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英国Paper代写:United Nations convention on contracts for the international sale of goods

2019-10-08 | 来源:51Due教员组 | 类别:Paper代写范文

下面为大家整理一篇优秀的paper代写范文- United Nations convention on contracts for the international sale of goods,供大家参考学习,这篇论文讨论了《联合国国际货物销售合同公约》。《联合国国际货物销售合同公约》在促进国际货物销售法律规范和谐、统一,提高商事纠纷解决的可预见性,降低诉讼成本等方面具有显著成就,也因此在世界范围内也得到广泛适用。但是随着国际商事贸易的不断发展,《公约》显现出严重的缺陷并面临严峻挑战。

The United Nations convention on contracts for the international sale of goods is an important legal norm in the field of international sales of goods. The application of the main body of the convention is the premise of applying the convention to resolve disputes. Article 1 of the convention stipulates the scope of application of the main body of the convention. This article will study the application of CISG convention through the interpretation of this article.

As the most important achievement of uncitral in unifying international trade law, the United Nations convention on contracts for the international sale of goods has become the most important convention in the field of adjusting the contractual relations in the international sale of goods since its entry into force. The application of law refers to the activities of state organs in accordance with the functions and powers and procedures prescribed by law, applying the general provisions of law to solve specific problems, including the application of law in administrative law enforcement and judicial activities. Any law has its scope of application, according to the scope of application to regulate different legal relations. The scope of application of the main body of the convention addresses the question of who will apply the convention. It is the premise and basis for the correct application of the convention and has important research significance. This paper intends to understand and study the scope of application of the main body of the convention through the interpretation of article 1 of the convention.

According to article 1, paragraph 1, of the convention, the basic conditions for its application include two different situations. In the first case, the business status of the party is in a different state and the different states are parties to the convention. The second is when the parties' business status is in different countries and the rules of private international law result in the application of the law of a state party.

In accordance with article 1, paragraph (1) (a), of the convention, the convention applies to contracts for the international sale of goods in which the countries of the parties are parties to the convention. If the countries of the parties are both parties to the convention, it is certainly possible to specify in the sales contract that the convention applies to the settlement of disputes.

The convention adopts the principle of autonomy of will in private international law and provides that the parties to the contracting states may choose by agreement to apply laws other than the convention to settle disputes relating to contracts for the international sale of goods regulated by the convention. It also indicates that the application of the convention is not mandatory, even if the two parties to the sales contract are located in different contracting states where the convention should be applicable. However, if they agree in the contract that the convention is not applicable, they choose other laws other than the convention. However, if the parties in different contracting states at the time of the conclusion of the contract of sale and purchase have not excluded the application of the convention, the convention is naturally applicable in the event of a dispute.

From the perspective of the development trend of international commercial law, "the trend of globalization and non-nationalization of international commercial law is increasingly significant", international commercial law "inherently requires to obtain universal applicability in the world through globalization and become an independent rule system different from domestic civil and commercial law through non-nationalization" I. The convention is one of the most important international commercial uniform legal rules at present. The recognition of the parties' choice conforms to the inevitable trend of the development of international commercial law, which is conducive to the uniform application of international commercial law and the development of international trade.

According to the UN convention on the international sale of goods (1) the first article the provisions of subparagraph (b) if an international sale of goods contract not all of the business place of parties in the states, but if the rules of private international law lead to applicable law of a contracting state, then, as the court is located the states also have a duty to applicable provisions of the convention.

Article 95 of the convention provides that "any state may, on deposit of its instrument of ratification, acceptance, approval or accession, declare itself not bound by article 1, paragraph (1), subparagraph b, of this convention". Therefore, the retention of this clause becomes the greatest controversy in the application of paragraph (1) (b) of article 1. Scholars have always had many views. Some scholars argued that "when the court is within the territory of article 95 of the convention, and the rules of private international law refer to the law of the state in which the court is located, the convention certainly does not apply". Another scholar believed that "as long as the rules of private international law refer to the law of a state party, the convention will apply regardless of whether the state party retains it or not." The third view holds that "the convention does not apply to a party as long as its business status is in a non-state party and the other party is in the state of reservation, regardless of the location of the court." At the same time, another scholar took the place of the court as the standard and believed that "when the court is in the territory of the reserved state, as long as the norms of private international law refer to a state party, the convention shall not apply regardless of whether the state party has made reservations". The other side of the standard of court location is that when the court is located in a non-reserved state, the norms of private international law refer to the laws of the reserved state. Some scholars believe that the convention does not apply at this time. The above views of scholars do not discuss the relationship between the nature of article 1 (1) (b) and the true meaning of article 95, so that the standards are complex and difficult to follow. For various reasons, a considerable number of states parties, including China, the United States and Singapore, have made reservations to the provisions of article 1, paragraph (1) (b).

Firstly, as an effective basis for the settlement of disputes between buyers and sellers in international trade, the convention is of positive significance to the realization of such basic trade principles as freedom of contract, good faith performance and transparency of policies and regulations. Secondly, the application and interpretation of the convention provide basic elements of the rule of law for the establishment of an orderly trade order, such as legal system transparency, compliance with tax and administrative regulations, equality before the law, protection of due process and fair, transparent and efficient adjudication mechanism. Finally, the convention has also played a positive role in the practice of commercial arbitration and the construction of the rule of law in China, and has influenced most countries in the world.

Despite its lofty unified goal and broad influence, the provisions of the scope of application of the main body of the convention still have inevitable limitations: first, the articles of the convention are not perfect, and there are many loopholes and conflicts in the articles. For example, the convention does not define "place of business" and "place of closest association", the relationship between article 1, paragraph (1) (b), and article 95, etc. These problems left greater obstacles to the application of the convention. Second, the scope of application of the main body of the convention lacks uniform interpretation and application. Although article 7 of the convention stipulates that the interpretation of the convention should achieve the great goal of the convention to the greatest extent and follow the principle of good faith, the application and interpretation of the convention are ultimately completed by national courts and arbitral tribunals, and the opinions of scholars of various parties are not binding. Consequently, the application and interpretation of the convention will inevitably deviate, resulting in non-uniform application on an international scale. Third, the international trade of goods in e-commerce is not fully considered. The wide application of Internet technology has not only greatly changed the traditional way of international trade, but also posed a challenge to the international conventions regulating international trade. The framers of the convention are limited by The Times and cannot fully anticipate the changes of today. For example, the "standard of business place" is obviously insufficient in the identification of e-commerce. To sum up, in order to maintain the influence and vitality of the convention, it is inevitable to make appropriate adaptations according to the needs of The Times.

The United Nations convention on contracts for the international sale of goods has made remarkable achievements in promoting the harmony and unification of laws and regulations on the international sale of goods, improving the predictability of commercial dispute settlement and reducing litigation costs. Therefore, it has been widely applied in the world. However, with the continuous development of international commercial trade, the convention shows serious defects and faces severe challenges. We hope to analyze the articles of the convention in detail, discuss the reasons and put forward countermeasures based on the practical needs of the convention in its application. Thus enabling the convention to meet the needs of the new international trade situation and to achieve the ambitious goal of harmonizing and harmonizing international trade law.

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