International Commercial Transactions (7th Edition)

Author: Gordon
Publisher:
Publish Date: 2005-10-01
Features: This book is an abridged version of the American law school textbook "International Business Transactions," authored by three American law professors: Professor Ralph Folsom from the University of San Diego, Professor Mike Gordon from the University of Florida, and Professor John Spanogle from George Washington University. The abridged version released in China is the seventh edition of "International Business Transactions." To include the developments from 1991 to 1995, the abridged version was split into two books during the fourth revision. These are "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 EU and North American Free Trade Agreement (NAFTA).
The authors, with their extensive teaching experience, begin with a case study to present the various stages of international business transactions to readers. 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 these transactions in a short period. Many first-year law students in the United States believe that the Uniform Commercial Code (UCC) applies to all trade contracts, both domestic and international. This book clarifies that since the United States 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 located in different contracting states and contracting state parties should be governed by this convention. The United States made a reservation on Article 1(1)(b) of the convention regarding its extension through private international law when it joined the convention. As of July 1, 2004, 62 countries had joined the convention, and several others were seeking to join. Therefore, the convention is a highly influential agreement in the field of international goods trade.
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 book, the authors not only elaborate on the main 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, breach remedies, 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 is very helpful for Chinese readers to understand the laws applicable to U.S. international goods trade 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 aim of ensuring that trade liberalization would not hinder the exercise and protection of intellectual property rights, but there were no specific provisions for intellectual property protection. 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 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 United States strongly demanded that intellectual property protection be included on the agenda. The U.S. position was supported by the European Community 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 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 United States from taking unilateral sanctions actions on the grounds of inadequate intellectual property protection. Eventually, the agreement was passed.
Before this, the United States had repeatedly used its domestic legislation, including the "Special 301 Clause," to investigate its trading partners' intellectual property protection and force them to adopt U.S. standards through negotiations, or else impose 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, studying and understanding these topics is essential. 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 authors turn to the issue of foreign capital investment in the United States. Historically, the United States has maintained an open attitude toward foreign investment in the U.S. However, this traditional openness has recently faced challenges, leading the U.S. to pass 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. companies that produce aircraft components and technology. Therefore, it is necessary 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, telecommunications, aviation, shipping, and banking, are subject to foreign investment restrictions 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 covers the risks of expropriation or nationalization of U.S. overseas investments by foreign governments and the legal issues related to compensation. Additionally, the book addresses EU competition and antitrust law, as well as the resolution of international commercial disputes.
The book elaborates on 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 regarding arbitration. As a teacher of international economic law in a Chinese law school, I deeply feel that there has been a tendency in recent years in Chinese academia to complicate simple issues, as if a simple introduction to a problem is a sign of a lack of scholarship. The abridged version of "International Business Transactions" is straightforward and clear, and I believe it should also be a favorite among 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.