International Business Law国际商法复习重点

Lecture 1 Introduction to International Business Law 1.Classification of Laws All the laws in the world can be classified into: 1) International laws 2) Municipal laws 2.What is International Law? Traditionally, International Law is also called the Law of Nations or Public International Law, and it deals with the international relationship between the states. 3.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 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. 4.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 international relationships of international commercial organizations. 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, industrial 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 5.Sources of International Law ●Treaties and Conventions ●Treaties are legally binding agreements between two or more states. Conventions are legally binding agreements between states sponsored by international organizations. ●Custom ●Some 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 Cogens 6.Sources of Municipal Law ●Constitution ●Code & Laws ●Court Judgment 7.Persons in International Law ●States States 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 Organizations According to the United Nations Charter, there are two kinds of international organizations: (1) public or intergovernmental organizations (IGOs) and (2) private or nongovernmental organizations (NGOs). 8.Persons in Municipal Law ●Individual(Natural Person) ●Legal Person 9.The Rights of Individuals Under International Law International law looks upon 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. 10.Municipal Legal System – Civil Law System ●The civil law system is the general typology of legal 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 remains uncodified. Most codes follow the tradition of Code Napoléon 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. 11.Municipal Legal System – Common Law System ●Common 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 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 disputes, the decisions handed down by the judges literally made the law. 12.Chinese Law ●The 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 People's Republic of China. PRC has been influenced by a number of sources including traditional Chinese views toward the role of law, the PRC's 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 of banking and securities law. Lecture 2 Formation of the Contract 1.Contract Black‘s 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 Contract 2) Enforceability of the Contract 2.Formation of the Contract - Offer A contract is formed when an offer to buy or sell a good is accepted. ●The Offer An 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: ●Definiteness A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. ●Specific Offerees 3.Invitation to Offer An invitation to offer or invitation to treat is simply an expression of willingness to enter into negotiations which, it is hoped, will lead to the conclusion of a contract at a later date. 4.Display of goods for sale in a supermarket ●Case: 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 Poisons 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 thought fit to do so. ●Advertisement The 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 bound 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. 5.Case study: Carlill v. Carbolic Smoke 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 good 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. 6.Auction sales Step 1. Advertisement of auction or a statement of auction Step 2. The auctioneer invites the bids Step 3. The prospective buyers bids for the commodity Step 4. The auctioneer strikes the table. Which step is offer, and which step is acceptance? Case: British Car Auctions Ltd v. Wright 7.Tenders Where 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. 8.Effectiveness of an Offer ●An offer becomes effective only after it reaches the offeree. ●Revocation Offers that do not state that they are irrevocable can be revoked any time before the offeree dispatches an acceptance. ●Withdrawal ●Firm Offers Ones where the offeror promises to keep the offer open for a fixed period. 9.Termination of offer a. 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 revocation reaches the offeree before he has dispatched an acceptanc e. 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 being 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. 10.Case of Revocation of offer Byrne v. Van Tienhoven The defendants sent the claimants an offer on 1 October, which reached claimants on 10 October, 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 withdrawal could not take effect until 20 October. 11.Formation of the Contract -acceptance The acceptance is the offeree‘s 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 unconditional and absolute, with the same contents as the offer. c. The acceptance must be made by offeree to offeror. 12.Time of Acceptance ●Acceptance 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 time. If the offer is oral, the acceptance must be made immediately, unless the circumstances indicate otherwise. ●Civil law countries – receipt theory The acceptance takes effect only after it reaches the offeor. ●Common law countries – mailbox rule The acceptance takes effect when it is sent no matter whether 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. 13.Acceptance with Modifications ● A purported acceptance which does not accept all the terms and 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) ●Case: Hyde v. Wrench The 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? 14.Exception of mirror image rule/Battle of Forms ● A 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 dispatches 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, extent of one party‘s liability to the other or the settlement of disputes are considered to alter the terms of the offer materially. 15.Formation of the Contract - Acceptance ●Form of Acceptance ●By word ●By written form ●By Performance of an Act ●Silence Lecture 3 Enforceability of the Contract 1.Elements Affect the Enforceabilityh 1)Capacity of Parties 2)Intention of Parties: Misrepresentation; Duress; Undue influence; Mistake 3) Illegality 4) Consideration 2.Capacity of Parties Capacity means the ability to incur legal obligations and acquire legal rights. Today, the primary classes of people who are considered to lack capacity are minors, persons suffering from mental illnesses or defects, and intoxicated persons. 3.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. 4.Capacity of Minors A 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 guardian may disaffirm the contract. 5.In UK The 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. 继续阅读