International commercial transactions

Author: (American) Gordon
Publisher:
Publish Date: 2005-10-01
Features: In the field of American legal education and legal practice, the "Nutshell Notes" series is quite distinctive. The most prominent feature of these books is their simplicity and clarity. Each book is written by experienced law professors, introducing the basic principles, main regulations, and key cases of a specific legal department within 300 to 400 pages. Due to these characteristics, the series has been widely welcomed and loved by countless American readers. Many law students use these books as supplementary materials outside of class, thereby mastering the essence of major legal departments in the United States. Practicing lawyers also frequently rely on these books to quickly familiarize themselves with legal departments they are not yet proficient in or to review courses they have previously studied. It is believed that this series will also win the favor of domestic readers. Whether they are undergraduate or graduate students in law, practicing lawyers, or other individuals, everyone can gain a wealth of knowledge about American law from this series, which will be beneficial to their studies and work. Additionally, learning American law through authentic English should also improve readers' legal English proficiency and facilitate direct communication and exchange with American peers. Xu Chuanxi: J.D. from Harvard University Law School; Ph.D. in Social and Cultural Anthropology from Yale University; currently serves as Dean, Professor, and Doctoral Supervisor at the Sino-American Law School of China University of Political Science and Law. This book is a condensed version of the American law school textbook "International Business Transactions," authored by three American law professors: Ralph Folsom from the University of San Diego, Mike Gordon from the University of Florida, and John Spano from George Washington University. The seventh edition of the condensed version of "International Business Transactions" is being released in China. To include developments from 1991 to 1995, the condensed version was divided into two books during its fourth revision: "International Business Transactions" and "International Trade and Economic Relations." The revised "International Business Transactions" primarily covers topics such as international trade, the use of letters of credit, e-commerce, technology transfer, foreign investment transactions, EU competition law, antitrust law, international commercial litigation and arbitration. "International Trade and Economic Relations" primarily addresses government regulation of trade, the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO), free trade agreements, customs unions, economic integration, and the EU and the North American Free Trade Agreement (NAFTA). The authors, with their rich teaching experience, begin with a case study to first present the various stages of international business transactions to the readers. Then, they explain the legal issues involved in international business transactions in a simple and concise manner, enabling readers to grasp the international conventions and U.S. domestic laws related to international business transactions within a short period. Many first-year law students in the United States often believe that the Uniform Commercial Code (UCC) applies to all trade contracts, both domestic and international. This book informs readers that, since the United States has ratified the 1980 United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as the "Convention"), transactions between U.S. parties located in different contracting states and contracting state parties should be governed by this convention. The United States made a reservation to Article I, paragraph 1, sub-paragraph b of the convention regarding its extension through private international law. As of July 1, 2004, 62 countries had joined the convention, and several others were seeking to join. Therefore, the convention is one of the most influential conventions in the field of international trade in goods. The convention was drafted under the auspices of the United Nations Commission on International Trade Law, which also drafted the 1985 Model Law on International Commercial Arbitration and the 1996 Model Law on Electronic Commerce. In a concise manner, the authors not only elaborate on the main content of the convention but also compare it with the UCC and provide case studies. The content of certain chapters covers contract interpretation, contract formation, the responsibilities of sellers and buyers, remedies for breach of contract, risk transfer, trade terms and their application, international payments, and the use of letters of credit. China and the United States are both parties to the 1980 convention, and the United States is China's largest trading partner. The content of this book will be helpful for Chinese readers to understand the laws applicable to U.S. international trade in goods and to understand the U.S. stance on the relationship between the convention, domestic law, and international customs. Chapter 3 of this book is about technology trade and intellectual property protection. The content first addresses the content of the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS Agreement is one of the final documents of the Uruguay Round negotiations under the General Agreement on Tariffs and Trade (GATT) and was signed by representatives of various countries in Marrakesh, Morocco, on April 15, 1994, and entered into force on January 1, 1995. When the General Agreement on Tariffs and Trade was first signed in 1947, intellectual property was only briefly mentioned in a few minor provisions, with the purpose of ensuring that trade liberalization would not hinder the exercise and protection of intellectual property rights. However, there were no specific provisions for intellectual property protection at that time. Since the 1960s, as developing countries began to participate in international market competition, the disparity in intellectual property protection levels between developed and developing countries led to an increasing number of trade disputes arising from intellectual property issues. These disputes expanded from trademark rights to copyright and neighboring rights. When the Uruguay Round negotiations of the General Agreement on Tariffs and Trade began in 1986, the United States strongly demanded that intellectual property protection be included on the agenda. The U.S. position was supported by the European Economic Community (EEC) members, Canada, Japan, Australia, and New Zealand, which have similar economic and intellectual property levels, while developing countries opposed it. Although most countries strongly opposed it, some emerging industrial countries in Southeast Asia supported the U.S. position, hoping to establish certain rules, particularly minimum standards for intellectual property protection and a multilateral dispute resolution system, to prevent the United States from taking unilateral sanctions actions due to their weak intellectual property protection. In the end, the agreement was passed. Prior to this, the United States had repeatedly conducted intellectual property investigations on its trading partners through its domestic legislation, "Special 301," and forced them to accept U.S. intellectual property protection standards through negotiations, or else imposed unilateral sanctions. This chapter briefly introduces the content of the TRIPS Agreement, as well as international protection of patents, trade secrets, trademark protection, copyright protection, piracy issues, and the Special 301 process. Given the prominence of intellectual property protection issues in Sino-U.S. trade, it is particularly necessary to study and learn about these topics. The content of this book can help readers gain a preliminary understanding of the framework and sensitive attitudes of the United States toward intellectual property protection in trade-related matters. After introducing U.S. trade law, the author turns to the issue of foreign capital investing in the United States. Historically, the United States has maintained an open attitude toward foreign capital investing in the United States. However, this traditional openness toward foreign investment has recently faced challenges, leading the United States to pass legislation to block foreign takeovers of U.S. companies under the guise of "national security." National security investigations have been used to block transactions where Chinese companies attempted to acquire U.S. companies producing aircraft parts and technology. Therefore, it is essential for Chinese readers to understand the relevant content. Although the United States does not have a comprehensive regulatory law specifically targeting foreign investment, certain industries and limited sectors, such as insurance, credit, communications, aviation, shipping, and banking, are subject to regulations on foreign investment under existing U.S. laws. Chapter 4 of this book provides a detailed introduction to the current situation of international investment and related legal issues. Chapter 5 addresses the risks of expropriation or nationalization of U.S. overseas investments by foreign governments and the legal issues related to compensation. Additionally, the book covers EU competition and antitrust law, as well as the resolution of international commercial disputes. The book explains domestic resolution of international commercial disputes, recognition and enforcement of foreign court judgments, choice-of-law clauses, court selection, international commercial arbitration, and U.S. law on arbitration. As a teacher of international economic law in a Chinese law school, I deeply feel that there has been a tendency in academia in recent years to complicate simple issues, as if simple introductions are a sign of a lack of scholarship. The condensed version of "International Business Transactions" is straightforward and clear, and I believe it should also be a favorite legal professional book for modern legal practitioners in fast-paced society. This preface is for the Chinese version of "International Business Transactions." "International Business Transactions" is one of the photocopied series of "Nutshell Notes."