Book Review: International Commercial Law (5th Ed)

Professor John Mo’s 5^th Edition of International Commercial Law is a timely and useful addition to any domestic litigator’s toolkit.

As cross-border business grows, so too does cross-border litigation.  Litigants include private parties and States.  These disputes are not always finally resolved in the private confines of an arbitration and some have recently reached the ultimate Courts of Appeal in both Australia and the United Kingdom (see, for example, TCL Air Conditioner (Zhong Shan) Co Ltd v The Judges of the Federal Court of Australia (2013) 295 ALR 596; [2013] HCA 5 and British Telecommunications plc v Telefonica O2 UK Ltd & Ors [2014] UKSC 42).

Other disputes between states and involving states have recently attracted wide attention (Timor-Leste v Australia, Permanent Court of Arbitration and Phillip Morris Asia Limited (Hong Kong) v The Commonwealth of Australia, Permanent Court of Arbitration).

Disputes of this nature will become more frequent and more complex.  Bathurst CJ recently observed:

Unfortunately, the increasing internationalization of commerce and the ability of business to conduct operations smoothly across national borders stands in sharp contrast to the complexity, difficulties and risk that attend the resolution of cross-border disputes which inevitably arise. Efforts to promote convergence of commercial legal systems provide an important mechanism by which to reduce these legally related transactional costs. By convergence, I am referring to the harmonisation of substantive legal principle and civil procedure amongst nation states, to increasing uniformity in conflict of law rules, and to development of similarity and shared approaches to dispute resolution amongst judicial systems. (Hon. T F Bathurst ‘The importance of developing convergent commercial law systems, procedurally and substantively’ [2013] NSWJSchol 41).

Professor Mo explains the steps towards ‘convergence’ in international commercial litigation in Chapter 2 of his work, dealing with the United Nations Convention on Contracts for the International Sale of Goods and the important UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles).

Professor Finn described the UNIDROIT Principles as ‘principled, coherent and intelligible’ (P Finn ‘Symposium Paper: The UNIDROIT Principles: An Australian Prospective’ (2010) 17 Australian International Law Journal 193).  He observed that the principles gave parties an ‘expansive capacity to determine the content of their contract and of the rules which are to be applicable to it’ (Ibid, 194).  Professor Mo’s summary of the UNIDROIT Principles is particularly concise and focused.  

Possibly the next most useful chapter in Professor Mo’s book is Chapter 9 — Settlement of International Commercial Disputes.  He reviews the subjects which are likely to arise for an Australian domestic practitioner in this context such as conflicts of laws, the enforcement of foreign judgments in Australia and aspects of international commercial arbitration.  There are extensive references to cases, academic commentary and recognised texts.

Professor Mo’s examination of complex and expansive areas of the law is not necessarily exhaustive, but that is not his aim.

The other chapters are: 

1.                   International Commercial Contracts under Domestic Law

2.          …

3.          Contracts for Carriage by Sea, Air and Land

4.          Means of Payment in International Trade

5.          Marine Insurance, Aviation Insurance and International Trade

6.          Foreign Investment Law

7.          The World Trade Organisation

8.          Regional Trade Agreements and Free Trade Agreements

9.          …

10.       New Developments in International Commercial Law

English law is by far the most frequently employed law by entities and private individuals doing cross-border business (The Economist, Exorbitant Privilege — American and English Law and lawyers have a strangle hold on cross-border business.  That may not last.  10 May 2014). 

Australian lawyers with similar training to our English counterparts are therefore well placed to vie for the litigious work flowing from the exponential increase in international trade and investment in the Asia-Pacific region.  The Economist observed that almost two thirds of litigants in English commercial courts are foreign and that 1.5% of British GDP comes from the legal sector.  Australian courts, like UK courts, share similar features which should attract regional litigants to Australia, to local practitioner’s direct benefit and to the benefit of the Australian economy.  Will Australian lawyers continue the ‘pivot’ towards our regional neighbours?

Professor Mo’s work is an essential addition to the Australian practitioner’s library as a useful first reference tool.  Highly recommended. 

Chris Tam