There are various discussions in the doctrine about the scope of international commercial law. However, if we need to make a general definition, we can define international commercial law as a set of norms to be applied to a trade relationship that includes elements from more than one country.
When the large number of countries in the world and the historical development of trade are evaluated together, it is easily understood that the increasing volume of international trade is not surprising. This situation provides the emergence of new trade systems day by day and increases the need for new systems and norms to be applied in the resolution of disputes.
Under certain conditions, international trade increases the welfare of countries and is among the essential building blocks of countries' economies.The transformation of limited resources into unlimited products has gained speed with the development of trade between countries.
In general, countries have been trying to uniformize legal norms to be applied in international trade for a long time. It is seen that the countries have established commissions, boards and even institutions in order to prevent the differences in local legislation from being an obstacle to the development of international trade.
All of the rules used in international commercial law are aimed at ensuring that the system works effectively, quickly and fairly.
In order to determine whether the commercial law relationship between the parties is international, it is checked whether it includes elements belonging to more than one country.For example, if there is no international element in a contract, and if it is related to only one country, it cannot be mentioned that this convention is an international contract.
On the other hand, the necessity of applying uniform legal rules of international instead of national laws in international trade has forced states to come together and bring the rules that are applied together. It enabled them to establish organizations with the aim of ensuring that national laws are comply with these rules.
We are the party as the Republic of Turkey to "united nations convention on contracts for the international sale of goods(CISG)" prepared by the United Nations International Trade Commission (UNCITRAL) prepared and agreement accepted on 11 April 1980.
CISG is an important legal arrangement regarding the law of sale in international trade and 89 countries in different geographies are parties of it.In doctrine, CISG is called the language of trade. Both European Law and Anglo Saxon Law have been sources of CISG as far as possible.Comparative law methods were used in its preparation.
The rules on sales law are generally similar, although they are not exactly the same in each country's local legislation.
The main purpose of CISG is to provide the parties with maximum benefit from international trade and to protect the continuity of trade.Minimizing transaction costs will contribute to the development of commercial relations and ultimately friendship between countries.CISG supports the principle of freedom of contract. In the regulations made in some local laws are inspired by CISG. Germany, People's Republic of China can be given as an example.
CISG, is approved and entered into force on 1 August 2011 in the Republic of Turkey and it is part of our domestic law.
INCOTERMS was first published by the International Chamber of Commerce in 1936.It has been revised with many changes in the process.These generally include regulations that regulate the parties' obligations for incurring transportation costs and insurance costs, who will bear the damage, the recovery of the damage, and which party will pay the customs duties and fees.
ICC MODEL CONTRACT COMMERCIAL AGENCY has been prepared with regard to the fees and other benefits that the agents who do business on behalf of someone else will deserve due to their intermediary activity in international trade.
The agency essentially represents the commercial enterprise as a proxy and on behalf of the company, it continuously mediates contracts concerning the commercial enterprise in a specific region or a certain customer group.
The agency is not obliged to represent only one commercial enterprise.It can enter into business relationships with different clients regardless of the business it represents.
Agencies have great importance in international trade.
In cases where the exporter has not own employee, he/she can establish direct contact with foreign customers through contracts mediated or concluded by a representative residing abroad.
The agency creates a client environment for its client.Broker and agency are also different from each other in this aspect.A temporary relationship is established between the broker and the enterprise owner client, and a permanent relationship is established between the agent and the client.In addition, the broker has no representation function.All it will do is bring the parties together to conclude a contract.
There is also a difference between an exclusive distributor and an agency.While the an exclusive distributor sells the goods of the commercial enterprise on its behalf and account, the agency acts as an intermediary for the sale or concludes a contract on behalf of the commercial enterprise.
The agency is also different from the marketer.Because while the agency acts independently, the marketer is dependent on the enterprise.
When we look at the history of the agency agreement, we see that it was first addressed in the German Commercial Code in 1897.It was regulated in the Swiss Commercial Code in 1949.The agency regulated under the Law of Obligations in Swiss law and the Civil Code in Italian law is included in the Commercial Code in Turkish law.
Agency agreements also vary.It is called middleman, delcredere, sub-agency and confirming house.
Especially confirming house is an important guarantee for the exporter who receives orders from customers abroad in international trade.Confirming house confirms to the exporter the accuracy of the order from abroad.It guarantees the duly execution and performance of the contract and the payment power of the buyer.The Treaty on Agencies in the International Sale of Goods was also developed by UNIDROIT.However, it was not put into effect even by the 9 states that signed it.
It is useful to state that the law of the country of the an exclusive distributor will be applied as a rule in international exclusivity agreements.Therefore, although the principle of freedom of contract is present in the exclusive contracts with a foreign element, it is important to determine the public order and directly applied rules of the country law to whichan exclusive distributor is subject.
The most important factor that makes marketing through a distibutor attractive to exporters is that the exporter takes less risk in return for a certain sale guarantee in a market that is not well known.The amount of goods that an exclusive distributor is obliged to buy is clearly determined in the contract according to the periods.In case of disagreement between the parties in determining the amount of the goods, the judge will determine the amount in accordance with the rules of fairness and honesty.
The exclusive distributor also has the burden of increasing the sale of the product in the agreed region.Therefore, an exclusive distributor must have a sales location and a sufficient number of personnel to serve this purpose.
In addition, an exclusive distributor has an obligation to provide after-sales service to customers.This source of liability derives from the exclusivity agreement between the seller and an exclusive distributor.
Franchise agreements are also a form of contract we often encounter in international trade.
A franchise agreement is a contract that establishes a continuous debt relationship.The franchisor gives the franchisee the right to use the intellectual and industrial elements that make its own production, management and marketing system by granting a license.The franchisor has included the franchisee in its operating organization and is under a debt of continuous support.It is the type of contract in which the franchisee is obliged to make and support the goods and services included in the system of the franchisor and to pay a certain fee to the franchisor.
The franchisee uses many privileges such as brand, business name, know-how.
The emergence of the concept of franchising is at the end of the 19th century.The system that first developed in the automobile, oil and soft drinks sector in the USA, was similar to the exclusive distribution system when it first emerged.
Today, strong companies with the goal of growth in the international market and with advanced systems have the opportunity to enter the market with a competitive advantage by spending less time and money with the franchise system.
Franchise agreement differs from license agreement, the exclusive distribution agreement, agency agreement, and sales agreement.
The franchise agreement, which is a mixed agreement, is essentially a framework agreement.It contains elements related to different contracts within itself.The franchisor gives much more instructions to the franchisee than the agency agreement.However, the franchisee is still an independent trader working on its own behalf and account.
In Turkish Law, there is no obligation for franchise agreements to be made in writing.In French law, there is no requirement to be made in writting form but the franchisor is obliged to convey certain information to the franchisee at least twenty days before the signing of the contract.
In international trade franchise agreements, the parties can freely decide the law to be applied to the agreement.
If there is no written agreement between the parties and the applicable law is not determined, the legislation of the country where the characteristic act debtor franchisee is, will be applied to the contract.
The franchisor can work with more than one franchisee in the same country and determine the master franchise among them.The master franchise may be authorized to sign a franchise agreement in the country on behalf of the franchisor.
In practice, determining the master franchise provides many benefits to the franchisor, and it is usually written how the master franchise party will make an agreement with the sub-franchise parties and how the franchise costs will be shared.
The franchisee is obliged to pay the fee, increase the sale, use intellectual and industrial elements, obey the instructions, show loyalty and care, do not compete, keep confidential, inform and perform personally.
Another common type of contract is a license agreement.The general definition of the license agreement is the transfer of the use of all or a part of an intellectual or industrial right by the right owner to another person for a certain period of time.Intangible rights such as know-how, brand, patent, utility model, technical information may be subject to a contract.
It is accepted that license agreements are not automatically subject to form requirement in Swiss law.In Turkish law, legal transactions regarding the industrial property right are subject to written form.The form requirement is not regulated in German law, either.
License agreements used in international trade have element of foreignness.However, the parties are free to choose the law that will be applied to the contract.When the parties do not determine the law to be applied, as a rule, the act of the licensor determines the law to be applied.Also, for example, in patent contracts, the law under which the right is registered is accepted as the applicable law.
In accordance with Article 28/2 of MÖHUK, in case the parties have not made a choice of law, the workplace of the party transferring the intellectual property right or of use, during the establishment of the contract, if not, the habitual residence law is applied.However, if there is a law that is more closely related to the contract according to all the conditions of the situation, the contract becomes subject to this law.
Article 101 of the Treaty on the Functioning of the European Union states that the parties are obliged to comply with the EU competition legislation in terms of license agreements to be concluded in the countries included in the common market.If the contract made by the parties is against the EU competition legislation, it is automatically considered invalid
Another issue that should be known in international commercial law is the rules on payments.
As is known, payment types are letter of credit, payment against documents, cash against goods and cash payment.
The ICC has published the brochure UCP 600 on the form of payment by letter of credit.For electronic submission, an additional publication to UCP 600 has been published.
When the parties want the relationship between them to be based on UCP 600, they must definitely add it to the text of the letter of credit.Otherwise, the court will not seek it ex officio.
Dispute Resolution Expertise Rules Regarding DOCDEX and Certified Documents have been prepared by the ICC and published for the resolution of disputes.
Types of letters of credit are divided into types as revocable, irrevocable letter of credit, paid on sight, with policy, deferred payment, red registered, green registered, guarantee letter of credit, and mutual letter of credit.
The World Trade Organization is an international organization established to regulate the rules of international trade.
The World Trade Organization has many agreements on goods, intellectual property rights and services.It sets common procedures to resolve disputes.
GATS contains rules regarding international service trade.TRIPS, on the other hand, is prepared with regard to trade-related intellectual property rights.
Multilateral and bilateral agreements have great importance in international trade.Especially in foreign investments, disputes and contracts involving more than one legal order are encountered.