Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow 117218, Russian
The reform of the legislation on arbitration courts in the Russian Federation, carried out in recent years, provides for strengthening the role of international arbitration in increasing the effectiveness of foreign economic relations.
The purpose of the research is to study the practice of arbitration courts in determining the applicable law to relations arising from cross-border contracts; identifying the approaches of the courts in resolving this problem in the aspect of using non-state sources of regulation in resolving disputes, as well as particular international agreements. The article aims to identify the main directions of improving the practice of resolving foreign trade disputes from the standpoint of harmonizing approaches to determining by the courts the law to be applied to international commercial contracts.
To achieve the goal and objectives of the research, comparative, technical, formal logical methods, the method of interpretation of law, as well as general scientific methods have been applied.
The article notes the increasing role of non-state sources in the regulation of cross-border relations. References to non-state sources, which regulate foreign economic relations — sets of uniform principles and rules of contract law, model general conditions, international trade customs, regulations, etc. — are more and more often found in cross-border contracts concluded by participants in international commercial transactions. In international arbitration practice, the recognition of the freedom of parties to choose the law applicable to their contract, including informal regulatory sources, is reflected in the regulations of leading international commercial arbitrations, as well as in the national legislation of various countries. At the same time, their application in practice now faces certain difficulties. Problems of application of international treaties in the resolution of foreign trade disputes are considered from the standpoint of determining in each specific case the scope of their action. As practice shows, this factor is not always taken into account when deciding whether to apply the UNIDROIT Convention on International Financial Leasing 1988 to the relationship of international financial leasing. It is not taken into account that, the scope of the Article 3 of the Convention is determined on the basis of construing “tripartite” relations by leasing participants, covering both the leasing agreement itself and the contract of sale relations associated with it. The author supports the position, according to which in cases where the sale contract of equipment to be leased is directly referred to the provisions of the United Nations Convention on Contracts for the International Sale of Goods 1980, based on the will of the parties. The article also raises the issue of the relation between the scope of the UNIDROIT Convention on International Financial Leasing 1988, the UNIDROIT Convention on International Interests in Mobile Equipment 2001 and the Convention of the CIS on Interstate Leasing 1998. According to the author, if the scope of international treaties coincide and they do not contain corresponding provisions on their delimitation, the special nature of the norms of the relevant convention should be taken into account. In particular, if the 1988 UNIDROIT Convention and the 1998 Convention on Interstate Leasing coincide, priority should be given to the latter, taking into account the participation in the Convention of the CIS countries and its focus on cooperation in the framework of the regional association.
international commercial arbitration, Principles of International Commercial Contracts (UNIDROIT Principles), UNIDROIT Convention on International Financial Leasing, non-state sources of regulation, cross-border contracts, international sale and purchase, international financial leasing.
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