国际商法(双语)复习资料

1、Functions of law:

①Keep the peace

②Enforcing standards of conduct and maintain order

③Facilitating planning

④Promoting social justice

2、Definition of contract( in China ):

A contract shall be an agreement whereby the parties establish, change or terminate their civil relationship.

3、Offer:

Definition: offer is a proposal by a person to another indicating an intention to enter into a contract under specific terms.

Requirements for an offer:①Intention：订立合同的意愿the offer’s words must give the offeree assurance that a binding agreement is intended.

②Definiteness: 明确具体indicates or describes the goods or services, expressly or implicitly specifies the quantity and the price for the goods.

③Communication: 传到到受要约人an offer becomes effective when it reaches the offeree.

4、Superior force: 不可抗力

Is a clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties prevents one or both parties from fulfilling their obligations under the contract.

Elements: externality, unpredictability, irresistibility.

5、Damages:

Compensatory damages provide a plaintiff with the monetary amount necessary to replace what was lost and nothing more.

To place the claimant in the position in which he would have been had the contract not been breached.

Direct losses, consequential losses, pain and suffering, liquidated damages(约定损害赔偿).

6、Fundamental breach: 根本违约

A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract. 一方当事人违反合同的结果，如使另一方当事人蒙受损害，以至于实际上剥夺了他根据合同规定有权期待得到的东西，即为根本违反合同。

7、Remedies for the buyers

Buyer’s right to compel performance:要求实际履行the buyer may require performance by the seller of his obligations. If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract; If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair.

Buyer’s right to avoid the contract:撤销合同the buyer may declare the contract avoided：the seller commits a fundamental breach or The buyer gives the seller a Nachfrist notice and the seller rejects it or does not perform within the period it specifies.

Remedy of reduction of price:减价赔偿If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time.

Price reduction applies to the special situation:

The buyer accepts goods

The seller must not be responsible for the nonconformity

实际所交货物交货时的价格/符合合同规定的货物交货时的价格

Non-conformity of part of the goods:部分不符(1)If the seller delivers only a part of the goods or if only a part of the goods delivered is in conformity with the contract, articles 46-50 apply in respect of the part which is missing or which does not conform. (2)The buyer may declare the contract avoided in its entirety only if the failure to make delivery completely or inconformity with the contract amounts to a fundamental breach of the contract.

Early delivery; excess quantity:提前交货，超额交货(1)if the seller delivers the goods before the date fixed, the buyer may take delivery or refuse to take delivery. (2)if the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate.

8、Trademarks:

①Definition: A sign or symbol that distinguishes one party’s goods or services from another. (True trademark, trade name, service mark, collective mark, certification mark)

②Acquiring trademarks: Priority of use (USA,EN,CAN) Priority of registration

③Registration criteria: distinctive, not be generic or descriptive.

9、Patent

①Definition: a right granted to an inventor by a national government to exclusively make, use, and sell an invention for a certain period of time.

②Why grant patent? on private side: to protect private property; on public side: to encourage invention and industrial development

③Subject matter: Inventions(20 years), Utility models(20 years), Designs(10 years).

10、Right of priority(Paris Convention):

National treatment: a member country can not discriminate against foreigners in granting patent or trademark protection.

Compulsory license: it grants patent or trademark rights to third parties if the patent or trademark owner does not use it.

Right of priority: an applicant who has filed for protection in one member country shall enjoin a right of priority of 12 months for patent for inventions and utility model, 6 months for patent for patent for design and for trademarks to file in another member state.