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Über dieses Buch

This book provides an in-depth study of Private International Law reasoning in the field of international sale of goods contracts. It connects the dots between European and Chinese law and offers an unprecedented transversal and comparative legal study on the matter. Its main purpose is to identify the consequences of European rules on Chinese companies and vice versa. The first part addresses the conflict of jurisdiction and conflict of law rules, while the second part discusses in detail the practical importance and the impact of arbitration, which is becoming more common thanks to its flexibility. The third part focuses on the Vienna Convention on Contracts for the International Sale of Goods and the Unidroit Principles of International Commercial Contracts and carefully analyses their use. The final part examines contracts involving consumers.

Inhaltsverzeichnis

Frontmatter

International Sale of Goods and Conflictual Mechanisms

Frontmatter

Identification of the Competent Judge in Europe

Trade relations between the People’s Republic of China and Europe are constantly increasing, and it is then very important that actors of both sides acquire the knowledge of the legal system applied by the partner state.
Danièle Alexandre

Identification of the Competent Judge in China

For the solution of disputes arising out of the contracts of international sale of goods, in my point of view, to determine the competent court or courts is the first and probably the most important question to solve. The reasons are obvious. First of all, the choice of the competent court has great influence on the distribution of the litigation costs borne by the parties. In addition, to a great extent, it decides which country’s procedural law, even material law, will be applied hereto and therefore determines the outcome of the actions, even the recognition and enforcement of the judgment. Fist of all, the civil procedural rules that dominate the actions are up to the competent court. Second, the court will use its own nation’s laws of conflicts to decide the applicable material laws concerning the disputed contracts.
Xi Zhiguo

Identification of the Applicable Law in China and in Europe

The comparison between the European and Chinese solutions concerning the identification of the applicable law to international sale of goods contracts is more and more easy. Both systems have now codified their rules for the determination of the law applicable to international contracts, including the sale of goods.
Nicolas Nord

Arbitration, an Alternative Way

Frontmatter

International Sale of Goods: Combination of Arbitration and Mediation in China

Mediation is one of the most precious estates of Chinese traditional culture. In some authors’ opinions, the “non-action” (wu song), “non-litigation” (fei song), and “humble lawsuit” (jian song) ideas of Confucianism are similar to the ADR idea. There are not much things involving laws and actions in Confucianism (for example, 听讼,吾犹人也,必也使无讼乎); the interpretations of those sentences are also different. In my opinion, the “non-action” theory is too ideal; the existence of a society in which there is no dispute is not possible. Confucianism only encourages people to “review themselves three times a day” to avoid conflict but not to try to solve the problems by lawsuit; it suppresses judicial action, and it can only be considered as a halfway ADR. Some authors consider that the “non-action” theory has obstructed the development of the rule of law.
Song Lianbin

Arbitration in the Field of International Sale of Goods: A French Point of View

In the morning, my colleagues have elaborated the European and Chinese solutions regarding the identification of the judge and the applicable law in the field of international sale of goods.
Jochen Bauerreis

Integration of the Arbitral Award in the States System: Comparative Perspectives

Traditionally, the enforcement of the arbitral awards relies on the voluntary performance of the parties as they have promised when they submitted their disputes to arbitration. According to a French author, about 90% ICC awards have been executed voluntarily. However, the enforcement of the arbitral awards is not obligatory. In fact, the unfavorable party can challenge the concerned award before the courts. Meanwhile, the other party that wins can also go to a judge to apply for the compulsory enforcement of the arbitral award if the losing party does not perform it voluntarily. From then on, the arbitral award is no longer completely independent of the laws of the territory where the award is relied upon because the judge will use the laws to review the concerned award. Once the arbitral award is presented in front of a judge, it is subject to the national jurisdictions. Thus, it is very important to have knowledge of the laws of the territory where the arbitral awards are to be executed. After all, no one would like to take the risk that after spending all the money and time for the arbitration, an arbitral award cannot finally be enforced or even is set aside by the courts.
Dong Jingjing

International Sale of Goods and Material Solutions

Frontmatter

The Vienna United Nations Convention on Contracts for the International Sale of Goods: Applicability, Gaps and Implementation

The 1980 Vienna Convention is a perfect example of success in the sphere of international trade regulations, even more so if we take into account the number of times it has been ratified since being drafted in 1980. Eighty-three States, with very different legal traditions and different economic and political regimes are currently parties to the Convention. Moreover, some of these are key players in the international sale of goods, as is the case of the United States and China, which have been parties to the Convention since its inception, or the Russian Federation, for which the Convention entered into force on January 1, 1991. In fact, in the European Union, the only noncontracting States are the United Kingdom, Ireland, Portugal, and Malta, meaning there are only a few EU States that have not ratified the Convention. However, the fact that one such States is the United Kingdom is noteworthy, taking into account the important role it plays in international trade.
Laura García Gutiérrez

The Unidroit Principles of International Commercial Contracts in the Sino-European Sale of Goods Contracts

The application of the Unidroit Principles in disputes related to Sino-European contracts of sale of goods is rare. Indeed, figures are not impressive and only a very few decisions refer in one-way or another to them, even though most arbitral awards referring eventually to them remain unpublished. Recent developments in the Chinese conflict of laws’ rules on international contracts should, however, foster the use of the Unidroit Principles in contracts not subject to arbitration. Since it offers new perspectives for the Chinese and European companies concerning the applicable law to their sale of goods contracts, it seems legitimate to question which role could the Unidroit Principle play in this field. Even if the new Chinese conflict of rules system creates new possibilities to the parties to choose the Unidroit Principles as applicable law to their contracts, it does not seem exaggerated to say that the Unidroit Principles will continue to play a very residual role in the Sino-European contracts of sale of goods in the near future. More precisely, and as it was already predicted in general terms for all other contract, the Unidroit Principles shall not become ‘the’ applicable law but, rather, one of several bodies of legal rules on which adjudicators draw—no more but also no less.
Gustavo Cerqueira

International Sale of Goods and Consumers

Frontmatter

International Consumer Sales: International Jurisdiction and ADR in Europe and China

Consumer protection constitutes a major policy objective in both the European Union (EU) (and its Member States taken individually) and China. Adequate protection of consumers requires the adoption of specific legislation in a variety of substantive and procedural (i.e., dispute resolution) areas. This chapter focuses on the latter aspect and deals with two particular issues relevant to international consumer transactions: (a) rules on international jurisdiction over consumer disputes and (b) the use, availability, and functioning of ADR procedures to resolve such disputes.
Markus Petsche

The Law Applicable to Consumer Contracts: Protection and Gaps in China and in Europe

The law applicable to consumer contracts is an important issue concerning the international sale of goods. Very often, the consumer contracts concern sale of goods. For example, in Europe, the idea of protection of the consumers appeared in the 1970s with the development of the mail-order selling. Of course, goods were, at this period, in concern. Nowadays, consumer contracts are much more developed, especially because of the Internet. In international situations, the general conflict-of-laws rules of both systems seem to be unadapted.
Nicolas Nord
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