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National Center for Commercial Law at Free University of Tbilisi in cooperation with Washburn University School of Law and Judicial Independence and Legal Empowerment Project (JILEP)

Commercial Law Winter School International Business Transactions and Contract Drafting

Professor Amy Deen Westbrook Associate Professor and Director, Business and Transactional Law Center Washburn University School of Law

Bazaleti Lake Resort January 23-­�29, 2012


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Course Description This course is designed to teach students the basic skills needed to draft and interpret legal contracts, and to introduce them to international business transactions. The course will address international, U.S. and Georgian practices and perspectives. The course will include two days of intensive contract drafting instruction. The drafting sessions will include the basics of contract drafting, the format and purposes of the component parts of a contract, and numerous practice drafting exercises. The course will also include five days of instruction on international business transactions, with a focus on documentary sales transactions. Students will learn about the international rules governing such transactions, and the documents that are used to carry them out. In particular, the course will examine sales contracts, distribution agreements, and joint venture arrangements. The course will also introduce students to some of the financing arrangements in these transactions, including letters of credit and loan agreements.

Course Format Each day will include a combination of classroom instruction, small group breakout sessions, and independent reading and short assignments. The structure will be based on the following schedule, with variations as needed according to the lesson plan: 10:00-11:30

Session 1

Classroom Instruction (Prof. Westbrook)

11:30-12:30

Breakout Session

Students Complete Assignments in Small Groups (Free University Faculty and Prof. Westbrook available to answer questions, as needed)

12:30-1:30/2:00

Session 2

Presentation/Discussion of Small Group Work and Classroom Instruction (Prof. Westbrook)

2:00-3:00

Lunch/Dinner

3:00-4:00/4:30

Session 3

Discussion of Materials: Georgian Perspective (Free University Faculty)

4:30-

Study Time

Students Complete Reading and Homework Assignments for the Following Day

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Sources for Reading Materials and Assignments Reading assignments will be available in advance and should be completed before class each day. In addition, some days will include short homework assignments that the students will complete independently, outside of class time. Reading assignments, handouts, exercises and worksheets will be taken from the following sources: Daniel Chow and Thomas Schoenbaum, International Business Transactions: Problems, Cases and Materials (2nd ed. 2010) International Chamber of Commerce, Incoterms 2010 International Chamber of Commerce, Uniform Customs and Practices for Documentary Credits (UCP 600) Organization for Economic Cooperation and Development, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions Tina Stark, Drafting Contracts: How and Why Lawyers Do What They Do (2007) Treaty Between The Government of The United States of America and The Government of The Republic of Georgia Concerning the Encouragement and Reciprocal Protection of Investment United Nations Commission on International Trade Law, United Nations Convention on Contracts for the International Sale of Goods Amy Westbrook, International Business Transactions (Carolina Academic Press, forthcoming) Amy Westbrook, “Enthusiastic Enforcement, Informal Legislation: The Unruly Expansion of the Foreign Corrupt Practices Act,� 45 Georgia Law Review 489 (2011)

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Topics and Assignments Day 1 (1/23/12): Introduction to the Class; International Business and Commercial Transactions Session 1:

Reading:

Introduction to the Class The International Business Environment: Players and Institutions Globalization and the Role of Transnational Corporations Multinational Business Operations What Is Your Role in the Transaction? Chow/Schoenbaum, International Business Transactions, pp. 4-34

Breakout Session:

Drafting Letters of Inquiry, Invoices and Purchase Orders

Session 2:

Presentation/Discussion of Breakout Session Work The Structure of an International Commercial Transaction Parties to a Sales Transaction Documents of Title Commercial Terms

Reading:

Chow/Schoenbaum, International Business Transactions, pp. 51-68 ICC, Incoterms 2010 (excerpt provided)

Session 3:

Discussion of Materials: Georgian Practice and Perspective

Homework:

Exercise #1: Incoterms 2010

Day 2 (1/24/12): Documentary Sales Transactions Session 1:

Reading:

Review of Exercise #1 Contracts of Affreightment Bills of Lading The Sales Contract Chow/Schoenbaum, International Business Transactions, pp. 90-95, 98102

Breakout Session:

Working with a Sales Contract

Session 2:

Presentation/Discussion of Breakout Session Work 4


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The UN Convention on Contracts for the International Sale of Goods Reading:

UNCITRAL, UN Convention on Contracts for the International Sale of Goods (CISG) (excerpt provided) Chow/Schoenbaum, International Business Transactions, pp. 178- 196

Session 3:

Discussion of Materials: Georgian Practice and Perspective

Homework:

Exercise #2: The CISG

Day 3 (1/25/12): Payment Arrangements in International Commercial Transactions: Letters of Credit Session 1:

Reading:

Review of Exercise #2 and the CISG Commercial Letters of Credit Letter of Credit Law (and UCP 600) Standby Letters of Credit Chow/Schoenbaum, International Business Transactions, pp. 235-243, 251-252 ICC, Uniform Customs and Practices for Documentary Credits (UCP 600) (excerpt provided)

Breakout Session:

Working with Letters of Credit: Drafting and Revising

Session 2:

Presentation/Discussion of Breakout Session Work Nonestablishment Forms of International Business Agency and Distributorships Distribution Agreements

Reading:

Chow/Schoenbaum, International Business Transactions, pp. 297-310

Session 3:

Discussion of Materials: Georgian Practice and Perspective

Homework:

Exercise #3 Letters of Credit

Day 4 (1/26/12): Agency, Distributorships and Foreign Investment Session 1:

Review of Exercise #3 Agency and Investment Issues and Risks 5


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The OECD Antibribery Convention and the U.S. Foreign Corrupt Practices Act Distribution Agreements (cont’d) Reading:

Chow/Schoenbaum, International Business Transactions, pp. 306-310 OECD, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (excerpt provided) Amy Westbrook, Enthusiastic Enforcement, Informal Legislation, The Unruly Expansion of the Foreign Corrupt Practices Act, (2011) (excerpt provided)

Breakout Session:

Marking Up and Negotiating a Distribution Agreement

Session 2:

Presentation/Discussion of Breakout Session Work Introduction to Foreign Direct Investment Bilateral Investment Treaties

Reading:

Chow/Schoenbaum, International Business Transactions, pp. 365374, 381-388 United States – Republic of Georgia, Treaty Concerning the Encouragement and Reciprocal Protection of Investment (excerpt provided)

Session 3:

Discussion of Materials: Georgian Practice and Perspective

Homework:

Exercise #4: OECD Antibribery Convention and the U.S. Foreign Corrupt Practices Act

Day 5 (1/27/12): Foreign Direct Investment; Financing Arrangements Session 1:

Reading:

Review of Exercise #4 Regulation and Treatment of Foreign Investment Assessing and Allocating Risk in a Foreign Investment Joint Venture Arrangements Chow/Schoenbaum, International Business Transactions, pp. 500-516

Breakout Session:

Reviewing a Joint Venture Agreement

Session 2:

Presentation/Discussion of Breakout Session Work Financing Arrangements for Investments 6


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Loan Agreements – Structure and Typical Provisions Reading:

None

Session 3:

Discussion of Materials: Georgian Practice and Perspective

Homework:

Exercise #5: Loan Agreements

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NOTE:

CURRICULUM FOR DAYS 6 AND 7 (1/28/12 and 1/29/12)

The Nuts and Bolts of Contract Drafting Day [6][(1/28/12)]: Session 1:

Reading : Breakout Session: Reading: Session 2:

The Basics of Contract Drafting

The Basics of Contract Drafting What Does a Contract Do? The Parts of a Contract Turning the Business Deal into a Contract Tina Stark, Drafting Contracts, Chs. 3-5, pp. 11-34; 37-43 Drafting a Basic Contract Tina Stark, Drafting Contracts, Ch. 5, pp. 44-48 Contract Drafting – Typical Provisions Introductory Provisions: Preamble, Recitals and Words of Agreement Definitions and Defined Terms

Reading: Tina Stark, Drafting Contracts, Chs. 6-7, pp. 49-93

Day [7][(1/29/12)]: Session 1:

Learning to Draft Typical Provisions

Contract Drafting – Typical Provisions Action Sections Representations and Warranties

Reading: Tina Stark, Drafting Contracts, Chs. 8-11, pp. 95-139 Breakout Session:

Drafting Contract Provisions

Session 2:

Contract Drafting – Typical Provisions (cont’d) Covenants and Rights Conditions to an Obligation

Reading: Tina Stark, Drafting Contracts, Chs. 8-11, pp. 95-139

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