2023/2024
Международные коммерческие сделки
Лучший по критерию «Полезность курса для Вашей будущей карьеры»
Лучший по критерию «Полезность курса для расширения кругозора и разностороннего развития»
Лучший по критерию «Новизна полученных знаний»
Статус:
Маго-лего
Кто читает:
Департамент международного права
Когда читается:
4 модуль
Охват аудитории:
для всех кампусов НИУ ВШЭ
Преподаватели:
Косцов Владимир Николаевич
Язык:
английский
Кредиты:
3
Контактные часы:
32
Course Syllabus
Abstract
The International Commercial Transactions course will cover advanced topics relevant for both academic and practical work with international deals. The course will not focus on the approach of a particular jurisdiction, but will proceed on a more general and comparative level. The course will cover various domestic approaches to conflict of laws, including the conflict of laws revolution in the United States, as well as other advanced topics of private international law, such as choice of law clauses in commercial contracts, overriding mandatory rules and difficult issues of legal characterization including the substance-versus-procedure distinction. We will also discuss aspects of substantive law of international contracts, particularly through the lens of lex mercatoria and the 1980 Convention on the International Sales of Goods (the CISG). The main goal of the course is to enhance students' analytical and issue spotting skills and to enable them to argue both ways on difficult issues of international contracts, whether in a transactional, adversarial or academic setting.
Learning Objectives
- As a result of this course, students should be able to (1) analyze complex conflict of law issues in the context of international commercial transactions and (2) apply substantive rules of law applicable to international commercial transactions at the international level, including the 1980 Convention on the International Sales of Goods and other international instruments in the field
Expected Learning Outcomes
- Explains the basic sources of law applicable to international commercial transactions and the prominent international authorities in the field
- Explains the basic methodology of choosing the law applicable to international commercial transactions
- Names the major international treaties relevant for international commercial transactions and properly applies the rules for determining their applicability
- Explains the notion of international commercial transactions and their various types
- Explains the notion of party autonomy and its legal nature
- Explains the difference between unilateral and multilateral conflicts theories, recognizes common unilateral theories (interest analysis, comparative impairment, better law, etc.), and applies both unilateral and multilateral conflicts theories in analyzing conflict-of-law problems relevant for international commercial transactions
- Explains the benefits and drawbacks of unilateralism and multilateralism as conflict of law methodologies and recognizes elements of unilateralism and multilateralism in conflict of law systems of various jurisdictions
- Applies particular conflict of law rules of major domestic jurisdictions (incl. EU and the US) in major areas of law (contract law, tort law, personal statute, property law, etc.)
- Recognizes the differences in conflict of laws before a state court and an arbitral tribunal, solves conflict-of-law problems using both the voie directe and voie indirecte approaches to choice of law by an arbitral tribunal and explains particular features of the choice of overriding mandatory rules by arbitral tribunals
- Applies major choice-of-law doctrines developed by domestic legal systems, including the principle of characteristic performance in the choice of contract law, and explains their drawbacks and potential challenges
- Explains the relevance of the substance-procedure distinction in conflict of laws and its theoretical challenges, applies the various approaches to distinguishing between substantive and procedural legal rules
- Explains the concept of overriding mandatory rules and its relevance for international commercial transactions, applies the methodology of choosing overriding mandatory rules relevant for a particular dispute
- Recognizes both express and implied choice of law agreements, explains choice of law problems with regard to a choice of law agreement, explains potential restrictions on choice of law
- Explains the scope of application of the CISG (incl. difficult cases)
- Applies the CISG's rules of interpretation in practical scenarios
- Applies CISG's rules of contract interpretation appropriately and compares them to major domestic approaches to contract interpretation
- Applies the CISG's rules of contract formation and compares them to domestic approaches in the field
- Applies the concepts of external and internal gaps in the CISG and uses appropriate methodology when working with issues not governed by the CISG
- Recognizes auxiliary transactions in international commerce: bank guarantees, letters of credit etc., and explains the rules applicable to them on the international level (URDG 758, UCP 600, etc.)
- Applies the CISG's major rules on rights and duties of the parties, conformity of goods, legal remedies vis-a-vis the major approaches of domestic jurisdictions
- Applies the notion of lex mercatoria appropriately to its legal content, explains its legal nature and main features and provides examples of particular rules and their relationship with domestic legal orders
- Recognizes major international treaties relevant for international commercial transactions apart from the CISG (such as the Capetown Convention), including their scope of application
- Lists the major domestic laws relevant to international commercial transactions, such as the UCC in the United States, and explains the scope of their application
- Explains the nature, scope of application and major features of the UNIDROIT Principles, as well as their relationship with the CISG
- Knows the common practical types of international commercial contracts and their purposes
- Structures international commercial contracts in accordance with international practice
- Explains the relevance of, and drafts, various common provisions found in international commercial contracts, such as limitation of liability, warranty/representation, indemnity, governing law, dispute resolution clauses, adaptation/hardship clauses, force majeure clauses, merger/entire agreement clauses, sanctions clauses: practical considerations
- Recognizes the potential ways of allocating risks that are typical for an international sales agreements between the parties and drafts relevant clauses in accordance with international practice
- Explains the legal nature of Incoterms, recognizes its most common terms and explains their purpose
- Explains the key features of contract law in major systems of law internationally and provides relevant examples
Course Contents
- Introduction to International Commercial Transactions
- Conflict of Laws and International Commercial Transactions
- Substantive law and international commercial transactions
- Practical Aspects: the Anatomy of an International Commercial Contract (using a Sales Agreement as an Example)
Interim Assessment
- 2023/2024 4th module0.5 * Attendance and participation (both lectures and seminars) + 0.5 * Final examination
Bibliography
Recommended Core Bibliography
- Anson's law on contract, Beatson, J., 2002
- Dicey and Morris on the conflict of laws. 4th supplement.: Up-to-date to March 1, 2004, , 2004
Recommended Additional Bibliography
- Conflict of laws : cases and materials, Brilmayer, L., 2015
- Contract law, McKendrick, E., 2005
- International Business Transactions. Vol.1: ., , 2000