Legal problem relating to an enforcement of INCOTERMS in thai court : Transfer of risks under the contract for international sale of goods

Abstract

In the contract for international sale of goods, if there is any disaster occurred to goods during transportation which cannot blame anyone, problem of which party should be suffered from such consequence from the disaster is not yet settled. Because during the time that such goods were destroyed and loss or damaged, the goods were on transportation period not in seller and buyer’s possession with their cares. Therefore, finding legal reason which could create fairness and in accordance with international trade conditions including international trade customs in order to acknowledge the transfer of risks principle in law of each country that enforce such case is still problematic. As a result, trade regulations such as INCOTERMS has a role in regulating a point in time of transferring risks in international sale of goods, governing sales and international transportation besides choosing substantive law of a specific country in enforcing substance of relating contract.

Considering from Thailand’s perspective, although Thailand trades with foreign countries result in increase of import and export value each year, many disputes relating to contract for international sake of goods arise. At the moment Thailand has no specific law governs disputes in international law, particularly legislation that would acknowledge status of INCOTERMS which is an important trade regulation with international acceptance.

Currently, Thailand does not have specific law acknowledging status of INCOTERMS to govern disputes relating to INCOTERMS on a matter of transferring of risks under the contract for international sale of goods. In addition, Thailand is not a party to the United Nations Convention on Contracts for the International Sale of Goods or CISG. Therefore, Thailand has to apply the Commercial Code which is a domestic law in dealing with disputes relating to INCOTERMS on a matter of transferring of risks under the contract for international sale of goods which could result in problem arises from applying such law. Due to the fact that the Commercial Code is enacted in order to apply mainly with domestic juristic act, conflict and inconsistence with international trade custom could arise, transferring of risks in goods in particular

In order to solve such problem, researcher proposes that a special act which has identical substance with CISG Convention should be enacted to solve such problem, to solve the problem of INCOTERMS status acknowledgement to be legally enforceable.