International Commercial Transactions (7th Edition)

Author: (USA) Folsom
Publisher:
Publication Date: 2005-10-01
Features: This book is a concise edition 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 Spanogle from George Washington University. The edition released in China is the seventh concise edition of "International Business Transactions." To include developments from 1991 to 1995, the concise edition was split 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" focuses on 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 European Union and North American Free Trade Agreement (NAFTA).
With extensive teaching experience, the authors introduce the reader to the various stages of international business transactions through a case study. They then explain the legal issues involved in international business transactions in a clear and concise manner, enabling readers to gain a basic understanding of international conventions and U.S. domestic laws related to such transactions in a short period. Many first-year law students in the U.S. mistakenly believe that the Uniform Commercial Code (UCC) applies to all trade contracts, both domestic and international. This book clarifies that since the U.S. ratified the United Nations Convention on Contracts for the International Sale of Goods (1980, hereinafter referred to as the "Convention"), transactions between U.S. parties and contracting party parties whose places of business are in different contracting states shall be governed by this Convention. The U.S. made a reservation to the Convention’s Article I, paragraph 1(b), regarding its extension of application through private international law. As of July 1, 2004, 62 countries had joined the Convention, and several others were seeking to join. Thus, the Convention is a highly influential agreement in the field of international goods sales. The Convention was drafted under the auspices of the United Nations Commission on International Trade Law, which also drafted the Model Law on International Commercial Arbitration in 1985 and the Model Law on Electronic Commerce in 1996.
In this concise volume, the authors not only outline the key provisions of the Convention but also compare it with the UCC, illustrated with case studies. The relevant chapters cover contract interpretation, contract formation, seller and buyer responsibilities, remedies for breach of contract, risk transfer, trade terms and their application, international payments, and the use of letters of credit. China and the U.S. are both parties to the 1980 Convention, and the U.S. is China’s largest trading partner. The book provides Chinese readers with valuable insights into the laws applicable to international goods trade in the U.S. and the U.S. stance on the relationship between the Convention, domestic law, and international customs.
Chapter 3 of the book focuses on technology trade and intellectual property protection. It begins with 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, entering into force on January 1, 1995. When the GATT was initially signed in 1947, intellectual property was only briefly mentioned in a few minor provisions, with the goal 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 the time. Since the 1960s, as developing countries began to compete in the international market, the disparity in intellectual property protection levels between developed and developing countries led to an increase in trade disputes arising from intellectual property issues. These disputes expanded from trademarks to copyright and neighboring rights. When the Uruguay Round negotiations of the GATT began in 1986, the U.S. strongly advocated for including intellectual property protection on the agenda. The U.S. position was supported by the European Community, Canada, Japan, Australia, and New Zealand, which have comparable economic and intellectual property standards, while developing countries opposed it. Although many countries strongly opposed the U.S. proposal, some emerging industrialized countries in Southeast Asia supported it, hoping to establish certain rules, particularly minimum standards for intellectual property protection and a multilateral dispute resolution system, to prevent the U.S. from taking unilateral sanctions actions on the grounds of inadequate intellectual property protection. Ultimately, the agreement was adopted. Prior to this, the U.S. had repeatedly used its "Special 301" clause in domestic legislation to investigate its trading partners’ intellectual property protection and force them to adopt U.S. standards, threatening unilateral sanctions if they refused.
This chapter briefly introduces the content of the TRIPS Agreement, as well as international protection for 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, studying these topics is essential. The book provides readers with a preliminary understanding of the framework and sensitive attitudes of the U.S. toward intellectual property protection in trade.
After discussing U.S. trade law, the authors turn to the issue of foreign capital investment in the U.S. Historically, the U.S. has maintained an open attitude toward foreign investment. However, this traditional openness has recently faced challenges, with the U.S. enacting legislation to block foreign takeovers of U.S. companies under the guise of "national security." National security investigations have been used to prevent Chinese companies from acquiring U.S. firms producing aircraft components and technology. Therefore, it is crucial for Chinese readers to understand these issues.
Although the U.S. has no comprehensive regulatory laws specifically targeting foreign investment, certain industries and limited sectors, such as insurance, credit, telecommunications, aviation, shipping, and banking, are subject to foreign investment restrictions under existing U.S. laws. Chapter 4 of the book provides a detailed introduction to the current state 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 surrounding compensation.
Additionally, the book covers EU competition law and antitrust law, as well as the resolution of international commercial disputes. It explains domestic resolution of international commercial disputes, the recognition and enforcement of foreign court judgments, choice-of-law clauses, court selection, international commercial arbitration, and U.S. law regarding arbitration.
As a teacher of international economic law at a Chinese law school, I deeply feel that there has been a tendency in recent years for some academics in China to complicate simple issues, as if a straightforward explanation were a sign of lack of scholarship. The concise edition of "International Business Transactions" is clear and straightforward, and I believe it should also appeal to modern legal professionals who value efficiency. This preface is for the Chinese edition of "International Business Transactions," which is part of the "Essentials of American Law" series.