Why Ghana Should Implement Certain International Legal Instruments Relating to International Sale of Goods Transactions
| Published date | 01 March 2011 |
| Date | 01 March 2011 |
| Pages | 1-37 |
| DOI | 10.3366/ajicl.2011.0002 |
This article argues that Ghana should implement
For the sake of convenience, the term implement is used broadly in this article to cover otherwise technically different terms such as ratification, accession, succession, enactment and approval. Roy Goode uses the term implementation for the ratification of international conventions and the adoption, wholly or in part, of model laws.
While the discussions focus on the beneficial impact of the relevant international instruments on Ghana, the thrust of the argument may be applicable to other African countries in similar situations, albeit with differences.
In an era of increasing globalisation of the world's economies, countries and businesses operating within them are constantly competing for resources, investments, markets and profits. Countries have no choice but to take part in international trade,
I. F. Razafimahefa and S. Hamori,
Razafimahefa and Hamori,
Admittedly, the laws, policies, conditions and factors affecting a country's international competitiveness in its international trade are vast, the details of which are beyond the scope of this paper. The factors may include resources, productivity, physical and ICT infrastructure, business start-up costs, licensing regimes, labour market conditions, property rights and registration, access to credit, investor protection, taxes, enforcement of contracts, closing of business and cross-border trading (
Typically, an international sale of goods transaction would involve a number of interconnecting, but autonomous, contracts. There is usually a contract (or contracts) of sale of goods (often referred to as the underlying contract), a contract (or contracts) for the transportation of the goods from the exporting to the importing country (contract for the international carriage of goods) and contracts or arrangements for payment.
The interconnecting contracts constituting an international sale transaction are the subject of widely adopted ILIs in the forms of conventions, model laws and legal guides. Some of the ILIs have been very successful, some have not. This article discusses some of these ILIs, particularly a few successful ones, arguing that there are advantages, and no material disadvantages, for Ghana to implement them. The article discusses ILIs relating to: (1) the underlying contract of sale; (2) international carriage of goods by sea;
International carriage of goods could be by road, rail, air or sea, or a combination of these modes. While there are ILIs on all these modes of carriage, this paper confines its discussion to sea carriage, for two main reasons. First, most of the disadvantages identified in respect of the Ghanaian sea-carriage regime are not present with the other modes of carriage. Second, to the extent that any disadvantages in the non-sea-carriage instruments may exist, the arguments in respect of sea carriage may be a helpful template for their identification and rectification where appropriate.
and (3) e-commerceFor the underlying contract, the discussion focuses on the UN Convention on International Sale of Goods 1980 (CISG).
This article is divided into six parts, including this introductory part. Part II briefly outlines the rationale for ILIs in the area of international commercial law, noting there are both supporters and detractors. Part III discusses ILIs relating to the underlying contract of sale, and examines Ghana's position regarding the relevant ILIs. It finds that Ghana has not implemented any ILIs on international sale, and recommends that Ghana should implement the CISG. Part IV discusses Ghana's position relating to ILIs on international carriage by sea. It observes that while Ghana has implemented an ILI in this area, it has adopted the Hague Rules, which is the least favourable of the available alternatives to Ghana. It argues that Ghana should have implemented the Hamburg Rules two decades ago. It goes on to suggest that Ghana has two choices: implement the Hamburg Rules now while monitoring progress on ratification of the new Rotterdam Rules; or simply ratify the Rotterdam Rules now in anticipation that they will become operational in the near future. Part V discusses the position of Ghana regarding ILIs on e-commerce in trade. It finds that Ghana has sought to implement a mixture of instruments in this area but has excluded the application of the relevant statute to important aspects of international trade transacting. It suggests that Ghana should rectify that anomaly. Part VI concludes the article with a summary of the arguments and submissions.
Harmonisation (and/or unification)
Conceptually, harmonisation and unification may be differentiated. Harmonisation may be considered as the process of modifying domestic laws to enhance consistency and predictability in cross-border commercial transactions. Unification, on the other hand, is the adoption by States of a common legal standard governing particular aspects of domestic and international trade and commerce. See R. Bollen, ‘Harmonisation of International Payment Law: A...
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