国商期末总结

国际商法期末总结

第一章

1.惯例概念custom：A long established tradition or usage that becomes customary law if it is (a) consistently and regularly observed and (b)recognized by those states observing it as a practice that they must obligatorily follow.

2.来源What are the sources of international law:：①treaties and conventions ②custom ③general principles ④others

3.国际法主体subjects：States，International organizations，Individuals.

4.大陆法系概念civil law：(1)The legal system derived from Roman and Germanic practice and set out in national law codes.(2)As distinguished from public law,the body of law dealing with the rights of private citizens.

5.哪些国家属于大陆法系：Continental Europe, Russia, China, Japan, Quebec(Canada), Louisiana(U.S.A), Scotland(U.K.), some states in Asia, Africa & Latin America which used to be the colonies of European countries like Spain, Portugal & France

6.英美法系common law:The legal system of England and countries that were once English colonies.It is based primarily on court-made rules or precedent.

7.哪些国家属于英美法系：U.K., British Common Wealth Countries, U.S.A, Ireland, and some countries and areas which used to be the colonies of the Great Britain, such as Hong Kong

8.International law:The body of legal rules and norms that regulates activities carried on beyond the legal boundaries of a single state.

第二章

1.征收概念expropriation：A taking of private property by a government.

2.国家责任概念state responsibility：Liability of a state for the injuries that it causes to aliens and foreign businesses.

3.海外投资保险需要承担哪些风险:①expropriation(both outright and creeping) ②Currency Inconvertibility ③Political Violence

第三章

1.解决国际争端方式Dispute Settlement through Diplomacy :①Negotiation ②Mediation ③Inquiry

2.调停概念good offices：A third party who provides the mans by which two disputing parties may communicate with each other.

3.调解概念conciliation：The process by which an impartial third party makes an independent investigation and suggests a solution to a dispute.

4.投资争端解决机构仲裁问题ICSID Arbitration：①Governing Law ②Constituting an Arbitration Tribunal:(1)2 preliminary conditions .Both the home state & the host state are members to ICSID ?The investor & the host state must both consent to ICSID jurisdiction .(2)the parties can choose the arbitrators & the place of arbitration freely only when they reach an agreement on these issues.(3)the jurisdiction of ICSID arbitration is exclusive ③Jurisdiction.（1）Personal Jurisdiction；?State Party: a contracting state ?Private Party: a national of another contracting state（2）Subject Matter Jurisdiction. ?Disputes ?Investment Disputes ④Provisional Measures & Awards ⑤Enforcement 1）the award is binding on the parties 2）the court of the states

parties are forbidden to review the award 3）the states are obliged to enforce the award as if it were a final judgement of their own courts 4）if the award were not being enforced, an investor can seek diplomatic protection.

5.绝对豁免absolute sovereign immunity: Rule that a foreign state is immune from all types of suits.All acts of a government can be immune

6.相对豁免restrictive sovereign immunity：Theory that a foreign state is not immune when the cause of action for a suit is based on conduct unrelated to the state's governmental activities.Only governmental acts can be immune

第四章

1.有限合伙概念civil law limited partnership:A company of two or more persons,at least one of whom has unlimited personal liability for the debts of the business and at least one other who is an investor having limited liability.

2.普通合伙概念civil law partnership:A company of two or more persons who co-own and manage a business and who are each liable to the full extent of their personal assets for its debts.

3.合伙组织特征Characteristics of a Partnership：①1) It is co-owned and managed by its investors-partners; 2) Its profits and losses are shared by the partners; 3) The partners have unlimited liabilities( maybe in some kinds of partnerships not all partners have unlimited liabilities, but at least one partner must do ); 4) It is not regarded as a juridical person in most countries.

4.大陆法上有限责任公司概念Limited Liability Company/Private Corporation：A corporation owned by members that does not issue negotiable share certificates and is subject to minimal public disclosure laws.

5.特征：1) There is no division of the capital into stock shares in civil law countries, the contribution of each member is called ‘participation’. The corporation cannot issue share certificates. Instead the members make contributions to the corporation; 2) The transfer of a member’s contribution must be subject

to some restrictions both in the corporation law & in the incorporating documents; 3) The corporate financial statements are subject to less strict public disclosure laws. 6.股份有限公司概念stock corporation：A corporation than can raise money in the public marketplace through the sale of freely transferable shares,Its financial statements have to be disclosed to the public.

7.特征：1) The whole capital should be divided into stock shares, and the corporation can issue the shares to raise money in the public market place; 2) The issued share certificates are negotiable in a public market place; 3) Corporate financial statements must be available to the public.

8.公司章程概念Articles of Incorporation:The basic instrument creating and defining

a particular corporation,which is field with a state agency at the time of the firm's incorporation.

9. 大陆法系注册资本：①Drafting incorporating documents- Articles of Association;

②At least a minimum capital must be subscribed.

10.英美法系注册资本：①Authorized Capital in common law countries form of the Investment ②An organizational meeting is held among stockholders & an initial board of directors is appointed or elected by them. ③The incorporating documents

are register with the appropriate public office.

11.普通股Classified stock:Stock that is categorized according to the persons who may own it or by the benefits it gives its owners.

优先股preferred stock:Stock that gives its owner benefits that ordinary stockholders do not have.

优先股与普通股的区别：cumulative voting:Par Shares vs Non Par Shares.

12.分支结构不同的组成部分包括哪些：parent company，agent，branch，subsidiary. 区别：agent：An independent person or company with authority to act on behalf of another.

branch:Unite or part of a company.It is not separately incorporated.

Subsidiary:Company owned by a parent or a parent's holding company.Unlike a branch,it is separately incorporated.

13.揭开公司面纱概念pierce the company veil:An expression indicating that the legal fiction that a company is a separate legal entity will be set aside and the shareholders of the company will be held liable for its conduct as if they were partners in a partnership.

14.谁可以作出判决揭开公司面纱：①the controlled company ②the alter ego company ③undercapitalization ④personal assumption of liability.

第五章

1.关于世贸组织的基本原则Foundational Principles：①Nondiscrimination（The Most-Favored-Nation Rule，The National Treatment Rule）②Protection through Tariffs关税保护（bound tariff rate）③Transparency透明度原则④Regional Integration地区一体化（Free trade area，customs union）

2.贸易救济措施WTO identifies three primary types：①antidumping (counteracting unfairly low prices) ②countervailing duties (counteracting subsidies) ③safeguards (temporary relief from import surges)

3.区别Distinctions from AD& CVD measures：

（1）Nature of underlying activity ①AD and CVD counteract “unfair”trade practices ②In safeguard cases, there is no issue of unfairness

（2）Nature of injury varies ①AD and CVD require only material injury ②Safeguards require serious injury

（3）Nature of remedy ①AD and CVD limited to the amount of dumping or subsidization

②Safeguard remedies more flexible

（4）Duration of remedy ①AD and CVD can last forever, although there are reevaluations every five years ②Safeguard measures usually shorter in duration—often three years to avoid need to compensate.

第六章

1.外资受东道国限制Limitations for Foreign Investments and the Application Screening：①limitations on business forms，Preference:have local participation —joint venture；fully disclose their activities to the public—stock corporation. ②外资股权限制limitations on foreign equity ③sectoral limitations：closed sectors: being totally closed to foreign investment；restricted sectors:permitting a limited percentage of foreign participation；foreign priority sectors: full or majority foreign

ownership is allowed or even encouraged. ④geographic limitations

2.外资监管措施Supervision of foreign investment：①Start-up standards: time limit in which to start construction and/or begin operation. ②Operational reviews: submission of information on various aspects of the business activities, plus regular inspections of its plants, facilities and records. ③Modification of foreign investment agreements: should be approved by the host country. ④Protection of subsidiaries: to prevent foreign investors from abusing their local subsidiaries and their subsidiaries' creditors. ⑤disclosure of information ⑥protection for subsidiaries from the disadvantageous decisions by their parent company. ⑦protection of a subsidiary’s minority shareholders: appraisal rights; rights to minimum guaranteed dividends. ⑧债权人protection of a subsidiary’s creditors: Piercing the Corporate V eil; Deep Rock Doctrine/Equitable Subordination Rule.

3.内幕交易insider trading：The use of material nonpublic information about a company or the securities market to buy or sell securities for personal gain.

4.收购takeover：the purchase of the publicly traded stock shares of a target corporation, which is aimed at changing in the controlling interest of this corporation. Takeovers may be hostile or friendly.

第七章

1.知识产权intellectual property：Useful artistic and industrial information and knowledge.

2.版权概念copyright：An incorporeal statutory right that gives the author of an artistic work,for a limited period,the exclusive privilege of making copies of the work and publishing and selling the copies.

①保护对象what is protected: 作品的表达方式the expression of the work

②涉及的权力：财产上pecuniary rights：Right of an author to exploit a copyright work for economic gain；精神上道德权利moral rights：The right of an author to prohibit others from tampering with a copyright work.

③保护条件：（1）originality：a work must be original to be protected. (2)fixity: being fixed in any tangible medium of expression. (3)邻接权neighboring rights: rights created by new laws which are parallel but separate from the existing copyright laws to provide protection for new kinds of works. ④时间范围Scope and duration：scope: A copyright applies only within the territory of the state granting it. duration:A copyright of a work exists in the whole life of its author and lasts for 50 years following the author’s death.

3.专利概念patent:An incorporeal statutory right that gives an inventor,for a limited period,the exclusive right to use or sell a patented product or to use a patented method or process.

①保护的3个条件Inventions that qualify for patent protection：新颖性newness: no other inventor has obtained a patent for the same invention；创新性inventiveness: the subject matter of the invention was not obvious at the time of the invention's making to a person having ordinary skill in the art of the subject matter.；工业适用性industrial application: the product or process of an invention can be used in industry or commerce.

②保护对象Specified forms of patents：design patents，plant patents，utility patents

③时间范围Scope and duration：scope: within the territory of the state granting it；duration: a 20-year minimum term of protection for patents is set out by TRIPS.

4.商标trademark：①保护条件：（1）Acquiring trademarks：two ways to acquire trademarks: by use or by registration；the priority of the first user/ the priority of the first applicant. (2)Registration of trademarks:registration criteria: a) not infringe on any other mark; b) be distinctive ；requirement of usage: in most countries, a mark can be obtained by registration even if it has never been used in commerce；refusing registration；registration review.

②时间范围Scope and duration：scope: a registered trademark can only be protected within the territory of the registering state the protection of famous trademarks；duration: TRIPS Agreement requires WTO member states to protect registered trademarks for at least 7 years. Trademarks are to be indefinitely renewable.

5.专有技术概念know-how：Practical expertise acquired from study，training，and experience.

与专利不同Differences from patents：①being protected by the law of contracts and torts instead of specific legislations ②keeping secret by the owners ③without time and scope limitations

6.独家许可协议exclusive licenses：A license that restricts who may compete with the license.

7.地域限制territorial restrictions:①exhaustion-of-rights doctrine ②common origin doctrine

8.Exhaustion-of-rights doctrine:Once a good made or sold under license is in circulation,the licensor has no further right to control its distribution.

https://www.360docs.net/doc/1f7948813.html,mon origin doctrine:Owners of the same intellectual property right who acquired it from a common predecessor cannot restrict each other from using the right.