INTERNATIONAL BUSINESS CONTRACTS revised 2011

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					Studying Law at Roma Tre             International Business Contracts 2011       Syllabus


                  INTERNATIONAL BUSINESS CONTRACTS
                         Professor Andrea Zoppini
                                 With the participation of:
                                  Avv. Fabrizio Arossa
                                   Prof. Paolo Farah
                                 Prof. Joseph Harbaugh
                   Dr. Francesca Maschio Ph.D., fmaschio@uniroma3.it
                    Dr. Rebecca Spitzmiller, rspitzmiller@uniroma3.it

                                 Spring Semester, 2011
               7 CFUs - ECTS, Mondays 10:00 – 11:45 and 14 – 15.45, Aula 6,
                              Tuesdays 10:00 – 11:45 Aula 6

    Students MUST REGISTER for this course by completing a registration FORM and
               sending it to lawschool@uniroma3.it by 25 February 2011.

Course description:
The course will examine principles of international contract law, using the Unidroit
Principles, reviewing their structure and scope; basic ideas including freedom of contract,
openness to usages, favor contractus, fair dealing and good faith, policing unfairness;
purposes; uses, and comparison both to the CISG and European Principles.
The influence that the International Chamber of Commerce has over international contract
law, together with concepts and procedures inherent to international contract arbitration will
be reviewed and analyzed.
A broad array of documents typically used in international business transactions will also be
explored.
Additionally, special lectures will be arranged in two modules by visiting professors, covering
Mergers and Acquisitions (M&A) and Negotiations in international contracts.

Course Learning Objectives
At the end of this course, successful students will:
    - Understand the basic elements of international business contracts, including doctrine and
    materials from international practice, agreements, judgments and other documents.
    - Know the specialized concepts and terminology related to international business
    contracts.
    - Recognize the attendant international institutions, organizations and doctrines that
    influence and determine the structural context in which the law operates.
    - Be able to identify legal issues in actual and/or hypothetical (moot) court cases and
    arbitration, and to be able to argue either side of these issues.
    - Have improved verbal and written communication skills, including skills in advocacy
    and negotiation, through legal writing and argumentation in English.
    - Be familiar with basic documents relevant to international business contracts - both
    doctrinal and exemplars of sales contracts and other agreements - from which to further
    substantive knowledge and to perfect legal English language skills.
    - Be familiar with legal notions and procedures relevant to M&A.
    - Be familiar with the general notions of Public International Law governing contracts,
    such as WTO law and the IP law perspective also with a European view.
    - Have gained experience and skills in negotiating techniques.


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Studying Law at Roma Tre             International Business Contracts 2011       Syllabus


   - Have mastered the research tools and materials with which to learn more about
   international business contracts.


Course Learning Activities

Classes will be structured to optimize interactivity, using some lectures, but mostly the
Socratic Method – including ―cold call‖ questioning – along with student presentations, moot
appellate court cases and several mock negotiations.

Student responsibilities include:
    Attending class, being punctual. Time allotted to meeting in class is little and precious;
    Reading the assigned material BEFORE the class in which it is to be discussed;
    Being prepared to participate fully and actively in class discussions and projects based
       on methodology described in documents distributed and discussed in initial class
       meetings and throughout the semester;
    Taking notes during class as appropriate;
    Having all assigned readings and notes at each class session;
    Performing the research necessary to do writing assignments for the class;
    Speaking in class and asking questions as appropriate;
    Meeting with the professor to discuss any difficulty you may encounter during the
       course.

Assessment tools
Final grades will be based, in equal proportions, on:
    participation in class and special sessions
    briefs and other written work
    Final, written exam

Attendance policy
Attendance in class is compulsory to be admitted to the final examination, which will be
    comprehensive, covering all the topics discussed during the course.

Course textbook(s)

Ray August, International Business Law: Text, Cases and Readings, 4th Edition, Pearson
   Education International, New Jersey, 2004 (pp. 535 – 592)
Michael Joachim Bonell, An International Restatement of Contract Law -The UNIDROIT
   Principles of International Commercial Contracts, Transnational Publishers, Inc.,
   Ardsley, NY, 3d ed. 2005.
Joseph F. Morrissey and Jack M. Graves, International Sales Law and Arbitration: Problems,
   cases and Commentary, Kluwer Law International, The Netherlands, 2008

Supporting / Recommended course reading material

   - Rules of International Chamber of Commerce as Appointing Authority in UNCITRAL
   or Other Ad Hoc Arbitration Proceedings.
   (http://www.iccwbo.org/court/english/appointing_authority/pdf_documents/rules/rules_ap
   pointing_english.pdf)


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Studying Law at Roma Tre                  International Business Contracts 2011                 Syllabus


   - Rules of Arbitration.
   (http://www.iccwbo.org/court/english/arbitration/pdf_documents/rules/rules_arb_english.
   pdf)
   Sample Documents, e.g., exemplars of the following will be examined:
   - Demand letter
   - Power of Attorney
   - Service Agreement
   - License Agreement
   - Sale of Business Agreement
   Other cases and materials will be adopted during the course.

Course Schedule: (subject to modification)

   Class              Topic and/or Activity                                Text and Pages or other
                                                                           Source*
   1. March 7 Mon. Introduction, review of syllabus, how to brief cases,   Handouts distributed in class
   am              how to present a case

   2. March 7 Mon. PART I: The Study of International Commercial           Morrissey & Graves, pp. 1 –
   pm              Law                                                     45; Discuss Problem 1-1
                   Presentations of sections I A - D and II A- F

   3. March 8        ―International Business Contracts‖: definition and    Handouts and test distributed
   Tues.             discussion of law of commercial transactions, in      in class
                     comparative perspective
                     Review of Morrissey and Graves from class #2

   4. March 14       CISG, Transactions Covered, Opting In and Out,        August pp. 535 – 540
   Mon. am           Case 10-1: review briefs and present arguments
                     as moot court; present and discuss other material

   5. March 14       Presentation and discussion of materials, including   August pp. 541 – 549;
   Mon. pm           chart: Sales Defined, Goods Defined and, Mixed        ProForce Recruit Ltd. v. The
                     Sales; Contractual Issues Excluded from the           Rugby Group Ltd Court of
                     Coverage of CISG; Interpreting CISG, General          Appeal (Civil Division),
                                                                           17.02.2006, No. 2006 EWCA Civ
                     Principles, Rules of Private International Law;
                                                                           69.
                     Interpreting Sales Contracts: Statements and          http://www.unilex.info/case.cf
                     Conduct of the Parties, Negotiations                  m?pid=2&do=case&id=1156&s
                                                                           tep=FullText

                                                                           The Square Mile Partnership
                                                                           Ltd v Fitzmaurice McCall Ltd,
                                                                           Court of Appeal (Civil Division),
                                                                           18.12.2006, No. A3/2006/0290.
                                                                           http://www.unilex.info/case.cfm?
                                                                           pid=2&do=case&id=1156&step=
                                                                           FullText

                                                                           Chartbrook Limited v.
                                                                           Persimmon Homes Limited,
                                                                           Court of Appeal (Civil Division),
                                                                           12.03.2008, No. 2008 EWCA Civ
                                                                           183. For more details see
                                                                           www.unilex.info




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Studying Law at Roma Tre                 International Business Contracts 2011                 Syllabus



   6. March 15     Navigating Business Contracts: i) Standard Terms        Handouts and test distributed
   Tues            and Conditions of Sale; ii) Distribution Agreement;     in class
                   iii) Loan Agreement; iv) Consultancy Agreement
                   Review of August from class #5

   7. March 21     Case 10-2: review briefs and present arguments          August pp. 549– 559 (skip
   Mon. am         as moot court; present and discuss other materials;     case 10-3) pp. 562 -563 (skip
                   Practices and Usages, Pro Forma Invoice,                case 10-4) pp. 566 – 570
                   Formation of the Contract (Offer, Definiteness,
                   Effectiveness of an Offer) Purchase Order,
                   Acceptance, Acceptance with Modifications;
                   General Standards of Performance, Fundamental
                   Breach, Seller’s Obligations, Buyer’s Obligations

   8. March 21     Case 10-5: review briefs and present arguments          August pp. 570 - 582
   Mon. pm         as moot court; present and discuss other materials,
                   Passing of the Risk, Remedies, Reading 10-1 The
                   Buyer’s Right to Avoid the Contract Seller’s
                   Remedies

   9. March 22     The International Chamber of Commerce model for         Materials online
   Tues.           International Sale (manufactured goods intended for     Test distributed in class
                   resale): Discussion of General Conditions and
                   Specific Conditions
                   Review of August from class #8

   10. March 28    Case 10-7: review briefs and present arguments          August pp. 583 – 587
   Mon. am         as moot court; present and discuss other materials;
                   Duty to mitigate damages

   11. March 28    Case 10-8: review briefs and present arguments as       August pp. 587 – 590
   Mon. pm         moot court; present and discuss other materials;
                   Excuses for non-performance, begin Chapter
                   Questions. Answer in writing; DUE April 4.

   12. March 29    Chronology of a Sale Transaction: i) Negotiation in     Handouts and test distributed
   Tues.           Seller's perspective and Purchaser's Perspective; ii)   in class
                   Engagement Letter; iii) Confidentiality Agreement
                   Drafting exercise: the Power of Attorney




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Studying Law at Roma Tre                  International Business Contracts 2011                Syllabus



   13. April 4, Mon TURN IN ANSWERS TO SELECTED CHAPTER                     (Optional – background
   am               QUESTIONS.                                              reading) R. Gilson, Value
                    BEGIN: Mergers & Acquisitions (M&A) with Avv.           Creation      by     Business
                    Fabrizio Arossa.                                        Lawyers: Legal Skills and
                    Introduction. Motives for acquisitions. Range of        Asset Pricing, Yale Law
                    M&A deals and related legal issues (also based on       Journal, 1984, 94; pages 239-
                    identity of purchasers and targets): ―public‖           313.
                    takeovers, PIPEs, ―private‖ M&A (share/asset
                    deals), venture capital, private equity, distressed     On asset deals, see (but skip
                    deals, sole or joint control and joint ventures.        reference to UK/English law):
                                                                            http://uk.practicallaw.com/cs/
                     Role of lawyers in M&A deals.                          Satellite?blobcol=urldata&blo
                                                                            bheader=application%2Fpdf&
                     Antitrust, regulatory, employment and other legal      blobkey=id&blobtable=Mung
                     implications in a comparative perspective              oBlobs&blobwhere=1247488
                                                                            205640&ssbinary=true
                                                                            On EU merger clearance, see
                                                                            (up to ―one-stop shop‖):
                                                                            http://uk.practicallaw.com/4-
                                                                            107-3705

                                                                            Other handouts to be
                                                                            distributed the week before



   14. April 4, Mon Chronology and mechanics of a ―private‖ M&A             D. Frankle, J.F. Seegal, M.B.
   pm               deal (handling the process): auctions and one-to-one    Tresnowski, J.C. Creigh,
                    negotiations. Information Memorandum,                   Private Company M&A: Deal
                    Confidentiality/Exclusivity Agreements, no-             Structures, Execution and
                    collusion, LOI/MOU/Term Sheets, data room/due           Related Issues, in PLI Order
                    diligence, issues lists, draft agreements, Disclosure   No. 1155, 2 June-July, 2007,
                    Schedules and related legal issues. (An introduction    from I. to III. (inclusive).
                    to the seller’s warranty and indemnification
                    obligations)                                            See also, up to ―auction sales‖
                                                                            (inclusive):
                                                                            http://uk.practicallaw.com/0-
                                                                            107-3750

                                                                            Other handouts and model
                                                                            agreements to be distributed
                                                                            the week before

   15. April 5, Tues Structure of acquisition agreement and key terms:      R. Goldberg, L. Pell,
                     outline.                                               Negotiating the Purchase
                                                                            Agreement, in PLI Order No.
                     Price/payment terms: adjustment(s)/ ―locked box,‖      11232, January, 2007, pages
                     escrow, earn-out, ―anti-embarassment‖/clawback,        3-5, C.1 on page 12;
                     security. Leveraged finance, certain funds, ―credit
                     crunch‖ impact.                                        plus handouts, and model
                                                                            Share Purchase Agreement, to
                                                                            be distributed the day before




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Studying Law at Roma Tre                International Business Contracts 2011               Syllabus



   16. April 11,   Acquisition agreement: conditions                    R. Goldberg, L. Pell,
   Mon. am         precedent/approvals, MAC, interim covenants, pre-    Negotiating the Purchase
                   closing actions/reorganization(s), ―no shop,‖        Agreement, in PLI Order No.
                   break-up fees. ―Closing‖ mechanics                   11232, January, 2007, from
                                                                        29.III on page 11 to page 20
                                                                        (but skip US-specific details);

                                                                        plus handouts, and model
                                                                        Share Purchase Agreement, to
                                                                        be distributed the week before

   17. April 11,   Acquisition agreement: representations and           R. Goldberg, L. Pell,
   Mon. pm         warranties, indemnification.                         Negotiating the Purchase
                                                                        Agreement, in PLI Order No.
                   Allocation of risk and ―knowledge‖ issues.           11232, January, 2007, from
                                                                        18.II on page 5 to page 11
                   Dispute resolution                                   (but skip SEC/SOX and other
                                                                        US references), and pages 20-
                                                                        23;

                                                                        plus handouts, and model
                                                                        Share Purchase Agreement, to
                                                                        be distributed the week before




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Studying Law at Roma Tre                 International Business Contracts 2011               Syllabus



   18.April 12,    M&A and joint ventures. Shareholder agreements        C. Smeall, Structuring
   Tues            (an introduction).                                    International Acquisitions and
                                                                         Joint Venture Agreements, in
                   Venture capital and private equity deals.             PLI Order No. A4-4463,
                                                                         October 1994; plus: Model
                                                                         Joint Venture Agreement (to
                                                                         be distributed the day before).
                                                                         Skim also (but skip UK
                                                                         details) through:
                                                                         http://uk.practicallaw.com/7-
                                                                         100-2815, and
                                                                         http://uk.practicallaw.com/1-
                                                                         107-3580, and
                                                                         http://uk.practicallaw.com/6-
                                                                         102-0947

                                                                         (Optional) D.S. Allinson,
                                                                         Fundamentals of Private
                                                                         Equity Investing (Sell Side), in
                                                                         PLI Order No. 140, 28 July
                                                                         14-15, 2008 (skip details on
                                                                         Delaware law); R. Gilson,
                                                                         Engineering a Venture
                                                                         Capital Market: Lessons from
                                                                         the American Experience,
                                                                         Stanford Law Review; 2005;
                                                                         55; pages 1067-1103; S.
                                                                         Kaplan - P. Stromberg,
                                                                         Financial Contracting Theory
                                                                         Meets the Real World: An
                                                                         Empirical Analysis of Venture
                                                                         Capital Contracts, Review of
                                                                         Economic Studies; 2003; 70;
                                                                         pages 281-315 (skip US-
                                                                         specific references). See also:
                                                                         http://corporate.practicallaw.c
                                                                         om/0-107-4033




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Studying Law at Roma Tre                International Business Contracts 2011              Syllabus



   19. April 18,   Prof. Paolo FARAH, China in the Global Context:      Paolo FARAH, Five Years of
   Mon. am         China’s Legal Reforms after the WTO accession        China’s WTO Membership.
                                                                        EU and US Perspectives
                   I. a) Historical and Philosophical Background; b)    about China’s Compliance
                   China’s Accession to the WTO: Changes of the         with Transparency
                   Internal System; c) Protocol of Accession; d)        Commitments and the
                   commitments related to trade regulation in general   Transitional Review
                   (uniform administration rule, transparency issues,   Mechanism, Legal Issues of
                   Publication, Availability of Laws, Fair Procedure    Economic Integration, Kluwer
                   and the Creation of an Enquiry Point, Judicial       Law International, Volume
                   Review, Non-Discrimination Principle                 33, Number 3, pp. 263-304,
                                                                        2006

                                                                        Paolo Farah, L’influenza
                                                                        della concezione confuciana
                                                                        sulla costruzione del sistema
                                                                        giuridico e politico cinese
                                                                        (The Influence of
                                                                        Confucianism in the
                                                                        Construction of the Chinese
                                                                        Juridical and Political
                                                                        System), in Giovanni
                                                                        BOMBELLI e Bruno
                                                                        MONTANARI (eds), Identità
                                                                        europea e politiche
                                                                        migratorie, Vita e Pensiero,
                                                                        2008, pp. 193-226. ISBN:
                                                                        9788834316849

                                                                        AUTHOR’S PAGE
                                                                        http://papers.ssrn.com/sol3/cf
                                                                        _dev/AbsByAuth.cfm?per_id
                                                                        =629289
                                                                            You can download the
                                                                        articles free of charge.




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Studying Law at Roma Tre                 International Business Contracts 2011                Syllabus



   20. April 18,   Prof. Paolo FARAH, Trading with China: Services,        Paolo FARAH and Elena
   Mon. pm         Goods and Intellectual Property Rights                  CIMA, China’s
                   II. Trade in Goods. 1. China’s Background. 2. The       Participation in the World
                   General Agreement on Tariffs and Trade. A. Market       Trade Organization: Trade
                   Access for goods. B. Agriculture. C. Subsidies. D.      in Goods, Services,
                   Technical Barriers to Trade. III. Trade in Services.    Intellectual Property Rights
                   1. The General Agreement on Trade in Services. 2.       and Trasparency Issues, in
                   Specific Sectors and China’s Background. A.             Aurelio Lopez-Tarruella
                   Financial Services. B. Banking Services. C.             Martinez (edited), El
                   Insurance Services. IV. Intellectual Property Rights.   comercio con China.
                   1. China’s Background. 2. The TRIPs Agreement.          Oportunidades empresariales,
                   A. Substantive Rules. B. Enforcement. 3. US-China       incertidumbres
                   Dispute.                                                jurídicas, Tirant lo blanch,
                                                                           Valencia 2010, pp. 87-123

                                                                           Paolo Farah and Elena Cima,
                                                                           The Implementation of the
                                                                           WTO Agreement on Trade-
                                                                           Related Aspects of
                                                                           Intellectual Property Rights
                                                                           (TRIPs) in China , 2
                                                                           Tsinghua China Law Review
                                                                           2, Spring 2010, pp. 317-351.
                                                                           ISSN: 2151-8904.

                                                                           AUTHOR’S PAGE
                                                                           http://papers.ssrn.com/sol3/cf
                                                                           _dev/AbsByAuth.cfm?per_id
                                                                           =629289

                                                                           You can download the articles
                                                                           free of charge.




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Studying Law at Roma Tre                 International Business Contracts 2011                Syllabus



   21. April 19,    Prof. Paolo FARAH, The WTO Case law involving          Paolo FARAH and Roberto
   Tues.            China and EU law as relates to trade with China.       SOPRANO, Dumping e
                    a. Autoparts b. IP rights. C. Trade vs Environment:    Anti-dumping, Il Sole 24
                    US-China dispute on energy products (subsidies and     Ore, November 2009, pp.
                    technology transfer issues). d. EU-China Trade         XXIV-183, ISBN: 978-88-
                    Relations.    e.   EU-China       competition    and   6345-058-3
                    collaboration. f. EU Monitoring China WTO
                    Compliance,,TRM g. Dumping and Antidumping,            AUTHOR’S PAGE
                    TPSSM;                                                 http://papers.ssrn.com/sol3/cf
                                                                           _dev/AbsByAuth.cfm?per_id
                                                                           =629289

                                                                           You can download the
                                                                           presentation of the book the
                                                                           free of charge.

                                                                           WTO Disputes:

                                                                           DISPUTE DS339. China —
                                                                           Measures Affecting Imports
                                                                           of Automobile Parts

                                                                           DISPUTE DS359. China —
                                                                           Certain Measures Granting
                                                                           Refunds,   Reductions  or
                                                                           Exemptions from Taxes and
                                                                           Other Payments

                                                                           DISPUTE DS362. China —
                                                                           Measures       Affecting    the
                                                                           Protection and Enforcement
                                                                           of Intellectual Property Rights


                                                                           DISPUTE DS419. China —
                                                                           Measures concerning wind
                                                                           power equipment

                                                                           Available at the WTO
                                                                           website: www.wto.org


   April 25, 26     EASTER HOLIDAYS

   Lesson 22.     Prof. J. Harbaugh Portion: Introduction: Art and         Britzke & Harbaugh, Primer;
   May 2, Mon. am Science of Effective Lawyer Negotiation –                Harbaugh, Chaps. 14, 15 and
                                                                           16 (pp 341-404).
   and            Initial discussion: Overview of negotiation
                  module; Strategy, Style and Stages and the
                  Fundamentals of Preparation; Intro to
   Lesson 23.
                  Assessment; Confidential Information for HSN-
   May 2, Mon. pm OCN will be released (one on one negotiation).

   Lesson 24.       Discussion: Assessment (continued) &                   Harbaugh, Chap. 17-18, pp
                    Persuasion (intro).                                    405-472 Preparation strategies
   May 3, Tues                                                             for HSN-OCN.




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Studying Law at Roma Tre               International Business Contracts 2011            Syllabus



   Lessons 25.      Discussion: Persuasion (continued) & Exchange       Reading: Harbaugh, Chap.
   and 26.          (intro).                                            17-18, pp 405-472.

   9 May Monday     12:00 -13:45 Working Lunch (optional)–
   AM and PM.       Prepare HSN-OCN in client team groups. Video
                    tape the negotiators whose performance will be
                    analyzed in the afternoon session.

                   Negotiate and debrief: HSN and OCN
                     - Confidential information for ESFB-Martel-
                   USLC (three party negotiation) released.

   Lesson 27.      Discussion: Exchange                                 Reading: Harbaugh, Chaps.
                                                                        19-20, pp 473-522
   10 May,
   Tuesday AM

   Lessons 28.      Discussion: Exchange (continued)
   and 29.
                    12:00 -13:45 Working Lunch (optional)– –
   16 May Monday    Final preparation for ESFB-Martel-USLC in team
   AM and PM        groups. Video tape the negotiators whose
                    performance will be analyzed in the afternoon
                    session.

                    Negotiate and begin the debriefing of ESFB-
                    Martel-USLC


   Lessons 30.      Complete the debriefing: ESFB-Martel-USLC

   17 May             10:00-11:45 - Negotiate: GVP and Micro
   Tuesday AM         (first round); 12:00-13:00 – working Lunch
                      (Optional- teams prepare for second round. –
                    Confidential information Bazilian and Bocchino
                    released



   Lessons 31.      Final preparation for Bazilian-Bocchino in client
   and 32.          groups.

   23 May Monday    12:00 -13:45 Working Lunch (optional)– –
   AM and PM        Use time for final team preparation for Bazilian-
                    Bocchino. Video tape the negotiators whose
                    performance will be analyzed.
                    Negotiate and begin the debriefing of Bazilian-
                    Bocchino.


   Lesson 33.       Complete debriefing of Bazilian-Bocchino.
   24 May           Review GVP-Micro materials and begin to
   Tuesday AM       develop written negotiation plans in client team
                    groups.


   Lesson 34 and    Exchange and review written negotiation plans
   35.               for GVP-Micro in client team groups.
   30 May Monday
   AM and PM         12:00 -13:45 Working Lunch (optional) – Use
                     time for final preparation for GVP-Micro. Video
                     tape the negotiators whose performance will
                     be analyzed.

                     Negotiate and begin debriefing of GVP-Micro.




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Studying Law at Roma Tre              International Business Contracts 2011     Syllabus



    Lesson 36.         Complete debriefing of GVP-Micro; clarify
    31 May             final written assignment; review the
    Tuesday AM         negotiation module and suggest changes for
                       the future.


*Where the texts provide edited cases, students should look up full case reports – especially
when presenting moot court arguments. Similarly, the UNIDROIT Principles and supporting
and recommended reading materials cited above should also supplement assignments as
appropriate.




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