Large industrial works represents an interesting subject of foreign trade in which countries may have competitive advantage. These industrial works also forms a large part of the state economy. Contracts that covers such transactions are very difficult, whether due to the volume and duration of supply, and because of possible problems with funding, with the political situation at the place of delivery, etc. Contracts covering such a transactions could be very tricky to draft because of either volume and duration of supply, funding issues or political instability in the region etc. The aim of this thesis is to introduce basic concept and principles that are linked to international trade with large industrial works. The thesis is mainly focused on contracting opportunities, ie the general approaches to contracting for the supply of capital equipment. The main theme is - within the specification, form of contract for the supply of capital equipment, as well as other resources that can be used during drafting the contract, such as commercial conventions and more. Thesis is logically divided into six chapters (including introduction and conclusion).The firts part of the thesis familiarize the reader with basic concepts - those are the "large industrial works " and "international business transactions."...

Globalization is the promise of the future, and it presents, quite literally, a world of opportunities not available in the past. International collaborations in science, research, and business now enjoy increased probabilities of success, in part, because of the advance in technology and the possibility of instantaneous communications. The convenience, simplicity and affordability of technology are helping to make the world accessible to almost everyone. With new availability of international concerns and the growth of global partnerships in all areas of interest, an increased need arises for agreements that memorialize collaborators' commitments, responsibilities and obligations. There is a corresponding concern that the agreements be enforceable across national and international lines should anything go wrong. There is no collaboration, partnership or venture that will not be touched in some way by the law. Whose law governs and how rules and regulations of different nations will be applied are of escalating concern. Empirically examining the state of international contract law is the overarching focus of my research. Adopting a research methodology involving both quantitative and qualitative techniques, I am investigating whether any consistency exists between attorneys of different practice sectors (academic, government, corporate and private) considering choice of law, enforcement of contract provisions, and the inclusion of preventative measures of international contracts. My results contribute to the future success of international collaborations of all concerns by empirically identifying the need for increased education on various dispute resolution options, as well as the effect cultural awareness has on the drafting of international contracts.

"Mémoire présenté à la Faculté des études supérieures En vue de l'obtention du grade de maîtrise en droit" / Un auteur a dit: «L'association d'idée avec la girafe se présente immédiatement à l'esprit, en donner une définition est difficile, mais chacun reconnaît l'animal». Tel est le cas pour la notion de contrat international qui apparaît souvent comme évidente, mais lorsqu'il est question de donner une définition précise la tâche s'avére complexe. L'internationalité du contrat a fait l'objet de plusieurs études et recherches dans le but de délimiter cette notion. La doctrine et la jurisprudence ont élaboré deux méthodes de qualification: économique et juridique; sans pour autant définir le contrat international de façon nette, claire et précise. Le but visé par cette étude est d'essayer d'établir le lien entre la possibilité de fraude à la loi et la problématique de la définition du contrat international; par le biais d'une étude comparative entre le droit civil (français, québécois, tunisien), la common law (Royaume-Uni, Canada, États-Unis), le droit dans les pays à commerce d'État et le droit conventionel. / One author said : «L'association d'idée avec la girafe se présente immédiatement l'esprit, en donner une définition est difficile mais chacun reconnaît l'animal». This is the case for the notion of international contract, whose definition is often presumed to be self-evident, but in reality constructing a precise definition is a very complicated task. The international nature of a contract has been the subject of many studies and much research has been dedicated to this topic, aIl with the goal of formulating a clear definition. Legal doctrine and jurisprudence have succeeded in qualifying international contract as legal or economic without actually defining it in any constant, clear or precise manner. The aim of this study is to make an attempt at establishing a link between possible evasion of the law and the problem of defining international contract; this will b e a chieved v ia a comparative s tudy of c ivill aw (France, Quebec, Tunisia), common law (United Kingdom, Canada, United States) law in countries where the economy is state-run and international treaty law.

Un auteur a dit: «L'association d'idée avec la girafe se présente immédiatement à l'esprit, en donner une définition est difficile, mais chacun reconnaît l'animal». Tel est le cas pour la notion de contrat international qui apparaît souvent comme évidente, mais lorsqu'il est question de donner une définition précise la tâche s'avére complexe. L'internationalité du contrat a fait l'objet de plusieurs études et recherches dans le but de délimiter cette notion. La doctrine et la jurisprudence ont élaboré deux méthodes de qualification: économique et juridique; sans pour autant définir le contrat international de façon nette, claire et précise. Le but visé par cette étude est d'essayer d'établir le lien entre la possibilité de fraude à la loi et la problématique de la définition du contrat international; par le biais d'une étude comparative entre le droit civil (français, québécois, tunisien), la common law (Royaume-Uni, Canada, États-Unis), le droit dans les pays à commerce d'État et le droit conventionel. / One author said : «L'association d'idée avec la girafe se présente immédiatement l'esprit, en donner une définition est difficile mais chacun reconnaît l'animal». This is the case for the notion of international contract, whose definition is often presumed to be self-evident, but in reality constructing a precise definition is a very complicated task. The international nature of a contract has been the subject of many studies and much research has been dedicated to this topic, aIl with the goal of formulating a clear definition. Legal doctrine and jurisprudence have succeeded in qualifying international contract as legal or economic without actually defining it in any constant, clear or precise manner. The aim of this study is to make an attempt at establishing a link between possible evasion of the law and the problem of defining international contract; this will b e a chieved v ia a comparative s tudy of c ivill aw (France, Quebec, Tunisia), common law (United Kingdom, Canada, United States) law in countries where the economy is state-run and international treaty law. / "Mémoire présenté à la Faculté des études supérieures En vue de l'obtention du grade de maîtrise en droit"

La protection du consommateur en droit international privé européen passe par les règles protectrices de conflit de lois et de conflit de juridictions spécialement conçues pour les contrats transfrontières de consommation. Ces règles contribuent au rééquilibrage du rapport contractuel de consommation transfrontière et font peser sur le professionnel la charge des coûts de l’internationalisation du contrat de consommation. Sous réserve de certaines améliorations qui pourraient être apportées, la méthode choisie par le droit international privé européen est globalement satisfaisante. En revanche, son champ d’application est trop restrictif. Avec le critère d’ « activité dirigée », le modèle européen est actuellement fondé sur la distinction entre les consommateurs passifs et actifs. Le bénéfice des règles protectrices est réservé aux premiers. Cette distinction ne doit pas conduire à l’absence de protection pour les seconds. Dans cette thèse, il est proposé d’introduire des règles protectrices au bénéfice des consommateurs actuellement exclus du régime protecteur. Cette protection ne doit pas passer par l’extension du champ d’application des règles protectrices existantes aux consommateurs actifs mais par l’établissement d’un second régime protecteur parallèle pour ces consommateurs, inspiré par l’idée de mieux encadrer l’autonomie de la volonté et d’atteindre un bon compromis entre la protection du consommateur et le respect des intérêts du professionnel. / Consumer protection in European private international law is carried out through protective choice-of-law and jurisdiction rules which are specially designed for cross-border consumer contracts. These rules help balancing the bargaining power and make the professional bear the internationalization cost of consumer contract. With some improvements which should be brought to the existing rules, the method used in European private international law in matters relating to consumer contracts is generally satisfactory. On the other hand, its scope is too narrow. With the criterion of "directed activity", the European model is based on the distinction between passive and active consumers. Only passive consumers are covered by the protective rules. This distinction must not lead to the lack of protection for active consumers. In this thesis, it suggests that European private international law provide protective rules for consumers currently not covered. However, the protection must not be carried out by extending the scope of existing protective rules to active consumers but by establishing a second set of protective rules inspired by a better regulation of freedom of contract and a good compromise between professional’s interests and consumer protection.

Esta tese versa sobre uma das formas mais engenhosas de comércio internacional, embora seja egressa de antigas práticas do comércio em todo o mundo. Trata-se do intercâmbio compensado, um sistema muito utilizado, no século passado, nos países Cortina de Ferro, e que mais recentemente renasce nos países do Terceiro Mundo, onde socorrem países com escassez de divisas, substituindo moedas por countertrade. O objetivo principal desse trabalho é o de verificar as possibilidades da aplicação desse sistema de trocas compensadas no mercado da América Latina, como ênfase no mercado brasileiro e equatoriano. O levantamento bibliográfico apontou a existência de formas mais recentes de utilização de operações desse tipo no sofisticado mundo do comércio exterior atual. Os conceitos e as formas do intercâmbio compensado evoluíram fortemente nesses últimos anos e requereu o estudo de operações cometidas em várias partes do mundo, envolvendo desde empresas estatais a empresas de variados portes, inclusive de grandes multinacionais com operação ao redor de todo o mundo. Parece não haver impedimentos de qualquer natureza para países ou empresas privadas e públicas. Esse levantamento motivou o autor a desenvolver pesquisa qualitativa em amostra intencional, para conhecer o uso real e concreto dessas operações no Brasil e no Equador, com o objetivo de identificar barreiras e outras dificuldades à adoção dessas operações. O Brasil foi escolhido por apresentar uma economia multisetorial capaz de produzir uma oferta diversificada para os países Latino-Americanos e, de outro, o Equador país que necessita de altos volumes de importações, nos próximos anos, para conseguir imputar maior dinamismo a sua vida econômica. Foram realizadas 55 entrevistas com empresários brasileiros, localizados no Estado de São Paulo e o Brasil e 155 com empresários equatorianos, todos envolvidos com comércio internacional, sejam eles, industriais ou comerciantes. A análise dos resultados apontou para um desconhecimento quase completo desse sistema de trocas nos dois países, evidenciando ser esse o maior problema para a adoção das trocas compensadas. Por outro lado, as informações apresentadas sobre esse tema evidenciaram um entusiasmo inicial pelas perspectivas que oferecem para novos negócios com países da região, e revelam um interesse forte dos empresários em conhecer os procedimentos para realização dessas operações. Parece muito pertinente, portanto, que os dois governos locais precisem levar ao empresariado informações e disponibilizassem alguma forma de apoio a esse sistema de comércio que dispensa o uso de divisas, sejam elas quais forem. / This doctoral thesis deals is about one the most recent forms of international trade, although it comes from the oldest commercial philosophy. It is the compensated exchange, a system well-known in the Iron Curtain countries, but lately in the countries of the Third World where they are replacing the money by the countertrade. Its main objective was to verify if it is possible to be applied it in the Brazilian market, in the Ecuadorian market and in general in the Latin American market. As a first step, a bibliographical survey was made looking to understand, from its origin, the concepts of the new forms of exchange offset to its application from the experiences of multinational companies and countries that have used this new form of foreign trade. What was sought was to prove its effectiveness, the next step was to develop a quantitative research that takes us to the real, practical and concrete thinking about the use of the countertrade. Based on a questionnaire designed for this purpose, a pilot was carried out together with a population of 150 foreign trade entrepreneurs, traders and industrial entrepreneurs from Ecuador. As well as qualitative research with a population of 50 foreign trade entrepreneurs, traders and industrial entrepreneurs from Brazil, mostly from the State of São Paulo. After analyzing the results, we have been able to understand two important things. The first: that most entrepreneurs do not know the countertrade, therefore, it is important to start both in Brazil and Ecuador begin to disseminate this new form of international trade. And the second: surprisingly, the entrepreneurs who knew how the countretrade operates were very open to this new form of commerce

During the later half of the 20th century standard form contracts began to be used more frequently in contract situations. This trend has been consistent and in today’s world numerous commercial parties employ such contracts in their business transactions. The reasons for the extended use of standard form contracts are the benefits that can be obtained for the parties such as time efficiency, effectiveness and price advantages. Standardised contracts often regulate certain issues of the contract for example the way of delivery, remedies and complaints. The definition of such contracts is corresponding in Sweden and England as contracts containing in advance standardised terms with an aim to be used similarly in contract situations with most clients or customers. As the usage of standard form contracts increased, the number of unfair contract terms also enhanced. Therefore, the legislative powers in Sweden and England realised that the rules concerning the freedom of contract had to be restricted and governed. As a result, the legislative powers introduced an open control device through statutory control. This was done in Sweden in 1976 with the enforcement of Section 36 of the Contracts Act, and in England the year after when UCTA came into force. The statutory control in both Sweden and England makes it possible to appraise the fairness of exemption clauses. The statutory control is not identical in the two states. UCTA only concerns exclusion clauses and limitation clauses regarding contract terms and non-contractual notices. In Sweden, on the other hand, there is a general doctrine of unfairness and Section 36 of the Contracts Act can set aside all kinds of agreements. The statutory control is complemented by indirect means of controlling the content of a contract through non statutory methods. The non statutory methods are concerned with the incorporation, interpretation and construction of clauses in a contract. To be valid and for a party to be able to rely on a term it must have been incorporated into the contract. The rules concerning the interpretation of standard form contracts and exclusion clauses are also of great importance. In both states the approach held is that the statutory control should be used preferably over the indirect control means, though the indirect means still has a prominent role in England through common law. Both England and Sweden agree on that the weaker party in a contract situation is in a greater need of protection by the rules of law in unfair contract situations. However unfairness can only arise if the superior party has wrongfully used the exclusion clause. Our study shows the differences between Swedish and English contract law that can result in difficulties in the harmonisation process. These differences concern the test of reasonableness of exemption clauses, the doctrine of good faith, the legal effects and to what extent the indirect means of control should be applied. The Swedish test of reasonableness may include all relevant circumstances irrespective of the time of their occurrence, before or after the entry of the contract. The courts in England are limited to circumstances that have occurred before the closure of the contract. Section 36 of the Swedish Contracts Act includes a general rule of unfairness applicable to all kinds of contract terms. The rule of unfairness in the UCTA on the other hand, is only applicable to exemption clauses and indemnity clauses and there is no general rule of unfairness in English contract law. Instead the courts rely on indirect means of control, which therefore is of greater importance in English contract law. Finally, adjustments of unfair exemption clauses has a significant role in Swedish contract law, in contrast to English contract law where any adjustment is regarded as an intrusion of the freedom of contract. To endorse one of the most important aims of the EU; a well working inner market, discussions commenced in 2001. The discussions concerned the harmonisation of the contract law within the union. The questions that arose were whether or not it was possible at all to form a European common contract law and if so, what the effects would be. An action plan was developed by the Commission and today both the EU Parliament and the Council are positive in regard to the continuing work with a reference frame. The Commission aims to pass the reference frame in 2009. Since the EU member states are diverse and have different legal systems a harmonisation of the contract law could cause difficulties. There are differences concerning legal traditions and legal values, hence the legal expertise in Europe is divided in the harmonisation question. The following study aims to analyse the existing rules of law in Sweden and England representing two diverse legal systems existing in Europe; civil law and common law. The focus of this study regards the control of exclusion clauses in standard form contracts in both legal systems. The comparison will then be used to analyse the fundamental question if the harmonisation of contract law in the EU is feasible. Specific areas within the contract law have already been harmonised, which shows a possibility to coordinate common law and civil law. Directive 93/13/EEC on Unfair Terms in Consumer Contracts is one example of harmonised contract law in the EU and the principles in PECL is another example which shows that it is possible to coordinate common law and civil law. A harmonisation of the contract law will probably promote the commerce within the union and be the next step towards one of the most prominent goals of the EU, namely a well functioning common market. However, our study shows that the differences between national legislation and the differences between the legal traditions within the EU are not insignificant and a harmonisation will probably not be enforced without difficulties.

<p>During the later half of the 20th century standard form contracts began to be used more frequently in contract situations. This trend has been consistent and in today’s world numerous commercial parties employ such contracts in their business transactions. The reasons for the extended use of standard form contracts are the benefits that can be obtained for the parties such as time efficiency, effectiveness and price advantages. Standardised contracts often regulate certain issues of the contract for example the way of delivery, remedies and complaints. The definition of such contracts is corresponding in Sweden and England as contracts containing in advance standardised terms with an aim to be used similarly in contract situations with most clients or customers.</p><p>As the usage of standard form contracts increased, the number of unfair contract terms also enhanced. Therefore, the legislative powers in Sweden and England realised that the rules concerning the freedom of contract had to be restricted and governed. As a result, the legislative powers introduced an open control device through statutory control. This was done in Sweden in 1976 with the enforcement of Section 36 of the Contracts Act, and in England the year after when UCTA came into force. The statutory control in both Sweden and England makes it possible to appraise the fairness of exemption clauses. The statutory control is not identical in the two states. UCTA only concerns exclusion clauses and limitation clauses regarding contract terms and non-contractual notices. In Sweden, on the other hand, there is a general doctrine of unfairness and Section 36 of the Contracts Act can set aside all kinds of agreements.</p><p>The statutory control is complemented by indirect means of controlling the content of a contract through non statutory methods. The non statutory methods are concerned with the incorporation, interpretation and construction of clauses in a contract. To be valid and for a party to be able to rely on a term it must have been incorporated into the contract. The rules concerning the interpretation of standard form contracts and exclusion clauses are also of great importance. In both states the approach held is that the statutory control should be used preferably over the indirect control means, though the indirect means still has a prominent role in England through common law. Both England and Sweden agree on that the weaker party in a contract situation is in a greater need of protection by the rules of law in unfair contract situations. However unfairness can only arise if the superior party has wrongfully used the exclusion clause.</p><p>Our study shows the differences between Swedish and English contract law that can result in difficulties in the harmonisation process. These differences concern the test of reasonableness of exemption clauses, the doctrine of good faith, the legal effects and to what extent the indirect means of control should be applied. The Swedish test of reasonableness may include all relevant circumstances irrespective of the time of their occurrence, before or after the entry of the contract. The courts in England are limited to circumstances that have occurred before the closure of the contract. Section 36 of the Swedish Contracts Act includes a general rule of unfairness applicable to all kinds of contract terms. The rule of unfairness in the UCTA on the other hand, is only applicable to exemption clauses and indemnity clauses and there is no general rule of unfairness in English contract law. Instead the courts rely on indirect means of control, which therefore is of greater importance in English contract law. Finally, adjustments of unfair exemption clauses has a significant role in Swedish contract law, in contrast to English contract law where any adjustment is regarded as an intrusion of the freedom of contract.</p><p>To endorse one of the most important aims of the EU; a well working inner market, discussions commenced in 2001. The discussions concerned the harmonisation of the contract law within the union. The questions that arose were whether or not it was possible at all to form a European common contract law and if so, what the effects would be. An action plan was developed by the Commission and today both the EU Parliament and the Council are positive in regard to the continuing work with a reference frame. The Commission aims to pass the reference frame in 2009. Since the EU member states are diverse and have different legal systems a harmonisation of the contract law could cause difficulties. There are differences concerning legal traditions and legal values, hence the legal expertise in Europe is divided in the harmonisation question.</p><p>The following study aims to analyse the existing rules of law in Sweden and England representing two diverse legal systems existing in Europe; civil law and common law. The focus of this study regards the control of exclusion clauses in standard form contracts in both legal systems. The comparison will then be used to analyse the fundamental question if the harmonisation of contract law in the EU is feasible. Specific areas within the contract law have already been harmonised, which shows a possibility to coordinate common law and civil law. Directive 93/13/EEC on Unfair Terms in Consumer Contracts is one example of harmonised contract law in the EU and the principles in PECL is another example which shows that it is possible to coordinate common law and civil law. A harmonisation of the contract law will probably promote the commerce within the union and be the next step towards one of the most prominent goals of the EU, namely a well functioning common market. However, our study shows that the differences between national legislation and the differences between the legal traditions within the EU are not insignificant and a harmonisation will probably not be enforced without difficulties.</p>

The development of the United Nation’s Convention on Contracts for the International Sale of Goods (CISG) started at the beginning of the 20th century in order to provide a uniform legal regime for international sales contracts. The development started because of a belief that a uniform international sales convention would contribute certainty in commercial trade and decrease transaction costs for the contracting parties. The Convention was signed in Vienna 1980 and came into force in 1988 after securing the necessary number of ratifications. The CISG is automatically applied to international sale contracts in certain given situations but the contracting parties are free to exclude the Convention as applicable law in favour of another regulation. As of today, more than 25 years after the CISG came into force, the Convention is commonly being excluded as the governing law of international sales contracts. By studying surveys and academic writings, certain factors can be derived as reasons prior to an exclusion of the CISG. The factors can be referred to as unfamiliarity, time and costs, negotiation strength and standard form contracts or standard terms. Regarding unfamiliarity, the importance given to the Convention in law faculties within the signatory states, together with time and costs attributed to a familiarization process, seems to play an important role. Moreover, the Convention is associated with problems regarding a non-uniform interpretation of the Convention’s provisions within the national courts and arbitral tribunals, as well as regarding its incompleteness, meaning that there are gaps that need to be filled by national law. These problems affect the Convention’s ability to provide potential users with legal certainty and predictability, which in turn may affect the familiarity with the Convention and hence have an impact on an exclusion of the CISG.

Esta tese versa sobre uma das formas mais engenhosas de comércio internacional, embora seja egressa de antigas práticas do comércio em todo o mundo. Trata-se do intercâmbio compensado, um sistema muito utilizado, no século passado, nos países Cortina de Ferro, e que mais recentemente renasce nos países do Terceiro Mundo, onde socorrem países com escassez de divisas, substituindo moedas por countertrade. O objetivo principal desse trabalho é o de verificar as possibilidades da aplicação desse sistema de trocas compensadas no mercado da América Latina, como ênfase no mercado brasileiro e equatoriano. O levantamento bibliográfico apontou a existência de formas mais recentes de utilização de operações desse tipo no sofisticado mundo do comércio exterior atual. Os conceitos e as formas do intercâmbio compensado evoluíram fortemente nesses últimos anos e requereu o estudo de operações cometidas em várias partes do mundo, envolvendo desde empresas estatais a empresas de variados portes, inclusive de grandes multinacionais com operação ao redor de todo o mundo. Parece não haver impedimentos de qualquer natureza para países ou empresas privadas e públicas. Esse levantamento motivou o autor a desenvolver pesquisa qualitativa em amostra intencional, para conhecer o uso real e concreto dessas operações no Brasil e no Equador, com o objetivo de identificar barreiras e outras dificuldades à adoção dessas operações. O Brasil foi escolhido por apresentar uma economia multisetorial capaz de produzir uma oferta diversificada para os países Latino-Americanos e, de outro, o Equador país que necessita de altos volumes de importações, nos próximos anos, para conseguir imputar maior dinamismo a sua vida econômica. Foram realizadas 55 entrevistas com empresários brasileiros, localizados no Estado de São Paulo e o Brasil e 155 com empresários equatorianos, todos envolvidos com comércio internacional, sejam eles, industriais ou comerciantes. A análise dos resultados apontou para um desconhecimento quase completo desse sistema de trocas nos dois países, evidenciando ser esse o maior problema para a adoção das trocas compensadas. Por outro lado, as informações apresentadas sobre esse tema evidenciaram um entusiasmo inicial pelas perspectivas que oferecem para novos negócios com países da região, e revelam um interesse forte dos empresários em conhecer os procedimentos para realização dessas operações. Parece muito pertinente, portanto, que os dois governos locais precisem levar ao empresariado informações e disponibilizassem alguma forma de apoio a esse sistema de comércio que dispensa o uso de divisas, sejam elas quais forem. / This doctoral thesis deals is about one the most recent forms of international trade, although it comes from the oldest commercial philosophy. It is the compensated exchange, a system well-known in the Iron Curtain countries, but lately in the countries of the Third World where they are replacing the money by the countertrade. Its main objective was to verify if it is possible to be applied it in the Brazilian market, in the Ecuadorian market and in general in the Latin American market. As a first step, a bibliographical survey was made looking to understand, from its origin, the concepts of the new forms of exchange offset to its application from the experiences of multinational companies and countries that have used this new form of foreign trade. What was sought was to prove its effectiveness, the next step was to develop a quantitative research that takes us to the real, practical and concrete thinking about the use of the countertrade. Based on a questionnaire designed for this purpose, a pilot was carried out together with a population of 150 foreign trade entrepreneurs, traders and industrial entrepreneurs from Ecuador. As well as qualitative research with a population of 50 foreign trade entrepreneurs, traders and industrial entrepreneurs from Brazil, mostly from the State of São Paulo. After analyzing the results, we have been able to understand two important things. The first: that most entrepreneurs do not know the countertrade, therefore, it is important to start both in Brazil and Ecuador begin to disseminate this new form of international trade. And the second: surprisingly, the entrepreneurs who knew how the countretrade operates were very open to this new form of commerce