Research On The International Export Credit Law

Export credit is a kind of financing approach to support the export ofmechanical equipment, export credit agency directly provide lower rate loans tonational exporters or foreign importers(or its bank) or insurance and guarantee orrate subsidies to promote bank's mid-long term loan for them, aims to solveexporters' cash flow problems and meet importers' payment requirements. Withthe development of the international economy and trade nowadays, Theinternational export credit law is also a kind of political mean to take place othertrade protection policies, especially customs duty policy, and to promotedomestic export and achieve the national economic, political and diplomaticstrategies. However, countries provide credit for exporters in lower rate andlonger credit terms, it leads to the trade war and credit war. Normal transactionenvironment is destroyed, the trade order is out of balance, the internationalsociety is in confusion. Export credit is from a fmancing approach to promotecommodity export and foreign investment to a measure of distorting the tradefreedom and prick up the world or regional economic crisis. So countries have tofind ways to harmonize the policy of export credit. The Berne Union, OECD,WTO and MIGA are organizations for it. In background of economic globalation,trade freedom and closed economy relationship between countries, the researchon the international export credit law is necessary.The regulated object, resource form and developing history of internationalexport credit law is the basis theory problems. The international export credit lawis an international law for credit relationships within the international community,and an important branch of the International Economic Law. With its inherentinner connection, the subject, the regulated object, scope and concerned legalnorms of the international export credit law possess features differing from those of the other legal departments. Sources of the international export credit lawinclude international custom or practices, and international treaties. Moreover,given that the treaty law hasn't formed an integrated system and the practice ofthe international export credit hasn't fully evolved into the rules of customaryinternational law in the current field of the international export credit law,relevant international judicial precedents are particularly important to thedevelopment of the international export credit law, which starves for beingsupplemented and improved by judicial precedents as well. Therefore,international judicial precedents related to the international export credit are alsoan important auxiliary source for the international export credit law. Theinternational export credit law system is coming into being.The Berne Union is the earliest form to harmonize the export credit policiesamong various countries. Due to the confidentiality, many of the rules of theBerne Union still keep unknown by now. But the veil of confidentiality does nothide the Berne Union regulations entirely, people can still fred some regulationsto share. There are agreement in 1953, statement in 1961 and GeneralUnderstanding in 2001. Agreement in 1953 confirms the length of export credit,provide the five year of repayment terms for capital goods. Statement in 1961amends agreement in 1953, stipulates five years repayment terms for capitalgoods export credit of agreement in 1953 only fits for sellers, not buyers. Thatexposes the shortage of Berne Union for harmonizing the policy of export credit.General Understanding in 2001 includes contents such as general discipline,sector agreements, reporting and exchange of information, matching and so on.The Understanding is a representative for Berne Union to adapt to the trend ofeconomic globalation. The Berne Union regulations tend to evolve intocustomary international law and gain the status of the international law. The forceof the rules of the Berne Union is rooted in the nature of practice of the rules, thecultural feature of the "club" style, the informal enforcement mechanism, thetransparent notice procedure and the matching measures with remedy of theBerne Union. The Berne Union is regard as a lawmaking group, it means theBerne Union is not only a international trade association or a international forum of technic knowledge for export credit, but also a negotiation place forharmonizing the policy of export credit in different countries and manage to lawframe of international export credit regulations.OECD is the second organization form to harmonize the export creditpolicies. The OECD has made great contributions on dealing with affairs of theexport credit and its insurance or guarantee, coordinating the international exportcredit policies of each country, formulating international laws of the export credit,and made lots of innovation in many of these fields. Its international polices andlaws of the export credit are improved continuously: there are general rulesapplicable to the export credit of ordinary products, and specific rules applicableto special products such as the ship, civil aircraft, nuclear power plant, etc. andalso special rules applicable to fields of the international environmentalprotection and anti-corruption, etc. which are closely related to the export credit.The OECD particularly formulated the rules on the international environmentalprotection and anti-corruption, which not only indicates that the OECD has paidattention on some global problems emerged in the process of globalization, butalso demonstrates that the OECD has extended the scope of the internationalexport credit laws and rules from the original simple field of the export credit toother new fields related to the export credit such as problems of the environmentand anti-corruption. Originally, the OECD Agreement has no legal binding force,but the continuously observation by the participants and even non-participants inwide range endows it the legal binding force in fact. The OECD agreement haspossessed some natures similar to those of the international laws. Furthermore, ithas been elevated to the status of a real international law in certain circumstances.The OECD agreement is similar to a legislation form of merchant law-customary international practice, which tends to develop and evolve intocustomary international law. The success of the OECD agreement should beattributed to the characteristics of its gradual innovation process, uniqueoperation procedure and loose sources, and etc. It is exactly because of many ofits own features that provide the OECD Agreement itself with legal force.WTO is the third organization form to harmonize the export credit policies. Enactment of the Countervailing rule by the WTO leads the international exportcredit law into a new stage of making law through multilateral internationaltreaties. The export credit, in fact, is a kind of hidden export subsidy, which isrestricted by the Subsidies and Countervailing Measures (SCMA). Reached inApril, 12, 1979, the Subsidies and Countervailing Measures stipulates new ruleson the export credit, the export credit guarantee or insurance. The Subsidies andCountervailing Measures deems the export credit interest rates, given by thegovernment or the institutions controlled or authorized by the government, lowerthan its practical fund cost as prohibited export subsidies, but this "prohibition"contains an important exception, i.e. in case the interest rate is in line with theinterest rate level stipulated by the Gentleman Agreement of the OECD, it cannotbe deemed as an export subsidy. The relationship between the SCMA and theOECD Arrangement demonstrates that the international rules are learning andabsorbing from each other. As to whether introducing the Gentleman Agreementof the OECD into the agreement of the WTO, from the proposals on the exportcredit rule in the new round negotiations of each country, when the developingcountries think they agree to introduce the Gentleman Agreement of the OECDinto the agreement of the WTO, they only agree to accept relevant rules of theGentleman Agreement at the establishment of the Marrakesh Agreement, they donot give up the right of amending the text of the WTO agreement. However, whatis the expert panel's interpretation is when considering the export credit whetherprohibited by the Agreement, not only the interest rate rules of the GentlemanAgreement at the end of the Uruguay Round Negotiation, but also the relevantinterest rate rules of the existing Gentleman Agreement at the time of providingfinancing support should be referred to. This does violate the sovereignty of thedeveloping countries and is not in conformity with the development purpose ofthe Doha Round. Nevertheless, compared with the negotiation power, althoughthe power of the developing countries is growing, the developed countries stilloccupy a dominant position, and therefore, the amended Gentleman Agreementmay still be accepted into the WTO agreement.MIGA is the fourth organization form to harmonize the export credit policies. It is established under the organization of the World Bank and aninternational organization which aim is to promote international investment.Overseas investment, especially the investment of big projects (oftenaccompanied by the export of large scale set equipment) always needs thenational export credit support for its long tem and slow reward. Therefore, theinsurance of overseas investment is a very important part of the mid-and-longterm export credit insurance, but it differs from the general mid-and-long termexport credit insurance. The insurance objective of the former is general goods;the insurance objective of the later is special goods (capital). MIGA is the onlyexisting international institution exclusively targeted on the overseas investmentinsurance, As an international organization, members of the MIGA have "dualidentity". This dual identity is particularly important to the developing countries,which benefit for the settlement of investment disputes. The MIGA mechanismdiffers from any other kind of state-owned insurance mechanism. Compared tothe bilateral system, the MIGA regulations have great differences in serviceobjective, insurance capability, promoting investment etc. The MIGA is aninvestment promotion institution other than a simple investment insuranceinstitution with special emphasis on the promotion effect to the economicdevelopment of the developing countries, which demonstrates its nature ofdevelopment. MIGA system has its unique advantages,The trend of the international export credit law and the revelations forChina is the end result of research on the international export credit law. Thedevelopment trend existing in the international export credit law is: theinternational export credit law system is coming into being. As to the Form, theinternational export credit legal system has begun to appear its early frame. TheBerne Union rules, the Arrangement of the OECD and multilateral guaranteeinstitution treaties have respectively regulated the export credit in the three fieldsof the short-term export credit insurance, mid-and-long term export credit and theoverseas investment insurance. Although this form is immature, yet itsdevelopment is in good trend; As to the content, the international export creditlaw is constantly expanding its areas from the traditional fields of the export credit financing, guarantee and insurance to the new fields of the environmentalprotection, anti-corruption etc. which related to the export credit; As to therelationship between rules, the international export credit laws are absorbing andtransforming from each other. No matter are the export credit rules of the BerneUnion absorbed by the OECD or are the export credit rules of the OECTborrowed by the WTO, we can see the mutual absorption and transformationbetween international export credit laws. Moreover, countries have transformedthe OECD Arrangement into their domestic laws one after another, whichdemonstrates the rules of the international laws are absorbed by and transformedinto the rules of the domestic laws; As to the nature, the international exportcredit law is transforming from soft law into hard law. The revelations for Chinaare as follows: the construction of the Chinese export credit system. Based on thelegislation form: the form of independent legislation should be adopted, and theExport-import Bank Law of China and the Export Credit Insurance Law shouldbe enacted respectively; based on the specific contents of the legislation, severalproblems should be emphasized as followed: to clarify the legal attribute or thenature of the export credit institutions of China; to greatly promote nationalcorporations to make direct overseas investment; to push the export of new andhi-tech products; to establish export financing guarantee for small andmiddle-sized business; to increase the support for the import financing, and topromote commodity export and foreign investment through export credit.