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2013年度资助项目:Mandakh Tsogtsaikhan——实习报告
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Mandakh Tsogtsaikhan’s Report onInternship in UNIDROIT
I would like to hereby summarize theresults of my internship activities at UNIDROIT, which were of greatsignificance for me.
From 14th of January to 12th of April2013, I had the privilege to do research in International Institute for theUnification of Private Law (UNIDROIT) as an intern and would like to express mythanks to UNIDROIT for providing me this opportunity.
During the 3 months of internshipperiod, I have started from the learning about UNIDROIT and its activities,then concentrated more on such issues, like the unification of private law,contract framing, UNIDROIT Principles of international commercial contracts and1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. I directedmy efforts to become more familiar with these useful aspects and tried toassimilate and put towards to Mongolia’s perspective and possibleimplementations.

1.     Unificationof Private law

In themeantime of assimilating the work of UNIDROIT and its achievements, I had atask to more concentrate on reviewing the literatures regarding the unificationand harmonization of law. Mainly focusing on the book “InternationalUnification of Private Law”, written by one of the most prominent scholar ofPrivate and comparative Law, Prof. René David.

Laws ofdifferent States can be harmonised so as to reduce differences due to nationalpolicy. The nature of harmonization is designed to incorporate different legal systemsunder a basic framework, inevitably, UNIDROIT instruments are the greatexamples of this aspect.

2.     Workon Contract farming

I am very grateful to have had theopportunity to participate in the expert meeting for the preparation of a legalguidance on Contract farming which was held between 28th of January to 31st ofJanuary.

Theproject at UNIDROIT legal guidelines on contract farming is addressed to theprivate parties for the purpose of giving them advice and guidance regardingthe provision of general principles of governing the agricultural productioncontracts, but the final result of this work can be a source for thelegislators for the adoption of domestic laws, directly or indirectly, onagricultural production contracts.

UNIDROIT has been in consultation withFAO and IFAD since the early stage of this project and, as a result, the ideaof drafting UNIDROIT Guidelines on Contract Farming has come up.

Contractfarming is agricultural production carried out according to anagreement between a buyer and farmers, which establishes conditions for theproduction and marketing of a farm product or products. Contract farming hasover the years been considered as one system that has considerable potentialfor providing a way to integrate small-scale farmers in developing countriesinto export, processing markets and the modern economy.

The focus of the Guidelines should beon long-term contractual agreements. These contractual relationships should gobeyond the structure of a simple sale transaction and should consist in apurchase commitment by the buyer and the commitment by the producer to deliverthe produce at a certain time and in compliance with specific requirements.

Thefuture guide would offer a thorough analysis of substantive law issues whichare involved in agricultural production contracts. It would identify problem areasand possible solutions in light of trade usages and legislation. It could serveas a “good practice” reference by providing guidance for parties engaged incontract farming operations during the negotiation and drafting of contracts,thus helping to build trust between the parties and support mutually beneficialrelationships. The future guide could also serve as a reference in the contextof the formulation of public governance instruments to sustain agriculturaldevelopment. In view of its various potential applications, the future guidecould provide an additional tool available to international organisations andbilateral cooperation agencies as well as nongovernmental organisations engagedin strategies and programs in support of contract farming in developingcountries.

Contract farming area was very new forme and therefore has allowed me to gain a new knowledge, based on which, Ibecame able to evaluate my own country’s legal system.

Having this in my mind I prepared the reporton contract farming regarding the Mongolia’s perspective.

Contract farming is expanding indeveloping countries where it opens significant opportunities of economic andsocial development by providing local producers with access to markets andsupport in the form of technology transfer and credit facilities. It is furtherseen as a potential tool for reducing poverty, contributing to ruraldevelopment and increasing food security. Like in manyother countries, in Mongolia contract farming arrangements are regulated underthe provisions of general contract law. Main outcome of my study in this fieldwas that, today the role of the food supply and demand is tightly relatedto the sustainable development of the Mongolian agricultural sector. It isnecessary to process and formulate strategies, wise managements and tactics onboth crop planting and animal husbandry, because private farm owners andherdsmen lack information, experience and financial ability. Therefore it isnecessary to implement and develop contract farming in Mongolia. The keybenefits of contract farming for herders and farmers in Mongolia is to improvethe access to local markets, assure markets and prices which will reduce risks,assure higher returns; and enhance farmers access to production inputs,mechanization and transport services.

3.     Workon UNIDROIT Principles of International Commercial Contracts

After the study on contract farming, Istarted to concentrate more on UNIDROIT Principles of International commercialcontracts, which is one of the significant achievements of UNIDROIT andaccordingly, had reviewed lots of literatures regarding the internationalcommercial contract law. I found that this issue is of particular relevance toMongolia as a trading nation, and it was very interesting for me to consider theways, by which we can strengthen our legal processes of harmonization andunification of commercial related legislations to complement the internationalcommercial and arbitration regime and make litigation a viable option, forinstance in cross-border disputes.

UNIDROIT Principles of InternationalCommercial Contracts is prepared to be an elaboration of an internationalrestatement of general principles of contract law, and to meet the perceivedneed for a harmonization of the law of international commercial contracts in afashion that avoids some of the problems that more traditional tools ofharmonization have met with in the past.

UNIDROIT Principles wide acceptance intransnational business contracts and commercial dispute settlement practiceshows that they indeed fulfill the function that UNIDROIT Principle provides aset of generally acceptable rules representing the best possible solutions forinternational commercial contract practices, while purposely eliminatingdifferences that exist due to differing legal traditions.

Furthermore, since the Principles covervirtually all issues that may conceivably arise from transnational commercialtransactions, they are not a rigid and limitative legal source but insteadleave considerable room for flexibility either to accommodate specific provisionsto further individual parties’ interests in their private dealings, or topromote national trade and economic policies.

In view of their intrinsic merits theUNIDROIT Principles may – and actually frequently do- serve as a model to bothnational and international legislators. They may be particularly useful tocountries lacking a sufficiently developed body of legal rules relating tocontract law in general and which intend to update their law, at least withrespect to international business transactions, so as to meet currentinternational standards.

It is generally recognised that theUnited Nations Convention on Contracts for the International Sale of Goods(CISG; the Vienna Convention) and the UNIDROIT Principles of InternationalCommercial Contracts are two major achievements in the history of theunification of contract law in the field of international commerce.

Additionally my studies have allowed meto see the practical effect of the UNIDROIT achievements on legal harmonizationand unification through a number of states. I have learned, that in an era ofincreasing international trade and investment, the existence of reliable andeffective mechanisms for resolving international disputes is a key for thesmooth and dispute less development of International trade, especially for suchlandlocked countries like Mongolia, which are heavily dependent on both importsand export, as well as the trade regulations of neighboring countries, throughwhich all trade should transit in any way.

As the result, I wrote a paper regardingthe inevitable need of harmonization and unification of commercial law inMongolia from the perspective of the UNIDROIT Principles.

This essay first gives general briefintroduction of Mongolia’s legal environment of commercial law; the role ofarbitration law, application of international commercial instruments inMongolia’s judiciary system and its problems, and investigates the generalintroduction of UNIDROIT Principles of International Commercial Contracts andits achievement. Based on this introduction, it analyzes some basic issues ofUNIDROIT Principles in regard of Mongolia’s commercial law, especially focusing on the issues ofauthority of agents, Interpretation of contracts as well as Performance andnon-performance of the contract. Mongolia should fully recognize thesignificance of the UNIDROIT Principles and make full use of it in order toimprove the legal rules relating to contracts with respect to foreign economicrelationships and current international standards.

Mongolia overlooks to some extent therole of international customs and practices in the past, which is not conduciveto the development of a free market economy; therefore Mongolia should draw onthe experience of some significant provisions of UNIDROIT Principles, in orderto give sufficient attention to the international principles and the customarypractices.

In this process, the Mongolia’slegislators should transplant the significant provisions of UNIDROITPrinciples, representing the process of modernisation of contract law. As theconsequence, the UNIDROIT Principles will not only provide Mongolia with a“window” to observe the development of contract laws globally, it will alsobecome a “shortcut” to link its laws with international standards.

4.    Work oncultural objects and UNIDROIT 1995 Convention

My final studyat UNIDROIT was mainly focused on UNIDROIT Convention on Stolen or IllegallyExported Cultural Objects (UNIDROIT 1995 Convention). During my research, Ms. Marina Schneider (Research officer of UNIDROIT), gave animportant comments in the field of cultural property, and I was able to discussabout the potential application of the UNIDROIT1995 Convention in Mongolia.

Under thesupport of Ms. Marina Schneider, I had an opportunity to meet and give apresentation to the Mongolian delegates who were participating in the trainingregarding the protection of the cultural property, held by Italian Carabinieri.My introduction was mainly focused on general introduction about UNIDROIT work,as well as benefit of becoming member of the UNIDROIT, as Mongolia is still nota member of UNIDROIT, and brief introduction about the achievement in the fieldof protection of cultural objects and the significance of the UNIDROIT 1995Convention. It was my honour to meet and introduceabout aforementioned issues to the Mongolian delegates and discuss it in mynative Mongolian language during my internship in UNIDROIT.

5.     Summary

To summarize all my findings andacquired knowledge during my internship in UNIDROIT, the UNIDROIT was theperfect place to gain practical experience in the field of Unification ofPrivate law. I admire the prominent achievements of UNIDROIT in the field of theunification of Private law and it was my honor to be the part of UNIDROIT, andto be the first intern from Mongolia.

In the future, I will be more thanwilling to contribute to the development of Mongolia’s international law andit’s standing in the international legal community by means of doing my best tomost efficiently transfer the knowledge I acquired in UNIDROIT.

Furthermore, internship program hasbeen a wonderful opportunity for me, because it provided with not only with theplatform of study, but it has offered me a chance to meet and exchange ideaswith many interesting people from all different social backgrounds and make alots of new friendships with fellow researchers and interns. I am sure that ithas indeed been a very good and memorable occasion to everybody who involved toUNIDROIT.

I would like to thank everyone at theUNIDROIT, to Ms. Frédérique Mestre who was not just my supervisor during myinternship, but a wholesome tutor, who provided me with valuable advice andcomments in every aspect of my internship, and especially thanks to the library staffs,intern colleagues all of whom I have great admiration and respect for and whomade me feel like a part of the team.

       At the end, I would like toexpress my sincere thanks to Xiamen University Chen An International lawdevelopment foundation for providing me partial financial fund to support my internshipduring my stay in UNIDROIT, Rome, Italy.

 

 

Yours sincerely,

Mandakh Tsogtsaikhan

Xiamen University PhD. Candidate fromMongolia
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