Table Of Content

INTERNATIONAL TRADE AND BUSINESS: LAW, POLICY AND ETHICS Cavendish Publishing (Australia) Pty Limited Sydney • London INTERNATIONAL TRADE AND BUSINESS: LAW, POLICY AND ETHICS Professor Peter Gillies, MA, LLB, PhD Landerer Professor of Business Law School of Economics and Financial Studies Macquarie University Professor Gabriël Moens, JD, LLM, PhD Professor of Law and Director Australian Institute of Foreign and Comparative Law TC Beirne School of Law The University of Queensland Cavendish Publishing (Australia) Pty Limited Sydney • London First published in 1998 by Cavendish Publishing (Australia) Pty Limited, 43 Albert Road, Avalon, Sydney, New South Wales 2107 Telephone: (02) 9918 2199 Facsimile: (02) 9973 1223 Email: [email protected] URL: http://www.cavendishpublishing.com © Gillies, P and Moens, G 1998 Reprinted 2000 All rights reserved. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher and copyright owner. Any person who infringes the above in relation to this publication may be liable to criminal prosecution and civil claims for damages. Australia Cataloguing in Publication Data Gilles, Peter International Trade and Business: Law, Policy and Ethics 1. Foreign trade regulation 2. International business enterprises—Law and legislation I. Moens, Gabriel, 1948 II. Gilles, Peter, 1938 341.75 ISBN 1 876213 25 6 Printed and bound in Great Britain CONTRIBUTORS Chapter 1: The United Nations Convention on Contracts for the International Sale of Goods (Professor Peter Gillies) Chapter 2: The UNIDROIT Principles of International Commercial Contracts (Mr Julian David Wagner with the assistance of Professor Gabriël A Moens) Chapter 3: International Commercial Trade Terms—Incoterms 1990 (Professor Peter Gillies) Chapter 4: Carriage of Goods by Sea (Mr Howard Broderick) Chapter 5: Carriage of Goods by Land and Air (Mr John Livermore) Chapter 6: Financing Exports: Letters of Credit (Professor Gabriël A Moens and Mr Ted Tzovaras) Chapter 7: The General Agreement on Tariffs and Trade (GATT) and the World Trade Organisation (WTO) (Mr Alexander Low) Chapter 8: Anti-dumping and Countervailing Laws in the United States, Australia and New Zealand (Mr ANG Smith) Chapter 9: Trading Blocs: NAFTA (Mr Simon Fisher) Chapter 10: Trading Blocs: the European Union (Professor Gabriël A Moens) Chapter 11: International Commercial Arbitration (Dr Suri Ratnapala and Ms Linda Haller) Chapter 12: Extraterritorial Control of Business (Mr Alexander Bates) v PREFACE This book deals with the core topics of international trade, which include international sales contracts, international commercial terms, carriage of goods by sea, land and air, financing of exports, regulation of imports, international commercial arbitration, extraterritorial control of business, and trading blocs. Every chapter offers a description and analysis of the relevant law, policies and, in some cases, relevant ethical issues, tutorial questions, and a short list of references. In addition, the most important international documents are reproduced in full or in part to facilitate the study of international commercial law. International trade and business law courses are increasingly offered by most law and business schools. This increase is a response to repeated requests, by the legal and business communities, to provide courses for lawyers and business people to enable them to provide expert advice on international business practices and export trade law. In particular, International Trade and Business: Law, Policy and Ethics is aimed at students and practitioners, who are interested in international business transactions and want to gain familiarity with the law and practice of international trade law, policies and ethics. It is also hoped that this book will be used by academics as their teaching and research tool in international trade and business law courses. However, the book is not limited to law since it also aims to cover trade and business policies. In addition, the book also deals with relevant ethical issues. We would like to thank the contributors to this volume. Without their dedication and commitment this book would not have been completed. The editorial process was greatly facilitated by the excellent work of Cavendish Publishing, London who ensured that the book met the highest editorial standards. The editors and contributors are also indebted to Jo Reddy, Managing Editor at Cavendish Publishing, London who decided to publish this book and provided us with moral support throughout this project. Professor Peter Gillies Professor Gabriël A Moens March 1998 vii CONTENTS Contributors v Preface vii Table of Cases xxi Table of Legislation xxxv 1 THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 1 INTRODUCTION 1 SPHERE OF APPLICATION OF THE CONVENTION 3 Overview 3 The international element 3 Goods—exclusions 7 Aspects of the contract covered by the Convention—exclusions 8 Convention does not apply to liability for death or personal injury 10 Exclusion of the Convention by the parties 10 GENERAL PROVISIONS OF THE CONVENTION 11 Interpretation 11 Determining intent and related matters 12 Usages 13 Requirement of writing; other requirements of form 13 FORMATION OF THE CONTRACT 14 Offer and acceptance 14 Consideration 17 Intention to create legal relations 18 SALE OF GOODS 18 General provisions 18 Obligations of the seller 20 Conformity of the goods and third party claims 22 Remedies for breach of contract by the seller 24 Obligations of the buyer 28 Remedies for breach of contract by buyer 29 Passing of risk 31 Provisions common to the obligations of buyer and seller 33 TUTORIAL QUESTIONS 41 FURTHER READING 44 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (VIENNA SALES CONVENTION) VIENNA—11 APRIL 1980 46 ix