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Custom & Law Merchant

Custom & Law Merchant. Plan . Introduction Custom Law merchant Why a law merchant? Conclusion. Custom . Definition : The custom is one the sources of law. It is not a written rule but its existence is due to the union of 2 elements: 1) The repetition of acts

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Custom & Law Merchant

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  1. Custom & Law Merchant

  2. Plan Introduction • Custom • Law merchant • Why a law merchant? Conclusion

  3. Custom • Definition :The custom is one the sources of law. It is not a written rule but its existence is due to the union of 2 elements: 1) The repetition of acts 2) The legal or psychological element which is composed by 3 aspects: - The « opinion juris » - The « opinion necesitatis » - The «  estimacio communis » This defintion is valid as well in french law as in internationa law • The custom in international law - Custom is a fondamental source of international law. - According to the article 38 of the charter of the United Nations: in case of dispute, the court can apply «  the international customs as proof of a general practice which is accepted as being law »

  4. Custom • The custom cerficate: The « custom certificate » is an attestation of a foreign lawyer concerning the existence, the contents and the interpretation of a foreign law. Why a « custom certificate »? • In case of dispute between foreign persons who are oversea Who deliver this « custom certificate »? • The consulate of the country of origin Exemple with two japaneses traders

  5. Law merchant • Definition: The Law Merchant was originally a body of rules and principles laid down by merchants themselves to regulate their dealings. It consisted of usages and customs common to merchants and traders. • Origins of Law merchant • International Chamber of Commerce • International arbitrators

  6. Law merchant • Content of Law merchant Characteristics of rules: It is not really rule of law • Content could : modified and adapted by the parts under the terms of their contractual will. • The commercial activity released, among the rules of Law merchant, three grounds privileged: • Incoterms • Credit on security • Institutions and rules of arbitrations

  7. Why a law merchant? • When apply the law merchant? • When traders have mentioned the will to apply it on the contract • When the the law previous in the contract is not enough adapted • Why apply the law merchant? • The Law merchant is more adapted to international trade • The need for quick and effective justice • The Law merchant is more pragmatic and less doctrinal • Some objections to law merchant • Law merchant it is not enough precise to be considered as a real law. • The law merchant do not from of a State but from customs

  8. Conclusion • To sum up: - Custom and Law merchant are linked. - Law merchant includes all international merchant customs BUT customs are valid in french and international law WHEREAS law merchant is practised only in international trades - The main fonction is to be a system of law which is added to law of states and the international law, we can say that is a “third law” according to M. VIRALLY.

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