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TEXT 5. COMMERCIAL TREATY AND INTERNATIONAL COMMERCIAL LAW
The commercial treaty between countries, which refers to an international treaty between two countries for dealing with the trade and commercial matters of their concern, has been one of the major sources of international commercial law. It was the most effective means of protecting mutual commercial interests between countries before the Second World War, and is still widely used by countries today.
The commercial treaty was used in the Roman Empire and Ancient Greece to deal with commercial relationships between countries. Treaties were made between Athens and other countries to secure imports of corn and other necessities. For example, a treaty between Athens and Leucon I of Bosporus was made in the middle of the fourth century. It exempted from import duty the ships of Bosporus merchants, which carried corn to Athens, and guaranteed them priority in unloading ships in Athens. This treaty appeared to be more like a concession made by Athens to Bosporus than a commercial treaty granting reciprocal benefits to the parties. A similar treaty was later made between Athens and Parisades of Bosporus. There were also treaties between other cities, such as the Treaty of Alliance of 389 to 383 BC between Amyntas of Macedon and the Chalcidian cities, the commercial treaty between Mytilene and Leucon I of Bosporus, and the commercial treaty between the cities of Ceos and Histiaa, which were, to some degree, concerned with the import and export of goods between them.
The commercial treaty was also used as a means to resolve the conflict of commercial interests, granting commercial benefit, between Mediterranean countries before the Middle Ages. In 1082, 'Emperor Alexius I sought military aid from Venice - in exchange for exempting Venice from the normal 10 percent customs duty'. In 1177, Genoa entered into a treaty of commerce with Egypt, under which Genoa enjoyed a number of trading privileges. The specific terms of these treaties are not the real concern of our study. The fact that, as early as the eleventh century, Mediterranean countries resorted to treaties (although these may not have been 'commercial treaties' in the modern sense) for defining their trading relationships and dealing with commercial disputes, is important for an understanding of the history of international commercial law.
Commercial treaties were used widely in the history of England to deal with commercial relationships between England and other countries. The earliest 'bilateral commercial treaty' entered into by England was the commercial treaty with Norway in 1217, although the treaty of King Offa II of Mercia and Charlemagne of 795 granted German merchants physical protection in return for gifts to the King. In 1388, a commercial treaty was entered into between England and Prussia. It dealt with the English merchants' access to the local market in the Prussian town of Danzig. This treaty was followed by the commercial treaties of 1408 and 1437 between the two countries, recognising explicitly 'reciprocity in trading rights'. The trading relationships between England and the Hanseatic countries fluctuated between 1300 and 1700. During the seventeenth and eighteenth centuries, England had a number of trade treaties with the Dutch and the Portuguese.
The Treaty of Commerce and Navigation was commonly used in the nineteenth century between England and other countries. Although a Treaty of Commerce and Navigation between England and Denmark was made as early as 1660, it could be argued that it was the 1860 Treaty of Commerce and Navigation between England and France which began a new era in the history of international commercial law, in which the bilateral treaty became an important means of defining the commercial relationships between countries. The so-called free trade policy was the essential characteristic of the English-French Treaty of Commerce and Navigation. The Treaty even led to the French adopting more free and liberal commercial policy within the country. Another feature of the English-French Treaty was the incorporation of the most favoured nation (MFN) clause. In the late eighteenth century a number of Treaties of Commerce and Navigation had been made between England and other European countries. As at 31 July 1879 England had entered the Treaty of Commerce and Navigation with 43 countries. Most of these treaties contained an MFN clause. The Treaty of Commerce and Navigation established an important precedent, i.e. the MFN clause, for the present-day bilateral treaties of trade and commerce.
After the Second World War, commercial treaties entered into a new era of development. A new form of treaty, the treaty of friendship, commerce and navigation (FCN), was developed between the United States and a number of its trading partners. This form of treaty was based on the earlier model of the treaty of commerce and navigation, but extended treaty protection to a number of areas which do not fall within the traditional categories of foreign trade, such as foreign investment and foreign corporations. This form of commercial treaty has now been replaced by many special types of commercial treaties between countries. Due to extensive international cooperation in the area of international trade and commerce and the existence of many international conventions on trade and commerce, countries have directed their attention to more specific issues in bilateral treaties, such as taxation, investment, copyright or technology cooperation. Bilateral treaties on specific issues form an important part of international commercial law.