国际商法考点期末考试

商法考点Chapter 11. International law is not really law since there is no worldwide legislature to enact it. F2. Comity is not law because countries do not regard it as something they are required to respect. T3. International law exists when there is a consensus of the international community. T4. To establish the existence of a customary rule of international law, one must show that the international community has observed the rule for a long period of time. F5. General principles of international law are based on legal rules that are common to both (or all) the state parties to a dispute. T6. International tribunals generally regard states as having an obligation to bring their municipal law into compliance with international norms. T7. A self-executing treaty is one that contains a provision that says the treaty will apply in the parties’ municipal cou rts once the parties have adopted domestic enabling legislation. F8. Recognition of a government is usually made in a bilateral agreement. F9. When a part of the territory of State X shifts and becomes part of the territory of State Y, the treaties made by State X continue to apply to that territory. F10. An intergovernmental organization is a permanent organization set up by two or more states to carry on activities of common interest. T11. State A disintegrates into States B and State C. The public property of State A located in State D becomes the property of D. F12. Territorial sovereignty is the absolute and unqualified right of a state to exercise its functions within a territory. F13. The phrase “United Nations System” refers to the rules of international law enacted by the General Assembly of the United Nations. F14. The European Parliament must approve all of the international treaties that the European Union enters into. T15. Traditionally, an individual’s rights under international law are only protected by his state of nationality. T16. The Roman law was first codified in the Corpus Juris Civilis around the year 534 A.D. F17. The name “common law” (as it is used in England) is derived from the theory that the king’s courts repre sented the common custom of the realm, as opposed to the local customary law practiced in the county and manorial courts. F18. The Shari’a is primarily a moral and ethical code. F19. Equitable remedies are available only when legal remedies are unavailable or inadequate.T20. The German Civil Code of 1896 is noted for being precise and technical. TChapter 3Diplomacy is the process of reconciling the parties to a disagreement by negotiation, mediation, or inquiry. TNegotiation is the process of reaching an agreement by discussion. TMediation is the use of a third party who transmits and interprets the proposals of the principal parties, and sometimes, advances independent proposals. TInquiries are a popular way to resolve disputes between states, with many thousands ofinternational inquiries having been made in the last 50 years. FA decision of the International Court of Justice has no binding force except between the parties and only in respect of the particular case. TPanelists who serve on a WTO dispute settlement panel serve as representatives of their member states. FThe International Center for the Settlement of Investment Disputes (ICSID) was created to encourage private investment in underdeveloped countries. TUnder international law, the jurisdiction of a municipal court to try an international dispute is essentially unlimited. FA municipal court has in personam jurisdiction when an individual or juridical person is physically present within the forum state. TSovereign or state immunity is a doctrine that says that domestic courts must decline to hear cases against foreign sovereigns out of deference to their roles as sovereigns. T Choice of law clauses are valid and enforceable in all municipal courts so long as they were freely entered into. TAccording to the doctrine of forum non conveniens, a court is required to dismiss a case when it would be either unfair to one of the parties to go ahead and hear the case or it would be a burden on the court if it were to go ahead. FAn antisuit injunction forbids a litigant from bringing a suit within the litigant’s home state. F According to the vesting of rights doctrine, a court is to apply the law of the state where the rights of the parties to a suit legally became effective. TChapter 4In civil law countries, a company can be an association of persons or of capital. TNone of the partners in a civil law limited partnership have no personal liability for the debts of the business. FIn a civil law country, a person may be both a limited partner and a general partner in the same limited partnership. FA civil law stock corporation can raise money in the public marketplace through the sale of freely transferable shares. TThe limited partners in a common law limited partnership can openly participate in the management of the business without incurring liability for the debts of the business. F Civil law limited liability companies are a popular business form widely used when setting up subsidiaries. TAll of the partners in a common law secret partnership have unlimited personal liability for the debts of the business. TIn common law countries, more shares may be authorized for issuance by a public corporation than are required to get a business started. TThe owners of a company (or corporation) may act on its behalf both as agents and as representatives. FA nonmultinational is a domestic firm functioning in the international marketplace through a foreign agent. TA national multinational is a firm in one country that operates in other countries through branches and subsidiaries. TAn international multinational is a business organization with two or more parentcompanies located in different states operating through jointly owned subsidiaries. TA joint venture is a subsidiary company that in turn owns other subsidiaries. FHost states may regulate foreign firms in the same way that they regulate local firms. TNegligence and Strict liability may be used in Japan to impose product liability on a manufacturer of a defective product. FChapter 71. The World Trade Organization is a new supranational organization with the power to usurp sovereignty from its member states.T2. The membership of the WTO is limited to states. Colonies, territories, provinces, and so forth, are not eligible for membership, even if they are responsible for conducting their own trade policies. F3. The WTO Ministerial Council meets at least every other year to oversee the operation of the WTO.T4. Consensus is the making of a decision by a super-majority vote, such as by two-thirds or three-quarters of the representatives present. F5. The WTO’s Understanding on Rules and Procedures Governing the Settlement of Disputes establishes a unified system for settling disputes that arise under the WTO Agreement and its annexes. T6. the General Agreement on Tariffs and Trade was substantially rewritten in 1994, and the provisions of GATT 1994 differ dramatically from those of GATT 1947. F7. None of the provisions of GATT 1994 are directly effective; that is, a private person in a suit may invoke none of them. F8. GATT 1994’s “Most Favored Nation Rule” requires a country to treat products equally with its own domestic products once they are inside that border. F9. GATT 1994’s “South-South Preferences” allows developi ng countries to exchange tariff preferences among themselves without extending the same preferences to developed countries. T10. GATT 1994 forbids (with few exceptions) member states from protecting their domestic industries by any means other than tariffs. T11. GATT 1994 requires member states to disclose to other member states and the public the rules, regulations, and practices that they follow in their domestic trade systems. T12. Once a free trade agreement or customs union is established, The GATT rules apply to the union or area as a whole and not to its constituent states. TChapter 7- Case AnalysisCountry A, a WTO member state, imposes a 25 percent tax on sales of “cola” soft drinks. All other soft drinks are taxed at a 5 percent rate.Cola soft drinks make up 70 percent of the soft drink market in Country A, and all of the cola soft drinks are imported.The non-cola soft drinks are all manufactured locally. Country B, another WTO member state, complained to Country A that its tax on co la soft drinks violates the GATT’s national treatment rule.Country A disagreed. Country B has now asked the WTO to establish a panel to resolve this dispute.How should the panel rule?Chapter 7- Case AnalysisGATT Art. III(1) says that taxes should not be imposed so as “to afford protection to domestic production.”The meaning of the phrase “like products” must be determined on a case-by-case basis. In particular, the products need to share common end-users and have essentially the same physical characteristics.Here cola and non-cola soft drinks seem to share the same end users and have the same basic physical characteristics. They are like products.GATT Art. III(2) requires that taxes on imported products not exceed those of domestic products, so the tax on the cola soft drinks must be reduced to 5 percent.Chapter 10-Q2No. The retailer made an invitation to treat, then there is no contract in this case.Under Article 14, an offer must be “addressed to one or more specific persons… ”In this case, the catalogue was addressed to the public, because the retailer ordinarily intend for their catalogues to have as wide a circulation as possible, and they would be happy to have them passed on to others. The phrase “offers addressed to specific persons” actually means “offers restricted to the particular addressees.”To conclude, the catalogue does not meet the requirements of an offer under Art.14 of CISG, then there is no contract in this case.Chapter 10-Q3There is no contract under CISG, because the withdrawal was effective.CISG Article 15(2) states that firm offers may be withdrawn if the withdrawal reaches the offeree “before or at the same time” as the offer.In this case, the withdrawal reached the offeree before the offer, since the recorded withdrawal message was delivered to Buyer’s place of business prior to Buyer’s receipt of the offer.Therefore, there is no contract in this case.Chapter 10-Q4There is no contract under CISG, because buyer rejected the offer.CISG Article 17 clearly states that “an offer, even if it is irrevocable, is terminated when a rejection reaches the offeror.” Because the rejection reached the Seller before the acceptance, the offer is rejected.Therefore, there is no contract in this case.Chapter 10-Q5Buyer need do nothing.Under CISG Article 18, an offeror cannot make silence or inactivity grounds for acceptance of his offer. Only if the offeree had agreed in advance that his silence or inactivity would constitute acceptance would there be a contract in this situation.Therefore, the buyer has not responsibility to accept the offer.Chapter 10-Q6Buyer breach the contract.Article 29(2) says that “a contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated by agreement.”It goes on to add, however, that “a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct.”In this case, clearly, Seller relied on Buyer’s conduct.Chapter 10-Q7No, the buyer is not able to avoid the contract.The notice Buyer gave Seller does not amount to an Article 47 Nachfrist notice, because it did not set a fixed date nor demand final performance by that date.The wire should have said something such as “The last date on which Buyer will accept delivery is February 1.”Chapter 10-Q8Buyer bears the risk.Article 68 says that the risk passed to Buyer at the time the contract was signed since the goods were already in transit.If Buyer has insurance, he may have a difficult time collecting on it, since the time when the damage occurred is uncertain.By agreement, Seller and Buyer could have agreed that the risk passed to Buyer at the outset of the voyage. For the purpose of asserting an insurance claim, this would have simplified matters.Chapter 10-Q9Under Article 73, Buyer may avoid the entire contract since the three programs are clearly interdependent.Seller will have to take back the programs delivered in January and February (and return the price Buyer paid), and Buyer may refuse delivery of the third (the March) program.Chapter 10-Q10Buyer may ask for damages.If Buyer does not obtain substitute barrels, he will be entitled (under Article 76) to the current price at the place of delivery; that is, $18 a barrel, or $450.If this had been a case involving force majeure, Buyer would not have been entitled to damages, but only a price reduction. Article 50 provides for a proportionate price reduction, so under that rule, the final price would be reduced to $14 a barrel, or $350.考点解析：Chapter One：1. International Law(国际法): 3 kinds of international relationships: states and states; states and persons; persons and persons.国际公法): Historically, dealt with the rules and norms regulating thePrivate international law(国际私法):with growth of relationships between persons and礼让): is the practice between states of treating each other with goodwill and civility. It is not law, because states do not regard it as something they are required to respect.3. Sources of International law: Treaties or conventions; International custom; General principles of law recognized by civilized nations; Judicial decisions and teachings of highly qualified legal writers. (This list, as contained in Article 38(1) of the Statute of the International Court of Justice, implies a hierarchy, or order, in which these sources are to be relied on.)Treaties(条约): arelegally binding agreements between two or more states. Conventions: (公约)legally binding agreement between states sponsored by an international organization. (Eg: UN) Custom: a long-established tradition or usage that becomes customary law(习惯法) if it is：consistently and regularly observed, and (evidence of this found in official statements of governments, opinions of legal advisors, executive decrees, orders to military forces, and court decisions.); recognized by those states observing it as a practice that they must obligatorily follow. General Principles of law and Jus Cogens:Courts will often rely upon general principles of law that are common to the legal systems of the world to solve international disputes.Jus cogens is a peremptory norm of general international law, recognized by theinternational community as a norm from which no derogation is permitted.Jus cogens - states must respect certain fundamental principles. Treaties are void if they conflict with jus cogens.4. International Persons:①States: (含义) are political entities that have a territory, a population, a government capable of entering into international relations, and government capable of controlling its territory and peoples.Independent states: free from the political control of other states and free to enter intoagreements with other international persons.Dependent states: have formally surrendered some aspect of their political and governmental functions to another state.Inchoate states: lack some attribute required to be treated as a fully independent state; most commonly they lack territory or population.②With a change in sovereignty over territory, several legal consequences arise and we apply the following rules: Successor states are bound by dispositive treaties–treaties concerned with rights over territory (boundaries & servitudes.) Merger Rule– treaties in effect in a former state remain in effect in its territory when it becomes part of a new state. (Ex: Treaties of both Egypt and Syria remained in effect when they merged into the United Arab Republic). Moving Boundaries Rule–treaties of state absorbing new territory become effective within absorbed territory.③International Organizations: Intergovernmental organization (IGO)—is a permanent organization set up by two or more states to carry on activities of common interest. Private or nongovernmental organizations (NGO)—is an international organization made up of organizations other than states. May be nonprofit NGO or for-profit multinational enterprise (MNE). IGO must be recognized to have legal capacity—the qualification or authority to deal with other international persons.A: The United Nations: most important IGO; its charter is a multilateral treaty; operates though its organs—an agency that carries on specific functions within a larger organizations. UN organs are the General Assembly, the Security Council, the International court of Justice, the Trusteeship Council, and the Economic and Social Council.United Nations System Name given to various autonomous organizations (also IGOs) that have entered into agreements with the UN to be UN agencies.(如图所示)B：The European Union: The European Union is a 25-member IGO created by the founding states in order to integrate their economies and political institutions;The European Treaty in 1992 established a: political union；Common citizenship for nationals ofmember states; Social Charter, monetary union, Central Bank and common currency (the euro).EU has supranational powers: are powers surrendered by member states to an IGO. EU law is superior to the laws of member states. This means: the member states are required to bring their internal laws into compliance with EU law, and the EU law is directly effective within member states.The main institutions of the EU are the:European Commission欧盟委员会–EU’s executive branch with some legislative function comprised 27 individuals appointed by Parliament.Duties are to:1.Ensure that EU rules are respected2.Propose measures to the European Council3.Implement EU policies4.Manage the funds that make up the EU budgetMain decision-making body of the EU. Council of the European Union欧盟理事会Exercises co-decisions with Parliament.Role is to:1.Adopt legislation (with Parliament)2.Adopt annual budget (with Parliament)3.Adopt international agreements4.Coordinate the economic policies of the member statesCo-legislative body and main supervisory institution of the EU. European Parliament欧洲议会786 members elected every five years.Arranged by political parties, not by nationality.Three main roles:1.Oversight authority over all EU institutions2.Shares legislative power with Council of the EU3.Determines the EU’s annual budget with CouncilEuropean Court of Justice欧洲法院Is the supreme tribunal of the EU.Comprised of 27 judges and 8 advocates general.Advocate general briefs case for judges and suggest how case should be decided.Sits in chambers of three to five judges.Hears four kinds of cases:1.appeals from the Court of First Instanceplaints brought by the commission or by one member against anothermemberplaints brought by member against EU institutionplaints to annul EU legal measurecustoms unions(关税同盟): are intended to eliminate trade barriers between their members and to establish common external tariffs. Free trade area(自由贸易区): are set up to eliminate trade barriers between member states without establishing a common external tariff. Economic consultative association(经济咨询协会)：to gather and exchange statistics and information, to coordinate the economic policies of member states, and to promote mutual trade cooperation.5. Municipal Legal Systems:Civil law set out in national law codes.Romano-Germanic Civil Law: Civil law deals only with rights of private citizens as opposed to public law that deals with constitutional and administrative issues. Guidance for decisions comes only from the civil code, not court decisions. Developed from many sources, including the jus commune or common law of Europe and the lex mercatoria (merchant law) of the Renaissance. Led to development of the French Civil Code of 1804 and the German Civil Code of 1896 which are followed by many countries today.Anglo-American Common Law : Common law is based primarily on court-made rules of precedent. Developed fundamental doctrine of supremacy of the law. All persons, including the sovereign, are subordinate to the rule of law. Precedent used prior acts or instances as a model for deciding later similar cases. Equity courts based upon being just, impartial, and fair in circumstances not covered by rules of law have now merged with law courts.Islamic Law:The Islamic legal system is known as Shari’a(伊斯蘭教教法).Shari’a is derived from the following sources and are listed in order of importance:1.The Koran(《可蘭經》)2.The teachings and practices of the Prophet Mohammad3.The writings of Islamic scholars4.Consensus of the legal communityChapter Three1. Means of dispute settlement: (4kinds) Negotiation: is the process of reaching an agreement by discussion. It may be done through diplomatic authorities, commissions, or at a summit conference. Mediation:means that an neutral third party transmits and interprets the proposals of the principal parties, and, sometimes, advances independent proposals. Inquiry: is the process used to determine a disputed fact or facts by an independent third party. Arbitration:2. Settlement of Disputes in International Tribunals ①If diplomacy fails, the parties usually turn to a court to resolve the dispute.②Disputes between states or IGOs are taken to an international tribunal, such as the ICJ or a dispute resolution panel of the World Trade Organization.③Disputes involving a private or company usually end up in arbitration or in a municipal court of a state. World Trade Organization Dispute Settlement ProceduresWTO DSU(the Dispute Settlement Understanding or DUS)Dispute Settlement Organs: the organs charged with administering and carrying out the DSU are (a) the Dispute Settlement Body.(b) the Dispute Settlement Panels, and (c) the Appellate Body. The DSU encourages states to resolve disputes through consultation. Parties must enter into consultation within 30 days or Dispute Settlement Panel is formed.3. Four nexuses justify criminal jurisdiction:1.Territorial nexus–(属地管辖)place where the crime is committeddetermines jurisdiction.2.Nationality nexus–(属人管辖)looks at nationality of person committingthe crime to determine jurisdiction.3.Protective nexus–(保护管辖)jurisdiction lies when national orinternational interest of the forum is injured.Universality nexus–(普遍管辖) courts have jurisdiction over crimes of universal concern, such as slavery and hijacking4. such jurisdiction is based on either in personam or in rem. 在民事案件中，国内法院的管辖权有两类：对人管辖和对物管辖权In personal jurisdiction对人的管辖权—parties appearing must be a state party and national of another contracting state. A state party is the state itself, its agencies, or its subdivisions. The national of another contracting state can be a natural person (human) or a juridical person (business entity). Juridical person must have a home state outside the investment state. (51% foreign ownership or foreign management.) Subject Matter Jurisdiction—ICSID arbitrations panels can only decide matters that are: Disputes—can not be a collusive action in which the parties are not at odds. Must be a legal dispute where there is a disagreement as to the existence of a legal right or obligation. Arise out of an investment—the ICSID convention does not define investment. Absent an agreement, given the ordinary meaning of putting capital into a venture with the expectation of receiving a profit. In rem jurisdiction—is the power of a court to determine the ownership rights of all persons with respect to particular property located within the territory of the forum state.5. Choice of law:法律选择courts use what are called choice of law rules to determine if they should apply their own law or the law of another state in settling civil disputes. Choice of law clause: 法律选择条款By using a choice of law clause in an agreement, the parties agree in advance as to what law should apply to any dispute that arises.Parties may agree by their statements to a court or by stating their position in pleadings.On rare occasions, courts will infer the intention of the parties as to choice of law based upon their actions. Court will most always skip over this option and look to statutory provisions.The most significant relationship doctrine(最密切联系原则) has a court apply the law of the state that has the most contacts with the parties and their transaction.The governmental interest doctrine （政府利益）Chapter Four1. The business forms: a. the civil law—French and German law; b. the common law—English law. Business forms in civil law states: company(社团): in the civil law states,such as France or Germany, every form of business organization is a company that must register with the state. (societe anonyme in French, Gesellschaft in German). Juridical entities(法人): In French, all companies are regarded as being juridical entities, that is, they have a legal existence that is independent of their owners. In Germany, as in the United States, corporations are juridical entities, but partnerships are not. Partnership: is a company of two or more persons who co-own and manage a business; each person in theLarge business firms use differing organizational structures to carry on operations internationally. Parent companies take on the following forms: The Non-multinational Enterprise: a firm organized in one country contracts with an independent foreign firm to carry out sales or purchasing abroad. The National Multinational Enterprise: An enterprise organized around a parent firm established in one state that operates through branches and subsidiaries inother states. ①Branch–a unit or a part of the parent (assembly plant, purchasing office,manufacturing plant).②Subsidiary– a company organized as a separate entity that is owned by the parent. The International Multinational Enterprise: an enterprise made up of two or more parents from different states that co-own subordinate operating businesses in two or more states.Representative office – A contact point where interested parties can obtain information. It does not conduct business.Agent– An independent person or company with authority to act on behalf of another.Branch–Unit or part of a company, such as an assembly plant. It is not separatelyincorporated.Subsidiary–Company owned by a parent or a parent’s holding company. Unli ke a branch, it is separately incorporated.Joint venture– An association of persons or companies collaborating in a business venture.Holding company– Company owned by a parent or parents to supervise and coordinate the operations of subsidiary companies3. Product liability产品责任: laws attempt to discourage manufacturers from putting defective products into the marketplace. Three theories: b reach of contract; negligence; strict liability. (Japan uses only theories 1 and 2. US uses all three. EU relies on 3. ) JP--remedies based on two rules: ①a seller’s breach of an implied warranty not to deliver a defective product;②a seller’s failure to perform.(P150) Negligence is a more likely basis for imposing liability. Plaintiff must establish: 1. The existence of a defect 2.That the defect was the result of defendant’s conduct 3. That plaintiff suffered an injury4.That the injury was caused by the defect5. That the defendant breached the duty of care to the plaintiff. Strict liability严格责任imposes liability on an actor regardless of fault.(Defendant can be held liable for acts that are unreasonably dangerous whether or not they exercised due care. Major advantage of this theory is that it does not require a showing of negligence.) Unreasonably dangerous means: 1.That the product was dangerous beyond the expectations of the ordinary consumer or. 2. A less dangerous alternative was feasible but not used.Chapter Seven1. “The rich get richer” has become a battle cry for ant globalization protesters at most large international economic and trade meetings.2. The Great Depression of the 1930s in many ways was a direct consequence of protectionism. The Bretton Woods system: the negotiators who met for the United Nations Monetary and Financial Conference in Bretton Woods in July 1944 were determined to create a system that would promote trade liberalization and multilateral economic cooperation. The Bretton Woods System was meant to be an integrated undertaking by then international community to establish a multilateral institutional framework of rules and obligations. As originally planned, the Bretton Woods System was to have had at its core three major international organizations: the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRU or World Bank), and the ill-fated International Trade Organization (ITO).3. 1.The 1947 General Agreement on Tariffs and Trade (GATT关税贸易总协定) Trade discrimination forbidden. ①Most-favored-nation status最惠国待遇②National treatment principle国民待遇2.Only barriers that one contracting state could use to limit the importation of goods from another contracting state were customs tariffs. 3. The trade regulations of contracting states had to be transparent.4.Customs unions and free trade agreements between contracting states were acceptable for liberalizing trade so long as they did not discriminate against third-party GATT states. GATT states were only allowed certain charges on imported goods: Import tax equal to internal taxes, antidumping duties, countervailing duties to counteract foreign export duties, Fees and proper charges for services renderedTo update GATT 1947, contracting parties participated in multilateral trade negotiations (MTNs), which are known as rounds. The first five rounds were mostly devoted to reducing tariffs. The last three completed rounds expanded to handle non-tariff matters. The eight rounds were: Geneva 1947, Annecy France (1949), Torquay England (1950--1951), Geneva (1955--1956), Dillon。