1. You are asked to recommend measures by which the process and work leading to the creation, conclusion and implementation of private international commercial law instruments aimed at harmonising the law in a particular area could be improved
FOUNDATIONS OF INTERNATIONAL COMMERCIAL LAW LAW-7033Y
Assignment Answer ONE only of the following questions
1. You are asked to recommend measures by which the process and work leading to the creation, conclusion and implementation of private international commercial law instruments aimed at harmonising the law in a particular area could be improved and expedited.
In making your recommendations, make reference to at least three recent international harmonisation projects that you have studied as part of this module, and explain how you feel the work on those projects demonstrated that those involved had learnt from past mistakes, and how the approach could assist in the process of harmonisation going forward
2. “Since World War II, international trade has grown exponentially, and with the increased business between companies in different nations, the need for increased harmonisation of 2 commercial laws has become apparent. Notwithstanding this, and huge efforts being put into harmonisation of international commercial law by institutions such as UNCITRAL and UNIDROIT, some feel that these efforts have had little positive impact on the international scene, and the practice of law is still largely domestic. What we have witnessed, however, is a spontaneous natural convergence of rules drawn from several legal systems, or even rules which are entirely anational and have their force by virtue of international usage and its observance by the merchant community (sometimes called the new lex mercatoria), and this, together with use of international arbitration to resolve cross-border commercial disputes, has created a truly autonomous legal order.” Critically evaluate and analyse this statement ensuring you support your claims by reference to a wide range of sources (primary and secondary).
3. “The fact that national courts are prone to interpret international instruments aimed at harmonising international commercial law by applying their own domestic law concepts makes the prospects of achieving a uniform or harmonious outcome to the interpretation of the international instrument more difficult, and thus achieving the identified aims and objectives of harmonisation less likely. It is imperative therefore that more is done by those involved in harmonisation to promote uniform and autonomous interpretation, including educating national judges on how to interpret international instruments.” Do you agree with this statement? In your discussions, ensure that you refer to examples of how national courts have interpreted identified “international instruments” (such as the UCP, CISG and NYC) and what the international organisations involved in the harmonisation of international commercial law have done to assist or encourage uniform and autonomous interpretation, and whether their efforts have been successful in this regard.
4. “The UNIDROIT Principles of International Commercial Contracts (PICC) were aimed at creating a valid “substantive law” alternative in cross-border commerce to the traditional State-law centred conflict-of-laws approach, which simply identifies a national law of a particular country to govern international contracts and disputes. However, their relevance in this respect is still very limited. On the other hand, the PICC seem to have played a more substantial role as a “global background law”, especially when they are used to interpret or supplement the domestic law or international uniform law instruments, such as the Vienna International Sales Convention or CISG.” Critically discuss to what extent you agree with the statement above, ensuring that you draw on a wide range of primary and secondary legal materials to support your claims.
5. “The ideal of international uniformity has always been regarded as particularly important to maritime law. However, in the context of international carriage of goods by sea, the tradingparticipants in the world can be roughly divided into two groups according to their conflicting interests – they are either the representatives of carriers or of the cargo owners/shippers. Unfortunately, the well-known international Conventions aimed at harmonising national laws on carriage of goods by sea, including the Hague Rules, the Hague Visby Rules, the Hamburg Rules and the Rotterdam Rules, have NOT yet been successful in striking the right balance between the interests of the carriers and those of shippers.” Critically discuss to what extent you agree with the statement above, ensuring that you draw on a wide range of primary and secondary legal materials to support your argument.
6. “For many years, international commercial arbitration was considered to be the only realistic means of resolving cross-border disputes, primarily due to the huge success of a number of international harmonisation instruments including the New York Convention of 1958. The alternatives of mediation and traditional state “litigation” were perceived as still having major disadvantages compared to arbitration, not least because choosing a particular court to hear a dispute was not given global recognition, and mediated settlements as well as court judgments were not being recognised and enforced abroad. This landscape has now changed dramatically with the arrival of three new treaties: The Hague Conference’s Conventions on Choice of Court Agreements and Recognition and Enforcement of Foreign Judgments, and UNCITRAL’s Singapore Convention. Adoption of these instruments will result in a much wider choice of alternatives to international commercial arbitration for international dispute resolution.” Critically evaluate this statement, making sure that you engage with the relevant international instruments and supporting commentary.
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