International Business Law-Chapter 1

1、International Business LawObjectives: To understand the legal aspects of international business transactionsContents: the rules and norms that regulate the person-to-person relationship between two parties transacting business across national borders.International Business LawImportant legal English

2、 terms:1. norms: 标准，规范，法则，规则，准则。该词一般指组织或惯例中的准则或规则，不指立法机关所制定的法律。2. law: 法律，法令。该词较常用，主要指由最高当局制定、由立法机构通过或由习惯认可而由法院执行的法律。3. code: 法典、法规。着重指集体的法规，如civil code, criminal code.4. regulation: 条例，规则，规章。主要表示用以指导、管理或控制某系统或某组织的规则或原则。5. rules: 规则，规章。指团体的规章、条例或比赛规则，常与regulation互换使用。International Business LawImport

3、ant legal English terms:6. provision: 规定，规范。指具体部门所制定的规定。7. procedures: 程序，办法。主要指具体部门或行业为实施某法律制订的具体步骤。8. institutions: 制度，法律，法令；公共机构。该词主要表示制度、公共机构或诉讼的提起。9. rule of law: 法治。10. legal doctrines: 法律理论。11. legal validity: 法律效力。International Business LawImportant legal English terms:lawyer, attorney, soli

4、citor, barrister, counselLawyer is a general word for someone who has professional training in legal work or who is an expert in the law.In American English, the word attorney is often used instead, especially in legal or official language and especially to refer to a lawyer who represents people in

5、 court.In British English, there is a difference between a solicitor, who gives legal advice and prepares legal documents, and a barrister, who represents people in court.In both American and British English, someones counsel is the lawyer or group of lawyers who represent them in court. Chapter One

6、 Introduction to International Business Law1.1 Definition of International Business Law1.2 Sources of International Business Law1.3 Major Legal Systems of the World1.4 Legal Risk of International Business Transactions1.5 Contents of International Business LawCase StudyChapter One Introduction to Int

7、ernational Business LawKey Terms1. Civil Law: 民法民法2. Common Law: 普通法普通法3. Precedent: 先例先例4. International business law:国际商法国际商法5. CISG:联合国国际货物买卖合同公约联合国国际货物买卖合同公约6. Trade custom and usage: 行业惯例与习惯行业惯例与习惯1.1 Definition of International Business Law1.1.1 Defining International Business Law Internationa

8、l business law, also called international commercial law, refers to the body of legal rules and norms that regulates international commercial trade and international business organizations.（国际商法是指调整国际商事交易和国际商事组织的法律规（国际商法是指调整国际商事交易和国际商事组织的法律规范的总称。）范的总称。）1.1 Definition of International Business Law1.1

9、.2 Meaning of “International” At least one element among the subject, the object and the content of an international commercial relationship is across national borders. A commercial transaction is international if:(1) the parties have their places of business in different States or Countries;(2) the

10、 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;(4) the object of the commercial relationship is located in a State or District outside the Country or Countries of on

11、e or more parties. the parties: 当事人当事人1.1 Definition of International Business Law1.1.3 Meaning of “Commercial” a broad interpretation of commerciality: an international transaction which is economic in character will be considered to be commercial UNCITRAL Model Law on International Commercial Arbi

12、tration 联合国国际商事仲裁示范法 factoring（保付代理）：避免出口收汇风险的方法保理，是保付代理(Factoring)的简称，也叫保收代理，是保理商（通常是银行或金融机构）向出口人提供进口人的资信调查，承担100%的信用风险担保应收帐款的催收和追偿、资金融通和财务管理的一种综合性财务服务。 具体做法：出口人事先与保理商签订运输单据径直寄交进口人，而将应收帐款的单据卖给保理商，由保理商通过其在进口地的手续费，将货款交给出口人。1.2 Sources of International Business LawSources (渊源)：法的渊源是指法律产生的依据及其表现形式。Sour

13、ces of International Business Law: international conventions and treaties, international customs and usages, and national business laws1.2.1 International Treaties and Conventions Treaties are binding agreements under international law entered into by actors in international law, namely states and i

14、nternational organizations.（国际条约简称条约，是指两个或两个以上的国际法主体之间依照国际法缔结的据以确立其相互权利和义务的书面协议。） A treaty may also be known as agreement, protocol, covenant, convention, exchange of letters, accord, exchange of notes, memorandum of understanding, etc. 1.2 Sources of International Business Law1.2.1 International Tr

15、eaties and Conventions “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. （称“条约”者，谓国家间所缔结而以国际法为准之国际书面协定，不论其载于一项单独文

16、书或两项以上相互有关之文书内，亦不论其特定名称如何。）(Article 2 (1) (a) of the 1969 Vienna Convention on the Law of Treaties) Treaties are legally binding agreements between two or more states, and conventions are legally binding agreements between states sponsored by international organizations, such as the United Nations.1

17、.2 Sources of International Business Law1.2.1 International Treaties and Conventions Binding effectiveness of treaties: Pacta sunt servanda (agreements must be kept) (约定必须遵守) bona fide (good faith) jus cogens (compelling law) party autonomy (当事人“意思自治”) “The parties may exclude the application of thi

18、s Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.” (双方当事人可以不适用本公约，或在第12条的条件下，减损本公约的任何规定或改变其效力。) 1.2 Sources of International Business Law1.2.1 International Treaties and Conventions Main Treaties or Conventions in International Business Law:(1) The Un

19、ited Nations Convention on Contracts of International Sale of Goods, CISG（1980年联合国国际货物买卖合同公约）(2) The UNIDROIT Convention on Agency in the International Sale of Goods（1983年关于国际货物销售代理的国际统一私法协会公约）(3) The International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading in

20、 1924, the Hague Rules （统一提单的若干法律规定的国际公约）(4) The Convention on the Unification of the Law Relating to Bills of Exchange and Promissory Notes in 1930, the Convention Providing a Uniform Law of Cheques in 1931 （统一汇票和本票法公约、统一支票法公约）1.2 Sources of International Business Law1.2.1 International Treaties an

21、d Conventions Main Treaties or Conventions in International Business Law:(5) The Convention on the Law Applicable to Products Liability in 1977, the Hague Convention（产品责任法律适用公约）(6) The Paris Convention on the Protection of Industrial Property in 1883 and revised in 1979, the Paris Convention （保护工业产权

22、巴黎公约 ）(7) The Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1985, the New York Convention （承认和执行外国仲裁裁决的公约）1.2 Sources of International Business Law1.2.2 International Trade Custom and Usage1) The meaning of international custom Custom and usage refers to the “general ru

23、les and practices that have become generally adopted through unvarying habit and common use”. Differentiate between the following three concepts: custom, usage and general practice Generally, a custom of some kind comes from a usage, and a usage develops from a general practice.1.2 Sources of Intern

24、ational Business Law1.2.2 International Trade Custom and Usage2) The binding effectiveness of international custom International trade customs are, by nature, not law: neither international treaties or conventions, nor national legislations. An international trade custom does not have any legal bind

25、ing 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.1.2 Sources of International Business Law1.2.2 International Trade Custom and Usage3) Customs and usages in internat

26、ional business law Incoterms 2000（2000年国际贸易术语解释通则） UCP600（2007年跟单信用证统一惯例） Warsaw-Oxford Rules 1932（1932年华沙-牛津规则） Revised American Foreign Trade Definitions 1941（1941年美国对外贸易定义修正本）1.2.3 National business laws Principles of International Business Lawu (1) Bona fides ( Principle of good faith ).u (2) Pr

27、inciple of autonomy of will of the parties.u (3) Principle of fairness.u (4) Principle of facilitating transaction. u (5) Principle of recognition of international commercial customs and practices.1.3 Major Legal Systems of the World1.3.1 Common-Law System also called English Law System, or Anglo-Am

28、erican Law System. Common law systems are based largely on case law, i.e., on court decisions. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals, rather than through legislative statutes or executive action.1.3 Major Legal Systems

29、 of the World1.3.1 Common-Law SystemIn common-law system countries, judges could change laws and make new laws. Case law is still important in these countries. Common law countries have kept the basic feature of the English legal system, which is the power of judges to make laws.1.3 Major Legal Syst

30、ems of the World1.3.2 Civil-Law SystemCivil Law, also called Continental Law or Romano-Germanic Law, is the predominant system of law in the world. Civil-law systems are based mainly on statutes ( legislative acts ). The majority of civil-law countries have assembled their statutes into one or more

31、carefully organized collections called codes. 1.3 Major Legal Systems of the World1.3.2 Civil-Law SystemTwo branches of civil law: French and German. Two other countries enacted civil codes that have been adopted elsewhere. The Swiss Civil Code became the Turkish Civil Code in 1926 when it was adopt

32、ed by Turkey; the Chilean Civil Code is the model for other South American Countries.Now many countries have patterned their legal systems after both civil law and common law.1.3 Major Legal Systems of the World1.3.3 Comparison Between the two Legal Systems Legal SystemContentsCivil LawCommon LawThe

33、oretical basisPositive lawNatural lawStatus of lawI n d e p e n d e n t o f governmentSuperior to governmentLegal rulesBased on general principles Based on specific circumstancesScopePrivate lawPrivate law, Public lawBasic sourceCodesCase lawMost influenced byLegislatorsJudgesReasoningDeductiveInduc

34、tiveProceduralInquisitorialAdversarialFact finderJudgeJuryUse of case law as precedentsRespectedRequiredConstitutional review bySpecial agency or category of courtsRegular courts (no written constitution in England)Review of government agenciesSpecial agency or category of courtsRegular courts1.3 Ma

35、jor Legal Systems of the World1.3.3 Assimilation Tendency of the Two Systems Nowadays, there is obviously an assimilation tendency between the two legal systems. On the one hand, in civil law countries, case law and precedents are given more and more respect. On the other hand, there are more and mo

36、re written laws and regulations in common law countries.Statutory laws are attached much more importance in the United States than in Great Britain.1.4 Legal Risk of International Business TransactionFour categories of international business risks:Cultural and language, currency, legal and political

37、, and analyzed transaction risksRisks in developing countriesLegal riskPolitical risk1.4 Legal Risk of International Business TransactionLegal risk related to international business transactions:1) Uncertainty due to legal actions or uncertainty in the applicability or interpretation of contracts, l

38、aw or regulations2) “Studied ambiguity”: to achieve the illusion of agreement3) Differences in legal system: substantive laws, procedures, remedies and levels of enforcement1.5 Contents of International Business Law Objects of traditional international business law: relationships of international co

39、mmercial transactions relationships of international business organizationsInternational business law has been consistently developing. The scope keeps enlarging, including not only laws for import and export of goods and technologies, but also laws for international trade in services.This book focu

40、ses mainly on international sale of goods.Case StudyGaskin v. Stumm Handel GMBHQuestions: 1. Why did Gaskin claim that he was not bound by the forum selection clause included in the contract to which he agreed? 2. Would the outcome have been different had Gaskin been illiterate? 3. Which party, if a

41、ny, is obligated to provide translation services when dealing with matters in two different languages? 4. If prudent companies execute two copies of a contract, one in each language, which is the operable and effective document? Case StudyGaskin v. Stumm Handel GMBHQuestions: 1. Why did Gaskin claim that he was not bound by the forum selection clause inc