Research Articles (Mercantile Law)

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CISG and regional sales law : friends or foes
(Unisa Press, 2015-07) Coetzee, Juana
Economic co-operation and integration brings with it a need to harmonise mechanisms for the regulation of international trade, not only at a public-law level between states but also at a private-law level between traders inter partes. It is often forgotten that differences in the substantive law applicable to a contract function as a non-tariff barrier to trade. Because international trade facilitates economic development, the focus in this article is on the harmonisation of sales laws. Traditionally, private law harmonisation has been conducted by international private or inter-state organisations that specialise in the harmonising of law ata global level. Today, private organisations and groups devoted to harmonising business laws, as well as regional economic integration organisations, are also pursuing legal harmonisation. Global, regional and domestic laws now all exist in the same area of the law, which can give rise to duplication of efforts and problems with the co-existence of global and regional sales law. This article will discuss these issues with reference to the United Nations Convention on Contracts for the International Sale of Goods (CISG) and selected regional laws in considering whether regional harmonisation can act as a stepping stone towards increased harmonisation at a global level or whether it is to be viewed as a threat to global integration and harmonisation.
The convention on the use of electronic communications in international contracts : creating an international legal framework for electronic contracting
(Juta Law, 2006-01) Coetzee, Juana; Mercantile Law
Although international trade can contribute to the economic growth and development of a country, the remoteness of trading parties remains a factor that infl uences the effi ciency of such transactions. Not only are the goods to be transported over huge distances, something that creates the potential for damage and loss during transit, but in many instances trading partners have no personal or previous knowledge of each other. International sales contracts are often concluded by brokers and other intermediaries on behalf of the actual parties involved. These aspects may increase the financial risk that is normally associated with the transaction. Although fi nancial risks are to a large extent addressed by exchanging documents, these documents have to be sent around the world to various interested parties, such as banks, customs offi cials and freight forwarders. Such an exercise may cause many a delay in the execution of the transaction. In the context of international trade, time means money, and it is therefore essential that a commercial transaction is negotiated, concluded and executed in the shortest time possible for the transaction to be efficient. Using electronic forms of communication may offer an effective solution to the problem.
The Electronic Communications and Transactions Act 25 of 2002 : facilitating electronic commerce
(Juta Law, 2004-01) Coetzee, Juana
INTRODUCTION: The development of new technology expanded the ways and means of concluding a contract beyond the traditional methods of oral or written agreement. The Internet enables businesses and entrepreneurs to communicate and transact in ways that were not previously possible. It is common knowledge that electronic or online contracting can improve business efficiency, reduce paperwork and streamline commerce. However, at the same time, the Internet presents some unique challenges to doing business. Many of these challenges are related to the nature of the medium. Because distance is largely irrelevant, it is a far quicker way to do business than the traditional methods, but the price paid in return is a lack of knowledge about the party at the other side of the connection. Less information than would be natural in real-world transactions breeds mistrust, and mistrust could limit the growth of e-commerce, unless a safe and secure environment can be provided.
Incoterms, electronic data interchange, and the Electronic Communications and Transactions Act
(Juta Law, 2003-01) Coetzee, Juana
Electronic commerce makes it possible for parties to trade electronically without using paper. Time means money. Electronic trading means that the process can be speeded up and that money can be saved. The past years have seen an explosion of interest in electronic data interchange (EDI) between national and international trade participants. In this article I shall investigate the impact of EDI on trade terms, and the use of transport documents associated with these terms. I shall mainly focus on how various international instruments deal with the legal issues relating to e-commerce and specifically transport documents. The Electronic Communications and Transactions Act 2 regulates the South African legal position relating to electronic transactions, and hence also paperless trading.
INCOTERMS® 2010 : codified mercantile custom or standard contract terms
(Juta, 2012-01) Coetzee, Juana
INCOTERMS® reflect the most dominant and consistent commercial customs and practices evident in international commerce. They are regularly updated to keep them in line with changing mercantile practice. However, over the years, several terms were added to represent practices which have not yet developed into mercantile usage or custom. In reaction to the latest revision of the INCOTERMS® rules, which has come into operation on 1 January 2011, one commentator concludes that INCOTERMS® now function as standard contract terms and no longer as mercantile custom or usage. This article addresses the legal nature of INCOTERMS® , with specific reference to the International Chamber of Commerce’s (“ICC”) revision methodology. In principle, INCOTERMS® function as contract terms. Whether they enjoy an autonomous existence apart from party agreement is a question that has not yet been answered conclusively. There is evidence that courts apply them as international trade usage or custom, especially in the context of article 9 of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). Scholars, however, disagree on whether INCOTERMS® in toto can function as international trade usage, especially when it comes to recently introduced rules. It is submitted that individual rules should not be evaluated in isolation, but that their legal nature should be determined with reference to the compilation as a whole. It is concluded that the more INCOTERMS® are used in a particular trade, they will become known and observed in that trade. In due course they will acquire the force of mercantile usage or custom which can apply independent of party agreement.
INCOTERMS® 2010 : codified mercantile custom or standard contract terms
(Juta Law, 2012-01) Coetzee, Juana
INCOTERMS® reflect the most dominant and consistent commercial customs and practices evident in international commerce. They are regularly updated to keep them in line with changing mercantile practice. However, over the years, several terms were added to represent practices which have not yet developed into mercantile usage or custom. In reaction to the latest revision of the INCOTERMS® rules, which has come into operation on 1 January 2011, one commentator concludes that INCOTERMS® now function as standard contract terms and no longer as mercantile custom or usage. This article addresses the legal nature of INCOTERMS®, with specific reference to the International Chamber of Commerce's ("ICC") revision methodology. In principle, INCOTERMS® function as contract terms. Whether they enjoy an autonomous existence apart from party agreement is a question that has not yet been answered conclusively. There is evidence that courts apply them as international trade usage or custom, especially in the context of article 9 of the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Scholars, however, disagree on whether INCOTERMS®in toto can function as international trade usage, especially when it comes to recently introduced rules. It is submitted that individual rules should not be evaluated in isolation, but that their legal nature should be determined with reference to the compilation as a whole. It is concluded that the more INCOTERMS® are used in a particular trade, they will become known and observed in that trade. In due course they will acquire the force of mercantile usage or custom which can apply independent of party agreement.
The Interplay between Incoterms and the CISG
(University Library System, 2013) Coetzee, Juana
INCOTERMS® do not replace the CISG’s provisions on delivery and the passing of risk in toto, but merely supersede them in so far as they are mutually exclusive. For the rest, they function in tandem. Aspects which are not governed by the INCOTERMS® rules, or inadequately regulated, can be supplemented by the Convention, and vice versa. Collaboration between the two instruments strengthens the unified legal framework for international sales transactions with the view to facilitating international trade.
A pluralist approach to the law of international sales
(North-West University, Faculty of Law, 2017) Coetzee, Juana
International trade can support economic development and social upliftment. However, people are often discouraged from contracting internationally due to differences in legal systems which act as a non-tariff barrier to trade. This article focuses on the private law framework regulating international contracts of sale. During the twentieth century, the problem of diverse laws was primarily addressed by global uniform law such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). However, uniform law is rarely complete and has to be supplemented by national law, trade usage or party agreement. Because of gaps that exist in the CISG the Swiss government made a proposal for a new global contract law. But is this a feasible solution to the fragmentary state of international trade law? In Europe, signs of reluctance are setting in towards further harmonisation efforts. The Proposal for a Common European Sales Law (CESL) was recently withdrawn, and now Britain has voted to leave the European Union; rumour having it that more countries might follow. The current private law framework for international sales contracts consists of a hybrid system where international, national, state and non-state law function side by side. This article submits that universalism is not per se the most efficient approach to the regulation of international sales law and that economic forces require a more varied approach for business-to-business transactions. The biggest challenge, however, would be to manage global legal pluralism. It is concluded that contractual parties, the courts and arbitral tribunals can effectively manage pluralism on a case-by-case basis.
A pluralist approach to the Law of International Sales
(ASSAF, 2017-04) Coetzee, Juana
International trade can support economic development and social upliftment. However, people are often discouraged from contracting internationally due to differences in legal systems which act as a non-tariff barrier to trade. This article focuses on the private law framework regulating international contracts of sale. During the twentieth century, the problem of diverse laws was primarily addressed by global uniform law such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). However, uniform law is rarely complete and has to be supplemented by national law, trade usage or party agreement. Because of gaps that exist in the CISG the Swiss government made a proposal for a new global contract law. But is this a feasible solution to the fragmentary state of international trade law? In Europe, signs of reluctance are setting in towards further harmonisation efforts. The Proposal for a Common European Sales Law (CESL) was recently withdrawn, and now Britain has voted to leave the European Union; rumour having it that more countries might follow. The current private law framework for international sales contracts consists of a hybrid system where international, national, state and non-state law function side by side. This article submits that universalism is not per se the most efficient approach to the regulation of international sales law and that economic forces require a more varied approach for business-to-business transactions. The biggest challenge, however, would be to manage global legal pluralism. It is concluded that contractual parties, the courts and arbitral tribunals can effectively manage pluralism on a case-by-case basis.
The role and function of trade usage in modern international sales law
(Oxford University Press, 2015-08) Coetzee, Juana
Trade usage reflects consistent and uniform business practices that are regularly followed in a particular trade. Trade usage has always played an important role in international sales as is evidenced by the lex mercatoria, an a-national system of law that flourished as autonomous law in medieval times but lost its influence after the introduction of the nation state. Today, the existence of the law merchant and the role and function of mercantile custom are clouded in controversy. Regardless of that, trade usage still fulfils a normative function in contracts of sale, so much so that contractual parties are bound by trade usage even in the absence of real knowledge. But what is the rationale for this situation? And what converts a mere consistent trade practice into a binding usage? These are some of the questions that this article seeks to answer. Whether the normative function of trade usage is restricted to contract interpretation and supplementation or whether trade usage can operate independent of party agreement is not clear. The traditional position is that trade usage operates as implied terms of the contract. Lately, however, less emphasis is placed on the requirement of knowledge. International and regional uniform law projects increasingly seem to afford trade usage binding force once a usage is widely followed in international transactions in a particular trade or industry. This article analyses the role and function of trade usage in modern day international sales law with reference to the position under selected national legal systems as well as under various international and regional instruments.
Trade usage : still law made by merchants for merchants
(Juta Law, 2016-03) Coetzee, Juana
INTRODUCTION: Trade usage has always played an important role in the legal regulation of international sales. For example, trade usage is used to define the concept of reasonable time in which the buyer or seller has to take certain actions as required by the substantive law, to determine whether formalities are required for contract formation, whether an offer can be accepted through silence or conduct, a contract concluded where the goods or price is not certain or ascertainable, the price or time of payment revised after conclusion, or whether interest can be claimed in cases where there is no contractual agreement in this respect.

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