Mata Kuliah : Law in International Business
Dosen : Dr. Shidarta, S.H., M.Hum.
Tanggal : 19 Maret 2013 (Kuliah Minggu III)
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Topik : Unification and Harmonization of International Trade Law
Metode : Tatap muka (F2F) dengan presentasi dan diskusi
Substansi:
Unification
The
unification of the law of international trade can be defined as the process by
which conflicting rules of two or more systems of national laws applicable to
the sam international legal transaction is replaced by a single rule. This
process is part of the general movement for the unification of law, especially
private law, which began in Europe during the middle decades of the nineteenth
century. With regard to international commercial transaction, efforts were intensified
after the First World War under the auspices of the League of Nations and other
intergovernmental bodies, including The Hague Conference on Private
International Law, the International Institute for the Unification of Private
Law, and the Sixth International Conference of American States, held at Havana
in 1928.
The
impetus for the unification of law of international trade stems from the
difficulties typically faced by those who engage in international commercial
transactions as a result of the multiplicity of, and divergencies in national
laws. A single transaction involving multiple legal relationship (for instance,
a contract of sale, payment provisions, insurance, transportation, etc.) may be
subject to divergent rules of different national laws, seldom known in all
their particulars to all the parties directly involved. On questions of
performance, interpretation and applications, the parties require adequate
knowledge of the legal conditions governing the performance of the general
obligations. In case of litigation, the courts or arbitral tribunals are faced
with considerable difficulty in determining the law applicable to the different
aspects of an international commercial transaction. Sometimes the parties
include in the contract a stipulation concerning the law applicable to the
various aspects of the transaction. However, where such a clause is absent, the
rules of private international law of the forum are held applicable, and the
different national laws can give divergent solutions for the same problem.
Eventually,
there are some methods have been mainly used to accomplish unification in the
field of international trade, (a) uniform and model national laws, (b)
international conventions, (c) unification of practices in international trade.
Which particularly are standard contract provisions and general conditions of
sale. In addition, the development of trade custom of international commercial
arbitration has also contributed to the elimination of divergences in national
law.
METHODS
- Uniform
and model legislation
Projects for the adoption of uniform or model legislation have been
undertaken for more than a century, principally within regional groupings and
in some instances on a global basis. In some cases, legislation would apply
generally to both domestic and international transactions, and in others would
apply only to international transaction.
The earliest experience of regional groups was that of the Scandinavian
countries, which manifested an interest in unification beginning in the middle
of the nineteenth century. Another major regional effort was made by the
Inter-American Council of Jurists, which sought to develop uniform rules on
various subjects relating to trade and transportation.
More recently, the Benelux countries have undertaken some projects of
unification. The Treaty establishing the European Economic Community contains
provisions and procedures for the approximation or harmonization of the
domestic legislation of its member States which affect the functioning of the
Common Market.
On a wider geographical scale,
the international Intitute for the Unification of Private Law, and
intergovermental body generally known as the Rome Institute, has prepared
studies and drafts snce 1928. The preparation of uniform laws in special fields
has also been a feature of the work of some specialized agenciess, notably the
Food and Agriculture Organization of the United Nations and the International
Labour Organization, and of the regional economic commissions of the United
Nations
- International
Conventions
International
conventions have been used in several ways to contribute the unification of law
relating to international trade. One technique has been to provide in an
international convention for the adoption of an annexed uniform law. This was
done, for example, in the Geneva Conventions Providing a Uniform Law for Bills
of Exchange and Promissory Notess and for a Uniform Law for Cheques.
A more recent
example is The Hague Convention of 1964, whichh provided for the adoption of a
uniform law on the international sale of goods. Another category of
multilaterral conventinon relevant to unificaition are thos which regulate
questions of private international law, in particular issues of choice of law
in transactions involving foreign elements. Perhas the best know such
convention is the Code of Private International Law of 1928 to which fifteen
American Strates have acceded.
Other regional
international conventions are those adopted by the Scandinavian countries for
the settlement of private international law problems in certain
intra-Scandinavian relationships. In still a third category are those
international agreements which lay down substantive rules of law for private
law relationships involving nationals of different countries. There are also
severeal conventions relating to copyright and industrial property. Conventions
have been largely the product of intergovernmental organizations, although in
the field of maritime law, they have been prepared by a non-governmental
organization, the International Maritime Committee, and later adopted by a
diplomatic conference.
Final adoption of the convention occurred in a
governmental body which in some cases was a regional commission, in others a
principal organ of the international organization concerned, and in still other
instances was a conference of States convened for the purpose.
- Unification
of practices in international trade
Apart from
model and uniform legislation and international conventions, one may seek to reduce
the complications inherent in the application of different national laws to
transactions of international trade by the use of standard forms of contract
and general condistions of sale. These have been in use in almost every aspect
of world trade and particularly in certain lines of commodity trade since they
were introduced by the London Commercial Trade Association in 1880s.
They are
normally drawn up by trade associations in the various countries and have been
extended by contacts between these associations on a national, regional or
single-line-of-trade basis. In recent years a special effort has been made
towards the unification of rules and practices in the field of international
trade, especially by such organizaation as the United Nations Economic
Commission for Europe, the International Chamber of Commerce, the International
Law Association, and the Council for Mutual Economic Aid.
Harmonization
Harmonization is the attempts seeking uniformity or
intersection of the principles which are fundamental from different legal
systems that exist and will be harmonized.
There are about several of harmonization institution:
–
World Trade Organization [WTO]
–
The International Institute for the Unification
of Private Law [UNIDROIT]
–
The United Nations Commission on International
Trade Law [UNCITRAL]
–
The
International Chamber of Commerce [ICC]
About the policies that made by UNIDROIT :
- The purpose of UNIDROIT is to prepare the harmonization of private law rules. The problem of trade law rules of one state different to another. For that to be harmonized to facilitate the international trade
- UNIDROIT apply the enforcement of Convention or international agreement that requires the acceptance of its member countries. This is done in order to apply the rules of the Convention into the legal systems of Member States that subjecting himself to that Convention
About the policies that made by UNCITRAL:
- Legal instruments of UNCITRAL legislative texts can be informed of conventions, such as : UN Convention on Contracts for the International Sale of Goods, Legislative Guides and Non Legislative Guides, Non-legislative texts.
- With due observance to the purpose of UNCITRAL, hence this body to form a product or any legal instrument that can provide the needs of modern law to facilitate international trade and development of world economy
ICC harmonizing policies law:
- The ICC is not attempting to create unification of law. The other policy was to give rules and standards in the field of international trade law. Both forms of this rule is not binding.
- It is in fact inseparable from the establishment of the ICC that the corporate world should not or may be slightly influenced by the intervention of the authorities. ICC therefore does not want to become a master like that.
- The ICC rules (including the ICC standards) has a fairly high influence. Even some of the rules have been followed by voluntary and thoroughly by the principals of trade, such as banking and trade contract.
Reflection
Substantively, Learning about unification and harmonization
on third chapter or in third session, We may clearly understand about the
background of unification and harmonization. Moreover, the support detail such
as involved institution mentioned in the subject, they may help us to
understand the subject. Overall, I agree that unification and harmonization are
the attempts or processes to homogenize substance arrangement legal systems,
including also the integration system of legal that was formerly distinct.
Discussion
1.
How big the unification and harmonization role
in international trade? Explain briefly!
2.
Why the institutions of international trade law
need unification and harmonization?
Reference
•
Huala Adolf, 2005, Hukum Perdagangan Internasional, PT. RajaGrafindo Persada, Jakarta, ISBN :
979-3654-55-4.
•
Muhammad Sood, 2011, Hukum Perdagangan Internasional, PT. RajaGrafindo Persada, Jakarta, ISBN :
978-979-769-343-5.
