Global Business Law: Principles And Practice Of International Commerce Before you write the book review, you’d better read the whole book. The book review

Global Business Law: Principles And Practice Of International Commerce Before you write the book review, you’d better read the whole book. The book review should include the knowledge about both business and law.APA style Global Business Law
2
Global Business Law
Principles and Practice of International
Commerce and Investment
FOURTH EDITION
John W. Head
ROBERT W. WAGSTAFF DISTINGUISHED PROFESSOR OF LAW
UNIVERSITY OF KANSAS SCHOOL OF LAW
LAWRENCE, KANSAS
3
Copyright © 2018
John W. Head
All Rights Reserved
ISBN 978-1-5310-0411-8
eISBN 978-1-53100-412-5
LCCN 2018944013
Carolina Academic Press, LLC
700 Kent Street
Durham, North Carolina 27701
Telephone (919) 489-7486
Fax (919) 493-5668
www.cap-press.com
Printed in the United States of America
4
Summary of Contents
PART ONE
INTRODUCTION TO GLOBAL BUSINESS LAW
Chapter 1 The Forms and Challenges of Global Business
Chapter 2 Finding Your Way in a Foreign Legal and Cultural Landscape
PART TWO
INTERNATIONAL COMMERCE — EXPORT TRANSACTIONS
Chapter 3 Commercial Codes: The Development and Application of
International Contract Rules and Standards
Chapter 4 Drafting the International Sales Contract: Standard
Commercial Terms and Other Key Contract Provisions
Chapter 5 Documentary Sales and Letters of Credit: Techniques to
Facilitate Exports
Chapter 6 Other Selected Legal Aspects of International Sales
Transactions
PART THREE
TRANSNATIONAL LICENSING, FRANCHISING, AND PROTECTION OF
INTELLECTUAL PROPERTY RIGHTS
Chapter 7 Balancing Risk and Return: Overseas Production with
Permitted Use of Intellectual Property Rights
Chapter 8 International Franchising Arrangements
PART FOUR
FOREIGN DIRECT INVESTMENT
Chapter 9 The Decision to Invest Abroad: Definitions, Incentives, and
Methods of Foreign Direct Investment
Chapter 10 FDI Restrictions and Risks: Host Country Regulation,
International Regulation, and the Universe of Risks Facing Investors
Chapter 11 Protection of FDI Interests: Facing Host Government
Regulation and Insuring against Risk
PART FIVE
CROSS-CUTTING ISSUES IN GLOBAL BUSINESS LAW
5
Chapter 12 Dispute Resolution in International Business Transactions
Chapter 13 Corrupt Practices: Regulatory Efforts to Combat Bribery
Documentary Appendices
Selected Bibliography
Index
6
Contents
List of Illustrations, Tables, Diagrams, Readings, Sample Documents, and
Song Lyrics
Preface to the Fourth Edition
Preface to the Third Edition
Preface to the Second Edition
Preface to the First Edition
Acknowledgments
About the Author
Acronyms
Styles, Usages, Citations, and Other Conventions
PART ONE
INTRODUCTION TO GLOBAL BUSINESS LAW
Chapter 1 · The Forms and Challenges of Global Business
I. Introduction: Aims, Issues, and Overview
II. The Forms of International Business Transactions: From
Exports to FDI
A. Exporting
B. Licensing of Production Abroad
C. Foreign Direct Investment
III. The Special Challenges of Conducting Transborder
Business
A. Exporting
B. Licensing of Production Abroad
C. Foreign Direct Investment
D. General Principles
IV. The Larger Legal Landscape: Where Global Business
Law Fits into the International Legal System
A. The Character of International Economic Law
B. Global Business Law and the Sources of International
Law
1. Treaties
2. Customary international law
C. Global Business Law and International Dispute
Resolution
7
D. Global Business Law and International Institutions
1. A “taxonomy” of international organizations
2. Forms of influence
(a) Influences on national economic conditions
(b) Regulatory influence
E. Global Business Law and Other Issues of
International Law
1. The future of the nation-state
2. A withering of multilateralism?
3. The North-South divide
4. Security and terrorism
5. Global climate change and other environmental
issues
F. Concluding Observations
Chapter 2 · Finding Your Way in a Foreign Legal and Cultural
Landscape
I. Introduction: Aims, Issues, and Overview
II. The Importance of Legal Tradition(s)
A. Legal Traditions, Legal Systems, Legal Families, and
Global Business Law
B. The Civil Law Tradition and the Family of Civil Law
Systems
1. Significance and distribution
2. Thumbnail history
3. Sources of law
4. The legal profession(s)
C. The Common Law Tradition and the Family of
Common Law Systems
1. Significance, distribution, and contrast with civil
law
2. Thumbnail history
3. Sources of law in the common law tradition
4. The legal profession
D. The Islamic Law Tradition and Islamic Law in
Modern Legal Systems
1. The significance of Islamic law in today’s world
2. Thumbnail sketch of Islamic history
3. Sources of law and representative norms in Islamic
law
E. The Chinese Legal Tradition and Its Reflection in
Modern Chinese Law
8
1. China and international business
2. Thumbnail sketch of the Chinese legal tradition
III. Business and Culture in a Global Context
A. Cross-Cultural Negotiations: General Principles
B. Cross-Cultural Negotiations: Specific Examples
IV. Getting Help: Local Counsel, Freight Forwarders, and
Other Sources of Assistance
A. Local Counsel
B. Freight Forwarders and Other Facilitators
C. International “Agents” and Distributors
D. Official Support from Government Agencies
PART TWO
INTERNATIONAL COMMERCE — EXPORT TRANSACTIONS
Chapter 3 · Commercial Codes: The Development and
Application of International Contract Rules and Standards
I. Introduction: Aims, Issues, and Overview
II. International Commercial Law and Custom: Historical
and Practical Setting
A. Historical Background — The Lex Mercatoria
B. Practical Issues — Conflicts of Law
III. The Vienna Sales Convention (CISG): Character, Aims,
and Application
A. Background
B. Character and Aims of the CISG
C. Applicability of the CISG
1. States participating in the CISG
2. Conflicts of law and Article 1(1)(b)
3. “Internationality” of the sale
4. Sales and issues not covered by the CISG
5. Opting out of (and into) the CISG
IV. The Vienna Sales Convention (CISG): Content and
Operation
A. Noteworthy Features — Contract Formation
1. What constitutes an offer under the CISG
2. When an offer takes effect and its duration
3. Revocation of an offer
4. What constitutes an acceptance and when it
becomes effective
5. Effect of a late acceptance
6. Effect of a varied acceptance
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B. Noteworthy Features — Performance
1. Manner and place of delivery
2. Time of delivery
3. Notice under the CISG
4. Time and place of payment
5. Currency in which the price is to be paid
C. Noteworthy Features — Breach and Remedies
1. Significance of the fundamental breach concept
2. Buyer’s right to avoid the contract for non-delivery
3. Buyer’s right to avoid the contract for quality
defects
4. Seller’s right to cure
5. Seller’s right to avoid the contract
6. Buyer’s right to compel performance
7. Seller’s right to compel performance
8. Non-avoidance damages
9. Avoidance damages
10. Mitigation
11. Remedy of reduction of price
12. Anticipatory breach
D. CISG–UCC Differences and Similarities
E. Pros and Cons of the CISG in Operation
V. Related Commercial Rules: The UNIDROIT Principles
and the UN Limitation Period Convention
A. The UNIDROIT Principles of International
Commercial Contracts
B. The UN Limitation Period Convention
1. Aims, history, and status
2. Substantive summary of the Limitation Period
Convention
VI. Closing Observations
Chapter 4 · Drafting the International Sales Contract: Standard
Commercial Terms and Other Key Contract Provisions
I. Introduction: Aims, Issues, and Overview
II. Incoterms: Enhancing Harmonization and Specificity
A. Background to Incoterms: Purpose, History, and
Status
1. The purpose of trade terms
2. The ICC and the status of Incoterms (and the
CISG)
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3. Getting to the 2010 version of Incoterms
B. Details of the Eleven Incoterms (2010)
1. Groups, terms, and frameworks
2. Practical implications and observations
(a) The extremes: EXW and DDP
(b) Incoterms and mode of transport
(c) Limits of Incoterms
(d) Passage of cost and risk in CIF
(e) Incoterms and transport documents
(f) Right of inspection
(g) Choosing the best Incoterm
(h) The future of Incoterms
3. Incoterms and the UCC
III. Drafting of Other Contract Terms: Guides and Practical
Applications
A. Governing Law
1. Factors for choosing a governing law
2. Limits on free choice by the parties
3. Specific governing law formulations — with and
without CISG
B. Choice of Forum
C. Nonperformance, Force Majeure, and Hardship
1. Nonperformance
2. Force majeure
3. Hardship
D. Notice
E. Corrupt Practices
IV. Conclusion
Chapter 5 · Documentary Sales and Letters of Credit: Techniques
to Facilitate Exports
I. Introduction: Aims, Issues, and Overview
II. Documentary Sales: Managing Risk in Transborder
Transactions
A. Parties Involved in the Documentary Sale
B. The Steps Included in the Documentary Sale
C. The Documents Included in the Documentary Sale
D. Annotated Explanation of the Steps and the
Documents Involved in the Documentary Sale
III. Letters of Credit: Substantive Rules for Facilitating
Payments
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A. International Letters of Credit in a Nutshell
B. The Principle of Strict Compliance
C. The Independence Principle and Its Exceptions
IV. Related Matters: More on Bills of Lading, Letters of
Credit, and Liability of Carriers
A. Functions and Varieties of Bills of Lading and Other
Transport Documents
1. Negotiable and non-negotiable bills of lading
2. Other types of transport documents
3. National and international rules on bills of lading
and liability of carriers
B. Standby Letters of Credit and Back-to-Back Letters
of Credit
1. Standby letters of credit
2. Back-to-back letters of credit
V. Conclusion
Chapter 6 · Other Selected Legal Aspects of International Sales
Transactions
I. Introduction: Aims, Issues, and Overview
II. International “Agency” and Distributorship
Arrangements: Using Third Parties to Market Products
Abroad
A. Sales Representatives versus Distributors versus
Employees
1. Choosing the form of relationship
2. Choosing the person or entity
B. Laws Affecting the Relationship with Such
Intermediaries
1. Protective legislation
2. Other laws and regulations
C. Drafting Guidance: Sales Representative Agreements
D. Drafting Guidance: Distributorship Agreements
E. Harmonization of Rules on International Sales
Representatives and Distributors
III. Electronic Commerce: Modifying Traditional Concepts
to Fit the Digital Age
A. Digital Signatures
B. Conceptual Challenges
C. Privacy Concerns and Electronic Transactions
D. Other International E-Commerce Issues
IV. Official Restrictions on International Sales: Practical
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Aspects of Customs Procedure and Export Controls
A. Customs Classification and Duty Determinations
B. Export Controls — A Thumbnail Sketch
C. Other Nuts-and-Bolts Issues of Trade Regulation
1. Foreign Trade Zones
2. Anti-boycott rules
V. Government Assistance for International Sales: A Glance
at Official Export Inducements
A. Export Inducements under US Tax Laws
B. Export Inducements through Government Financing
C. Export Inducements under US Antitrust and Banking
Laws
D. Export Encouragement through Government Agency
Assistance
VI. Conclusion
PART THREE
TRANSNATIONAL LICENSING, FRANCHISING, AND PROTECTION OF
INTELLECTUAL PROPERTY RIGHTS
Chapter 7 · Balancing Risk and Return: Overseas Production
with Permitted Use of Intellectual Property Rights
I. Reprise: From Exports to FDI
II. Intellectual Property Rights and Their Protection
A. Patent Protection
1. Overview
2. International initiatives encouraging protection
B. Protection of Knowhow
1. Overview
2. International initiatives
C. Trademark Protection
1. Overview
2. International initiatives encouraging protection
D. Copyright Protection
1. Overview
2. International initiatives encouraging protection
III. Licensing of Production Abroad — Key Considerations
A. Preliminary Matters — Relative Advantages and
Disadvantages
B. Choices in Planning Licensing-of-Production
Arrangements
IV. Licensing of Production Abroad — Drafting the
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Agreement
V. Conclusion
Chapter 8 · International Franchising Arrangements
I. Introduction: Aims, Issues, and Overview
II. The What, Why, and How of International Franchising
A. Definition and Importance of International
Franchising
B. Advantages and Disadvantages of International
Franchising
C. Choices in Establishing an International Franchise
Arrangement
III. Regulatory Requirements and Protections
A. Home-Country Regulatory Requirements
B. Host-Country Regulatory Requirements
C. Relevant Multinational Regimes
IV. Franchising Abroad — Drafting the Agreement
V. Conclusion
PART FOUR
FOREIGN DIRECT INVESTMENT
Chapter 9 · The Decision to Invest Abroad: Definitions,
Incentives, and Methods of Foreign Direct Investment
I. Introduction: Aims, Issues, and Overview
II. The “What” and the “Why” of FDI: Definitions and
Incentives for Investing Abroad
A. The Meaning and Significance of FDI
1. Definition(s) of FDI
2. Significance of FDI
B. The Attraction of FDI
III. The “How” of FDI: A Chaos of Choices
A. Forms of Presence: Liaison Offices, Branches, and
Subsidiaries
1. Liaison office
2. Branch or subsidiary
B. Forms of Establishment: “Greenfield”, M&A, and
Joint Ventures in General
1. “Greenfield” or de novo investment
2. Merger and acquisition — definitions and
implications
3. Merger and acquisition — advantages
14
4. Merger and acquisition — disadvantages
5. Merger and acquisition — documentation
(a) Consideration
(b) Assumption of liabilities
(c) Warranties
(d) Covenants
(e) Conditions
(f) Closing
(g) Indemnification
6. Merger and acquisition — Indonesia as an
illustration
7. Joint venture — nature and scope
IV. Joint Ventures: Legal Issues and Agreements
A. Key Legal Issues in Joint Ventures
1. Structure
2. Tax
3. Liability
4. Resources: funding and capitalization
(a) Initial contributions
(b) Future contributions
(c) Details and refinements in the capitalization
plan
5. Management and control
6. Dispute resolution
7. Transferability and termination
8. Hiring local legal counsel
9. Other issues in forming an international joint
venture
(a) Informational preparation
(b) Strategic planning
(c) Selecting a partner
B. Drafting Equity Joint Venture Agreements
1. Building up to the joint venture agreement
2. Contents and structure of the joint venture
agreement
V. International Project Finance: Special Considerations and
Opportunities
A. Introduction: Aims, Nature, Risks, and Structures
1. Defining “project finance”
2. The nature of and demand for infrastructure
projects
15
3. Risks
4. Project structure
B. Project Financing through Commercial Lending —
The Syndicated Loan
1. Overview — the need for syndicated lending
2. Responsibilities of the lead bank
3. Syndicated loan documentation
C. Project Financing through Sales of RegistrationExempt Securities
1. Introduction
2. Private placements and Section 4(2)
3. Offshore sales and Regulation S
4. Rule 144A
5. Other issues relating to securities regulation
D. Summary on Project Financing
VI. Conclusion
Chapter 10 · FDI Restrictions and Risks: Host Country
Regulation, International Regulation, and the Universe of Risks
Facing Investors
I. Introduction: Aims, Issues, and Overview
II. Host-Country Restrictions on Entry: Balancing
Conflicting National Interests
A. Costs and Benefits of FDI from a Host Country’s
Perspective
1. Benefits of FDI for a host country
2. Costs, disincentives, and disadvantages of FDI
B. Trends in Host-Country Regulation of FDI in Recent
Decades
1. Colonization
2. Decolonization
3. The debt crisis (1982)
4. The Soviet collapse (early 1990s)
5. The Asian financial crisis (1997–1998)
6. The global financial crisis, and today’s world
(2008+)
C. Forms of Host-Country Restrictions on FDI Entry
1. Designation of red light, yellow light, and green
light sectors
2. Concentrating FDI regulation in a single
government agency
3. Joint venture requirements
16
III. Host-Country Restrictions and Risks Relating to FDI
Operation and Withdrawal
A. Restrictions on FDI Management
B. Performance Requirements
C. Currency Restrictions and Risks
1. Nonconvertibility risk
2. Exchange rate fluctuation risk
D. Other Risks to FDI from Host-Country Developments
1. Political risk
(a) Conceptual definitions and species of “political
risk”
(b) Expropriation, exchange controls, and political
violence
(c) Distinguishing political risk from other risks
(d) De-constructing the distinctions
2. Expropriation
IV. Home-Country and Multilateral Regulation of FDI
A. Regulations on FDI by Investors’ Home Countries
1. Prohibitions on corrupt practices and anticompetitive behavior
2. Prohibitions on behavior violating international law
B. Multilateral Regulation of FDI
C. Self-Regulation by Multinational Corporations
1. Company-specific codes of conduct
2. Other voluntary corporate code initiatives
V. Conclusion
Chapter 11 · Protection of FDI Interests: Facing Host
Government Regulation and Insuring against Risk
I. Introduction: Aims, Issues, and Overview
II. Regulation of the Regulators: International Rules and
Guidelines on Treatment of Foreign Investors
A. The TRIMs Agreement
B. Toward a Multilateral Agreement on Investment?
C. Influence from International Financial Institutions
D. Regional Initiatives on FDI Regulation: The NAFTA
Chapter 11 Protections
E. Bilateral Investment Treaties (“BITs”)
F. Summing-Up: Protection of FDI by International
Legal Rules
III. Legal Standards on the Special Risk of Expropriation
17
A. Lawfulness
B. Compensation
C. Defenses
1. The Act of State doctrine
2. The concept of sovereignty and the doctrine of
sovereign immunity
3. The Calvo doctrine
IV. Insurance and Hedging
A. OPIC
B. MIGA
C. Private Insurance for FDI Risks
D. Hedging Against Currency Risks
V. Conclusion
PART FIVE
CROSS-CUTTING ISSUES IN GLOBAL
BUSINESS LAW
Chapter 12 · Dispute Resolution in International Business
Transactions
I. Introduction: Aims, Issues, and Overview
II. Choices: An Overview of the Array of DisputeSettlement Techniques
III. Key Issues in Litigation
A. The Proper Court: Personal Jurisdiction
B. Enforcement of Foreign Judgments
IV. Commercial Mediation and Similar Procedures
V. Key Issues in Arbitration
A. Arbitration Rules and Institutions
B. Enforcement of Arbitral Awards
VI. Other Issues Concerning Dispute Resolution
VII. Summing-Up on Dispute Resolution
Chapter 13 · Corrupt Practices: Regulatory Efforts to Combat
Bribery
I. Introduction: Aims, Issues, and Overview
II. Is Corruption Bad?
III. The US Foreign Corrupt Practices Act
A. Overview of the FCPA
1. History and intent
2. The prohibition of bribery
3. Requirements of internal corporate accounting
18
B. The 1988 Amendments to the FCPA
1. Affirmative defenses
2. Exception for “routine governmental action”
3. Amending the bribery standard
4. Amendments to the accounting standards
C. Administrative and Enforcement Mechanisms
1. Elements for successful government enforcement
2. The SEC’s role in FCPA compliance
3. The Justice Department’s role in FCPA
enforcement
(a) Initiation of an investigation
(b) Unique aspects of the FCPA investigative
procedure
(c) Remedies and penalties
(d) The review procedure
4. Practical considerations — planning to mitigate
FCPA liability
IV. The OECD Anti-Bribery Convention
Documentary Appendices
Appendix #1 CISG (Vienna Sales Convention)
Appendix #2 UNIDROIT Principles
Appendix #3 UN Limitation Period Convention
Appendix #4 CIF, INCOTERMS 2010
Appendix #5 UCP
Appendix #6 COGSA
Appendix #7 Hague Rules (& Hague-Visby Rules)
Appendix #8 Hamburg Rules
Appendix #9 UNCITRAL Model Law on Electronic
Commerce
Appendix #10 UETA
Appendix #11 Mexican Foreign Investment Law
Appendix #12 Exon-Florio Amendment and FINSA (USA)
Appendix #13 World Bank Guidelines on the Treatment of
FDI
Appendix #14 NAFTA Investment Provisions
Appendix #15 US Model BIT
Appendix #16 UFCMJRA (USA)
Appendix #17 LCIA Rules of Arbitration
Appendix #18 New York Convention
Appendix #19 ICSID — International Convention on the
19
Settlement of Investment Disputes
Appendix #20 Hague Convention on the Taking of Evidence
Abroad
Appendix #21 FCPA
Appendix #22 OECD Anti-Bribery Convention
Selected Bibliography
Index
20
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