国际商法第一章introduction_to_international_and_comparative_law

四、案件争议焦点 德克萨斯州地方法院、联邦法院是否享有该案的管 辖权。 五、判决理由 1.该案件的争议行为和侵害事实都发生在厄瓜 多尔。 2.原告均居住于厄瓜多尔，但是被告不是居住 在德克萨斯，故德克萨斯州地区法院的管辖权有 异议。 3.对该案的管辖将侵犯厄瓜多尔对于其领土内的 环境和资源的控制权，即侵犯其国家主权。
Examples of Public and Private International Law
Schools of Thought Defining The Basis of International Law (IL)
Cosmopolitans argue that IL is based upon universal human rights. Positivists say that IL is based on the sovereign equality of all states and state consent to IL through treaties or custom. Hobbesians claim that states will make agreements and abide by IL only when it suits their self-interests.
to not harass witnesses involved in the case. Court of Appeals overturned the order. Held that a court could request compliance by a foreign sovereign as a matter of comity, but could not order compliance. Comity requires that we respect other countries’ sovereignty and law so that they will respect ours.
Sources of International Law
1. Treaties or conventions 2. International custom 3. General principles of law recognized by civilized nations 4. 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.
4.厄瓜多尔强烈反对德克萨斯州地区法院 对于该案的管辖。 故该案最终被解散。 六、案情分析和结论 礼让原则的适用，就是要求一国法院在某 些情况下不能行使管辖权，因为这种管辖 将侵犯另一国的法律和利益。
U.S. Courts Apply Comity and Refuse to Take Jurisdiction When: The defendant is a sovereign
What is International Law?
Historically, dealt with 3 kinds of international relationship：1.those between states and states;2.those between states and persons ;3.those between persons and persons. the rules and norms regulating the relationships between states (countries) This law nations is called public international law With growth of relationships between persons and corporations in different states, private international law developed to govern their conduct
Goodwill and Civility Between States: Comity
Republic of the Philippines v. Westinghouse Elec. Corp. 43 F3d 65 (3rd Cir, 1994)
U.S. trial court ordered the Philippine government
Chapter 1
INTRODUCTION TO INTERNATIONAL AND COMPARATIVE LAW
Topics for this chapter:
Defining International Law Making International Law Sources of International law Scope of International Law in Practice International Persons Individual Rights Under International Law Comparison of Municipal Legal Systems
Suggestions on study
1.Prepare new lessons 2.Take notes carefully in class 3.Underline key points 4.Review the lessons we have learnt 5.Raise questions or turn to the teacher for help whenever you are in trouble.
conferences, and provisions repeated over and over again in bilateral treaties
The particular consent of a state
1.declarations of its government 2.domestic legislation 3.court decisions 4.treaties the state signed or entered into.


The Making of International Law
Generally, IL comes into effect only when states consent to it. General consent found in state practice – the conduct and practices of states in their dealings with each other. Evidence of general consent:
daily performance contains:
1.Attendance rate—5 points will be deducted for each unreasonable absence. Late attendance for 3 times is considered as one absence. 2.Classroom dynamics—express your views 3.Fufil the assignments 4.case analysis (The 70 cases in the textbook )
International Business Law
Lecturer:谢扬 E-mail:yang1112fan@
Testing & Evaluating Mode
Characteristics of this course: a major compulsory course Great daily performance + good final examination score= High grade Daily performance takes 30% Final examination result takes 70%
Case analysis
Ignacio Sequihua v. Texaco Inc 一、当事人： 原告：厄瓜多尔 被告：美国 二、案情简介 厄瓜多尔声称美国的行为污染了厄瓜多尔 的空气、土地和河流。厄瓜多尔在美国的 德克萨斯州地区法院提起诉讼。原告要求
被告停止侵害，将受污染的土地恢复原状， 并且提供一笔信托基金用于污染防治。 该案件被转移至联邦法院，转移程序合 法。给予被告提出的要求联邦法院驳回原 告，不予受理该案的要求，法院最终援引 “礼让”原则解散了这一案件。 三、判决结果 联邦法院解散了这一案件。
Decisions of the International Court of Justice Resolutions passed by the UN General Assembly Multilateral treaties, conclusions of international
state Defendant has insufficient contacts with the U.S. Another judicial forum is more convenient Congress did not intend U.S. statute to apply extraterritorially Case concerns act of sovereign state on its own territory
Case 1-1 Ignacio Sequihua v. Texaco Inc.
Comity applied to private dispute. Court in Texas declined to exercise jurisdiction over activity and harm that occurred in Ecuador. Taking jurisdiction in U.S. would have interfered with Ecuador’s sovereign right to control its own environment. Case dismissed under the doctrine of comity of nations.
Treaties and Conventions
Equivalents of legislation in IL are:
Treaties – legally binding agreement
between two or more states. Conventions – legally binding agreement between states sponsored by an international organization. Customary rules that govern treaties are contained in the Vienna Convention on the Law of Treaties, ratified by 108 countries.