Vol. 15 No.9 (September 2005), pp.847-849
ISSUES IN INTERNATIONAL COMMERCIAL LAW, by Iwan Davies (ed.). Hampshire, England, and Burlington, Vermont: Ashgate Publishing Co., 2005. 246pp. Hardback. $124.95/£65.00/€114.00. ISBN: 0754624625.
Reviewed by Michael L. Rustad, Thomas F. Lambert Jr. Professor of Law & Co-Director of Intellectual Property Law Program, Suffolk University Law School, Boston. Email: profrustad [at] aol.com .
Robert Kagan’s article in THE ECONOMIST entitled, “Old America v. New Europe,” explodes our assumption that Europe is a clapped-out old continent. The “new Europe” of the European Union is a mere teenager when one considers its cross-national commercial law framework. Professor Kagan notes how America’s political system is old as compared to the upstart European Community. The purpose of ISSUES IN INTERNATIONAL COMMERCIAL LAW is to introduce the reader chiefly to European commercial law developments, although there is some coverage of comparative commercial law. The volume is composed of a collection of essays submitted to the JOURNAL OF INTERNATIONAL COMMERCIAL LAW.
Most chapters make comparisons between the commercial law of the countries of New Europe and Old America. Editor Iwan Davies divides the commercial law essays into three parts: “Credit and Security,” “Contractual Issues,” and “International Commercial Regulation.” Although most chapters are about private commercial law, there is some coverage of public law topics such as insolvency proceedings and cross-border criminal law enforcement.
A number of the chapters focus on the domestic commercial law of the United Kingdom, Lithuania, and Argentina without considering cross-border transactions. In Louise Gullifer’s chapter on quasi-security interests, the comparisons are between Uniform Commercial Code Article 9 style systems of perfecting security interests and the more formalistic approach of England and Wales. Professor Smaliukas’ descriptive chapter is largely about perfecting security interests in Lithuania. Davies’ article primarily considers the patent regime and intellectual property registries found in England and Wales. While he makes comparisons between US and UK law, there is no guidance on how the international business concern would go about perfecting security interests. Ryder’s historical analysis of the development of credit unions in Great Britain and the United States is concerned essentially with the ineffective regime in the United Kingdom.
The Part on Contract Law would have been of greater value had it covered international sales law or the law of services rendered in the cross-border environment. Although security interests may be important, the law of international sales is the gravaman of international commercial law. I have [*848] taught courses in private international law from a comparative perspective at the University of Lund in Sweden every other summer since 2000. Last summer I taught International Contract Law in Mexico City for the University of San Diego. My American and European students (Swedish, Czech, Serbian, and German) have responded well to the comparative approach to international comparative law. Because this book does not cover international sales law in any depth, it is not suitable as a law school text.
This book would be a good supplemental text in comparative commercial law courses, if it covered a broader range of topics. Most international commercial law texts used in law schools would require extensive coverage of the Convention for the International Sales of Goods (1980) (CISG) and other UNCITRAL projects not examined in this work. A decade ago no commercial law text covered CISG in a conventional sales course, but in the last five years, a quiet revolution has occurred in the teaching of sales law in American law schools. Increasingly, courses present sales law from a national and an international perspective, and the current edition of most commercial casebooks cover the CISG in great detail. Elizabeth Macdonald and David Poyton’s chapter, “E-Commerce: Recognizing the Context,” is the most relevant to international contract law. With the development of the Internet, ancient doctrines of contract law such as the mailbox rule will need to be revised (p.157).
International commercial law is evolving at a rapid pace. The e-commerce chapter in this book is already out of date, since the Brussels Convention has been displaced in most European Union countries by the Brussels Regulation as of March of 2003. Lawyers representing businesses will be interested in the discussion of the home court rules now found in Articles 15 through 17 of the Brussels Regulation (pp.164-165). In the United States, the minimum contacts framework determines personal jurisdiction; whereas bright-line rules, such as “home court” rules, are found throughout New Europe. American law professors will be interested in a number of topics covered in this book. The chapter on electronic commerce covers issues relevant to sales law, such as the Brussels Convention and the Rome I Convention on choice of law. Rome I validates the parties’ choice of law but has special non-waivable protection for consumers. Companies in the United States need to learn about the Unfair Terms Directive in e-commerce transactions (p.167).
Political scientists and other social scientists will find this book to be a difficult read and of limited relevance. Davies’ chapter is the only piece to cover any jurisprudential concepts in any detail. However, there may be an audience for the book outside the law school and liberal arts markets. Foreign lawyers need to understand cross-border credit and security interest issues, e-commerce law, international trade law, and international money laundering regulations. Sophisticated American lawyers and law students need to understand the origin of credit union law, the law of the sea, international navigation rights, and perfecting security interests in the UK. Foreign business lawyers would be interested in knowing the similarities and differences between Article 9 [*849] and the UK secured transactions. American e-businesses targeting Europeans will need to comply with European Directives, such as the Distance Selling Directive and Products Liability Directive, covered in Macdonald’s and Poyton’s “E-Commerce: Recognizing the Context” (Chapter Seven). Similarly, American business lawyers need to understand European provisions for jurisdiction and judgments (Brussels Convention) and Choice of Law (Rome I Convention). Transnational commercial law norms are developing rapidly. Just as in the era of pie poudre courts, it is now possible to identify transnational commercial law legal norms. Cross-border commercial law fosters standardized commercial practices throughout Europe and the world.
Kagan, Robert. 2003. “Old America v. New Europe.” THE ECONOMIST, Feb. 20.
Whitehead, Alfred North. 1927. SYMBOLISM. Cambridge: Cambridge University Press.
© Copyright 2005 by the author, Michael L. Rustad.