LAW INTERNATIONAL COMMERCIAL CONTRACTS
Academic year and teacher
If you can't find the course description that you're looking for in the above list,
please see the following instructions >>
- Versione italiana
- Academic year
- 2017/2018
- Teacher
- PIETRO FRANZINA
- Credits
- 6
- Didactic period
- Secondo Semestre
- SSD
- IUS/13
Training objectives
- Knowledge and understanding: the course aims at providing a critical understanding of the main issues surrounding the substantive regulation of commercial contracts featuring an international element and the resolution of disputes relating thereto, in particular under EU law and under the relevant international conventions in force for Italy.
Skills: by combining the study of the relevant rules and the discussion of their practical operation in the framework of court and arbitral proceedings as well as in the drafting process, the course intends to provide the skills required from those involved in the negotiation of international contracts, their implementation and the management of disputes. Prerequisites
- Students are expected to possess a basic knowledge of Constitutional Law, International Law, European Union Law, Private Law and Civil Procedure. At any rate, in order to be admitted to the examination, students must have first passed the following exams: Constitutional Law, Institutions of Private Law, European Union Law. A fruitful participation in the interactive seminars presupposes a basic knowledge of the English language, since most of the documents on which the seminars are based are drafted in English.
Course programme
- A. THE LAW OF INTERNATIONAL CONTRACTS
1. Introduction – Business activity and contracts at a time of globalization: private law as an instrument of market governance. Some general remarks on contracts featuring a transnational element: the peculiar issues raised by these contracts (the challenge of “ordering" legal pluralism, the means whereby legal certainty may be enhanced and the cross-border continuity of legal entitlements may be ensured); the fora where the said issues may be dealt with (regulating transnational contracts: actors, processes, tools); the values at stake (the dialectics and interaction of mandatory rules and autonomy).
2. The substantive regulation of international commercial contracts – The different techniques employed and their coordination from the standpoint of the Italian legal order. Conflict-of-laws rules: Regulation (EC) No 593/2008 on the law applicable to contractual obligations (“Rome I”) and the 1955 Hague Convention on the law applicable to international sales of goods. Internationally uniform substantive provisions: in particular, the 1980 Vienna Convention on contracts for the international sale of goods. “Optional” substantive regimes. International trade usages and the “private codification” thereof: in particular, the case of demand guarantees. Model laws.
3. The resolution of disputes relating to international commercial contracts – The jurisdictional authority exercised by State courts: the different aspects of jurisdiction and the issues arising in connection therewith whenever a transnational element is present. In particular: the issue of adjudicatory jurisdiction, specifically as regulated under Regulation (EU) No 1215/2012; the recognition and enforcement of foreign judgments, especially within the European judicial area in accordance with Regulation (EU) No 1215/2012, Regulation (EC) No 805/2004 and Regulation (EC) No 1896/2006. International commercial arbitration: the legal nature of arbitration and the main feature of the rules governing it. In particular: arbitral agreements; the arbitral procedure; the recognition and enforcement of arbitral awards within domestic legal orders, in particular as regulated by the di 1958 New York Convention.
B. INTERNATIONAL CONTRACTING IN PRACTICE: SELECTED PROBLEMS
1. Negotiating and drafting international contracts – The various forms of contracting, from standard terms to individual negotiation. Pre-contractual negotiations and the responsibility possibly arising therefrom. Structuring and drafting the agreement, between freedom and recurring formulas. Some often encountered clauses.
2. International payments – Money viewed from the standpoint of law: money as a measure of contractual obligations, money as a means of payment. Means of payment: in particular, international bank transfers. Letters of credit.
C. CASE STUDIES (12 hours out of 40)
Identifying the court possessing jurisdiction and the applicable law. Interpretive issues raised by internationally uniform substantive rules.
D. SOURCES OF INFORMATION
Seminar on the use of databases regarding the law of international commercial contracts. Didactic methods
- The course consists of lectures (25 hours) and interactive seminars (15 hours). Interactive seminars involve the analysis and discussion of case law and contract models, made available to students through the website of the course (please note that a significant part of the materials is in English). Students are expected to actively take part in the seminars. Such active participation may consist, for example, in illustrating previously studied materials to the rest of the students or in carrying out practical case studies in light of the proposed readings.
Learning assessment procedures
- Students are examined orally. The exam is meant to assess the ability of the student to solve practical and actual problems based on a reasoned illustration of the acquired competences. In assessing the students, the following elements will be taken into account: (a) the ability of the student to identify the normative framework of the issues on which he or she is examined; (b) the ability of the student to properly structure the reasoning on which his or her answers are based, passing steb-by-step from premises to conclusions; (c) the appropriateness and richness of normative, judicial and scholarly sources on which the student's reasoning is based; (d) the ability of the student to adopt a critical approach to the topics studied.
Reference texts
- Students who attend classes may prepare for the exam revising their own notes and studying the texts that will be indicated at the beginning of the course. For students who do not attend classes, the suggested textbook is F. GALGANO, F. MARRELLA, Diritto del commercio internazionale, 3rd ed., Cedam, 2011, paragraphs 1 to 3, 15 to 20, 38 to 42, 45, 49 to 79, 101 to 113, 157 to 162, 220 to 223, 225 to 230.
