The main purpose of the research is to investigate and analyze the concept of fundamental breach of contract in international commercial contracts, and how its inclusion in Iraqi civil law can promote a more effective approach to contractual disputes between Iraqi companies and international partners. Additionally, it aims to raise awareness of the practical value of the application of the concept of fundamental breach in managing contractual disputes involving common and civil law, and ultimately provide a valid contribution to academic knowledge that promotes enhanced understanding of this concept within the different legal systems at a global level. The research method adopted is theoretically comparative in nature and compares the concept of fundamental breach of contract from the perspectives of the United Nations Convention's guidelines on Contracts for the International Sale of Goods 1980 (referred to hereafter as the CISG), English (Common) law and Egyptian (Civil) law. The study is based on the following research questions: i) reasons for the numerous cases of avoidance of international commercial contracts in Iraq due to a fundamental breach of terms; ii) The elements that constitute a 'fundamental breach' of contract; iii) Which legal systems could provide a comprehensive framework of reference to compare the different processes applied in breach of contract in selected case studies, to determine which, if any, is more effective in keeping contracts 'active'. iv) If the outcome of the comparisons could be applied more universally, in cases of arbitration in international commercial contracts, to bridge the differences in individual laws of the countries involved. The concept of fundamental breach is examined in-depth, including its origins, development, application and effectiveness in maintaining the active life of international commercial contracts. A comparison of its application is made within three different legal systems and the study concludes with a commentary on the outcomes of the comparative research, including any limitations and implications for international sales contracts involving different legal systems. Finally, recommendations are made, both for the Iraqi legislature and for future research. The key outcomes are that the CISG rules regarding fundamental breach appear to be more successful in upholding the validity of international commercial contracts than Common or Civil law. This can be attributed to the way in which the CISG tailored the concept of fundamental breach. To date, it has been ratified by 83 countries. Not only are its principles rooted in the two primary law systems (Common and Civil), but they are also significantly influenced by the doctrinal concepts that vary considerably across different national law systems. This suggests the CISG offers a greater degree of flexibility and harmony across the legal systems, and does not require any court order or ruling in instances of contract avoidance. Indeed, its greatest success lies in the flexibility of its principles due to the additional terms it provides in promoting the life of the contract; namely: additional period of time, partial avoidance, anticipatory breach and instalments contracts. There are limitations, however, despite the CISG rules providing a degree of flexibility. The definition of fundamental breach given in Art.25 is vague due to the generality of the terminology used by the CISG drafters. Unlike the trend of the 1998 Principles of European Contract Law and the 1994 UNIDROlT Principles of International Commercial Contracts, no examples are given to provide guidance on the exact meaning of the term. It is also noticeable that the CISG's notion of fundamental breach is more common law oriented. As a result, this may be a source of possible conflict in countries where civil law is adopted such as: Egypt, Iraq, Kuwait, Jordan, Libya, amongst others. The implications of adopting the CISG approach to determining fundamental breach in international commercial contracts are that contractual parties could incur delays and subsequent financial losses while disputes involving interpretation of its rules are resolved. Nevertheless, CISG principles governing fundamental breach are increasingly popular as the applicable law for international contracts, since they fulfill a primary goal of contract law to act in accordance with developmental requirements and changes. Contract law has to correspond to a growing economic need and be flexible in addressing emerging difficulties and shifting conditions. For this reason the CISG's principles are likely to continue to be adopted by contractual parties within the arena of International Trade. A necessary recommendation, however, concerns the terminology of the CISG rules on fundamental breach, which could benefit from being more specific in order to satisfy the demands of international commercial contracts that involve countries governed by common and civi11aw. In short, greater specificity is required in ascertaining the degree of seriousness, detriment, foreseeability and time of foreseeability in cases of contractual breach.Establishing an international body for resolving disputes stemming from the CISG is highly recommended. The given body could contribute greatly to reducing both the time and the cost resulting from such disputes. Reviewing the provisions of the CISG periodically is, therefore, highly advisable for making changes or establishing new rules applicable to the new developments in trade. The avoidance of contract in electronic trade contracts could represent an example where this would be necessary. However, more discussion is needed to elaborate on the development of the wording of the CISG principles in this respect. Finally, with regard to Iraq, its legislation would do well to make provision to include the concept of fundamental breach in accordance with the principles of the CISG. This reform is necessary since Iraq's existing law is no longer capable of properly addressing the special demands of international trade to ensure disputes are dealt with in a manner that is reliable, consistent, valid and fair to the contractual parties concerned.

Since the reform and opening up in mainland China from 1978, there is quite a dazzling performance in international trade, it has replaced Japan as the world's third largest trading nation in 2004. She has continued to maintain our largest export market and largest source of trade surplus position. Thus, there is a new term called¡yChiwan¡z, that is, China plus Taiwan ,which Will form a new emerging economies of Asia. Contracts of international sale of goods transaction as a starting point and core. People who contracting a contract with the contracting parties intend to make the realization of their own interests. Whereas a party breaches of contract may make the other party's interests had not been achieved . Compensation for breach of contract is the most common and important method of bearing civil liability now, while damages can be considered as the most important one among those forms of compensation. As a bridge between jurisprudence and practice of compensation for breach of contract, the scope of compensation could be regarded as the core of compensation for breach of contract to certain extent.

LL.M. (International Commercial Law) / The passing of risk in the United Nations Convention on Contracts for the International Sale of Goods (CISG) is being regulated by Chapter IV, Articles 66-70. These provisions will regulate the passing of risk between the contracting parties unless they have chosen to deviate from it by way of Article 6 of the CISG. Article 6 provides that: “The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.” The most important purpose of Articles 66-70 is to determine who will bear the risk when the goods are lost or damaged due to an accidental event. “Risk” is not specifically defined in the CISG. The accidental loss in this case means that neither the seller, nor the buyer can be held responsible for the loss that occurred. Accidental loss in this context may also include acts of third parties.

L’élaboration d’un droit international à vocation mondiale n’est pas une entreprise aisée. Après l’échec des Conventions de la Haye de 1964, la Convention de Vienne du 11avril 1980 applicable à la vente internationale de marchandises érige un droit uniforme de la vente applicable à l’échelle mondiale et adapté aux besoins du commerce international. Œuvre de compromis, cette Convention apporte des améliorations aux lacunes des Conventions de la Haye dont elle s’inspire. Elle met en place un droit international de la vente basé sur la recherche du compromis, de la souplesse, de la clarté et de la justice contractuelle. Néanmoins, en dépit de ses améliorations, elle reste elle-même une œuvre lacunaire dont le succès est cependant indéniable. L’étude des rapports qu’elle entretient avec la méthode conflictualiste permet de comprendre les raisons de ce succès. Comportant des normes tout aussi bien issues de la pratique que des différentes traditions juridiques et économiques, notre étude met en lumière l’incomplétude de la CVIM et sa dépendance vis-à vis des règles du droit international privé. Elle met en relief la place de la règle de conflit de lois dans le comblement des lacunes tant internes qu’externes de la CVIM et apporte la confirmation qu’aucun droit international ne peut être effectif sans le concours des règles du droit international privé. Règles qui, sous la pression de la mondialisation et de la puissance de plus en plus croissante des pouvoirs privés économiques sont amenées à évoluer pour mieux correspondre aux besoins du commerce international. Il apparaît dans cette perspective que, le succès de la CVIM, loin d’être uniquement attribué à l’unification des règles matérielles qu’elle opère, est le fruit des évolutions de la méthode conflictualiste. Celles-ci passent par l’affaiblissement de la règle de conflit de droit commun à travers sa subordination à la volonté des parties et aux usages du commerce international. A cela s’ajoute la multiplication des conventions d’unification des règles de conflit à caractère substantiel, la règlementation des conflits de procédures, l’assouplissement des conditions de circulation des jugements étrangers et le développement d’un droit international privé communautaire. / On a world basis, the elaboration of an international law is not an easy task. After the failure of the HAGUE’s conventions on 1964, the Vienna’s Conventions of april 11th, 1980 applicable for the international sales of goods establishes a uniform law suitable for international sales and adapted to the needs of international trade. Born out of a compromise, this Convention brings out improvements to the lacunas within the Hague’s Conventions. The Conventions puts into place an international law of sales based on az quest for compromises, flexibility, clarity and contractual justice. Nevertheless, in spite of its improvements, it remains a lacuna’s work whose success is still undeniable. The study of reports undertaken with the conflicting methods allows us to understand the reasons of its success. Adapting of norms issued from practice as well as from legal and economic traditions, our study brings into light the incompleteness of the CISG and its dependence in regard to the private international laws. It demonstrate the place of the conflict of law in filling up the CISG’s internal and external lacunas and confirms that, no international law can be effective without the assistance of the private laws. Rules, that under the pressure of globalization and the increasing powers of the parties of international trade are brought to evolve to correspond better to the needs of international trade. It so appear that, the success of the CISG, far from solely attributed to its unification of material rules is the result of the evolution of the conflict of law. It passes through the weakening of the common conflict rule through its subordination to the will of parties and the use of international trade. One can add the multiplication of substantial’s conflict law, the regulation of procedure’s conflict, the softening of the recognition conditions of foreign judgments, and the development of communal international private law.

Magister Philosophiae - MPhil / This study seeks to provide answers on whether South Africa should ratify the Convention on Contracts for the International Sale of Goods (CISG), in the light of promoting legal certainty and International trade. In order to address the main objective, the mini-thesis will seek to answer the following questions: 1. Evaluate the current functional Legal Framework for international sale of goods in South Africa. 2. Establish and evaluate the motivations for both accession and non-accession, including an examination of possible advantages and disadvantages arising from each. 3. Determine if the adoption of the CISG by South Africa will be a solution to the current problems and uncertainties that exist under South African Law with regards to the international sale of goods?

L.LD. (Private International Law) / The United Nations Convention on Contracts for the International Sale of Goods (the CISG or the Vienna Sales Convention) was adopted at a diplomatic conference of the United Nations held in Vienna during 1980. The Convention came into force on 1 January 1988. According to its preamble, the Convention is based on the premise that “the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade”. The CISG has proven to be successful in its endeavour and currently has 74 member states representative of all legal traditions. As an international convention, the CISG has been lauded for its “simplicity, practicality and clarity”. Schlechtriem observed that the CISG has now gained worldwide acceptance. It has even been stated that the CISG has established a “world law on international sales” and that it has influenced several domestic sales laws. It is submitted that the CISG constitutes an important component of modern international commercial law or of the modern lex mercatoria. Therefore, a study that aims to establish a better understanding of the scope and functioning of the CISG and its relationship with domestic law, is of special relevance for the international business and legal community. The two basic methods of the unification of law, ie the unification of substantive law and the unification of private international law, have both been utilised in the field of the international sale of goods. The CISG is the most notable example of first mentioned method of unification.

Liability of the seller for defects in international commercial transactions under the United Nations Convention on Contracts for the International Sale of Goods Abstract This thesis deals with the liability of the seller for defects in international commercial transactions, contained in the UN Convention on Contracts for International Sale of Goods. The document, which is binding for 89 states from different parts of the world, is the most important document in international trade law that contains unified regulation. The Convention determines substantive rules for contracts on international sale of goods defined as a contract on sale concluded between two parties, each of them having its place of business in a different state. If both of these states are parties to the Convention, it is directly applicable, i.e. it is used without reference of conflict of laws rules. Unification of regulation is important in the field of international trade, especially in the area of contracts on sale of goods, which is the most often used type of contract. The most problematic situation in business relationships is when a party fails to meet its contractual obligations. For that reason, in order to ensure the most favourable environment for international business and economic development, it is essential for traders to...

This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.

The 1980 United Nations Convention on the International Sale of Goods, concluded under the auspices of UNCITRAL, creates a comprehensive statutory legal framework for international sales. Through the express incorporation of the principle of freedom of contract, the convention contains rules which the parties may freely adapt to the particular circumstances of their transaction, by filling any gaps that may arise with trade usages and other practices. In addition, the convention recognises the binding force of international trade usages in certain circumstances, in that it binds parties to usages which are so widely known and have acquired such regularity of observance in international trade as to justify an expectation that they will be observed in the particular transaction. Such acknowledgment of the changing patterns and norms of behaviour which characterise international trade law allows the CISG to be categorised as a major component of the modern lex mercatoria. / Constitutional International & Indigenous Law / LL.M.

Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2017-03-22T12:50:34Z No. of bitstreams: 1 Fabio Alonso Vieira.pdf: 1196140 bytes, checksum: c8f63bea4ff6deaab2084f080d753443 (MD5) / Made available in DSpace on 2017-03-22T12:50:34Z (GMT). No. of bitstreams: 1 Fabio Alonso Vieira.pdf: 1196140 bytes, checksum: c8f63bea4ff6deaab2084f080d753443 (MD5) Previous issue date: 2017-03-07 / This paper aims to demonstrate why the uniform application principle provided in CISG is, at the same time, real, utopic and necessary. Since the invasion of Rome by the barbarians there has not been a universal or uniform law, such as jus gentium. Thenceforth, in a legal pluralism environment, the world has been through moments of seeking for nationalism or the uniformization of the law. With the emergence of lex mercatoria and, more recently, with the advent of globalization, the world has become extremely dynamic and without barriers between the States. In this context, various schools of thought have risen advocating for a “global uniform Law” and, afterwards, given its impossibility, a uniform law for specific matters of substantive law. Then, the most successful uniform law of all times: CISG was drafted. Intending to be a uniform legal diploma, it is necessary for its provisions to be understood in a uniform manner. As the provided in article 7 of CISG. However, the interpretation of the provisions of the convention drawn up in a vague concept and in several official languages, ratified by States in different social, economic, political and religious backgrounds is a utopia. Although, this utopia is necessary to maintain limits and borders when the application of the legal provisions by the CISG interpreters. Without the established frame work by the utopic uniform interpretation, CISG would never reach its objectives and, most likely, would be dead / O presente trabalho tem por objetivo demonstrar que o princípio da interpretação uniforme inserido na CISG é, ao mesmo tempo, real, utópico e necessário. Desde a invasão de Roma pelos bárbaros não se tem mais um direito universal ou uniforme como o jus gentium. A partir daí, num ambiente de pluralismo jurídico, o mundo passou por momentos de busca pelo nacionalismo ou pela uniformização do direito. Com o surgimento da lex mercatoria e, mais recentemente, com o advento da globalização, o mundo tornou-se extremamente dinâmico e sem barreiras entre os Estados. Nesse contexto, surgem diversas correntes doutrinárias defendendo a tese de um “direito uniforme mundial” e, posteriormente, dada a sua impossibilidade, um direito uniforme para determinadas matérias do direito substantivo. É elaborada, então, a mais bem-sucedida lei uniforme de todos os tempos: a CISG. Para tentar ser um diploma uniforme, torna-se necessário que os seus dispositivos sejam interpretados de maneira uniforme. É o que dispõe o artigo 7 da CISG. Contudo, interpretar artigos da convenção redigida com conceitos vagos e em diversos idiomas oficiais, ratificada por Estados em diferentes momentos sociais, econômicos, políticos e religiosos é uma utopia. No entanto, essa utopia é necessária para manter limites e fronteiras quando da aplicação dos dispositivos legais pelos intérpretes da CISG. Sem essa moldura estabelecida pela utópica interpretação uniforme, a CISG jamais chegaria perto dos fins para os quais ela foi criada e, muito provavelmente, já estaria morta