Columbia University School of Law
Fall Semester 2015
Strategic International Commercial Transactions
Mark Vecchio
Syllabus
This course is designed to introduce the student to several of the most frequently
encountered types of strategic international business arrangements -- including mergers
and acquisitions, joint ventures and strategic alliances, project finance, intellectual
property licensing, and international private equity and venture capital transactions. We
will compare and contrast deal elements common to international transactions regardless
of type. In addition, we will look at how specific elements of the U.S. regulatory
environment and foreign regulatory environments affect international transactions and
will consider what kinds of barriers -- legal, financial, cultural, commercial, practical, and
ethical -- businesses face in cross-border deals. What are the elements which make a
transaction truly international? How do international transactions differ from purely
domestic ones? What is the role of the lawyer in international transactions? This course
is targeted to 2L, 3L, LLM and Business School students who are contemplating a career
in international corporate law or business. We will be taking a decidedly hands on,
practical approach to international deal-making, which will include close scrutiny and
examination of actual deal agreements and related documents. Students will be
responsible for weekly reading assignments, class participation, and preparation of an 8 10 page client memo. In lieu of a final exam, students will be expected to prepare,
individually, a 25-30 page research paper, or at the student’s option, jointly with one
other student (i.e., in groups of 2), a 35-40 page research paper, in each case on a topic of
international business law as agreed upon with the instructor. A select number of
students will have the opportunity to present the results of their research to the class.
Minor writing credit granted upon completion. LLM writing credit granted to those
preparing individual papers upon completion. Enrollment limited to 40 students.
Reading Materials: Various handouts, articles, sample agreements and other
documents to be made available by the Instructor.
Week 1
September 14, 2015
Introduction
 The Role of the International Business Lawyer
 Doing Deals Abroad
 Representing Foreigners in the U.S.
 The Building Blocks of International Commercial Relations -- the Alphabet Soup
of Commonly Encountered Domestic and International Business Entities (Inc.,
LLC, S.A., A.G., GmbH, S.a.r.l., Societas Europeae, etc.)
 The Importance of Perspective: How Cultural Differences Affect Business
Negotiations
Readings:
1.
Ralph H. Folsom; Michael Wallace Gordon; John A. Spanogle, Jr.; Peter L.
Fitzgerald, & Michael P. Van Alstine, International Business Transactions, A ProblemOriented Coursebook, Twelfth Edition, Thomson West (2015), pp. 11-26.
2.
List of Company Extensions (www.corporateinformation.com).
3.
Eric Cafritz, James Gillespie, "The Societas Europeae, Thirty Years Later,"
New York Business Law Journal, Vol. 9, No. 1 (Spring, 2005), pp. 14 - 19.
Week 2
September 21, 2015 International Mergers and Acquisitions (Part 1)

Stock Deals v. Asset Deals

Structuring Transactions -- Forward and Reverse Triangular Mergers

Dissecting the Documents: Covenants, Representations and Warranties,
Conditions Precedent, Indemnification
Readings:
1.
Lou R. Kling & Eileen T. Nugent, Negotiated Acquisitions of Companies,
Subsidiaries and Divisions, Law Journal Press (2014), Volume 1, Chapters 1 and 2.
2.
ABA Model Stock Purchase Agreement, Second Edition, Ancillary
Document B -- Letter of Intent.
3.
Sample Stock Purchase Agreement.
4.
Sample Asset Acquisition Letter of Intent.
5.
Sample Stock and Asset Purchase Agreement.
6.
“Break-up or Termination Fees,” Practical Law Company, Practice Note 6382-5500.
7.
“Reverse Break-up Fees and Specific Performance” Practical Law
Company, Practice Note 8-386-5095.
Week 3

September 28, 2015 International Mergers and Acquisitions (Part 2)
See readings from Week 2.
Week 4
October 5, 2015
Joint Ventures, Strategic Alliances and
Foreign Direct Investment

Choosing a Local Partner

Pro's and Con's of Going it Alone

The Importance of Due Diligence

Difference Between Mature Markets and Emerging Markets

"Contractual" versus "Entity-Type" Joint Ventures

Shareholders' Agreement as the Magna Carta of Deals

Timeline of Joint Venture Establishment

Financial Issues (GAAP versus IFRS)

Business Realities of Dealing in Different Geographical Markets
Readings:
1.
Helen Deresky, International Management: Managing Across Borders and
Cultures (Sixth Edition, 2008), pp. 203 – 240.
2.
Peter D. Ehrenhaft, “International Joint Ventures: Setting Them Up, Taking
Them Apart,” 23 Int’l Quarterly 3 (July 2011).
3.
Ralph H. Folsom; Michael Wallace Gordon; John A. Spanogle, Jr.; Peter L.
Fitzgerald, Principles of International Business Transactions, Trade & Economic
Relations, Thomson West (Third Edition, 2013), pp. 731 - 787.
4.
Sample Joint Venture Agreements.
a)
Domestic.
b)
International.
c)
Delaware LLC .
5.
PricewaterhouseCoopers, Similarities and Differences: A Comparison of
IFRS and US GAAP (October, 2014).
Week 5

October 12, 2015
Project Finance and Privatization
Areas of Application

Exploitation of Natural Resources

Power Generation

Transportation and Infrastructure

Recourse v. Non-Recourse Financing

Build-Operate-Transfer (BOT) and Build-Own-Operate-Transfer (BOOT)
Models

The Various Players

Developers

Private Banks

International Financial Institutions and Regional Development
Banks

Suppliers and Other Contractors

The Interrelationship Between Debt and Equity

Government Incentive Programs (EXIM, COFACE, SACE, etc.)

Political Risk Insurance (OPIC, MIGA)

Special Considerations Regarding Privatization and Public - Private
Partnerships

Understanding the Role of the State in Overseas Jurisdictions
Readings:
Ralph H. Folsom; Michael Wallace Gordon; John A. Spanogle, Jr.; Peter L.
Fitzgerald, & Michael P. Van Alstine, International Business Transactions, A ProblemOriented Coursebook, Twelfth Edition, Thomson West (2015), pp. 981- 1052.
Week 6
October 19, 2015
Entering the U.S. Securities Markets

Special Rules Relating to Foreign Issuers

Regulation S

American Depository Receipt Programs (ADRs)

Exempt Offerings (Regulation D and Rule 144A)

PIPES and Registration Rights
Readings
1.
Entering the United States Securities Markets: A Guide for non-U.S.
Companies, PriceWaterhouseCoopers Publication (2005).
2.
Edward F. Greene, Edward J. Rosen, Leslie N. Silverman, Daniel A.
Braverman and Sebastian R. Sperber, U.S. Regulation of the International Securities and
Derivatives Markets; Tenth Edition, Aspen Publications (2012), pp. 2-7 – 2-36; 5-3 – 558.
3.
Sample Equity Offering Memorandum.
Week 7
October 26, 2015
Private Equity and Venture Capital

What is Private Equity?

Who are the Major Players

Fun with Funds

LBO's and MBO's

Mezzanine Investments

Convertible Preferred Stock

Investors' Rights Agreements

Co-Sale Agreements, Tag-Alongs and Drag-Alongs

Liquidation Preferences

Antidilution Protection

Down-Round Financings

Pay-to-Play Provisions

Pro-Investor v. Pro-Entrepreneur Cultural Environments
Readings:
1.
Steven N. Kaplan and Per Johan Strömberg, Leveraged Buyouts and
Private Equity (June 2008), available at http://ssrn.com/abstract=1194962.
2.
Sample venture capital deal documents, with annotations.
a)
Amended and Restated Certificate of Incorporation
b)
Series A Preferred Stock and Warrant Purchase Agreement
c)
Amended and Restated Investors’ Rights Agreement
d)
Right of First Refusal and Co-Sale Agreement
e)
Voting Agreement
Week 8
November 2, 2015
Hedge Funds

What is a Hedge Fund?

Hedge Funds vs. Private Equity

Illustrative Investment Strategies and Styles

Legal Structures

Disclosure and Documentation

Regulation of Hedge Funds
Readings:
1.
Staff Report to the United States Securities and Exchange Commission,
Implications of the Growth of Hedge Funds, September 2003 (Excerpts).
2.
Sample Hedge Fund Private Placement Memorandum.
3.
Sample Hedge Fund Limited Liability Company Agreement.
4.
The Billion Dollar Club – U.S. Hedge Funds Managing Over a Billion
Dollars Worth of Assets as of the Beginning of 2010.
Week 9
November 9, 2015
Licensing Intellectual Property

"Hard" IP v. "Soft" IP

Relevant International Conventions and Treaties (Paris, Berne, Madrid,
Rome, TRIPS, etc.)

Protection of Intellectual Property at Home and Abroad
Readings:
1.
Aaron Xavier Fellmeth, The Law of International Business Transactions,
Thomson West (Second Edition, 2011), Chapters 2-4 (pp. 25-206).
2.
Sample Cross-Border Trademark License.
Week 10
November 16, 2015

U.S. v. Foreign Taxes

Transfer Pricing

Foreign Tax Credits

Withholding Taxes

Tax Havens

Bilateral Tax Treaties
International Tax Issues
Readings:
1.
Jerold A. Friedland, Understanding International Business and Financial
Transactions, Fourth Edition, Lexis Nexis (2014), pp. 343 - 377.
2.
U.S. - U.K. Bilateral Tax Treaty.
Week 11
November 23, 2015
The US Regulatory Environment

Export Controls

Boycotts and anti-Boycott Legislation

Trading with the Enemy Act; Helms-Burton

Foreign Corrupt Practices Act

Foreign Sovereign Immunities Act

FINSA
Readings:
1.
Catherine L. Razzano, “U.S. Economic Sanctions Laws: Practical
Implications for European Companies,” 35 DAJV Newsl. 128 (2010).
2.
Court E. Golumbic & Robert S. Ruff III, “Leveraging the Three Core
Competencies: How OFAC Licensing Optimizes Holistic Sanctions,” 38 N.C.J. Int’l L. &
Com. Reg. 729 (Spring, 2013).
3.
Margaret L. Merrill, “Overcoming CFIUS Jitters: A Practical Guide for
Understanding the Committee on Foreign Investment in the United States,” 30
Quinnipiac L. Rev. 1 (2011).
4.
Nikul Patel, “Suggesting a Better Administrative Framework for the
CFIUS: How Recent Huawei Mergers Demonstrate Room for Improvement,” 38 N.C.J.
Int’l L. & Com. Reg. 955 (Spring, 2013).
5.
James A. Barta & Julia Chapman, “Foreign Corrupt Practices Act,” 49 Am.
Crim. L. Rev. 825 (Spring 2012).
6.
Philip Urofsky et. al., “How Should We Measure the Effectiveness of the
Foreign Corrupt Practices Act? Don’t Break What Isn’t Broken—The Fallacies of
Reform,” 73 Ohio St. L. J. 1145 (2012).
7.
“FCPA Snapshot – 2012,” available at
http://www.venable.com/files/upload/FCPA_Snapshot_2012_1.pdf, (March, 2013).
Week 12
November 30, 2015
Resolution of International Disputes

International Arbitration (ICC, AAA, LCIA, ICSID, Stockholm
Chamber of Commerce)

Arbitration v. Litigation

Choice of Law, Choice of Forum

1958 New York Convention on the Enforcement of Arbitral Awards

2005 Hague Convention on Choice of Court Agreements
Readings:
1.
S.I. Strong, “Navigating the Borders Between International Commercial
Arbitration and U.S. Federal Courts: A Jurisprudential GPS,” 2012 Journal of Dispute
Resolution 119 (2012).
2.
Gilles Cuniberti, “Beyond Contract—The Case for Default Arbitration in
International Commercial Disputes,” 32 Fordham International Law Journal 417 (2009).
3.
Shahla F. Ali, “Approaching the Global Arbitration Table: Comparing the
Advantages of Arbitration as Seen by Practitioners in East Asia and the West,” 28
Review of Litigation 791 (2009).
Week 13
December 7, 2015 (ALL PAPERS DUE) Presentation of Papers
Week 14
Date around December 7, 2015, to be determined
(Make-up Class
Due to Credit Hour Requirement) Presentation of Papers (N.B. This session is a
make-up class required in order to be able to take a 10-minute weekly mid-session
break.)