A Research on the Conflict Harmonisation Approach of Export Credit Insurance Financing Dispute Resolution Mechanisms——From A Perspective of the Relational Theory of Contract
A Research on the Conflict Harmonisation Approach of Export Credit Insurance Financing Dispute Resolution Mechanisms——From A Perspective of the Relational Theory of Contract
Export credit insurance("ECI")trade financing involves multiple legal relationships including insurance,transfer of proceeds,financing and guarantee for financing.In practice,the parties usually stipulated ununified dispute solution provisions un-der the contracts of these relationships,leading to the frequent problem of"fragmentation of the dispute resolution agreement".To deal with that,we should take a perspective of the relational theory of contract,seek a standardised position,review the parties'subjective intention and the transaction's objective function,clarify the legal relationship of ECI and guarantees,and ascertain the mode of relationship among various contracts,so as to respond to the root of the conflicts.Specifically speaking,the insurance con-tract and the transfer proceeds contract can be regarded as constituting relational contracts,whereas neither the insurance contract nor the transfer of proceeds agreement can be treated as relational contracts to the financing agreement.A recent overseas court's judgment,which analyses the structure of ECI trade financing transactions and the dispute solution provisions,confirms the practi-cal value of the relational theory of contract.In order to harmonise the conflicts of dispute solution mechanisms under ECI trade fi-nancing,the parties must mutually clarify the operating logic of ECI business before making business decisions and set a unified dispute solution clause at the stage of contract formation;at the time of disputes,the adjudicator should,according to the scenarios of"competing jurisdictions conflicts"and"duplicated jurisdiction conflicts",establish clear and categorised rules of determining the effect of dispute solution provisions.
关键词
出口信用保险/贸易融资/纠纷解决机制冲突/协调进路/合同联立理论
Key words
export credit insurance/trade financing/conflict of dispute resolution mechanisms/harmonisation approach/relational theory of contract
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