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1 TRANSNATIONAL CONTRACT LAW1

Part Ⅰ General1

1.1 Introduction1

1.1.1 Modern Contract Law:Nature of the Parties or Type of Contract?1

1.1.2 The Effect of Globalisation5

1.1.3 Content and Coverage of this Chapter9

1.1.4 Modern Contract Theory10

1.1.5 A New Model of Contract Law?15

1.1.6 Modern Contract Theory and the Normative Interpretation Technique19

1.1.7 The Challenge of E-commerce21

1.2 Formation of Contracts in Civil and Common Law23

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 Validity23

1.2.2 The Notions of Consideration,Exchange or Bargain in the Common Law of Contract.Meaning of Intent,Offer and Acceptance27

1.2.3 The Development of the Consideration Notion in Common Law.The Modern Alternative of Detrimental Reliance30

1.2.4 Contracts:Construction and Remedies in Common and Civil Law.The Parole Evidence Rule35

1.2.5 The Practical Significance of the Consideration Requirement in Common Law37

1.2.6 The Common Law Notion of Consideration and the Civil Law Notion of Causa Compared39

1.2.7 Other Aspects of Contractual Validity:Capacity and Authority42

1.2.8 Other Aspects of Contractual Validity:Formalities43

1.2.9 Other Aspects of Contractual Validity:Definiteness45

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 Law46

1.3.1 The Modern Normative Approach and the Concept of Dynamic Contract Law46

1.3.2 Roman Law,Ius Commune,Nineteenth-century Thinking,and the Modern Revival of Multiple Sources of Contract Law49

1.3.3 The Notion of Good Faith in Civil Law52

1.3.4 Good Faith as a Multifaceted Notion in Civil Law55

1.3.5 Institutional Aspects of the Operation of the Notion of Good Faith in Civil Law60

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 Sphere62

1.3.7 Good Faith in Common Law.Alternatives.Equity Distinguished65

1.3.8 EU Notion of Good Faith69

1.3.9 Good Faith and Sources of Law in the CISG,UNIDROIT and European Contract Principles.The DCFR71

1.3.10 When is Good Faith a Mandatory Concept?73

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 Disparity75

1.3.12 Practical Effects of Good Faith or Normative Thinking:Pre-contractual Negotiation Duties,Co-operation Duties,and Abuse of Contractual Rights78

1.3.13 Practical Effects of Good Faith or Normative Thinking:The Status of Commercial Letters of Intent80

1.3.14 The Practical Effects of Good Faith or Normative Thinking:Force Majeure and Change of Circumstances in Professional Dealings81

1.4 Performance of the Contract,Defences,Default,and Excuses,Termination83

1.4.1 Performance in Kind/Specific Performance83

1.4.2 Lack of Consensus or Defences to Performance:Invalidity and Rescission87

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 Contracts92

1.4.4 Default or Breach and Damages96

1.4.5 Force Majeure and Change of Circumstances98

1.4.6 The Definition of the Concept of Force Majeure.Frustration and Economic Impossibility.Development in Civil and Common Law101

1.4.7 Unforeseen Circumstances and the Balance of the Contract:Hardship and Renegotiation Duties103

1.4.8 Modern Legislative Approaches to a Change in Circumstances109

1.4.9 Contractual Hardship Clauses111

1.5 Privity of Contract112

1.5.1 Privity of Contract or Third Party Rights and Duties under a Contract112

1.5.2 Development of Contractual Third-Party Rights and Duties in Civil Law120

1.5.3 The Situation in Common Law and the Changes in the USA and England122

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)125

1.6.1 Unification of Contract Law.Formal and Academic Efforts.The EU Activity in this Area125

1.6.2 The Unitary Approach128

1.6.3 The UNIDROIT Principles for International Commercial Contracts130

1.6.4 The European Principles of Contract Law(EPCL)134

1.6.5 The Draft Common Frame of Reference(DCFR)137

1.6.6 Interpretation and Supplementation in the Principles and the DCFR.Sources of Commercial and Financial Law,Hierarchy and Lex Mercatoria140

1.6.7 Approach to Contract Formation:Consensus and Exchange Notions,Capacity,Formalities and Specificity142

1.6.8 Defences and Excuses.The Question of Continued Validity of the Contract145

1.6.9 Performance,Breach,and Excuses146

1.6.10 Privity of Contract147

1.6.11 The Nature and Impact of the Contract Principles and DCFR147

Part Ⅱ Contracts for the International Sale of Goods151

2.1 The Main Aspects of the International Sale of Goods151

2.1.1 Introduction151

2.1.2 The Minimum Requirements of the Sales Agreement:Special Features and Risks of International Sales153

2.1.3 Legal Risk in International Sales156

2.1.4 Special Arrangements to Cover the Risks of International Sales159

2.1.5 International Sales as Contracts between Professionals:Applicable Law161

2.1.6 Currency and Payments in International Sales:Free Convertibility and Transferability of Money164

2.1.7 The Transfer of Title in International Sales165

2.1.8 Conform Delivery and the Passing of Risk in International Sales167

2.1.9 The Passing of Risk in the Sale of Goods in Civil and Common Law171

2.1.10 Proprietary Sales Price Protection in Civil and Common Law176

2.1.11 The Retention Right of the Seller182

2.1.12 Alternatives to the Reclaiming Rights in International Sales.The Letter of Credit183

2.2 Ancillary Arrangements in International Sales.The Role of Intermediaries and Documents184

2.2.1 The Safe Harbour Function:Agents and Documents of Title184

2.2.2 The Use of Agents:Their Position186

2.2.3 The Use of Negotiable Documents of Title in International Sales:Bills of Lading and Warehouse Receipts187

2.2.4 Documents of Title in Payment Schemes in International Sales:Bills of Lading188

2.2.5 The Use of Negotiable Instruments in International Sales:Bills of Exchange190

2.3 The Uniform International Sales Laws.The CISG192

2.3.1 Origin and Scope192

2.3.2 The Coverage of the Vienna Convention194

2.3.3 The System of the Vienna Convention:Directory or Mandatory Rules?197

2.3.4 Applicability of the Vienna Convention198

2.3.5 The Sales Law of the Vienna Convention.Formation200

2.3.6 The Sales Law of the Vienna Convention.Substance,Default and Remedies201

2.3.7 Supplementation and Interpretation of the Vienna Convention206

2.3.8 The Interpretation of International Sales Contracts under the Vienna Convention:Meaning of Conduct and Custom in Terms of Contract Interpretation212

2.3.9 Supplementation of the Vienna Convention:Private International Law and the Rome Convention on the Law Applicable to Contractual Obligations215

2.3.10 The Main Rules of the 2008 EU Regulation on the Law Applicable to Contractual Obligations217

2.3.11 The Vienna Convention and the Different Trade Terms in International Sales222

2.3.12 Incoterms,Their Status and Relation to the UCC and Vienna Convention225

2.3.13 The Vienna Convention and the ICC Model International Sales Contract.The 2004 Principles of European Law:Sales228

2.3.14 The Law Merchant Concerning International Sales228

Part Ⅲ Contractual Agency231

3.1 The General Notion of Agency231

3.1.1 The Use of Agents:Their Position231

3.1.2 The Role of the Agent:Explicit and Apparent Authority235

3.1.3 The Notion of Independence,Apparent Authority and Agencies of Necessity238

3.1.4 The Consequences of Agency:Conflicts of Interests,Rights and Duties of the Agent241

3.1.5 Undisclosed and Indirect Agencies243

3.1.6 The Civil Law Indirect Agency.The Relationship between Principal and Third Party.Customers' Assets245

3.1.7 The Economic Importance of Modern Agency250

3.2 International Aspects of Agency251

3.2.1 Private International Law Aspects of Agency251

3.2.2 Treaty Law Concerning the Law Applicable to Agency253

3.2.3 The Lex Mercatoria and Agency255

3.2.4 The EU Commercial Agent Directive256

2 TRANSNATIONAL MOVABLE PROPERTY LAW259

Part Ⅰ Ownership,Possession and Limited,Future,Conditional or Temporary Proprietary Rights in Chattels and Intangible Assets259

1.1 Introduction259

1.1.1 Proprietary Laws in Common and Civil Law259

1.1.2 Types of Assets.Claims268

1.1.3 Types of Movable Assets and the Requirement of Economic Value and Commerciability.Notions of Identity,Specificity and Definiteness and their Inherent Constraints271

1.1.4 Importance of the Law of Chattels and Intangibles in Civil and Common Law.Its Development besides Land Law277

1.1.5 The Traditional Physical and Anthropomorphic Approach to Property Rights.Modern Developments280

1.1.6 The Effect of Financial Law and the Need for New Financial Structures282

1.1.7 Comparative Law,Transnationalisation,and the DCFR286

1.2 The Types of Proprietary Rights in Civil Law288

1.2.1 The Difference between Proprietary and Obligatory Rights in Civil Law288

1.2.2 Nature and Structure of Proprietary Rights and their Special Manner of Protection in Civil Law.The Numerus Clausus Notion290

1.2.3 The Traditional Proprietary Rights in Civil Law and the Way They are Held.Common Law Compared294

1.2.4 The Way Proprietary Rights are Protected in Civil Law:Constructive Possession and Holdership300

1.2.5 The Acquisitive Prescription and its Importance in Civil Law.Difference with the Protection of Bona Fide Purchasers304

1.2.6 Civil Law Proprietary Defences in Bankruptcy307

1.2.7 The Civil Law Relativity or Priority Principle in Respect of Proprietary Rights:The Difference with the Relativity of Obligatory Rights310

1.3 The Types of Proprietary Rights in Common Law:The Practical Differences with Civil Law.Modern Functional Theories312

1.3.1 Legal and Equitable Interests in Chattels312

1.3.2 Ownership and Possession of Chattels in Common Law316

1.3.3 Equitable Proprietary Interests in Chattels319

1.3.4 The Common Law System of Proprietary Defences:Tort Actions Based on Better Rather Than Absolute Rights321

1.3.5 Constructive Possession in Common Law.The Absence of Acquisitive Prescription.Statutes of Limitation325

1.3.6 The Situation in Bankruptcy326

1.3.7 Practical Differences between the Common and Civil Law Approaches to Proprietary Rights in Chattels328

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 Transnationalisation329

1.3.9 Virtues and Pitfalls of the Numerus Clausus Notion.Modern Functional Approaches335

1.4 Transfer of Proprietary Rights in Chattels in Civil and Common Law340

1.4.1 The Legal Requirements for the Transfer of Chattels340

1.4.2 The Formalities of a Sale:Contract or Delivery(Physically or Constructively);Double Sales,the Real or Proprietary Agreement in Civil Law343

1.4.3 The Importance of Identification.Effect on the Transfer.Sales of Future Assets,Bulk Transfers,and De Facto Transfers of Title348

1.4.4 The Development of the Rules Concerning Delivery as a Formal Requirement of Title Transfer in Civil and Common Law351

1.4.5 Legal Capacity and Disposition Right.Causes of Contractual Invalidity.Effect on the Title Transfer.Future,Conditional and Temporary Sales354

1.4.6 The Transfer Agreement:The Abstract and Causal System of Ownership Transfer.The Finality Issue358

1.4.7 The Origin of the Abstract and Causal Views of Title Transfer365

1.4.8 Disposition Rights and their Failure:The 'Nemo Dat' Rule and the Protection of Bona Fide Purchasers.Its Contribution to Finality371

1.4.9 On the Origin of the 'Nemo Dat' Rule and the Principle of Bona Fide Purchaser Protection375

1.4.10 The Retention Right of the Seller in the Case of Default of the Buyer381

1.5 Proprietary Rights in Intangible Assets in Civil and Common Law386

1.5.1 Asset Status of Intangibles.Proprietary Rights in Intangible Assets and the Possibility and Method of their Transfer386

1.5.2 Assignments,Conditions and the Meaning of Notification.Bulk Assignments.The Situation in Double Assignments.Civil Law Development.388

1.5.3 The Development in Common Law.Equitable Assignments and Bulk Transfers394

1.5.4 Assignment of Rights and Delegation of Duties.The Transferability of Entire Contracts.The Debtor's Defences398

1.5.5 The Status of Closely Related Rights and Duties and the Impact of Contractual Restrictions on the Transfer.Amendment of the Underlying Contract401

1.5.6 The Assignability of Future Claims406

1.5.7 Assignment,Novation,Amendment,Subrogation and Subcontracting410

1.5.8 Different Types and Objectives of Assignments413

1.5.9 The Better Right of the Assignee.The Notion of Abstraction,Independence and Finality.Comparison with Negotiable Instruments417

1.5.10 The Notion of Abstraction or Independence and the Liberating Effect of Payment by the Debtor420

1.5.11 The Ranking between Assignees,The Nemo Dat Rule in Assignments423

1.5.12 Contractual and Proprietary Aspects of Assignments.Mandatory Rules.Applicable Law and Party Autonomy427

1.5.13 Special Assignment Issues:Warranties,Conditions and Default429

1.5.14 Bankruptcy Aspects of Assignments.Recourse and Non-Recourse Financing430

1.5.15 Uniform Rules Concerning Assignments?434

1.6 Trusts,Constructive and Resulting Trusts,Tracking and Tracing.Agency.The Civil Law Response435

1.6.1 Basic Features of the Common Law of Trust435

1.6.2 Definitional Issues,Fiduciary Duties and Court Intervention441

1.6.3 The Practical Significance of Trusts in Common Law Countries443

1.6.4 Constructive Trusts,Tracing and Tracking,Resulting Trusts,Statutory Trusts and Charitable Trusts445

1.6.5 Trust and Agency.Trust and Bailment448

1.6.6 Related Civil Law Structures449

1.6.7 Private International Treaty Law and Trust Law Principles452

1.7 Secured Transactions and Conditional Sales.Floating Charges456

1.7.1 The Importance of Conditional Sales in Finance and the Difference with Secured Transactions456

1.7.2 What are Sale-Repurchase Agreements or Finance Sales?The Characterisation Issue.Property-based and Security-based Funding456

1.7.3 The Evolution of Conditional and Temporary Transfers in Civil and Common Law460

1.7.4 When are Finance Sales Converted into Secured Transactions?463

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?469

1.7.6 Examples of Finance Sales:Finance Leases,Repos and Factoring.Finance Sales as Executory Contracts,Cherry Picking and Netting472

1.7.7 The Outward Signs of Security Interests and Ownership-Based Funding.Possession or Filing.475

1.7.8 Attachment and Perfection of Security Interests in Movable Property under the UCC in the US.Meaning and Weakness of the Filing System482

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 Clear484

1.7.10 Uniform Security Law and Principles of Security Laws486

1.8 Private International Law Aspects of Chattels487

1.8.1 When Conflicts Arise487

1.8.2 The Application of the Lex Situs490

1.8.3 The Notions of Equivalence and Adaptation;Conditional Ownership,Security and Retention Rights496

1.8.4 Trusts:The 1985 Hague Convention on the Law Applicable to Trusts and Their Recognition499

1.8.5 The Details of the Trust Convention502

1.8.6 Uniform Laws Concerning the Proprietary Aspects of Chattels505

1.8.7 The Lex Mercatoria Concerning Chattels506

1.9 Private International Law Aspects of Assignments506

1.9.1 The Various Aspects of Assignments.Conflicts of Law Issues especially in respect of Bulk Assignments506

1.9.2 Terminology and Characterisation Issues512

1.9.3 Mandatory Proprietary Laws Relating to Assignments.Lex Situs Issues514

1.9.4 Current Approaches to Choice of Laws Issues in Assignments:Different Approaches to the Legal Situs of Debts516

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 Trade523

1.9.6 The Lex Mercatoria Concerning Bulk Assignments526

1.10 The Modern Law of Chattels and Intangibles527

1.10.1 Traditional and New Approaches527

1.10.2 The Modern Structure of Proprietary Rights as Promoted by International Commerce and Finance.Transnationalisation533

1.10.3 Paucity of Modern Property Theory540

1.11 The European Draft Common Frame of Reference(DCFR)550

1.11.1 Introduction550

1.11.2 Chattels and their Transfer.The Problem of Physical Possession552

1.11.3 Intangible Assets and their Assignment.The Problem of Asset Status554

1.11.4 Security Interests.Treatment of Finance Sales and Floating Charges555

1.11.5 Trusts.The Question of Systemic Integration557

1.11.6 Certainty,Finality and Predictability558

1.12 Uniform or Harmonised Statutory Law or Transnationalisation559

1.12.1 Consumers and Professionals559

1.12.2 Different Sources of Law in the Professional Sphere559

1.12.3 Dynamic Movable Property Law560

Part Ⅱ Negotiable Documents of Title and Negotiable Instruments563

2.1 The Role of Documents563

2.1.1 Bills of Lading and Warehouse Receipts563

2.1.2 The Concepts of Document of Title and Negotiability566

2.1.3 The Origin and Nature of the Bill of Lading and its Operation in the Proprietary Aspects of the Transfer of Goods569

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 Lading575

2.1.5 The Transfer of Risk576

2.1.6 The Named or Straight Bill of Lading and Sea Waybills577

2.1.7 Private International Law Aspects of Bills of Lading578

2.1.8 Lex Mercatoria and Uniform Treaty Law Concerning Bills of Lading.The Hague,Hague-Visby,Hamburg and Rotterdam Rules580

2.2 Negotiable Instruments583

2.2.1 Bills of Exchange583

2.2.2 Acceptance and Discounting of Time Drafts587

2.2.3 The Persons Liable under a Bill of Exchange:Recourse588

2.2.4 The Principle of Independence or Abstraction589

2.2.5 The Holder in Due Course.Personal and Real Defences.Other Types of Holders590

2.2.6 Cheques592

2.2.7 Modern Use of Bills of Exchange and Cheques593

2.2.8 Bills of Exchange and Competing Assignments of the Underlying Claim594

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 Lading595

2.2.10 Foreign Bills of Exchange:Private International Law Aspects595

2.2.11 Uniform Treaty Law599

2.2.12 The Lex Mercatoria Concerning Bills of Exchange600

2.3 The Dematerialisation of Documents of Title and Negotiable Instruments;Electronic Transfers601

2.3.1 The Traditional Use of Documents of Title and Negotiable Instruments.Their Inconveniences and Risks.Sea Waybills and Indemnities601

2.3.2 Electronic Systems and Their Importance in Replacing Transportation Documents.The CMI Rules and Bolero.Clearing and the Use of Central CounterParties?605

2.3.3 The Situation with Regard to Bills of Exchange:Electronic Bank Transfers.The Facility of '@Global Trade'609

Part Ⅲ Investment Securities610

3.1 The Different Types of Shares and Bonds610

3.1.1 Traditional Distinctions.Negotiable Instruments and Transferable Securities.Dematerialisation610

3.1.2 The Notions of Immobilisation,Bookentry Systems,Security Entitlements,and Compartmentalisation.Securities Accounts and Bank Accounts Distinguished614

3.1.3 Transfer Instructions and Finality.Tiered and Chained Systems of Transfer621

3.1.4 Negotiability and Transferability of Investment Securities under Domestic and Transnational Law.Use of Securities Entitlements to Enhance Transferability and Liquidity623

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 Directive627

3.1.6 Modern Clearing and Settlement Systems.Their Internationalisation633

3.1.7 The Evolution towards Security Entitlements.Depository Receipts and the Earlier Developments towards Dematerialisation and Immobilisation635

3.2 The Internationalisation of Custodial and Settlement Systems and its Opportunities638

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 Implications638

3.2.2 Law Applicable to Transactions in Investment Securities of the Book-entry Type645

3.2.3 The Lex Mercatoria concerning International Investment Securities Transactions652

3.2.4 Uniform Law:The EU Financial Collateral Directive.The UNIDROIT Project655

3.2.5 EU Activities in the Field of Clearing and Settlement658

Index661