International Business Contract Case Study

International Business Contracts By: Nozanin Saidaminova, LL.B - Bachelor of Laws (writing sample for LL.M “International Business Law” admission application – winter 2018 at Osgoode Hall Law School, York University) August 2017 CONTENTS TOC o "1-3" h z u INTRODUCTION PAGEREF _Toc490285399 h 3Part I. The Notion of International Business Contracts. Lex Mercatoria PAGEREF _Toc490285400 h 4Transnational business contract vs. domestic contracts PAGEREF _Toc490285401 h 4Part II. Formation of contracts in transnational business transactions PAGEREF _Toc490285402 h 6Part III. Issues arising within international business contracting PAGEREF _Toc490285403 h 8How to avoid them? PAGEREF _Toc490285404 h 8CONCLUSION PAGEREF _Toc490285405 h 9BIBLIOGRAPHY

Lex MercatoriaTransnational business contract vs. domestic contracts There are a number of customary principles and detailed rules which are generally applied to international business contracts. This body of principles and rules, the lex mercatoria or new merchant law, has been identified by some scholars, particularly, in continental Europe, as an emerging legal system distinguishable and autonomous from national legal systems. Other academic commentators have strongly opposed the proposition that the lex mercatoria is a system of law capable of being enforced by its own terms. The opponents maintain that “delocalization” is impossible: contracts must be governed by a specific national law, either selected by the parties or determined by applicable conflict of laws’ provisions. According to this line of thought, any application of international trade practices and usages to a particular contract must be made within the context of the proper municipal law of the contract. Although author thinks there is a high chance for the theoretical legal existence of the lex mercatoria to be combination of both assumptions, there is little doubt that indeed international contracts can be distinguished from wholly domestic contracts in several important

Part II. The Practice and Formation of Contracts in Transnational Business Transactions The civil law approach to the necessity of fault is more articulated than that of the common law, and it provides a useful framework for the consideration of the breach of international contracts. The distinction between obligations de moyens and obligations de résultat is widely accepted and understood by the drafters and interpreters of international contracts, although its practical application is slightly different in an international setting than in a purely domestic one. When an obligations de moyens, deriving from an international contract is breached, the damaged party, in order to establish its entitlement to damages, must prove that the breach is the fault of the obligee. This type of obligation mainly exist in international trade practice. On the other hand, in obligations de résultat no investigation as to whether the breach of the obligation is attributable to the fault of the obligee is necessary to establish entitlement to