International Business Law 2

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INTERNATIONAL LAW OF BUSINESSES 2

INTERNATIONAL LAW OF BUSINESSES 2.Run exempted by Dr. Boniface BANAMBA

PRINCIPAL CONTRACTS INTERNATIONAL TRADE.The operations of the international trade are tied and untied mainly within the framework of the contracts which, on the international level increasingly many and are diversified.Among the contracts international trade, one clearly needs a broad place for the international sale which is the most current operation.Account should be held at the same time contract of carriage because the international sale is accompanied by the sales by the things, of a carriage of goods.It is the same with regard to the insurance which is always present in the sale contracts.In addition, other contracts could be evoked since the international trade is not reduced any more to many exchanges, one thinks of:

Contract of financing and guarantee (credit on security, guarantee with first request, the supplier credit, the purchasing credit, the international leasing or international leasing, factoring or international factoring);

One can also think of the international contract of intermediation (international contract of agency, contract of commission, broking, sponsoring);

Contracts of distribution (the exclusive concession, the international frankness or the franchising);

Contracts of technology transfer (contract of communication of the know how or knowledge to make, the technological contract of assistance);

Contracts relating to the markets of construction (a principal contract and contracts of subcontracting);

The contract of international employment.The principal contracts which we will treat are:

TITRATE I:The INTERNATIONAL SALE AND The CONTRACTS IN CONNECTION WITH The SALE

CONTAIN II:SOME PARTICULAR CONTRACTS DREGS WITH THE FINANCING OR THE TRANFERT OF TECHNOLOGY But before we will examine in the preliminary chapter the current clauses in the international contracts.CHAPTER PRELIMINAIRE:CURRENT CLAUSES IN THE INTERNATIONAL CONTRACTS The analysis of the practice of the commercial contracts makes it possible to identify a certain number of usual clauses.Certain clauses are specific to the internal contracts.In all the cases, their effectiveness depends on the law applicable to the contract.Thus, apart from the preamble, the clauses relating to management qualified, the arbitration clauses, the clauses of choice of the applicable duty, one can quote like current clauses:1) CLAUSES OF CONFIDENTIALITE Still called clauses of secrecy, discretion or nondisclosures which have the aim of protecting a secrecy which will be revealed with a potential or real partner.This type of clause covers at the same time the prcontractuelle period and especially the post-contractual period.These clauses make it possible to avoid the risks which are related to the rights of the various countries with regard to the modes of repair of the damage born of the disclosure.However, some is the applicable duty, the international contractual practice shows that these clauses lay down the object of the obligation of confidentiality, i.e. in these clauses one will find infos which will be to regard as confidential.Moreover, one will find, the people subjected to the obligation, the duration of the obligation of confidentiality and the sanctions in the event of nonrespect of the obligation of confidentiality.The clauses of confidentiality are generally present in the contracts where the secrecy is an element of success;it will be the case in the contracts of research, of transfer to know to make, technical aid.2) The CLAUSES Of CONCURRENT OFFER, OF The CUSTOMER MORE SUPPORTS AND FIRST REFUSAL It is about a whole of clauses which make it possible to adapt the contract to the change of circumstances related to the effective or possible intervention of the parts to the contract.The effectiveness of these clauses can be limited in the event of application of the respect of the word given (pacta sunt servanda).- The clause of the concurrent offer It allows a part which can be for example the purchaser to put forward near his contractor, the more favorable offer of a third on the object of the contract in progress.In this case, contracting for example the salesman has an option, that is to say it agrees to align himself on the concurrent proposal and in this case the contract continues in the new conditions;either it refuses and the recipient of quoted by the third (the purchaser) can conclude with the third.In this case the initial agreement which was suspended from now on is cancelled.- The clause of the most favoured customer It obeys the same concern, it is remainder frequent in the same type of contract.According to this clause a part with a contract begins to make profit with its partner conditions more favorable than it would grant a third in a similar contract.- The clause of first refusal It appears as an alternative form with the clause of the concurrent offer.Indeed, according to this clause, a part begins towards the recipient of the clause to propose to him in the future to carry out together an operation determined before concluding this one with a third.In the event of refusal of the recipient to carry out the operation, the committed part is from now on free to conclude with a third.3) CLAUSES OF BEST EFFORT, RESONNABLE CARE, OF DILIGENCE They make it possible the parts to fix by contract contours of the obligation, to reduce it to the obligation means.They are present in the contracts of distribution where they envisage the obligation of the distributor to ensure the sales promotion of its product.4) LIMITING CLAUSES OR EXONERATIVE OF RESPONSIBILITY These clauses take an increasing importance in the international trade.And that because of a multiplication of the assumptions of responsibility.It is however necessary to distinguish between the total exemption clauses from responsibility (clauses of irresponsibility) which is seldom used in the international trade and not easily allowed by the legislation of the State, and the limiting clauses for the responsibility which are more frequent and allowed without certain conditions.5) CLAUSES OF CAUSE BEYOND CONTROL AND HARDSHIP (OR OF SAFEGUARD) There is currently an attempt at coding of the various clauses.The clauses of cause beyond control and hardship take into account the supervening of unforeseen events.The clause of cause beyond control relates to a case of inexecution of contract related to an event which prevents the execution of the contract completely.The clause of hardship relates to a context of more expensive execution of the contract or to a context of imbalance of the contract related to the supervening of an unforeseen event.It should be understood that the setting concerned of the clause hardship is carried out if the unforeseen event without making impossible the execution of the contract modifies the economic equilibrium of it in favour of a part.The objective of the clause of hardship is to make possible the renegotiation of certain provisions of the contract in the event of supervening of unforeseen events.The clause of cause beyond control preserves the partner weakening of the payment of the damages following the inexecution of the contract related to the unforeseen supervening of event.However the inexecution of the contract does not prohibit with the renegotiation of the contract.The clause of cause beyond control makes it possible the parts to renegotiate the contract when that is possible.In practice current international contractual, the two types of clauses tend to being confused since they can have in certain cases the same effect.The structure, or the formulation of these clauses is often the same one.One finds there a definition of the components of cause beyond control or being able to involve an imbalance which requires negotiations;obligations within a certain time to communicate to the other part supervening of an event of cause beyond control or being able to cause a contractual imbalance and finally consequence related to the events which have occurred (renegotiation, suspension of the contract).6) CLAUSES PREVOYANT OF The DAMAGES IN THE EVENT OF RUPTURE Of A PART AND CAUSES PENALE

Under the terms of these clauses, the failure of a part in the execution of an obligation which falls on to him or the delay in this execution puts at the load of the failing part, the obligation to pay an amount of money fixed beforehand by the parts.The difference between the two clauses comes owing to the fact that the clause laying down of the damages in the event of rupture of the contract constitutes the amount of the damages on the assumption of the inexecution of the contract whereas in the penalty clause there is an idea of penalty, one wants to protect, ensure, safety in the execution.7) CLAUSES RELATING TO THE OBLIGATIONS SURVIVORS WITH THE CONTRACT AND CLAUSES OF SURVIVAL OF THE CONTRACT The first apply in the event of suspension of the contract whereas the seconds have the aim of prolonging in the time of the contractual relations which must be normally completed.The clauses relating to the obligations surviving the contract has as an aim:- The liquidation of the contractual liability:it can take the form of a clause of stock of the restitutions of documents and materials various, of a clause of treatment of the pending orders.- Prolongation of the contractual obligations:one can have a clause of nonuse of the knowledge to make, noncompetition, confidentiality.The clauses of survival of the contract borrow largely from the internal contracts.It can be a question of clause of prolongation or clauses of renewal of the contract.- The clauses of prolongation allow ressusciter the expired contract.They are often inserted in the contracts into given duration

- The clauses of renewal or renewal of the contract allow the concluding of a new contract.TITRATE FIRST:THE INTERNATIONAL SALE;THE CONTRACTS DREGS

With The INTERNATIONAL SALE OF The GOODS The international sale contract of the goods is the contract more in sight but there exists beside these contracts related to the first in which some exceptions could be retained.CHAPTER I:THE INTERNATIONAL SALE CONTRACT OF THE GOODS The international sale of the goods is regulated, organized by the convention of comes from April 11, 1980, this convention unifies the rules as regards sale contract of the goods, just as the rules relating to the effects of the sale contract.In addition to the convention of it comes is necessary to indicate that uniform act OHADA bearing general commercial law, in its book V treats sale of the goods, it as should be said as the right of the sale is subjected for the use of the international trade, which has a use particular in the fields of the goods with the intervention of Incoterms.Two points deserve to be considered:formation or the construction of the sale contract on the one hand, effects of the international sale contract of the goods on the other hand.SECTION I:FORMATION AND THE CONSTRUCTION OF THE SALE CONTRACT ACCORDING TO COVENTION'S OF VIENNA OF 1980

PARAGRAPH I:FORMATION OF THE SALE CONTRACT A priori the formation of the sale contract does not raise difficulties, because there is a principle according to which the sale east concludes as soon as there is agreement on the thing and the price.However it is necessary that there is final agreement on the points of the negotiation;it will be said for example that there is agreement when the proposals made by one of the parts are accepted by the other part.On the other hand if the purchaser answers the proposals of the salesman by against proposals, there will be agreement if those were accepted by the salesman.Usually there is a negotiation between the parts with proposals, the purchaser can make against proposals to react to the offer or the proposal of the salesman, but these against proposals can be inserted in the final agreement only into the condition of being accepted by the salesman.Beyond all that, the normal principle as regards sale is that this one is perfect as soon as there is agreement on the thing and the price, but this principle suffers from a certain number of exceptions, it is thus when the law provides that the purchaser taking into account the weakness of his position can reconsider on his acceptance or his adhesion to the contract.Indeed there are contracts in which the law grants a time to the purchaser to reconsider acceptance to which was quoted to him.The whole of the rules which protect the purchaser find in the consumer.In certain cases still the law imposes complementary conditions for the validity of the contract.Example:the law can require a writing so that this contract is to regard as valid (solemn contract).PARAGRAPH II:THE CONSTRUCTION OF THE SALE CONTRACT The sale of the goods can be done by reference to general conditions or reference to a standard contract (in reference to the branch of industry).The sale can also be built by reference to Incoterms:they are especially in this case the maritime sales (which are accompanied by maritime transport).Uniform act OHADA bearing commercial law envisaged these various methods of construction of the sale contracts, can that according to article 207 of the uniform act, the parts can refer in the sale contracts to the provisions of the uniform act itself, or with the professional uses of which they were informed or should have been informed and who, in the trade largely known and are regularly observed by the parts with contracts of comparable nature in the commercial branch considered.Before examining the various methods of construction of sale contract, it is significant to study the general principles as regards sale.General principles as regards sale.Apart from the cases where a writing can be required, the international sale contract of goods is formed by the assent of the parts, it thus acts of a consensual contract, the change of assent was regulated by the convention of comes from 1980, but same convention treated validity of the assents neither of the object of the contract, nor of the capacity to parts to contract.I the assent We will examine the exchange of assent on the one hand and the validity of assent on the other hand The exchange of assent The assent appears by the offer of the salesman and the acceptance of the purchaser.According to the convention of comes, acceptance is valid at the time when it arrives at the author of the offer (theory of the reception) the same system is envisaged by uniform act OHADA.However if under the terms of the formulation of the offer and the practices which were established between the parts or of the uses, recipients of the offer, which can indicate that it accepts it by simply achieving an act referring to this one.Example:by paying the price without communicating its acceptance, this one is valid and takes effect at the time when this...

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