
INCOTERMS

  • ICC Terms of sale regulating:

    • Passage of risk

    • Division of costs

    • Obligations in connection with delivery (customs formalities, transportation, etc.)


Source http www cbsc org alberta tbl cfm fn incoterm
Source: http://www.cbsc.org/alberta/tbl.cfm?fn=incoterm

source:


The 4 groups of terms

Term

E-terms

F-terms

C-terms

D-terms

Delivery

Departure (not cleared or loaded)

Main carriage unpaid (cleared)

Main carriage paid (risk passes)

Arrival (cleared for import only in DDP)

The 4 groups of terms


The 13 incoterms
The 13 INCOTERMS

  • EXW EX WORKS (…named place)*FCA FREE CARRIER (…named place)FAS FREE ALONGSIDE SHIP (…named port of shipment)*FOB FREE ON BOARD (…named port of shipment)CFR COST AND FREIGHT (…named port of destination)CIF COST, INSURANCE AND FREIGHT (…named port of destination)*CPT CARRIAGE PAID TO (…named place of destination)CIP CARRIAGE AND INSURANCE PAID TO (…named place of destination)*DAF DELIVERED AT FRONTIER (…named place)*DES DELIVERED EX SHIP (…named port of destination)DEQ DELIVERED EX QUAY (…named port of destination)*DDU DELIVERED DUTY UNPAID (…named place of destination)*DDP DELIVERED DUTY PAID (…named place of destination)*


Incoterms and governing law
INCOTERMS and Governing Law

  • Integration of applicable law (e.g. Art. 66, 79 CISG- Incoterms are not in contradiction, are specification of when risk passes under normal circumstances)

  • Do not replace applicable law (e.g. Validity, Limitation, Interests, Remedies, etc.)

  • May accommodate requirements of applicable law (e.g. allocate risk of customs duties)


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