Newly Edited International Business Law 21st Century International Economics and Trade Series Textbooks (Second Edition)

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 group formation, the knowledge-based economy, and the electronicization of 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, encompassing 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 changing realities. Considering these factors, 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, an overview of the common law and civil law systems and their differences, as well as the principles of international commercial law.
Chapter 2: Commercial Organization Law
Primarily introduces aspects 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, contract performance, 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, contract performance, 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
Primarily introduces the theories of product liability in the United States and Western European countries, as well as relevant legal provisions.
Chapter 6: Agency Law
Primarily 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 concerning the circulation of negotiable instruments, with a focus on the different legal provisions related to 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 new provisions under the WTO.
Chapter 9: International Commercial Arbitration Law
Primarily 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 textbook editions vary in emphasis 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 continuous economic development has made the existing legal system inadequate, necessitating supplementation and development, thus giving rise to new legal branches. International commercial law is a legal discipline that has emerged and developed alongside the advancement of human society's production, 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 origins and development to understand its patterns of growth. Since the 1990s, many aspects of international commercial law have undergone significant changes, greatly enriching its content, with contract law changes being particularly notable. This involves a series of legal issues that require corresponding legal adjustments and regulations.
Secondly, 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.
Lastly, 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 served a significant role at the time.
(2) Comparative Analysis
International commercial law is a specialized legal course whose primary task is to use comparative law to introduce the two legal systems of the West—the civil law system and the common law system—and to present the legal provisions related to commerce in both systems, as well as international conventions and trade customs concerning 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, 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, this is not absolute. Specific issues must be analyzed on a case-by-case basis, as there are often similarities within differences and differences within similarities. 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, but both align with common law. Conversely, within common law, the United States and the United Kingdom may also differ in certain aspects, such as the transfer of ownership and risk of goods.
If students can pay attention to summarizing and these similarities within differences and differences within similarities 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, legal issues of various kinds are inevitable. For example, when one party to a contract breaches it, what remedies are available to the other party? When does the ownership and risk of goods transfer? How should forged endorsements on bills of exchange be handled?
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 to 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 reality, they can help deepen the understanding of the course material. 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 that are frequently reported in the media. By doing so, they can think and analyze independently and achieve meaningful 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 textbook. International mergers and acquisitions have increased the influence of multinational corporations, prompting the need for necessary control and regulation, which has now been brought to the agenda of the WTO. E-commerce and online transactions are reshaping 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 (primarily 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 developments are worth noting and must be continuously tracked and studied 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 in this field.
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 policies, measures, and import/export business related to foreign economic and trade. 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 is necessary for differentiation, and differentiation is necessary for selection. Learning from and borrowing from foreign laws is aimed at supplementing and improving China's legal system and accelerating alignment with international laws and regulations to facilitate reform, opening up, and economic development.
It must be emphasized that the compilation of this book is based on existing domestic research achievements and represents a kind of "renovation": the framework remains unchanged, the house is still there, but the doors, windows, bricks, and floors have been 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 distinctive features, the sources of which are listed 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 in each chapter.