International Trade Law 2024 Lecture Notes PDF

INTERNATIONAL TRADE LAW 2024 1. INTRODUCTION 2. COURSE PROGRAM – CLASS SCHEDULE /LESSONS TIMETABLE 3. BOOKS –Bianchi 4. FINAL EXAM – how it works and programme discounts 5. The Families of Law - the subdivision and the strong different backgrounds of each of them. 6. The Definition of Int...

INTERNATIONAL TRADE LAW 2024 1. INTRODUCTION 2. COURSE PROGRAM – CLASS SCHEDULE /LESSONS TIMETABLE 3. BOOKS –Bianchi 4. FINAL EXAM – how it works and programme discounts 5. The Families of Law - the subdivision and the strong different backgrounds of each of them. 6. The Definition of International Trade Law: The discipline that regulates those commercial operations which, due to their connection to several States or their role in international economic relations, have an international character. A law that stands out as special compared to public international law and to private international law, of which it constitutes a sector. The study of international trade law can be conducted starting from: 7. The PUBLIC point of view: it is the point of view of the States from which the goods are exported and/or of the States to which such goods are destined; It concerns the study of the key PLAYERS of the International Trade [States- intergovernmental Organizations with a universal vocation (UN, WTO, IMF, IBRD) – with a regional vocation (EU, OECD, OPEC) - other international ENTITIES (Unidroit, Uncitral, Unctad, G7, G20), non-governmental organizations (ICC), multinational companies], TREATIES AND CONVENTIONS which concern the freedom of trade, the elimination of customs barriers, duties and taxes, financial agreements for the payment and transfer of capitals, labour protection issues and the resolution of disputes. 8. The PRIVATE point of view: It addresses themes and issues concerning the legal relationships that are established between the PARTIES who negotiate goods/services and the relationships between those who stipulate international commercial distribution agreements or joint ventures, supply contracts, tenders, transfers of technology and know-how. Therefore, it is about the SOURCES: national rules, international conventions and treaties, uses and practices - Lex Mercatoria (law merchant), uniform private rules, Unidroit principles, Incoterms and aspects relating to the legal structure of the international CONTRACT (legal framework) and all the relevant aspects of the discipline. 9. Historical background: a) International Trade Law was born on a customary basis and on an international scale as maritime law: 1  The early Egyptians, Phoenicians and Greeks had extensive commercial exchanges through sea transport over the Mediterranean Sea and established the first unwritten customs and rules of maritime transport. In fact, traces of early written manifestations of sporadic rule-making in maritime trade are to be found in the Code of Hammurabi (ca. 1780 BC) and the Sumerian Laws Handbook (ca. 1700 BC).  Phoenician laws: in matters of maritime damage still practically valid, later also taken up by Jewish laws (Talmud). b) The contribution of the Greeks:  foenus nauticum= maritime loan to a shipowner for commercial operations  Lex Rhodia de iactu mercium The first full-fledged (a tutti gli effetti) compilation of maritime law principles was the Rhodian Sea Law (Lex Rhodia), a body of regulations governing commercial trade and navigation in the Mediterranean sea dating from 800-600 BC. It has shaped maritime law over centuries and its influence is still felt today. The text is lost, but during the expansion of the port of Rhodes in modern times, a granite column was found which carried an inscription related to the Lex Rhodia. The Lex Rhodia dealt with, e.g., the case of jettison (gettare a mare) ("Lex Rhodia de iactu"), a rule of maritime law that still exists today under the name "general average". According to that rule, parties to a sea transport are tied together in a risk-sharing community and proportionally share any losses resulting from a voluntary sacrifice of part of the cargo to save the ship and the rest of the cargo in an emergency situation, like storms or serious damage to the ship. The Lex Rhodia was subsequently adopted by Roman jurisprudence in Title 14.2 of the Digest ("de lege Rhodia de iactu“) as a collection of practices and customary rules. The Lex Rhodia was so powerful and its impact was so lasting that it influenced the rule-making activities by all parties involved in long-distance sea transport long into the Middle Ages. The Lex Rhodia is an early manifestation of self- regulation in cross-border maritime trade. Therefore, it has rightly been characterized as "a sort of common lex mercatoria maritima for the states bordering on the Mediterranean Sea"5.  Trade and monetary treaties between Greek cities and third states c) the Romans, together with the ius civile  a law applicable only to Roman citizens, cives; they develop and apply a separate body of rules, the so-called. Ius gentium  a right that all peoples use and which is based on natural reason. It is an ideal right common to all known civilized peoples, who observe it equally, but which is and remains an INTERNAL right that concerns commercial relations within the empire. Roman law refers to a law that is partly its own and partly common to all men. The contracts of partnership, the lease and the sale are an expression of this second dimension. d) The Middle Age: * high Middle age; the ancient merchant class in a Europe deprived of external trade outlets slowly disappears and economic life closes within feudal properties → Curtense (= Manorial) economy = related to the production of everything was necessary to satisfy the court requirements. * from the 11th century: a progressive reopening of the trades happens; it was facilitated also by the Crusades and then followed by the birth of the Maritime Republics which imposed a certain order in maritime traffic. 2  In the year 1010 the Amalfian Laws ("Tavole amalfitane", "Tabula Amalphitana" or "Tabula de Amalpha") were codified in the Italian republic of Amalfi near Naples, one of the most important hubs for trade between Orient and Occident of those days. The Tavole contained 66 articles of maritime law and were observed in the whole Mediterranean region until the appearance of the Catalan Book of the Consulate of the Sea in 1494. We then witness the flowering of a legal renaissance that began with the birth of the first law schools in Italy and Europe; they teach the jus commune  a compendium of legal knowledge that is the sum of Roman law (pure juridical science) and canon law. This right proves insufficient to cope with the development of trade on an international scale; it is not functional to the interests of the merchants, therefore everywhere the rules of a special and derogatory law begin to take shape both from 1) jus commune and from 2) local law of the time = the statutes→ this is the Lex Mercatoria = the law merchant, that it is said to have emerged from the customary practices of the traders and merchants of those days, both in the area of maritime trade and in general commercial transactions Nature: A Body of rules of uniform international character which acts as a special law both with respect to its origin → law of a specific social class, and with respect to its application and protection → arbitration and mercantile courts. The lex mercatoria was such not only because it regulated merchant relations, but also because it was a basically self-sufficient law created directly by merchants, which crossed all the municipal borders and expanded as far as the markets extended. Sources: 1) the statutes of the powerful mercantile guilds (corporations) 2) the uniform mercantile customs 3) the arbitration jurisprudence/ the decisions of the curiae mercatorum which judged very quickly and according to equity. Merchants' law, often collected in manuals, including illustrated ones, coexists with the lex fori, the law of the state At the time of the Lex Mercatoria, specific international treaties (so-called capitolazioni) were also developed for commercial purposes with regard to duties, imports, the MFN (Most Favoured Nations Provision (by which a State must accord the most favourable tariff and regulatory treatment given to the product of another state at the time of import or export of “like products” to all other States) - freedom of river transit, bankruptcy. All treaties aim to promote international trade, trying to limit the claims of sovereignty of coastal states and to regulate maritime traffic. e) Advent of the Modern State and national commercial law. The Lex Mercatoria, born before the Modern States, in order to face the inadequacy of the jus commune law to the requirements of the commercial traffics, is progressively absorbed in the internal law of every single Country and nationalized now in jurisprudential way (Common Law) now through the great state codifications typical of the Civil Law. 3 The ordonnance du commerce of Louis XIV represents the first code of commerce of the modern age. The Ordonnance du Commerce was a legislative act (ordonnance) dealing with commercial law promulgated in 1673 in the Kingdom of France under King Louis XIV. The jurist Jean-Baptiste Colbert contributed to its creation, as well as the various mercantile corporations and jurisdictions but above all the merchant Jacques Savary, a great expert in commercial jurisprudence; in fact, in honour of him it is also referred to as Code Savary. It established a general regulation of terrestrial trade. Eight years later it was completed by the Ordonnance de la Marine which dealt more specifically with maritime law. Thanks to them, France equipped itself with a "solid legal framework" to support its commercial traffic by "meticulously regulating the activity of merchants and their relationships with private individuals". By eroding, albeit partially, the jurisdiction of the merchants, after the previous progressive nationalization of the merchants' courts, the ordonnance marks the transition of commercial law from the medieval age to modern age, as it became from corporate law→ state law, gathering and collecting the long experience in this matter of the jus mercaturae; in fact, we move from jus mercatorum (law of the merchants) to jus mercaturae (trade law, the law of commercial activities). It is considered the first commercial code of modern states. The Lex Mercatoria, now has become a matter of State; it is subject to special laws, revisions and adaptations to the internal legislation of each country and thus it loses its spontaneous uniformity due to its internationalistic nature. f) Advent of the first economic globalization 1870 – 1930: in this period the industrial revolution, the invention of the steam engine, the railways and the mechanization of the textile sector, favouring mass production and international communications, gave rise to the first globalization which deprived industries of their national basis and created a universal traffic amongst nations. In this picture: - Great Britain, with specific international treaties, becomes the promoter of a strong policy of trade liberalisation which aims at eliminating duties and bans. - To fully and homogeneously regulate the phenomenon of turbulent development of international trade, States increasingly resort (have recourse) to the negotiation of specific conventions of uniform material private international law, in crucial matters such as particular contracts, bills of exchange, cheques, arbitration; as well as uniform conflict rules. - The conceptual difficulties of standardizing a now nationalized commercial law, linked to the differences between the various legal systems, emerged in all their strength and therefore inspired the rediscovery and gradual rebirth of a new lex mercatoria after it had been reduced to ashes by the nationalization of trade law. 4 g) Advent of economic nationalism Following the end of the First World War, a dark period began for international trade with restrictive measures, exchange controls, export subsidies and competitive devaluation of national currencies → a period of strong nationalism began and it brought with itself: - economic dirigisme = direct intervention of the state in the economic life of the country. In an attempt to escape the crisis, governments opt for beggar thy neighbour, protectionist policies that aim to transfer the negative effects of the economy onto other states → rise of fascist regimes To which a great economic depression of the 1920s and a massive unemployment followed BUT at the time of the Second World War → States began talking about planning the national economic order: 1. formerly, in 1941 with the Atlantic Conference and the signing of the Mutual Aid Agreement (USA.GB) the scope was to achieve a system based on free trade; 2. then, in 1946, with the London conference, was prepared the draft of the ITO - international trade organization which would take shape with the Havana Charter; 3. 1943: the post-war international monetary order begins to be planned and in 1944 with the Bretton Woods Conference the IMF (which was to deal with the functioning of this order) and the IBRD (International Bank for Reconstruction and Development) especially for the reconstruction of destroyed Europe) were conceived =pillars /bedrocks of ITL 4. 1945: with the San Francisco Conference the UN is established h) And so, the second globalization begins, i.e., the era based on the international economic order established after the Second World War → the lex mercatoria is reborn = now as a right created by the entrepreneurial class without the mediation of the states and made up of rules intended to uniformly regulate international commercial relations, beyond (AL DI Là) the political units of individual states. The new lex mercatoria is born in the post-industrial era but IT presents the same regulatory production mechanisms of the ancient one, which are here reactivated by producing the new rules of the International Business Community that, however, must be coordinated with the other rules of state and interstate law on international trade. Non-state law constitutes a truly original legal system, of an international-transnational type, separate from state systems, which develops with their full connivance, becoming supranational objective law. Thus, the new lex mercatoria includes: a) internationally uniform contractual models; b) usages and customs of international trade c) collective codes of conduct d) international arbitration jurisprudence 5 they are supernational rules that are formed according to a bottom up (not top down) process directly within the international business community without the mediation of States. CURRENT STRUCTURE OF ITL PLAYERS: SOURCES: 1- STATES 1- INTERNATIONAL LAW - TREATIES 2- INTERGOVERNMENTAL ORGANIZATIONS 2- NATIONAL LAW 3- NON-GOVERNMENTAL ORGANIZATIONS- ICC 3- NEW LEX MERCATORIA 4- TRANSNATIONAL ENTERPRISES 6