With regard to the study of the concept of international commercial law, the author comprehensively investigates the explanations of the concept of international commercial law by scholars at home and abroad in various works. The author thinks that the concept of international commercial law can be divided into broad sense and narrow sense, which are described below respectively.
1. In a broad sense, international commercial law is the sum of various legal norms regulating international commercial relations, and it is an independent legal department.
First, according to the general theory of law, the main criterion for dividing legal departments is the social relations adjusted by legal norms, and all legal norms that adjust similar social relations constitute an independent legal department. [3] International commercial law is an independent legal department that regulates international commercial relations as a specific social relationship. The so-called international commercial relationship refers to a certain commercial relationship, whether it is an individual, a legal person, a national government or an international organization, as long as the parties involved in this commercial relationship belong to two or more different countries or international organizations, or the commercial issues involved transcend the boundaries of a country, this relationship can be called international commercial relationship. The legal norms used to regulate all these international commercial relations belong to the category of international commercial law. Specifically, it should include international public law, international economic law, international business practices or conflicts of laws, international business conventions or treaties, and international norms related to business relations in domestic commercial law voluntarily accepted by the parties.
In addition to the social relations of legal adjustment as the basis and main standard, the similarities and differences of legal adjustment methods determined by the nature of legal norms are also important supplementary standards for the division of legal departments. For an obvious example, criminal law, as an independent legal department, has never caused controversy. However, criminal law obviously does not adjust the same kind of social relations, but adjusts various social relations destroyed by crimes, involving almost all legal departments. However, its adjustment method is a single means of punishment. This is an adjustment method that other legal departments do not have. Similarly, the adjustment methods of international commercial law based on the normative nature of international commercial law are also diverse, which are obviously different from other legal departments. The adjustment methods of international commercial law include negotiation and mediation, arbitration and litigation, domestic law and international law. Therefore, from the perspective of legal adjustment methods, it can also be explained that international commercial law is an independent legal department.
When discussing international commercial law, it is necessary to explain the word "commercial" in international commercial law. The word "business" is an important idiom in international trade. Generally speaking, international organizations or countries should interpret the term "commercial" as broadly as possible. For example, according to the comments made by the United Nations Commission on International Trade Law on the word "commercial" when drafting the Model Law on International Commercial Arbitration [4], relationships of a commercial nature include but are not limited to the following transactions: any trade transaction that provides or exchanges goods or services; Sales agreement, business representative or agent; Security agent; Lease; Consultation; Design; Permission; Investment; Financing; Banking; Insurance; Mining agreements or concessions; Joint venture or other industrial or commercial cooperation; Air, sea, rail or road transportation of passengers and goods. The Code of International Commercial Arbitration and Mediation in California, USA, modeled on the Model Law on International Commercial Arbitration, lists 18 matters that belong to commercial relations: (1) transactions that provide or exchange goods or services; (2) sales agreement; (3) Business representatives or agents; (4) Mining agreements or concessions; (5) Joint ventures or other forms of industrial and commercial cooperation; (6) Air, sea, railway or road transportation of passengers and goods; (7) architecture; (8) insurance; (9) permission; (10) security agent; (1 1) lease; (12) consultation; (13) project; (14) Finance; (15) bank; (16) information or technology transfer; (17) Intellectual property or industrial property, including trademark right, patent right, copyright and software program right; (18) professional services. [5] According to the concept of "commercial" mentioned in the commercial reservation statement made when China joined the Convention on the Recognition and Enforcement of Foreign Arbitral Awards in new york in 1958, it includes goods sale, property lease, project contracting, processing contracting, technology transfer, joint venture, cooperative operation, natural resources exploration and development, insurance, credit, labor service, agency and consultation. [6] Therefore, China's interpretation of the word "business" is also relatively broad. International commercial law is a law that regulates the activities of various commercial subjects in the above-mentioned international "commercial" fields.
Second, judging from the emergence of international commercial law, international commercial law appeared as an independent legal department from the beginning. At first, the commercial relationship it adjusted was not the commercial relationship between domestic businessmen in a country, but the international commercial relationship between businessmen in different countries and across borders.
International commercial law came into being and developed with the emergence and development of commodity economy. The formation of international commercial law comes from practice, and its systematization process is not due to the spread of national legislation or scholars, but to the efforts of its users and promoters. The initial form of international commercial law is merchant customary law, which appeared in Venice in the 1 1 century, and then gradually extended to Spain, France, Germany and Britain, and even Nordic countries and North Africa with the development of maritime trade. This kind of international commercial law, which takes businessmen (mainly businessmen who engage in trade between two or more countries and must transport by ship) as the adjustment object, belongs to the customary law of businessmen and is a legal norm formed through trading practices, habits and customs with the autonomy of the parties as the highest principle. Its contents mainly include: contract for the sale of goods, joint venture company, maritime transportation and insurance, draft, bankruptcy procedure and other standard clauses. This kind of merchant customary law is the law and business practice used by businessmen in ports or markets all over Europe to adjust their business transactions. Compared with the local laws of the feudal dynasty at that time, it has the following characteristics: (1) It is an international commercial law, which is generally applicable to merchants engaged in commodity trading in various countries; (2) Its interpretation and application are not run by full-time judges in general courts, but by courts organized by businessmen themselves, which are similar in nature to modern international commercial arbitration or mediation; (3) The procedure is relatively simple and fast, and is not limited to molding; (4) Emphasize the principle of fairness and reasonableness in handling cases. [7]
Thirdly, due to the diversity and complexity of contemporary international commercial relations, international commercial law has evolved from a single-level international commercial practice to a multi-level international commercial law, that is, a comprehensive legal department with international commercial practices as its main content, including both international law norms and domestic law norms.
Because international commercial law is a legal norm used to adjust the commercial relationship between various public and private subjects engaged in transnational commercial exchanges, its connotation and extension have already greatly broken through the system of international commercial practices and extended to international law, domestic law, and even other legal norms that are difficult to be classified into the above legal categories. International commercial law is a multi-category and interdisciplinary comprehensive legal department.
Moreover, the norms of international commercial practices, international law and domestic law in the above-mentioned international commercial law system are not three parallel and unrelated legal norms. Natural persons and legal persons can directly apply the original norms of international law; Domestic law norms may also rise to international law norms and be applied by countries or international organizations. In the contemporary legal practice of adjusting international commercial relations, not only can any traditional legal norms not reflect the demand of international commercial relations for legal adjustment independently and completely, but also various legal norms and systems often depend on each other, cross each other, transform each other and interact with each other. [8] It is self-evident that the norms of public international law regulate and restrict the commercial legal relations between two parties with international or international organizations as the main body, such as the commercial legal relations between governments or between governments and international organizations in investment, trade, credit, settlement and insurance. But at the same time, it should be noted that these norms of public international law in the commercial field are directly binding on China citizens and legal persons. For example, China signed and ratified the United Nations Convention on Contracts for the International Sale of Goods, which came into force on 198865438+ 10/day. From now on, the provisions of this Convention must apply to the international contracts for the sale of goods concluded between citizens or legal persons of China and citizens or legal persons of any other contracting state, as well as the rights and obligations of buyers and sellers arising from such contracts (unless both parties decide not to apply this Convention). China's laws clearly stipulate that international civil and commercial conventions and practices are applicable to China citizens and legal persons. Paragraph 2 of Article 142 of the General Principles of Civil Law stipulates: "If the international treaties concluded or acceded to by People's Republic of China (PRC) have different provisions from the civil law of People's Republic of China (PRC), the provisions of the international treaties shall apply." Article 96 of China's Negotiable Instruments Law stipulates: "If the international treaties concluded or acceded to by People's Republic of China (PRC) have different provisions from this Law, the provisions of the international treaties shall apply. However, the provisions reserved by People's Republic of China (PRC) are excluded. If there are no provisions in this Law and international treaties concluded or acceded to by People's Republic of China (PRC), international practices may apply. " [9]
In other words, contracts between the countries concerned and private individuals and legal persons can be nationalized by observing international law. For example, Hite believes that any quasi-international court or transnational court cannot deny the relationship between arbitration and international law caused by the contractual relationship between the government and foreigners, and it is necessary to measure the appropriateness of applying international law. He pointed out: "In the case of development agreements between private investors and foreign governments, the contractual rights of foreigners as a party can be claimed by their own governments at the height of international law." [ 10]
In addition, in its two documents on "Contracts concluded between international organizations and private parties" and "Law applicable to contracts in agreements between States and foreigners", the International Law Association also accepted the application of international law or general legal principles. [ 1 1]
In practice, there are many situations that apply to contracts in which one party is a state or a state entity. For example, the final award in the case of 1958 Saudi Arabian American Oil Company chose international law as the applicable law for the award. Some petroleum laws in the Middle East countries also stipulate that international law can be chosen as the applicable law for arbitration.
Therefore, in international commercial activities, international commercial practices, international laws and domestic laws can all be applied, and there is no fixed boundary between them. What legal means the parties take depends on the actual situation.
Specifically, the norms of international commercial law used to adjust international commercial relations can be roughly divided into three levels: the first level is numerous and generally applies to international commercial practices among various international commercial entities, such as Incoterms and Uniform Customs and Practice for Documentary Credits; The second level is the international commercial conventions or treaties signed between relevant countries or international organizations, which are generally binding on the international community, such as the Geneva Convention on Bills and the Convention on Contracts for the International Sale of Goods (the concepts of international commercial law at the above two levels are the same as those in the general commercial law of the civil law system); [12] The third level is the international norms (or foreign-related commercial legal norms) used by relevant countries to adjust their domestic commercial relations. Various legal norms used by various countries to adjust foreign-related commercial relations within their own territory are applicable to both domestic commercial relations and similar domestic foreign-related commercial relations, such as the Trademark Law and the Patent Law of China, and some are only applicable to domestic foreign-related commercial relations, such as the Law on Sino-foreign Joint Ventures.
Fourthly, discussing the concept of international commercial law in a broad sense is not only a purely theoretical explanation, but also for the comprehensive application and practical benefits of international commercial law.
For example, China companies engaged in commercial investment abroad are regulated by different levels of international commercial laws and regulations. First of all, according to the principle of national sovereignty, the commercial investment activities of China companies in foreign countries should be directly adjusted and regulated by relevant foreign commercial laws and regulations in foreign private law, such as the Law on Enterprises with Foreign Investment. Secondly, China companies should apply foreign laws to manage foreign-related business activities, such as customs law and foreign exchange law. Third, it is necessary to apply international business practices or international business treaties and conventions recognized or participated by foreign countries, such as the Uniform Rules for Collection and the United Nations Convention on Contracts for the International Sale of Goods. Fourthly, relevant commercial agreements or treaties signed between China and foreign countries, such as the Sino-US Trade Relations Agreement, must be applied. Similarly, when foreign companies engage in commercial investment activities in China, they will also encounter various practical problems of law application and choice.
If we still confine our vision to traditional legal departments or disciplines and stick to a fixed definition in the process of choosing laws, [13] it will be difficult to take the most appropriate and necessary way to properly solve various practical problems faced by international commercial activities. For example, the loan contract of the World Bank to a private company belongs to the contract between intergovernmental organizations and enterprises. When choosing the applicable law of contract, even if one party is not a private person, private international law should be applied. Another example is the contract concluded between the governments of developing countries and private individuals in developed countries. Although the parties are neither countries nor private individuals, the principles of international law and domestic law (including public law and private law) need to be applied at the same time. Therefore, in order to have a comprehensive understanding and correct judgment, we must apply international law and domestic law related to international business to comprehensively investigate the complex legal relations and legal problems formed by the interweaving of scope, country, legal person and individual in international commercial exchanges. [ 14]
To sum up, international commercial law is an independent legal department, and it is the sum total of various legal norms regulating commercial exchanges outside a country's national boundaries. International commercial law is not limited to specific legal norms. Its connotation is mainly based on traditional international business practices. Its extension has already broken the system of international law and domestic law, and extended to the norms of public international law, economic international law, private international law and international norms of civil and commercial laws of various countries (that is, foreign-related parts). Although the foreign-related parts of private international law and commercial laws of various countries are essentially domestic laws of various countries, they both regulate and restrict transnational commercial communication activities within the territory of sovereign countries, so from a macro perspective, we have to admit that they are important components of international commercial law and belong to the category of international commercial law.
International commercial law includes not only the substantive norms that stipulate the rights and obligations of the subjects of international commercial law in international commercial activities, but also the procedural norms that solve international commercial disputes, including both the mandatory norms of the state to adjust international commercial relations and the arbitrary norms of the state to adjust international commercial relations.
Therefore, the research scope of international commercial law is very extensive, often involving some contents of dozens of existing traditional legal departments, involving legal norms of international law, conflict law, civil law, commercial law, tax law, civil procedure law, product liability law, anti-monopoly law, anti-dumping law and many other legal departments.
The author believes that the current problem lies not in the untimely emphasis on the traditional division of law, but in finding new forms of checks and balances to adapt to the times. [15] Contemporary international commercial transactions not only need a specific legal system, but also need new adjustment methods to adapt to the times. International commercial law will meet the needs of international business, just as customary commercial law meets the needs of businessmen living in the Roman Empire, the promulgation of customary law meets the needs of navigators and businessmen in the Middle East in the14th century.
Second, the narrow sense of international commercial law is the sum of legal norms regulating the various relationships between commercial organizations and their commercial transactions outside the country, and it is a new legal department that is still forming.
For example, Professor Feng Datong believes that the subjects engaged in international commercial transactions are basically companies, enterprises and other commercial organizations rather than countries, and the transactions between them belong to the commercial organizations of different countries and the transactions between individuals with equal subjects, rather than the transactions between countries. Therefore, in the concept of "international commercial law", the meaning of the word "international" does not mean "between countries" but "across national boundaries". International commercial law is the sum total of legal norms regulating various relationships between foreign trade transactions and commercial organizations in foreign countries, and it is a new legal department that is still forming. [ 16]
Scholars who hold the above views also believe that with the expansion and frequency of international economic and trade exchanges, international commercial relations have become more complicated, and many new international commercial activities have emerged, such as international investment, international financing, international leasing, international technology transfer, international cooperative production, international project contracting, industrial property rights and proprietary technology licensing trade. These activities or transactions have gone beyond the adjustment scope of traditional commercial law. The object and scope of the adjustment of international commercial law are more and more extensive. However, compared with traditional commercial law, international commercial law is still in the stage of formation and development. Not only are these new international commercial transactions mostly developed from the traditional commercial law, but the traditional commercial law, as an independent legal department, has a long history and covers everything, including buying and selling, contracts, guarantees, companies, agents, intermediaries, bills, insurance, bankruptcy, maritime business, arbitration, competition, trust, securities and so on. Therefore, the system and content of international commercial law need to be further developed and improved, so as to finally form an independent legal department. In addition to the broad and narrow concepts of international commercial law mentioned above, international commercial law can also exist as a concept of comparative research methods of commercial law in various countries.
Third, the concept of "parallel law" in international commercial law. [ 17]
In international commercial transactions, in order to avoid the differences and unpredictable changes between different domestic legal systems, countries are developing to combine international law, international commercial practices and domestic laws in the form of a unified legal system, that is, to create an applicable legal system that coexists with them to adjust international commercial transactions.
The Convention on the Settlement of Investment Disputes between Countries and Nationals of Other Countries is a typical example of adopting a coexistence legal system. The Convention clearly stipulates that "the arbitration tribunal shall decide the dispute according to the legal norms agreed by the parties to the dispute …". As mentioned above, this clause is an acknowledgement of the principle of party autonomy, which contains two meanings: first, the parties can choose domestic law, international law or international business practices; Second, the parties can also choose both domestic law and international law and international business practices to use them together. In the same article, the Convention also stipulates that when the parties have no choice, the arbitral tribunal "shall apply the laws of the Contracting State (including its conflict of laws rules) and the applicable rules of international law" [18]. It can be seen that not only the parties choose the law in the multi-track system, but also the arbitral tribunal chooses the applicable law in the multi-track system, which can be applied to both the international law system and the domestic law system, and can also be applied to those that do not belong to these two systems.
Coexistence legal system is the product of long-term debate between developing countries and developed countries. The function of this system lies in, on the one hand, applying the domestic law of the contracting state, recognizing the importance of the sovereign status of the contracting state, and on the other hand, referring to the principles of international law or international business practices, providing certain protection for the private parties of the contract, and ensuring that the treatment of foreign investors or others in the domestic law is not lower than the minimum international standards. Its essence is to mix a balancing force between domestic law and international law. In my opinion, coexistence law actually illustrates the independent existence of generalized international commercial law from another angle.
To annotate ...
[1][7][ 16] See International Commercial Law, edited by Feng Datong, Renmin University of China Press, 1994, 1 Edition, page 2, page 4.
[2] See Guan Anping, editor-in-chief: Practice of International Commercial Law, Ocean Press, 1993, 1.
[3] Xu Xianming, editor-in-chief: Jurisprudence Course, China University of Political Science and Law Press, 1 August, 9941Edition, p. 205.
[4]A.Redfern M.Hurter, Law and Practice of International Commercial Arbitration, 1986, p. 13- 16.
[5] California International Commercial Arbitration and Mediation Code, article 1, section 1297, paragraph 16.
[6] Notice of the Supreme People's Court1April 1987 10 on the implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which China acceded to.
[8][ 15] Zhao Wei's book: Legal Issues of Sino-foreign Cooperation in Developing Coal Resources, Law Press, 1 August 9921Edition,1Page,1Page.
[9] Article 96, Chapter V of People's Republic of China (PRC)'s Negotiable Instruments Law, adopted at the 10 meeting of the 8th the NPC Standing Committee on May 6, 995.
George W. hite, the choice of public utilities. As the applicable law in development contracts with foreign governments, international law is published in International Financing and Development, edited by J.F.Mcdaniels, 1964, p. 556.
[1 1] Hans? Schmidt, editor-in-chief: International Contract, China Social Sciences Press, 1988, p. 2 1.
[12] Yang Jianhua: On the New Commercial Law, Taiwan Province Sanmin Publishing House, 1983, p. 1 p.
[13] Chen An: Introduction to International Economic Law, Law Press, May 199 1, 1, p. 84.
[14] Masao Sakurai: Research on International Economic Law-On Overseas Investment, Japanese version 1977, chapter 1.
[17] Zhu: Theory and Practice of Modern International Commercial Arbitration Law, Law Press, 1993, 1, p. 244.
[18] Article 42 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other Countries 1.