B735 International Business Transactions
Prof. Fidler
Fall 2011
IBT PROBLEM CHECKLIST
1. Identify the type of transaction involved:
Sale of Goods Agency/Distributorship Licensing M&A FDI J/V Development
2. Are there CONTRACTUAL ISSUES that need to be addressed?
Choice of Law
Choice of Forum
Transportation (INCOTERMS?)
Financing (UCP 600, Letters of Credit)
Term and Termination
Other missing or incomplete contract provisions that need revision or further consideration
Will the enforcement of any contractual provision be prevented or affected by national law or international law? (UCC, CSIG, other foreign law, etc.)
Etc…
3. Are there REGULATORY ISSUES that need to be addressed? (CONSULT LOCAL COUNSEL)
National Law
US Export Trade Antitrust Laws
Securities Laws Extraterritorial Jurisdiction
Anti-Boycott Legislation Foreign Corrupt Practices Act (FCPA)
EU Directives EU Competition Law
EC Treaty Law (Article 81, Article 82) Chinese Law on Sino-Foreign Equity JVs
Tax laws
Etc…and their effect on contract issues like choice of law/forum (can’t contract around regulatory regimes)
International Law
GATT/TRIPS
BITs
Bilateral Tax Treaties
4. OTHER SPECIAL ISSUES to consider:
Other applicable International Law (custom and treaty, expropriation issues)
International Trade Law and Issues (GATT, WTO, IMF, etc.)
Taxes (CONSULT AN EXPERT!)
Dispute Settlement (domestic courts, arbitration, ad hoc arbitration, choice of law/forum)
RECOGNITION AND ENFORCEMENT! (national rules, NY Convention, Brussels Convention, etc.)
Human Rights (direct, indirect—soft law codes of conduct, etc., ATS)
SPECIAL ISSUES FOR SPECIAL TRANSACTIONS
Int’l Sale of Goods:
CISG
INCOTERMS
Letters of Credit (UCP 600)
Export Trade, Re-Export, Extraterritoriality (Is a license needed?)
Anti-Boycott
FCPA
Agent/Distributor:
INCOTERMS
Payment (probably NOT letter of credit)
Representations and Warranties in K
Antitrust/Competition Law—Exclusivity Concerns (Article 81, 82)
Licensing:
IP Issues (grant-back, royalties, confidentiality, TRIPS, etc.)
Export Controls
Antitrust
Infringing and “Gray Market” Goods
Territorial Restrictions
Non-Contestation
FDI:
Choice of Corporate Form
Operation of Investment
Divestment (getting out)
NAFTA, Applicable BITs?
Political Risk Insurance
Environment, Labor, Human Rights
M&A:
Regulatory Issues become Contract Issues
Securities Law
Corporations Law
Antitrust Law
Exon-Florio
Privatization
Joint Venture:
Control
Tech Transfer/Who provides what?
Valuation/Exchange Rate
Antitrust, Securities, Corporations, Taxes, etc.
Laws on FDI
Development Agreement:
Stabilization Clauses
Choice of Law/Dispute Settlement (slightly different here)
Renegotiation
Effect of International Law on Breach or Repudiation
***ALWAYS CHECK CHOICE OF LAW, CHOICE OF FORUM, DISPUTE SETTLEMENT, and ENFORCEMENT OF AWARDS***