国际商法考点整理

国际商法考点整理国际公法概念：rules and norms regulating the relationships between states is called public international law法律渊源概念：Legal source Definition : sources in legal sense refer to something (such as a constitution, treaty, statute, or custom )that provide authority for legislation and for judicial decisions.母公司子公司分公司关系：发起人Promoters are people who bring a corporation into being, the one who sign on the initial constitution of the corporation权利义务成立过程中的责任：The legal liability法律责任of Promoters:➢ Liability to the other Promoters: the promoters assume joint liability each other to the total cost and debt inincorporating process.➢ Liability to the Corporation: Fiduciary duty to the corporation: the duties of full disclosure, good faith and absolute honesty to the corporation➢Liability to the shareholders and creditors:Mergermerger by amalgamation（吸收合并）(when a corporation has another corporation amalgamated with it, it is merger by amalgamation, and the amalgamated corporation shall be dissolved)merger by new establishment（新设合并）(when two or more corporations merge to establish a new corporation, it is merger for new establishment, and all parties being merged shall be dissolved)⏹ when corporations merge, the claims and debts债权债务 ofall the parties to the merger shall be succeeded to by the corporation that continues to exist after the merger or by the newly established corporation.股权equity债权debt区别：股票债券的区别 ???Corporation with Limited Liability◆shareholders assume limited liability to corporation◆stocks not issued and could not be freely transferred◆Transfer of stocks be strictly restricted.the relationship betweenshareholders is much stable)Corporation Limited by Shares◆the total capital divided into equal stock◆stock be publicly issued and could be freely transferred according law CISG适用范围＝联合国国际货物销售合同适用范围允许定约国对部分条款保留吗？允许。

CISG empowers a contracting State to declare that it will not be bound by part Ⅱ or Ⅲ of CISG.合同形式要求Essential elements of a valid contractcommon law1.2.consideration3.legal capacity4.not for illegal purpose, not illegal activity and not contrary to public policythe civil law:=China lawsimilar to the common law except for the legally sufficient consideration.什么情况买方可以解除合同？If a contract is concluded by one party against the other party’s true intentions through the use of fraud, coercion, or exploitation of the other party’sunfavorable position, the injured party shall have the right to request the people’s court or an arbitr ation institution to modify or revoke it.Where a party requests for modification, the people’s court or the arbitration institution may not revoke the contract.英美法系和大陆法系合同有效的必备要素：the civil law: similar to the common law except for the legally sufficient consideration.China law:similar to the civil lawCISG:only governing the formation of a contract and the rights andobligations of the parties, other issues are left to national laws.什么是根本违约，后果是？什么样的违约行为引发什么责任风险转移条款(1) If the seller is not bound to hand the goods over at a particular place,the risk passes to the buyer when the goods are handed over to the firstcarrier(2)If the seller is bound to hand the goods over to a carrier at a particularplace, the risk does not pass to the buyer until the goods are handed overto the carrier at that place.(3) otherwise, the risk passes to the buyer when he takes over the goodsor, if he does not do so in due time, from the time when the goods areplaced at his disposal and he commits a breach of contract by failing totake delivery.代理法（各个代理的意思）•大陆：委托代理、议定代理和法定代理•英美：1.明示代理：Express AgencyAn agency that occurs when a principal and an agent expressly agree to enter into an agency agreement with each other.1.Exclusive agency contract2.Power of attorney律师Express agency contracts can be either oral or written unless the Statute of Frauds(防止欺诈法) stipulates that they must be written.口头形式和书面形式代理人以明确的方式将代理权授予代理人2.Implied Agency(默示代理)An agency that occurs when a principal and an agent do not expressly create an agency.The agency is implied from the conduct of the parties.The extent of the agent’s authority is determined from the particular facts and circumstances of the particular situation3.Agency by Estoppel (不可否认的代理or 表见代理)Agency that arises when a principal creates the appearance of an agency that in actuality does not exist.When an agency by estoppel is established, the principal is estopped from denying the agency relationship.It is the principal’s actions that create an agency by estoppel .4.Agency by necessity (客观必须的代理)Agency of necessity arises wherever a duty is imposed upon a person to act on behalf of another apart from contract, and in circumstances of emergency, in order to prevent irreparable injury .5.Agency by Ratification（追认的代理）A per son misrepresents himself or herself as another’s agent when in fact he or sheis not, and The purported （据称的）principal accepts the unauthorized act.什么样的人可以，不可以指定代理人1.Any person who has the capacity to contract can appoint an agent to act onhis or her behalf.2.Persons who lack contractual capacity cannot appoint an agent.e.g., insane persons and minors代理人义务： NPOLAR1.Notification2.Performance3.Loyalty4.Obedience to instruction顺从5.Accounting 记述报告6.Remedies available to principal被代理人义务：CICRR compensation indemnification cooperationpensation 补偿2.Reimbursement3.Indemnification保障4.Cooperation5.Remedies available to agent代理终止的原因：⏹Acts of the parties,：MPLOR1.Mutual agreementpse of time3.Purpose achieved4.Occurrence of a specified event5.Revocation废除⏹Operation of law DICI-BW1.Death of the principal or agent2.Insanity of the principal or agent3.Bankruptcy of the principal4.Impossibility of performance5.Changed circumstances6.War between the principal’s and agent’s countries仲裁条款独立性：An arbitration clause shall be regarded as existing independently andseparately from the other clauses of the contract.哪些法律适用？没限制，国内法、国际法、法律一般原则都可以常见仲裁条款Example“Any disputes arising from or in connection with this contract, shall besettled amicably through negotiation. In case no settlement can bereached through negotiation, the case shall then be submitted to theChina International Economic and Trade Arbitration Commission of theChina Council for the Promotion of International Trade, Beijing forarbitration which shall be conducted in accordance with theCommission’s Arbitration Rules in effect at the time of applying forarbitration. The arbitral award is final and binding upon both partiers.”Figure 9.9 Example of Arbitration Clause in a Sales Contract什么是合营企业，英文表述方式cooperative enterprise、Joint venture。