HANOI NATIONAL UNIVERSITY
FACULTY OF LAW
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LE KIEU TRANG
FORCE MAJEURE IN INTERNATIONAL SALES CONTRACTS
MASTER'S THESIS IN LAW
HANOI - 2015
HANOI NATIONAL UNIVERSITY
FACULTY OF LAW
LE KIEU TRANG
FORCE MAJEURE IN INTERNATIONAL SALES CONTRACTS
Major : International Law
Code : 60 38 01 08
MASTER'S THESIS IN LAW
Scientific advisor : Dr. LE VAN BINH
HANOI - 2015
COMMITMENT
I hereby declare that this Thesis is my own research work. The results stated in this Thesis have not been published in any other work. The figures, examples and quotations in this Thesis ensure accuracy, reliability and honesty. I have completed all subjects and paid all financial obligations as prescribed by the Faculty of Law, Vietnam National University, Hanoi.
So I write this Declaration to request the Faculty of Law to consider so that I can defend my Thesis.
Thank you very much!
GUARANTEE
LE KIEU TRANG
Cover Page Pledge Table of Contents
INDEX
Page
INTRODUCTION 1
Chapter 1: OVERVIEW OF FORCE MAJEURE AND FORCE MAJEURE CASES IN SALES CONTRACTS
INTERNATIONAL GOODS7
1.1. Some theoretical issues on international sales contracts 7
1.1.1. Concept of international sales contract 7
1.1.2. Characteristics of international sales contracts 12
1.1.3. Forms of international sales contracts 19
1.1.4. Contents of International Sales Contract 22
1.1.5. Sources of law governing international sales contracts 24
1.2. Force majeure and force majeure cases in international sales contracts 31
1.2.1. Concept of force majeure and force majeure cases in contracts 31
1.2.2. Characteristics of force majeure 35
1.2.3. Legal provisions on force majeure 36
1.2.4. Notification procedure when force majeure occurs 43
1.2.5. Consequences of force majeure 44
1.2.6. Force majeure – grounds for exemption from liability for breach of contract 47
Summary of chapter 1 52
Chapter 2: SOME REAL-LIFE SITUATIONS ON FORCE MAJEURE AND RECOMMENDATIONS TO IMPROVE THE LAW AND ESTABLISH FORCE MAJEURE CLAUSES IN GOODS SALE CONTRACTS
INTERNATIONAL 54
2.1. Some practical situations of force majeure in
International Conference 54
2.1.1. Some examples of implementing force majeure situations in international goods sale contracts around the world 54
2.1.2. Some examples of implementing force majeure situations in domestic international goods sale contracts 68
2.2. Some recommendations for improving the law and developing the content of force majeure clauses in international goods sale contracts 74
2.2.1. Recommendations to improve the law 74
2.2.2. Building the content of force majeure clauses in international goods sale contracts 84
Chapter 2 Summary 89
CONCLUSION 90
LIST OF REFERENCES 93
INTRODUCTION
1. Urgency of the topic
The guidelines and policies of our Party and State are to develop a socialist-oriented market economy, on the basis of promoting the industrialization and modernization of the country and strengthening international integration. The reality of our country's economy over the past decade has confirmed that the Party's guidelines are correct. It has created for the country an economy that is both diverse and rich, combining internal strength and coordinating with external support.
To further promote the strong development of the country's economy, create capacity, potential and consolidate necessary conditions for the process of international economic integration, we need to promote the synthesis of all economic sectors and fields, promote internal strength, and take advantage of external resources through investment, tourism, technology transfer, and international trade of goods.
Implementing the Party and State's policy of proactive international integration, Vietnam has truly integrated into the international community more deeply and comprehensively. Vietnam has become a member of ASEAN, joined the WTO, and signed many international treaties and conventions in many fields. Therefore, the law on international economics and trade has been and is truly an effective tool for individuals, organizations as well as State agencies to effectively implement that policy.
The country's economic achievements in recent years have had a significant contribution from foreign economic relations in general and international trade and import and export in particular. However, the current state of Vietnamese law on trade and economic regulations in general and regulations related to contracts for the sale of goods in particular still has many shortcomings.
access, limitations that need to be overcome. Sometimes this activity is hindered and limited by unclear legal regulations, which do not guarantee the rights of the participants, especially domestic enterprises.
The resolution of issues arising from international goods sales contracts depends on many different factors, both objective and subjective. One of those factors is: the subjects participating in signing international goods sales contracts in Vietnam are mainly young enterprises, with weak competitiveness, little experience in international goods sales, lack of understanding of the law as well as international trade practices; the application of the law is still immature while facing foreign enterprises with extensive experience and sharpness in negotiating and signing contracts. Therefore, Vietnamese enterprises are often at a disadvantage in contractual relationships, leading to unnecessary risks.
In addition, the documents regulating international trade relations in Vietnam are still incomplete, inconsistent and not really in line with international law and practice, especially the provisions on force majeure - a very common problem when concluding international trade contracts in general. Therefore, the study and improvement of Vietnamese law fields, especially the law in the field of commerce, is even more urgent, in which one of the key issues is the provisions on force majeure in contracts.
The Commercial Law 2005 has been in effect for more than 10 years, and its implementation has revealed many overlaps and shortcomings. However, up to now, there has not been a specialized study on the issue of force majeure in international sales contracts. Therefore, a comprehensive and systematic study of theoretical and practical issues of force majeure cases in contracts
International trade in goods as stipulated in the Commercial Law is an urgent and important issue, aiming to ensure the stability of trade in goods relations, protecting the rights and legitimate interests of Vietnamese enterprises in the process of concluding contracts.
2. Research status of the topic
The issue of force majeure in international goods sale contracts has been studied by a number of Vietnamese jurists. For example: " Discussing force majeure - Basis for exemption from liability due to breach of obligations in international goods sale contracts" by author Dang Ba; " Comment on exemption from liability due to breach of contract in Article 294 of the 2005 Commercial Law " by Master Bui Hung Nguyen; "Force majeure events and some notes in practical application " by Lawyer Do Minh Tuan.
However, the above studies only mention each aspect or different angles of the topic. For example, the article "Discussing force majeure - Basis for exemption from liability due to breach of obligations in international goods sale contracts " by author Dang Ba Ky only discusses force majeure in terms of this being a case considered as exemption from liability for breach of obligations in international goods sale contracts. Or the article "Force majeure events and some notes in practical application" by Lawyer Do Minh Tuan also only gives general overviews of force majeure and draws notes in practical application, and has no recommendations for perfecting the relevant legal system.
Therefore, the study of force majeure in international goods sale contracts becomes more urgent, thereby providing solutions to improve the Vietnamese legal system in this field.
3. Purpose, tasks, objects and scope of the thesis research
3.1. Purpose of the thesis research
Systematically clarify force majeure circumstances