Lack of uniform law to guide in international transactions (research proposal)

CHAPTER ONE

1. Introduction

The independence of Nations coupled with the fact that Nations of the world transacts and enters business relationships called for a unifying standard and arrangement. The Technologically sophisticated countries, the politically solidified, the religious sovereign nations and other countries with one good or the other to offer have transacted with other countries in dire need of the goods they lack or want. So, taking into consideration the importance and volume of international business, a uniform law to regulate the trade at the international level was an absolute must in the last quarter of the twentieth century . It is very important that the topic is defined word for word so as to assist in the dyspepsia of the topic. The word “Contract” means a legally binding agreement. Agreement arises as a result of Offer and Acceptance but a number of other requirements must be satisfied for an agreement of be legally binding such as consideration, capacity, intention to enter into legal relations etc . From the definition of contract given, it is fashionable that for an agreement to be in place between parties (in this context, nations) there must be offer and there must be acceptance as seen in regular transactions of individuals, as well as bringing into consideration other necessary factor listed forthwith. “International” means to involve countries, or existing between countries. We can thus say that this thesis is concerned with; a legally binding agreement that exists between countries or even persons of different states location or residence in relation to sale of goods’. This thesis is concerned with the formation, the rudiments, the underlying legal details and principles that guide the agreement that exists between parties whose places/countries of businesses are different. This thesis is concerned with the uniform ways that regulates the formation of agreement of sales of goods amidst nations of the world.

Let it be said that one way states have been able to coordinate their choices to achieve a desired result is through the creation of International Institutions and regimes. International Institutions have become such an indispensable form in the globalize world as international institutions are used to facilitate cooperation across state frontiers, allowing for the identification discussion, and resolution of difficulties in a wide range of subjects, from peace keeping to the economic concerns vis-à-vis trade relations and development. The evolution of the modern nation-state and the consequent development of an International Order founded upon a growing number of independent and sovereign territorial units gave rise to a question of international co-operations . What is being said here is the fact that international institutions have been established to deal with transactions of nations and to serve as the creator of the laws to guide and see to response of nations, this points straight to the United Nations Convention on Contracts for the International Sale of Goods often referred to as ‘CISG’ Enacted in 1980 and it has covered more than two- thirds of the world trade . Many authors and writers have acknowledged the fact that the Convention for International Sale of Goods is being increasingly applied by state judicial institutions and even the arbitral tribunals, it has wide range of acceptance and globally recognized. While authors like Franco Ferrari has opined that the CISG is not exhaustively reliable and claimed that the CISG governs not all international transactions and international trades and have called for non too relieve on the CISG . Opinions like that of Franco Ferrari have failed to diminish the acceptance and wide usage of the CISG. Clair M. Gernain stated that researchers must acquire some familiarity with any applicable foreign sales law and choice of law rules because according to her, the CISG does not deal exhaustively with all international sale transactions. Criticisms against the CISG shall be further revised as this thesis progress.

It is pertinent to ask that what are the goods covered by the CISG and does the CISG guides and governs over all international contracts for sale of goods? The ‘good’ to be emphasized on in this thesis shall be “Oil and Gas” as it is popular and widely transacted and in usage in virtually all places of the world. This paper will allow for the international standards for formation of contract of sale of oil and gas, it will open up the legal regime of contract of sale, formation of the contract and general provisions under the CISG.

1.1. BACKGROUND OF THE STUDY

Arguably, the single most noticeable development in the last forty years in economic terms is globalization and this has increased cross boarder trade contributing greatly to the internalization of trade for many countries, international trade represents a significant share of their Gross Domestic Product (GDP) , consequently, increasing international trade is central to the continuance of globalization. The need for a uniform laws to help in sustenance and continued development of international trade is so central and important to both the developing and developed nations of the world for the continuance of globalization and as well, relationships of the world in enjoying and for participation in the International Economic Order. So, a key factor in the development of international trade law is globalization , and a uniform law represents a part of that phenomenon, in essence, this theses tends to enunciate why a uniform trade law and a globally acceptable guide for formation of contract would assist countries in achieving an equal balance in transactions, trade and development. Understanding that the commercial strength of countries is necessary in making the world economy, and as such, there is need to have a sturdy commercial legal framework encouraging globalization and harmonized considering the volume of transactions that goes around the world with credence to interstate transactions, economic relations of nations, there exists the need for a uniform law which ensures certainty and predictability in international transactions. The convention for the International Sale of Goods (CISG) which offers the right regulatory framework to deal with globalization and a credible incentive to foster international trade would be right policy for sale transactions and agreement of nations of the world

1.2. AIMS AND OBJECTIVES OF THE STUDY

The aim of this work is to see clearly the modus operandi of the CISG, to see the legal regime behind the formation of Contract for the International Sale of Goods, to clearly break down the response of countries to the unifying law to guide in inter-state transaction and agreement for sale of goods .

1.3. RESEARCH METHODOLOGY AND MATERIAL

This thesis starts by providing the history of the establishment of the convention; it also starts with the brief description of International Institutions in order to give an understanding for the underlying reason behind the development of International Trade Law and the subsequent establishment of the CISG. Furthermore, the aims of the convention are demonstrated to illustrate the goals of the CISG, all based on what is vividly seen in the preamble of the convention and also in the preparatory industry of the convention. The convention’s influence on other regulations and some regional instruments such as the OHADA is reported to illustrate why the convention is often referred to as a success. This part is based on what, after examining different academic writings, seems to be the general opinions regarding the convention’s achievements in doctrine. The convention primarily tends to demonstrate low the legal, regime work in practice based strictly in the provisions of the convention. Opinions of knowledgeable and brilliant international law experts and Lawyers are also duly used to broadly shed light on the provisions and postulations of the convention. The CISG developed in order to promote and provide for a uniform legal regime for international sales contract, aiming to contribute certainty in commercial exchanges and decreasing transaction cost for the contracting parties. It is however clear that the more existence of a unified document, such as the CISG, does no guarantee uniformity. It is therefore expedient to make postulations as to how states have conformed with the provisions of the CISG, so also how nations have responded to the ratification of the CISG, top lucidly explain this and associated problems of the CISG, various sources of academic articles and literatures are used. The general provisions of the CISG are lucidly examined and the main “Good” referred to this theses is the “ oil/gas” with adequate references also made to countries in Asia, Nigeria and the united Kingdom sparingly. All these done and lucidly explained with various article gotten from the database of the CISG, various internet sources, journals and articulated texts. The problems associated with the CISG is also well discoursed and considered considering peculiar problems of different jurisdictions. Moreover, to give a fair picture regarding these problems, various sources of academic articles and literatures are need. This is because a difficulty regarding these problems are that academics seems to precise them in different manner, hence, the need to highlight their different approaches to the problems of the CISG.

Other relevant revelations of the CISG are also seem in this theses, its practical applicability and exclusion are also looked into using academic articles and interactions as a guide.

1.4. STATEMENT OF PROBLEM

This paper attends to problems that arise out of the lack of a uniform law to guide in international transactions/ contracts. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is the prime example of unification of private law at the global level. This paper asks how parties perceive(d) this covenant.

This paper addresses issues of lack of uniformity that enveloped sales agreement in the international market and postulates how the CISG aims to achieve it. The sales law of country differs and as contract formation differs, the problem associated with which country law is applicable was laid to rest with the establishment of the CISG. The problem of obligations and remedies available that was creating uphill problems in international transactions was also clearly laid by the CISG. Despite this, the CISG does not deprive the sellers and buyers of the freedom to mould their contracts to their specifications, as parties are allowed the freedom to modify the rules established by the convention or to agree that the convention is not to apply at all. Current problems or loopholes of the CISG are also appropriately looked into and recommendations aimed at fixing the loopholes are also put forward in this paper.

1.5. STRUCTURE OF THE STUDY/THESIS

This work is arranged into five chapters of articulated research and subsequently identified as follows;

The first chapter houses the Introduction, which gives a lucid introduction and overview of the thesis. Housed with the introduction are the background of study, which sets the foundation of this thesis, The research methodology and material, Aims and objectives, to lucidly explain what this thesis aims to achieve or teach. The statement of problem is also in this apartment; the structure as it is being done in this segment also falls within this chapter.

The Second chapter researches straight into the historical developments of the CISG, it also explains the ratification overview of the CISG which is the international instrument guiding the formation of contracts of sale of goods internationally, the response of states is also discussed in this chapter.

The third chapter deals extensively with the contents of the CISG, elements of contact as enunciated by the CISG, rights of parties under the CISG. This chapter is of paramount importance as it also compares the CISG with some selected regional documents.

The fourth chapter deals with the enforceability of the CISG, justifiability of the CISG using select jurisdictions as a guide.

The fifth chapter embodies the criticisms, loopholes, and general defections of the CISG and its negative effect on International transactions. This chapter concludes with conclusion and astute recommendations.

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