国际商法英文版
国际商法 第二版 英文版 姜作利 课件
III Sources of international business law
C International model law
Definition: rules and norms worked out and passed by some international organizations for the free choice by nations. Examples: 1. Model Law on International Commercial Arbitration by the United Nations Commission on International Trade Law （联合国国际贸易法委员会国际商事仲裁示 范法 UNCITRAL Model Law） 2. Principles of International Commercial 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 ）
VI International Organizations
• A. Organization Affiliated with UN
• 4. ― World Bank‖ (two institutions) 世界银行 • The International Bank for Reconstruction and Development 国际复兴开发银行（世界银行） • (loans at market terms, not high-risk loans) • International Development Association 国际发展协会 • (loans to poor countries with average per capital GNP less than $ 410 on more favorable terms, but only to government) • International Finance Corporation 国际金融公司 • ( loans to private enterprises in developing countries)
国际商法合同法英文版
The applicability of the CISG
Three conditions for CISG to apply: a. The contract is for the commercial sale of goods. (so sale of service contract excluded.) b. It is between parties whose places of business are in different countries. ( not nationality or citizenship) c. The place of business are located in countries that have ratified the convention.
Sales excluded from CISG
1. Consumer goods sold for personal, family or household use. 2. Goods bought at auction. 3. Stocks, securities, negotiable instruments or money. 4. Ships, vessels, or aircraft. 5. Electricity. 6. Assembly contracts for the supply of goods to be manufactured or
c. case law v. statuary law (ases and Criminal cases (民事案件
与刑事案件）
Civil cases may include suits for breach of contract （违约）or tort (侵权） cases, such as suits for personal injuries. Typically, they involve a request for damages of the wrongdoer. Criminal cases involve a representative of government attempting to prove the wrong committed against society and seeking to have the wrongdoer punished by the court system.
国际商法英文版
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.
© 2009 Pearson Education Inc publishing as Prentice Hall
What is international law?
International law deals with 3 kinds of international relationships: ——those between states and states, ——those between states and persons, ——those between persons and persons. Traditionally, international law was all about the relationships between states. That is, the law of nations resolved issues between two or more states, and the legal relationships between and among states is what is generally called public international law. As transactions among private entities grew, the phrase private international law was applied to the laws governing conduct between people (and corporations) from different states.
© 2009 Pearson Education Inc publishing as Prentice Hall
国际商法英文版课程设计 (2)
国际商法英文版课程设计IntroductionInternational Commercial Law is a branch of law that governs commercial transactions between countries, including the buying and selling of goods and services, intellectual property, and cross-border investments. This course is designed to provide an overview of the key components of International Commercial Law, including contracts, sales, agency, and international dispute resolution.Course ObjectivesThe objectives of this course are as follows:1.To introduce students to the key principles of InternationalCommercial Law.2.To equip students with the necessary knowledge and skills tonavigate international commercial transactions.3.To provide students with an understanding of the legalframework for resolving disputes in international commercialtransactions.4.To enhance students’ ability to communicate and negotiateeffectively in an international business context.Course OutlineModule 1: Introduction to International Commercial LawThis module introduces students to the basics of International Commercial Law, including key principles and concepts. Topics covered in this module include:•Sources of International Commercial Law•Differences between domestic and international commercial law•International treaties and conventions•Jurisdiction and choice of law in international commercial transactionsModule 2: International SalesThis module covers the legal aspects of international sales transactions, including the formation of contracts, transfer of ownership, and delivery of goods. Topics covered in this module include: •Formation of international sales contracts•Incoterms and their role in international trade•Risk allocation in international sales contracts•International carriage of goodsModule 3: International Agency and DistributionThis module covers the legal aspects of international agency and distribution agreements. Topics covered in this module include:•Overview of agency and distribution agreements•Applicable laws and regulations•Termination and breach of agency and distribution agreements•Cross-border agency and distribution issuesModule 4: International Dispute ResolutionThis module covers the legal framework for resolving disputes in international commercial transactions. Topics covered in this module include:•Overview of international dispute resolution methods•Litigation and arbitration as means of dispute resolution•International commercial arbitration rules•Recognition and enforcement of foreign arbitral awards AssessmentAssessment in this course is based on the following components: •Mid-term exam: 30%•Final exam: 40%•Class participation and discussion: 10%•Written assignment: 20%The written assignment will require students to analyze a hypothetical international commercial transaction, identifying the relevant legal issues and proposing strategies for resolving any potential disputes.ConclusionThis course provides students with a solid foundation in the key principles of International Commercial Law. Upon completion of this course, students will have a deeper understanding of the legal framework for international commercial transactions, and will be better equipped to navigate such transactions in an increasingly globalized business environment.。
国际商法 全套课件(英文)607页PPT
• On the one hand, after the Second World War the rapid development of the world economy made the contact of each country more frequently. This made it necessary that a set of uniform international law regulating the relationship of international economy and trade should be made.
international commercial law, refers to the body of legal rules and norms that regulates international trade and international business organizations. • 2. The meaning of “International” • A commercial transaction is international if: • (1) the parties have their places of business in different States or Countries;
• 9.rule of law: 法治。
• 10. legal doctrines: 法律理论。
• 11.legal validity: 法律效力。
I. Definition of International Business Law
国际商法双语版 ch3 CISG
Issue: is CISG applicable? Decision: No. the French Law on Protecting Consumer’s Rights and Interests is applicable
Example: consumer goods
Facts: Seller – a computer retailer in France, receives an order for a computer from buyer, a resident of China. The order is for a powerful, expensive computer of the sort commonly bought for use in business firms. When a dispute arises, Issue: is covered by CISG or law on protecting consumer?
Introduction to CISG
CISG? Transactions covered in CISG
CISG?
CISG = The United Nations Convention on Contracts for the International Sale of Goods
CISG?
Are they defined as International
国际商法期末复习重点英文版完整版
国际商法期末复习重点•rj英文版HUA system olpcc room [HUA16H S2A-HUAS8Q8-HUAH1688]IBL is the body of rules and norms that regulates international business trade and international business organizations ・Sources of IBLWhat does it mean by source of lawNational lawInternational treaties and conventionsTrade customs and usagesInternational model lawCommon law systemCommon law is the law as developed and pronounced by the courts in deciding cases; Competent courtThe reasoning of an adjudicationPrecedentCivil law systemCivil law is the codified law which is made by legislature to regulatespecific relationships;1.Roman law2・ Made law3・ Code and statutedefinition of partnershipDefined as a Profit-making economic organization which is Established of a partnership agreement, Make a Joint capital contributions, conduct business jointly,Share incomes and risks and bear unlimited joint and severalliabilities for debts of the partnership enterprise・特点：Profit-making economic organization;Establishment of a partnership agreement;Joint capital contribution;Sharing of incomes and risks;Bearing of unlimited joint and several liabilities for debtsCreation of a partnership:①an association of two of more persons②carrying on business ③ co - ownership ④ for prof it® intent (U W) ©partnership by estoppelLimited lidb订ity partnership 有限责任合伙的责任承担:In a limited liability partnership, some partners have limited liability, some partners have unlimitedliability.General partnership 普通合伙的责任承担:Bearing of unlimited joint and severalliabilities for debts・出资方式：Capital contribution: in cash; tangible goods; land or land use rights; intellectual property; or other proprietary rights; or in the form of labor service ifit is agreed by all of the partners:partners' rights and duties：①A partner has the right of compensation (补偿) from the partnership (The amount of compensation is decided by how the partners agreed in the partnership agreement) ②A partner has the right of sharing profit from thepartnership®Partners owe a duty to devote full time and best efforts to the affairs of the partnership;©Self-interest is prohibited;©Secret profits in dealing with the partnership is prohibited;©Partners owes a duty to disclose all information and facts from a third party to other partners;©Concealment of infornidtion and facts is prohibited;©That partners work hand in glove with (in collusion with) others for selfish purpose is prohibited;©Partners have a duty to account for any expenditures they make of the partnership funds partners have the duty to be joined as plaintiffs or defendants in legal suits合伙企业的管理：co-managementDissolution of the partnership means that the economic organization ceases to be associated as an entity to carry on a business;1.Non-wrongful dissolution2.Wrongful dissolution3.The death or bankruptcy of any partner automaticdlly dissolves the partnership;4.A court order or decree dissolves a partnership;Winding up：liquidation of the assets of the business of the partnership after dissolution happens;Continuation of the partnership by the remaining partners:Completion of work by the partnership before dissolution;Sharing of profits, bearing of debts, returning of assets:Definition of corporation：A corporation is a form of an economic organization in which the shareholders make investment, elect management and take limited liability for the debts of the corporation.特征：1・ Independent legal status;2.Creation must be permitted by government;3.Management is accomplished through the election of the shareholders;4.The shareholders take limited liability;5.The ownership interest of the corporation is freely transferable;6.Double taxation;legal status：A corporation is a legal person and a legal entity independent of its owners (shareholders) and its managers (officers and the board of directors)・ Its life is unaffected by the retirement or death of its shareholders, officers, and directors. "Piercing the corporation ve订” theory Means to prevent the companys independent personality abuse and protect the interests of the creditors and social public interests, the specific legal relationship of specific facts, denied that the company and its shareholders behind the independent personality and limited liability of shareholders, shall be ordered to the shareholder of the company (including natural person shareholders and legal person shareholders) to the company creditors or directly responsible for public interests, to achieve fairness and justice of the requirements and set up a kind of legal action. 滥用权力的表现1・ Separate legal personality is capable of abuse by shareholders to evade legal obligations;2.Domination of the corporation by shareholders;3.Looting of corporation assets;Management of corporations：Management agencies； Board ofdirectors;officers of the corporation; board of supervisors;Management of a corporation is elected by the shareholders;Termination of corporation：(DVoluntary termination:Maturity of pre-agreed period; Completion of pre-agreed project;Agreement of the shareholders to terminate©Involuntary termination：Wrongful trading;Unable to pay its debts; Business of the corporation is not commenced within;Tax evasion;Court resolution;Shareholdersrights :(Dshareholders' meeting©shareholders* election of directors©'fundamental corporate changes ©shareholders' inspection and information rights©distribution to shareholders©Shareholders' lawsuitShareholders^ liabilities:① Shareholders should be liable for short distribution and illegal distribution@If the shareholders abuse the corporate personality to evade legal obligations, they are liable for the debts of the corporationAn agency is defined as a fiduciary relationship that results when one person,the principal,consents that another person,the agent, shall act on behalf of the principa1. Ostensible agency 表见代理：in some situations, an agent' s powers are expanded neither by agreement with the principal nor by custom or emergency・ Under the doctrine of apparent authority of ostensible authority, authority may be created or expanded whenthe principal causes third parties to reasonably believe the agent has authority.Express authority 明示授权一employment contract; resolution of the board of directors: advisory memorandum; power of attorney;Implied authority 默示授权一on the basis of express authority; in the customary fashion; emergencies; apparent authority and estoppel； secret limitations;Ratification 追认：an agent exceeds the limited authority granted; a non-agent purported to act as agent;Unauthorized contract： 1)implied warranty of authority -------- whether the thirdparty knew that the agent had no authority at the conclusion of the contract; 2)non-existent principal;Termination of an agencyAct of the parties ----- a ccomplishment of contract purpose/occurrence of events;lapse of time; mutual agreement; unilateral termination;Operation of law ---- incapacity, bankruptcy, death; illegality; impracticality・Seller^ s obligations：1.Delivery of the Goods -2.The turning over of documents3.The seller s assurance of the quality of the goods4.The seller' s assurance of ownership of the goods5. -------------------------------------------------------------------------------------------------------------- T he sellers assurance of ownership of the goods Exceptions ---------------------------The buyer knew or could not have been unaware of the charge or encumbrance upon the goods;The sellers compliance with technical drawings, designs, formulas or other specifications furnished by the buyer;Buyers obligations :Payment of price;Taking delivery.Buyers remediesCompelling of specific performance ------ the buyer had not resorted to anotherremedy; the nonconformity constituted a fundamental breach; timely notice- giving of the nonconformity; timely request of specific performance・Avoidance ---- t he seller* s breach of contract constitutes a fundamental breach;the seller rejects to perform within the nachfrist notice by the buyerPrice reduction ---- the buyer reduces a proportionate part of the purchase pricein order to offset the shortage or to reflect the reduced value of the nonconforming goods・Refusing early delivery and excess quantitySeller' s remedies1.to compel specific performance;2.to avoid the contract for a fundamental breach or failure to cure a defect;3.to obtain missing specificationsRemedies available to both buyers and sellers1.suspension of performance;2.avoidance in anticipation of a fundamental breach;3.avoidance of an installment contract;4.avoidance;5・ damages;Bill of ladingA bill of lading is a contract between a carrier (seller, buyer or their agent) and an ocean carrier for the carriage of goods・Characteristics of B/Ll.As a certificate of receipt:as prima facie evidence between the shipperand the carrier, if B/L is not transferred; as final evidence between the carrier and the transferee of B/L;2.As an evidence of the carriage contract between the carrier and the shipper;3.As a document of title：the carrier delivers the goods against the originalB/L;Classifications of B/L 提单的分类Loaded B/L;Named B/L;To the order B/L;Blank B/L;Antedated B/L 倒签提单-it is issued earlier than the actual shipping date;Advanced B/L 预借提单-it is issued before the shipping of the goods;Clean B/L 清洁提单issued through indemnity-it is issued through indemnity to cancel the "unclean" facts of the goods:。
国际商法InternationalBusinessLaw
国际商法InternationalBusinessLaw一、国际商法International Business Law二、国际商法的概念(一)定义(What is international business law?)International business law is the body of rules and norms that regulates activities carried out outside the legal boundaries of states. In particular, it regulates the business transactions of private persons internationally,and the intermantional relationships of international commercial organizations.调整国家之间、不同国家和地区的商事组织之间以及它们之间在从事国际商事交易活动中所形成的各种关系的法律规范的总称。
三、特征1、国际商法源于传统的商法，但其调整对象和范围比后者更为广泛。
2、国际商法中的“国际”不是指“国家之间”，而是指“跨越国界”（transnational）。
3、国际商法的性质属于跨国私法。
4、国际商法主要是实体法。
四、国际商法的渊源（一）国际商事条约（international treaties and conventions) Legally, treaties are binding agree-ments between two or more states, and conventions are legally binding agree-ments between states sponsored by international organizations, such as the United Nations.The following are the most important international conven-tions: CI SG, Hague Rules, WTO’s DSU, etc.1、优点：对缔约国具有确定的法律约束力，通过并入或转化使其成为国内法的一部分。
国际商法(英文版)Lecture 9
International Transfer of Intellectual property
I. Fundamentals of Intellectual Property
What is Intellectual Property? Intellectual property refers to creation of the human mind, and in essence, useful information or knowledge including inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. Types of Intellectual Property Intellectual property is traditionally divided into “industrial property” and “copyright” Industrial Property – Patents, Trademarks, Industrial Designs, Geographical Indications Copyright - Copyright, Rights Related to Copyright, Collective Management of Copyright
I. Fundamentals of Intellectual Property
Three basic moral rights are: (1) the right to object
to distortion, mutilation or modification, (2) the right to be recognized as the author, and (3) the right to control public access to the work. Moral rights are not recognized in the copyright laws of the common law legal system
国际商法课件( English )
Key Terms
Sole proprietorship: 个人独资企业 Partnership: 合伙企业 Limited partnership: 有限合伙 Limited liability partnership: 有限责任合伙 Incorporated company: 股份有限公司 No-liability company: 无限责任公司 Joint venture: 合资企业 Legal Person: 法人
(3) Professional Restrictions (4) Partner by Estoppel Two persons may not be partners, yet in the eyes of a third person they may appear to be partners. If the third person deals with one of the apparent partners, he may be harmed and seek to recover damages from both of the apparent partners.
Байду номын сангаас
I. Introduction
Business organization, also called business enterprise, refers to the economic organization that pursues management activities with its own name with certain scale. There are two kinds of meaning with international business organization: one is the organization pursuing international business activities; and the other is forms of international business organizations.
国际商法(英文版)Chapter 2-4
The Law of Business Organizations
Chapter 2-4
Fundamentals of Business Organization Three major forms of business organization
the sole proprietorship the partnership the corporation
Chapter 2 Sole Proprietorships
I. What is sole proprietorship?
Sole proprietorship is the simplest and oldest form of business. “a sole proprietorship refers to a business entity established under this law in the territories of China, with its capital contributed by one individual. The assets of a sole proprietorship are owned personally by the sole proprietor, who assumes unlimited liability to the extent of his personal assets.” – Sole Proprietorship Law of PRC
Chapter 2 Sole Proprietorships
the sole proprietor may manage the affairs of the
《国际商法英文版》课件
Delivery and Payment
Methods and considerations for delivery and payment in global trade
Part 4 International Arbitration
1
Alternative Dispute Resolution
Exploring the role and benefits of international arbitration in resolving business disputes
2
Advantages and Disadvantages
Байду номын сангаас
Considering the pros and cons of choosing arbitration over litigation
3
Role of International Organizations
Examining the influence of international organizations in promoting and facilitating arbitration
Part 5 Intellectual Property Law
Topic Overview of IP Law Patents, Trademarks, and Copyrights Protection in International Business
Dispute Resolution
Description
An introduction to the basic concepts and principles of intellectual property law
Fundamentals of Contracts_国际商法（双语版）_[共9页]
![Fundamentals of Contracts_国际商法（双语版）_[共9页]](https://img.taocdn.com/s3/m/635bea13bb4cf7ec4bfed045.png)
国际商法（双语版）52Chapter 5Introduction to International Sales Contracts本章主要讲授关于国际货物销售合同的基本法律知识：合同的定义、合同的有效要件。
本部分还介绍了与国际货物销售合同相关的国际条约和国际贸易惯例，如《联合国国际货物销售合同公约》《国际商事合同通则》《国际贸易术语解释通 则》。
各国的国内法中与国际货物销售合同有关的内容也将在本章中予以介绍。
(1) Describe a situation in everyday life in which a contract exists.(2) Contract may be made for different purposes. Name some of these purposes.(3) Do you think a gambling contract will be enforced by court in China? Why or why not?A. Definition of Contractmost classical definition may be the one found inis “an agreement between two or more parties which creates an obligation to do or not to 术语和警句给出了定义。
Restatementof the United States defines contract as “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in somemutualstates “a contract is an agreement establishing, altering, or discharging a relationship of civil rights and obligations between natural persons, legal persons or other organizations with equalIn practice, on most occasions “contract” and “agreement” are synonyms. One thing to note is that not all the business documents agreed by the parties may be a contract oris a proposed agreement in which two parties negotiate and reach a mutual assent on some terms, and also decide that they will subsequently put the entire agreement into a formal written document to be signed by them. Whether the memorandum may be deemed to be a contract will depend on if the parties, by actions or words, have clearly indicated their intention to be bound by the document. A similar problem. Such a document memorializes the basic terms on which the parties have agreed, but anticipates further negotiations on more minor issues. Usually the letter of intent indicates that a fuller and more formal agreement will be prepared later. If the parties are unable to settle the supposedly minor issues, what happens if one party asserts that the letter of intent is binding, and the other disagrees? Usually it depends on the test whether the parties have shown their intent in the terms of the letter of 《合同法重述（第二次）》：美国法学会从二十世纪二三十年代开始，为解决美国司法中判例法的日益不确定性和过分复杂性，将已存在的大量判例法予以系统化、条理化、简单化，予以重新整编，即重述。
国际商法英文版：2 Chapter 4 Multinational Enterprise
4-12
Formation of Stock Corporation
4-9
Civil Law Corporations
• Two basic types of civil law corporations: 1. Stock corporation（股份公司）: Can raise money in the public marketplace through the sale of freely transferable shares. Financial statements（财务报表） must be disclosed to the public. a. Articles of Incorporation（公司章程）: instrument creating and defining a particular corporation. Must be filed with state agency at time of formation.
4-6
The Business Form: In Civil Law States
• In civil law states, every form of business organization is a company（社团）.
• A company is an association of persons or of capital organized for the purpose of carrying on a commercial, industrial, or similar enterprise. These companies may be a corporation or a partnership.
国际商法课件( English )
3) On execution or otherwise by authority of law; 4) Sales of stocks, shares investment securities. Negotiable instruments（可流 通票据） or money; 5) Ships, vessels, hovercraft or aircraft, however it has not been interpreted to mean that it does not apply to such goods components; 6) Sale of electricity.
(3) Part III contains the substantive rules for the sales contract (obligations and rights of the parties); (4) Part IV contains the final clauses of the Convention concerning such matters as how and when it comes into force, the reservations and declarations that are permitted and the application of the Convention to international sales where both States concerned have the same or similar law on the subject.
3. Applicability（适用范围） of the CISG
(1) Direct application. Through Article 1(1) (a), the CISG applies when both parties to the contract of sale have their places of business in different states that are both contracting states.
国际商法英文版：3 Chapter 5 Foreign Investment
training program for indigenous employees d) Impact on the local market
5-5
a. National Foreign Investment Policies
Purpose of foreign investment regulations:
1. Promoting local productivity and technological development,
São_Paulo
• In many countries, foreign investors register with a single central agency set up to facilitate foreign investments. Its internal staff may evaluate proposals.
5-11
c. Screening Foreign Investment Applications: Tiered Screening and Special Screening
• In some countries, one person or department will do the screening if the investment is under a certain amount. In France, investments of more than 10 million francs are screened in Paris. If less, they are screened locally.
国际商法英文版：chapter11 Transportation
Chapter 11 TransportationContents Summary (2)Outline (3)Questions (17)Vocabulary (21)Part 1 SummaryThis chapter is divided into eight parts:A.Trade termsB.TransportationC.Inland carriageD.Carriage of goods by seaE. Charter partiesMaritime liensMaritime insuranceCarriage of goods by air(1) Trade terms: trade terms define the time and place where the buyer is to take delivery, the times and place of payment, the price, the time when the risk of loss shifts from the seller to the buyer, the costs of freight and insurance, for instance, FOB.(2) Transportation: goods are picked up at seller's place of business by an inland carrier and transported to a seaport for carrying abroad.(3) Inland carriage: the first stage of transporting goods overseas involves an inland carrier, either a trucking or rail company, which moves the seller's goods from the seller's place of business to a seaport or airport. Carriers are liable for loss, damage, or delay up to the liability limit set by the convention, so long as the consignment note states that carriage is governed by the CMR.(4) Carriage of goods by sea: In the carriage of goods by sea, goods may be lost, damaged or deteriorated. The bill of lading is a contract of carriage between the consignor, the carrier and consignee that acts as a receipt of transfer of goods and as a negotiable instrument. The bill of lading also determines rights and liabilities agreed between parties to an international sale contract. The consignor retains ownership of the goods until the bill of lading is transferred to the consignee. Most bills of lading today are governed by international conventions such as the Hague Rules, Hague-Visby Rules and Hamburg Rules.(5) Charter parties: it is a contract for the hire of an entire ship for a particular voyage or a set period of time.(6) Maritime lien: it is a claim laid against maritime property, most often a vessel, but may also be brought against other personal property involved in maritime transactions such as cargo. A maritime lien arises from services rendered to or injuries caused by maritime property. Generally a maritime lien attaches to the property and is valid whether or not recorded. It travels with the vessel or personal property from port to port and owner to owner until it is extinguished or discharged.(7)Maritime insurance: Insurance against perils is an important aspect of international commercial transactions. In the event of loss or damage to cargo due tohazards during voyage, an insured party will be able to recover losses from the insurer. The type of insurance required depends on the mode of transport agreed between parties to transport the cargo.(8)Carriage of goods by air: Warsaw Convention emulates it. Four amendments to the convention have been adopted and are now in force.Part 2Chapter 11 - TransportationA. TRADE TERMS1. Use of Trade Terms: Sales contracts involving transportation customarilycontain abbreviated terms to describe —a. Time when the buyer is to take delivery.b. Place where the buyer is to take delivery.c. Additionally:1) Place of payment.2) The price.3) The time when the risk of loss shifts from the seller to the buyer.4) The costs of freight and insurance.2. Trade Terms are not Consistently Useda. Many domestic laws define trade terms for both domestic and export sales.b. Almost all domestic laws allow the parties to define the terms themselves.1) The United Nations’ Convention on Contracts for the InternationalSale of Goods similarly allows parties to incorporate trade terms oftheir choosing.2) This may be done by incorporating definitions from:a) Foreign legislation.b) Private rules.1] the most widely used private trade terms are those published bythe International Chamber of Commerce.a] Called Incoterms.b] Trade councils, courts, and international lawyers encouragetheir use in international sales.c] First published in 1936.d] The current version was published in 2000.e] This outline focuses on the Incoterms.Case 11-1. St. Paul Guaranty Insurance Co. v. Neuromed Medical Systems & Support, GmbH3. “Free” Termsa. Several of the common trade terms begin with the word “free” (e.g., freeon board, free alongside, free carrier).b. “Free” means: The seller has an obligation to deliver the goods to a namedplace for transfer to a carrier.4. FOB - Free On Board Contractsa. Free on board is a maritime trade term.1) In most of the world its use remains limited to seaborne commerce.a) Incoterms only uses it in connection with the carriage of goods bysea.b) In common law countries it is also used for inland carriage aboardany “vessel, car, or other vehicle.”b. FOB (port of shipment) contract: Requires a seller to deliver goods onboard a vessel that is to be designated by the buyer in a manner customaryat the particular port.1) “On board” means that the goods:a) Have been appropriated to the contracts.b) Have crossed a ships’ rail.5. FAS - Free Alongside Contractsa. Free Alongside or Free Alongside Ship: Requires the seller to delivergoods to a named port alongside a vessel to be designated by the buyer and in a manner customary to the particular port.1) “Alongside” has traditio nally meant that the goods be within reach of aship’s lifting tackle.6. CIF - Cost, Insurance, and Freight Contractsa. Cost, Insurance, and Freight (port of destination): Requires the seller toarrange for the carriage of goods by sea to a port of destination and to turnover to the buyer the documents necessary to obtain the goods from thecarrier or to assert a claim against an insurer if the goods are lost ordamaged.1) The three documents that the seller (as a minimum) has to provide are:a) The invoice.b) The insurance policy.c) The bill of lading.2) These documents represent the three elements of the contract: cost,insurance, and freight.3) The seller’s obligations are complete when the documents are tenderedto the buyer.a) At that time, the buyer is obliged to pay the agreed price.7. CFR - Cost and Freight Contractsa. The Cost and Freight (port of destination) term is the same as the CIF term,except that the seller does not have to procure marine insurance against the risk of loss or damage to the goods during transit.Case 11-2. Phillips Puerto Rico Core, Inc. v. Tradax Petroleum, Ltd.8. DES - Delivered Ex-Ship Contractsa. The delivered ex-ship or arrival contract requires the seller to delivergoods to a buyer at an agreed port of arrival.1) The seller remains responsible for the goods until they are delivered.a) The seller is not therefore obliged to obtain insurance for thebuyer’s benefit.9. FCA - Free Carriera. The F.C.A. term requires the seller to deliver goods to a particular carrierat a named terminal, depot, airport, or other place where the carrieroperates.1) The costs of transportation and the risks for loss shift to the buyer atthat time.10. EXW - Ex-Worksa. An “ex-works” contract requires a seller only to delive r the goods at hisown place of business.1) All the costs connected with transportation are the responsibility of thebuyer.B. INLAND CARRIAGE1. It is Common Practice for the Seller to Arrange for Inland Carriage, withthe inland carrier transferring the goods to a freight forwarder at a seaport orairport for the latter to arrange and oversee the shipment of the goods abroad2. There are no Universal Conventionsa. In Europe:1) Road transport is regulated by: Convention for the InternationalCarriage of Goods by Road (the CMR Convention).2) Rail transport is governed by: Convention Concerning InternationalCarriage by Rail (the COTIF Convention).b. Similar agreements exist in other parts of the world.1) Exception: North America.3. The Convention for the International Carriage of Goods by Road (theCMR Convention)a. Representative of the conventions governing road transport.b. Applies whenever goods are shipped between two countries, at least one ofwhich is a signatory of the convention.c. The con vention requires a carrier to issue a “consignment note.”1) Not a negotiable instrument.2) It is prima facie evidence of:a) The making of a transport contract.b) The receipt of goods.c) The condition of the goods.d. The Convention grants the consignee the right to:1) Demand delivery of the goods in exchange for a receipt.2) Sue the carrier in the carrier’s own name for any loss, damage, or delayfor which the carrier is responsible.e. Until the time that the goods are turned over to the consignee, the shipper(consignor) has the right to order the carrier to stop them in transit, tochange the place for delivery, or to order them delivered to a differentconsignee.f. If a road carriage contract involves multiple carriers.1) Each carrier is treated as a party to the contract.2) Each carrier is responsible for the entire transaction.3) Suits can be brought against:a) The first carrier,b) The last carrier, orc) The carrier in possession at the time of the loss.g. Carriers are liable for loss, damage, or delay up to the liability limit set bythe Convention, so long as the consignment note states that carriage is governed by the CMR.1) The liability limit is 8.33 Special Drawing Rights per kilogram, unlessthe consignor declares a higher value and pays a surcharge.2) If the consignment note fails to include a reference to the CMR, thecarrier will be liable for any resulting injury.h. Carriers are excused from liability if they can prove that the loss, damageor delay was caused by:1) The consignor, or2) The consignee.i. A consignee has to notify the carrier:1) Within 7 days of delivery to assert a claim for loss or damages.2) Within 21 days of delivery to make a claim for losses resulting fromdelay.4. The Convention Concerning International Carriage by Rail (COTIFConvention)a. Most provisions are the same as the CMR.b. The carrier’s liability for losses is 17 Special Drawing Rights perkilogram.C. CARRIAGE OF GOODS BY SEA1. Common Carriagea. Defined: The owner or operator of a vessel carries goods for more thanone person.1) The vessel is known as a general ship, or common carrier.b. Common carriers are the subject of extensive municipal legislation andinternational conventions.c. Three types of common carriers:1) A conference line is an association of sea-going carriers who havejoined together to offer common freight rates over scheduled routes.2) An independent line is a carrier with its own rate schedule overscheduled routes.3) A tramp vessel has its own rate schedule, but it does not operate onestablished routes.d. In most countries the tariffs of ocean carriers are not regulated, and bothconference and independent lines will commonly offer regular shipperssubstantial rebates.1) In the United States:a) Ocean carriers have to file their tariffs with the Federal MaritimeCommission.b) Rebates are forbidden by American law.2. The Bill of Ladinga. Governing law:1) International Convention for the Unification of Certain Rules of LawRelating to Bills of Lading.a) Originally adopted in 1924 and commonly known as the HagueRules.b) Extensively amended in 1968: The amended 1968 version isknown as the Hague-Visby Rules.c) Most countries are parties to the 1924 Rules.2) The domestic legislation implementing these conventions is typicallycalled Carriage of Goods by Sea Acts (COGSAs).a) Many states have supplementary legislation that also governs billsof lading in both municipal and international settings.b. Bill of Lading Defined: An instrument issued by an ocean carrier to ashipper with whom the carrier has entered into a contract for the carriageof goods.1) A bill of lading serves three purposes:a) It is a carrier’s receipt for goods.b) It is evidence of a contract of carriage.c) It is a document of title.1] The person rightfully in possession of the bill is entitled topossess, use, and dispose of the goods that the bill represents.c. Receipt for goods.1) A bill of lading:a) Describes the goods.b) States their quantity.c) States their condition.2) The form itself is normally filled out in advance by the shipper andcompleted by the carrier.a) Bills certifying that the goods have been properly loaded on boardare known as “on board bills of lading.”b) If there is a discrepancy, the statement on the bill is consideredprima facie evidence that the goods were received in the conditionshown in any dispute between the shipper and the carrier.1] As long as the bill has not been negotiated to a third party the carrier can introduce proof to rebut this evidence.a] The carrier is barred from introducing evidence to contradict the bill of lading once it has been negotiated.3) If a discrepancy is noted on the face of the bill, it is called a “claused”bill of lading.a) Claused bills are normally unacceptable to third parties.b) Note: a notation as to a discrepancy may only be made on the billat the time the goods are loaded.1] Later notations have no effect, the bill will be treated as if it were “clean.”Case 11-3. M. Golodetz & Co., Inc. v. Czarnikow-Rionda Co., Inc. (The Galitia)d. Contract of Carriage.1) A bill of lading is evidence of the contract of carriage between theshipper and the carrier.a) As long as the bill has not been negotiated to a third party either theshipper or the carrier can introduce proof to rebut this evidence.e. Document of Title.1) Straight bill of lading: Issued to a named consignee andnon-negotiable.a) The transfer of a straight bill gives the transferee no greater rightsthan those of his transferor.2) Order bill of lading: Issued to a named consignee and negotiable.a) The holder has a claim to title.1] The holder must have received the bill in good faith through due negotiation.2] By surrendering the bill the holder is entitled to delivery of thegoods.b) Form of order bills - may be made out:1] “To bearer.”a] Bearer instruments are transferred by delivery.b] Seldom used.2] “To the order” of a named party.a] Order instruments are transferred by negotiation, that is, byendorsement and delivery.c) Significance of negotiability: The person named on the bill is ableto transfer the goods while a ship is in transit.d) Distinguish order bills of lading from bills of exchange and drafts.1] No holder in due course status.2] Endorsers transfer all contractual rights to endorsees.3. The Carrier’s Duties under a Bill of Ladinga. A carrier transporting goods under a bill of lading is required to exercise“due diligence” in:1) Making the ship seaworthy.2) Properly manning, equipping, and supplying the ship.3) Making the holds, refrigerating and cool chambers, and all other partsof the ship in which goods are carried, fit and safe for their reception,carriage, and preservation.4) Properly and carefully loading, handling, stowing, carrying, keeping,caring for, and discharging the goods carried.b. This obligation is strictly enforced by most courts.4. The Carrier’s Immunitiesa. Carriers who issue a proper bill of lading are exempt from liability fromdamages that arise from any:1) Act, neglect, or default of the master, mariner, pilot, or the servantsof the carrier in the navigation or in the management of the ship;2) Fire, unless caused by the actual fault or privity of the carrier;3) Perils, dangers and accidents of the sea or other navigable water;4) Act of God;5) Act of war;6) Act of public enemies;7) Arrest or restraint of princes, rulers, or people, or seizure under legalprocess;8) Quarantine restrictions;9) Act or omission of the shipper or owner of the goods, or his agent orrepresentative;10) Strikes or lockouts or stoppage or restraint of labor from whatevercause, whether partial or general: Provided, that nothing hereincontained shall be construed to relieve a carrier from responsibilityfor the carrier’s own acts;11) Riots and civil commotions;12) Saving or attempting to save life or property at sea;13) Wastage in bulk or weight or any other loss or damage arising frominherent defect, quality, or vice of the goods;14) Insufficiency of packing;15) Insufficiency or inadequacy of marks;16) Latent defects not discoverable by due diligence; and17) Any other cause arising without the actual fault and privity of thecarrier and without the fault or negligence of the agents or servants ofthe carrier, but the burden of proof shall be on the person claimingthe benefit of this exception to show that neither the actual fault orprivity of the carrier nor the fault or neglect of the agents or servantsof the carrier contributed to the loss or damage.b. These immunities are strictly construed.1) A carrier will be responsible in any event if it failed to exercise duediligence in carrying out its fundamental duties.Case 11-4. Great China Metal Industries Co. Ltd. v. MalaysianInternational Shipping Corp.5. Liability Limitsa. The limits.1) Limits set by the Hague Rules of 1924 are:a) $500 per package, orb) $500 per unit when shipped in “customary freight units.”Case 11-5. Croft & Scully Co. v. M/V Skulptor Vuchetich et al.2) Limits set by the Hague-Visby Rules are the higher of:a) 10,000 gold francs per package or unit,b) 30 gold francs per kilo of the gross weight of the goods lost ordamaged, whichever is the higher.b. The limits do not apply:1) If the parties agree to higher amounts.2) If the carrier acted either:a) With intent to cause damage, orb) Recklessly and with knowledge that damage would probably result.6. Time Limitations: a claim for loss or damages must be instituted within oneyear after the goods were or should have been delivered7. Third Party Rights (Himalaya Clauses)a. The Hague and Hague-Visby Rules (and the liability limits they establish)only apply to the carrier and the party or parties shipping goods under abill of lading.1) Third parties who help in the transport of the goods, but who are notparties to the carriage of goods contract contained in the bill of lading,have no contractual right to claim the liability limits established by theconventions. Examples:a) Officers and crew members.b) Agents and brokers who work for a carrier.c) Stevedores who commonly work for a unit of a shipping line.b. Carriers add Himalaya Clauses to their bills of lading to extend theprotection of the Hague or the Hague-Visby Rules to third parties.1) The clauses are valid in the United States.2) The clauses are generally unenforceable in the United Kingdom andmost other countries.a) Rationale: Privity of contract.Reading 11-1. Cargo Theft and Terrorism.D. CHARTER PARTIES1. Defined: A contract for the hire of an entire ship for a particular voyage or aset period of time2. Governing laws: No international conventions apply.a. The Hague and Hague-Visby Rules only apply if a bill of lading issued bythe ship owner comes into the hands of a third party.b. The charterer and the owner are free to set the terms of their contract.1) Standardized contracts drafted at various conferences are commonlyused. Examples:a) The Baltime.b) The Gencon.2) Forum selection clauses and choice-of-law clauses are commonprovisions.3. Voyage Charterpartiesa. Defined: The charterer employs a ship and its crew for the carriage ofgoods from one place to another.1) Common terms:a) The owner agrees to provide the ship at a named port at a specifiedtime and to carry the goods to the contract destination.b) The charterer agrees to provide a full cargo and to arrange for itsloading at an agreed upon time.4. Time Charterpartiesa. Defined: The charterer engages the use of a vessel for a stated period oftime.1) Common terms:a) The charterer is to pay “hire” monthly.b) The charterer has the right to direct the ship to proceed to whereverit is needed.1] Limitations on this right is the charter’s promise to:a] Engage only in lawful trades.b] To carry only lawful goods.c] To only direct the vessel to safe ports.5. Charterparties and Bills of Ladinga. Between the ship owner and the charterer a bill of lading is only a receiptfor goods and a document of title.b. Bills of lading held by third party:1) The Hague or Hague-Visby Rules will apply.2) Exception: If the bill of lading incorporates the terms of thecharterparty, the endorsee will be governed by its terms.E. MARITIME LIENS1. Definitions:a. Lien: A charge or claim against property that exists to satisfy some debt orobligation.b. Maritime lien: A charge or claim against a vessel or its cargo.1) Main purpose: To insure that a vessel can adequately obtain credit toproperly outfit itself for a voyage.2) Other purposes: To provide compensation to injured parties for:a) The shipowner’s breach of contract.b) The crew’s negligence.c) Damages caused without the shipowner’s or crew’s fault (e.g., as isthe case where port regulations require the ship to use a pilot andthe pilot causes the injury.2. Enforcement of Liensa. In common law countries: A vessel is regarded as a juridical personseparate and apart from its owner.1) Effect: The ship itself may be liable.b. In civil law countries a maritime lien (or “privilege”) is a right in property,but the property is not independent of the owner.1) Effect: The lien exists against the owner as a debtor.3. Nature of Maritime Liensa. A maritime lien attaches to the res (i.e., the vessel or cargo) and travelswith it.b. A maritime lien is secret: If a vessel is sold, the lien “goes with the ship,”even if the new owner is unaware of its existence.4. Foreclosing on a Maritime Liena. In common law countries:1) The res is seized (if it is a vessel, it is “arrested”) without prior noticeto the owner.2) An admiralty court takes custody, and a suit proceeds against the res.3) If the lien-holder’s claim succeeds, the res is sold, the proceeds aredistributed among the various lien-holders, and the title to the propertyis transferred to the purchaser of the res free of all claims.b. In civil law countries:1) A foreclosure suit is initiated against the owner.2) The res is seized only as a way to compel the owner to appear andfurnish security before the res can be released.5. Effect of Multiple Lien-holders: The various claims must be rankeda. Ranking provided by the 1926 International Convention for theUnification of Certain Rules Relating to Maritime Liens and Mortgages(known as the Brussels Convention):1) Judicial costs and other expenses.2) Seaman’s wages.3) Salvage and general average.4) Tort claims.5) Repairs, supplies, and necessaries.6) Ship mortgages.b. Although the Convention has not been widely adopted, its ranking of liensis representative of most municipal schemes.Case 11-6. The Chinese Seaman’s Foreign Technical Services Co. v. SotoGrande Shipping Corp., SAF. MARITIME INSURANCE1. Kinds of Policiesa. Special cargo policy: Provides coverage for a single sale.b. Open cargo policy: Is an open-ended contract that insures all the cargo ofan exporter during a particular time period.2. Perils: The perils covered by special and open cargo policies commonlyinclude the following -a. Loss or damage from the sea (e.g., weather, collision, stranding, sinking).b. Fire.c. Jettison (i.e., the dumping of cargo in order to protect other property).d. Forcible taking of the ship.e. Barratry (i.e., the fraudulent, criminal, or wrongful conduct of the captainor crew).f. Explosion.g. Fumigation damage.h. Damage from loading, discharging, or transhipping cargo.Case 11-7. Western Assurance Co. of Toronto v. Shaw3. Coverage for Total and Partial Loss.a. Total losses: Governed by “constructive loss clauses.”1) This usually includes either:a) Losses exceeding one-half the value of the cargo.b) Losses where the cost of recovery exceeds the cargo’s value.b. Partial losses: Known in the marine insurance industry as a “particularaverage.”1) “Free from Particular Average” (FPA) policies provide the mostlimited recovery for partial losses — they usually only covers lossesfrom:a) Fire.b) Stranding.c) Sinking.d) Collision of the vessel.2) “With Average” (WA) policies provide more protection.c. General Average.1) Situation to which it applies: In order to avoid some threat to the wholeventure, some expense has to be incurred, or some loss or damage isdeliberately inflicted, in order to save the ship and its cargo.2) Rule: Because everyone having an interest in the ship and its variouscargoes will have benefited, each must then contribute, in proportion tothe value of their interest, to restoring the party who suffered the lossor damage or who incurred the expense.a) Marine insurance will cover each shipper’s contribution.b) If insurance is not purchased, or should a policy not cover generalaverage, then the shipper or the shipper’s consignee must p ay thecontribution before the ship’s crew will release the goods.1] The carrier will have a lien claim against the goods and, if thecontribution is not paid, it may foreclose on the goods, sellthem, and retain that portion of the sale price it receives tocover the cost of the contribution.3) A person seeking to claim a general average contribution from otherparties must show:a) That the loss was incurred to benefit everyone.b) That the person making the claim was not responsible for causingthe danger.G. CARRIAGE OF GOODS BY AIR1. Governing Law: The 1929 Convention for the Unification of Certain RulesRelating to International Carriage by Aira. Commonly called the Warsaw Convention.b. Two amendments to the Convention have been adopted and are in force:1) The Hague Protocol of 1955.2) Montreal Protocol No. 4 of 1975.2. Documents Used in Air Carriage are not documents of titlea. Consignment notes.b. Air waybills.1) As defined by the Warsaw Convention and the 1955 Protocol, an airwaybill must describe:a) The nature of the goods being shipped.b) The method of packing and any marks or numbers.c) The weight, quantity, volume, or dimensions of the goods.d) The apparent condition of the goods and their packaging.e) A statement that the carriag e is subject to the Convention’s rules.2) As defined by Montreal Protocol No. 4 (which encourages carriers touse electronic records), an air waybill must describe:a) The places of departure and destination.b) Any intermediate stopping point in a different state (if the places ofdeparture and destination are in the same state).c) The weight of the consignment.3) Liability of carriers using Warsaw Convention air waybills is limited to17 Special Drawing Rights (SDRs) per kilogram.4) The shipper does not have to prove that the carrier caused the injury toany lost, damaged, or delayed goods.a) A claim has to be made:1] Within 7 days when the bills are governed by the WarsawConvention.2] With 14 days if they are covered by the Amended Convention.b) The burden is then on the carrier to prove that it took “all necessarymeasures” to avoid the loss, damage, or delay.3. The Warsaw Convention and its Amendments also Regulate the Carriageof Passengersa. The carrier liability is limited so long as the airline ticket contains a noticeof the applicability of one of the Conventions.Part 3 Questions1) What kind of matters do trade terms define ?The time and place where the buyer is to take delivery, the times and place of payment ,the price, the time when the risk of loss shifts from the seller to the buyer ,the costs of freight and insurance .2) What are the four groups of the Incoterms which published by the International Chamber of Commerce (ICC) ?The Incoterms are classified into four groups arranged according to the parties' obligations:Group E: Departure Term. Where the seller makes the goods available to the buyer at the seller's own premises.Group F: Shipment Terms - Main carriage unpaid. Where the seller is called on to deliver the goods to a carrier named by the buyer. These are shipment contracts with the shipment point named, and carriage is unpaid by the seller.Group C: Shipment Terms - Main carriage paid. Where the seller has to contract for carriage, but does not assume the risk of loss of or damage to the goods or additional costs due to events occurring after shipment and dispatch. These are shipment。
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International Business Law (2 Credits)
Purpose:
This course aims to give students from many cultures and traditions a good look at the overall structure of the global “legal environment” in which business operates today.
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For many, international law remains a contradiction in terms. There is no single world government to make and enforce laws, and no globally recognized forum in which to bring disputes between citizens of different nations-states. To those who see law as “the command of a sovereign”, the more consensual nature (诺成性，契约性) of international law makes it “soft” law or no law at all. Moreover, the decline in the power of states relative to the private sector poses new challenges to contemporary international law. Today, the term international law applies to any conduct outside the boundaries of states, whether of a public or a private nature.
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Chapter 1
INTRODUCTION TO INTERNATIONAL AND
COMPARATIVE LAW
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——those between states and states,
——those between states and persons,
——those between persons and persons.
Traditionally, international law was all about the relationships between states. That is, the law of nations resolved issues between two or more states, and the legal relationships between and among states is what is generally called public international law. As transactions among private entities grew, the phrase private international law was applied to the laws governing conduct between people (and corporations) from different states.
International Business Law Textbook
Ray August, Don Mayer, Michael Bixby. “International Business Law
——Text, Cases and Readings” 6th Edition Pearson
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7. L’Oreal v. eBay 欧莱雅诉eBay案 8. The Natural Gas Case天然气案 9. Great China Metal Industries Co. Ltd. V.
Malaysian International Shipping Corp. 中国金 属工业有限公司诉马来西亚国际航运公司案
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Theoretical Study Introduction to International and
Comparative Law 国际法与比较法入门
State Responsibility and Environmental Regulation 国家责任和环境规制
CHAPTER 1
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
The focus will be on global legal issues concerning state responsibility and environmental regulation, dispute settlement, trade in Goods, services and labour, intellectual property, sales, and transportation, which shows both the diversity and similarity of business and of the law. 本课程从多种文化、传统入手，培养学生审视当今企业经营所 处的全球“法律环境”的整体结构，重点放在全球性法律问题， 涉及国家责任和环境规制、争端解决、货物贸易、服务与劳务、 知识产权、销售、运输等业务，揭示商务和法律的多样性与相 似性。
Case Study: 1. Commission of the European Communities
v. Fed
2. China’s refusal to accept the doctrine of restrictive sovereign immunity 中国拒绝接受国家主权有限豁免原则案
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
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What is international law?
International law deals with 3 kinds of international relationships:
Dispute Settlement 争端解决 Trade in Goods 货物贸易 Services and Labour 服务与劳务 Intellectual Property 知识产权 Sales 销售 Transportation 运输
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By contrast, Positivists (实证主义者) focus on the sovereignty of states and their consent to limits on that sovereignty. Thus Positivists claim that international law is based on (1) the sovereign equality of all states in the international system and (2) state consent to individual international laws, either through treaties or customs.
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International Law
Historically, dealt with the rules and norms regulating the relationships between states (countries)
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Case Study: 6. European Communities---Regime for the
Importation, Sale and Distribution of Bananas 欧共体—香蕉进口、销售、分销制度案