Different route in incorporation of the Incoterms

The Rules of Incoterms 2010, like the previous edition of Incoterms, are not international law terms like the 1980 Vienna Convention on Contracts for the International Sale of Goods. Initially, the Incoterms rules appeared as a result of systematization and unification of the accepted practices of international trade conducted by the International Chamber of Commerce (hereinafter — the ICC). This explains the specifics of the application of the Incoterms rules in most countries. Countries never officially recognized the rules of Incoterms in any way. International trade participants apply them for their own convenience, transparency of business relations in order to avoid misunderstanding. At the same time, the rules are not mandatory. They are applied only if parties to a transaction agree to do this. However, Ukrainian legislators opted for a different route. The Incoterms rules have been incorporated into legislation. Moreover, pursuant to the provisions of Article 265 of the Commercial Code of Ukraine and other acts of the national legislation, the Incoterms regulations are mandatory for agreements on goods supply concluded by residents of Ukraine. However, as determined by the Higher Commercial Court of Ukraine in its Resolution No.29/375-07 of 25 December 2007, failure to apply the Incoterms rules does not entail invalidity of an agreement. Participants of business relations are not liable for the failure to use the Incoterms in foreign trade agreements either. According to the letter of the Ministry of Economy No.4201-24/939 of 10 June 2011, business entities may conclude agreements applying the Incoterms rules in any edition as agreed upon by the parties of such agreements, including the ICC Rules on the use of terms for domestic and international trade in the wording from 2010 that became applicable starting on 1 January 2011. In our country, the Incoterms rules were published in official publications, such as Uriadovy Kurier, which caused some complaints by the international community concerning violations of the ICC copyright by our country. However, according to a later agreement with the ICC, the new version of Incoterms 2010 has been translated and currently it is legitimately distributed in the country.