Menon & Reyes: Transnational Commercial Disputes in an Age of Anti-Globalism and Pandemic

Sundaresh Menon & Anselmo Reyes have published Transnational Commercial Disputes in an Age of Anti-Globalism and Pandemic (Hart Publishing 2023). The table of contents is here. Here's the abstract:

In this book, senior judges and academics at the forefront of transnational commercial law in Asia, Australia, Europe, the US, and elsewhere, reflect on the implications of anti-globalism and the COVID-19 pandemic on international commercial dispute resolution (ICDR).

The chapters consider: (1) What types of cross-border commercial disputes will arise in the future and what resources will be needed to respond to them in a cost-effective, time-efficient, and equitable manner? (2) Is there still merit in a multilateral approach to transnational commercial law and ICDR, despite the closing of borders, the rise of protectionism, and the disruption of global supply chains? (3) What reforms and innovations should courts, arbitrators, and mediators contemplate when navigating the post-pandemic landscape? (4) Can the accelerated use of remote technology in ICDR (as prompted by the pandemic) be leveraged to enhance access to justice for all?

Hutchison & Myburgh: Research Handbook on International Commercial Contracts

Andrew Hutchison (Univ. of Cape Town - Law) & Franziska Myburgh (Univ. of Stellenbosch - Law) have published Research Handbook on International Commercial Contracts (Edward Elgar Publishing 2020). The table of contents is here. Here's the abstract:

This comprehensive Research Handbook examines the continuum between private ordering and state regulation in the lex mercatoria. It highlights constancy and change in this dynamic and evolving system in order to offer an in-depth discussion of international commercial contract law.

International scholars, from a range of jurisdictions and legal cultures across Africa, North America and Europe, dissect a plethora of contract types, including sale, insurance, shipping, credit, negotiable instruments and agency, against the backdrop of key legal regimes commonly chosen in international agreements. These include: the UN CISG, Unidroit PICC, European DCFR and English law. The Research Handbook examines key general principles in commercial contract law, such as interpretation, good faith, remedies for breach and choice of law clauses from an international perspective. It also engages with various emerging aspects of internet contracting, including smart contracts.

Brunner & Gottlieb: Commentary on the UN Sales Law (CISG)

Christoph Brunner & Benjamin Gottlieb have published Commentary on the UN Sales Law (CISG) (Wolters Kluwer 2019). Here's the abstract:

Buyers and sellers engaging in the cross-border sale of goods are well-advised to be conversant with the United Nations Convention on Contracts for the International Sale of Goods (CISG), which governs international sales contracts. The CISG has been ratified by 89 states, which together account for over three-quarters of all world trade. This practically-oriented, article-by-article commentary on the CISG will be useful to legal practitioners, counsel and arbitrators dealing with international sales contracts. The in-depth annotations deal extensively with the legal issues likely to arise under each CISG article. The annotations include up-to-date analyses of state court and arbitral decisions, the legal doctrines derived from these decisions, and relevant scholarship to date. A

Toth: The Lex Mercatoria in Theory and Practice

Orsolya Toth (Allen and Overy LLP) has published The Lex Mercatoria in Theory and Practice (Oxford Univ. Press 2017). Here's the abstract:

The book offers a theoretically justified and pragmatic concept of the so-called 'lex mercatoria' contributing to the debate concerning the existence of this law as an autonomous, a-national and universal legal system established by trade practice. This new work equips commercial arbitrators and counsel with a formula to 'recognize' and apply a rule of the lex mercatoria in practice. It argues that a rule of the lex mercatoria is established if there is a majority congruent behaviour within a business community followed out of fear of criticism and a willingness to criticize others in case of deviation. This two-element test increases legal certainty and potentially reduces the time and costs of proving the rule. Case studies are included to illustrate the practical implications of the analysis and more difficult issues such as burden of proof, admissible evidence and the role of written harmonization measures are also considered. The approach adopted in the book reduces the elusiveness of the concept and offers an analysis which makes the lex mercatoria clearer for scholars and more attractive for practitioners.

Gélinas: Trade Usages and Implied Terms in the Age of Arbitration

Fabien Gélinas (McGill Univ. - Law) has published Trade Usages and Implied Terms in the Age of Arbitration (Oxford Univ. Press 2016). Contents include:

• Fabien Gélinas, Introduction
• Geoff R. Hall, Customs and Usages in England: Achieving Interpretive Accuracy by Giving Effect to Unexpressed Intent
• Lydie Van Muylem, Usages and Implied Terms under French and Belgian Positive Law: A Subjective Approach Tending toward Objectivity
• Marie-Claude Rigaud, White Space, Implied Terms, and the Concept of Usage in Quebec
• Luca G. Radicati di Brozolo & Giacomo Marchisio, Usages and Implied Terms in Italy
• Helge Dedek, Not Merely Facts: Trade Usages in German Contract Law
• Christopher R. Drahozal, Usages and Implied Terms in the United States
• Geneviève Saumier, Trade Usages in the Convention on Contracts for the International Sale of Goods
• Lauro Gama, Jr., Usages and Implied Obligations under the UNIDROIT Principles of International Commercial Contracts
• Emmanuel Jolivet, Giacomo Marchisio & Fabien Gélinas, Trade Usages in ICC Arbitration
• H. Patrick Glenn, The Law Merchant and Choice of Law
• Fabien Gélinas, Trade Usages as Transnational Law

Liu & Shan: China and International Commercial Dispute Resolution

Qiao Liu (Xi’an Jiaotong Univ.) & Wenhua Shan (Xi’an Jiaotong Univ.) have published China and International Commercial Dispute Resolution (Brill | Nijhoff 2015). The table of contents is here. Here's the abstract:

China and International Commercial Dispute Resolution presents important contributions from eminent legal scholars from Europe, the United States, Australia, South America, and China in a variety of areas of international commercial law with relevance to China. The authors provide expert analyses from a number of perspectives – doctrinal, comparative, empirical, economic, and legal – on an array of issues, private and public, involved in or arising from international commercial dispute resolution in China.

Hale: Between Interests and Law: The Politics of Transnational Commercial Disputes

Thomas Hale (Univ. of Oxford - Government) has published Between Interests and Law: The Politics of Transnational Commercial Disputes (Cambridge Univ. Press 2015). Here's the abstract:

We could not have a global economy without a system to resolve commercial disputes across borders, but the international regime that performs this key role bears little resemblance to other institutions underpinning the global economy. A hybrid of private arbitral institutions, international treaties, and domestic laws and courts, the regime for commercial dispute resolution shows that effective transborder institutions can take a variety of forms. This book offers the first comprehensive social scientific account of this surprisingly effective regime. It maps and explains its evolution since the Industrial Revolution, both at the global level and in the United States, Argentina, and China. The book shows how both political economy approaches and socio-legal theories have shaped institutional outcomes. While economic interests have been the chief determinants, legal processes have played a key role in shaping the form institutions take. The regime for commercial dispute resolution therefore remains between interests and law.

Conference: What Law Governs International Commercial Contracts? Divergent Doctrines and the New Hague Principles

On October 18, 2013, Brooklyn Law School will host a conference on "What Law Governs International Commercial Contracts? Divergent Doctrines and the New Hague Principles." Here's the idea:

With the continued dramatic growth of international commerce, a critical question has become even more important: What law governs the contracts behind the commerce? Key issues include:

In much of the world, courts accept the choice of the parties to a contract as to what law will govern it – but this principle is not accepted everywhere. Even in nations where it is accepted, differences abound.

Should the ability of parties to select the law governing their contract be approached differently in the increasingly prevalent world of international commercial arbitration?

In many arbitral systems, parties may select not only the law of a sovereign state, but also “rules of law” emanating from non-state sources, such as “principles” promulgated by international organizations. Should courts show the same deference to the parties’ choice of non-state law?

The Hague Principles on Choice of Law in International Contracts, prepared by the Hague Conference on Private International Law and now nearing completion, are expected to be quite influential, both in establishing the principle of party autonomy to select the law governing commercial contracts and in developing the principle and its limits.

This symposium addresses the important issues described above – from the perspectives of both current law and the “best practices” represented by the draft Hague Principles.

Symeonides: The Hague Principles on Choice of Law for International Contracts: Some Preliminary Comments

Symeon C. Symeonides (Willamette Univ. - Law) has posted The Hague Principles on Choice of Law for International Contracts: Some Preliminary Comments (American Journal of Comparative Law, forthcoming). Here's the abstract:

This Article discusses The Hague Principles on Choice of Law for International Contracts, a new soft-law instrument recently adopted by the Hague Conference of Private International Law.

The Principles will apply to “commercial” contracts only, specifically excluding consumer and employment contracts. For this reason, the Principles adopt a decidedly liberal stance toward party autonomy, exemplified inter alia by a strong endorsement of non-state norms. Such a liberality would be unobjectionable, indeed appropriate, if a contract’s “commerciality” alone would preclude the disparity of bargaining power that characterizes consumer and employment contracts. The fact that — as franchise contracts illustrate — this is not always the case makes even more necessary the deployment of other mechanisms of policing party autonomy. The Principles provide these mechanisms under the rubric of public policy and mandatory rules, but their effectiveness is not beyond doubt.

The Principles are intended to serve as a model for other international or national instruments and as a guide to courts and arbitrators in interpreting or supplementing rules on party autonomy. Like other international instruments, the Principles are as good as the consensus of the participating delegations would allow. But the real test of success for these Principles depends not on academic approbation but on their reception by contracting parties, courts, and arbitrators. While it is too early to tell whether the Principles will pass this test, there is reason for optimism.

In any event, and regardless of whether they will be widely accepted, the Principles will enrich the quality of the international discourse by providing a guiding light in the search for proper solutions to the problems encountered in honoring, and defining the limits of, contractual choice of law in international contracts. This alone would be a significant contribution to the advancement of the art and science of law-shaping.

Schwenzer, Fountoulakis, & Dimsey: International Sales Law: A Guide to the CISG (Second Edition)

Ingeborg Schwenzer (Univ. of Basel - Law), Christiana Fountoulakis (Univ. of Fribourg - Law), & Mariel Dimsey have published the second edition of International Sales Law: A Guide to the CISG (Hart Publishing 2012). Here's the abstract:

Written for international trade lawyers, practitioners and students from common and civil law countries, this casebook is an excellent starting point for learning about the CISG, providing an article-by-article analysis of the Convention. The commentary on each article is accompanied by extracts from cases and associated comparative materials, as well as references to important trade usages such as the INCOTERMS® 2010. The book features a selection of the most significant cases, each of which has been abridged to enable the reader to focus on its essential features and the relevant questions arising from it. The case extracts are accompanied by a comprehensive overview of parallel provisions in other international instruments, uniform projects and domestic laws.

Adyel: Crédit documentaire et connaissement : Théories institutionnelles, problématiques juridiques et solutions jurisprudentielles

Karim Adyel has published Crédit documentaire et connaissement : Théories institutionnelles, problématiques juridiques et solutions jurisprudentielles (Larcier 2012). Here's the abstract:

La mondialisation a modifié le monde des affaires. Plusieurs facteurs poussent à s’intéresser aux outils juridiques qui permettent ce développement économique et offrent la sécurité adéquate aux opérations et aux opérateurs du commerce international.

Le crédit documentaire est sans conteste la technique la plus utilisée à cette fin. La souplesse du procédé réside dans les diverses formes qu’il peut revêtir ainsi que ses divers modes de réalisation, le tout adapté à la nature des transactions qu’il est appelé à couvrir.

Les fonctions qu’il remplit apportent plus de confiance et de sécurité dans les transactions commerciales internationales.

Le symbole de son évolution est l’informatisation des RUU de la CCI. La collaboration de la CCI avec la CNUDCI et la CNUCED conforte cette évolution.

Le crédit documentaire fait la plupart du temps appel au connaissement. Ce dernier est le document le plus utilisé dans le cadre d’une opération de transport international de marchandises par mer et le plus demandé par les banques dans une opération de Credoc.

Pouvant revêtir diverses formes et remplissant plusieurs fonctions, il a fait l’objet de plusieurs conventions internationales. Son informatisation récente démontre son importance dans le commerce mondial.

L’interconnexion du connaissement et du Credoc se manifeste à plusieurs niveaux dans le cadre des opérations de vente internationale de marchandises par mer.

Cet ouvrage présente une analyse exhaustive, interactive et actualisée de ces deux institutions au regard de la pratique bancaire internationale et des textes internationaux. L’aspect jurisprudentiel y est également traité au vu des problématiques majeures se rapportant aux deux matières.

Schwenzer, Hachem, & Kee: Global Sales and Contract Law

Ingeborg Schwenzer (Univ. of Basel - Law), Pascal Hachem (Univ. of Basel - Law), & Christopher Kee (Univ. of Aberdeen - Law) have published Global Sales and Contract Law (Oxford Univ. Press 2012). The authors describe the Global Sales Law Project in a video here. Here's the abstract:

Although the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) is one of the most successful international conventions to date, it remains the case that those involved in the international sale of goods must refer to a multitude of laws. Indeed the CISG itself does not cover all issues relating to international sales contracts, so it must necessarily be supplemented by domestic law. Global Sales and Contract Law provides a truly comparative analysis of domestic laws in over sixty countries so as to deliver a global view of domestic and international sales law.

The book reports on the real practice of sales law, taking into account present day problems. Complex questions on the obligations under a sales contract, the ways in which these are established, as well as the remedies following the breach of obligations, are all discussed. By addressing regional uniform projects, like OHADA, and comparing differences in domestic legal approach where the CISG would not apply, the work goes beyond existing commentaries which tend to focus only on the CISG. The analysis has been based on an unprecedented survey drawn from the world's top fifty companies as well as international traders, lawyers advising international traders, arbitral institutions, arbitrators, and law schools.

This work encompasses all aspects of a sale of goods transaction and takes a wide view of sale by including general contract law. The book gives practitioners invaluable insight into judicial trends and possible solutions in different legal systems, whether preparing for litigation or drafting an international contract. Global Sales and Contract Law is the most comprehensive and thorough compilation of legal analysis in the field of the sale of goods and is a reliable source for any practitioner dealing in international commerce.

Ferrari: Contracts for the International Sale of Goods: Applicability and Applications of the 1980 United Nations Convention

Franco Ferrari (New York Univ. - Law) has published Contracts for the International Sale of Goods: Applicability and Applications of the 1980 United Nations Convention (Martinus Nijhoff Publishers 2011). Here's the abstract:

Contracts for the International Sale of Goods provides an examination of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Extensively referenced, this volume focuses on three fundamental issues, which, due to added attention from courts and arbitral tribunals, are considered “typical” of CISG related disputes. These include the exact determination of the CISG’s sphere of application; issues relating to the non-conformity of delivered goods; and the determination of the rate of interest on sums in arrears. This analysis will also help readers understand the broader context in which these issues are embedded, and ultimately illustrates how the CISG is interpreted and applied in different jurisdictions.

Symposium: The 2010 UNIDROIT Principles of International Commercial Contracts: Towards a “Global” Contract Law

On October 28, 2011, the Georgetown University Law Center will host a symposium on "The 2010 UNIDROIT Principles of International Commercial Contracts: Towards a 'Global' Contract Law." The agenda is here. Here's the idea:

UNIDROIT’s Principles of International Commercial Contracts, first adopted in 1994 and revised in 2004, are widely used in international contracting and arbitration practice as well as by domestic courts and international arbitral tribunals to interpret and supplement both contractual provisions and relevant domestic law. The most recent amendments were adopted in 2010 and given final approval by UNIDROIT’s Governing Council in May 2011.

This symposium will provide an overview of the Principles from a trans-Atlantic perspective, with particular focus on the most recent revisions (which concern restitution in case of failed contracts, illegality, conditions, and plurality of obligors and obligees). The speakers and roundtable participants include experts on the Principles and more generally in the field of international commercial transactions and dispute resolution.

The Symposium will be of particular interest to private practitioners and corporate counsel involved in drafting and negotiating international commercial contracts as well as in litigating or arbitrating disputes arising thereunder. Those who teach international commercial transactions will find it especially timely and useful.

It will also offer a unique opportunity to learn about UNDROIT’s overall agenda and achievements. UNIDROIT’s Secretary-General, José Angelo Estrella Faria, will present the keynote.

Kröll et al.: Liber Amicorum Eric Bergsten

Stefan Kröll, Loukas A. Mistelis, Pilar Perales Viscasillas, & Vikki Rogers have published International Arbitration and International Commercial Law: Synergy, Convergence and Evolution - Liber Amicorum Eric Bergsten (Wolters Kluwer 2011). The table of contents is here. Here's the abstract:

Now, on the occasion of his eightieth birthday, the international arbitration and sales law community has gathered to honour him with this substantial collection of new essays on the many facets of the field to which he continues to bring his intellect, integrity, inquisitive nature, eye for detail, precision, and commitment to public service.

Celebrating the long-standing and sustained contribution Eric Bergsten has made in international commercial law, international arbitration, and legal education, more than fifty colleagues – among them quite a few of the best-known arbitrators and arbitration academics in the world – present 45 pieces that, individually both engaging and incisive, collectively present a thorough and far-reaching account of the state of the field today, with contributions covering international sales law, commercial law, commercial arbitration, and investment arbitration.

In addition, nine essays on issues in legal education mirror the great importance of the renowned Willem C. Vis International Commercial Arbitration Moot, Eric’s Vienna project which has offered a life-changing experience for so many young lawyers from all over the world.

Conference: Global Challenges of International Sales Law

The University of Florida Center for International Business Education & Research and the Warrington College of Business Administration will host a conference on "Global Challenges in International Sales Law," November 11-12, 2011. The agenda is here. Here's the idea:

This conference will provide information on multiple levels—understanding the rules of the CISG, the application of the CISG by signatory countries, theoretical insights, and its use by international transactional attorneys. It will also include a presentation by Luca Castellani, legal officer in the Secretariat of the United Nations Commission on International Trade Law, on the substance and status of complimentary conventions. This conference will ask many questions, including the following:

• How has the CISG evolved? Why it is important?
• What are the best sources for CISG law? How does one conduct research in international sales law?
• How is the CISG different from the Uniform Commercial Code, English Sale of Goods Act, and other national laws?
• How have substantive provisions of the CISG been interpreted and applied by national court systems and arbitral panels?
• What are the problems of uniform law?
• Can the differences between the common law and civil law be overcome in the application of the CISG?
• Why should legal practitioners embrace or partially embrace the CISG in serving their clients?
• Is avoidance of the CISG a ground for a claim of malpractice?
• How should one negotiate and draft an international sales contract?

Galgano & Marrella: Diritto del commercio internazionale (terza edizione)

Francesco Galgano (Univ. of Bologna - Law) & Fabrizio Marrella ("Cà Foscari" Univ. of Venice - Law) have published the third edition of Diritto del commercio internazionale (CEDAM 2011). Here's the abstract:

This book is the leading textbook on International Business Law in the Italian language. It aims at a comprehensive coverage of the legal issues global business managers face. Focusing on the trade, licensing and investment life-cycle that many domestic - new to international - and multinational organizations experience, it provides the necessary understanding of legal issues concerning import-export, market-entry strategies, protecting and licensing intellectual property to learning the special challenges of international investment operations. The third edition is updated to the most significant developments in the field such as: the Lisbon Treaty; Regulation Rome I on the law applicable to contractual obligations and Regulation Rome II on the law applicable to non contractual obligations. In addition, it offers updated information on, inter alia, the Unidroit Principles on International Commercial Contracts (2010); the new UCP 600 (the Uniform Customs and Practice for Documentary Credits, i.e. a set of rules on the issuance and use of letters of credit utilised by bankers and commercial parties in more than 175 countries in trade finance); INCOTERMS 2010; payment modalities, contracts of carriage and new ICC rules for demand guarantees. A special emphasis is given to arbitration as the main tool for dispute resolution in the international business world.

Kröll et al.: The United Nations Convention on Contracts for the International Sale of Goods: Article by Article Commentary

Stefan Kröll (Bucerius Law School), Loukas A Mistelis (Queen Mary Univ. of London- Law), & Maria del Pilar Perales Viscacillas (Universidad Carlos III de Madrid - Law) have published The United Nations Convention on Contracts for the International Sale of Goods: Article by Article Commentary (C.H. Beck, Hart Publishing, Nomos 2011). Here's the abstract:

Thirty years after the approval on the 19th April 1980, the United Nations Convention on Contracts for the International Sale of Goods, the CISG, has become the law of international sales. In the meantime 76 states have ratified the CISG which make up for more than two thirds of the global trade. Despite CISG's practical importance and its global reach the commentary literature on the CISG in English, the language of international trade, is rather limited. This book is intended to fill this gap and to supplement the few existing commentaries by a truly international work which takes into account the various legal settings in which the CISG is applied. The Commentary is designed as a German type of commentary which provides an authoritative "Article-by-Article" comment to the CISG. Its structure strictly follows the structure of the provisions of the Convention. Specific topics, e.g. E-Commerce and the CISG, comparative contract texts such as Unidroit Principles of International Commercial Contracts, European Principles of Contract Law and Draft Common Frame of Reference, are dealt with in the context of the comments of the pertinent articles. The Incoterms are also dealt with in detail.

Vogenauer: Common Frame of Reference and UNIDROIT Principles of International Commercial Contracts: Coexistence, Competition, or Overkill of Soft Law?

Stefan Vogenauer (Univ. of Oxford - Law) has posted Common Frame of Reference and UNIDROIT Principles of International Commercial Contracts: Coexistence, Competition, or Overkill of Soft Law? (European Review of Contract Law, forthcoming). Here's the abstract:

This paper compares the scope, the purpose, the legal effect and the content of the emerging Common Frame of Reference on the one hand and the UNIDROIT Principles of International Commercial Contracts on the other. It predicts that the two instruments will largely coexist side by side, rather than compete for potential users. The author further argues that, in the area of commercial law, there is no strong need for a non-binding, or ‘soft’ Common Frame of Reference because the UNIDROIT Principles are sufficiently capable of performing the functions that such a Frame of Reference can legitimately claim to fulfil: the Common Frame of Reference may be just one soft law instrument too many.

Coyle: Rethinking the Commercial Law Treaty

John Coyle (Harvard Univ. - Law) has posted Rethinking the Commercial Law Treaty (Georgia Law Review, forthcoming). Here's the abstract:

In international commercial transactions, it is not always clear which state’s law will apply to govern a particular contract. Historically, states have sought to address this problem by means of two types of treaties. The first aims to solve the problem by bringing about the substantive unification of commercial law across multiple jurisdictions; once the law is everywhere the same, then it no longer matters which state’s law applies to govern the contract. The second aims to solve the problem in part by empowering the transacting parties to choose the law that will govern their contract; once these parties know that their choice of law will be respected by national courts, then the uncertainty as to the governing law goes away.

The conventional wisdom has long been that substantive unification represents the better approach to solving the problem of legal uncertainty. This Article challenges that conventional wisdom to argue that, in fact, a choice-of-law approach may be superior. It does so, first, by identifying weaknesses in the two rationales that have most frequently been advanced in favor of substantive commercial law treaties – that they are uniquely able to reduce transaction costs and that they offer law uniquely suited to the needs of international commercial transactions. The Article then explains how a choice-of-law treaty could lead to the development of better commercial law that more accurately captures the preferences of parties engaged in international commerce by facilitating the development of an international market for commercial law.