Domestic Commercial Law

Legal Issues

International commercial law is not exactly a sub-branch of international law, because it includes three components: international treaties, customs, and domestic law which is accepted by the parties concerned. The inclusion of domestic commercial law distinguishes international commercial law from international law.
A treaty must be adopted by a state through appropriate procedures set out in its constitution, whereas customs and foreign law may be incorporated in each individual contract. In addition, a domestic court of law may also apply commercial customs and foreign law pursuant to the conflicts rules adopted by it.
In Australia, a new treaty must be enacted as a piece of domestic legislation by either a federal or a state parliament. (Simsek v MacPhee and Another (1982) 148 CLR 636. However, at common law a court may apply international instrument to resolve uncertainties in the common law. This was accepted, for example, in Dietrich v The Queen (1992) 177 CLR 292.) The Vienna Sales Convention is an example. However, sometimes the Australian courts of law may directly apply international conventions to which Australia is a party, arguably by virtue of s 51(xxvi) – external power – of the Commonwealth Constitution; or under the established common law rule, to apply international instruments to resolve uncertainty or ambiguity in the common law (under the traditional rule, it is unclear whether the technique can be applied to resolve uncertainty in statute).(1)

Resources

Notes

1. John Mo, International Commercial Law