Italy: 意大利与中国之间的国际货物销售合同:您需要了解的一切

Last Updated: 8 August 2019
Article by Arnone & Sicomo

在谈国际货物销售合同之前,我们有必要简要审查1980年签订的"维也纳公约",该公约不可避免地影响着意大利与中国之间的贸易关系。

当涉及以下情况时,"" 动适用(除非当事方明确排除),是不同国家的公司之间关于货物销售(已制造或将要生产)合同的监管根源:

  • 均为缔约国;
  • 依照国际私法规则采用其中某缔约国的法律。
  • 相反,该"公约"不能应用在以下销售领域:
  • 为个人,家庭和居家使用而购买的商品;
  • 拍卖商品;
  • 赎回货物;
  • 房地产商品,汇票和货币;
  • 轮船,船只,水翼艇和飞艇;
  • 电力销售。

意大利与中国之间的国际货物销售合同:中国特例

中华人民共和国于1986年12月11日加入了1980年"维也纳公约"。不过,中国是持 保留国身份,因为它 行使了对同一来源的两项条款保留 /排除的权利(第1条第1款b项和第11条),从而排除了对国际货物销售合同的适用。

具体地说,"维也纳公约"第1条第1款b项规定了在不同国家设有办事处的缔约方之间 动产买卖合同的适用范围:

  1. 涉及国家为缔约国时;
  2. 依照国际私法规则采用其中某缔约国的法律时。

由于排除了b项,因此,如果与总部在非缔约国的企业签订合同,如果主管法院在中国,则公约的适用性在任何情况下均被排除在外,将采用中国法律,或者是根据中国国际私法的规定采用另一国的国内法。

"公约"第11条规定了合同形式的自由(包括口头的),而其适用性被中国排除在外,相反地,在中国合同的有效性要求 合同必须为书面形式,否则无效

意大利与中国之间的国际货物销售合同:在哪些情况下是无效的?

如上所述,中国已宣布要避免"维也纳公约"第11条的实施,即使这是监管商贸关系的适用法律。取而代之的是在国际买卖中采用LCEE(欧盟对外贸易法),其中第7条规定合同必须采用书面形式。

CVIM(关于国际货物销售合同的公约)中没有关于合同无效的可能情况的相关规定,因此归于国际私法范畴。

相反,中国在以下情况下 认定国际合同无效

  • 违反中国法律;
  • 合同反对公司的公共利益;
  • 合同的缔结出于暴力或恶意。

除上述情况之外, 还包括由最高法院确定的:

  • 未满足书面形式要求;
  • 合同缔结人无权代理;
  • 在没有行政授权或超出指定操作范围的情况下签订的合同。

错误和明显的不公平使合同无效。

意大利与中国之间的国际货物销售合同:适用哪种法律,如何确定主管法院

针对具体的国际货物销售合同案例,全面了解适用的法律并正确确定主管法院,并非一件易事。国际私法规则对此提供了帮助。

实际上,根据意大利法律,适用于国际合同的法律必须根据国际私法规则所规定的关联标准来确定,这些规则参照1980年6月19日颁布的"罗马公约",适用于与欧盟以外的公司订立合同的情况。对于在欧盟设有办事处的企业,将适用欧盟法规第593/2008条。

应该指出的是,在我们的法律中,适用的法律可由各方自由选择,前提是合同中明确了这一选择(即适用法律条款)。

即使是中国的合同法也规定了,当事人有选择合同适用法律的自由,除开某些 强制性情必须服从中国法律的规定,例如合资公司合同,自然资源开发和利用的合作项目合同,以及中国公司收购合同,均为中外双发合作并在中国开展。

同时中国法律还规定,当事人在订立合同时应明确适用于合同的法律,以便在未作选择的情况下,合同将受依据国际私法标准与之最密切相关的国家/地区的法律管辖。

关于主管法院的确认,当事人可以自由决定任何争议的解决方式,并选择主管法院裁决其争议(中国法律强制管辖权下的案例除外)。

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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