国际商法英文版

1、,International Business Law Textbook Ray August, Don Mayer, Michael Bixby. “International Business Law Text, Cases and Readings” 6th Edition Pearson,International Business Law (2 Credits) Purpose: This course aims to give students from many cultures and traditions a good look at the overall structur

2、e of the global “legal environment” in which business operates today. 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

3、 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。,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

4、和环境规制 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,Case Study: 1. Commission of the European Communities v. Federal Republic of Germany 欧共体委员会诉联邦德国案 2. Chinas refusal to accept the doctrine of restrictive sovereign immuni

5、ty 中国拒绝接受国家主权有限豁免原则案 3. Southern Bluefin Tuna Cases: Provisional Measures 南方蓝鳍金枪鱼案：临时措施 4. Japan-Taxes on Alcoholic Beverages 日本酒精饮料税收案 5. United States-Import Prohibition of Certain Shrimp and Shrimp Products 美国虾及虾产品进口限制案,Case Study: 6. European Communities-Regime for the Importation, Sale and Dist

6、ribution of Bananas 欧共体香蕉进口、销售、分销制度案 7. LOreal 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,1-1,Chapter 1,INTRODUCTION TO INTERNATIONAL AND COMPARATIVE LAW,1-2,CHAPTER 1,Defining International

7、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,1-3,International Law,Historically, dealt with the rules and norms regulating the relationships betwe

8、en 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,what is international business law?,International business law is the body

9、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

10、间的关系.,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 la

11、w 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 peop

12、le (and corporations) from different states.,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 “

13、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 t

14、o any conduct outside the boundaries of states, whether of a public or a private nature.,There are at least 3 ways of looking at international law. Cosmopolitans （世界主义者） claim that international law is based on universal human rights. Thus, international law should restrain states from violating nor

15、ms based on universal human rights, and the consent of a state is irrelevant. 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

16、 international system and (2) state consent to individual international laws, either through treaties or customs.,Positivists international law can be seen as a series of contracts between states; international law becomes binding only through such explicit or implicit contracts. In contrast to eith

17、er Cosmopolitans or Positivists, Hobbesians (霍布斯主义 “Leviathan”利维坦) are more cynical, believing that states will make agreements and abide by international law only when it suits their self-interests.,Scholars, jurists, and politicians will rarely adopt one school of another with consistency, and com

18、binations of these views can coexist among principal actors in the same nation-state. At a minimum, however, international law is understood to be more than just good manners or mutual respect between or among sovereign nation-states. Comity, for example, is the practice between states of treating e

19、ach other with goodwill and civility. It is not law, however, because states do not regard it as something they are required to respect. For example, until it became a matter of legal obligation under Art. 36 of the 1961 Vienna Convention on Diplomatic Relations, it was long considered to be a custo

20、mary courtesy to allow,foreign diplomats the privilege of importing goods they intended for their private use free of customs duties. This privilege was not a legal right guaranteed by international law, however, because states did not feel compelled to grant the privilege except as a courtesy. Such

21、 courtesy can be seen as a kind of anticipatory reciprocity in which states do unto other states as they would hope to be treated in turn. Comity is thus understood as an informal principle that nations will extend certain courtesies to other nations, particularly by recognizing the validity and eff

22、ect of their executive, legislative, and judicial acts. This principle is most frequently invoked by courts, which will not act in a way that demeans the jurisdiction, laws, or judicial decisions of another country.,1-4,Schools of Thought Defining The Basis of International Law (IL),Cosmopolitans ar

23、gue 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.,1-5,Examples of Pu

24、blic andPrivate International Law,Case 1-1 Ignacio Sequihua v. Texaco Inc. et al.United States District Court for the Southern District of Texas,Houston Division, 847 F. Supp. 61 (1994),Opinion of Judge Black Plaintiffs, residents of Ecuador, filed this action in Texas state court asserting a variet

25、y of causes of action arising out of the alleged contamination of the air, ground, and water in Ecuador. In addition to monetary relief, Plaintiffs asked for an injunction requiring Defendants to return the land to its former condition and for a “trust fund” to be administered by the Court. The case

26、 was removed to federal court, and the Court finds that the removal was procedurally proper. In considering the defendants motions to dismiss, the Court used “comity” to rule for defendants.,Under the doctrine known as comity of nations, a court should decline to exercise jurisdiction under certain

27、circumstances in deference to the laws and interests of another foreign country. Section 403(3) of the Restatement (Third) of the Foreign Relations Law of the United States sets forth a number of factors to be considered in determining whether the comity of nations deference should be applied. The N

28、inth Circuit applied similar factors in Timberlane Lumber Co. v. Bank of America National Trust and Savings Assn., 749 F.2d 1378 (9th Cir. 1984), to affirm a District Courts decision not to exercise jurisdiction. Consideration of these factors leads to the inescapable conclusion that the Court shoul

29、d decline to exercise jurisdiction over this case.,The challenged activity and the alleged harm occurred entirely in Ecuador; Plaintiffs are all residents of Ecuador; Defendants are not residents of Texas; enforcement in Ecuador of any judgment issued by this Court is questionable at best; the chall

30、enged conduct is regulated by the Republic of Ecuador and exercise of jurisdiction by this Court would interfere with Ecuadors sovereign right to control its own environment and resources; and the Republic of Ecuador has expressed its strenuous objection to the exercise of jurisdiction by this Court

31、. Indeed, none of the factors favor the exercise of jurisdiction. Accordingly, the case should be dismissed under the doctrine of comity of nations. Casepoint Under the doctrine known as comity, a court should decline to exercise jurisdiction under certain circumstances in deference to the laws and

32、interests of another country.,1-7,Case 1-1Ignacio Sequihua v. Texaco Inc.,Comity applied to private dispute. Court in Texas declined to exercise jurisdiction over activity and harm that occurred in Ecuador. Taking jurisdiction in U.S. would have interfered with Ecuadors sovereign right to control it

33、s own environment. Case dismissed under the doctrine of comity of nations.,1-6,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 to not harass witnesses involved in the cas

34、e. 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.,1-8,U.S. Courts Apply Comity and Refu

35、se to Take Jurisdiction When:,The defendant is a sovereign 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,1-9,The Making of In

36、ternational 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: Decisions of the International Court of Justice Resolutions passed by the UN Gen

37、eral Assembly Multilateral treaties, conclusions of international conferences, and provisions repeated over and over again in bilateral treaties,1-10,Sources of International Law,Treaties or conventions International custom General principles of law recognized by civilized nations Judicial decisions

38、 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.,1-11,Treaties and Conventions,Equivalents of legislation in IL are: Treaties lega

39、lly binding agreement between two or more states. Conventions legally binding agreement between states sponsored by an international organization. Customary rules that govern treaties are contained in the Vienna Convention on the Law of Treaties, ratified by 108 countries.,1-12,Custom As Source of I

40、nternational Law,Custom a long-established tradition or usage that becomes customary law if it is: 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.) R

41、ecognized by those states observing it as a practice that they must obligatorily follow.,1-13,General Principles of Law and Jus Cogens,Courts will often rely upon general principles of law that are common to the legal systems of the world to solve international disputes. Jus cogens (强制性法规) is a pere

42、mptory norm of general international law, recognized by the international community as a norm from which no derogation is permitted. Jus cogens - states must respect certain fundamental principles. Treaties are void if they conflict with jus cogens. Ex: Treaty by two nations to use violence against

43、a third nation violates higher standard of jus cogens.,1-14,Scope of International Law in Actual Practice,International tribunals regard municipal law as subservient to international law. States have obligation to bring their municipal law into compliance with international norms. Municipal courts o

44、ften balk at this obligation based upon strong feelings of nationalism and belief in priority for the sovereign states own law.,1-15,Practice in Municipal Courts,In municipal courts, international law generally treated as correlative. If the international law is based on customary practice, it is re

45、ceived in accordance with the doctrine of incorporation（纳入原则）. Customary IL is part of domestic law to the extent that it is not inconsistent. Minority of courts - doctrine of transformation Customary IL is applicable domestically only after adopted by legislation, court decision, or local usage.,1-

46、16,Municipal Court Reception Rules Found in Treaties Two Factors,Nature of the treaty: Self-executing （自动执行条约） contains a provision stating that the treaty will apply to the parties without having to adopt domestic enabling legislation.自行生效的，无需立法手续即可生效的 Non-Self-Executing（非自动执行条约） requires enabling

47、legislation before effective domestically. Constitutional structure of the ratifying state: In U.S., President negotiates constitutional treaties that are then ratified by the Senate. Executive agreements - treaties entered into by the President, not ratified, not effective domestically.,1-17,Case 1

48、-2 Sei Fujii v. Statepp.10-12,Examines whether provisions of UN Charter promoting fundamental freedoms without distinction as to race are self-executing or not. California appellate court ruled that land purchased by Fujii, a Japanese alien, violated alien land law and escheated to state. CA Supreme

49、 Court affirmed that UN Charter was not self-executing because language was not mandatory and required additional implementing legislation. However, law violated 14th Amend., Fujiis money returned.,1-18,International Persons pp. 12-42,States Independent states Dependent states Inchoate states p.12 I

50、nternational Organizations Intergovernmental organizations (IGO) Nongovernmental organizations (NGO),1-19,International Persons - States,State - political entity comprising a territory, a population, a government capable of entering into international relations, and a government capable of controlli

51、ng its territory and peoples. An independent state is sovereign and operates independently internationally. A dependent state (Puerto Rico) has formally surrendered some aspect of their political and governmental functions to another state. An inchoate state lacks attributes of independent state, su

52、ch as territory or population.,1-20,Case Matimak Trading Co. v. Khalily and D.A.Y. Kids Sportswear Inc.,Matimak, a Hong Kong corporation, sued in federal court in NY under diversity jurisdiction as a citizen of foreign state. Though not formally recognized by executive branch, Matimak argued de fact

53、o recognition of Hong Kong. Ruling: Hong Kong not an independent state. Matimak not a citizen or subject of United Kingdom or any foreign state. Suit dismissed for lack of jurisdiction.,1-21,Case 1-4 pp. 3133 Court of Justice of the European Communities Case 274/87 Commission of the European Communi

54、ties v. Federal Republic of Germany欧共体委员会诉联邦德国案,1-21,Judgment Case 1-4 examines both the obligation of member states to bring their laws into accord with the EU treaties (in particular the European Community Treatythen known as the EEC Treaty) and the direct effect of those treaties.,1-21,Judgment B

55、y application lodged at the Court Registry on 16 September 1987, the Commission of the European Communities brought an action before the Court under the second paragraph of Article 169 of the EEC Treaty for a declaration that by prohibiting the importation and marketing in its territory of meat prod

56、ucts from other Member States which do not comply with,1-21,Paragraphs 4 and 5 of the Fleisch-Verordnung (Meat Regulation) of 21 January 1982 the Federal Republic of Germany has failed to fulfill its obligations under Article 30 of the EEC Treaty. The regulation in question prohibits the marketing o

57、f meat products which contain ingredients other than meat, subject to exceptions in respect of,1-21,specified products the composition of which is defined, with a requirement, in certain cases, for specific information to be shown on the packaging or displayed on signs. The ban on marketing those pr

58、oducts is supplemented by Paragraph 47, subparagraph 1, of the Lebensmittel und Bedarfsgegenstaendegesetz (Law on foodstuffs and necessities) of 15 August 1974, which prohibits the importation of foodstuffs which do not,1-21,comply with German standards. Compliance with those rules is ensured by mea

59、ns of criminal or administrative penalties. It should be noted at the outset that it is undisputed that the contested rules have a restrictive effect on imports of meat products legally manufactured and marketed in other Member States. The issue between the parties is whether or not the measures in question are,1-21,justified on the grounds put forward by the German Government, that is to say the protection of health and mandatory requirements relating to consumer protection, fair trading and the common agricultural policy. It should also be noted at the outset that the c