国际商法

Teaching Program for International Business Law(国际商法教学大纲)Shandong UniversitySchool of Law, Institute of International Law姜作利教授博士Prof. & Dr. Jiang ZuoliTel: 86333313For the Whole CourseObjectives1.To provide an introduction of various theories of international business lawand explore their claims in terms of being descriptive (claiming to tell us how the law is), explanatory (claiming to tell us why the law as it is), prescriptive (claiming to tell us how the law should be), predictive (claiming to tell us how the law would be) and constitutive (claiming to tell us how the theory shapes the way the law is)2.To provide a critical overview of some of the major issues and concepts ofinternational business law3.To give students the opportunity to develop a more critical awareness of theintricacy of law and the international legal systems4.To help students develop skills of doing international businessBasic ContentsI.Introduction to International Business LawII.Forms of International BusinessIII.Legal System of International BusinessIV.Contract Law for International Sale of GoodsV.Finance of International TradeVI.The Law of AgencyVII.International commercial Dispute settlementImportant and Difficult PointsI.Sources of International Business LawII.International Organizationsparison of Municipal Legal SystemsIV.Some Important Trade TheoriesV.UN Convention on Contract for the International Sale of Goods(CISG)VI.UNIDROIT Principles of International Commercial Contracts(PICC)VII.International Rules for the Interpretation of Trade Terms(Incoterms 2000)VIII.Validity and Formation of International Sale of ContractsIX.Battles of FormsX.Remedies for Breach of ContractsXI.Anticipatory Breach of ContractXII.Passing of RiskXIII.Excuses for Non-performanceXIV.Bill of ExchangeXV.Collection of Documentary Bills through BanksXVI.Important Principles of Letters of CreditXVII.Fraud Exception in Letter of CreditXVIII.Duties of Agent and PrincipalXIX.Termination of an AgencyXX.Jurisdiction and Venue for Settlement of International Commercial DisputesXXI.Alternative Dispute ResolutionXXII.The Application of Procedure Law and Substantive Law XXIII.Arbitration AgreementXXIV.Recognition and Enforcement of AwardsChapter One Introduction to International BusinessLawObjectives1.To provide a general and brief survey of history and sources ofinternational business law2.To give a general introduction to the more important internationalorganizations3.To make a comparison of municipal legal systemsBasic contents1.The concept of international business law2.The history of international business law3.The sources of international business law4.International Organizations5.The Roman-Germanic Civil Law System and theAnglo-American Common Law SystemImportant and Difficult Legal Concepts and Issues1.International business law is originated in commercial practicesof European merchants known as international trade usages andpractices2.Merchant law3.National law is also a source of international business law4.The Roman-Germanic Civil Law System and theAnglo-American Common Law System are developeddifficultly but are coming more and more close in recentdecadesI.What is International Business LawInternational 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.II.Merchant lawEuropean merchants have developed many practices and usages, and the courts worked out practical and fair rules and procedures based on the merchants‟ customs. Soon these same rules were being applied both in governmental and church courts, and eventually the lex mercatoria（商人习惯法）became an international body of generally accepted commercial rules that transcended national boundaries. It also proved to be more influential than even the civil law, spreading to England where the Roman law tradition was resisted by the local legal community. Today, many of the concepts contained in the law merchant are incorporated in modern commercial law codes, such as the United Nations Convention on Contracts for the International Sale of Goods.III.International model lawInternational model law means the rules and norms worked out and passed by some international organizations for the free choice by individual nations. International model law is not international treaties or conventions and is of no certain legal validity, however, it incorporates many general principles of law from various legal systems and also most well-known customs and usages in international business practices. Therefore, many countries like to use it as a means of interpreting international business customs, and as model for their national legislature. So, international model law is an important source for international business law.IV.International trade customs and usagesInternational trade customs and usages mean the general rules and practices in international trade activities that have become generally adopted through unvarying habit and common use. “The existence and scope of a usage of trade are to be determined as questions of fact. If a usage is embodied in a written trade code or similar writing the interpretation of the writing is to be determined by the court as a question of law. Unless otherwise agreed, a usage of trade in the vocation or trade in which the parties are engaged or a usage of trade of which they know or have reason to know gives meaning to or supplements or qualities to their agreement .”V.Civil Law and Common Law SystemsHistorically, the civil law dates to 450 B.C, the traditional date when Rome adopted its Twelve Tables. The most significant historical event in the development of the civil law, however, was the compilation and codification of all Roman law done under the direction of Byzantine Emperor Justinian (A.D. 483-565). This code, known as the Corpus Juris Civilis, was compiled between A.D. 528 and 534. It was important because it preserved the ancient legal system in written forms. The Roman law was displaced to some extent by the rules of the Germanic tribes when they overran the Western Empire. Germanic tribal law, however, recognized the principle of personal (as opposed to territorial) law, so the former Roman subjects and their descendants were allowed to follow the Roman law. The medieval Roman Catholic Church also played an important role in preserving the ancient law because its Canon law, the law used in church courts, was based on Roman law.With the revival of interest in classical culture in Western Europe in the eleventh and twelfth centuries, accompanied by the discovery of a copy of the long lost Corpus Juris Civilis（国法大全）, active study of the ancient Roman law began in earnest. At universities in northernItaly—especially Bologna—the Corpus Juris Civilis was systematically analyzed, first by glossators (who added notes—annotations—explaining its meaning) and later by commentators (who attempted to adapt it to the needs of their time). Students from throughout Europe, who traveled to Italy to study, returned to their own countries to start the new profession of lawyers. They not only set up new universities in Paris, Oxford, Prague, Heidelburg, Cracow, and Coperhagen, but also found work both in the Church and as advisors to princes and municipalities. Their common background led to the creation of a new civil law, one based on the Roman law, canon law, and the huge body of writings created by the glossators and commentators. This was called the jus commune, or the common law of Europe.The origins of the Anglo-American Common Law System can be traced back to the year 1066,when the Normans conquered England and William the Conqueror began to centralize his new kingdom‟s governmental administration. The name “common law” is derived from the theory that the king‟s courts represented the common custom of the realm, as opposed to the local customary law practiced in the county and manorial courts.Development of the enduring principles of the common law was largely the product of three courts created by Henry II (1133-1189). The Court of Exchequer settled tax disputes; the Court of Common Pleas dealt with matters that did not involve the king‟s direct interest, such as title to land, enforcement of promises, and payment of debts; and the Court of King‟s Bench handled cases of a direct royal interest, such as the issuance of “writs” (written decrees) to control unruly public officials. Eventually, the jurisdiction of the King‟s Bench was used to control abuses of power by the king himself, establishing a fundamental doctrine of the common law: the supremacy of the law. Also, when the Court of Common Pleas began to charge large fees to hear cases, much of its jurisdiction was taken over by the King‟s Bench. The judges of the King‟s Bench did this by broadly interpreting the writ of trespass so that it took in virtually every kink of tort, and by expanding the meaning of the writ of assumpsit so that it applied to most forms of contracts.Review questions:1. What is meant by the term …International Model Law‟? Briefly list three of its main features.2. Explain international treaties, using two examples.3. Outline three circumstances in which international trade customs and usages are effective to the parties to a contract.4. Compare and contrast the Roman-Germanic Civil Law System and the Anglo-American Common Law System.5. Briefly describe how and why China came to accept international business law.6. The CISG contains no provisions that a contract for the sale of goods be supported by consideration. Further, the CISG does not address questions related to the validity of the contract, including legality, mistake, fraud, duress, or undue influence. How will national courts handle these issues in cases that they might be called upon to decide under the CISG? In common law countries? In civil law countries? How has this been addressed by courts in China?Chapter Two Forms of International BusinessObjectivesTo provide a general survey of important trade theories for the students to help to obtain a better understanding of international business law considering the fact that international business law is devoted to the regulation of international business activities.Basic Contents1.Some important trade theories: specialization, absolute advantage, comparative advantage, opportunity cost2.A brief introduction to some terms such as tariffs, nontariff barriers, export restrictions, and international licensing agreementImportant and difficult concepts and legal issuesspecialization, absolute advantage, comparative advantage, opportunity costI. SpecializationWhy nations trade? Economists in western countries believe that the reason is that all nations benefit from specialization（专业化）. All nations have particular talents and resources; like individuals, whole nations are able to specialize in one or many activities. For example, the islands of the Caribbean have abundant sunshine and good weather year round, and so the islands specialize in tourism. Specialization here means that each nation should specialize by applying the law of comparative advantages to its resource endowment. It enables nations to emphasize the activities at which they are most efficient and at the same time gain certain advantages through trade. Nation A will specialize in X, if that is where its comparative advantage lies, and produce all X demanded by itself and Nation B. It will obtain from B since B produces enough for both. If costs rise as outputs increase, specialization will not be complete; trade will be carried to the point where costs are equalized in the countries.II. Absolute AdvantageAdam Smith said trade between nations would increase real wealth via the division of labor. He assumed an absolute advantage （绝对优势）necessary, in that an exporting industry must beable to produce, with given inputs, a larger output than any rival. Assume that two nations use the same composite input mix of land, labor, and capital with the result that nation A produces twice as much of two commodities as nation B. Nation A has absolute advantage with respect to both commodities; therefore, B cannot produce for export trade.III. Comparative AdvantageAbsolute advantage explains that trade between two countries will likely emerge because each can specialize at what it does best—emphasizing the production at which it is most efficient—and with the other country for its requirements the other goods. So, both countries will be better off because specialization and trade lead to increases in production and there to increases in the attainable consumption levels of both goods in both countries. However, this trade theory does not explain why a country with the ability to produce two or more goods but at higher input cost trade with other countries with the same ability. That‟s to say, neither countries have absolute advantage in production of any goods.Comparative advantage （比较优势）means that countries will specialize in producing several products and services in which they have lower opportunity costs than their trading partners. For example, a hilly, rocky country will not be able to raise as many sheep per acre as a country with fertile grasslands, but the rocky land cannot support any production other than sheep raising, whereas the grassland will support more lucrative cattle production. Even though the grassland is absolutely more efficient at producing both sheep and cattle, the rocky land has a comparative advantage in sheep growing because the opportunities forgone are nearly worthless. The rocky country will therefore tend to specialize in sheep, the grassy country in cattle.It is clear that comparative advantage explain that even a country that does not have any absolute advantage in producing several goods, can benefit from trading with other countries.IV. Opportunity CostOpportunity cost theory （机会成本理论）is one of the most important theories in international trade and the well-known concept of sustainable development of world economy. Opportunity cost means the value of the benefit that is given up to produce one economic good as opposed to another.The concept of opportunity cost is crucial to all economic activities, because all resources are limited. Steel used to product girders cannot be used to produce locomotives; labor services used to product shoes cannot be used to build houses. Therefore, in order to ascertain the cost of choosing one alternative use of a given set of limited resources rather than another, the economist uses the opportunity cost concept. He measures the “real” cost of doing business by its opportunity cost, not by its explicit, or outlay, cost. The real cost of producing nails, for example, is the value of another product, say rails, that might have been produced from the same amount or resources.In utilizing the opportunity cost concept, however, it is not sufficient simply to compare the values of different products that can be produced by utilizing a given set of resources in more or less the same manner. To illustrate, assume that a man has a farm and has invested his life savings in land and equipment, with all of which he grows alfalfa. The opportunity cost of such economicactivity might be the difference between the value of alfalfa and the value of some other crop that he could also produce. He could have put his self-owned, self-employed resources to entirely different uses, however. By using his resources as he has, he has forgone the opportunities of (1) lending his savings and receiving interest on that investment, (2) renting his land and receiving income therefrom, (3) working for someone else for wages. If the total return from such alternative uses of his resources were greater than the return from the production of any other crop that he might grow, it is that return that is the measure of the opportunity cost to him of growing alfalfa.From the point of view of economics, the most rational use of resources is that use which produces the greatest return. Although opportunity cost is the true measure of the cost of one use of a given set of resources as compared with any other use, the most rational use is that which produces the greatest return. Therefore, the economically relevant opportunity cost of a given activity is the difference between the values of the benefit that would have been produced by the most rational alternative use of the resources concerned.VI. Tariffs and Nontariff Barriers to TradeTariffs are taxes placed on imports either by value (ad valorem duty) （从价税）or per unit of quantity (specific duty)（从量税）. They are imposed for many reasons, including (1) the collection of revenue, (2) the protection of domestic industries from foreign competition, and (3) political control (e.g., to provide incentives to import products from politically friendly countries and to discourage importing products from unfriendly countries.)Nontariff barriers are all barriers to importing or exporting other than tariffs. Nontariff barriers are generally a greater barrier to trade than are tariffs, because they are more insidious. Unlike tariffs, nontariff barriers are often disguised in the form of government rules or industry regulations and are often mot understood by foreign companies.VII. International Licensing AgreementIntellectual property rights are a grant from a government to an individual or firm of the exclusive legal right to use a copyright, patent, or trademark for a specified time. Copyrights are legal rights to an artistic or written work, including books, software, films, music, or to a layout design of a computer chip. Trademarks include the legal right to use a name or symbol that identifies a firm or its product. Patents are governmental grants to inventors assuring them of the exclusive legal right to produce and sell their inventions for a period of years. Copyrights, trademarks, and patents compose substantial assets of many domestic and international firms. And as valuable assets, intellectual property can be sold or licensed for use to others through a licensing agreement（许可协议）.Review questions:1. Briefly describe, giving two examples, how …comparative advantage‟ is applied to promote international economics.2. Explain the differences between …comparative advantage‟ and …absolute advantage‟, giving three examples.3. Define …opportunity cost‟ and identify its main features.4. Outline three reasons why a state imposes tariffs.5. List and explain three basic forms of international business.6. What industries in your province are the leading exporters? Who are the leading export firms? What do you think is the impact of exports on your province‟s economy? What role does your provincial government play in promoting exports?Chapter Three Legal System of InternationalBusinessObjectives1. To offer a general survey of legal system of international business2. To provide an analysis of important international business rules such as CISG, UNIDROIT and Incoterms 20003. To introduce some important practical skills in doing international business Basic Contents!. The drafting and applicability of the CISG2. Origin and general principles of the UNIDROIT PICC3. Incoterms 2000Important and Difficult Concepts and Legal Issues1. CISG and its general principles2. UNIDROIT PICC3. Incoterms 20003. FOB and CIFI. Applicability of the CISGThe CISG applies if the following three conditions are met:(1) The contract is for the commercial sale of goods.(2) It is between parties whose places of business are in different countries (nationality orcitizenship of individuals is not a determining factor).(3) The places of business are located in countries that have ratified the convention.The following types of sales have been specifically excluded from the convention:(1) Consumer goods sold for personal, family, or household use(2) Goods bought at auction(3) Stocks, securities, negotiable instruments, or money(4) Ships, vessels, or aircraft(5) Electricity(6) Assembly contracts for the supply of goods to be manufactured or produced wherein thebuyer provides a “substantial part of the materials necessary for such manufacture or production”(7) Contracts that are in “preponderant part” for the supply of labor or other services(8) Liability of the seller for death or personal injury caused by the goods(9) Contracts where the parties specifically agree to “opt out” of the convention or wherethey choose to be bound by some other law.II. General PrinciplesCISG calls for courts to look to the general principles on which the Convention is based when interpreting its provisions, but it gives no list of general principles. It is for the courts to divine those principles. Two that have been suggested are (a) a party to a contract has the duty to communicate information needed by the other party, and (b) parties have the obligation to mitigate damages resulting from a breach. Both concepts appear, in varying forms, throughout the Convention.Although CISG does not give a list of general principles, it does set out the mechanism for determining them. They must be derived from particular sections within the Convention, and then extended, by analogy, to the case at hand. In choosing this particular mechanism the drafters rejected the adoption of general principles derived from public or private international law. As well as from domestic law codes. This limitation on the sources that the courts may turn to in creating general principles was consciously made, and reflects the drafters‟ concern for uniformity and consistency, both in the drafting and in the evolution of the Convention.III. Origin and Preparation of UNIDROIT PICCUNIDROIT PICC is a non-legislative means of unification or harmonization of law in the area of international commerce. The great French comparativist Edouard Lambert, at the beginning of 20th century, stressed the fact that legislation was only one, and perhaps not even the most important channel to arrive at the establishment of such a supranational law. The ancient ius commune (Latin: “common law”), which had for centuries constituted a uniform legal framework in medieval Europe, notwithstanding its division into a myriad of distinct political entities each of which had its own particular statutes, is as old as the movement for unification itself.Yet, while such a common legal framework was long considered to be little more than a utopia, its realization has recently been advocated as a veritable necessity in the far from satisfactory present situation of uniform law. A first attempt in this direction may be seen in the Restatements of the Law in the United States, prepared and periodically brought up to date by academics and practitioners under the auspices of the American Law Institute. These Restatements deal with a variety of subjects, such as contract, tort, agency, restitution, conflict of laws, etc. which traditionally fall within the competence of the common law of each State. Their success is shown by the fact that there now already exists a second, or even a third, “generation”of the various Restatements.UNIDROIT‟s initiative for the elaboration of “Principles of International Commercial Contracts” goes in the same direction, but is even more ambitious since the UNIDROIT PICC are intended to be applied globally and to meet the needs of international trade relationships, including those between developed and less developed countries.6.General Principles of the UNIDROIT PICC1. Freedom of ContractOne of the most fundamental ideas underlying the UNIDROIT PICC is that of freedom of contract. This principle is expressly stated in Art. 1.1 (“Freedom of contract”) which reads: “The parties are free to enter a contract and to determine its content.” As pointed out in the Comment, “ The right of business people to decide freely to whom they will offer their goods or services and by whom they wish to be supplied, as well as the possibility for them freely to agree on the terms of individual transactions, are the cornerstones of an open, market-oriented and competitive international economic order.”2. Openness to UsagesAnother essential element of the UNIDROIT PICC is its marked openness to usages. In other words, like other legal instruments specifically dealing with international commercial transactions, in particular CISG, the UNIDROIT PICC accords usages and practices developing within the different trade sectors a central role in the determination of the rights and duties of the parties to each individual contract. The reason for this is to be found in the general objective pursued by the UNIDROIT PICC to provide a regulation sufficiently flexible to permit of its constantly adapting to the ever-changing technical and economic conditions of cross-border trade3. Favor ContractusAnother principle underlying the UNIDROIT PICC is the so called favor contractus, i.e. the aim of preserving the contract whenever possible, thus limiting the number of cases in which its existence or validity may be questioned or in which it may be terminated before time. The reason behind this is the acknowledgement that despite shortcomings which might arise in the course of the formation or performance of the contract it is normally in the interest of both parties to do all possible to keep their original bargain alive than to renounce it and to look for alternative goods or services elsewhere on the market.4. Observance of Good Faith and Fair Dealing in International TradeParagraph 1 of Art. 1.7. clearly states: “each party must act in accordance with good faith and fair dealing （诚信及公平交易）in international trade,” and this clearly indicates that under the system of the UNIDROIT PICC it is throughout the life of the contract, including the negotiation process, that the parties‟ behavior must conform to good faith and fair dealing. In this respect the UNIDROIT PICC follow an approach familiar to the generality of civil law systems, but notnecessarily to common law systems which, even where admitting good faith and fair dealing as a general principle, confine its operation basically to the performance of contracts.V. Concept and Role of Trade TermsInternational trade is, in contrast to national trade, characterized by long distance between parties, more comprehensive scope, more complex links, more risks, etc. If parties in every transaction have to allocate the rights and obligations and risks in negotiation, this must undoubtedly prove to be not only time-consuming, but also expensive. In order to save time and reduce trade costs, merchants in European countries began gradually to use trade terms as a shorthand method of expressing shipping terms as well as allocating the risk of loss. Trade terms are usually expressed in the form of abbreviated symbols, such as FOB or CIF. They permit the parties to express their agreement quickly, with little confusion, and with few language problems. If the parties use a trade tem in their contract, they must define it. If it is not defined in the contract a court would have to look to the applicable law, such as the UCC or Incoterms, for its interpretation. The most common method of defining trade terms, however, is to incorporate them into the contract by reference to some independent source or publication. The most important source for trade terms is the International Rules for the Interpretation of Trade Terms revised in 2000 (hereafter called “Incoterms2000”).VI. Contents of Incoterms 2000Incoterms 2000 include thirteen trade terms that are classified into four groups—E, F, C, and D—according to the relative responsibilities of each party and to the point at which the risk of loss passes from seller to buyer. Incoterms apply to a contract of international sale of goods only if the parties have incorporated them into their contract.The present edition of Incoterms lists the following trade terms:1. E TermsE term refers EXW term (Ex Works: works, mill, factory, mine warehouse, etc.). Under this term, the seller need only make the goods available at its factory (or mill, farm, warehouse, or other place of business) and present the buyer with an invoice for payment.2. F TermsF terms include FCA (free carrier), FAS (free alongside ship), and FOB (free on board). Generally, under F terms the buyer pays the cost of the main international carriage. The seller places the goods in the hands of a carrier named by the buyer and at a time and place named in the contract. The risk of loss passes from seller to buyer at that time. The buyer arranges the transportation and pays all freight costs, however, if it is convenient and the parties agree, the。