1 TRANSNATIONAL CONTRACT LAW

Part Ⅰ General

1.1 Introduction

1.1.1 Modern Contract Law:Nature of the Parties or Type of Contract?

1.1.2 The Effect of Globalisation

1.1.3 Content and Coverage of this Chapter

1.1.4 Modern Contract Theory

1.1.5 A New Model of Contract Law?

1.1.6 Modern Contract Theory and the Normative Interpretation Technique

1.1.7 The Challenge of E-commerce

1.2 Formation of Contracts in Civil and Common Law

1.2.1 The Development of Contract Law and the Role of Parties' Intent in Civil Law.The Notion of Consensus as the Basis for Contract Validity

1.2.2 The Notions of Consideration,Exchange or Bargain in the Common Law of Contract.Meaning of Intent,Offer and Acceptance

1.2.3 The Development of the Consideration Notion in Common Law.The Modern Alternative of Detrimental Reliance

1.2.4 Contracts:Construction and Remedies in Common and Civil Law.The Parole Evidence Rule

1.2.5 The Practical Significance of the Consideration Requirement in Common Law

1.2.6 The Common Law Notion of Consideration and the Civil Law Notion of Causa Compared

1.2.7 Other Aspects of Contractual Validity:Capacity and Authority

1.2.8 Other Aspects of Contractual Validity:Formalities

1.2.9 Other Aspects of Contractual Validity:Definiteness

1.3 The Normative Interpretation Technique in Practice:The Civil Law Notion of Good Faith,the Common Law Alternatives,and the Role of Other Sources of Private Law

1.3.1 The Modern Normative Approach and the Concept of Dynamic Contract Law

1.3.2 Roman Law,Ius Commune,Nineteenth-century Thinking,and the Modern Revival of Multiple Sources of Contract Law

1.3.3 The Notion of Good Faith in Civil Law

1.3.4 Good Faith as a Multifaceted Notion in Civil Law

1.3.5 Institutional Aspects of the Operation of the Notion of Good Faith in Civil Law

1.3.6 Good Faith,Legal Positivism and System Thinking in the Codification Manner.The Bridge to the Common Law and the Connect with the Transnationalisation Process of Private Law in the Professional Sphere

1.3.7 Good Faith in Common Law.Alternatives.Equity Distinguished

1.3.8 EU Notion of Good Faith

1.3.9 Good Faith and Sources of Law in the CISG,UNIDROIT and European Contract Principles.The DCFR

1.3.10 When is Good Faith a Mandatory Concept?

1.3.11 Practical Effects of Good Faith or Normative Thinking:The Nature of Pre-contractual Information and Disclosure Duties,Meaning of Consensus,Mistake,Misrepresentation,and Gross Disparity

1.3.12 Practical Effects of Good Faith or Normative Thinking:Pre-contractual Negotiation Duties,Co-operation Duties,and Abuse of Contractual Rights

1.3.13 Practical Effects of Good Faith or Normative Thinking:The Status of Commercial Letters of Intent

1.3.14 The Practical Effects of Good Faith or Normative Thinking:Force Majeure and Change of Circumstances in Professional Dealings

1.4 Performance of the Contract,Defences,Default,and Excuses,Termination

1.4.1 Performance in Kind/Specific Performance

1.4.2 Lack of Consensus or Defences to Performance:Invalidity and Rescission

1.4.3 Excuses and the Meaning of Promises,Conditions and Warranties in Connection with Performance in Common Law.Conditions,Representations/Warranties and Covenants in Financial Contracts

1.4.4 Default or Breach and Damages

1.4.5 Force Majeure and Change of Circumstances

1.4.6 The Definition of the Concept of Force Majeure.Frustration and Economic Impossibility.Development in Civil and Common Law

1.4.7 Unforeseen Circumstances and the Balance of the Contract:Hardship and Renegotiation Duties

1.4.8 Modern Legislative Approaches to a Change in Circumstances

1.4.9 Contractual Hardship Clauses

1.5 Privity of Contract

1.5.1 Privity of Contract or Third Party Rights and Duties under a Contract

1.5.2 Development of Contractual Third-Party Rights and Duties in Civil Law

1.5.3 The Situation in Common Law and the Changes in the USA and England

1.6 The UNIDROIT and European Principles of Contract Law:Vienna Convention and UCC Compared.The Draft Common Frame of Reference in the EU(DCFR)

1.6.1 Unification of Contract Law.Formal and Academic Efforts.The EU Activity in this Area

1.6.2 The Unitary Approach

1.6.3 The UNIDROIT Principles for International Commercial Contracts

1.6.4 The European Principles of Contract Law(EPCL)

1.6.5 The Draft Common Frame of Reference(DCFR)

1.6.6 Interpretation and Supplementation in the Principles and the DCFR.Sources of Commercial and Financial Law,Hierarchy and Lex Mercatoria

1.6.7 Approach to Contract Formation:Consensus and Exchange Notions,Capacity,Formalities and Specificity

1.6.8 Defences and Excuses.The Question of Continued Validity of the Contract

1.6.9 Performance,Breach,and Excuses

1.6.10 Privity of Contract

1.6.11 The Nature and Impact of the Contract Principles and DCFR

Part Ⅱ Contracts for the International Sale of Goods

2.1 The Main Aspects of the International Sale of Goods

2.1.1 Introduction

2.1.2 The Minimum Requirements of the Sales Agreement:Special Features and Risks of International Sales

2.1.3 Legal Risk in International Sales

2.1.4 Special Arrangements to Cover the Risks of International Sales

2.1.5 International Sales as Contracts between Professionals:Applicable Law

2.1.6 Currency and Payments in International Sales:Free Convertibility and Transferability of Money

2.1.7 The Transfer of Title in International Sales

2.1.8 Conform Delivery and the Passing of Risk in International Sales

2.1.9 The Passing of Risk in the Sale of Goods in Civil and Common Law

2.1.10 Proprietary Sales Price Protection in Civil and Common Law

2.1.11 The Retention Right of the Seller

2.1.12 Alternatives to the Reclaiming Rights in International Sales.The Letter of Credit

2.2 Ancillary Arrangements in International Sales.The Role of Intermediaries and Documents

2.2.1 The Safe Harbour Function:Agents and Documents of Title

2.2.2 The Use of Agents:Their Position

2.2.3 The Use of Negotiable Documents of Title in International Sales:Bills of Lading and Warehouse Receipts

2.2.4 Documents of Title in Payment Schemes in International Sales:Bills of Lading

2.2.5 The Use of Negotiable Instruments in International Sales:Bills of Exchange

2.3 The Uniform International Sales Laws.The CISG

2.3.1 Origin and Scope

2.3.2 The Coverage of the Vienna Convention

2.3.3 The System of the Vienna Convention:Directory or Mandatory Rules?

2.3.4 Applicability of the Vienna Convention

2.3.5 The Sales Law of the Vienna Convention.Formation

2.3.6 The Sales Law of the Vienna Convention.Substance,Default and Remedies

2.3.7 Supplementation and Interpretation of the Vienna Convention

2.3.8 The Interpretation of International Sales Contracts under the Vienna Convention:Meaning of Conduct and Custom in Terms of Contract Interpretation

2.3.9 Supplementation of the Vienna Convention:Private International Law and the Rome Convention on the Law Applicable to Contractual Obligations

2.3.10 The Main Rules of the 2008 EU Regulation on the Law Applicable to Contractual Obligations

2.3.11 The Vienna Convention and the Different Trade Terms in International Sales

2.3.12 Incoterms,Their Status and Relation to the UCC and Vienna Convention

2.3.13 The Vienna Convention and the ICC Model International Sales Contract.The 2004 Principles of European Law:Sales

2.3.14 The Law Merchant Concerning International Sales

Part Ⅲ Contractual Agency

3.1 The General Notion of Agency

3.1.1 The Use of Agents:Their Position

3.1.2 The Role of the Agent:Explicit and Apparent Authority

3.1.3 The Notion of Independence,Apparent Authority and Agencies of Necessity

3.1.4 The Consequences of Agency:Conflicts of Interests,Rights and Duties of the Agent

3.1.5 Undisclosed and Indirect Agencies

3.1.6 The Civil Law Indirect Agency.The Relationship between Principal and Third Party.Customers' Assets

3.1.7 The Economic Importance of Modern Agency

3.2 International Aspects of Agency

3.2.1 Private International Law Aspects of Agency

3.2.2 Treaty Law Concerning the Law Applicable to Agency

3.2.3 The Lex Mercatoria and Agency

3.2.4 The EU Commercial Agent Directive

2 TRANSNATIONAL MOVABLE PROPERTY LAW

Part Ⅰ Ownership,Possession and Limited,Future,Conditional or Temporary Proprietary Rights in Chattels and Intangible Assets

1.1 Introduction

1.1.1 Proprietary Laws in Common and Civil Law

1.1.2 Types of Assets.Claims

1.1.3 Types of Movable Assets and the Requirement of Economic Value and Commerciability.Notions of Identity,Specificity and Definiteness and their Inherent Constraints

1.1.4 Importance of the Law of Chattels and Intangibles in Civil and Common Law.Its Development besides Land Law

1.1.5 The Traditional Physical and Anthropomorphic Approach to Property Rights.Modern Developments

1.1.6 The Effect of Financial Law and the Need for New Financial Structures

1.1.7 Comparative Law,Transnationalisation,and the DCFR

1.2 The Types of Proprietary Rights in Civil Law

1.2.1 The Difference between Proprietary and Obligatory Rights in Civil Law

1.2.2 Nature and Structure of Proprietary Rights and their Special Manner of Protection in Civil Law.The Numerus Clausus Notion

1.2.3 The Traditional Proprietary Rights in Civil Law and the Way They are Held.Common Law Compared

1.2.4 The Way Proprietary Rights are Protected in Civil Law:Constructive Possession and Holdership

1.2.5 The Acquisitive Prescription and its Importance in Civil Law.Difference with the Protection of Bona Fide Purchasers

1.2.6 Civil Law Proprietary Defences in Bankruptcy

1.2.7 The Civil Law Relativity or Priority Principle in Respect of Proprietary Rights:The Difference with the Relativity of Obligatory Rights

1.3 The Types of Proprietary Rights in Common Law:The Practical Differences with Civil Law.Modern Functional Theories

1.3.1 Legal and Equitable Interests in Chattels

1.3.2 Ownership and Possession of Chattels in Common Law

1.3.3 Equitable Proprietary Interests in Chattels

1.3.4 The Common Law System of Proprietary Defences:Tort Actions Based on Better Rather Than Absolute Rights

1.3.5 Constructive Possession in Common Law.The Absence of Acquisitive Prescription.Statutes of Limitation

1.3.6 The Situation in Bankruptcy

1.3.7 Practical Differences between the Common and Civil Law Approaches to Proprietary Rights in Chattels

1.3.8 Approximation of the Common and Civil Law Systems of Proprietary Law in Chattels.Emphasis on User,Enjoyment and Income Rights.The Unifying Impact of Modern Financial Structures and the Requirements of Modern Risk Management.The Need for and Effect of Legal Transnationalisation

1.3.9 Virtues and Pitfalls of the Numerus Clausus Notion.Modern Functional Approaches

1.4 Transfer of Proprietary Rights in Chattels in Civil and Common Law

1.4.1 The Legal Requirements for the Transfer of Chattels

1.4.2 The Formalities of a Sale:Contract or Delivery(Physically or Constructively);Double Sales,the Real or Proprietary Agreement in Civil Law

1.4.3 The Importance of Identification.Effect on the Transfer.Sales of Future Assets,Bulk Transfers,and De Facto Transfers of Title

1.4.4 The Development of the Rules Concerning Delivery as a Formal Requirement of Title Transfer in Civil and Common Law

1.4.5 Legal Capacity and Disposition Right.Causes of Contractual Invalidity.Effect on the Title Transfer.Future,Conditional and Temporary Sales

1.4.6 The Transfer Agreement:The Abstract and Causal System of Ownership Transfer.The Finality Issue

1.4.7 The Origin of the Abstract and Causal Views of Title Transfer

1.4.8 Disposition Rights and their Failure:The 'Nemo Dat' Rule and the Protection of Bona Fide Purchasers.Its Contribution to Finality

1.4.9 On the Origin of the 'Nemo Dat' Rule and the Principle of Bona Fide Purchaser Protection

1.4.10 The Retention Right of the Seller in the Case of Default of the Buyer

1.5 Proprietary Rights in Intangible Assets in Civil and Common Law

1.5.1 Asset Status of Intangibles.Proprietary Rights in Intangible Assets and the Possibility and Method of their Transfer

1.5.2 Assignments,Conditions and the Meaning of Notification.Bulk Assignments.The Situation in Double Assignments.Civil Law Development.

1.5.3 The Development in Common Law.Equitable Assignments and Bulk Transfers

1.5.4 Assignment of Rights and Delegation of Duties.The Transferability of Entire Contracts.The Debtor's Defences

1.5.5 The Status of Closely Related Rights and Duties and the Impact of Contractual Restrictions on the Transfer.Amendment of the Underlying Contract

1.5.6 The Assignability of Future Claims

1.5.7 Assignment,Novation,Amendment,Subrogation and Subcontracting

1.5.8 Different Types and Objectives of Assignments

1.5.9 The Better Right of the Assignee.The Notion of Abstraction,Independence and Finality.Comparison with Negotiable Instruments

1.5.10 The Notion of Abstraction or Independence and the Liberating Effect of Payment by the Debtor

1.5.11 The Ranking between Assignees,The Nemo Dat Rule in Assignments

1.5.12 Contractual and Proprietary Aspects of Assignments.Mandatory Rules.Applicable Law and Party Autonomy

1.5.13 Special Assignment Issues:Warranties,Conditions and Default

1.5.14 Bankruptcy Aspects of Assignments.Recourse and Non-Recourse Financing

1.5.15 Uniform Rules Concerning Assignments?

1.6 Trusts,Constructive and Resulting Trusts,Tracking and Tracing.Agency.The Civil Law Response

1.6.1 Basic Features of the Common Law of Trust

1.6.2 Definitional Issues,Fiduciary Duties and Court Intervention

1.6.3 The Practical Significance of Trusts in Common Law Countries

1.6.4 Constructive Trusts,Tracing and Tracking,Resulting Trusts,Statutory Trusts and Charitable Trusts

1.6.5 Trust and Agency.Trust and Bailment

1.6.6 Related Civil Law Structures

1.6.7 Private International Treaty Law and Trust Law Principles

1.7 Secured Transactions and Conditional Sales.Floating Charges

1.7.1 The Importance of Conditional Sales in Finance and the Difference with Secured Transactions

1.7.2 What are Sale-Repurchase Agreements or Finance Sales?The Characterisation Issue.Property-based and Security-based Funding

1.7.3 The Evolution of Conditional and Temporary Transfers in Civil and Common Law

1.7.4 When are Finance Sales Converted into Secured Transactions?

1.7.5 The Operation of Finance Sales.Effect of the Conditionality of the Transfer.Proprietary Effect of Conditions.Duality of Ownership and of Possession in Civil Law.Openness of Proprietary Systems?

1.7.6 Examples of Finance Sales:Finance Leases,Repos and Factoring.Finance Sales as Executory Contracts,Cherry Picking and Netting

1.7.7 The Outward Signs of Security Interests and Ownership-Based Funding.Possession or Filing.

1.7.8 Attachment and Perfection of Security Interests in Movable Property under the UCC in the US.Meaning and Weakness of the Filing System

1.7.9 Floating Charges in Common and Civil Law.Extended Reservations of Title.The Concepts of Bulk Transfers,Asset Substitution and Tracing and the Inclusion of Future Assets.The Facility to Sell Goods Free and Clear

1.7.10 Uniform Security Law and Principles of Security Laws

1.8 Private International Law Aspects of Chattels

1.8.1 When Conflicts Arise

1.8.2 The Application of the Lex Situs

1.8.3 The Notions of Equivalence and Adaptation;Conditional Ownership,Security and Retention Rights

1.8.4 Trusts:The 1985 Hague Convention on the Law Applicable to Trusts and Their Recognition

1.8.5 The Details of the Trust Convention

1.8.6 Uniform Laws Concerning the Proprietary Aspects of Chattels

1.8.7 The Lex Mercatoria Concerning Chattels

1.9 Private International Law Aspects of Assignments

1.9.1 The Various Aspects of Assignments.Conflicts of Law Issues especially in respect of Bulk Assignments

1.9.2 Terminology and Characterisation Issues

1.9.3 Mandatory Proprietary Laws Relating to Assignments.Lex Situs Issues

1.9.4 Current Approaches to Choice of Laws Issues in Assignments:Different Approaches to the Legal Situs of Debts

1.9.5 EU Regulation and Treaty Law Approaches to the Law Applicable to Assignments:The Choice of Law Provision of Article 14 of the EU Regulation and the Uniform UNCITRAL Convention on the Assignment of Receivables in International Trade

1.9.6 The Lex Mercatoria Concerning Bulk Assignments

1.10 The Modern Law of Chattels and Intangibles

1.10.1 Traditional and New Approaches

1.10.2 The Modern Structure of Proprietary Rights as Promoted by International Commerce and Finance.Transnationalisation

1.10.3 Paucity of Modern Property Theory

1.11 The European Draft Common Frame of Reference(DCFR)

1.11.1 Introduction

1.11.2 Chattels and their Transfer.The Problem of Physical Possession

1.11.3 Intangible Assets and their Assignment.The Problem of Asset Status

1.11.4 Security Interests.Treatment of Finance Sales and Floating Charges

1.11.5 Trusts.The Question of Systemic Integration

1.11.6 Certainty,Finality and Predictability

1.12 Uniform or Harmonised Statutory Law or Transnationalisation

1.12.1 Consumers and Professionals

1.12.2 Different Sources of Law in the Professional Sphere

1.12.3 Dynamic Movable Property Law

Part Ⅱ Negotiable Documents of Title and Negotiable Instruments

2.1 The Role of Documents

2.1.1 Bills of Lading and Warehouse Receipts

2.1.2 The Concepts of Document of Title and Negotiability

2.1.3 The Origin and Nature of the Bill of Lading and its Operation in the Proprietary Aspects of the Transfer of Goods

2.1.4 Consequences of the Different Attitudes to Documents of Title when Goods are Transferred to Transferees Other than through a Transfer of the Bill of Lading

2.1.5 The Transfer of Risk

2.1.6 The Named or Straight Bill of Lading and Sea Waybills

2.1.7 Private International Law Aspects of Bills of Lading

2.1.8 Lex Mercatoria and Uniform Treaty Law Concerning Bills of Lading.The Hague,Hague-Visby,Hamburg and Rotterdam Rules

2.2 Negotiable Instruments

2.2.1 Bills of Exchange

2.2.2 Acceptance and Discounting of Time Drafts

2.2.3 The Persons Liable under a Bill of Exchange:Recourse

2.2.4 The Principle of Independence or Abstraction

2.2.5 The Holder in Due Course.Personal and Real Defences.Other Types of Holders

2.2.6 Cheques

2.2.7 Modern Use of Bills of Exchange and Cheques

2.2.8 Bills of Exchange and Competing Assignments of the Underlying Claim

2.2.9 Position of the Holder in Due Course of a Bill of Exchange Compared to the Bona Fide Holder of a Bill of Lading

2.2.10 Foreign Bills of Exchange:Private International Law Aspects

2.2.11 Uniform Treaty Law

2.2.12 The Lex Mercatoria Concerning Bills of Exchange

2.3 The Dematerialisation of Documents of Title and Negotiable Instruments;Electronic Transfers

2.3.1 The Traditional Use of Documents of Title and Negotiable Instruments.Their Inconveniences and Risks.Sea Waybills and Indemnities

2.3.2 Electronic Systems and Their Importance in Replacing Transportation Documents.The CMI Rules and Bolero.Clearing and the Use of Central CounterParties?

2.3.3 The Situation with Regard to Bills of Exchange:Electronic Bank Transfers.The Facility of '@Global Trade'

Part Ⅲ Investment Securities

3.1 The Different Types of Shares and Bonds

3.1.1 Traditional Distinctions.Negotiable Instruments and Transferable Securities.Dematerialisation

3.1.2 The Notions of Immobilisation,Bookentry Systems,Security Entitlements,and Compartmentalisation.Securities Accounts and Bank Accounts Distinguished

3.1.3 Transfer Instructions and Finality.Tiered and Chained Systems of Transfer

3.1.4 Negotiability and Transferability of Investment Securities under Domestic and Transnational Law.Use of Securities Entitlements to Enhance Transferability and Liquidity

3.1.5 The Risk Factors in the Holding and Transfer of Investment Securities and Securities Entitlements.Bankruptcy Issues and Risk Reduction Techniques.The EU Settlement Finality Directive

3.1.6 Modern Clearing and Settlement Systems.Their Internationalisation

3.1.7 The Evolution towards Security Entitlements.Depository Receipts and the Earlier Developments towards Dematerialisation and Immobilisation

3.2 The Internationalisation of Custodial and Settlement Systems and its Opportunities

3.2.1 The Role of the Euromarket for Bonds and the Effect on International Share Trading.The Dominant Role of International Practices and the Bankruptcy Law Implications

3.2.2 Law Applicable to Transactions in Investment Securities of the Book-entry Type

3.2.3 The Lex Mercatoria concerning International Investment Securities Transactions

3.2.4 Uniform Law:The EU Financial Collateral Directive.The UNIDROIT Project

3.2.5 EU Activities in the Field of Clearing and Settlement

Index