Newly Compiled International Business Law

Author: Cao Zuping
Publisher:
Publish Date: 2004-10-01
Features: International commercial law is continuously evolving alongside the development of international economic and trade activities. Since the 1990s, the characteristics of international economic integration, regional economic blocs, knowledge-based economic development, and electronic international business have led to profound changes in many aspects of international commercial law. In light of this, to meet the new teaching needs of international commercial law, we have revised and rewritten this textbook. Here are two points of explanation.
1. On the System of International Commercial Law
International commercial law covers a broad scope, including contract law, sales of goods law, product liability law, agency law, commercial organization law, negotiable instruments law, transportation law, insurance law, intellectual property protection law, and commercial arbitration law, among others. Each of these "laws" can be studied as an independent discipline. In practice, some have already been separated into specialized subjects, such as transportation and insurance. Additionally, international commercial law intersects with the content of certain disciplines, such as international sales of goods law, international transportation and insurance law, international technology transfer law, and international commercial arbitration law, which share similarities with international trade law, international economic law, and private international law. Furthermore, with the rapid development of international economic and trade activities, especially the emergence of e-commerce, traditional international commercial law contract law has become inadequate in adapting to changes in actual circumstances. Based on these considerations, this textbook includes the following nine chapters:
Chapter 1: Introduction to International Commercial Law
Briefly introduces the sources of international commercial law and its relationship with related legal systems, the general overview and differences between the civil law and common law systems, and the principles of international commercial law.
Chapter 2: Commercial Organization Law
Mainly introduces matters related to company law, including the procedures for company formation, capital raising, forms of business organization, management structures, and legal provisions concerning mergers, acquisitions, and liquidation.
Chapter 3: Contract Law
Briefly introduces, from a legal perspective, the conditions for contract formation, the performance of contracts, and remedies for breach of contract under both civil law and common law systems.
Chapter 4: International Sales of Goods Contract Law
Further introduces, from the perspective of international trade, the conditions for contract formation, the performance of contracts, remedies for breach of contract, and legal provisions concerning the transfer of ownership and risks of goods under both civil law and common law systems.
Chapter 5: Product Liability Law
Mainly introduces the theories of product liability in the United States and Western European countries, as well as the relevant legal provisions.
Chapter 6: Agency Law
Mainly introduces the civil law and common law provisions concerning the emergence, types, and internal and external relationships of agency.
Chapter 7: Negotiable Instruments Law
Introduces the legal provisions of the two legal systems related to the circulation of negotiable instruments, with a focus on the different legal provisions concerning bills of exchange.
Chapter 8: Intellectual Property Protection Law
Introduces the legal provisions of various countries concerning trademark law, patent law, and copyright law, as well as the new provisions of WIPO.
Chapter 9: International Commercial Arbitration Law
Mainly introduces the arbitration agreements and clauses, arbitration institutions and procedures, and legal provisions concerning the enforcement of arbitration awards related to international commercial arbitration.
To date, there is no universally recognized unified system for international commercial law, and different editions of textbooks vary in emphasis and content. Therefore, the system of international commercial law requires further research and standardization, and the content included needs to be refined and determined.
2. On the Research Methods of International Commercial Law
Studying international commercial law requires a solid foundation in civil and commercial law, as well as in the theory and practice of international trade. At the same time, mastering the necessary research methods is essential. These methods include:
(1) Historical Context
From the perspective of superstructure and economic base, as the superstructure, law develops based on the economic base, and continuous economic development makes the existing legal system inadequate, necessitating supplementation and development, thereby creating new legal departments. International commercial law was established and has continued to evolve as human production developed to a certain stage, with increasingly frequent and in-depth international economic and trade exchanges. To study international commercial law, one must first conduct a historical examination of its emergence and development to understand its developmental patterns. Since the 1990s, many aspects of international commercial law have undergone significant changes, greatly enriching its content, with contract law changes being particularly noteworthy, involving a series of legal issues that require corresponding legal adjustments and regulations.
Second, some concepts in international commercial law may be considered "outdated," such as "consideration." However, consideration played a very important role in history and is indispensable in contract law literature. Therefore, understanding consideration is essential to understanding the basic historical context of contract law.
Finally, China's contract law has also undergone significant changes, with the new contract law replacing the old one. However, some content of the old contract law should still be understood, as it was a product of a specific historical background and played a significant role at the time.
(2) Comparative Analysis
International commercial law is a specialized legal course, primarily using comparative law to introduce the two legal systems of the West—the civil law system and the common law system—along with the legal provisions concerning commercial matters in both systems, as well as international conventions and trade customs related to international economic and trade activities. Through this course, students can understand and master the basic legal knowledge required for engaging in international economic and trade activities.
International commercial law employs comparative law, comparing the similarities and differences in laws across countries. Overall, due to differences in history and culture, civil law and common law are two distinct legal systems in the West, differing significantly in many aspects of international commercial law, with more differences than similarities. However, when it comes to specific issues, it is not absolute; specific issues must be analyzed on a case-by-case basis. For example, in the timing of offer effectiveness, France (a civil law country) and Germany (another civil law country) do not agree, yet both align with common law. Conversely, within common law, the United States and the United Kingdom are not entirely consistent in some aspects, such as the transfer of ownership and risks of goods. If students can pay attention to summarizing and these similarities and differences in their studies, they can gain a deeper understanding of the essence of international commercial law.
In simple terms, in the process of engaging in foreign economic and trade activities, it is inevitable to encounter various legal issues, such as what remedies are available when one party breaches a contract, when the ownership and risks of goods transfer, and how to handle forged endorsements of bills of exchange. On one hand, each country has corresponding laws to regulate these issues. On the other hand, there are also relevant international conventions and trade customs that provide regulations. All of this content is essential to learn and master.
(3) Connecting with Reality
This course is a foundational one, with the teaching objective being to learn and master the basic knowledge related to international commercial law, i.e., the fundamental legal provisions or statutes, rather than focusing on case studies. The reason is straightforward and easy to understand: case studies involve basic professional knowledge of civil and commercial law. Practical experience has shown that case studies conducted without this foundational knowledge clearly exceed the scope of this course, either distracting from the main objective or leading to hasty and ineffective results.
However, not focusing on case studies does not mean avoiding them entirely. If appropriate case studies are conducted in connection with real-world situations, they can help understand the course content. At the same time, students can consciously apply the knowledge they have learned to real-life problems, such as the various issues related to contract law frequently reported in the media, to practice what they have learned and conduct independent thinking and analysis. It is believed that this approach will yield meaningful results.
(4) Development and Change
Since the 1990s, international commercial law has undergone significant changes in both content and form, continuing to evolve. These changes affect almost every chapter of this textbook:
- International mergers and acquisitions have increased the influence of multinational companies, prompting the need for necessary control and regulation, which has now been placed on the agenda of the WTO.
- E-commerce and online transactions are transforming traditional contract law, sales of goods law, agency law, and negotiable instruments law.
- Traditional product liability law, which only covered the production and sale of products, has been expanded by Western developed countries to include product recovery (mainly for electrical and electronic products) due to growing environmental awareness.
- U.S. federal court decisions on e-commerce-related trademark law, patent law, and copyright law have established important rules and methods.
These developments are noteworthy and require continuous tracking and research to keep pace with the new trends and changes in international commercial law.
The purpose of this textbook is to provide a basic discussion of the main content of international commercial law, enabling students to understand its fundamental concepts and legal provisions, and laying a foundation for further study of international commercial law.
There are two fundamental objectives in studying international commercial law:
(1) For those studying international economic and trade majors or related knowledge, it is not only necessary to understand the basic theories of international economic and trade but also to familiarize themselves with China's foreign economic and trade policies, strategies, and import/export business. Additionally, it is essential to understand the basic knowledge of international commercial law to adapt to the "rules of the game" under the legal framework after China's entry into the WTO, and to more consciously use legal tools to protect their own interests.
(2) Since international commercial law is a comparative law course, comparison is essential for differentiation, and differentiation is necessary for selection. Learning and foreign laws aim to supplement and improve China's legal system and facilitate alignment with international laws and regulations, thereby promoting reform, opening up, and economic development.
It must be emphasized that the compilation of this book is an "renovation" based on existing domestic research achievements: the framework remains unchanged, the structure is the same, but the doors, windows, bricks, and floors are dismantled and rebuilt, repainted to give a fresh impression. In other words, this book is a comprehensive and complementary product of domestic textbooks and publications, each with its own unique characteristics. These sources are listed in the "Main Bibliography" at the end of each chapter.
The main "renovation" work of this book focuses on keeping the content up-to-date: appropriately adjusting some traditional chapters, further elaborating on key and difficult points, supplementing and updating several areas that have evolved, and adding new content related to Chinese legislation to each chapter.