International Commercial Agreements

Transcription

1 International Commercial Agreements A Primer on Drafting, Negotiating and Resolving Disputes SECOND EDITION William F. Fox, Jr. Professor of Law The Catholic University of America Washington, DC Kluwer Law and Taxation Publishers Deventer Boston

2 Contents Preface 7 I. Forming International Commercial Agreements 11 One: Introduction 1.1 INTERNATIONAL TRADE AND THIS BOOK AN OVERVIEW OF INTERNATIONAL COMMERCIAL TRANSACTIONS HOW TO USE THIS BOOK // Two: Sources of the Law of International Commercial Agreements 2.1 INTRODUCTION PROMULGATION AND ENFORCEMENT OF PRINCIPLES OF COMMERCIAL LAW THE WORLD'S MAJOR LEGAL SYSTEMS THE CIVIL LAW SYSTEM THE BRITISH COMMON LAW SYSTEM COMMERCIAL LAW IN THE UNITED STATES OF AMERICA SOCIALIST LEGAL SYSTEMS The Law of Contract in the Commonwealth of Independent States The Peoples Republic of China ISLAMIC LEGAL SYSTEMS THE IMPACT OF INTERNATIONAL PRINCIPLES OF COMMERCIAL LAW International Law Generally The 1980 Vienna Convention on Contracts for the International Sales of Goods 41 Three: Planning International Commercial Agreements 3.1 INTRODUCTION SOME FUNDAMENTAL PRINCIPLES OF CONTRACT LAW Formation and Subject Matter SO Performance Breach of Contract and Excused Performance Remedy 64

3 International Commercial Agreements Dispute Resolution THE DIFFERENT FORMS OF INTERNATIONAL COMMERCIAL AGREEMENT Sales of Goods or Services Agency and Distributorship Agreements Franchises Licensing and Technology Transfer joint Ventures Other Forms of Agreement PLANNING FOR DISPUTE RESOLUTION Adaptation Renegotiation Mediation/Conciliation Arbitration Litigation Other Forms of Dispute Resolution FINANCING AND PAYING FOR INTERNATIONAL COMMERCIAL AGREEMENTS Direct Payment Payment Devices Insuring Against Risks OTHER CONSIDERATIONS IN PLANNING COMMERCIAL AGREEMENTS Tax Matters Antitrust Issues Antidumping and Countervailing Duty Issues Export and Import Controls Ethical Considerations SPECIAL REGIONAL CONSIDERATIONS IN PLANNING INTERNATIONAL COMMERCIAL AGREEMENTS Trade with the European Community The Canada-United States Free Trade Agreement 107 Four: Drafting International Commercial Agreements 4.1 INTRODUCTION SOME THRESHOLD CONSIDERATIONS Identifying Goals and Objectives Research as a Planning and Drafting Tool Beginning the Drafting Process THE USE AND EFFECT OF A LETTER OF INTENT CHOOSING THE LANGUAGE AND THE LAW OF THE AGREEMENT Choosing the Contract's Language Choosing the Contract's Applicable Law USING STANDARDIZED CLAUSES AND FORMS SAMPLE CLAUSES IN INTERNATIONAL COMMERCIAL AGREEMENTS FORMATION AND PERFORMANCE The Quantity Term The Price Term The Payment Term Provisions Allocating Risk of Loss During Shipment Performance Clauses and Express and Implied Warranties 142

4 Contents 4.7 SAMPLE CLAUSES BREACH, REMEDIES AND MISCELLANEOUS Force Majeure Clauses Penalty and Liquidated Damages Clauses DRAFTING THE DISPUTE RESOLUTION AND CHOICE OF FORUM CLAUSES SOME CONCLUDING COMMENTS 152 Five: Negotiating International Commercial Agreements 5.1 INTRODUCTION ESTABLISHING A BASIC FRAMEWORK FOR NEGOTIATION Diagramming a Negotiation Separating the People from the Problem Focus on Interests, not Positions Create Options for Mutual Gain Insist on Objective Criteria Know Your "Best Alternative to a Negotiated Agreement" THE STAGES OF COMMERCIAL NEGOTIATION Orientation and Positioning Argumentation Emergence and Crisis Agreement or Breakdown NEGOTIATING STYLES, STRATEGY, AND TACTICS CROSS-CULTURAL NEGOTIATION NEGOTIATION WHEN DISPUTES ARISE UNDER AN EXISTING TRANSACTION THE ETHICS OF NEGOTIATION Ethics Generally Ethical Constraints on U.S. Lawyer-Negotiators Statutory Controls on Negotiator Conduct 182 II. Resolving International Commercial Disputes 183 Six: The Less-Drastic Forms of Commercial Dispute Resolution 6.1 INTRODUCTION CONTRACT ADAPTATION Gap Filling Mechanisms in the Underlying Law Coping with Uncertainty Through Express Contractual Provisions Some Typical Adaptation Clauses RENEGOTIATION MEDIATION AND CONCILIATION Mediation and Conciliation Generally A General Theory of Mediation Procedures for International Commercial Mediation Mediation in the Future THEMINITRIAL The Minitrial Generally Specific Minitrial Rules Minitrials in the Future 207

5 Seven: Litigation International Commercial Agreements 7.1 INTRODUCTION LITIGATION GENERALLY SUBJECT MATTER JURISDICTION FOREIGN SOVEREIGN IMMUNITY AND THE ACT OF STATE DOCTRINE Sovereign Immunity The Act of State Doctrine PERSONAL JURISDICTION OVER PRIVATE PARTIES SERVICE OF PROCESS CHOICE OF FORUM, VENUE AND FORUM NON CONVENIENS CHOICE OF LAW DISCOVERY AND GATHERING INFORMATION AND EVIDENCE ABROAD TRIAL PROCEDURE ENFORCEMENT OF JUDGMENTS AT HOME AND ABROAD CONCLUSION 236 Eight: International Commercial Arbitration: Commencing Arbitration and the Arbitration Hearing 8.1 INTRODUCTION A BRIEF HISTORY OF COMMERCIAL ARBITRATION THE STATUTORY BASIS FOR ARBITRATION The Federal Arbitration Act The English Arbitration Acts The UNCITRAL Model Law on International Commercial Arbitration THE LEX LOCI ARBITRI AND "AD HOC" VERSUS "INSTITUTIONAL" ARBITRATION A DESCRIPTION OF THE MAJOR INTERNATIONAL ARBITRAL INSTITUTIONS INCLUDING A BRIEF SUMMARY OF THEIR RULES The International Chamber of Commerce American Arbitration Association Procedures The UNCITRAL Procedures COMMENCING THE ARBITRATION Determining the Issues to be Arbitrated Drafting the Demand for Arbitration Selecting the Arbitrator PREPARING FOR AND CONDUCTING THE HEARING Discovery The Pre-Hearing Conference The Hearing DRAFTING THE ARBITRAL AWARD 272 Nine: International Commercial Arbitration: Arbitration in the Courts 9.1 INTRODUCTION ACTIONS TO COMPEL OR STAY ARBITRATION RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS 284

6 Contents 9.4 INTERNATIONAL RECOGNITION AND ENFORCEMENT OF AR BITRAL AWAR DS The New York Convention Enforcing Awards not Subject to the New York Convention 294 Ten: International Commercial Arbitration: Special Regional Considerations 10.1 INTRODUCTION THE INTERNATIONAL CENTRE FOR THE SETTLEMENT OF INVESTMENT DISPUTES THE EUROPEAN COMMUNITY THE IRAN-UNITED STATES CLAIMS TRIBUNAL LATIN AMERICA THE MIDDLE EAST AND AFRICA THE PACIFIC RIM THE PEOPLES REPUBLIC OF CHINA THE FORMER SOVIET UNION 375 Eleven: Future Trends in International Commercial Agreements and Dispute Resolution 11.1 INTRODUCTION TRENDS IN INTERNATIONAL COMMERCIAL AGREEMENTS TRENDS IN INTERNATIONAL COMMERCIAL DISPUTE RESOLUTION CONCLUSION 326 Appendices 327 Appendix A: UN Convention on Contracts for the International Sale of Goods (1980) 327 Appendix B: United States Uniform Commercial Code 347 Appendix C: Rules of the ICC Court of Arbitration 380 Appendix D: Arbitration Rules of the American Arbitration Association 406 INTERNATIONAL ARBITRATION RULES 406 COMMERCIAL ARBITRATION RULES 478 Appendix E: Arbitration Rules of the UN Commission for International Trade Law (UNCITRAL) 432

7 International Commercial Agreements Appendix F: Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, June 10, Appendix G: UNCITRAL Model Law on International Commercial Arbitration 457 Bibliography 463 Index 481