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Shared values? Civilisational sources of the current tensions between Europe and the United States

100%

Filipiak A.

Studia Polityczne (Political Studies)

2006

issue 18

7-28

The article analyses transatlantic relations through the prism of civilisational difference. First, it suggests that the character of the current tensions between the United States and some European countries is primarily civilisational, and only secondarily political, diplomatic, military or economic. It is in this context that the central thesis of the civilisational difference is presented. This difference, it is claimed, springs from the dissimilar relation of the substantial part of Europe and that of America toward the classical and the Christian Great Tradition. The difference is then exemplified by the intersection of politics and economic life as well as the broadly understood issues of church and state, with special emphasis on the concepts of faith, reason, and freedom. The central part of the article analyses the very essence of the civilisational difference, juxtaposing American social and juridical dualism/pluralism and European monism. The difference is presented as the result of the essential continuity between the American tradition and the pre-modern heritage of the West on the one hand and the break with this heritage in the case of the absolutist and post-Enlightenment European tradition on the other. Finally, the article attempts to show how the category of civilisational difference may throw some new light upon current, difficult transatlantic relations. This is done, among other things, by the comparative analysis of selected excerpts from two famous declarations written by European and American intellectuals after September 11th, 2001.

INTERPRETATION OF THE CIF TRADE TERM REGULATING TRANSFER OF RISK IN THE INTERNATIONAL SALE CONTRACT

100%

Filipiak A.

Studia Prawnicze

2005

issue 2(164)

129-152

The practice shows, that even in contracts, which are drawn up very carefully, the parties often omit some details concerning their rights and obligations. Trade terms are used by the parties in their contracts without any reference to the standard informing of the meaning attributed to the terms in trade relations. It is being proved in the article, that in such situations there are many ways of applying the standard worked out by the International Chamber of Commerce. It has been even proved in the literature concerning contract of international sale of goods subjected to CISG (UN Convention on the International Sale of Goods), that the possibility of excluding the interpretation of a trade terms in accordance with Incoterms (International Commercial Terms) is very limited. This possibility exists, when the parties have agreed to different interpretation of the trade terms or when the other party have known or must have known (it was impossible not to know) about different interpretation applied in the commercial circles of the contracting party (art. 8 item 1 CISG). Application of Incoterms is also excluded, when the parties have agreed to a jurisdiction clause (and simultaneously impliedly have chosen the applicable law) or when interpretation in accordance with the national laws of the parties have led to the same result (on the base of art. 8 item 2 CISG). As there are many possibilities to apply Incoterms, it is advisable - when the parties intend to interpret a trade terms in accordance with national (regional or local) custom or practice - to state it clearly in the contract. CISG acknowledges the will of the parties as the basic source of formation of international sale contract. An agreement on a trade terms CIF, regulating in details matters connected with delivery of goods, causes impliedly exclusion of application of some provisions of CISG. Within the scope of regulation concerning bearing risk of loss or damage to goods it refers in particular to provisions deciding on the moment of passing of risk to a buyer. However the mutual relation between Incoterms and CISG is much more complicated. Settlement of the questions not mentioned in Incoterms (e.g. the question of a contract's infringement's influence on bearing of risk or allocation of risk in contract on sale of goods during transit in case of bad faith of a seller) requires reference to CISG, whereas discussion on questions disputable in the light of CISG's provisions (e.g. risk in reference to extraordinary transport costs or the scope of requirement of a good's identification) should take into consideration solutions adopted in Incoterms. Irrespective of qualifing Incoterms in categories of custom or not, it is undisputed, that they still are closely connected with the practice of international trade

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1 Studia Polityczne (Political Studies)

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Shared values? Civilisational sources of the current tensions between Europe and the United States

INTERPRETATION OF THE CIF TRADE TERM REGULATING TRANSFER OF RISK IN THE INTERNATIONAL SALE CONTRACT