Legal issues related to practical international trade agreement
Problem in the contract negotiation phase









In the case of international trade agreements, but sometimes immediately consent is carried out contract for the application is satisfied,
Various negotiations between the parties is carried out per the contract, not a few can lead to the conclusion of the contract on it.
Therefore, it may cause a legal problem between the parties also in the negotiation stage.












































Preliminary agreement



Preliminary agreement on contract
Negotiations between the parties for the sake of the establishment of international trade agreement is repeated, in the course of solidified gradually contract,
Mutual agreement for each a certain step, to check and sometimes can not be agreement, it has been made that move on to the next step,
Therefore, the fact that sake to ensure and document the confirmation at each step is performed in practice.



Just before the document of the definitive agreement entered into among the confirmation document in these contract negotiations process, not only because of the confirmation,
Need to get cooperation in the practice of decision-making and contract in the internal organization of each of the parties (shareholders' meeting, the Board of Directors)
External agency not a few may be necessary for the prior consent of the attachment of the (financial institutions to finance the funds necessary for the implementation of the contract).



In this way, since the agreement that will be stacked in between the parties is merely intended to the establishment of the final agreement a prerequisite,
It referred to as the preliminary agreement.
Although the final agreement after the preliminary agreement is no problem about the preliminary agreement if satisfied, the contract just before the preliminary agreement
What was done, if the scheduled or expected circumstances and conditions not successfully practiced, the final contract can not be concluded,
There is that legal effect of the preliminary agreement is a problem in the final stage of such contract negotiations.



If the legal effect of the preliminary agreement has become a problem, determine the applicable law, which serves as a reference for its judgment,
It must determine its efficacy. (Excerpt from the international trading Buddhist theory)











Governing Law of the preliminary agreement
In determining the applicable law to determine the legal effect of the preliminary agreement, first, to confirm the legal nature of the preliminary agreement,
To confirm the choice of law regulations in should be applicable law to it, governing law of the preliminary agreement is determined by applying the law selection rules.

Negligence on the conclusion of the contract
Negligence on the agreement in the contract negotiation phase






Negligence on the agreement in the contract negotiation phase
A case where preliminary agreement has not been established as a contract, even when only a confirmation documents in the stage of contract negotiations,
When the preliminary agreement is a close relationship to some extent of the negotiations the parties, such as the establishment is coming is formed
from the mere contract negotiation stage It becomes what depressed one step, it is possible that it has reached agreement preparation phase.



After that led to the contract preparation stage, abort one is no reason y negotiations of the parties, it by trust in the other party of the contract formation
When the betrayed is, as is the negligence of the contract entered into the act, the other party, broke off the received damage negotiations to unilaterally

Whether it is possible to claim compensation for the party is about to become a problem.

In such a case also, the decision of whether or not the damages against it and the right or wrong of negligence on the contract for the international trade agreements,
So that the judge to determine the applicable law.



(1) Japan
Per this problem, doctrine, the 'negligence theory on the contract' that has been developed for the case of initial impossibility or invalidity of the contract
Has been expanded to when the contract negotiations did not lead to contract formation remain in the preparation stage.
On the other hand, conventional reluctant was the precedent per this problem, in recent years, there is a tendency to admit to the contract preparation stage.



(2) the laws of the State of New York



As is the case under the laws of the State of New York, there is a case in the United States Delaware court.



(3) London
As a case similar in the UK, Donein Productions Ltd. v.E.M.I. Films Ltd., The Times, there is a March 9,1984. (Excerpt from the international trading Buddhist theory)

























Issues related to the establishment of the contract
Intention display governing law of the (application / consent)












Issues related to the application or consent


(1) Japan
For intention, such as application and consent is an element of the law act of agreement, their establishment or efficacy,
It is where that becomes a problem in a specific case, such as the following.

For the application, whether or not the intention that there is the application, the applicant enters into force, either by the arrival or by the originating,
Or waiting for the other party of advised of, efficacy duration of the application, the applicant of the withdrawal or cancellation,
revocation cause of the application, making display lend a certain application of the efficacy of,
Or illegal to be determined are possible contents of the application, such as the application of the interpretation is a problem.



For consent, whether or not the intention that there is the consent, the consent enters into force is, whether such by the originating, whether such by reaching,
Or waiting for the other party of appreciation, intention display lend a certain potency of the consent of, such as the interpretation of compliance is a problem.



These issues related to the international trade agreement, because it contains a public relations elements,
first is the determination of the applicable law, which serves as a reference for the decision is required,
It is where the conflict of opinion, such as the following can be seen between the number theory and the leading theory.
(Excerpt from the international trading Buddhist theory)






By real governing law of the contract; number theory



(1) Japan
Application and acceptance in Japan is a declaration of intent to form the elements of the contract, because it is in the contract and the tight coupling relationship,
It is that there should be due to the governing law of the parenchyma (= establishment and efficacy of the contract) of the contract.

As a number theory to the other, about the issue of whether silence is consent, according to the number theory, as the governing law of the nature of the contract in application
Will be judged by the designated Japanese law, Japanese Commercial Code # 509 Article applied by applicant becomes to be deemed to have been accepted,
This criticism not appropriate in terms of benefit protection is a counterpart authorization transactions where is performed.
Against this criticism, as evidence law regulations from the point of view of private international law, it should be considered and shall not the contents of the applicable law.



Also the court, per decision of the governing law of the irrevocable letter of credit conditions change of the application, while to determine the applicable law by a number theory,
It has been with the applicable law with regard to the application of the Japanese Commercial Code Article # 509,
of the transaction which is in the basic business practices to the business of the approval is the offeree
It expressed the view that it should be limited to the application, which is critical to the outcome of the case, which was based on a large number theory.
(Excerpt from the international trading Buddhist theory)





By habitual residence land law of the person in a limited range or commercial site method: Yes dwelt
Is a leading theory to criticize the large number theory, the success or failure of the intention itself of Toka Toka consent application which form the elements of the contract issue,
Not not be judged by distinguished from the issue of the contract itself, and the real governing law of the contract should be due to a separate governing law.
Thus, to that it should due to the habitual residence land law or commercial site method of the person.

Therefore, even in the case from the standpoint of the leading theory, intention display success or failure with non-entry into force at the time of issue of intention epidermis of
Issues related to the intention will be solved by the real governing law of the same contract and the number theory. (Excerpt from the international trading Buddhist theory)



(2) New York
Federal and state private international law Nioiie, seen from the fact that not be handled separately from the contract offer and acceptance,




Application and acceptance of the problem, as well as the Japan of the large number theory, is seen to be due to real governing law of the contract.




(3) London
In the UK private international law, as seen from that you are not able to handle to separate the application and authorization from the contract,
Application and acceptance problems, as well as the Japan of the large number theory, is seen to be due to real governing law of the contract.
(Excerpt from the international trading Buddhist theory)










































































next
It will be described governing law of establishment of the contract.






























































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