Zoekresultaten

Zoekopdracht: faculteit: "FdR" en publicatiejaar: "2014"

AuteurS.J. Agailey
TitelA study on the effectiveness of expanding the application of the CESL to third countries when a SME is involved in an international commercial sales contract with another commercial undertaking in a third country
BegeleiderA.A.H. van Hoek
Jaar2014
Pagina's39
FaculteitFaculteit der Rechtsgeleerdheid
OpleidingFdR MA International and European Law: European Union Law
TrefwoordenCESL; SME; private international law; extraterritorial application
SamenvattingIn order to improve the establishment and the functioning of the internal market, the European Commission has proposed a Common European Sales Law in the European Union (hereafter: CESL). The CESL aims to facilitate the expansion of cross-border trade for business and cross-border purchases for consumers. Parties entering into a sales contract will be able to elect the application of the CESL to the international sales contract instead of applying national law to the contract.

The CESL is considered to be an optional second regime that will co-exist with the national contract law of the Member States. In accordance with the optional nature of the CESL, the CESL will only apply to an international sales contract if the parties explicitly opt for its applicability as specified in article 3 CESL Regulation. An important feature of the CESL is its extraterritorial application. Under article 4 CESL Regulation, the optional instrument can be used for cross-border contracts if at least one of the parties has its habitual residence in a Member State. According to the Commission, the Regulation should be available to facilitate trade between Member States and third countries.

The introduction of the CESL as an optional instrument in the internal market has been criticized for several reasons. Accordingly, the entry into force of the Proposal faces a number of internal and external challenges. In this paper, I will focus on several issues concerning the effectiveness of the extraterritorial application of the CESL in cross-border contracts where a SME is involved in the light of EU private international law. As the CESL has not entered into force yet, I will primarily answer my research question by drawing parallels between the CESL and similar cases.

This paper is divided into three chapters. In the first chapter, I will address the legal base of the CESL in order to determine if the European legislature has the competence to give extraterritorial effect to the CESL. In the second chapter, I will discuss the relation between the ‘opt-in’ mechanism of the CESL and the ‘opt-out’ mechanism of the Vienna Sales Convention on the International Sale of Goods (hereafter: CISG). A potential conflict may arise between both instruments if parties opt into the CESL and do not opt out of the CISG. In the third chapter, I will address the situation in which a commercial undertaking from a third country becomes involved in the CESL due to its extraterritorial application. In other words: will third countries accept a choice of law for the CESL? In the conclusion, I will determine the effectiveness of expanding the application of the CESL to third countries when a SME is involved in an international commercial sales contract with another commercial undertaking in a third country.
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