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Course no 1 27.II

International Trade Law(I.T.L)

During the last years,the production of the same goods & services that are necessary to day to day lifebecame

technical impossible and economically inefficient.

However,this participation must be regulated by certain legal rules. Therefore, the I.T.L was conceived to regulate

denominations established within this process of international exchanges.

This regulation may be established :

Between states and merchants of professionals belonging to other countries; Between states; Between merchants of professionals from different states;

As a first approach,we may consider that I.T.L consists in all I.T.L that regulate the international trade relations

between:

-states;

-states and merchants from other countries;

-merchants from different states;

The I.T.L represents a branch of law located between the national system of law and the international oublic law. It

contains :

-legal rules of national law belonging to different branches;

-legal rules of international law;

As for the national legal rules,the I .T.L contains all national legal rules of all the states in the world which regulate

for each state its international trade.This branch of law also contains the rules of international public law

concerning the participartion of states in commercial relations.

The denomination of the branch

In the juridical doctrine,the autors have used several denominations for this branch of law :

The international law of commerce; The international law of trade; The commercial intrernational law; The international business law;

However, this scientific denomination of this branch as also stated in the work of the world trade organization is

I.T.L. This denomination refers to the object under settlement of the branch, meaning the relations of I.T.

The fundamental principles of international trade : Being placed between the national system of law &

international public law, the fundamental principles of the I.T.L are in the first place the principles that regulate

the relations between states as stated in the UN Charta(united nations Charta). Among this principles, we should

mention those that are directly applicable to the relations of I.T such as:

1.The principle of equality of the states

2.The principle of a peaceful settlement of disputes between states including the economic disputes

3.The principle pacta sunt servanda the accomplishment of obligations assumed through treaties & constracts

is compulsory

4.The principle of international economic corporations & of mutual advantage

Beside these, there are also specific principles of I.T.L provided by the international agreement which has created

the World Trade Organization such as :

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5.The principle of freedom of trade

6.The principle of free circulation of goods,services & capital from this one it is derived the following:

6*.The principle of free competition

Due to the national elements of the international trade law:

7.The principle of contractual freedom

The features of I.T.L

The I.T.L represents a specific branch of law because it has its own object under settlement which implies the

juridical relations of I.T and its own method of regulating them. The juridical relations of I.T have 2 features which

make the distinction between them & other juridical relations belonging to other branch of laws.

This features are :

I.Commerciality / The commercial nature

II.Internationality / The international nature

I.Commerciality is defined by each system law

Genarally, there are 2 approaches when defining this feature in the national system of laws as follows:

1.The subjective approach found in the german system of law and according to this ,all juridical relations

concluded between merchants ,commercial companies or individuals are considered to be commercial relations .

Therefore, the quality of merchants of the parties is essential for considering a juridical relation such as the

commercial one.

2.The objective approach found in the roman system of law(The French system of law) and it takes into

consideration the objective nature of the juridical acts or facts. This means that the juridical acts/facts are

commercial because are provided by the law, no matter who concludes it. Therefore, in this system of law, the law

provides a list of juridical acts / facts that are to be considered to be commercial.

There is one exception provided by the Romanian law : Since the entering into force of the new Civil Code ,the

Romanian system of law doesnt recognize anymore concepts such as merchant or commercial. Now tha Civil

Code provides special rules for professionals.

According to art.3 paragraph 2 of the Civil Code: the professionals are those who exploit and enterprise .

At the same time, according to art.3 paragraph 3 of the Civil Codeto exploit means to perform in a in a regular

manner an organized activity consisting in the production and administration or alienation of goods as well as the

provision of services,regardless of the goal of the activity. Goal(patrimonial/nonpatrimonial)

As far as the Romanian system of law is concerned ,this feature of the juridical relation of I.T should be

understanded as it is linked with the performance of an activity by the professionals.

II.Internationality determined by the existence in a certain juridical relation of a foreign international element

.Due to this, the juridical relation in question may be regulated at the same time by two different systems of law.

Therefore, the international element creates the problem of applying a foreign law also known as the problem of

conflict between/of laws.

As a consequence, the national law of each state has tried to define the international element of the international

nature of a juridical relation. According to the Romanian law, all relations concluded between parties having the

headquarters/residence in different states are international relations. In addition, the international treaties havealso tried to ptovide a uniform / unitary definition that says :

a sale is international when the seller & the buyer have the headquarter / residence on the territory of different

states at the moment of concluding the contract.

Concerning the regulation method of international trade law we have :

1. The method of conflict of laws2. The method of uniform law

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1.The method of conflict of lawsis also used in international private law and it means that its provided by rules

that solve the conflict between several systems of law that may be applicable at the same time to a specific case

.This legal rules provide the national law that should apply to a certain juridical relation that has an international

element.

2.The method of uniform law /a special method of I.T.L this means the adoption by the state of international

comp? treaties which contain uniform legal rules related to certain fields of international trade .Ex: The 1930 and 1931 Constitution of the uniform law concerning the bill of exchange : the cheaque(cecul), the

promissory note (bilet la ordin)

Due to this convention, in the system of law ,these are regulated by the same rules.