What are the trends in contemporary business law?

International business law as a university course, since the 1960s has been opened in some foreign universities for many years. [1] In China, with the continuous expansion of foreign economic work in recent years, not only some universities have opened the international business law courses, but also especially notable is that the international business law has become an important part of the study of the law of many industries and sectors of the people by the general attention. At the same time, the term "international business law" has been frequently used in various occasions, and books bearing the name of international business law are also common.[2] Thus, the term "international business law" has been frequently used in various occasions, and books bearing the name of international business law have been common. [As a result, university students, graduate students and people from all walks of life who are interested in international business law are constantly asking questions such as: what is international business law? How to understand the connotation and extension of the concept of international commercial law? Is international commercial law an independent legal department like international law, international economic law or civil law and economic law? In the author's opinion, the emergence of these issues reflects the deepening development of China's opening up to the outside world, and constantly puts forward new topics and new requirements for legal research. And correctly recognize and grasp these new issues, promote and prosperous cause of China's legal research, it is our legal theory research workers are responsible for. In view of this, the author intends to the concept of international commercial law from the theory of preliminary discussions, inappropriate, please readers criticize and correct.

On the concept of international commercial law, comprehensive study of domestic and foreign scholars scattered in various works on the concept of international commercial law, the author believes that the concept of international commercial law can have a broad and narrow sense of the two, are described below.

From a broad perspective, international commercial law is the sum of various legal norms that regulate international commercial relations, and it is an independent legal department.

First, according to the general theory of jurisprudence, the main criterion for the division of legal departments is the social relations adjusted by the legal norms, and any legal norms adjusting the same kind of social relations constitute an independent legal department. [3] International commercial law is as the adjustment of international commercial relations as a specific social relations and the independent existence of the legal sector. The so-called international commercial relations, refers to a certain kind of commercial relations, its subject, whether it is an individual, a legal person, a national government or an international organization, as long as this kind of commercial relations of the parties belong to more than two different countries or international organizations, or it involves commercial issues beyond the scope of the national boundaries of a country, this kind of relationship can be called international commercial relations. The legal norms that regulate all such international commercial relations fall within the scope of international commercial law. Specifically, all norms of public international law, norms of international economic law, norms of international commercial practice or conflict of laws voluntarily accepted by the parties, international commercial conventions or treaties, and international norms of domestic commercial law should be included in commercial relations.

The division of legal departments, in addition to the social relations regulated by the law as the basis and the main criterion, the differences and similarities in the methods of legal regulation determined by the nature of the legal norms is also an important additional criterion. To cite an obvious example, criminal law as an independent legal sector has never been controversial, but it is clear that criminal law does not regulate the same kind of social relations, but rather regulates a variety of social relations destroyed by crime, involving the adjustment of almost all legal sectors. However, its method of adjustment is a single penal instrument. This is a method of adjustment that does not exist in other branches of law. Similarly, based on the nature of international commercial legal norms determined by the adjustment method of international commercial law is diversified, there are different from the adjustment method of other legal sectors of the distinctive features. The methods of adjustment of international commercial law include methods of adjustment such as consultation and conciliation, arbitration and litigation, and methods of adjustment of domestic law and international law. Therefore, from the point of view of legal adjustment methods, it can also be shown that international commercial law is an independent legal sector.

In the discussion of international commercial law, it is necessary to explain the term "commercial" in international commercial law. The term "commercial" is an important term of art in international trade transactions. Generally speaking, the term "commercial" is interpreted as broadly as possible by international organizations or States. For example, according to the United Nations Commission on International Trade Law in drafting the Model Law on International Commercial Arbitration, the term "commercial" notes [4], the commercial nature of the relationship includes, but is not limited to, the following transactions: any trade transaction in the supply or exchange of goods or services; sales agreements, commercial representatives or agents; bonded agents; leasing; consulting; design; licensing; investment; financing; banking; insurance; mining agreements or concessions; joint ventures or other formations of industrial or commercial cooperation; and air, sea, rail or road transportation of passengers and goods. The California Code of International Commercial Arbitration and Conciliation lists 18 types of commercial relations, modeled on the Model Law on International Commercial Arbitration: (1) transactions for the supply or exchange of goods or services; (2) agreements for sale; (3) commercial representation or agency; (4) agreements or concessions for exploitation; (5) joint ventures or other forms of industrial or commercial cooperation; (6) air, sea, rail or road transportation of passengers and goods, rail or road transportation of passengers and goods; (7) construction; (8) insurance; (9) licensing; (10) bonding agents; (11) leasing; (12) consulting; (13) engineering; (14) finance; (15) banking; (16) transfer of information or technology; (17) intellectual or industrial property rights, including trademarks, patents, copyrights, and rights in software programs; and (18) professional services. [5] In addition, according to the concept of "commerce" referred to in the declaration of commercial reservation made by China upon accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York in 1958, it includes the sale of goods, leasing of property, contracting of works, processing and contracting of services, transfer of technology, joint ventures, cooperative ventures, exploration and exploitation of natural resources, insurance, credit, labour, agency and other services, Insurance, credit, labor, agency, consulting services and transportation of passengers and goods by sea, civil aviation, railroads and roads, as well as product liability, environmental pollution and maritime accidents. [6] Therefore, our interpretation of the term "commercial" is also a broader interpretation. International commercial law is to regulate a variety of commercial subjects in the above international "commercial" field of activity.

Secondly, from the generation of international commercial law, international commercial law from the beginning is as an independent legal department. It initially regulates the commercial relationship is not between a country's domestic businessmen, but cross-border, international commercial relations between businessmen of different countries.

International commercial law is with the emergence and development of the commodity economy and the emergence and development. The formation of international commercial law comes from practice, and its systematization process is not due to national legislation or the dissemination of scholars, but due to the efforts of its applicators and promoters. The first form of international commercial law was the customary law of merchants, which appeared in Venice in the eleventh century, and then gradually expanded with the development of seafaring trade to Spain, France, Germany and the United Kingdom, and even the Nordic countries and northern Africa. This kind of merchants (mainly engaged in trade between two or more countries, and have to be transported by ship merchants) as the object of regulation of international commercial law, belong to the customary law of merchants, is to the principle of party autonomy as the supreme principle of the legal norms formed by the transaction of the usual practices, customs, habits. Its content mainly includes: the standard terms of the contract for the sale of goods, two companies, maritime transportation and insurance, bills of exchange, bankruptcy procedures and other aspects of the norms. This customary law of merchants is used by merchants in ports or fairs all over Europe to adjust the laws and commercial practices of commercial transactions between them, which has the following characteristics compared with the local laws of the feudal dynasties at that time: (1) it is international, international commercial law, universally applicable to merchants engaging in commodity transactions in various countries; (2) its interpretation and application is not controlled by the full-time judges of the general courts but by the courts organized by the merchants themselves; (3) it is not controlled by the full-time judges of the general courts but by the courts organized by the merchants themselves. Merchants themselves organized by the court to be in charge, its nature is similar to the modern international commercial arbitration or mediation; (3) its procedures are simpler and faster, and is not bound to form; (4) it emphasizes the principle of fairness and reasonableness in accordance with the handling of cases. [7]

Thirdly, due to the diversity and complexity of contemporary international commercial relations, the development of international commercial law has evolved from a single level of international commercial practice to a multi-level international commercial law, a comprehensive legal sector that includes both international law norms and domestic law norms with international commercial practice as the main content.

Since international commercial law is used to adjust the legal norms of commercial relations between various public and private subjects engaged in cross-border commercial exchanges, its connotation and extension have already greatly broken through the system of international commercial practice, and extended to international law, domestic law, and even other legal norms that are difficult to be categorized under the above mentioned legal categories. International commercial law is a multidisciplinary, interdisciplinary and comprehensive legal sector.

Additionally, the norms of international commercial practice, international law, and domestic law in the above system of international commercial law are not three parallel legal norms that are not related to each other. The original norms of international law may be directly applied by natural persons and legal persons; the norms of domestic law may also be elevated to the norms of international law and applied by States or international organizations. In the contemporary legal practice of adjusting international commercial relations, not only rely on any one kind of traditional legal norms can no longer completely and objectively respond to the needs of international commercial relations on the legal adjustment, but also a variety of legal norms and systems tend to rely on each other, each other, each other, each other, each other, each other, each other, each other, each other, each other, each other, each other, each other, each other, each other. [8] It is self-evident that the norms of public international law adjust and regulate the commercial legal relations purely between international or international organizations as the main parties, such as the commercial legal relations between national governments or between national governments and international organizations in relation to investment, trade, credit, settlement, insurance and so on. However, at the same time, it should be brought to our attention that the norms of public international law in these commercial fields are directly binding on our citizens and legal persons. For example, our country signed and approved the United Nations Convention on Contracts for the International Sale of Goods, which came into force on January 1, 1988, and the United Nations Convention on Contracts for the International Sale of Goods. From that date onwards, the provisions of the Convention must be applied to the conclusion of a contract for the international sale of goods between a citizen or a legal person of China and a citizen or a legal person of any other contracting State, as well as to the rights and obligations of the seller and the buyer arising out of such a contract (unless the parties decide not to apply the Convention). The application of international civil and commercial conventions and practices to Chinese citizens and legal persons is expressly provided for in China's laws, as stipulated in Article 142(2) of China's General Principles of Civil Law, which states: "Where international treaties concluded or participated in by the People's Republic of China or the State of China have different provisions from those of the civil laws of the People's Republic of China or the State of China, the provisions of the international treaties shall be applied." Article 96 of China's Bills of Exchange Law provides: "Where international treaties concluded or participated in by the People's Republic of China*** and the State of China have different provisions from those of this Law, the provisions of the international treaties shall apply. However, except for the provisions to which the Chinese People's **** and the State have declared reservations. Where this Law and international treaties concluded by the Chinese People's **** and State or to which it is a party do not contain provisions, international practice may be applied." [9]

To put it another way, contracts between the State in question and private, legal persons can be nationalized by following international law. For example, Haight argues that any quasi-international or transnational tribunal cannot deny the relationship between arbitration arising out of contractual relationships between governments and aliens and international law, and that it is necessary to weigh the appropriateness of applying international law. He notes that "in the case of a development agreement between a private investor and a foreign government, ...... the contractual rights of the foreigner who is a party to it are claimable by reference to the heights of international law by his own government." [10]

In addition, the International Law Association (ILA), in its documents on "Contracts between International Organizations and Private Parties" and "Law Applicable to Contracts in Agreements between States and Aliens", also accepts the application of international law or the application of general law. The principle of the application of international law or the application of general law was also accepted. [11]

In practice, there is no shortage of examples of contracts applicable to States or State entities to which one of the parties is a party. For example, the final decision in the Saudi Arabian American Oil Company case in 1958 chose international law as the governing law of the award. Some petroleum laws of Middle Eastern countries also provide for the choice of international law as the governing law of arbitration.

Therefore, in the international commercial activities, can be applied to international commercial practice, international law, can also be applied to domestic law, there is no fixed line between them, the parties to take what kind of legal means, according to the actual situation to decide.

Specifically, the international commercial law norms used to adjust international commercial relations can be roughly divided into three levels: the first level is a large number of international commercial practices that are generally applicable to a variety of international commercial subjects, such as Incoterms, Uniform Customs and Practice for Documentary Credits, etc.; the second level is the international commercial conventions or conventions signed by the countries or international organizations concerned that have a universally binding effect on the international community; the second level is the international commercial conventions or conventions signed by the relevant countries or international organizations that have a generally binding effect on the international community. The second level is the countries or international organizations signed between the international community has a universally binding international commercial conventions or treaties, such as the Geneva Convention on the law of bills of lading, the convention on the international sale of goods and so on (the above two levels of the concept of international commercial law with the concept of international commercial law in the civil law system of commercial law in the broader sense of the concept of the international commercial law is the same); [12] the third level is the relevant countries used to adjust the norms of the commercial relations within the territory of the norms of the international community (or referred to as the foreign-related commercial legal norms). Here the various legal norms used by the countries to adjust the foreign commercial relations within the territory of their own countries, including both domestic commercial relations and domestic legal norms of the same kind of foreign commercial relations, such as China's Trademark Law, Patent Law, etc., but also includes only a foreign commercial relations applicable to domestic law, such as the Sino-Foreign Joint Venture Law, etc..

Fourth, the concept of international commercial law from the broad sense of the discussion is not just a purely doctrinal statement, but also for the comprehensive application of international commercial law and practical benefits.

For example, Chinese companies engaging in commercial investment activities in foreign countries are subject to a variety of different levels of international commercial law norms. First of all, according to the principle of national sovereignty, China's commercial investment activities in foreign countries to apply directly to the private law of foreign countries in the adjustment and regulation of foreign-related commercial legal norms, such as the application of the "Foreign Investment Enterprises Act", etc.; secondly, China's companies to apply the foreign countries related to the management of foreign-related commercial activities of the law, such as the application of the "Customs Act", the "Foreign Exchange Act", etc.; thirdly, to apply to the foreign country recognized or participated in the international commercial Third, to apply the foreign country recognized or participated in the international commercial practice or international commercial treaties, conventions, such as the Uniform Rules for Collections, the United Nations Convention on Contracts for the International Sale of Goods, etc.; Fourth, to apply to China and the foreign country to sign the relevant commercial agreements or treaties between the two sides, such as the "China-United States Trade Relations Agreement" and so on. By the same token, foreign companies coming to China to engage in commercial investment activities will encounter various practical problems in the application of law and choice of law.

If in the process of choosing the law, is still limited to the traditional legal sector or discipline, stuck in a fixed definition of the boundaries, [13] it is difficult to international commercial activities faced with a variety of real problems, to take the most appropriate and necessary way to solve them properly. For example, the World Bank to private companies loan contract, belongs to the contract between the intergovernmental organizations and enterprises, when the choice of the law applicable to the contract, although one of the parties is not a private person, should still apply the private international law; Another example, developing countries between the government and developed countries contract, although the parties are not the same country or the same private person, but not at the same time to apply the principles of international law and domestic law (including public law and private law). The principles of international law and domestic law (both public and private) must be applied at the same time. Therefore, for international commercial exchanges due to the scope, the State, the legal person, the individual intertwined formation of complex legal relations and legal issues, must be applied to international business-related international law and international business-related domestic law, a comprehensive examination, in order to carry out a comprehensive understanding and correct judgment. [14]

In summary, the international commercial law is an independent legal sector, it is the adjustment of a country beyond the national boundaries of the commercial exchanges of all kinds of legal norms. International commercial law is not limited to a particular legal norms, its connotation of the traditional international commercial practices, its extension has long broken the system of international law and the system of domestic law, and extended to the public international law norms, international economic law norms, international private law norms, international norms of civil and commercial law of various countries (i.e., the foreign part of the law). Although the private international law and the foreign part of the commercial law of each country are essentially the domestic law of each country, but since they are in the field of each sovereign state to adjust and regulate the cross-border activities of commercial exchanges, from a macro point of view, it can not help but recognize that they are an important part of the international commercial law, under the scope of the international commercial law.

International commercial law includes not only the substantive norms that stipulate the rights and obligations of the subjects of international commercial law in international commercial activities, but also the procedural norms for the settlement of international commercial disputes, and not only the peremptory norms that regulate the international commercial relations of the state, but also the arbitrary norms that regulate the international commercial relations of the state.

Therefore, the scope of the object of study of international commercial law is very broad, often involving dozens of existing traditional legal departments, international law, conflict of laws, civil law, commercial law, tax law, civil procedure law, product liability law, anti-monopoly law, anti-dumping law, and other legal norms of many legal departments.

In the author's view, the current issue is not to emphasize the traditional legal subdivisions anachronistically, but to find new forms of checks and balances adapted to the times. [15] Contemporary international commercial transactions require not only a particular legal system, but also a new form of adjustment adapted to the times. International commercial law will meet the needs of international commerce in the same way that customary commercial law met the needs of merchants living in the Roman Empire, and the enactment of customary law met the needs of seafarers and merchants in the Middle East in the fourteenth century.

Second, from a narrow point of view, the international commercial law is to adjust the state outside, the subject of equal commercial organizations and their commercial transactions of all kinds of relations of the sum of legal norms, is a new is still in the process of formation of the legal sector.

For example, Professor Feng Datong believes that the subjects engaged in international commercial transactions in the international are basically companies, enterprises and other commercial organizations rather than the state, and that the transactions between them belong to the transactions between commercial organizations with equal subject matter in different countries, and between individuals and among themselves, rather than transactions between countries. Therefore, in the concept of "international commercial law", the meaning of the word "international" (International) does not mean "between countries". Rather, it means "transnational". International commercial law is the sum of legal norms that regulate commercial transactions and the relations of commercial organizations outside the state, and it is a new legal sector that is still in the process of formation. [16]

Scholars who hold the above view also believe that: with the contemporary international economic and trade exchanges expanding and frequent, international commercial relations show more intricate and complex, the emergence of a number of new types of international commercial activities, such as international investment, international financing, international leasing, international technology transfer, international co-production, international contracting, industrial property rights and know-how licensing trade, and so on. These activities, or transactions, have exceeded the scope of the traditional commercial law adjustment. The object and scope of the adjustment of international commercial law is getting wider and wider. However, compared with the traditional commercial law, international commercial law is still in the stage of formation and development, not only these new international commercial transactions are mostly developed from the basis of traditional commercial law, but also as an independent legal department, traditional commercial law has a long history, all-encompassing, involving the purchase and sale, contracts, guarantees, corporations, agents, intermediaries, bills, insurance, insolvency, maritime, arbitration, competition, trusts, securities, futures and other social and commercial relations. The traditional commercial law has a long history and covers all aspects of social and commercial relations, such as sale and purchase, contract, guarantee, company, agency, intermediary, bill of lading, insurance, bankruptcy, maritime commerce, arbitration, competition, trust, securities, futures and so on, which are not yet covered by the international commercial law. Therefore, the system and contents of international commercial law need to be further developed and perfected in order to eventually form an independent legal department. In addition to the broad and narrow concepts of international commercial law mentioned above, international commercial law can also exist as a concept of research methodology for the comparative study of commercial law of various countries.

The concept of "concurrent laws" of international commercial law.[17]

The concept of "concurrent laws" of international commercial law is a concept of the "concurrent laws" of international commercial law. [17]

In international commercial transactions, in order to avoid the differences and unpredictable changes between different systems of domestic law, the combination of international law, international commercial practice and domestic law, in the form of a unified legal system, that is, the creation of an applicable three concurrent legal system to regulate international commercial transactions in the development trend of individual countries.

The Convention on the Settlement of Investment Disputes between States and Nationals of Other States is a typical example of a coexisting legal system. The Convention expressly provides that "the arbitral tribunal shall decide the dispute on the basis of the legal norms agreed upon between the parties to the dispute ......". As mentioned earlier, this provision is a recognition of the principle of party autonomy, which contains two meanings: first, the parties may choose domestic law, or international law, or international commercial practice; second, the parties may also choose both domestic law and international law and international commercial practice, and use all three. In the same article, the Convention also provides that, in the absence of a choice by the parties, the arbitral tribunal "shall apply the law of the Contracting State that is a party to the dispute, including its rules on conflict of laws, as well as the applicable rules of international law". [18] It can be seen that the arbitral tribunal may choose between domestic law and international law. [18] It can be seen that not only is the choice of law by the parties a multi-track system, but the arbitral tribunal also has a multi-track system for choosing the applicable law, which may be applied to both the international law system and the domestic law system, as well as to international commercial practice, which does not belong to either system.

The concurrent law system is the product of a long debate between developing and developed countries. The function of this system is, on the one hand, to apply the domestic law of the national parties, recognizing the importance of the sovereign status of the national parties, and on the other hand, with reference to the principles of international law or international commercial practice, to provide a certain degree of protection for one of the private parties to the contract, to ensure that the domestic law of the treatment of the foreign investor or other persons is not less than the minimum international standards. The essence is to mix a balancing force between domestic law and international law. In the author's view, the concurrent law actually illustrates the independent existence of international commercial law in the broad sense from another angle.

Notes

[1][7][16] See Feng Datong, ed.

[2] See Guan Anping, edited by: International Commercial Law Practice Operation book, Ocean Press, October 1993, 1st ed.

[3] Xu Xianming edited: "jurisprudence tutorial", China University of Political Science and Law Press, August 1994, 1st edition, p. 205.

[4]A. Redfern M. Hurter, Law and Practice of International Commercial Arbitration, 1986, PP.13-16.

[5]The United States of America, California, the International Commercial Arbitration and Conciliation Code, Article 1, Art. 1297, para. 16.

[6]Supreme People's Court, April 10, 1987, Notice on the Implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards to which China is a Party.

[8][15] Zhao Wei, Legal Issues of Sino-Foreign Cooperation in the Exploitation of Coal Resources, Law Publishing House, August 1992, 1st edition, p. 11, p. 18

[9] Article 96 of Chapter 5 of the Chinese People's **** and State Bills Law, adopted on May 10, 1995 at the 13th meeting of the Standing Committee of the 8th National People's Congress.

[10]George W. Heght, The choice of Publie.Lnterational Lawas theApplicable law in Development Contract with Foreigr Government, in Intermational Financing and Development, J.F. Mcdaniels ed. 1964, p. 556.

[11] (US) Hans? Schmidt, ed. International Contracts, China Social Science Press, 1988 edition, p. 21.

[12] Yang Jianhua: "new version of the essentials of commercial law", Taiwan Sanmin Bookstore, 1983 edition, p. 1.

[13] Chen An, ed: General Introduction to International Economic Law, Law Press, May 1991, 1st edition, p. 84.

[14]Masao Sakurai, Studies in International Economic Law - Main Theory of Overseas Investment, Japanese edition, 1977, ch. 1.

[17]Han Jian: The Theory and Practice of Modern International Commercial Arbitration Law, Law Press, May 1993, 1st edition, p. 244

[18] Article 42(1) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States.