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DOI: https://doi.org/10.34069/AI/2023.65.05.10
How to Cite:
Harahonych, O., Panova, L., Popeliuk, V., Spyrydonova, K., & Mulyk, A. (2023). Contracts in the commercial law of foreign
countries: topical issues of theory and practice. Amazonia Investiga, 12(65), 96-105. https://doi.org/10.34069/AI/2023.65.05.10
Contracts in the commercial law of foreign countries: topical issues of
theory and practice
Договори в комерційному праві зарубіжних країн: актуальні питання теорії та
практики
Received: May 1, 2023 Accepted: June 12, 2023
Written by:
Oleksandr Harahonych1
https://orcid.org/0000-0002-8984-2399
Liydmyla Panova2
https://orcid.org/0000-0002-1393-8626
Vadym Popeliuk3
https://orcid.org/0000-0002-7415-3996
Kateryna Spyrydonova4
https://orcid.org/0000-0003-0139-7583
Anna Mulyk5
https://orcid.org/0009-0000-1337-259X
Abstract
Commercial contracts are the main tool for
regulating relations between enterprises,
regardless of their geographical location.
The purpose of the research is the analysis and
study of modern trends, features, and problems
related to the conclusion and execution of
commercial contracts in foreign countries. The
main tasks are: 1. Study of the main principles of
commercial law of foreign countries.
Consideration of key aspects of commercial law
of different countries, such as the principles of
contract law, executive law, and other important
aspects affecting the conclusion and performance
of contracts. 2. Study of current problems and
challenges. Consideration of modern problems of
conclusion, execution, and disputes under
contracts in the commercial law of foreign
countries, such as problems of electronic
commerce, international trade disputes,
protection of consumer rights, and other relevant
issues. 3. Study of international trends. Analysis
of modern international trends in the field of
commercial law, such as the harmonization of
legal norms, the development of electronic
commerce, the impact of technology on the
conclusion and performance of contracts,
1
Doctor of Legal Sciences, Associate Professor, Associate Professor of the Department of Economic Law and Economic Process,
Institute of Law, Taras Shevchenko National University of Kyiv, Ukraine.
2
Ph. D., Associate Professor of Civil Law Department, Taras Shevchenko National University of Kyiv, Ukraine.
3
Ph. D., Associate Professor of Department of Economic Law and Procedure, National University «Odesa Law Academy», Ukraine.
4
Ph. D. candidate, Head of JSC "BOSSOM GROUP", Ukraine.
5
Ph. D. candidate, Assistant of the judge of the Supreme Court, Ukraine.
Harahonych, O., Panova, L., Popeliuk, V., Spyrydonova, K., Mulyk, A. / Volume 12 - Issue 65: 96-105 / May, 2023
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international cooperation, and integration.
Current theoretical approaches, principles, and
general rules related to commercial contracts in
foreign countries are studied. The problems
arising in the practice of conclusion and
execution of such contracts have been identified.
Common principles and features of regulation of
commercial contracts in various foreign
countries are established.
Keywords: international commercial contract,
banking services, arbitration agreement,
international commercial arbitration,
compliance.
Introduction
Contracts in the commercial law of foreign
countries in the modern world are the subject of
close study, as international trade and business
interaction between countries is becoming more
and more active. The conclusion and execution
of commercial contracts play a crucial role in
creating a favorable climate for international
business operations. International commercial
agreements face a variety of theoretical and
practical issues that require careful analysis and
research. One of the central topics is the study of
theoretical approaches, concepts, and principles
that underlie the conclusion and execution of
commercial contracts in foreign countries. This
covers aspects such as the agreement of the
parties, the terms of the contract, the legal
regime, and enforcement mechanisms. The
practical side of the research is focused on the
identification of actual problems that arise in the
real business environment when concluding and
executing commercial contracts abroad. These
may be issues related to jurisdiction, choice of
law, dispute resolution mechanisms, and
protection of the rights of the parties.
One of the main areas of research was the
definition of the main principles of commercial
law of foreign countries. Key aspects such as the
principles of contract law, executive law, and
other important aspects affecting the conclusion
and performance of contracts were considered in
this study. Analyzing different countries,
common and distinctive features of commercial
law were established, which contributed to the
formation of generalized principles and norms
that can be applied in international commerce.
An equally important aspect of the research was
the study of current problems and challenges
faced by the parties when concluding, executing,
and resolving disputes under contracts in the
commercial law of foreign countries. In
particular, the problems of electronic commerce,
international trade disputes, protection of
consumer rights, and other relevant issues were
considered. This made it possible to identify the
main problematic points and ways to solve them
in the context of the commercial law of foreign
countries.
Another aspect of the research was the study of
international trends in the field of commercial
law. Modern international trends were analyzed,
such as the harmonization of legal norms, the
development of electronic commerce, the impact
of technology on the conclusion and execution of
contracts, international cooperation, and
integration. This made it possible to determine
the key areas of development of the commercial
law of foreign countries and put forward
proposals for the improvement of legal
regulations and the practice of concluding and
executing contracts.
International trade and economic integration are
becoming increasingly important. With a large
volume of global trade operations, new issues
arise related to the conclusion and execution of
international commercial agreements. Special
attention should be focused on standardization,
harmonization, and regulation of contractual
relations, as well as on the use of international
standards and rules in commercial agreements. In
addition, the importance of e-commerce and the
use of the latest technologies in commercial
contracts is growing. Related to this are issues of
trust, security, and protection of information,
electronic identification of parties, signing of
electronic documents, and electronic trust
certificate. It should also be noted that
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international commercial disputes are
traditionally resolved through alternative dispute
resolution, in particular, through international
commercial arbitration. However, there are
issues related to the efficiency and transparency
of arbitral procedures, as well as the recognition
and enforcement of arbitral awards in various
jurisdictions.
It is important to pay attention to the role of
international treaties in this context. International
treaties establish generally accepted norms and
standards that regulate commercial relations
between countries and ensure their mutual
recognition and enforcement. Special attention in
the study is paid to international commercial
agreements, which include specific conditions
and legal principles applied in the field of
international trade, banking services, and other
commercial transactions. The analysis of these
contracts makes it possible to establish common
trends and peculiarities of the regulation of
commercial relations in different jurisdictions.
Particular attention should be paid to the
arbitration agreement and international
commercial arbitration. Arbitration is one of the
most common and effective dispute-resolution
mechanisms in international commercial law.
Studying the principles and procedures of
arbitration helps to understand how disputes
between parties operating in an international
context are resolved. Compliance, which plays a
significant role in modern commercial law, is
also an important aspect of the study.
Compliance involves complying with the
requirements of legislation and ethical standards
in business operations, ensuring legal security
and meeting established standards. The study of
compliance helps to understand how
organizations can effectively implement and
comply with legal regulations in their operations.
In general, this study aims to highlight current
issues of the theory and practice of contracts in
the commercial law of foreign countries, to
reveal their relationship with international
contracts, international commercial arbitration,
banking services, and compliance. The results of
this study are important for the development of
legal regulation of international commercial
relations and will influence the practice of
concluding and executing commercial contracts
in the international context.
The purpose of the research is the analysis and
study of modern trends, features, and problems
related to the conclusion and execution of
commercial contracts in foreign countries.
The main tasks are:
• Study of the main principles of commercial
law of foreign countries. Consideration of
key aspects of commercial law of different
countries, such as principles of contract law,
executive law, and other important aspects
affecting the conclusion and performance of
contracts.
• Study of current problems and challenges.
Consideration of modern problems of
conclusion, execution, and disputes under
contracts in the commercial law of foreign
countries, such as problems of electronic
commerce, international trade disputes,
protection of consumer rights, and other
relevant issues.
• Study of international trends. Analysis of
modern international trends in the field of
commercial law, such as the harmonization
of legal norms, the development of
electronic commerce, the impact of
technology on the conclusion and
performance of contracts, international
cooperation, and integration.
The purpose of the study is to study and analyze
current issues related to contracts in the
commercial law of foreign countries, to reveal
their theoretical aspects, and identify practical
trends.
• Identification of current issues and trends.
The study is aimed at identifying and
analyzing current issues and trends in the
field of contracts in the commercial law of
foreign countries, such as electronic
commerce, international disputes, protection
of consumer rights, and other important
aspects.
• Development of proposals and
recommendations: the goal is to put forward
proposals and recommendations for the
improvement of commercial law in foreign
countries based on the study of current
issues and trends. This may include
proposals for the harmonization of legal
regulation, improvement of dispute
resolution procedures and improvement of
legal protection of the parties to concluded
contracts.
• Analysis of the regulation of international
commercial contracts: the study is aimed at
the analysis of international contracts and
conventions regulating international
commerce, to identify their features,
influence on national law, and practice of
concluding contracts.
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The subject of the research is the systematic
analysis and study of commercial contracts, their
conclusion, and execution in foreign countries.
Theoretical Framework or Literature Review
The degree of research on the topic can be rated
as high. The topic of contracts in the commercial
law of foreign countries is widely researched and
has a significant volume of literature, which
covers both theoretical aspects and practical
experience of concluding and executing such
contracts. In the field of commercial law in
foreign countries, many studies have been carried
out that deal with different types of contracts,
such as sales contracts, supply contracts,
subcontracts, service contracts, and many others.
Researchers study the legal aspects of such
contracts, including their structure, conditions,
responsibilities of the parties, and dispute
settlement procedures.
In his work, Kumpan (2014) examines the role
and peculiarities of transactions, in particular
contracts, in the foreign economic activity of
economic entities. The author examines various
types of contracts used in the field of foreign
trade, such as contracts for international sales,
services, transportation, franchising, licenses,
and others. It analyzes in detail the legal aspects
of the conclusion and execution of such
contracts, in particular taking into account
international standards and legal norms. In his
research, Kumpan draws attention to the
peculiarities of international agreements in
foreign economic activity, such as the
determination of delivery terms, payment terms,
dispute resolution, and other issues arising in the
context of international trade. In addition, the
author examines the practical aspects of
concluding contracts in the foreign economic
sphere, providing advice and recommendations
on their effective conclusion and
implementation. It also examines the legal
aspects of protecting the rights and interests of
economic entities in the context of foreign
economic agreements.
Issues of international commercial law, which
includes aspects of international trade law,
international treaties, and international trade
practice, are also actively explored. The
interaction between different legal systems, the
rules of international organizations such as the
International Chamber of Commerce (ICC), and
national legislation is studied.
Voloshchuk, Makeeva, and Mudryk devoted
their papers to International Commercial
Arbitration. In his article, Voloshchuk (2010)
explores the main aspects of international
commercial arbitration and examines the process
of issuing an arbitral award, including the stages
of the arbitration process, the rights, and
obligations of the parties, as well as the issue of
enforcement of arbitral awards. The author also
examines the main principles and rules
governing international commercial arbitration,
such as the principle of party autonomy, the
principle of confidentiality, and others. The
article provides readers with general information
about the main aspects of international
commercial arbitration and helps to understand
the process and principles of this type of
alternative dispute resolution. It can be useful for
practicing lawyers as well as for students and
academics interested in the field of arbitration
and international commercial law.
In their research, Makeeva and Mudryk (2020)
focus on the analysis of the main concepts,
principles, and mechanisms of international
commercial arbitration. They consider the
process of formation of the arbitration award, the
roles of the parties and arbitrators, as well as
issues related to the procedure and means of
proof in the arbitration process. The authors also
consider important aspects of the implementation
of arbitral awards and their enforcement. The
work provides an in-depth analysis of the
mechanism and principles of international
commercial arbitration. It helps readers
understand complex legal issues related to the
arbitration process and familiarize themselves
with the latest theoretical developments in this
field.
Research in this area also covers current issues
related to the digital economy, e-commerce,
electronic contracts, and the adaptation of legal
systems to rapidly changing technologies and
international trends.
Yashchuk and Yurchyshyn (2013) in their work
examine the key aspects and features of
concluding contracts related to the transfer of
technologies. The authors consider the essence,
nature, and significance of technological transfer
in the modern economic environment. They
study the legal aspects affecting the conclusion
of such contracts, as well as consider the
principles and conditions that must be taken into
account when concluding them. In their study,
Yashchuk and Yurchyshyn analyze various
aspects of technology transfer, including
licensing, transfer of know-how, patents, and
intellectual property. They examine the legal and
economic aspects of these contracts, taking into
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account the risks, limitations, and benefits arising
for the parties in the process of technology
transfer. In addition, the authors draw attention to
the international aspect of technology transfer
agreements, taking into account the legal systems
and international standards that may affect such
agreements. They also address the practical
aspects of contracting, providing advice and
guidance on how to make them effective and
sustainable.
Methodology
The methodology of this research involves a
comprehensive approach to the analysis and
systematization of information related to
theoretical aspects and practical issues of
commercial contracts in foreign jurisdictions.
Below are the main stages of the methodological
research approach:
• Review of scientific literature and sources
by topic. An analysis of current sources,
scientific articles, monographs, legislative
acts, and court practices related to contracts
in the commercial law of foreign countries is
carried out. This allows you to get an
overview of existing research, and
theoretical concepts, and analyze the rights
of these norms and precedents.
• Systematization and synthesis. The method
of systematization of the received data and
synthesis of various sources of information
is used. This allows you to create a
conceptual model for the analysis of current
issues and draw conclusions about the
theoretical and practical aspects of
commercial contracts in foreign countries.
• Study of theoretical approaches. Various
theoretical approaches to contracts in the
commercial law of foreign countries are
analyzed, such as the theory of contracting,
the theory of restrictions, and the theory of
contractual rules. Systematization of these
approaches and identification of basic
principles, concepts, and general rules, used
in commercial contracts is carried out.
• Analysis of practical issues. Practical
aspects of concluding and executing
commercial contracts in foreign countries
are studied. Problems that arise in practice,
such as requirements for the form of
contracts, definition of the rights and
obligations of the parties, exclusion, and
limitation of liability, and dispute settlement
procedures are studied.
• Comparative analysis. A comparative
analysis of various foreign jurisdictions
regarding the regulation of commercial
contracts is carried out. The common
principles and features of concluding and
executing contracts in different countries are
identified, as well as the principles of
harmonization and standardization of legal
regulation are determined.
• Use of legal analysis. Legal analysis of
legislation and international treaties of
foreign countries regulating commercial
contracts is applied. Normative acts related
to the conclusion, content, execution, and
termination of contracts are being studied.
Court decisions that illustrate the
interpretation of legislation and the
development of judicial practice are
analyzed.
• Studying the international aspect. Attention
is paid to international agreements and the
impact of international standards on
commercial agreements. Aspects such as
international trade agreements, dispute
resolution mechanisms, and the influence of
international organizations on the regulation
of commercial contracts are studied.
• Analysis of statistical data. An analysis of
statistical data on the conclusion and
execution of commercial contracts in foreign
countries is carried out. This makes it
possible to identify trends, peculiarities, and
risks associated with the conclusion and
execution of such contracts.
• Interdisciplinary approach. An approach
combining different fields of knowledge,
such as law, economics, business, sociology,
and others, is used. This allows for
considering commercial contracts as a
whole, taking into account various factors
and aspects affecting their conclusion and
execution.
The use of these methodological approaches
contributes to the comprehensive study of topical
issues of the theory and practice of commercial
contracts in foreign countries. They make it
possible to gain a deep understanding of this
issue and make a significant contribution to the
development of commercial law. The research
methodology combines theoretical analysis,
comparative approach, and legal analysis, as well
as the use of empirical methods and case studies.
Results and Discussion
Concepts, principles and general rules of
commercial contracts in foreign countries are an
important component of commercial law, which
regulates relations arising in the process of
concluding and executing contracts in the field of
international business. In the context of foreign
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countries, where the globalization of the
economy has a significant impact on trade and
investment, understanding the concepts,
principles and general rules of commercial
contracts becomes especially important for the
parties to the agreement and their legal
representatives. With the help of the defined
objectives, it was found that the concept of a
commercial contract in foreign countries is based
on generally accepted definitions, which include
an agreement between the parties for the purpose
of carrying out commercial activities. Using a
formalist perspective in his book, Morgan (2013)
seeks to provide a clear and consistent
restatement of the law of commercial contracts,
emphasizing the importance of legal formalities
and objective manifestations of intent at the
conclusion of a contract. Contracts may relate to
the purchase and sale of goods, provision of
services, franchising, licensing of intellectual
property and other commercial transactions.
Arbitration agreements in the context of
contracts in the commercial law of foreign
countries play an important role as a mechanism
for resolving disputes between parties. They
represent an agreement between the parties to the
contract that any disputes or disagreements
arising out of this contract will be resolved by
arbitration instead of litigation. In his work
Malskyi (2011) noted that the American lawyer
H. Born characterized arbitration as a means by
which a dispute is resolved by a disinterested
person, in accordance with the voluntary
agreement of the parties. The arbitration
agreement establishes the rules, procedures and
conditions of the arbitration. It determines the
place of arbitration, composition of the
arbitration tribunal, legal regulation of the
dispute, as well as other aspects related to the
arbitration process. The arbitration agreement
may be included directly in the text of the
contract or may be concluded in the form of a
separate agreement between the parties. An
important aspect of the arbitration agreement is
the choice of the place of arbitration. It can be a
specific arbitration institution or a specific
country where the arbitration will be held. The
choice of the place of arbitration can be of great
importance for the efficiency and effectiveness
of the procedure. Arbitration agreements may
also include important provisions regarding the
arbitration procedure, such as time limits for
filing claims, the procedure for appointing
arbitrators, rules of evidence, and the terms of
enforcement of an arbitral award. The use of
arbitration agreements in the context of contracts
in the commercial law of foreign countries has
several advantages. It allows the parties to avoid
lengthy and complex litigation, provides greater
flexibility and confidentiality, and facilitates the
resolution of the dispute through a specialized
tribunal with deep knowledge of commercial
law. Arbitration agreements are an important tool
for resolving disputes in the context of contracts
in the commercial law of foreign countries
(Voloschuk, 2010a, 2010b). They provide an
efficient, fast and specialized dispute resolution
process, promoting the development of
commercial relations and providing parties with
legal certainty.
The principles of commercial contracts are
important regulatory principles that determine
the rules for concluding and executing contracts
in the field of commercial activity. These
principles contribute to the creation of stable and
transparent relations between the parties to the
contract, ensuring their rights and obligations.
They reflect generally accepted standards and
practices used in the commercial law of foreign
countries. In his work Yefimov (2010)
considered these principles and came to the
conclusion that in the future they will be used as
an independent autonomous regulator of
contractual relations. The main principles of
commercial contracts include:
• The principle of freedom of contract. Based
on the principle of party autonomy, this
principle presupposes that parties have free
will to enter into contracts and determine
their terms. The parties have the right to
agree on the scope and terms of commercial
agreements, within the limits of legislation
and generally accepted norms.
• The principle of good faith and
reasonableness. The parties must act in good
faith and with reason during the conclusion
and execution of the contract. This principle
stipulates that the parties must adhere to the
principle of honesty, strictly adhere to their
obligations and not use deceptive or
unreliable actions.
• The principle of equality and equality. Based
on the principle of equality of the parties,
this principle assumes that the parties have
the same rights and obligations, as well as
equal opportunities in concluding and
executing the contract. This means that no
party should have an undue advantage over
the other, and both parties should be equal
participants in the agreement.
• The principle of compliance with the terms
of the contract. The parties are obliged to
comply with the conditions specified in the
contract. This principle provides that the
parties must fulfill their obligations in
accordance with the conditions stipulated in
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the contract, and in case of violation of these
conditions may bear responsibility.
• The principle of reciprocity and benefit. The
parties must have a certain benefit or interest
in the conclusion and performance of the
contract. This principle implies that the
contract should be beneficial to both parties,
and the parties should have equal
opportunities to obtain some benefit from
the agreement.
• The principle of good faith and justice. The
parties must act in good faith and in a fair
manner during the conclusion and
performance of the contract. This principle
provides that the parties must respect the
legal rights and interests of each other and
fulfill their obligations taking into account
the general principles of justice.
These principles are the basis for understanding
and applying commercial contracts in foreign
countries. They help ensure fair and stable
relationships between business partners and
facilitate the resolution of disputes through
arbitration or other conflict resolution
mechanisms.
The general rules of commercial contracts in
foreign countries, or as they say, Incoterms, can
be based on various sources of law, such as
legislation, international conventions, trade
customs and standards. They regulate various
aspects of contracts, including terms of the
agreement, obligations of the parties, liability for
breach of terms, dispute settlement procedures
and other issues. The general rules are aimed at
creating a transparent and stable legal framework
for commercial relations, ensuring their effective
functioning and protecting the interests of the
parties. In his article Koval (2013) came to the
conclusion that the correct use of the Incoterms
Rules simplifies the process of drawing up a
contract and allows you to get rid of
misunderstandings. Analysis of the concepts,
principles and general rules of commercial
contracts in foreign countries requires a
systematic approach and research of relevant
regulatory acts, national and international
practice, as well as scientific research in the field
of commercial law. Understanding these
concepts, principles and general rules will help to
increase the efficiency of conclusion and
execution of commercial contracts, ensure the
protection of the interests of the parties and
promote the development of international
business.
The conclusion of contracts in various fields of
commerce requires a careful study and analysis
of the specific features of each field, as they have
a significant impact on the relationship between
the parties and the requirements related to the
contractual conditions. For example, in the field
of technology, where the rapid pace of
technological change is the norm, the conclusion
of contracts requires careful consideration of the
peculiarities of intellectual property, in particular
patents, copyrights and trade secrets. In addition,
contracts in this field must reflect details
regarding licensing, transfer of rights and
confidentiality, which are of great importance for
the successful implementation of technology in
commercial activities.
An example can be a technology transfer
agreement. The conclusion of technology
transfer agreements has its own characteristics
compared to other commercial agreements.
Technology transfer agreements are an important
tool for transferring technological knowledge,
know-how, patents and intellectual property
from one entity to another. Technology transfer
agreements are intended to transfer the rights to
use technology, but it is important to ensure the
protection of intellectual property. This may
include entering into appropriate confidentiality
agreements, patent licenses, or legal remedies
that ensure that the technology will only be used
within the scope of the agreement and will not be
shared with third parties. Also, it adds certain
requirements for determining the amount of the
transfer. Contracts should clearly define the
scope of technology transfer, including the
specific rights and obligations of the parties. This
may include restrictions on the territory, fields of
application of the technology, duration and
conditions of use. The main features are also:
financial aspects of the contract, technical
support and training, as well as the transfer of
risks and responsibilities (Yashchuk &
Yurchyshyn, 2013).
The conclusion of contracts in foreign countries
is accompanied by risks and challenges
associated with the complexity and specificity of
international commercial relations. Due to the set
task in the processing of scientific material, it
was found that these risks arise as a result of
various factors, including the legal system,
cultural differences, political instability and
language barriers. One of the main risks is related
to the legal system of the country in which the
contract is concluded. Different countries have
their own legal traditions and systems, which can
significantly affect the interpretation and
application of contractual terms. Differences in
legislation and legal practice can lead to
unpredictable consequences and disputes
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between the parties (Kumpan, 2014). Cultural
differences also contribute to the complexity of
contracting. Different countries have different
approaches to communication, negotiation and
definition of commercial terms. Understanding
cultural nuances and taking into account cultural
characteristics is an important aspect of
successful conclusion and execution of contracts
in foreign countries. In the conclusions of their
work Yeleyko and Danilyuk (2012) noted:
"Recognition of cultural differences between
countries and building relations on this basis is a
prerequisite for achieving positive results in
conducting international business". Political
instability can also pose a serious risk to
contracting in foreign countries. Changes in
government policy, political conflicts and
unforeseen events can affect the business
environment and the fulfillment of contractual
obligations. Language barriers are another
challenge when concluding contracts in foreign
countries. The difference in languages and lack
of familiarity with the partner's language can
complicate the process of negotiations and
agreement of contractual terms. Translation
errors and misunderstandings can have serious
consequences for contractual relations
(Kharchenko, 2020). Generally speaking, the
risks and challenges associated with the
complexity and specificity of concluding
contracts in foreign countries require detailed
analysis, professional training and careful study
of legal, cultural, political and linguistic aspects.
Managing these risks and challenges is an
important task for subjects of commercial law.
Taking into account different legal systems,
cultural characteristics and the level of
development of the legal environment,
concluding contracts in foreign countries can be
difficult and bring certain risks. This involves not
only legal analysis and consideration of
differences in legal systems, but also strategic
planning, cultural understanding,
communication and building sustainable
relationships between parties. Applying adequate
strategies and careful preparation can help reduce
risks and ensure the successful execution of
contracts in foreign countries.
For example, an effective risk management tool
in the provision of banking services by foreign
banks is the analysis of the provisions of business
contracts concluded by the bank's clients. First of
all, supply contracts under which the delivered
goods are paid for, contracts for the provision of
consulting services, contracts for construction
works, etc., which are required from customers
to confirm the legality of banking transactions,
are analyzed. In his master's thesis, Sergiychuk
(2018) found: "The risk management system
includes risk identification, measurement,
control and monitoring. Methods of bank risk
management include methods of avoiding bank
risks, methods of reducing bank risks, methods
of transferring bank risks, and methods of
independent resistance to bank risks".
One of the tools of corporate governance in
financial organizations, in particular in banks, is
compliance control, which is quite widespread
and legislated in economically developed
countries. Compliance is the ability to act in
accordance with established rules, norms,
requirements and internal standards.
Compliance, in the context of contracts in the
commercial law of foreign countries, is an
important aspect that is becoming more and more
relevant in the modern business environment. It
means compliance with certain rules, norms and
requirements related to the performance of
contracts concluded between enterprises and
organizations in foreign countries. Compliance
aims to ensure compliance with laws, regulatory
requirements, safety standards, ethical principles
and other business-related requirements. It
includes the development and implementation of
internal policies, procedures and control
mechanisms that contribute to fulfilling
obligations, avoiding violations and reducing
risks (Zharii & Kufayeva, 2016). The conclusion
of contracts in foreign countries is associated
with various legal, economic, social and cultural
aspects. Compliance in this context involves
analyzing and taking into account the specifics of
legal systems, legislation, contract performance
practices, risks and requirements that may be
specific to a specific country. One of the key
aspects of compliance is the awareness and
implementation of international standards, such
as human rights, environmental norms, principles
of corporate social responsibility and other
international norms. Taking these standards into
account can help build long-term and sustainable
business relationships with partners from
different countries and ensure a high level of trust
and confidence in the concluded contract.
O. Karpushenko and M. Karpushenko (2023)
came to the conclusion that the implementation
of compliance in multinational companies and
companies that plan to enter the international
level increases confidence in them on the part of
foreign stakeholders. Therefore, compliance is a
necessary element of successful conclusion and
execution of contracts in the commercial law of
foreign countries. It helps ensure mutual benefit
and long-term sustainability in business
relationships, avoid violations and conflicts, and
adhere to high standards of ethics and
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responsibility. Successful compliance
management helps to strengthen the positions of
enterprises on the international market and
creates favorable conditions for business
development.
Issues of performance of obligations and
compensation for damages in case of violation of
contractual terms are one of the most important
aspects of commercial contracts in foreign
countries. They require careful consideration and
research, since stability and trust between the
parties to the contract depend on their effective
resolution. In case of violation of contractual
conditions, there is a need to fulfill obligations
and compensate for losses. The problems that
arise are to determine the scope and mechanism
of compensation, taking into account the
different legal systems, principles and practices
in different countries. In her work, Martsenko
(2023) examined the systems of France,
Germany, and Ukraine. In the course of a
comparative analysis, she came to the conclusion
that the norms of the above-mentioned countries
are based on similar legal approaches to the
fulfillment of obligations and compensation for
damages.
Identifying common trends and features in the
regulation of commercial contracts is an
important aspect of researching current issues of
the theory and practice of commercial law.
Finding this positive experience is conditioned
by the set tasks and goals. This makes it possible
to understand general trends observed in various
foreign countries, as well as to identify
peculiarities that arise as a result of different
national laws, traditions and cultural
characteristics. One of the common trends in the
regulation of commercial contracts is the
growing role of international standards and
agreements. Currently, in many areas of
commerce, there is an effort to harmonize legal
norms and create unified standards that
contribute to convenience and transparency in
the conclusion and execution of international
commercial contracts. However, together with
general trends, there are also features that can
distinguish countries and regions in the
regulation of commercial contracts. These may
be differences in the legal system, requirements
for the form of the contract, restrictions on
content or specific rules for certain branches of
commerce. For example, in the field of finance
there may be special requirements for the
regulation of banking transactions, while in
international trade there may be special rules for
customs procedures and transportation of goods.
Thus, the identification of common trends and
features in the regulation of commercial
contracts allows for a broader overview of
international commercial law, to reveal the
essence of institutions that regulate commercial
relations, and to provide a basis for developing
recommendations for improving the legislation
and practice of concluding and executing
commercial contracts in foreign countries.
Conclusions
1. The goal of analyzing the regulation of
international commercial contracts was
achieved. Thanks to this, it became clear that
contracts in the commercial law of foreign
countries are complex and multifaceted legal
instruments that require a deep
understanding of theoretical approaches and
practical aspects.
2. The task of researching the basic principles
of commercial contracts was achieved. It
was revealed that the actual issues of the
theory of commercial contracts consist of the
systematization of approaches, concepts,
principles, and general rules that regulate the
conclusion and performance of contracts in
foreign countries.
3. The task of studying current problems and
challenges was completed. It became clear
that the execution of contracts in foreign
countries includes the identification of
problems that arise in practice and the search
for optimal solutions to solve them.
Understanding the common principles and
peculiarities of regulation of commercial
contracts in different countries helps
enterprises to avoid conflicts and ensure the
successful fulfillment of obligations.
4. The goal of identifying current issues and
trends was accomplished. It was found that
the peculiarities of concluding contracts in
various fields of commerce, such as
technology, finance, and international trade,
require a specialized approach and
consideration of sectoral regulations,
standards, and practices.
5. The goal of developing proposals and
recommendations was fulfilled. Issues of the
fulfillment of obligations and compensation
for damages in case of violation of
contractual terms are of great importance for
ensuring long-term and stable business
relations. Effective methods of dispute
resolution and the use of alternative
mechanisms such as arbitration and
international commercial arbitration were
suggested. In addition, ideas were proposed
regarding the issue of legislative regulation
of compliance.
Volume 12 - Issue 65
/ May 2023
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6. The task of studying international trends was
completed. Identifying common trends and
peculiarities in the regulation of commercial
contracts in various foreign countries helps
to create a knowledge base and develop
recommendations for improving the
legislation and practice of concluding and
executing contracts.
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