Selections from International Trade Law

Author: Smit Hof
Publisher:
Publish Date: 1996-08-01
Features: This book provides an introduction to Smit Hof (1903–1991), a renowned contemporary British legal scholar and one of the main founders of international trade law. He has authored numerous works, many of which have been published with unique insights and significant global influence, translated into multiple languages such as Russian, Chinese, and French. The book collects 34 representative and important essays published by the author at different times, covering a wide range of fields in international trade law. These works are of great significance for understanding and researching the origin and development of international trade law, as well as its series of major theoretical and practical issues, and for promoting the teaching, research, and import/export trade of international trade law in China.
Excerpt: The main features of the substantive law established by commercial courts are: emphasizing contractual freedom; the freedom to transfer movable property, including tangible and intangible property, while eliminating legal technicalities, with the most important being the adjudication of cases based on the principle of fairness and reasonableness (ex aeque et bono), rather than rigidly adhering to the provisions of Roman law in an academic and pedantic manner. Therefore, it is not surprising that commercial law, as a highly successful system, has achieved remarkable success. The universality and potential superiority of commercial customary law over general law made it the foundation for expanding commercial transactions across the entire Western world by the late Middle Ages.① Some argue that the universality of commercial customary law is a feature of its modern development rather than its contemporary one. Holdsworth once remarked, "I doubt whether these features were unique to medieval merchants or lawyers. Merchants in medieval society were merely one of the strictly differentiated strata, and the customs of all these strata shared similar universality, though to varying degrees. The degree of universality in civil and canon law was also very high."② These views may be entirely correct, referring to the hierarchical structure of world society before the rise of nation-states. This does not diminish the accuracy of the analysis presented in this paper, as the fact that other legal departments are equally or even more universal does not reduce the inherent universality of commercial customary law.
The Incorporation of Commercial Customary Law into National Laws The incorporation of commercial customary law into national laws occurred in the 18th and 19th centuries, although the theory of state sovereignty, first proposed by Grotius, upon which national laws were based, is much older. The adoption of commercial customary law into national laws was not uniform, but rather driven by different political and social reasons and implemented through diverse methods. In France, the first step in the codification of national commercial law was the 1673 Ordonances sur le commerce (Commercial Ordinances) and the 1681 Ordonances sur la marine (Maritime Ordinances) during the reign of Louis XIV. The revision of this legislation began in 1787 but was interrupted by the French Revolution. It was only in the early 19th century that this work was resumed. The Code de Commerce was promulgated in 1807, one of the five codes issued during the Napoleonic era.① These Napoleonic codes fully reflected the political views and philosophy of the French Revolution. The fundamental idea behind the Napoleonic codification was contractual freedom and the absolute right to protect property ownership. The Napoleonic Code is often called the victory of the tiers état (the third estate). As we know, merchants and professionals were the main components of the third estate.② Thus, the codification of French law marked the culmination of a political movement's victory. The political nature of German commercial law codification, however, was entirely different. It preceded the codification of general private law, unlike France.③ The codification of German commercial law was a reflection of the political struggle for unification in law. It was a carefully planned attempt to promote German political unification through the codification of uniform laws.④ Choosing commercial law as the first target for German unification was natural, as general experience shows that unifying commercial law is both necessary and easier. Therefore, in 1834, the Zollverein (German Customs Union) drafted the German uniform bills of exchange law, which was officially promulgated in 1848. In 1856, the German Confederation held its first conference to codify a uniform commercial law, and in 1861, a draft code was published, adopted by most members of the German Confederation, including Austria and Prussia. This code is still in force in Austria, but the German Empire later enacted a new Commercial Code in 1897. The above materials indicate that with the development of German political unification, the codification of commercial law repeatedly gained momentum, showing the clear political factors in German commercial law codification.