Three Legal Traps for Small Businesses Engaged in International Commerce
通过巴拿马程序公司诉城市服务公司案，揭示小企业在国际交易中因忽略合同中的法院选择和法律适用条款而陷入的法律陷阱，对从事跨国业务的中小企业主有警示作用。
Today's trend toward globalization of economic relations has opened up many new opportunities for multinational businesses. Whether it is the simple purchase of a few parts from Japan or Latin America, or a major transborder relocation under the NAFTA treaty, small and medium-sized businesses are becoming increasingly more involved in international transactions. However, many business people will be surprised by the types of difficulties they encounter if their foreign business dealings break down, and they must seek protection of their financial interests through the international legal system. It is of little benefit to skillfully negotiate the numerous, complex aspects of a business transaction only to discover the agreement cannot be enforced through the existing international legal structure. Complications can arise when deciding where to try a case, determining which country's laws to apply, and getting the courts to enforce the law. Although more complex than any single case in which a small business is likely to find itself involved, the recently decided case of Panama Processes, S.A. v. Cities Service Co. (Panama Processes 1974, 1981, and 1990) illustrates some of the likely problems. In that case, Panama Processes successfully negotiated a contract to protect its flow of dividends from a jointly owned Brazilian corporation in which Panama was the minority shareholder. After several years of compliance, Cities Service Co., the majority shareholder, decided to void the agreement and cause the jointly owned corporation to cease paying dividends. Panama filed a number of suits to protect its financial position only to discover that its contract could not be enforced due to the omission of a few normally insignificant points. It is these few points, normally insignificant in a domestic situation but of pivotal importance in an international business arrangement, that are the subject of this article. Had Panama included even the least intrusive of these points in its original agreement, points to which Cities under the circumstances would have undoubtedly agreed, it could have enjoyed the fruits of its financial arrangements. Basically, the considerations that were omitted from the agreement between Panama and Cities were: (1) in the event that relations between the parties broke down, which court of law or other tribunal would referee their dispute, and (2) which set of rules or which country's laws would be used to determine the parties' respective rights and obligations? Choice of Forum The first question that will arise when international business people become involved in a legal dispute is, Which legal system will be used to hear the controversy? For example, in the Panama (1990) case, Panama and Cities had signed a contract in New York regarding the payment of dividends. But the corporation in which Panama and Cities were shareholders and which was to make actual payment of the dividends was incorporated in Brazil and did business in that country. In addition, Panama Processes was incorporated in the country of Panama, had its principal place of business in Switzerland at the time the contract was signed, and had moved its main offices to England by the time the dispute with Cities arose. On the other hand, Cities was incorporated in Delaware, had its principal place of business in New York at the time the agreement was signed, and had moved its main offices to Oklahoma at the time of the dispute with Panama. Therefore, it is at least arguable that a legal action regarding the enforcement of the agreement to pay dividends could take place in Brazil, Panama, Switzerland, England, New York, Delaware, or Oklahoma. Left to their individual preferences, the parties would normally prefer a court that was either conveniently located and with which they were familiar and felt comfortable, or that would favor their individual legal positions. For example, because of their geographical location, Panama might prefer a Swiss or British court, whereas Cities would prefer a New York or Oklahoma court; or, as actually happened in this case, Panama might seek legal protection available under the American legal system, whereas Cities sought legal advantages obtainable only in Brazil. …