International-Business-Law国际商法复习重点

1、精选优质文档倾情为你奉上精选优质文档倾情为你奉上专心专注专业专心专注专业精选优质文档倾情为你奉上专心专注专业Lecture 1 Introduction to International Business LawClassification of LawsAll the laws in the world can be classified into:1) International laws2) Municipal lawsWhat is International Law?Traditionally, International Law is also called the Law of

2、Nations or Public International Law, and it deals with the international relationship between the states.What is Municipal Law?Whereas international law governs relations between states, institutions, and individuals across national boundaries, municipal law governs these same persons (including the

3、 private or commercial conduct of foreign states) within the boundaries of a particular state.Comparative lawyers classify countries into legal families. The two most widely distributed families are the Romano-Germanic civil law and the Anglo-American common law.What is International Business Law?In

4、ternational 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 international relationships of international commercial organization

5、s.In comparison with the traditional international business law, contemporary international business law covers much more extensively, such as law for the international trading of goods, company law, negotiable instrument law, maritime law, insurance law, law of international technology transfer, in

6、dustrial property law, international investment law, international financial law, international tax law, law of international dispute settlement.国际商法（英文版） 姜作利 法律出版社Sources of International LawTreaties and ConventionsTreaties are legally binding agreements between two or more states. Conventions are

7、legally binding agreements between states sponsored by international organizations.CustomSome rules have been around for such a long time or are so generally accepted that they are described as customary law.General Principles and Jus CogensSources of Municipal LawConstitutionCode & LawsCourt Judgme

8、ntPersons in International LawStatesStates are political entities that have a territory, a population, a government capable of entering into international relations, and a gobvernment capable of controlling its territory and peoples.International OrganizationsAccording to the United Nations Charter,

9、 there are two kinds of international organizations: (1) public or intergovernmental organizations (IGOs) and (2) private or nongovernmental organizations (NGOs).Persons in Municipal LawIndividual(Natural Person)Legal PersonThe Rights of Individuals Under International LawInternational law looks upo

10、n individuals in two different ways: (1) it ignores them or (2) it treats them as its subjects. The traditional view is to ignore them. This is based on the idea that international law applies only to states.Municipal Legal System Civil Law SystemThe civil law system is the general typology of legal

11、 systems found in most countries. It is an alternative to common law system and has its roots in Roman Law. It is employed by almost every country that was not a colony of the British Empire.In most jurisdictions the civil law is codified in the form of a civil codes, but in some, like Scotland it r

12、emains uncodified. Most codes follow the tradition of Code Napolon in some fashion. Notably, the German code was developed from Roman law with reference to German legal tradition.Civil law relies on legislation, rather than judicial decisions for law. Civil law system do not recognize judge-made law

13、. Municipal Legal System Common Law SystemCommon law is a system of law used in England, all of the states of the United States (except Louisiana) and other former British possessions such as Australia, Canada (except Quebec), India, Ireland, Jamaica, New Zealand and Hong Kong. The Common law system

14、 emphasizes the role of judges in determining the meaning of laws and how they apply. It arose beginning in the eleventh and twelfth centuries as the English monarch appointed royal judges to resolve disputes in the name of the king (or queen). As there are little formal law to apply to many dispute

15、s, the decisions handed down by the judges literally made the law. Chinese LawThe Law of China, for most of the history of China, was rooted in the Confucian philosophy of social control. These influences remain in the contemporary legal system of the Peoples Republic of China. PRC has been influenc

16、ed by a number of sources including traditional Chinese views toward the role of law, the PRCs socialist background, the German-based law in Taiwan Province, and the English-based common law used in Hong Kong SAR. The law of the United States has also been very influential particularly in the area o

17、f banking and securities law.Lecture 2 Formation of the Contract ContractBlacks Law Dictionary defines a contract “an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law .1) Formation of the Contract2) Enforceability of the ContractFormati

18、on of the Contract - OfferA contract is formed when an offer to buy or sell a good is accepted.The OfferAn offer is aproposal addressed to specific persons indicating an intention by the offeror to be bound to the sale or purfchase of particular goods for a price.Requirements:DefinitenessA proposal

19、is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.Specific OffereesInvitation to OfferAn invitation to offer or invitation to treat is simply an expression of willingness to enter into negotiations which

20、, it is hoped, will lead to the conclusion of a contract at a later date. Display of goods for sale in a supermarketCase: Pharmaceutical society of GB v. Boots Cash Chemists Boots organized their shop on a self-service basis. They were charged with a breach of section 18(1) of the Pharmacy and Poiso

21、ns Act 1933, which required that a sale of drugs take place under the supervision of a registered pharmacist. There was no pharmacist present close to the shelves, but a pharmacist supervised the transaction at the cash desk and was authorized to prevent a customer from purchasing any drug if he tho

22、ught fit to do so. AdvertisementThe general rule is that a commercial advertisement is an invitation to treat rather than an offer. In Germany, advertisement is only a invitation to offer. While in common law legal system, if it can be proved that the maker of the advertisement is willing to be boun

23、d by the advertisement and the advertisement has clearly provided sufficient information of the goods, advertisement can also be offer. CISG: an advertisement is presumed to be an invitation unless the contrary is clearly indicted by the person making the proposal. Case study: Carlill v. Carbolic Sm

24、oke Ball The defendants, who were the manufacturers of the carbolic smoke ball, issued an advertisement in which they offered to pay 100 pound to any person who caught flu after having used one of their smoke balls in the specified manner, and they deposited 1,000 pound in the bank to show their goo

25、d faith. The claimant caught flu after using the smoke ball in the specified manner. She sued for the 100 pound. The judge held that the advertisement is an offer to the whole world and that a contract was made with those persons who performed the condition on the faith of the advertisement. Auction

26、 salesStep 1. Advertisement of auction or a statement of auctionStep 2. The auctioneer invites the bidsStep 3. The prospective buyers bids for the commodityStep 4. The auctioneer strikes the table. Which step is offer, and which step is acceptance?Case: British Car Auctions Ltd v. WrightTendersWhere

27、 a person invites tenders for a particular project, the general rule is that the invitation to tender is simply an invitation to treat. The offer is made by the person who submits the tender and the acceptance is made when the person inviting the tenders accepts one of them. Effectiveness of an Offe

28、rAn offer becomes effective only after it reaches the offeree.RevocationOffers that do not state that they are irrevocable can be revoked any time before the offeree dispatches an acceptance.WithdrawalFirm OffersOnes where the offeror promises to keep the offer open for a fixed period.Termination of

29、 offera. The offeror or offeree died.b. No acceptance was sent before the offer expires. c. An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. 要约被撤回d. Until a contract is concluded an offer may be revoked if the revoca

30、tion reaches the offeree before he has dispatched an acceptance. 要约被撤销(2) However, an offer cannot be revoked under CISG: (a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or (b) if it was reasonable for the offeree to rely on the offer as bein

31、g irrevocable and the offeree has acted in reliance on the offer. e. An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror. Case of Revocation of offerByrne v. Van TienhovenThe defendants sent the claimants an offer on 1 October, which reached claimants on 10 Octobe

32、r, the claimant accepted the offer by fax on 11 October . However, in the meantime, the defendants had sent, on 8 October, a letter revoking their offer, which reached the claimants on 20 October. It was held that a contract was concluded between the parties on 11 October because the purported withd

33、rawal could not take effect until 20 October. Formation of the Contract -acceptanceThe acceptance is the offerees manifestation of the intention to be bound to the terms of the offer. The conditions of acceptance:a. An acceptance must be made before the offer expires.b. The acceptance must be uncond

34、itional and absolute, with the same contents as the offer. c. The acceptance must be made by offeree to offeror. Time of AcceptanceAcceptance must be received by the offeror within the time period specified in the offer. If no time period is given, acceptance must be received within a reasonable tim

35、e. If the offer is oral, the acceptance must be made immediately, unless the circumstances indicate otherwise. Civil law countries receipt theoryThe acceptance takes effect only after it reaches the offeor. Common law countries mailbox ruleThe acceptance takes effect when it is sent no matter whethe

36、r the mail is lost in transit. Withdrawal Because an acceptance is normally not effective until the offeror receives it, an offeree may withdraw his acceptance any time before or simultaneous with its receipt.Acceptance with ModificationsA purported acceptance which does not accept all the terms and

37、 conditions proposed by the offeror but which in fact introduces new terms is not an acceptance but a counter-offer, which is then treated as new offer. The effect of the counter-offer is to kill off the original offer so that it cannot subsequently be accepted by the offeree. (mirror image rule)Cas

38、e: Hyde v. WrenchThe defendant offered to sell some land to the claimant for 1000, and the claimant replied by offering to purchase the land for 950. The defendant refused. So the claimant agreed to pay 1000. But the defendant still refused to sell. Did a contract conclude between the parties? Excep

39、tion of mirror image rule/Battle of FormsA reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dis

40、patches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place of delivery,

41、 extent of one partys liability to the other or the settlement of disputes are considered to alter the terms of the offer materially. Formation of the Contract - AcceptanceForm of AcceptanceBy wordBy written formBy Performance of an ActSilenceLecture 3 Enforceability of the Contract Elements Affect

42、the Enforceabilityh1) Capacity of Parties2) Intention of Parties: Misrepresentation; Duress; Undue influence; Mistake3) Illegality4) ConsiderationCapacity of Parties Capacity means the ability to incur legal obligations and acquire legal rights. Today, the primary classes of people who are considere

43、d to lack capacity are minors, persons suffering from mental illnesses or defects, and intoxicated persons.Effect of Lack of Capacity Normally, a contract in which one or both parties lack capacity because of infancy, mental impairment, or intoxication is considered to be avoidable.Capacity of Minor

44、sA minor is a person under the age of 18. The law usually adopts a particularly protective attitude towards minors. The exercise of this right to avoid a contract is called disaffirmance. The right to disaffirm is personal to the minor. That is , only the minor or a legal representative such as a gu

45、ardian may disaffirm the contract.In UKThe general rule is that a minor is not bound by a contract which he enters into during his minority. But the rule is subject to some exceptions. a. A contract to supply a minor with necessaries is binding upon the minor where the contract as a whole is for the

46、 benefit of the minor. b. A minor is bound by a contract of employment if that contract is generally for his benefit. c. Certain contracts with minors are not void but only avoidable, that is, the contract is valid and binding upon the minor unless he repudiates liability before majority or within a

47、 reasonable time thereafter. Exercise: Nash v. Inman A tailor sold 11 fancy waistcoats to a minor, who was Cambridge undergraduate. The minor refused to pay for them. The tailor sued to the court? If you were the judge, who would you support?Capacity of Mentally Impaired Persons The contracts of peo

48、ple who are suffering from a mental defect at the time of contracting are usually considered to be avoidable. But the mental impaired person needs to prove his mental capacity was inferior when he made the decision.Contracts of Intoxicated PersonsIntoxication and Capacity Intoxication can deprive a

49、person of capacity to contract. The mere fact that a party to a contract had been drinking when the contract was formed would not normally affect his capacity to contract. Intoxication is a ground for lack of capacity only when it is so extreme that the person is unable to understand the nature of t

50、he business at hand.Civil Capacity in China民事行为能力是指民事法律关系主体通过自己的行为取得民事权利、承担民事义务的能力。(1) full capacity: A citizen aged 18 or over shall be an adult. He shall have full capacity for civil conduct, may independently engage in civil activities and shall be called a person with full capacity for civil con

51、duct.A citizen who has reached the age of 16 but not the age of 18 and whose main source of income is his own labour shall be regarded as a person with full capacity for civil conduct.完全民事行为能力的人。十八周岁以上的公民是成年人，具有完全民事行为能力。对于十六周岁以上不满十八周岁的公民，如果是以自己的劳动收人为主要生活来源的，亦视为有完全民事行为能力的人。他们都可以独立进行民事活动，包括订立各种合同。(2)L

52、imited capacity: A minor aged 10 or over shall be a person with limited capacity for civil conduct and may engage in civil activities appropriate to his age and intellect; in other civil activities, he shall be represented by his agent ad litem (guardian) or participate with the consent of guardian.

53、A minor under the age of 10 shall be a person having no capacity for civil conduct and shall be represented in civil activities by guardian.限制民事行为能力的人。十周岁以上的未成年人是限制民事行为能力人，他们可以进行与其年龄、智力相适应的民事活动；至于其他民事活动应由其法定代理人代理，或者征得其法定代理人的同意。不能完全辨认自己行为的精神病人是限制民事行为能力人，他们可以进行与他的精神健康状况相适应的民事活动；其他民事活动由其法定代理人代理，或者征得其法定

54、代理人的同意。(3)No capacityA mentally ill person who is unable to account for his own conduct shall be a person having no capacity for civil conduct and shall be represented in civil activities by his guardian.A mentally ill person who is unable to fully account for his own conduct shall be a person with

55、limited capacity for civil conduct and may engage in civil activities appropriate to his mental health; in other civil activities, he shall be represented by his agent ad litem or participate with the consent of his guardian.(3)无民事行为能力的人。无民事行为能力人包括：不满十周岁的未成年人；不能辨认自己行为的精神病人。无民事行为能力人不能实施有效的法律行为，他们签订的合

56、同是无效的。Misrepresentation and FraudA misrepresentation is an assertion that is not in accord with the truth. When a person enters a contract because of his justifiable reliance on a misrepresentation about some important fact, the contract is avoidable. It is not necessary that the misrepresentation b

57、e intentionally deceptive. Misrepresentations can be either “innocent”(not intentionally deceptive ) or “fraudulent” ( made with knowledge of falsity and intent to deceive ).Fraud is the type of misrepresentation that is committed knowingly, with the intent to deceive.A person seeking to rescind a c

58、ontract on the ground of innocent or fraudulent misrepresentation must be able to establish each of the following elements:1) an untrue assertion of fact was made2) The fact asserted was material or the assertion was fraudulent.3) The complaining party entered the contract because of his reliance on

59、 the assertion.4) The reliance of the complaining party was reasonableMistakeIn contract law, a mistake is a belief about a fact that is not in accord with the truth. The mistake must relate to facts as they exist at the time the contract is created. Requirements for Mutual Mistake A mutual mistake

60、exists when both parties to the contract have erroneous assumptions about the same fact. When both parties are mistaken, the resulting contract can be avoided if the three following elements are present:1) The mistake relates to a basic assumption on which the contract was made.2) The mistake has a