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***