International Contract Manual
[Thomson-West / Sweet & Maxwell (2008/2009) <http://www.contractmanual.com/index.pl>]
Albert H. Kritzer, Jarno Vanto, Jessica Vanto, Sieg Eiselen
Review by Stefan Kröll
Since its first appearance in the early 90s, the International Contract Manual has undergone a clear expansion with respect to its authors, editors, and content, capturing the recent developments in international contracting. The Manual is divided into three parts; the first part covers common and important contract terms, and the second and the third parts cover the relevant laws of a number of selected countries and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
In 45 chapters, Part I (Contract Checklists) covers the most important contract clauses used in practice by contracting parties and provides drafting suggestions. Moreover, clauses necessary for all types of sales of goods and service contracts are discussed, such as description of the goods, terms of payment, warranties, limitation of liability, choice of law, and dispute resolution, just to name a few. Each chapter begins with a checklist that introduces the questions relevant to the contract clause discussed, making them suitable for use as a control mechanism in contract negotiations. Following the general contract clauses, Part I goes on to discuss specific types of contracts and clauses used in various types of contracts such as outsourcing contracts, consortium agreements, and public procurement contracts. The last portion of Part I discusses some of the central themes in international contracting. Among others, international political risks, international anti-corruption rules, agents and representatives, and important regulatory issues such as export- and import controls, antitrust/competition law, and public procurement are discussed. The individual chapters have been written clearly and are apt for providing the reader with a concise overview that focuses on the essentials of the main themes discussed along with the attendant contractual requirements. The last Chapter of Part I, Chapter 45, covers the ever more important legal protection of personal information that is being generated and collected in the context of international business transactions.
Part II (Country Handbooks) covers 32 countries as well as the contract law of the European Union. In addition to the G8 countries there are Handbooks for important countries in Europe, the Middle East, and South America. Overall the choice of countries is a bit surprising and does not entirely result from a particular country's economic significance. For example, of the South American countries Peru, Chile, and Colombia are covered but Brazil and Argentina are not. The individual Handbooks do not follow a fixed formula, meaning that there is no specific list of question that each Handbook answers. Many discuss issues that, in the view of each author, are important for the formation of a contract under the discussed legal system and for doing business in the country concerned.
Insofar as the focus of the Handbooks is on commercial contracts, and the purpose is to illuminate the issues discussed in other parts of Part I from the point of view of the local legal system, the choice of the topics discussed and the emphasis placed on the topics diverges significantly. In particular the various legal remedies available to parties in the event of a contractual breach, as well as the attendant issues of liability and procedural rules are discussed in almost all Handbooks. Some of the Handbooks focus primarily on the ways in which a business can be set up in the country and the relevant forms of doing business there. Since the individual Handbooks generally do not go into too much depth, they are primarily suited for getting a quick overview and an initial awareness of the issues, serving as a starting point for a more intensive study of the issues present in the legal system discussed. A special mention goes to the US Handbook that, over 177 detailed pages, covers issues that are important in areas such as setting up a business and the use of sales agents and distributors.
Part III, edited by Professor Eiselen, focuses on the CISG. The CISG is described as "the most significant piece of substantive contract legislation in effect at the international level." With over 70 contracting states currently, it potentially covers more than ¾ of the world's trade in goods. Part III is clearly intended for the American reader who is familiar with the UCC and whose contract practice focuses on the UCC. The CISG is contrasted with the UCC and a table of CISG articles alongside the comparable UCC articles can be found in Annex F. This American focus does not diminish the value of Part III to a non-American reader. Quite the opposite; it gives the (non-American) reader an advantage when dealing with American contracting parties. The comparisons between the CISG and the UCC allow for a better understanding of the expectations present and the reasons why an American contracting party and her legal advisor engage in certain actions.
With respect to content, Part III begins with a brief description of the structure of the commentary followed by circa 60 pages of overview of the significance of the CISG, the advantages it offers as well as its most important rules. This introductory chapter allows the reader to quickly obtain an overview of the CISG and its rules. Moreover, it functions as a good basis for decision-making in the contract formation process; Section 81:45 provides a checklist of the important points.
The detailed commentary of the individual CISG articles is suitable for a deeper comprehension of the specific issues involved and comes in handy when disputes emerge. Through the convincing choice of literature quotes and the commentary the reader obtains a very good understanding of the relevant issues and problems. The international selection of the literature quotes also helps the reader to understand the problems from a comparative perspective.
The commentary of the individual Articles follows a fixed formula. Following the text of the Article and a list of the most important legislative materials, commentaries and court decisions comes the relevant part of the Secretariat Commentary that is supplemented by quotes from literature discussing the issue. In the accompanying analysis specific fact patterns and problem areas are discussed utilizing the quoting technique discussed above.
The analysis concludes by comparing the discussed CISG Article with its UCC equivalent and gives advice on the drafting of contracts. This along with tips on specific circumstances in contract negotiations and contract management are some of the strengths of Part III.
Part III allows the reader to circumvent many problems, including those arising in situations involving yet unsettled areas of law, like the use of contradicting forms (battle of the forms, § 81:15). An "Annotated Export Contract" in Annex A complements the contract drafting tips, the overview of the CISG, and the detailed commentary. The utility of the clauses in the Annotated Export Contract is diminished somewhat, however, because the clauses have been drafted from the perspective of American contract law and how it interacts with the CISG. As both a dispute resolution clause and a choice of law clause are absent, it is readily apparent that The Annotated Export Contract is not intended to function as a checklist for contract negotiations. Both of these clauses are recommended for inclusion in a contract in the detailed commentary in Part III.
The other appendices contain a text of the CISG, a list of court cases, the Opinions of the CISG Advisory Council, the comparison between the CISG and the UCC discussed above, excerpts from the INCOTERMS, as well as an extensive bibliography.
Despite some of the inconsistency in the handbooks, the International Contract Manual is of high practical value in the drafting and managing of contracts, in particular with American counterparties. As Tim Cummins put it in his foreword, the International Contract Manual helps in finding "a path through the uncertain terrain of international contractual relationships." The International Contract Manual is worth its high price for all companies, organizations, and law firms that are involved in international commerce. For those who are only interested in the CISG-commentary, volumes IV and V can be purchased individually.
Dr. Stefan Kröll, LL.M., Cologne