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 the electronicization of international business have led to profound changes in many aspects of international commercial law. In light of this, we have revised this textbook to meet the new teaching needs of international commercial law. 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, transport 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 fields, such as transport and insurance. Additionally, international commercial law intersects with the content of other disciplines, such as international sales of goods law, international transport 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. Moreover, with the rapid development of international economic and trade activities, especially the emergence of e-commerce, traditional international commercial law contract law can no longer fully adapt to the changing realities. 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 the aspects related to company law, including the procedures for company formation, capital raising, forms of company 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 risk of goods under both civil law and common law systems.
Chapter 5: Product Liability Law
Mainly introduces the theories and legal provisions regarding product liability in the United States and Western European countries.
Chapter 6: Agency Law
Mainly introduces the civil law and common law provisions regarding the creation, 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 versions of textbooks vary in their focus and content. Therefore, the system of international commercial law requires further research and standardization, and the content it encompasses 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 the superstructure and economic base, as a legal superstructure, the development of law is based on the economic base, and the continuous development of the economy makes the existing legal system inadequate, necessitating supplementation and development, thereby giving rise to new legal branches. International commercial law is a legal discipline that has been established and developed alongside the advancement of human society's production, with the increasing frequency and depth of international economic and trade exchanges. When studying international commercial law, one must first conduct a historical examination of its origin 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 being particularly noteworthy. This involves a series of legal issues that require corresponding legal adjustments and regulations.
Second, although some concepts in international commercial law may be considered "outdated," such as "consideration," they played a very important role in history and are indispensable in the study of contract law. 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, it is also important to have some understanding of the old contract law, as it was a product of its historical context and played a significant role at the time.
(2) Comparative Analysis
International commercial law is a specialized legal course that primarily employs comparative law to introduce the two legal systems of the West—the civil law and common law systems—along with the legal provisions concerning commercial matters in both systems, as well as international conventions and trade practices 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 uses comparative law, which involves 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, and their legal provisions in many aspects of international commercial law differ, with more differences than similarities. However, when it comes to specific issues, it is not absolute; one must analyze specific problems on a case-by-case basis. For example, in the timing of the effectiveness of an offer, 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 always consistent, such as in the issue of the transfer of ownership and risk of goods. If students can pay attention to summarizing and these similarities and differences during their studies, they will gain a deeper understanding of the essence of international commercial law.
In simple terms, when engaging in foreign economic and trade activities, one inevitably encounters various legal issues, such as what remedies are available when one party breaches a contract, when the ownership and risk 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 practices that provide regulations at the international level. These are all content that should be studied and mastered.
(3) Connecting with Reality
This course is a foundational one, and its teaching objective is 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 some appropriate case studies are conducted in connection with the actual situation, they can help in understanding the course content. At the same time, students should consciously apply the knowledge they have learned to real-life problems, such as the various issues related to contract law that are frequently reported in the media. By doing so, they can think independently and analyze problems, which is sure to yield results.
(4) Development and Change
Since the 1990s, international commercial law has undergone significant changes in both content and form, affecting almost every chapter of this book:
- The international merger and acquisition trend has increased the influence of multinational corporations, 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 rulings on e-commerce-related trademark law, patent law, and copyright law have established important rules and methods.
These trends are worth noting and must be continuously tracked and studied to keep pace with the new developments 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 be familiar with China's foreign economic and trade policies, strategies, and import/export business. Additionally, it is essential to have a basic understanding 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 leads to discrimination, and discrimination leads to selection. Learning from and borrowing foreign laws is to supplement and improve China's legal system and to quickly align with international laws and regulations, which is beneficial for reform and opening-up and economic development.
It must be emphasized that the writing of this book is based on existing domestic research achievements and represents a kind of "renovation": the framework remains unchanged, the house stays the same, but the doors, windows, bricks, and floors are dismantled, renovated, and 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. The sources of these materials can be found in the "Main Reference Books" 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 developed and changed, and adding new content related to China's legislation to each chapter.