国际商法第一章introduction_to_international_and_comparative_law
第一章国际商法导论
Contents of the contemporary
international business law
• Traditional material trade transaction law • immaterial transactions of technology,
capital ,service and so on. e.g. company law
Conventions are the legally binding agreements between states sponsored by international organizations.
公约是指针对某一些重大问题，有国际组织发起的，多个国家 参与国际会议二缔结的多变条约，它的主要内容多为造法性的。
• 2 the contents of international business law
—— mainly about the international business transactions, as well as the relationships between multinational corporations.
国际商法
International Business Law
Chapter One: Introduction to International Business Law
Three Tasks
• Task one: what is International business law?
• Task two: what are the sources of International business law?
International business law----- refers to total norms and customary practices regulating International business transactions and all kinds of relationships between business organizations across national boundaries. • 国际商法是调整国际商事交易（commercial transaction）与商事组织（business organization） 各种关系的法律规范（legal norm）的总和。
国际商法概念
国际商法概念International business law is the body of rules and norms that regulates business activities carried outside the legal boundaries of states. In particular, it regulates the business transactions of private persons internationally, and the relationship of international commercial organizations.国际商法是调整跨国商事活动的法律规范的总称。
它调整的是国际私人商事交易关系和国际商事组织间的关系.Chapter one 第一章Introduction to International Business Law (国际商法总论)III Sources of international business law国际商业法的渊源A. National law 国内法The most important source.Take China as an example:The Contract LawTrademark Law 商标法Chinese-Foreign joint Venture (Cooperative) Law,中外合资企业(合作)法律The Civil Procedure Law民事诉讼法Arbitration Law仲裁法律B. International treaties and conventions国际条约和惯例Differences between treaties and convention:The most important international conventions:The United nations Convention on Contract for the International Sales of Goods （CISG，联合国国际货物销售合同公约）Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (the Hague rules，海牙规则)The Paris Convention for the Protection of Industrial Property (Paris Convention，巴黎公约 )Understanding on the Rules and Procedures Governing the Settlement of Disputes (DSU，争端解决规则与程序谅解）C .International model law国际通则Definition定义: rules and norms worked out and passed by some international organizations for the free choice by nations.Influence:1. model for national and international legislature;国家与国际立法机构模型2. a means of interpreting and supplementing existing uniform law;3. rules governing the contract (situations?);4. a substitute for the domestic lawD. International trade customs and usages国际贸易惯例Definition(定义): the general rules and practices in international trade activities that have become generally adopted through unvarying habit and common use. (used to be oral but later compiled into written rules)Influence: not law, but plays an important role.1. as binding rules by agreed upon by the parties to the contract.2. as interpreting or filling the gaps in the contract.(only for usages the parties agreed to be bound or that derive from their past dealings, or the usages the party knew or ought to have known and that are regularly observed in the industry or trade involved.Chapter Two 第二章Forms of international Business 国际商事方式I Some International Trade TheoriesB. Absolute Advantage 绝对优势Adam Smith 亚当.斯密绝对优势理论（Theory of Absolute Advantage），又称绝对成本说（Theory of Absolute Cost）、地域分工说（Theory of Territorial Division of Labor）。
国际商法导论An_Introduction_to_International_Commercial_Law
International Business LawAn Introduction to International Business Law国际商法导论I.The Concept and Sources of International Business Law国际商法的概念和渊源I.1 Concept of the International Business Law: What is International Business Law? 国际商法的概念: 什么是国际商法？International Business Law is the sum total of laws of regulating the various relationships between international business transaction and the business organizations. 国际商法是调整国际商事交易和商业组织的各种关系的法律规范的总和。
The regulating objects and ranges of international business law are broader than that of the traditional business law. 国际商法的调整对象和范围比传统的商法更为广泛。
The traditional business law mainly includes the contents of the business law of act, the company law(UK)/the law of corporation(USA), the law of bills, the law of maritime commerce, the law of insurance, etc.. 传统的商法主要包括商行为法、公司法、票据法、海商法、保险法等内容。
国际商法1单元演示文稿
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II. Sources of International Business Law
Sources of International Business Law are what international tribunals rely on in determining the content of international business law. The main sources include international treaties and conventions, international customs and usages, national business law.
Transactions Contents of International Business Law
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I. Definition of International Business Law
1. Defining International Business Law International business law refers to the
Conventions are binding agreements between states sponsored by international organizations.
国际商法Chapter One
Chapter OneIntroduction to International Business Law1. What is the “International Business Law”?2. What is the basic source of international business law?3. What is the meaning of CISG in Chinese?4. What is the meaning of INCOTERMS 2000 in Chinese?5. What is the meaning of the Hague Rules in Chinese?6. International treaties and conventions means the general rules and practices in international trade activities that have become generally adopted through unvarying habit and common use.（）7. International business custom can be differentiated three concepts. What are they?8. All international trade custom does not have any legal binding effect until the parties of an international business transaction choose it to apply to their contract, and the court and arbitration institution may decide or enforce accordingly. （）9. What is the meaning of International Chamber of Commerce？10. What is the meaning of UCP 600?11. What is the common-law system or English Law system or Anglo-American law system?12. What is the civil-law system or Continental law system or Romano-Germanic law system?14. Common-law systems are based largely on case law, that is, on court decision. ( )15. Louisiana and every Canadian province except Quebec adopted a common-law system. ( )16. What is the main difference between the civil law system and the common law system?17. Common-law systems are based mainly on statutes, legislative acts. ( )。
国际商法第一章
International Licensing Agreements
• International licensing agreements: contracts by which the holder of intellectual property will grant certain rights in that property to a foreign firm to use for a period of time under certain conditions in return for a licensing fee • How does this work as a business model? • Technology transfer: exchange of technology and know how between firms in different countries through licensing
– Copyrights: legal rights to an artistic or written work – Trademarks: the legal right to use a name or symbol; that identifies a firm or its product – Patents: governmental grants to inventors assuring them of the legal right to produce, use and sell their invention for a period of years
9
Trade: exporting
• Direct: often use foreign sales agents • Indirect: use export trading companies
国际商法(英语专业)
International Business Law国际商法课程教案YUAN TIANForeign Language Teaching and Research DepartmentHeilongjiang UniversityChapter OneIntroduction to International Business LawI. Teaching ObjectivesOn completion of this Chapter, students should be able to:1.Get to know the objectives and feature of this course;2.Get to know the basic relationship among such elements as:➢International;➢Business;➢Law3.Grasp the basic requirements of legal English learning.4.Get to know the features of international law;5.Get to know the sources of international law.II. The Points to Be Highlighted1. The relationship among the key elements as “international”, “business” and “law”2. The understanding of the nature of lawIII. T eaching Approaches and FacilitiesApproaches: 1. Pair/Group work 2. Discussion 3 Task-based approach4. Communicative approach5. Questions and answers……Facilities: PPT demonstration in the media classroom; on-line researchIV. Background Information1. Economic globalization, in recent years, has been one of the hottest focuses in the world. Although it is extremely difficult to define economic globalization, many economists and business experts believe that no business can be purely domestic, and the realities of the modern world make all business international.2. The causes of these developments are numerous:(1) Incredible advances in efficiency of communication;(2) Extraordinary reductions in transport costs;(3) Growing prevalence of instant tele-and-cyber-transactions;(4) Treaty and other norms causing reduction of governmental barriers to trade;(5) The blessing of relative peace in the world.V. Teaching Procedures and Contents1. Introduce the outline of this Chapter:This Chapter will discuss:❖WHAT IS INTERNATIONAL LAW?❖SOURCES OF INTERNATIONAL LAW✧International conventions;✧International custom;✧General principles of law;✧Judicial decisions;✧Teachings of publicists.❖THE SCOPE OF INTERNATIONAL LAW❖COMPARISON OF MUNICIPAL LEGAL SYSTEMS✧Romano-Germanic Civil Law;✧Anglo-American Common Law;✧Islamic Law2. WHAT IS INTERNATIONAL LA W?❖Defined: The body of rules and norms that regulates activities carried on outside the legal boundaries of nationsIt regulates three international relationships:1) Those between states and states.2) Those between states and persons.3) Those between persons and persons.❖The differences between public international law and private international law❖Is International Law Really Law?1) Because nations and individuals regard international law as law, it is law.2) Comity: The practice, or courtesy, between nations of treating each other with goodwill and civility.3) Comity is not law because countries do not regard it as something they are required to respect.3. SOURCES OF INTERNATIONAL LAW❖Defined: Those things which international tribunals rely upon in determining the content of international law; ❖Treaties and Conventions:1) Definitions:✧Treaties are agreements between one or more nations.✧Conventions are agreements sponsored by international organizations.2) Reasons for binding effect:✧Shared sense of commitment✧Because one country fears that if it does not respect its promises, other countries will not respect theirpromises3) Rules governing treaties:✧Traditionally customary;✧Now codified in the Vienna Convention on the Law of Treaties (in force since 1980).❖Custom1) Defined: Rules that have been around for a long time or which are generally accepted.Caveat: Customary rules are constantly changing.2) Establishing the existence of a customary law: Must show two elements —one behavioral and one psychological:✧Usus(Latin for: usage): Is the consistent and recurring action (or lack of action if the custom is one ofnoninvolvement) by states.✧Opinio juris et necessitatis (Latin for: Of the opinion that the rule is proper and required): The custom mustbe regarded by states observing it as one that they must obligatorily follow.3) Exceptions to the application of custom:✧Persistent objector: A state that persistently objects to a practice during its formative stages will neverbecome a party to it.✧A state allowed by the international community to deviate from a customary practice.❖General PrinciplesGeneral principles of law are common to both (or all) the state parties to a dispute.4. COMPARISONS OF MUNICIPAL LEGAL SYSTEMS❖Legal “families”1) Romano-Germanic Civil Law.2) Anglo-American Common Law.3) Islamic Law.❖The Romano-Germanic Civil Law SystemThe Oldest and most influential of the legal familiesA. French Civil Code1) French Civil Code (Code Napoleon) of 1804✧The right to possess private property;✧The freedom to contract;✧The autonomy of the patriarchal family.2) Differences from the German Code:✧Written in a short period of time.✧Its style and form are one that is straightforward, easy to read, and understandable to everyone.3) Differences from the English common law: It contains flexible general rules rather than detailed provisions.B. German Civil Code of 1896.1)Characteristics of the German Code:✧Incredibly precise and technical.✧Special terminology is used.2) Differences from the French Code: It is meant exclusively for the use of trained experts (not lay readers).C. Countries with Civil Law systems distinguish between the civil law and public Law.1) Public law evolved separately from the movement for codification of civil or private law.✧Public law is constitutional and administrative law.✧Public law is treated in a variety of ways in the civil law countries.❖The Anglo-American Common Law System1) Historical origins:In 1066, the Normans conquered England and William the Conqueror began to centralize the governmental administration of his new kingdom.The name “common law” is derived from the theory that the king’s courts represented the common custom of the realm, as opposed to the local customary law practiced in the county and manorial courts.2) The “common law” must be distinguished from the law which evolved out of:✧Equity: A principle of justice de veloped by the king’s chaplain, or chancellor, to provide parties with aremedy when none was available in the king’s courts.✧Admiralty (the laws governing sailors) and other specialized jurisdictions.❖The Islamic Law System——Known as Shari’a.1) Sources in the order of their importance:✧The Koran.✧The Sunnah or decisions and sayings of the Prophet Muhammad.✧The writings of Islamic scholars who derived rules by analogy from the principles established in theKoran and the Sunnah.✧The consensus of the legal community.2) Note that the Shari’a is primarily a moral code.✧It is principally concerned with ethics.✧In this respect, it contains many principles in common with the civil law and the common law.✧It is much less concerned with promoting commerce and international relations than the secular legalsystems.VI. Assignments1. Translation Exercises:Article 38(1) of the Statute of the International Court of Justice lists the sources that the Court is permitted touse.The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:(a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;(b) International custom, as evidence of a general practice accepted as law;(c) The general principles of law recognized by civilized nations;(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.2. Case study—The Lotus in 1927A collision occurred on the high seas between a French steamer and a Turkish collier in which some Turkish crew members and passengers lost their lives. When the French ship docked in a Turkish port, the Turkish government began criminal proceedings against the French officers on watch at the time of the collision. The French appealed to the permanent Courts of International Justice arguing that Turkey had violated international law, because, France said, only the flag state has jurisdiction over criminal incidents on the high seas.The PCIJ said that the few cases France cited for this proposition “merely show that states had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstentions were based on their being conscious of a duty to abstain would it be possible to speak of an international custom.”Conclusion: Turkey was allowed to continue with its criminal prosecution.VII. Reference MaterialInternational business law (Text, Cases, and Readings) Ray AugustInternational Business Law and Its Environment by Richard Schaffer, Beverley EarleInternational Business Law: A Transactional Approach by Larry DiMatteo and Lucien J. DhoogeChapter TwoThe Multinational EnterpriseI. Teaching ObjectivesOn completion of this Chapter, students should be able to:1.know the basic forms of International business;2.better understand the structures of multinational enterprises.3.grasp the basic attributes of a multinational organization;4.learn to differentiate national multinational corporation from international multinational corporation;5.get familiar with basic international regulations and home state regulations of multinational enterprises6.get familiar with basic international regulations;7.grasp the host state regulations of multinational enterprises.II. The Points to Be Highlighted1. The difference between the national Multinational Corporation and the international Multinational Corporation.2. The basic attributes of a multinational organization.III. T eaching Approaches and FacilitiesApproaches: 1. Pair/Group work 2. Discussion 3 Task-based approach4. Communicative approach5. Questions and answers……Facilities: PPT demonstration in the media classroom; on-line researchIV. Background InformationPre-lecture illustrationGet familiar with the outline of this Chapter:❖THE BUSINESS FORM❖THE MULTINATIONAL ORGANIZATION❖INTERNATIONAL REGULATION OF MULTINATIONAL ENTERPRISES❖HOME STA TE REGULATION OF MULTINATIONAL ENTERPRISES❖HOST STATE REGULATION OF MULTINATIONAL ENTERPRISESV. Teaching Procedures and ContentsSection 1 THE BUSINESS FORM1. Multinational Nature●Depending on place of creation:Home or parent organizations—located within a single state;Multiple parents located in multiple states.● A matter of municipal law2. Business Forms in Civil Law States1) Company: An association of persons or of capital organized for the purpose of carrying on a commercial, industrial, or similar enterprise.2) Partnership: A company of two or more persons who co-own and manage a business and who are each liable to the full extent of their personal assets for its debts.✧Limited partnership: A company of two or more persons, at least one of whom has unlimited personalliability for the debts of the business and at least one other who is an investor having limited liability.✧Silent partnership: A secret relationship between two or more persons, one of whom carries on abusiness in his name alone without revealing the participation of the other who has limited personal liability.✧Partnership limited by shares: A company of one or more general partners who have unlimited personalliability for the debts of the company and limited participation by investors in the form of shares. The company is taxed as a corporation.3) Corporation: A company of capital whose owners have limited personal liability.✧Stock corporation: A corporation that can raise money in the public marketplace through the sale offreely transferable shares. Its financial statements have to be disclosed to the public.✧Limited liability company: A corporation owned by members that does not issue negotiable sharecertificates and is subject to minimal public disclosure laws.3. Business Forms in Common Law States1) Company: An association of persons organized for the purpose of carrying on a commercial, industrial, or similar enterprise.2) Partnership: An association of two or more persons who co-own and manage a business for profit and who are each liable to the full extent of their personal assets for its debts.✧Limited partnership: A partnership consisting of one or more general partners who manage the businessand who are each liable to the full extent of their personal assets for its debts and one or more limited partners whose liability is limited to the funds they invest.✧Secret partnership: A partnership in which the participation of one or more persons as partners is notdisclosed to the public by any of the partners. All of the partners have unlimited personal liability.3) Joint stock company: An unincorporated association of persons whose ownership interests are represented by transferable shares. The shareholders have unlimited personal liability.4) Business trust: A business arrangement in which the owners of a property, known as beneficiaries, transfer legal title to that property to a trustee who then manages it for them.✧The beneficiaries hold transferable trust certificates entitling them to the income generated by theproperty and a residual equitable share at the time the trust is terminated.✧The trustee has unlimited personal liability while the beneficiaries have limited personal liability.5) Corporation: A separate juridical entity owned by shareholders who may have limited, unlimited, or no liability.✧Public corporation: A corporation that can raise money in the public marketplace through the sale offreely transferable shares. Its financial statements have to be disclosed to the public.✧Private corporation: A corporation that may not ask the public to subscribe to its shares, bonds, or othersecurities and which is subject to less stringent public disclosure laws than a public corporation.✧Limited liability company: An unincorporated business association.4. The Importance of the Separate Legal Identity of Companies1) Juridical entities (such as companies) have legal identities separate from that of their owners.2) Significance:✧ The liability of the owners is limited to their investment in the company.✧ The owners are neither managers nor agents nor representatives of the company.✧ The rights and benefits accruing to the company belong to the company and not its owners.✧ The property rights of a company can only be claimed by that company.Section 2 THE MULTINATIONAL ORGANIZATION1. Parent Company1) The Non-multinational.✧ Defined: A domestic firm functioning in the international marketplace through a foreign agent.✧ Note: Neither the principal nor the agent are truly multinational enterprises because neither operatesoutside of its home state.2) The National Multinational✧ Defined: A firm in one country — the “parent” — that operates in other countries through branches andsubsidiaries.3) The International Multinational✧ Two or more parent companies located in different states operate through jointly owned subsidiaries inseveral states.✧ Public Trans-nationals.✧ Defined: A government-controlled multinational enterprise created by treaty between two or morestates.2. The Subordinate Structure1) Subordinates subject to direct control of the parent:2) Representative office: A foreign contact point where interested parties can obtain information about a particular firm.✧ It does not do any business on its own.3) Agent: An individual who is employed as an independent representative of a firm.✧Agents are subject to the supervision of the parent firm (or principal).✧Their authority is limited to what the parent delegates to them.4) Branch: A larger unit of the parent company which involves not only the placement of individuals in a particular locale, but also the establishment of a facility, such as an assembly plant, mining operation, or service office.✧The authority of branch personnel is limited to what the parent has delegated.5) Disadvantages of these subordinates:✧The parent has to assume all of the risk of investing abroad.✧ A foreign firm (or its agent or its branch) is often taxed at higher rates than local firms.✧Many developing states require local participation in order for a foreign firm to either invest or expandits local investment.3. Firms not subject to the direct control of the parent1) Subsidiary: An independently organized and incorporated company.✧The subsidiary’s company status insulates the par ent from unlimited liability.✧Locally organized companies are commonly entitled to certain tax benefits that foreign branches are not.2) Joint venture: An association of persons or companies who are involved in “a collaboration for more than a transitory period.”✧Business form: May be any type of business form (e.g., an association, a partnership, a limitedpartnership, a secret partnership, or a limited liability company).✧The investors share the risk.✧Entry into foreign markets is usually easier for a multinational that is affiliated with a local jointventurer.3) Holding company: A subsidiary company that in turn owns other subsidiaries.✧Reason for setting up holding companies:⏹To establish a consolidated management team for a group of subsidiaries or subsidiaries owned bydifferent parents.⏹For tax advantages.✧Business form: Most commonly a holding company is organized as a limited liability company whoseshares are held by its parent or parents.Section 3 INTERNATIONAL REGULATION OF MULTINATIONAL ENTERPRISES1. Several International Organization have Promulgated Rules of Ethical Behavior for Multinational Enterprises, including:✧Organization for Economic Cooperation and Development (OECD).✧International Labor Organization (ILO).✧International Chamber of Commerce (ICC).2. These are only Suggested RulesBinding international codes do not exist as yet.Section 4 HOME STATE REGULATION OF MULTINATIONAL ENTERPRISES1. Introduction✧The most important forms of home state regulation are:1) Regulation of competition.2) Regulation of injuries caused by defective products.3) Prohibition of sharp business practices.4) Regulation of securities.5) Regulation of labor and employment.6) The establishment of accounting standards.7) Taxation.✧Some of these rules are applied extraterritorially by home state, most notably:1) Regulation of competition.2) Regulation of injuries caused by defective products.3) Prohibition of sharp business practices.2. Unfair Competition Laws1) United States Unfair Competition Laws.✧Sherman Antitrust Act of 1890 is the principal US law regulating anti-competitive behavior.✧Clayton Act of 1914 Defines certain specific acts that constitute unfair business competition, including:◆Exclusive dealing agreements and tying clauses.◆Mergers that result in a monopoly.◆Interlocking directorates.✧Robinson-Patman Act of 1936 makes price discrimination illegal.2) Extraterritorial Application of US Antitrust Laws.✧Statutorily authorized: The Sherman Act declares that it applies to conduct affecting “trade or commerceamong the several states, or with foreign nations.”✧Judicially imposed limits on the extraterritorial application of the US antitrust laws.✧Personal Jurisdiction Requirements:✧Applicable state “long arm statutes.”: Due process forbids a court from assuming personal jurisdictionunless a defendant has “minimum contacts” with the forum state.3) Subject matter jurisdiction requirement.✧The courts have created two tests for determining when they have subject matter jurisdiction in anAmerican antitrust case.⏹Effects test: Companies carrying on business outside of the US will come within the subject matterjurisdiction of a US court if their business activity is:◆Intended to affect US commerce.◆Not de minimis.⏹Balancing Test (or “choice of law” test): Defined: A court should balance the interests of the statesconcerned in determining if subject matter jurisdiction exists.◆This is now the prevalent test in the US.3. Regulation of Anticompetitive Behavior in the European Union1) The European Community Treaty contains two provisions regulating business competition.✧Article 85 prohibits normal arm’s length competitor s from entering into agreements or carrying onconcerted practices which either prevent, restrain, or distort trade.✧Article 86 forbids businesses with a dominant position in their marketplace from taking improperadvantage of their position to the detriment of consumers.2) Compliance: EU Commission is solely responsible for enforcing Articles 85 and 86.3) Extraterritorial application of the EU’s business competition rules.✧EU Commission and the EU Court of Justice have adopted (in essence) the US “effects test.”✧EU effects test: The EU business competition rules apply to foreign firms to the extent that the firm’sactivities have an effect on trade or commerce within the EU.4. Opposition to the Extraterritorial Application of Unfair Competition Laws1) Blocking Statutes: Typically have three features:✧They limit the extent to which a US plaintiff can obtain evidence or seek production of commercialdocuments outside of the US for use in investigations or proceedings in the US.✧They make it difficult for a successful plaintiff to enforce a US judgment outside the US.✧By virtue of a “clawback” provision, they allow defendants to bring suit in their home country torecover the punitive damages they paid in the US.✧Judicial Injunctions are sometimes granted by courts to prohibit one of their nationals from initiating anantitrust suit in the US against another of their nationals.5. Product Liability Laws1) Purpose of product liability laws: To discourage manufacturers from putting defective products into the marketplace.2) Product Liability Theories.✧Breach of contract.✧Negligence.✧Strict liability.Most states use only the first two; Common law countries use all three; EU now relies principally on the last.3) Extraterritorial Application of Product Liability Laws✧The country that has been most willing to apply its product liability laws extraterritorially: The US.✧Considerations of US courts in determining whether they can exercise jurisdiction in a product liabilitycase:⏹Personal jurisdiction.⏹Forum non conveniens.6. Sharp Practices1) Defined: Dishonest business dealings meant to obtain a benefit for a firm regardless of the means used.✧Examples: Misrepresentation and bribery.2) Governing law: Municipal (local) law.3) Extraterritorial application of sharp practices law.✧The country that has been most willing to apply its sharp practices laws extraterritorially: The US.✧US legislation: Foreign Corrupt Practices Act (FCPA) of 1977.✧Caveat: They may only be charged with a violation of the FCPA after the company has first beencharged and convicted of the same violation.✧Forbid bribes to:⏹Foreign government officials.⏹Foreign political party officials.⏹Candidates for foreign political office.Section 5 PIERCING THE COMPANY VEIL1. Defined:Ignoring the corporate structure of a company (i.e., “piercing the company veil”) and exposing the shareholders to personal liability.2. Four circumstances where this is done:1) The Controlled Company: The corporate status of a controlled company will be ignored if both:✧Its financing and management are so closely connected to its parent that it does not have anyindependent decision-making authority; and✧It is induced to enter into a transaction beneficial to the parent but detrimental to it and to third parties.2) The Alter Ego Company: The company veil will be pierced if the company is not treated by its shareholders as a separate juridical entity (i.e., it is treated as the alter ego of the shareholders).✧The commingling of corporate and personal assets.✧The use of company assets by shareholders for their own personal benefit.✧The failure to hold and record minutes of board of directors’ meetings.3) Undercapitaliza tion: A company’s veil will be set aside if, at the time it was formed, it was provided with insufficient capital to meet its prospective debts or potential liabilities.4) Personal Assumption of Liability: Shareholders who have personally guaranteed the obligations of a company can, of course, be made to answer for those obligations.VI. Assignments1. Critical thinking on Business FormsCurly owns part of the Nyuck-Nyuck wise Guys, a major league baseball team. Curly becomes disgusted with the whole business of baseball when the team makes a $50-million, five-year deal with a free agent, Mr. Potatohead. Without telling the other owners, Curly purports to transfer his interest in the team to Shemp. (Curly is one of several hundred owners.) On the issue of whether Curly’s interest is in fact transferable, does it matter whether the team is partnership or a corporation?●If it’s a corporation, Shemp probably is an owner.Freely transferable ownership for a corporation unless subject to a written restriction on transfer (close corporation)●If it’s a partnership, Shemp isn’t an owner.A partnership interest is only transferable with the remaining partners’ approval unless t he partnership contract provides otherwise; without it, the transferee cannot become a full partner (e.g., he cannot vote.)VII. Reference MaterialPrinciples of International Business Transactions (The Concise Hornbook Series) (Hornbook Series Student Edition) by Ralph H. Folsom, Michael W. Gordon, and John A. SpanogleFundamentals of International Business Transactions by Ronald BrandThe Law & Business of International Project Finance by Scott L. HoffmanChapter ThreeCISGI. Teaching ObjectivesOn completion of this Chapter, students should be able to:1.Get familiar with the application scope of CISG and relevant background knowledge;2.Get a general idea about the basic theory of contract under common law system.3.Grasp the basic principles applicable to the interpretation of CISG;4.Learn to distinguish offer from acceptance in the theory of contracts;5.Get familiar with the general standards of contract performance. Grasp the function of agency relationship incorporation law.II. The Points to Be Highlighted1.Applying the contract theory to practical issues solving;2.Specify the application scope of CISGIII. T eaching Approaches and FacilitiesApproaches: 1. Pair/Group work 2. Discussion 3 Task-based approach4. Communicative approach5. Questions and answers……Facilities: PPT demonstration in the media classroom; on-line researchIV. Background Information1. In an international transaction, at least one party is likely to have its rights decided under the law of a foreign country because two parties to the sales contract must be governed by the law of only one country. What is more important, there are many differences between national laws.2. As a result, the function and nature of sales law are viewed differently in different legal systems. Each system has its individual rules for deciding the validity of a contract for interpreting its terms, and for defining the remedies available to a party upon a breach.3. Thus, when a firm enters a contract governed by foreign law, it is undertaking an added risk. Obviously, the conflicts of laws of different countries are big impediments to both parties to a sales contract.V. Teaching Procedures and ContentsGet familiar with the outline of this Chapter:❖UNITED NATION’S CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG)。
国际商法课1(1)
w of Business Organizations（国际商事组织法）
w of Agency （国际商事代理法） 4.International Contract Law （国际商事合同法） 6.International Cargo Transportation and Insurance
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Statute of the International Court of Justice 国际法院规约 A custom of some kind of comes from a usage, and a usage develops from a general practice 某种习惯法来源于习惯，习惯则由一般的做法发 展而来
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This entitles states to require that obligations be respected and to rely upon the obligations being respected.
这允许各州要求义务被尊重和依赖的义务被尊重
第六条 双方当事人可以不适用本公约，或在第十二条 的条件下，减损本公约的任何规定或改变其效力。
1980年 1983年 1924年 1930年 1977年 1883年 1985年
联合国国际货物销售合同公约 国际货物销售代理公约 统一提单若干法律规定的国际公约 统一汇票本票法公约 产品责任法律适用公约 保护工业产权巴黎公约 承认及执行外国仲裁裁决公约
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1. International Treaties and Conventions
V. Contents of International Business Law
国际商法雷奥古斯特CHAPTER 1
1. 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.) 2. Recognized by those states observing it as a practice that they must obligatorily follow.
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© 2009 Pearson Education Inc publishing as Prentice Hall
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.
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Treaties or conventions International custom General principles of law recognized by civilized nations Judicial decisions and teachings of highly qualified legal writers
国际商法课件( English )(1)
▪ 3. The meaning of “commerand, during the communication of the countries, people formed some trade practice and customs which were commonly obeyed. By the end of 19th C and at the beginning of 20th C international business law appears.
Chapter One Introduction to International Business Law
▪ I. Definition of International Business Law ▪ II. Sources of International Business Law ▪ III. History of International Business Law ▪ IV. Characteristics and Principles of
▪ (2) the parties have their nationalities from different countries;
▪ (3) the commercial activities are performed in a State or District outside the Country or Countries of one or more parties;
国际商法第五版第一章PPT——ray·august著
INTRODUCTION TO INTERNATIONAL AND COMPARATIVE LAW
© 2009 Pearson Education Inc. publishing as Prentice Hall
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CHAPTER 1
INTRODUCTION TO INTERNATIONAL AND COMPARATIVE LAW
© 2009 Pearson Education Inc publishing as Prentice Hall
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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.
© 2009 Pearson Education Inc. publishing as Prentice Hall
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What is International Law?
Historically, dealt with the rules and norms regulating the relationships between states (countries) This law between 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
国际商法（英）第一章答案和解析1_testbank
国际商法（英）第⼀章答案和解析1_testbankChapter 1Introduction to International and Comparative LawA. WHAT IS INTERNATIONAL LAW?1. International law is the body of rules and norms that regulates activities carried onoutside the legal boundaries of nations.Answer: True 2. In contemporary international law, the division between public and private law isprecise and well defined.Answer: False 3. International law is not really law since there is no worldwide legislature to enact it. Answer: False 4. Comity is the practice, or courtesy, between nations of treating each other withgoodwill and civility.Answer: True 5. Comity is not law because countries do not regard it as something they are requiredto respect.Answer: True6. International law regulates relationships between:a. states and states.b. states and persons.c. persons and persons.d. All of the above.e. Both a. and b. above.Answer: d 7. Which of the following is an example/are examples of the subject matter of public international law?a. Contracts and sales.b. Securities regulations.c. State succession.d. All of the above.e. None of the above.Answer: c8. Which of the following is an example/are examples of the subject matter of private international law?a. Antitrust.b. Nationality.c. State responsibility to aliens.d. All of the above.e. Both a. and b. above.Answer: e9. Law is:a. a rule established by authority, society, or custom.b. a body or system of rules.c. the control or authority imposed by a system of rules.d. All of the above.e. None of the above.Answer: dB. THE MAKING OF INTERNATIONAL LAW10. Despite the lack of international law-making machinery, states function informally asboth lobbyists and legislators.Answer: True 11. International law exists when there is a consensus of the international community.Answer: True 12. Unratified treaties and reports of international agencies are sometimes cited asevidence of a trend toward the development of a rule of international law.Answer: True 13. Case law derived from the decisions of arbitration tribunals hearing disputes betweenprivate parties is never used as a source of international law rules.Answer: False 14. Evidence of the general consent of the international community to the existence of a rule of international law can be found in:a. decisions of the International Court of Justice.b. resolutions passed by the UN General Assembly.c. the conduct and practices of states in their dealings between themselves.d. All of the above.e. Both a. and c.Answer: dC. SOURCES OF INTERNATIONAL LAW15. The sources of international law which Article 38(1) of the Statute of the International Court of Justice states that the court is permitted to use in settling disputes are:a. general principles of law.b. international conventions.c. the case law of municipal courts.d. All of the above.e. Both a. and b. aboveAnswer: d 16. In determining whether a practice has become a rule of international customary law, Article 38(1) of the Statute of the International Court of Justice states that the court is permitted to look to:a. economic trends.b. historical records.c. teachings of legal writers.d. All of the above.e. Both a. and b. above.Answer: c 17. Which of the following sources of international law does the International Court of Justice normally regard as the most authoritative?a. Customary international law.b. General principles of law.c. International conventions.d. Judicial decisions.e. Teachings of legal writers.Answer: c 1. Treaties and Conventions18. The customary rules that govern treaties are now codified in the Vienna Conventionon the Law of Treaties.Answer: True19. Treaties and conventions have binding effect because:a. one country fears that if it does not respect its promises, other countries will notrespect their promises.b. states that fail to observe them may be fined or otherwise punished by theInternational Court of Justice.c. states that fail to observe them will lose their membership in the United Nations.d. All of the above.Answer: a20. The Vienna Convention on the Law of Treaties applies to treaties and conventions that:a. are governed by municipal law.b. are in writing.c. are made orally.d. relate to international organizations.e. All of the above.Answer: b 2. Custom21. Once adopted, customary rules of international law are seldom changed.Answer: False 22. To establish the existence of a customary rule of international law, one must showthat the international community has observed the rule for a long period of time.Answer: False 23. To establish the existence of a customary rule of international law, one must showthat the entire international community has given its consent to the rule.Answer: False24. To establish the existence of a customary rule of international law, one must show:a. opinio juris et necessitatis.b. pacta sunt servanda.c. rebus sic standibus.d. waiver.e. None of the above.Answer: a 25. In The Lotus Case, Turkey had begun prosecution of the officers on a French ship who had been involved in a collision with a Turkish ship. France brought suit in the Permanent Court of International Justice (PCIJ) claiming that customary international law allowed only the state whose ship the officers were aboard to prosecute them. The PCIJ ruled against France because:a. in previous similar cases, the states which had acted as France suggested had notdone so because they thought they were obliged to do so.b. the rule which France suggested had become custom had only been observed bya few states.c. the rule which France suggested had become custom had only been observed fora few years.d. All of the above were reasons given by the PCIJ.e. None of the above is a correct answer.Answer: a26. Which of the following states is not required to observe a particular rule of customary international law?a. A persistent objector.b. A state that has recently acquired its independence following the division of itspredecessor state.c. A superpower.d. All of the above.Answer: a 3. General Principles27. General principles of international law are based on legal rules that are common toboth (or all) the state parties to a dispute.Answer: TrueD. THE SCOPE OF INTERNATIONAL LAW IN ACTUAL PRACTICE1. The Practice in International Tribunals28. In international tribunals, municipal law is regarded as being correlative withinternational law.Answer: False 29. International tribunals generally regard states as having an obligation to bring theirmunicipal law into compliance with international norms.Answer: True30. In international tribunals,a. municipal laws are treated as “mere facts.”b. municipal laws will not be declared either void or valid.c. municipal laws will not be interpreted.d. the parties must prove what the municipal law is.e. All of the above.Answer: e 2. The Practice in Municipal Courts31. In municipal courts, international law is generally treated as being subservient.Answer: False 32. According to the doctrine of incorporation, customary international laws are treatedas adopted by a municipal court to the extent that they are not inconsistent with prior municipal legislation or judicial decisions of final authority.Answer: True33. According to the doctrine of transformation, customary international laws are notapplicable in a municipal court until they are clearly adopted by legislative action,judicial decision, or established local usage.Answer: True 34. A self-executing treaty is one that contains a provision that says the treaty will applyin the parties’ municipal courts once the parties have adopted domestic enablinglegislation.Answer: False 35. Once a municipal court determines that a particular rule of international law isapplicable in a particular case, that law will be treated as law and not as a fact.Answer: True 36. When a municipal court acts to determine if a particular rule of international law has been received into the local jurisprudence, it will (in most countries) apply the doctrine of:a. immaculate conception.b. incorporation.c. resuscitation.d. transformation.Answer: b 37. In the United States, a treaty adopted by authority of the President alone (i.e., without the consent of the Senate) is known as a/an:a. constitutional convention.b. executive agreement.c. presidential treaty.d. Truman treaty.e. None of the above.Answer: b38. In the United Kingdom, treaties are made by:a. the Crown (i.e., the executive).b. the prime minister with the approval of the foreign secretary.c. the prime minister with the approval of the queen.d. None of the above.Answer: aE. INTERNATIONAL PERSONS1. States39. Recognition of a government is usually made in a bilateral agreement.Answer: False 40. Recognition implies that the recognized state or government is entitled to all of therights and privileges granted by international law.Answer: True 41. To avoid any possible connotation that recognition also means approval, manygovernments have adopted the Estrada Doctrine of never formally recognizing other governments.Answer: True 42. Territorial sovereignty is the absolute and unqualified right of a state to exercise itsfunctions within a territory.Answer: False 43. Title to newly acquired territory may be confirmed by estoppel.Answer: True 44. A successor state is not bound by the “dispositive” treaties made by its predecessor.Answer: False 45. When State A and State B merge to form State C, State C and the other state partiesto a treaty made by State A can agree either to terminate the treaty or extend it to the whole territory of the new state. Answer: True46. When State A and State B merge to form State C, State C will no longer be bound bya treaty made by State A if its object and purpose can no longer be accomplished.Answer: True 47. When a part of the territory of State X shifts and becomes part of the territory ofState Y, the treaties made by State X continue to apply to that territory.Answer: False 48. Nationals of a territory that is acquired by a successor state will keep the nationalityof the predecessor state unless a different result is agreed to in a treaty of cession or by municipal legislation. Answer: True49. State A disintegrates into States B and State C. The public property of State Alocated in State D becomes the property of D.Answer: False 50. Private property rights of individuals do not lapse because of a change in government. Answer: True 51. A successor state is not bound by the private contractual obligations of itspredecessors.Answer: False 52. State Q disintegrates into State R and State S. State R and State S are bothresponsible for State Q’s national debt.Answer: True53. A state is an international person with:a. a government.b. a population.c. a territory.d. All of the above.e. Both a. and b.Answer: d 54. A state that lacks some attribute (i.e., territory, population, or government) required for it to be treated as a fully independent state is known as a/an:a. dependent state.b. developing state.c. inchoate state.d. non-state.e. underdeveloped state.Answer: c 55. “The legal existence of a government happens automatically by operation of law whenever a government is capable of controlling a territory and its people.” This is a statement of the:a. constitutive doctrine.b. declaratory doctrine.c. Estrada doctrine.d. recognitive doctrine.e. None of the above.Answer: b56. “A government does not truly come into existence until such time as it is recognized by other states and participates in the internati onal arena.” This is a statement of the:a. constitutive doctrine.b. declaratory doctrine.c. Estrada doctrine.d. participatory doctrine.e. None of the above.Answer: a57. The right of all states to transit the Suez and Panama canals is an example of a/an:a. easement.b. license.c. negative servitude.d. positive servitude.e. profit a prendre.Answer: d58. States may lawfully acquire territory by:a. force from another state.b. occupying land not claimed by another sovereign.c. the mutually agreed to transfer from another sovereign.d. All of the above.e. Both b. and c. above.Answer: e 59. State A and State B merge to form new State C. As to the treaties that had been in force in State A,a. only those that were dispositive treaties continue to be in force.b. they are in force throughout State C.c. they are no longer in force.d. they continue to be in force in that part of State C that used to be State A.e. None of the above.Answer: d 60. “When a new state comes into being through decolonization, the ex-colony starts with no obligation to succeed to the treaties of its former colonial power.” This is known as the:a. clean slate doctrine.b. divorcement policy.c. ex parte doctrine.d. fresh start rule.e. None of the above.Answer: a61. State Q disintegrated into State R and State S. As to the treaties that had been in force in State Q,a. only those that were dispositive treaties continue to be in force.b. they are no longer in force.c. they are no longer in force if State Q was a colonial power.d. they continue to be in force in both State R and State S to the extent they areapplicable.e. None of the above.Answer: d2. International Organizationsa. Intergovernmental Organizations62. An intergovernmental organization is a permanent organization set up by two ormore states to carry on activities of common interest.Answer: True 63. The capacity of an intergovernmental organization to carry on diplomatic relationswith a state or to sue or be sued in an international or municipal court is acquired by recognition.Answer: True 64. According to most authorities, an intergovernmental organization is not to berecognized as having the capacity of an international person by one of its member states until the government of that state certifies that it has such capacity.Answer: False 65. According to most authorities, an intergovernmental organization is not to berecognized as having the capacity of an international person by a non-member state until the government of that state certifies that it has such capacity.Answer: True 66. Which of the following is NOT a characteristic common to intergovernmental organizations?a. They are created by two or more states.b. They are meant to pursue interests common to their creators.c. They function autonomously as independent international persons.d. They operate through branches and subsidiaries around the world.e. None of the above is a correct answer.Answer: d1) United Nations67. The general philosophy underlying the Charter of the United Nations is that therelationships of the nations of the world are to be governed by the rule of law.Answer: True 68. The phrase “United Nations System” refers to the rules of international law enactedby the General Assembly of the United Nations.Answer: False69. Which of the following are goals of the United Nations?a. Maintenance of peace and security in the world.b. Promotion of economic and social cooperation.c. Protection of human rights.d. All of the above.e. Both a. and c. above.Answer: d 70. Which of the following organs of the United Nations may authorize the use of armed force?a. Economic and Social Council.b. General Assembly.c. International Court of Justice.d. Secretariat.e. Security Council.Answer: e 71. Which of the following organs of the United Nations is primarily responsible for promoting respect for human rights?a. Economic and Social Council.b. General Assembly.c. International Court of Justice.d. Secretariat.e. Security Council.Answer: a2) European Union72. The Council of the European Union is the principal European Union rule maker.Answer: True 73. The Council of the European Union may enact rules without consulting the EuropeanParliament.Answer: False74. The Council of the European Union may only act on proposals brought to it by theEuropean Commission.Answer: True 75. The European Parliament must approve all of the international treaties that theEuropean Union enters into.Answer: True 76. The European Parliament lacks true legislative powers.Answer: True 77. The European Committee of Regions must be consulted on matters dealing withdefense, internal security, and public policy.Answer: False 78. The European Economic and Social Council can adopt rules and issue directivesindependently of the Council of the European Union and European Commission.Answer: True 79. The European Court of Justice can hear appeals from the European Court of FirstInstance.Answer: True 80. The European Central B ank is responsible for carrying out the European Union’smonetary policy.Answer: True 81. The European Court of Auditors hears disputes involving the amount of taxes owedby private persons.Answer: False82. Which of the following is not a member state of the European Union?a. Austria.b. Belgium.d. Norway.e. Portugal.Answer: d83. Which of the following is a constituent treaty of the European Union?a. European Atomic Energy Community Treaty of 1957.b. European Coal and Steel Community Treaty of 1951.c. European Economic Community Treaty of 1957.d. All of the above.e. Both b. and c. above.Answer: d84. When one speaks of the “supernational powers” of the European Union, one means that:a. within its scope of applicability, EU law is superior to the laws of the memberstates.b. member states are required to bring their internal laws into compliance with EUlaw.c. EU law may be directly effective within the member states.d. All of the above.e. Both a. and c.Answer: d85. The European Union’s European Commission:a. proposes measures to the European Council.b. is a consultative body made up of representatives from local and regional governments.c. is located in Strasbourg, France.d. All of the above.e. None of the above.Answer: a86. The European Court of First Instance may hear disputes:a. brought by the European Union Commission against European Union member states.b. brought by European Union member states against the European Unionc. brought by private persons against European Union institutions.d. All of the above.e. None of the above.Answer: e 87. The European Court of Justice may hear requests to annul European Union legislation brought by:a. the European Union Commission.b. a member state.c. private persons.d. All of the above.e. Both a. and b. above.Answer: eb. Other Intergovernmental Organizations88. Which of the following intergovernmental organizations has a parliament whose representatives are directly elected by the national parliaments of its member states?a. African Union (AU).b. Arab League.c. Council of Europe.d. Organization of American States (OAS).e. Organization for Economic Cooperation and Development (OECD).Answer: c 89. Which of the following intergovernmental organizations has established regional human rights systems that are supervised and enforced by both judicial and quasi-judicial organs?a. Arab League.b. British Commonwealth of Nations.c. Council of Europe.d. Warsaw Treaty Organization.e. Organization for Economic Cooperation and Development (OECD).Answer: cF. THE RIGHTS OF INDIVIDUALS UNDER INTERNATIONAL LAW90. Traditionally, an individual’s rights under international law are only protected by hisstate of nationality.Answer: True 91. Traditionally, the decision whether or not to take any action to enforce anindividual’s rights under international law is left entirely up to the individual’snational state.Answer: TrueG. COMPARISON OF MUNICIPAL LEGAL SYSTEMS1. The Romano-Germanic Civil Law System92. The Roman law was first codified in the Corpus Juris Civilis around the year 534A.D.Answer: True93. The law followed in much of Europe at the end of the medieval period was known asthe jus commune.Answer: True 94. The pepou drous (or “piepowder”) courts were the courts of the medieval guilds andmerchants’ associations.Answer: True 95. The law created by the pepoudrous (or “piepowder”) courts evolved into the “lawmerchant.”Answer: True 96. The goals of the national codes that replaced the jus commune were to establishlegal unity within a single kingdom and to codify the political and philosophicalideals of the time.Answer: True 97. The French Civil Code (the Code Napoleon) of 1804 attempted to break up the oldfeudal estates of the aristocracy by prohibiting restraints on the sale of land as well as restraints on its transfer in a will. Answer: True 98. The German Pandectists studied the text of jus commune with the aim ofdiscovering its “latent” or underlying princip les and organization.Answer: False 99. The German Civil Code of 1896 is noted for being precise and technical.Answer: True 100. Which of the following used historical analysis and philology (i.e., the tracing out of the development of the usage of word s) to “desanctify” the study of law?a. Commentators.b. Glossators.c. Humanists.d. Naturalists.e. Pandectists.Answer: c 101. The jus commune was replaced by national codes that first appeared in:a. Austria.b. France.c. Prussia.d. Russia.e. Scandinavia.Answer: e102. Which of the following ideas of the French Revolution was/were incorporated into the French Civil Code (the Code Napoleon) of 1804?a. The autonomy of the patriarchal family.b. The freedom to contract.c. The right to possess private property.d. All of the above.e. Both b. and c. above.Answer: d 103. Which of the following were influential in the drafting of the French Civil Code (the Code Napoleon) of 1804?a. Academic writings.b. French customary law.c. French royal ordinances.d. Jus commune.e. All of the above.Answer: e 104. Which of the following were most influential in the development of the German Civil Code of 1896?a. Academic writers.b. Commentators.c. Humanists.d. Naturalists.e. Pandectists.Answer: e 105. Which of the following legal subjects are not found in the French or German civil codes?a. Administrative regulations.b. Contracts.c. Crimes.d. Delicts.e. Inheritances.Answer: a 2. The Anglo-American Common Law System106. The name “common law” (as it is used in England) is derived from the theory that the king’s courts represented the common custom of the realm, as opposed to thelocal customary law practiced in the county and manorial courts.Answer: True 107. Equitable remedies are available only when legal remedies are unavailable or inadequate.Answer: True108. The Statute of Westminster of 1285 encouraged the English law courts to create new writs, including writs in equity. Answer: False 109. New York’s “Field Code” of 1848 merged law and equity into one jurisdiction and required law suits to be tried in a single class of courts using a single procedure.Answer: True 110. Which of these medieval English courts handled cases of direct royal interest?a. Common Pleas.b. Equity.c. Exchequer.d. King’s Bench.e. Manorial.Answer: d 111. Which of these medieval English courts assumed jurisdiction to control the abuses of the King himself (and thereby established the doctrine of the supremacy of the law)?a. Common Pleas.b. Equity.c. Exchequer.d. King’s Bench.e. Manorial.Answer: d 112. Which of the following is not a remedy available from a court of equity?a. Damages.b. Injunction.c. Restitution.d. Specific performance.e. None of the above is a correct answer.Answer: a 113. The common law’s adoption in other countries was primarily facilitated by:a. a historical linkage between the country and England.b. its simple terminology.c. its use of both case law and statutes.d. its use of the doctrine of the supremacy of the law to limit the actions andpowers of the government.e. its use of the jury system.Answer: a3. The Islamic Law System114. The closing of the door of ijtihad (independent reasoning) refers to contemporary efforts of Islamic fundamentalists to return to the original principles of law laiddown by the Prophet Muhammad.Answer: False 115. The Shari’a is primarily a moral and ethical code.Answer: True 116. Which of the following is the most important source of Islamic law?a. The consensus of the legal community.b. The Koran.c. The Sunnah.d. Writings of Islamic scholars.e. None is more important - they are all equally important.Answer: b ESSA YS1. Compare and contrast the three major municipal law systems.Answer: Students should discuss the Romano-German civil law, the Anglo-American common law, and Islamic law systems. In brief: the first two are secular, the last is religious. The civil law is primarily based on codified rules while the common law is based on precedent. Both are flexible and undergoing continuous change, as compared to Islamic law which stopped developing in the tenth century A.D.2. Evaluate the adequacy in contemporary international law of the definition of the sources of international law that is given in Article 38 of the Statute of the International Court of Justice.Answer: It is probably quite adequate. Its ranking of conventions, then customs, and then general principles as sources the court should look at reflects actual practice. It also allows the court to use both case law and academic writings as sources, which also reflects contemporary practice. In addition, the court is allowed to turn to equity in appropriate circumstances. The definition may be somewhat inadequate when it comes to defining general principles. It speaks of the general principles of “civilized nations,” which may be somewhat insulting to Third World states who often feel that international law is overly European. These two words might best be deleted if the Statute is ever revised.3. After a civil war in State A, approximately half of the territory breaks away and forms State B.(a) Before the war, State A had lent money to Cee Company. State B now claims that it is entitled to half of that money.(b) Before the war, State A had granted a mining concession to Dee Company for a 50-year period on land that is now within the territory of State B. That concession still has20 years to run. State B claims that it is no longer valid.(c) Before the war, State X had concluded a treaty with State A in which State X granted State A “most favored nation” trade status. State B now claims that it is entitled to the same treatment.Is State B correct in each of its contentions? Explain.Answer:(a) No, a successor state may not interfere with contractual rights. Moreover, the contracting parties were State A and Cee Company. State B was not a party (it could not have been since it did not exist at the time). Also, neither State A nor Cee Co. intended for State B to be a beneficiary. State B has no rights in the contractual rights of State A.(b) Again, a successor state may not interfere with preexisting contractual rights. However, all states may nationalize or expropriate property. Assuming State B does so and Dee Co. has recourse to an international tribunal to settle the dispute, State B will probably have to provide prompt, adequate, and effective recourse (i.e., fair market value) for the concession it has taken from Dee Co.(c) When a state divides, the existing treaties of the predecessor states bind both successor states. When the treaties are neither dispositive nor descriptive of international law, they are only valid to the extent that third party states (e.g., State X) wish to continue to be bound by them.Note, also, that if State B claims that it is a colony having achieved its independence from a colonial power (a likely possibility), then the clean slate doctrine applies. This means that State B is not bound by any of the treaties of the colonial power (State A) unless both State A and the third party states (e.g., State X) agree to keep them in force. (The result, in any event, is the same.)4. You are a foreign student studying abroad in the State of Ecstasy. Ecstasy is a member of the United Nations, but of no other international organizations. It has not signed nor ratified any international human rights treaties.When you arrived in Ecstasy, you bought a small house on a small piece of land near the university where you are now about to graduate. Recently, as you planned to return home, you put your property up for sale. At that time, you discovered that Ecstasy has a law that makes it illegal for aliens to own real property (i.e., houses and land) and that any such property escheats (i.e., is automatically forfeited) to the state. No one, of course, would buy your property (since your title is defective) and now the state has taken it from you. You have brought suit in a local Ecstasy court. You claim that Ecstasy's law making it illegal for aliens to own land is discriminatory and a violation of the provisions of the UN Charter. You seek to have the Court order that the state's seizure of your property was improper and that you do have good title. Will you be successful? Explain.。
国际商法PartI Introduction
2) Differences between the two main legal families
(1) source of law 法源: • in common law system, case law （判例法）as the primary source but also with a number of statutes; • in civil law system, only statutes（成文法）.
Contract by the International Institute for the Unification of Private Law （国际统一私法协会国际商 事合同通则, UNIDROIT PICC ）
(3) International trade customs and usages
5. Islamic legal family/Sharia Law伊斯兰法系
Sharia law is the legal framework within which the public and some private aspects of life are regulated for those living in a legal system based on Islam. Sharia deals with all aspects of day-to-
• Anglo-American Law Family 英 美 法 系 ( the common law family, the case law family): England, America, India etc. • Islamic Law Family 伊斯兰法系: Islamic countries.
国际商法英文版第六版教学设计
International Business Law, 6th Edition: TeachingDesignIntroductionInternational business law is a complex field that requires students to have a deep understanding of legal frameworks and principles. As a result, teaching international business law requires careful planning and attention to detl. This teaching design is intended for use in a course on international business law using the 6th edition of the book International Business Law by Ray August and Don Mayer.Course OverviewThis course will provide students with an in-depth understanding of international business law. It will cover a wide range of topics, including international trade, international sales, and international dispute resolution. The goal of the course is to give students a comprehensive understanding of the legal frameworks and principles that govern international business transactions.Course ObjectivesAt the end of the course, students should be able to:•Identify the relevant legal frameworks and principles governing international business transactions•Analyze and apply international business law to real-world scenarios•Develop and implement effective strategies for resolving international business disputes•Understand the role of international business law in the global marketplaceCourse OutlineChapter 1: Introduction to International Business Law•Introduction to international business law•Sources of international law•International organizations and dispute resolution mechanismsChapter 2: The World Trade Organization•The creation and structure of the WTO•Principles of the WTO•WTO dispute settlementChapter 3: International Sales Contracts•Formation of international sales contracts•Terms of international sales contracts•Remedies for breach of international sales contracts Chapter 4: International Transportation of Goods•Types of transportation•Bills of lading and other documents used in international transportation•Liability in international transportationChapter 5: International Payment Methods•Types of payment methods•Letters of credit•Financing international transactionsChapter 6: Intellectual Property Rights•Types of intellectual property•Protection of intellectual property•International enforcement of intellectual property rights Chapter 7: Investor-State Arbitration•Overview of investor-state arbitration•Investment protection and dispute settlement provisions in international treaties•Procedural rules and substantive protections in investor-state disputesTeaching MethodologyThis course will adopt a blended learning approach that combines online and in-person learning. Lectures will be delivered online, and students will be required to complete reading assignments and online discussions. In-class sessions will be used for case studies, group discussions, and activities that allow students to apply the theory learned in online sessions to real-world scenarios.AssessmentThe following assessment methods will be used in this course: - Online quizzes (20%) - Written assignments (30%) - In-class activities and participation (20%) - Final examination (30%)ConclusionThis teaching design is intended to provide instructors with a comprehensive roadmap to teaching international business law using the 6th edition of the book International Business Law by Ray August and Don Mayer. The course is designed to equip students with the knowledge and skills needed to navigate the complex legal frameworks and principles that govern international business transactions and will prepare themfor careers in the global marketplace.。
国际商法中英文大纲
国际商法中英文大纲《国际商法大纲》1. Introduction to International Commercial Law- Definition and scope of international commercial law- Sources of international commercial law- Importance of international commercial law in global trade2. International Contracts- Formation of international contracts- Validity and enforceability of international contracts- Governing law and jurisdiction in international contracts3. Sale of Goods- Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG)- Rights and obligations of the buyer and seller in international sales- Remedies for breach of international sales contracts4. International Payment Methods- Letters of credit and the Uniform Customs and Practice for Documentary Credits (UCP)- Documentary collections- Electronic payment methods in international trade5. International Dispute Resolution- Litigation in international commercial disputes- Arbitration in international commercial disputes- Enforcement of foreign judgments and arbitral awards6. International Intellectual Property Law- Protection of intellectual property rights in international trade- Compliance with international intellectual property treaties- Enforcement of international intellectual property rights7. International Trade Regulations- International trade agreements and organizations- Trade remedies and anti-dumping measures- Sanctions and export controls in international trade8. International Transport and Insurance- Carriage of goods by sea, air, and land- International insurance in commercial transactions- Liability and risk management in international transport9. Emerging Issues in International Commercial Law- E-commerce and cross-border online transactions- Data protection and privacy in international trade- Sustainable development and corporate social responsibility in global business10. Case Studies and Practical Applications- Analysis of landmark international commercial law cases- Practical exercises and simulations of international commercial transactions- Discussion of real-world issues and challenges in international trade11. Conclusion- Recap of key concepts in international commercial law- Future trends and developments in the field- Importance of compliance and ethical conduct in international businessThis outline provides a comprehensive overview of the key topics and concepts covered in the study of international commercial law. It serves as a roadmap for students and practitioners seeking to understand the legal framework governing cross-border trade and investment.。
国际商法第一章(双语)
QUESTIONS, CONTINUED
What shall I do, and how shall I behave, as a company, so as to comply with those regulations in order to do business more successfully without any such ramifications? ------------------------------------------------ NOW, these are the legal risks and business risks we will primarily deal with throughout this course.
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INTRODUCTION TO IBL
mechanics of, covered by, IBL;
and
In this course, I will walk you through the
and
rules
I will deal particularly with some important aspects of IBL, such as international trade law, and how to identify and prevent business as well as legal risks.
Scenario 1:
You decide to do business or invest in Country A that is on the list of trade embargo imposed by Country B, a country that exerts strict control over export & import, especially of technologies subject to the regulation of, like,
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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