The Law of International Trade

The Law of International Trade by Ademuni-Odeke BLACKSTONE PRESS LIMITED

Contents Preface Acknowledgements TableofCases Table of Statutes Table of Statutory Instruments Table of Conventions Table of Abbreviations xi xiii xv xxvi xxxi xxxii xxxv Part I International and Domestic Trade 1 International Trade in Perspective 3 1.1 Introduction 1.2 Mercantilism and international trade 1.3 Why international trade? The theory of comparative advantage 1.4 Patterns of international trade 1.5 State participation and intervention in international trade 1.6 Countertrade 1.7 Commodity and futures 1.8 Preshipment inspection 1.9 Sources and development of the law 1.10 Development of the main terms and principles 1.11 Panoramic view of international sales 2 Domestic Säle of Goods 19 2.1 A contract of sale 2.2 Conditions and warranties 2.3 Implied terms 2.4 Exclusion clauses 2.5 The passing of property 2.6 The 'nemo dat quod non habet' rule 2.7 Initial impossibility, risk and

vi Contents frustration 2.8 Delivery 2.9 Acceptance 2.10 The buyer's remedies for breach by the seller 2.11 The seller's remedies Further reading for Part I Part II International Sales 3 C.i.f. Contracts 61 3.1 Definition 3.2 Characteristics of documentary sale 3.3 Notice of appropriation 3.4 Passing of property 3.5 Risk 3.6 C.i.f. sale of documents or sale of goods? 3.7 The common law obligations of the c.i.f. seller 3.8 The common law duties of the buyer 3.9 Incoterms: c.i.f 4 F.o.b. and Other Contracts 91 4.1 F.o.b. contracts 4.2 The obligations of the parties 4.3 The strict f.o.b. 4.4 The classic f.o.b. 4.5 The extended f.o.b. 4.6 Incoterms: f.o.b. 4.7Ea.s. 4.8 Fc.a 4.9 D.e.s. 4.10D.e.q. 4.11 Exw. 4.12 C.fr. 5 Documentation in International Trade 107 5.1 The documents generally 5.2 The traditional bill of lading 5.3 Substitutes for bill of lading 5.4 The insurance policy 5.5 The commercial invoice 5.6 Additional documents required by the contract 5.7 Preshipment inspection and certificates Further reading for Part II Part III Transportation in International Trade 6 Carriage of Goods by Sea 135 6.1 Introduction 6.2 The legal and the actual carrier 6.3 How the contract of carriage may be performed 6.4 Seller using Services of freight forwarder 6.5 Incorporation of the charterparty into the bill of lading: 'charterparty bills of lading' 6.6 Inconsistencies between the bill of lading and the charterparty 7 Rights of Carrier and Cargo Interests 154 7.1 Introduction 7.2 Bills of Lading Act 1855 7.3 Common law bill of lading 7.4 Alternatives to the Bills of Lading Act 1855 7.5 Carriage of Goods by Sea Act 1992 7.6 Liability for freights 7.7 Types of

Contents v/i freight 7.8 Rights of the unpaid shipowner 7.9 Guarantee of payments for freights 8 The Hague-Visby and Hamburg Rules 174 8.1 Common law liability of the carrier 8.2 The Hague-Visby Rules 8.3 Application of the COGSA 1971 and the Hague-Visby Rules 8.4 The stage when the rules begin to apply 8.5 Seaworthiness: Art. III r. 1 8.6 The second Obligation: Art. III r. 2 8.7 The exemptions 8.8Thedutyof the carrier to issue a bill of lading: Art. III r. 3 8.9 Contracts of indemnity 8.10 Time limit: Art. III r. 6 8.11 Availability of an action in tort 8.12 Limitation of liability 8.13 The contract of carriage and third parties 8.14 Countries applying the Hague-Visby Rules 8.15 Countries applying the Hague Rules 8.16 The Merchant Shipping Acts 8.17 The Hamburg Rules 8.18 Limit of liability for maritime claims 9 Carriage of Goods by Air, Land and Multimodal Transport 213 9.1 Introduction 9.2 Carriage of goods by air 9.3 Carriage of goods by road 9.4 Carriage of goods by railway 9.5 Carriage of goods by combined transport Further reading for Part III Part IV Payments and Finance in International Trade 10 Payments in International Trade 231 10.1 Introduction Part 1 Direct Methods of Payment 10.2 Cash and direct means of payment 10.3 Novation 10.4 Assignment of the debt Part 2 Bills of Exchange 10.5 Introduction 10.6 The statutory definition 10.7 Computation of time in bills of exchange 10.8 The date of the bill 10.9 The fictitious or non-existing payee 10.10 Transfer 10.11 Acceptance 10.12 Liabilities of the parties 10.13 Exclusion of liability 10.14 The holder 10.15 The rights of a holder 10.16 The forged signature 10.17 Prerequisites for enforcement 10.18 Remedies for dishonour and the form of action 10.19 Cheques 11 Finance in International Trade 268 11.1 Introduction 11.2 The Uniform Customs and Practice for Documentary Credits (UCP) 11.3 The parties 11.4 Types of credit 11.5 The mandate 11.6 Takin? up the seller's documents 11.7 The autonomy of

Vii"j Contents irrevocable credits 11.8 Short-circuiting the credit 11.9 Remedies and procedural issues 11.10 Bankers' guarantees and Performance bonds Further reading for Part IV Part V Insurance in International Trade 12 Marine Insurance 309 12.1 Introduction 12.2 Marine insurance 12.3 Lloyd's of London and the insurance market 12.4 The mechanicsof obtainingapolicy 12.5 The contract 12.6 Insurable interest 12.7 The relationship between insurer and assured 12.8 Types of policy 12.9 Assignmentof the policy 13 Institute Cargo Clauses, Loss and Indemnity 327 13.1 The Institute cargo clauses: introduction 13.2 Institute cargo clauses: duration of the cover 13.3 Institute cargo clauses: the risks 13.4 Causation 13.5 Institute cargo clauses: the exclusions 13.6 Institute cargo clauses: duty to minimise loss 13.7 Total or partial loss 13.8 General average loss 13.9 Measure of indemnity 13.10 Subrogation 14 Export Credit Guarantees and Finance 348 14.1 Introduction 14.2 Credit guarantees 14.3 Credit insurance 14.4 Export credit insurance 14.5 ECGD policies 14.6 Private credit insurance 14.7 Export incentives and subsidies 14.8 Forfeiting 14.9 Discounting and finance houses 14.10 Financial Ieasing 14.11 Financial factoring Further reading for Part V Part VI Conflict Resolution in International Trade 15 Conflict of Laws and Procedures 359 15.1 Jurisdiction 15.2 Service outside the jurisdiction 15.3 Stay of actions and restraint of foreign proceedings 15.4 Jurisdiction in the European Union 15.5 Proper law of the contract 15.6Freezing (formerly Mareva) injunctions

Contents ix 16 Arbitration and Dispute Settlement 390 16.1 Introduction 16.2 Types of arbitration 16.3 The law governing the arbitration 16.4 The jurisdiction of the arbitrator 16.5 History of arbitration legislation 16.6 The Arbitration Act 1996 16.7 Stay of proceedings 16.8 Enforcement of the award Further reading for Part VI Index 400