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§ 1. The international commercial treaties. Sources of legal regulation of international trade

To the most widespread contracts, oposredstvujushchim commodity-money relations in the national markets of the countries and in the international economic turn, the purchase and sale contract (vente, kaufvertrag, sale) concerns.

1 «To foreign trade contracts and legal relations on foreign trade we otneyosli a hook not, in which at least one of the parties is the foreigner (inostranyonym the citizen or the foreign legal body) and the transaction maintenance javljajutyosja operations on import or export of the goods abroad or any subsidiary operayotsii, connected with export or import of the goods. Here first of all the contract of purchase of the goods which are coming under to import from abroad or export abroad, and also connected with commodity export or transaction import podrjada, komisyosii, transportations, loads, credit-settlement relations, insurance and dr» {Lunts A.Vneshnetorgovaja's L purchase and sale - M, 1972 - With 14), hence, concern

In the modern Russian civil legislation is not present legalyonogo definition of the foreign trade contract proceeding from which it would be possible byyolo to prove the foreign trade character of the direct transaction in each concrete case. Moreover, in the Civil code of the Russian Federation otsutstvuyojut also the general provisions fixing signs external economic doyogovora and the system of such agreements. And the most paradoxical consists that in GK the legislator has not found a place for definition predprinimayotelskogo (economic) agreement which could and should be bazoyovym for definition various, including external economic and vneshneyotorgovye, types and kinds договоров1.

For this reason a problem of legal qualification of transactions in kacheyostve foreign trade for the purposes pravoprimenenija (customs oformleyonija, preferential taxation, currency-export regulation, etc.) it is transferred on local level, that in the conditions of absence uniform prak-tics on places quite often attracts the discrimination to definition juridicheyoskoj the nature of the concrete transaction and generates disputes of participants vneshnetoryogovoj activity with bodies of tax police, tax inspektsijayomi, customs bodies, service of the currency and export control and

V -

Traditionally under the contract of purchase one party (seller) objayozuetsja to transfer the sold thing (goods) and to transfer on it the right sobstvenyonosti on other party (buyer), and the buyer undertakes to accept kupyolennuju a thing and to pay purchased цену2.

In all legal systems this contract is considered as dvuhstoyoronny, vozmezdnyj, konsensualnyj.

In the Russian civil law, as well as the trading legislation of the majority of foreign countries, and also in international law the contract of the international purchase and sale of the goods is modelled as bilateral konsensualnoe the agreement with participation foreign or priravnenyonogo to it of an element, made in idle time written (on rossijyoskomu to the right) or in oral (on the international private law) the form, the maintenance kotoroju is interstate vozmezdnyj ekviyovalentnyj an exchange govjara on money (currency).

1 See: V.Dogovor's Bagel international kulli-PROAGIOES of the goods how to avoid errors at its registration and execution II Economy and the right — 1999 — № 3.
— With 82

2 In conformity sp I st 454 GK under the contract of purchase one party (prodayovets) undertakes to transfer to the possession a thing (goods) of other party (buyer), and poyokupatel undertakes to accept these goods and to pay for it a certain sum of money (price)


Konsensualnost contracts means, that the rights and duties eksporyotera and the importer arise while they is reached agreements under the essential treaty provisions and will invest the arrangement in treyobuemuju the law the form, instead of at the moment of real performance any juriyodicheski significant действий1.

Thus, it is necessary to discriminate the moments of signing of the contract, occurrence at the parties of the rights and duties and execution of the transaction which contracts depending on character can not coincide.

Observance of requirements konsensualnosti at the conclusion vneshneyoekonomicheskogo contracts has the important practical value even in that case when this contract is реальным2. So, in 1991 Sysertsky ATEP has concluded the contract of carriage on which was obliged to transport to Lithuania 70 t red copper. The goods have been shipped on motor transport and should go in the morning. At the moment of departure signing puteyovyh sheets and registration of commodity-transport documents has been postponed. However spot-check with participation local OBEP, tax inspection and tayomozhennogo body in which course it was found out, that at a carrier otsutstyovuet the customs declaration resolving export of strategically important raw materials from the customs territory of Russia at night has been spent. Under the legislation operating during this period it was considered as the considerable customs infringement assuming confiscation of the goods and imposing on a carrier of the penalty at a rate of cost of the confiscated goods. Application of the given sanctions has put gradoobrazujushchee the state enterprise on a side bankrotyostva However a carrier has disagreed with legitimacy of the punishment applied to it and has appealed against actions pravoprimenitelnyh bodies in Ar -

1 Sm; Civil irao the Textbook Volume I / Otv. Red E L Sukhanov - M, 1998. - With 336-337, Civil law of Russia the Textbook the Part the first / Under. red Z.I.tsibulenko of % 1998 - With 179

2 According to p 2 items 433 GK the Russian Federation if according to the law for the conclusion dogoyovora is necessary also assignation, (article 224) is considered the contract the prisoner from the moment of transfer of corresponding property. Such dogovory the court of Sverdlovsk area, board on administrative spoyoram which admit real bitrazhnyj has cancelled the tax organ decision on the following osnovaniyojam.

Owing to the civil legislation the contract of carriage is reyoalnoj the transaction as ' according to p I item 99 of Bases of the civil legislation the carrier undertakes to deliver entrusted to it otpraviteyolem cargo in punju appointments and to give out its authorised on reception of cargo to the person (addressee). However for a carrier of the right and a duty on tayokomu to the contract arise not at the moment of vehicle loading, and at the moment of making contract, kakovoe (conclusion) proves to be true soyostavleniem and way-bill delivery. On automobile transyoporte the consigner should present to a carrier on cargo of commodity character shown to transportation a commodity-transport waybill. PeYOrevozchik has the right to check correctness of these data. Cargoes tovaryonogo the character, not issued by commodity-transport waybills, to peyorevozke are not accepted (item 44 UAT RSFSR). As at carrying out of that-mozhenno-nalogovo-militian check the contract of carriage was not zakljuyochen, the fact of infringement of the legislation on declaring of the foreign trade cargoes actually yet was not, hence, the bases for priyomenenija sanctions существовало1.

The contract of the international purchase and sale is a version of the external economic (foreign trade) transactions about which it is spoken in PS the Russian Federation (p Zet 162)

1 Moreover, in the international trading practice widespread custom, in sootvegavii with which the contract is not considered the prisoner in the absence of all neobhoyodimyh permissions and. If before their reception he nevertheless subscribes the parties, schitayoetsja made under suspensive condition (sm the International private law soyovremennye problems / Ogv red. M of M Boguslavsky — M Teis 1994. — With 399-400)

In st I Federal act from October, 13th, 1995 № 157-FZ «About goyosudarstvennom regulation of the foreign trade activity» definition of the foreign trade activity contains, being based on which vneshneyotorgovuju the transaction (the legal form of this activity) it would be possible opreyodelit as the enterprise contract regulating the relations in the field of the international exchange by the goods, works, services, inforyomatsiej, results of intellectual activity. However such opyoredelenie, based on the identification of the external economic and foreign trade activity admitted by the legislator, it is unjustified shiroyoko. According to it to foreign trade it is necessary to carry, for example, doyogovor podrjada (an exchange of results of the performed work), that contradicts PS, considering commercial transaction and the transaction podrjada in quality samoyostojatelnyh contractual types.

Owing to the contract of the international purchase-prozhazhi the seller, osushchestvyoljajushchy enterprise activity, undertakes to transfer in obuslovyolennyj term or terms the goods made or bought by them pokupayotelju for use in enterprise activity or others tseyoljah, not connected with personal, family, house and other similar ис­пользованием1.

From here foreign trade contract is a kind of the economic transaction, that is the agreement of the economic agents, one of which is not the resident of the Russian Federation or, also being the resident of the Russian Federation, has abroad the commercial organisation, directed on ustayonovlenie, change or the termination of the civil rights and objazannoyostej at realisation trading (export, import and reeksyoportnyh) operations.

1 See RozenbergMG. The international purchase and sale of the goods - M, 1993 - With 36

Discriminating lines of the contract are, first, different gosuyodarstvennaja an accessory of the parties; secondly, a transaction subject - operations on export or import товаров1; thirdly, use in quality sredyostva payment of currency which is foreign at least for odyonoj from сторон2.

In international trade in objects of commercial operations javljayojutsja technological production, consumer goods and services, including results industrial and scientific and technical со­трудничества3.

The international commercial operations (or commercial transactions) though submit to norms of the national law, differ the rules, norms, traditions from transactions in the country (including the transaction mezhduyonarodnoj purchase and sale of the goods) that they are regulated as well mezhyodunarodnymi by normative acts. Proceeding from it it is necessary to give chetyokoe definition of the international transaction - transactions to which norms of international law are applicable.

According to the Convention of the United Nations from April, 11th, 1980 «About contracts mezhdunayorodnoj purchase and sale of the goods» international (or vneshnetorgoyovoj) the transaction concluded between counterparts, that is between the trading partners which commercial enterprises are in razyonyh the states or, otherwise, in which legal address ukayozany the different states is considered (item 1). Thus, it dejsgvija citizens-predpriniyomatelej and legal bodies of the different states, directed on ustanovleyonie, change or the termination of the civil rights and duties at kupyole-sale of the goods and services in external (international) trade.

1 Subjects of the foreign trade contract of purchase and sale such services which do not have the substantiated form are.

2 See: International mastnoe the right: the Textbook for high schools / Under red. Maryshe-voj. thive., 200O-C.225.

1 Tpyikitt - Minsk, 1999 - With 8


The goods for a foreign market can have the form as services, and the veshcheyostvenno-material form, therefore it is possible to speak about the goods in the broad sense of the word (the veshchestvenno-material goods and services) and about the goods in uzyokom sense of a word (only the goods in the veshchestvenno-material form).

The legal regime of the foreign trade contract, including for primeneyonija customs privileges and privileges in the field of the taxation besides grazhdanyoskogo the rights is defined also by the customs legislation of the Russian Federation, nalogoyovym the legislation and the legislation of the Russian Federation on currency regulation and the control.

All variety of the goods what are created by human practice and are used in a trade turnover, it is collected in the Harmonized system of the description and coding of the goods (Harmonized Commodity Pescnption and Coding System), accepted by Council of customs cooperation on the basis of the Convention on the Harmonized system of the description and coding of the goods (has become effective in 1988).

In 1990 in the USSR the Commodity nomenclature vneshneekoyonomicheskoj activity of the USSR (TN foreign trade activities), which isyopolzuetsja has been accepted now by all former republics USSR. The states which are a part of the CIS, apply the Commodity nomenclature of foreign trade activities of Commonwealth of independent states (TN foreign trade activities of the CIS).

Since April, 1st, 2000 a basis of system of the description and coding of the goods, used in the Russian Federation for formation Customs tayorifa, definitions of measures of state regulation vneshneekonomicheyoskoj activity and conducting customs statistics it is considered Commodity noyomenklatura foreign trade activities of the Russian Federation (TN foreign trade activities of the Russian Federation) 1.

1 the governmental order of the Russian Federation from February, 22nd 2000 g № 148//SZ rf. - 2000 — № 9 — St 1036, the order of the State Customs Committee of the Russian Federation from March, 10th, 2000 Jfe 176 See

TN foreign trade activities of the Russian Federation are constructed on the basis of the Harmonized system of the description and coding of the goods, the Combined nomenclature of the European Ekoyonomichesky Community, and also TN foreign trade activities of the CIS.

TN foreign trade activities of the Russian Federation are intended for gathering of statistical data about vneshyoneekonomicheskoj to activity of the country and foreign trade activities state regulation. Number of the primary goals such reguliyorovanija concern:

1. The customs control of the goods moved through gosudarstvenyonuju (ranitsu.

2. Not tariff regulation of export and import of the separate goods of nation-wide value (licensing and kvotirovanie).

3. Measures of operative regulation of external economic relations, including tariff regulation (duties, taxes and tax collections).

More the general classification of the goods in comparison with classification TN foreign trade activities of the Russian Federation usually resulted in the statistican of foreign trade, divide all goods on:

Agricultural raw materials and the foodstuffs; fuel, mineral raw materials and metals;

Chemical products; cars, the equipment, transport

Means;

The industrial consumer goods.

The foreign trade state policy in the various countries is usually directed on restrictive regulation of trade by the goods from first three groups of this классификации1.

As a rule these goods get under a mode of licensing and kvotiyorovanija export (not tariff restrictions), on them higher rates of export duties (tariff regulation) are established. And, on the contrary, the states in every possible way encourage export of a ready industrial output with high degree of processing.

1 Pokrovsk I.V.organisation and regulation external economic dejayotelnosti the Textbook - M the Lawyer, 1999 - With 34 and a trace See

Import duties usually the lowest on raw materials and half-finished products and the highest on finished goods: it the state protects vnutyorennjuju a process industry in which it is occupied bolshinstyovo the population and which defines scientific and technical progress.

Now gets the increasing value international trade in services. It differs from trade in other goods in that the last cannot be physically moved through border, that is usyolugi is the goods not having the substantiated form. In many countries trade in services takes a considerable place in international trade volume. It is caused by scientific and technical progress in sphere materialyonogo manufactures, deepening of the international division of labour and growth of social and economic requirements of many countries. The parity miroyovogo export of services in the early nineties to world export of goods was

The statistical commission of the United Nations, IMF, statistical bodies of EUROPEAN ECONOMIC COMMUNITY and other international organisations are engaged in working out metodologicheyoskih questions in area of statistics of services.

Problematic in this work are concept definition "usluyogi" in international trade and working out of the qualifier of services. These proyoblemy are connected by that recently along with services traditional for international trade (financial, transport, strahoyovymi) the great value was got by specialised services, such as design, construction, preparation programmyonogo maintenance and computer facilities maintenance service.

In the CIS countries statistical bodies use «time kodiyofikatorom services in foreign trade activities» (VKU foreign trade activities), razyorabotannym in 1991 Goskomstat of the USSR on the basis of materials of uniform classification of the goods (EKT). The statistical commission of the United Nations this klasyosifikator, on another it name the Qualifier of services-99 because the qualifier of services in a definitive kind will be included in group «99

«The harmonised system of the description and coding of the goods (GS).

In the foreign trade activities maintenance which component is activity foreign trade, it is necessary to allocate two components: first, public foreign trade activities which represent main in the image state activity in economic relations with other states; secondly, vneshneyoekonomicheskuju activity legal and physical persons or predpriyonimatelskuju activity with a foreign element.

In the mechanism of legal regulation external economic dejatelyonosti it is possible to allocate three levels: the international public law, mezhduyonarodnoe private law and national законодательство1.

Legal regulation of contractual relations in system mirohozjajyostvennyh communications is carried out by norms of international law. Here razyolichajutsja international public and international law.

The international public law regulates economic otnosheyonija between государствами2, and this part of its norms tends to isolation in independent branch international economic права3.

1 see SulejmanovM.K More in detail. The decree. soch - with. 108.

2 There is also a point of view, that the international economic right reguyoliruet the international economic relations between any subjects. In this case the international economic right is treated or as a conglomerate public and is frequent but-rules of law (sm, e.g., International право* the Textbook for high schools / Under red G V.Ignatenko. - M, 1995. - With. 338) or as transnational right, napravyolennoe equalising as international subjects of the state and transnational corporations (see about it. Velyaminov H'M. Bases of the international economic right - M, 1994. - С.8)

3 Sm Boguslavsky of MM. The international economic right - M, 1986; Rustle-lov VM the International economic right. - M, 1999.


The international private law represents the body of rules, regulating private-law relations with a foreign element. SushchYOnost and a subject of the international private law are debatable. One authors consider, that the international private law is compound

The first kind - dogovory, establishing a trade mode in otnosheyonijah between two states or group of the states. Under the maintenance they can be subdivided into five basic types: commercial treaties and agreements;

Agreements on economic and technical cooperation; economic agreements;

Agreements on granting of the financial help; agreements on protection of investments.

In commercial treaties and agreements of the general type of the party predusmatyorivajut mutual granting of a most favoured nation treatment which, as a rule, extends on area of collection of the customs duties, every possible taxes and tax collections at import and export, and also on taxation by taxes and tax collections of vessels of one party in ports another storoyony, on rules and formalities concerning import, export. From a most favoured nation treatment, as a rule, are excluded preimushchestyova which are given or can be given in the future of one of contracting parties to the next states with a view of simplification of frontier trade with them, and also the advantages following from tayomozhennogo of the union which is concluded or can be concluded in the future of one of contracting parties.

1 GATT — the General agreement under tariffs and trade (GATT) from October, 30th, 1947, the WTO — the World Trade Organization

The countries - participants ГАТТ/ВТО1 apply to each other a mode naiyobolshego preference, not having among themselves special soglasheyony. In some trading agreements it is underlined, that the principle naiyobolshego preference is applied by the parties only in area vyyodachi import licences. As commercial treaties usually zakljuchayojutsja for long terms, they create certain stability in torgoyovyh relations between the countries.

Lists of the goods are usually applied on trading agreements, javljajuyoshchihsja by a trade subject between these countries. If import of any goods included in lists, is not released from quantitative ogranicheyony on it the adjusted contingent - quantity or cost is underlined; on some positions possibility uveliyochenija koitingentov is provided. Sometimes in lists are resulted only the nomenclature toyovarov and a total sum of mutual deliveries without instructions separate kontingei. (For example: the agreement between the governments of Russia and Malta «About vzaimoeksportiruemyh the goods for 1992», confirmed (annual) the report on the goods turnover, containing lists of the goods which do not carry restrictive character. In the report priorities of the parties in the field of mutual deliveries of the goods) are defined. As a rule, trading agreements reyogulirujut about an identical circle of questions. In some agreements of industrially developed countries with developing countries especially ogovarivayoetsja possibility of increase in credits or the state guarantees to these countries for simplification it of purchases of cars and the equipment.

Intergovernmental agreements on economic and technical cooperation play the important role in trade in the high technology goods. PuYOtem an exchange of party letters especially agree about realisation otyodelnyh projects in the specified area. On the basis of the agreement about ekonomicheyoskom and technical cooperation can consist special soglayoshenija on separate questions.

Agreements on economic and technical cooperation usually consist on three - five years, sometimes for one year with the reservation about vozmozhnoyosti prolongations one month prior to the action expiry of the term.

Intergovernmental economic agreements are similar with torgovyyomi agreements of the general type, to that, however, a difference, that in them, besides questions of barter and services, in the general form is looked through, that dogoyovarivajushchiesja the parties within the limits of operating in each of the countries of rules of law undertake not to apply discrimination also concerning capital account and in mutual payments. Period of validity economic soglasheyony - one - one and a half year.

Intergovernmental agreements on granting financial poyomoshchi provide the consent of the government of one of the parties predostayovit to other party long-term credits (with instructions of the sum of the credit). Concerning conditions of credits and an order of their use it is reserved, that these positions will be adjusted in special contracts.

Value of agreements on the financial help as means trading poyolitiki is defined by that the overwhelming part of given credits is spent by the countries - borrowers for purchase of the goods from the country - kreditoyora.

Intergovernmental agreements on protection of investments fix obligations of contracting parties not to spend discrimination in otyonoshenii mutual capital investments, to resolve free transfer kapiyotalov and profits and to alienate capital investments of other party only under condition of corresponding and immediate compensation of their cost. SoYOglashenija about protection of investments are one of ways of insurance kayopitalov, mainly from political risks.

The second twisted - international treaties of the second kind contain grazhyodansko-legal rules regulating property relations, vozniyokajushchie from the external economic contracts.

International treaties of such kind concerns first of all doyogovory, provided by the United Nations Convention «About contracts of the international purchase and sale of the goods» from April, 11th, 1980 (the Viennese convention).

The United Nations convention «About the international purchase and sale of the goods» predyostavljaet itself the uniform legal act, concerning the international purchase and sale of the goods. The convention has been prepared by the Commission of the United Nations by the right of international trade (JUNSITRAL) and accepted by diplomatic conference on April, 11th, 1980

Preparation of the uniform legal text regulating mezhduyonarodnuju purchase and sale of the goods, has been begun in 1913 by the International institute of unification of private law in Rome. After a long break in the work, caused by the Second World War, the project has been presented diyoplomaticheskoj to conference in the Hague to 1964 which has accepted two KonvenYOtsii: one about the international purchase and sale of the goods and another about the conclusion of contracts of the international purchase and sale of the goods.

Almost right after acceptances of these two Conventions began to express critical remarks to their positions, as reflecting the main thing obyorazom legal traditions and economic realities of continental countries of Western Europe, that is the region accepting the most active participation in their preparation, and, as consequence of it, one of primary goals JUNSITRAL after its creation in 1968 consisted in finding out from the states, whether they are going to join these Conventions, and also to specify the reasons of their positions.

In the light of received answers JUNSITRAL has made decision to study these two Conventions to specify, what changes could make their suitable countries for wide recognition with various legal and social and economic systems.

Acceptance diplomatic konyoferentsiej on April, 11th, 1980 United Nations Conventions «About contracts of the international purchase and sale of the goods» in which have been consolidated essential poloyozhenija two previous Conventions was result of this research.

About successful work JUNSITRAL on Convention preparation, prigodyonoj for wide acceptance, that fact testifies, that the initial eleven states for which the Convention has become effective on January, 1st, 1988, include the states representing all geographical reyogiony, all stages of economic development and all cores legal and sotsiyoalno - economic systems. These states are: Argentina, Hungary, Egypt, Zambia, China, Italy, Lesotho, Syria, the USA, France and Yugoslavia.

Overall objective of the Viennese convention — unification of a legal regime of the international transactions of purchase and sale. At its application distinctions in legal regulation of transactions of purchase and sale in the right of the countries of its participants are appreciably erased. It facilitates both the conclusion and execution doyogovorov as the content of rights and duties of the parties is defined ediyonoobrazno.

The convention has standard character. At the same time the parties at own discretion can recede from its positions. The convention rasproyostranjaetsja only on dogovory having the international character. OpredeYOljajushchim for an establishment of the international character of the transaction that the commercial enterprises of participants of the transaction are in different gosuyodarstvah (item 1) is.

From sphere of action of the Convention certain kinds of transactions of a font-sale, namely, consumer trade, sale by auction, in poyorjadke final process or otherwise owing to the law are withdrawn. KonYOventsija (item 2), contracts of contract character (item 1) does not extend on sale of securities, vessels water and vozyodushnogo transport, the electric power.

1 the enterprise right See Belov A.P.international. - M, 2001. With 58.

The convention does not regulate a number of the important legal questions, traditsiyoonno arising at the foreign trade purchase and sale. For example, polozheyonija about penalties and penalties at default or inadequate ispolneyonii obligations (item 4). Such questions are regulated according to noryomami the applicable national law. Besides, the Convention not zatragiyovaet legal regulation of transactions but the foreign trade delivery, on kotoyorye earlier concluded international treaties extend.

Positions of the Viennese Convention are applied by participants vneshnetoryogovyh operations irrespective of are present or not at the contract ssylyoki on the Convention.

The convention shares on four parts.

The part the first concerns spheres of application of the Convention and contains general provisions

Regarding the second the norms regulating the conclusion dogovoyorov of the international purchase and sale of the goods contain.

The part the third concerns fundamental laws and obligations of the seller, vozniyokajushchih in connection with the contract.

Convention substantive provisions are included in a part the fourth, reguliyorujushchie such questions, as an order and terms of its coming into force, dopustiyomye reservations and statements, and also Convention application to the international purchase and sale when both interested states priyomenjajut to the given question similar or similar rules of law.

In the Convention of 1980 the rules concerning to isyokovoj of prescription and an order of the resolution of disputes are not provided.

Concerning limitation of actions in 1974 sort it has been concluded «KonvenYOtsija about limitation of actions in the international purchase and sale of the goods» (New York 1974). It establishes uniform for all contracts of the international purchase and sale the period of limitation which is equal to four years.

By the legislation of the various countries the period of limitation kolebyoletsja from six months till thirty years, therefore for many of them chetyyorehletny term is represented comprehensible.

The USSR has signed the Convention! On June, 4th, 1974, since December, 24th, 1991 the Russian Federation continues membership of the former USSR in the United Nations and nachiyonaja from this date bears in full responsibility on all objazatelstyovam the USSR according to the charter of the United Nations and the multilateral treaties which depositary is the Secretary general. Now the Convention is not ratified by the Russian Federation.

With acceptance of the Convention of the United Nations of 1980 which was not containing any conflict rules, there was obvious a problem of addition of financially-legal rules provided by the Convention of 1980, unification of conflict rules.

This problem has been to some extent executed by acceptance «KonYOventsii about the right, applicable to contracts of the international purchase and sale of the goods» (1985). The convention is developed on emergency session of Gaagyosky Conference of the international private law. The convention can priyomenjatsja to any purchase and sale of chose transitories having mezhdunarodyonyj character. The convention extends also on sales by auction or at a stock exchange. Owing to item 22 the Convention should not be applied to the contract of purchase between the parties belonging to the state-participants of other international agreements, establishing conflict rules to such contracts.

The important source of regulation of relations are also nayotsionalnye and commercial customs (as forms of the general practice recognised as the rule of law) 1. The special role belongs to the customs known as «basic conditions of delivery». Developed in long-term trading practice, they are recognised in each of the countries by vessels and arbitration, and in the USA are authorised by the law (item 2-319 - 2-321 ETK).

1 About concept and value of customs of the international purchase and sale see: Zykin I.S.external economic of operation: the Right and practice - M. 1994. - With 195, nenasheva T. ObyYochaj 19. - S.67-74; Rosenberg M. G the international purchase and sale of the goods - M, 1994. - From 30 Business turns and the foreign trade contract//Economy and a life-1997, - № 19 - S.67-74; Rosenberg of M. of

In international trade the greatest application have «13 bazisyonyh delivery conditions», characterised in arch Inkoterms published by the International chamber of commerce.

For interpretation of will of the parties which directly have been not expressed in the text, ispolyozujutsja also trading or business usage.

Concerning application of commercial customs and obyknoveny in item 9 of the Convention of the United Nations «About contracts of the international purchase and sale of the goods» from April, 11th, 1980 it is underlined, that the transaction parties are connected with any obychayoem concerning which they have agreed, and also the practice established in their mutual relations. In case of absence of their straight line dogovorennoyosti it is considered, that the parties meant application to the custom contract about which they knew or should know, and which is widely known in international trade and is constantly applied in contracts.

In all national legal systems rather detailed regulation of relations on purchase and sale by norms kodifitsiroyovannyh normative acts, as a rule Civil codes (France — item 1582-1694 PS contains; the USA of item 2-101-2-725, section 2 NTK; Switzerland - spetsialyonyj section of the Obligations law, Russia — item 454-505 GK). In a number of the countries of the romano-German legal system of norm on purchase and sale are available also in trading codes. In some countries are published special zakoyonodatelnye certificates on purchase and sale of the goods, in particular in England - the law on sale of the goods of 1979.

Foreign trade activities of Russia are regulated, in particular, by the Law «About state regulation of the foreign trade activity», become effective in full since June, 1st 1996 г1. This Law contains main principles of regulation of foreign trade activities (foreign trade activities):

1 SZ the Russian Federation — 1995. № 42 — Item 3923; 1997 — № 28 — St 3305; 1999 — Jfc 7. — St

1) reformative (and not just especially regulating) activity goyosudarstva, development of branches developing a policy and regions under which all system of state regulation vneshyonetorgovoj activity and the control over its realisation is arranged. At the present stage of development the state aspires to regulate development external toryogovli not so much administrative interdictions and restrictions, how many by creation of favorable economic conditions for realisation of those external economic operations which promote increase efyofektivnosti national economy, realisations of those or other problems of sotsiyoalno-economic development of the country.

At the same time for operations which can have adverse influence on a national economy, are created less favorable ekonomiyocheskie conditions. Administrative actions can be used only in the event that by means of others (i.e. economic) methods it is impossible dosyotignut objects in view. To market system of an economy basically bolyoshe there correspond economic tools of regulation of foreign trade activities. But efyofektivnost their uses has certain frameworks. During the periods znachiyotelnogo deterioration of a condition of economy, inflation and sharp distinctions meyozhdu internal and their world economic indicators vozmozhnoyosti sharply decrease.

In process of strengthening of market relations by the basic subjects of foreign trade activities there should be independent enterprises of any forms sobstvennoyosti, operating within the limits of the law under the responsibility. Main zayodacha the states - all-round assistance and simplification of foreign trade activities of these subjects. Without state strong support — trading-political, credit and financial, and also tax and other privileges - young, beginning rosyosijskim to businessmen not to be entered without huge losses for itself and for the country in the international economic relations. It napravleyonie - assistance and support - should become the main things in activity gosuyodarstvennyh bodies at improvement of regulation of foreign trade activities;

2) change of foreign trade activities of the Russian firms in a direction from preimushchestvenyono single external economic transactions to foreign trade activities as a constant and organicheyoskoj parts of their general economic activities with long-term orientatsiyoej on deduction and expansion of foreign markets;

3) clear split of functions of realisation foreign trade politiyoki (VTP) between power branches, departments, and also Russian FederaYOtsiej and its subjects. Action of system external economic reguliroyovanija, the defined federal acts and others standard prayovovymi certificates of the Russian Federation, extends on all territory Russian FedeYOratsii. The president presides state vneshnetorgoyovoj at a policy. The government provides carrying out uniform gosudarstyovennoj a foreign trade policy and carries out measures on se realisations. According to the Law working out of offers on state vneshyonetorgovoj to a policy of the Russian Federation, regulation vneshnetorgoyovoj activity se participants, to the conclusion of international treaties of the Russian Federation in the field of the foreign trade communications is carried out by federal enforcement authority to which by the Government of the Russian Federation are directly assigned coordination and reguliyorovanie the foreign trade activity, together with other federal enforcement authorities within their competence;

4) the foreign trade policy is a component external poliyotiki the Russian Federation. She is subordinated to requirements of foreign policy of the state and cannot enter into the contradiction with it. Therefore concrete decisions in the field of a foreign trade policy should to the full soglayosovyvatsja with a policy внешней1.

1 Sm also Ershov I.V.enterprise the right the Textbook - M, 2002 - With 383

If, say, Russia joins the international sanctions concerning any state, it should find reflexion and in the termination of the foreign trade operations with the given country with what vyyogodnymi they would not be. Therefore creation favorable a condition for the Russian exporters in the world market urged to become one of tsenyotralnyh problems. The governments (and foreign experience testifies to it) in interests of mobilisation and the best use limited reyosursov are forced to resort to administrative tools reguliroyovanija export-import transactions.

However active application of administrative regulation should not be reduced to use of the most rigid instyorumentov repressive character at all. It is important to involve all developed world practice an arsenal of such means (in foreign countries primenjayojutsja tens kinds only kvotirovanija and licensings) and to create with their help a complex control system external economic operayotsijami. Not so much restriction of trade, how many the control over its development should be its purpose.

Therefore use of administrative tools is combined in Russia with the regulations of foreign trade activities standard in the world. In chastnoyosti, in Russia the establishment of such tools as the time is declared; are provided distribution of positions of corresponding documents on all trading partners (exceptions are possible only in otyonoshenii developing countries) and possibility to change procedure reguliyorovanija only on the basis of published acts.

Setchenov's GP 1 Sm, Krensva SB, Larin YES. Bases external economic dejayotelnosti. - M, 1999 - With 7

In process of strengthening of market relations by the basic subjects of foreign trade activities there should be independent enterprises of any forms sobstvennoyosti, operating within the limits of the law under the responsibility. Main zayodacha the states - all-round assistance and simplification of these foreign trade activities субъектов1. Without state strong support - trading-political, credit and financial, and also tax and other privileges - young, beginning rosyosijskim to businessmen not to be entered without huge losses for itself and for the country in the international economic relations. It napravleyonie - assistance and support - should become the main things in activity gosuyodarstvennyh bodies at improvement of regulation of foreign trade activities;

5) unity of a policy of the export control which is carried out in intere - sah realisations of the state problems of maintenance national bezopas - nosti, political, economic and military interests, and also vypolne - nija the international obligations of the Russian Federation on bar of claim by lapse of time of export of the weapon of mass destruction and other most dangerous types of weapon.

The export control is in the competence of the federal authorities and is defined exclusively on the basis of maintenance of safety of the country, its economic, political and military interests. The inventories, coming under to the export control, affirm the President of the Russian Federation;

6) in all territory of the Russian Federation operates uniform tamo - zhennyj a mode; under the relation to all imported on it and to the goods taken out from it uniform customs rules are applied.

According to the Law customs-tariff and not tariff reguliyorovanie the foreign trade activity, the politician in the field of certification of the goods, the establishment of standards and safety principles iuili bezvredyonosti for the person at import of the goods etc. is in the competence fedeyoralnyh the authorities which establish uniform rules and norms in all territory of the Russian Federation. We will notice, that the unanimity tamoyozhennoj territories is fixed as well in the Customs code of the Russian Federation;

7) equality of participants of the foreign trade activity and them is minatsija. This principle proclaims equality of the rights and duties of all participating in foreign trade activities. Concerning them identical norms and rules are applied. All managing subjects lead foreign trade activities with equal reason, carrying out the same customs procedures and paying customs payments and taxes.

It is easy to understand, that practice of granting of customs privileges for otyodelnyh participants of the foreign trade operations contradicts the Law about gosuyodarstvennom regulation of the foreign trade activity;

8) protection by the state of the rights and legitimate interests of participants vneshyonetorgovoj activity. The state is on guard of the rights and lawful inyoteresov legal and the physical persons participating in vneshneekonomicheyoskih operations. In the event that interests of participants of foreign trade have suffered as a result of participation of Russia in the international sanctions, they have the right to the indemnification judicially at the expense of means feyoderalnogo of the budget (Law item 21). The law provides, that for protection of economic interests of the Russian persons who have suffered from actions zaruyobezhnyh of the states, Russia can enter reciprocal measures. The special section of the annual Federal program of development foreign trade dejayotelnosti should contain the list of cases of discrimination and infringement of obligations concerning the Russian persons, and also the list of the accepted or planned reciprocal measures.

As auxiliary means of legal regulation ispolyozujutsja judgements and doctrines of the most qualified spetsiayolistov on public and to private law various national prinadyolezhnosti.

Not being the source of law, the important role at the conclusion of contracts of purchase is played also by standard treaty provisions, razrabatyvaeyomye big exporters and importers, their associations and assotsiayotsijami.

For example, the European Economic Commission in 1990 had been developed managements in the field of counter trade: on international contracts! vegrechnoj trade and a management on international kompensayotsionnym to contracts, and also the prepared management on legal osyochastju international law (SB. Krylov, ML. Plotkin, S.A.Golunsky, M.S.Strogovich, V.E.Grabal, A.M. Ladynezhsky, F.I.Kozhevnikov, S.A.Malinin, In I.Margiev, V.I.Menzhinsky, I.P.Blishchenko, L.N.Galensky and others). Others approve, that the international private law enters in soyostav the internal law. Thus a part of authors, priderzhivajuyoshchihsja this position, consider, that the international private law predstavljayoet itself independent branch of law (I.S.Lebedev, A.B.Levitin, G.K.Matveev, V.P.Zvekov, E.T.Usenko, B.C. Pozdnyakov, A.P.Movchan, N.V.OrloYova, A.A.Rubanov, M. of Rosenberg and others), and others - that the international private law is a part of civil law (M.M.Agarkov. I.A.Green, M.I.Braginsky, A.L.Makovsky, O.N.Sadikov and others).

There was a theory lex mercatoria which essence can be characterised as attempt to prove avtonomyonost, isolation of a regulation of the international commercial transactions from national legal systems (B.Goldman, F.Kan, L.Kopelmans, F.Fushar, K.Shmiptof and others) 1. In effect it is a question of validity samoyostojatelnosti the international commercial law which is above natsionalyonymi systems private права2.

The constitution of the Russian Federation provides (item 15), that a component prayovovoj systems of our state are international treaties of the Russian Federation. If the international treaty establishes other rules, than those, kotoyorye are statutory the Russian Federation international treaty rules are applied.

1 Sm: Merezhko A A. Lex meratoria: the theory and principles transnational torgoyovogo the rights - Kiev, 1999.

3 Sm: Sulejchanov M. K. The decree. soch. - with. 118-119

3 Sm: Avdokushin E.F the International economic relations: Educational Soyobie Th., 1999-S.39.


With reference to foreign trade activities the great value has two kinds international договоров3: novam counter торговли1.

In the USA, for example, 47,2 associations of importers and 39,7 associations eksyoporterov use typical dogovory in international trade. TipoYOvye contracts show themselves forms of contracts which are obligatory for the parties only under their agreement.

Also, for example, the European Economic Commission of the United Nations razrayobotany general terms of deliveries of the equipment and the cars, representing international interdepartmental dogovory standard harakteyora.

It is necessary to note also «the Agreement on general terms of deliveries between the organisations of the states of participants of the CIS» from March, 20th 1992 года2. General terms contain in particular, the positions, the concerning conclusions, changes and cancellation of contracts.

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A source: UGRIN Timothy Stepanovich. the CONTRACT of the INTERNATIONAL PURCHASE AND SALE of the GOODS. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -. 2002

More on topic § 1. The international commercial treaties. Sources of legal regulation of international trade:

  1. formation and development of international legal regulation of international trade by services
  2. the CHAPTER I. SOURCES of LEGAL REGULATION of PROOFS And PROVING In the INTERNATIONAL COMMERCIAL ARBITRATION
  3. SECTION 1.2. SOURCES of LEGAL REGULATION of PROOFS And PROVING In the INTERNATIONAL COMMERCIAL ARBITRATION
  4. a liberalisation Principle as the factor of transformation of the mechanism of international legal regulation of international trade in services
  5. the Mechanism of international legal regulation of international trade in services
  6. Chapter 1. The International legal status of the World Trade Organization as institutsionalnoj bases of the international cooperation in international trade sphere
  7. 3.1. Participation of Russia in international legal regulation of international trade by services on global (universal level): problems and prospects
  8. ANUROV VASILY NIKOLAEVICH. the ROLE of INTERNATIONAL TREATIES In FORMATION of the MODERN CONCEPT of the INTERNATIONAL COMMERCIAL ARBITRATION. The dissertation On competition of a scientific degree of the master of laws. Moscow -, 2000 2000
  9. Chapter 3. Participation of Russia in international legal regulation of international trade by services
  10. Chapter 1. The mechanism of international legal regulation of international trade in services
  11. § 4. Complex character of institute of the international commercial arbitration. The international commercial arbitration and the international private law