国际商法(英文版)Chapter 7
国际商法 第二版 英文版 姜作利 课件
III Sources of international business law
C International model law
Definition: rules and norms worked out and passed by some international organizations for the free choice by nations. Examples: 1. Model Law on International Commercial Arbitration by the United Nations Commission on International Trade Law （联合国国际贸易法委员会国际商事仲裁示 范法 UNCITRAL Model Law） 2. Principles of International Commercial Contract by the International Institute for the Unification of Private Law （国际统一私法协会国际商事合同通则, UNIDROIT PICC ）
VI International Organizations
• A. Organization Affiliated with UN
• 4. ― World Bank‖ (two institutions) 世界银行 • The International Bank for Reconstruction and Development 国际复兴开发银行（世界银行） • (loans at market terms, not high-risk loans) • International Development Association 国际发展协会 • (loans to poor countries with average per capital GNP less than $ 410 on more favorable terms, but only to government) • International Finance Corporation 国际金融公司 • ( loans to private enterprises in developing countries)
国际商法第七章
Chapter 7 – Trade in Goodspage 245The Bretton Woods SystemThe negotiators who met for the United Nations Monetary and Financial Conference in Bretton Woods in July 1944 were determined to create a system that would promote trade liberalization and multilateral economic cooperation. The Bretton Woods System was meant to be an integrated undertaking by the international community to establish a multilateral institutional framework of rules and obligations.As originally planned the Bretton Woods system was to have had 3 major international organizations: the international Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRD or World Bank), and the ill-fated International TradeOrganization (ITO). Together they were to collectively administer and harmonize world trade. The IMF was to ensure monetary stability and facilitate currency exchange. The World Bank was to assist war-ravaged and developing countries reconstruct or upgrade their economies. The ITO was to administer管理a comprehensive code综合法典governing the conduct of world trade. This code was to be broad and encompassing, dealing with a wide range of issues, including trade and trade barriers, labor and employment, economic development, economic development, restrictive business practices and intergovernmental commodity.In the year 2011, most of what was planned for the ITO has come to be through General Agreement on Tariffs and Trade, through multilateral trade negotiations, called rounds. The current “round” begun at Doha,Qatar (the Doha Round) has dissolved into anumber of long-standing disputes, primarilyover U.S. And EU subsidies for their own agricultural industries. The IMF andWorld Bank are still doing their business oftaking U.S. Money, loaning it out and then “forgiving major balances”. The U.S. Isgiving money away to promote peace andstability, but that will end if the U.S. Does not at least in part, return to the ideology of “the business of America is business” -Calvin Coolidge, 1927. The only way the IMF and World Bank survive is through U.S.Financial support. As U.S. National debtgrows so much faster than GDP, ability of the U.S. To also support IMF and World bank diminishes. The change of world order is already apparent – the PRC sent a delegation to Spain and Portugal in January 2011 to buy their bonds and prevent their collapse.Page 248The Uruguay RoundThe Uruguay Round (1986-1994) brought about a major change in the institutional structure of the GA TT, replacing the informal GATT institution with a new institution: the World Trade Organization, which officially came into existence on January 1, 1995.The second part of the Final Act is made up of the WTO Agreement and its annexes, of which there are 2 kinds: multilateral trade agreements and plurilateral trade agreements.Multilateral Trade Agreements多边贸易协定are “integral parts不可分割的部分” of the WTO Agreement and are “binding on all members” of the WTO. They consistof (1) 14 agreements on trade in goods, (2) the General Agreement on t Trade in Services T型贸易总协定(GATS), (3) theAgreement on Trade-Related Aspects of Intellectual Property Rights知识产权(TRIPS), (4) the Understanding on Rules and Procedures Governing the Settlement of Disputes争论(DSU) and (5) the Trade Policy review Mechanism 贸易政策审核制度(TRPM). The Plurilateral Trade Agreements are also part of the WTO Agreement, but they are only binding on those member states that have accepted them. They do not create either obligations or rights for members that have not accepted them.Page 250The World Trade OrganizationThe World Trade Organization (WTO) is best described as an umbrella organization under which the agreements that came out of the Uruguay Round of MTNs are gathered. As the WTO Agreement states, the WTO is meant to provide the “commoninstitutional framework” for the implementation of those agreements. The WTO thus serves 4 basic functions:1.To implement实施, administer and carry out he WTO Agreement and its annexes附加物2.To act as a forum for ongoing multilateral trade negotiations3.To serve as a tribunal法庭for resolving disputes4.To review the trade policies and practices of member statespage 251The WTO AgreementThe WTO Agreement established a legal framework to bring together the various trade pacts that were negotiated underGA TT 1947. The WTO was created as a unified administrative organ to oversee all of the Uruguay Round Agreements. This unification solves 2 problems that hamperedthe old GA TT. First, because GA TT 1947 dealt with trade in goods, there was no obvious mechanism for handling agreements relating to trade in services and the protection of intellectual property rights. The WTO Agreement, which separates the institutional concepts from the substantive rules, eliminates this difficulty. Second, because the ITO never came into existence, the old GA TT had no formal institutional structure. The establishment of the WTO rectifies this.Page 252Membership of the WTOTonga joined the WTO in July 2007 bringing its total membership to 151. The members of the WTO comprise both states and customs territories that conduct their own trade policies. States that were members of GA TT 1947 on January 1, 1995, along with the EU were eligible to become“original members” of the WTO. These members agreed to adhere to all the Uruguay Round multilateral agreements and to submit their Schedules of Concessions and Commitments concerning industrial and agricultural goods and their Schedules of Specific Commitments concerning services within a year after joining. Original members, however, that are recognized by the United Nations as being among the least developed states, were required to undertake only commitments and concessions consistent with their individual development, financial and trade needs within their administrative and institutional capabilities. They also were given an additional year in which to submit their schedules.Page 253 Exhibit 7-3Decision Making within the WTOThe WTO Agreement says that the WTO will “continue the practice of decision making by consensus followed under theGA TT 1947. Consensus is the making of a decision by general agreement and in the absence of any voiced objection. The WTO, however, can make a decision by a vote if a consensus cannot be reached. At meetings of the Ministerial Conference and the General Council, each WTO member state has one vote, with the EU having a number of votes equal to (but not more than) the number of its member states that are members of the WTO. Should a vote be required, the decision will be made by a simple majority in most cases.Page 256Waivers弃权GA TT 1947 was sometimes characterized as a system of loopholes 漏洞held togetherby waivers. The WTO agreements dramatically戏剧性changed this. First, with one exception, the waivers of obligations in existence under GA TT 1947 terminated终止no later than 2 years after the inauguration开始of the WTO. Second, the procedures for obtaining new or continuing waivers are more rigorous. Thus, an applying member state must1.describe the measures that it proposes to take2.specify the policy objectives it seeks to obtain3.explain why it cannot achieve those objectives without violating its obligations under GA TT 1994Third, waivers must be approved by the Ministerial Conference, which has up to90 days to do so by consensus. If a consensus cannot be reached in that period, waivers must then be approved by a three-quarters majority of the members. Waivers are reviewed annually thereafter. Fourth, any dispute that arises in connection with a waiver, whether or not the waiver is being carried out in conformity with its terms and conditions, can be referred for settlement under the Dispute Settlement Understanding. Page 257GA TT 1994 is made up of the same set of rules as GA TT 1947. The changes in this text of GA TT 1994 amounts mainly to changes in terminology.Direct EffectSome of the provisions of GA TT 1994 are directly effective. That is, they may be relied upon by private person (including both natural and juridical persons) to challenge the actions of a member state. In particular, those provisions that prohibit a state from taking action contrary to theGeneral Agreement are directly effective. Those that require a contracting state to take some positive action may only be challenged by individual if the state adopts implementing legislation authorizing such a challenge.Case 7-1 Finance ministry v. Manifattura Lane Marzotto, SPAPlaintiff: Manifattura Lane Marzotto, SpA, an Italian manufacturer of woolen goods.Complaint:that the “administrative service duty” applied to wool imported from Australia violated GA TT.Defendant: Italian Finance Ministry. Proceedings: Italy had fully integrated into its legal system the firs part of the General Agreement – including the provisions concerning customs duties – but the Finance Ministry continued to charge duties to see if, in Italy, this provisionwould merely be treated as a simple declaration of principle and deprived of any direct legal effect within the country. The trial court by dismissing the case indicated that Italian Government could continue to impose duties, even though they had signed a binding agreement not to, so the plaintiff appealed.Court Decision: The court decided that the GA TT provision that prohibits a GA TT member from increasing duties on imported products above the level established when the member nation acceded to the agreement was directly effective. Thus it was part of Italian law and an individual citizen or company could bring a lawsuit to enforce this provision.Point of Law:General Agreement provision which is essentially a prohibition against increasing duties above those in effect on the date a member state accedes tothe General Agreement. Accordingly this prohibition is complete and directly effective not only between the member states but also between the member states and their nationals.Was Justice Served:YES – what is the point of Italy signing a General Agreement if they have no intention of following it. A failure to enact should be grounds for immediate dismissal from WTO.Page 259NondiscriminationThe must fundamental principle of GA TT is that international trade should be conducted without discrimination. This principle is given concrete form in the most-favored-nation (MFN) and multinational treatment rulesThe MFN RuleAny advantage, favor, privilege or immunity granted by any member to anyproduct originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other members.The MFN rule does NOT apply to1.The use of measures to counter dumping and subsidization津贴2.The creation of customs unions关税同盟and free trade areas3.Restrictions限制that protect public health, safety, welfare and national security国家安全page 260Case7-2 Japan – Taxes on Alcoholic BeveragesPlaintiff: Canada, the EU and the United StatesInjury:Japan imposed lower taxes on shochu, a locally produced alcoholic beverage, than it did on imported alcoholicbeverages, including vodka, Defendant:government of Japan Proceedings: The Japanese government maintained that “substantial noticeable differences in physical characteristics exist between the rest of the alcoholic beverages at dispute and sochu that would disqualify liqueurs, gin and genever; the use of ingredients wold disqualify rum, lastly, appearance (arising from the manufacturing processes) would disqualify whiskey and brandy.Court decision: The Panel noted that a difference in the physical characteristic of alcoholic strength of 2 products did NOT preclude a finding of likeness especially since alcoholic beverages are often drunk in diluted form. Since they are like products and imported vodka was taxed at a higher rate, this practice constituted a violation of Japan's obligations under GA T-WT rules.Point of Law: GATT Article III:2 The products of the territory of any contracting party缔约国imported into the territory of any other contracting party shall not be subject受制于, directly or indirectly, to internal taxes or other internal charges of any kind in excess of 超过those applied, directly or indirectly, to like domestic products. Moreover, no contracting party shall otherwise apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the principles set forth in paragraph 1 of Article II - “The contracting parties recognize that internal taxes and other internal charges, and laws, regulation and requirements affecting the internal sale, offering for sale, purchase transportation, distribution or use of products in specified amounts or proportions, should not be applied toimported or domestic products so as to afford protection to domestic production. Was Justice Served:Yes – since the only technical difference between vodka and sochu is the media used in filtration, it was clear the intent of the higher tax was blatant protectionism for local alcohol industry. Japan had signed agreements they would NOT tax imports higher to protect domestic industries.Page 263Protection Only Through TariffsThe second major principle of the GA TT is that each member state may protect its domestic industries only through the use of tariffs. Quota and other quantitative restrictions that block the function of the price mechanism are forbidden by Article XI of GA T.Additionally, to ensure that internal taxes are not disguised as tariffs, Article IIrequires that tariffs be collected “at the time or point of importation.” The main exceptions include:1.The imposition of temporary export prohibitions or restrictions to prevent or relieve critical shortages of foodstuffs or other essential products.2.The use of import and export restriction related to the application of standards or regulations for classifying, grading, or marking commodities3.The use of quantitative restrictions on imports of agricultural and fisheries products to stabilize national agricultural markets.4.The use of quantitative restrictions to safeguard a state's balance of payments5.The use of quantitative restrictions by a developing state to further its economic development.Page 266Escape ClauseArticle XIX of GA TT 1994 – entitled “Emergency Action on Imports of Particular Products” is an escape clause or safety valve that allows a member state to avoid, temporarily, its GA TT obligations when there is a surge in the number of imports coming from other member states. The injured state can impose emergency restrictive trade measures – known as safeguards – if it can demonstrate that there is an actual or seriously threatened injury to one of its domestic industries. ExceptionsThe general exceptions免责条款exclude 排除a member state from complying with its GA TT obligation义务so long as this is not done as “a means of arbitrary任意的or unjustifiable discrimination” or as a “disguised假装的restriction on international trade”. They allow a state totake measures contrary to GA TT that1.are necessary to protect public morals2.are necessary to protect human, animal or plant life or health3.relate to the importation or exportation of gold or silver4.are necessary to secure compliance with laws or regulations that are not inconsistent with GA TT5.relate to the products of prison labor6.protect national treasures of artistic, historic or archaeological value7.relate to the conservation of exhaustible natural resource8.are undertaken in accordance with an intergovernmental commodity agreement 9.involve restrictions on exports of domestic materials needed by a domestic processing industry during periods when the domestic price of those materials is held below world prices as a part of agovernmental stabilization plan or are essential to acquiring products in short supplypage 267Case 7-3 United States – Import Prohibition of Certain Shrimp and Shrimp ProductsPlaintiff: WTO panelWhy: U.S. Rules prohibiting shrimp imports harvested with commercial fishing technology which may adversely affect sea turtles.Defendant: U.S. Government Proceedings: The United States issued regulations in 1987 pursuant to the Endangered Species Act of 1973 requiring all United States shrimp trawl vessels to use a pproved Turtle Excluder Devices (“TEDs”) or tow-time restrictions in specified areas where there was a significant mortality of sea turtles in shrimp harvesting. Theseregulations, which became fully effective in 1990, were modified so as to require the use of approve TEDS at all times and in all areas where there is a likelihood that shrimp trawling will interacted with sea turtles, with certain limited exceptions.Court Decision: The panel first concluded that the sea turtles involved here did constitut e “exhaustible national resources” under Article XX(g) of theGA TT, and thus the exception might apply. However, the WTO panel held that the U.X. Rules were discriminatory under the chapeau (heading) of Article XX of the treaty in that they were applied in a rigid manner, without regard to any measures taken to protect turtles by other nations. In addition, the panel found that the U.S. Procedure for determining whether other nations met the U.S. Standards constituted arbitrary discrimination, in that the decisionwas made without any opportunity for the other nations to present evidence, or to have a hearing or consultation, and no review or appeal was allowed.Points of Law: The Article II (g) exception to the rule出轨边缘that WTO members must treat imported good the same way as domestic goods and not subject them to additional requirements. Second, were sea turtles indeed an Article II(g) exception 0 and “exhaustible 可耗尽natural resource” Finally, Article XI of GATT 1994, the obligations义务of the U.S. To determine whether other nations met the U.S. Standards,, and if not to provide a hearing consultation and ultimately appeal听证会协商，并最终上诉。
国际商法international business law
Introduction to International Business Law
2015-3-11 国际商法英语 1
International business law
---norms and customary practices regulating international business transactions and all kinds of relationships between business organizations across national boundaries--- the legal relationships of international business
8/20Biblioteka Public International Law
国际法又称国际公法 适用主权国家之间以及其他具有国际人格的实 体之间的法律规则的总体。国际法从根本上 说，是受国际经济关系制约的。在这个意义 上，国际法是上层建筑superstructure（指 建立在一定经济基础之上的社会意识形态以 及相应的政治法律制度、组织和设施的总和 ）国际经济是基础。国际法的产生和发展是 和国家之间的经济关系分不开的。在现代， 由于国家之间的经济往来越来越频繁，经济 关系越来越复杂，国际经济对国际法的影响 也越来越明显。
UCP 500: the Uniform Customs and Practice for Documentary Credits《跟单信用证统一规则》
2015-3-11 国际商法英语 15
International Business Cases
---cases made by international court, and business awards(判决) by some international business arbitration authorities; ---leading cases made by some municipal国内的courts when dealing with foreign-related disputes.
国际商法 全套课件(英文)607页PPT
• On the one hand, after the Second World War the rapid development of the world economy made the contact of each country more frequently. This made it necessary that a set of uniform international law regulating the relationship of international economy and trade should be made.
international commercial law, refers to the body of legal rules and norms that regulates international trade and international business organizations. • 2. The meaning of “International” • A commercial transaction is international if: • (1) the parties have their places of business in different States or Countries;
• 9.rule of law: 法治。
• 10. legal doctrines: 法律理论。
• 11.legal validity: 法律效力。
I. Definition of International Business Law
《国际商法(双语版)》读书笔记模板
Chapter 4 Overview of International Sale of Goods
Chapter 6 Legal Issues on
International Sales Contracts
Chapter 7 Internationa
l Transportati
on of Goods
国际商法（双语版）
读书笔记模板
01 思维导图
03 读书笔记 05 精彩摘录
目录
02 内容摘要 04 目录分析 06 作者介绍
思维导图
本书关键字分析商法
制度
国际
国际
内容摘要
内容摘要
本书涵盖四部分内容：国际商务法律环境、国际货物买卖法、国际知识产权保护法律制度和国际商事争议解 决。为培养学生直接用英语思考、分析和解决法律问题的能力，本书未采用一般双语教材中英文对照的方式写作， 而是每章的导言和小结用中文写作，正文及课后练习用英文写作，对于正文中重要的法律概念、规则和制度则采 用脚注的方式，以中文给出较为精炼的介绍。
and Legal Systems
Chapter 1 International Business and the Risks
国际商法unit 7
•
•
Contract law合同法
• • • •
• •
Origin: Latin :pacta sunt servanda Literally: ―pacts must be kept‖ Translation: ―Agreements to be kept‖
Common law: such jurisdictions usually retain a high degree of freedom of contract, with parties largely at liberty to set their own terms. Civil law: typically applies certain overarching principles(总体原则) to disputes arising out of contract, as in the French Civil Code.
Case: serious intention
• Facts: Frank became angry because his brand-new €25,000 car broke down on the highway, leaving him stranded. Without thinking, Frank said out loudly: ― I‘d sell this car to the first person who offered me €1.00 for it.‖ Issue: Is this an offer made by Frank? Can a bystander obtain the car by giving Frank €1.00?
• • •
国际商法英文版 ppt课件
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. China’s refusal to accept the doctrine of restrictive sovereign immunity 中国拒绝接受国家主权有限豁免原则案
© 2009 Pearson Education Inc. publishing as Prentice Hall PP1T-课2 件
International Law
Historically, dealt with the rules and norms regulating the relationships between states (countries)
International Business Law Textbook
Ray August, Don Mayer, Michael Bixby. “International Business Law
——Text, Cases and Readings” 6th Edition Pearson
© 2009 Pearson Education Inc publishing as Prentice Hall PPT课件
7. L’Oreal 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
国际商法
III Sources of international business law 国际商业法的渊源 A. National law 国内法 The most important source. Take China as an example: The Contract Law Trademark Law 商标法 Chinese-Foreign joint Venture (Cooperative) Law, 中外合资企业(合作)法律 The Civil Procedure Law民事诉讼法 Arbitration Law仲裁法律
III Sources of international business law
C .International model law No certain legal validity Influence: 1. model for national and international legislature;国家与国际立法机构模型 2. a means of interpreting and supplementing existing uniform law; 3. rules governing the contract (situations?); 4. a substitute for the domestic law
III Government Controls over Trade
• B. Nontariff Barriers to Trade 非关税壁垒
• 1. definition: all barriers to import and export other than tariffs. Even greater and more insidious barrier than tariff. • 2. significance: to protect national economy, social and political interest. • 3.Types: technical barriers, environment barriers. often disguised in the form of government rules or regulations.
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International Carriage of Goods
Main contents
Carriage of Goods by Sea Bills of Lading Charterparties Carriage of Goods by Air The Warsaw Convention 1929 The Montreal Convention 1999 Carriage of Goods by Road and Rail
Types of Bills of Lading
Order and straight bills of lading Clean and unclean (foul or dirty) bills of
lading Onboard bills of lading and received-for-
shipment bills of lading Multimodal bills of lading Electronic bills of lading Back-dated B/L and Advanced B/L
International conventions governing bills of lading
In case of misdelivery, the holder of an original bill of lading may bring an action to reclaim the goods from the receiver of the goods.
The holder of an original bill of lading may also bring an action against the carrier for misdelivery of goods, because the carrier violated the terms of the contract of carriage.
I. Carriage of Goods by Sea
Warm-up Questions
Modes of transportation A typical process of international carriage
of goods by sea Two types contract of carriage : Bill of
the Hague Rules 1924
International Convention for the Unification of Certain Rules of Law relating to Bills of Lading an international effort to achieve uniformity of B/Ls intended to reduce the uncertainties concerning the responsibilities and liabilities of ocean carriers define the liability of ocean carriers for damage or loss to goods on the seas. universally accepted.
evidence of a contract of carriage between the shipper and the carrier.
the document of title to the goods described in it.
Carrier’s Misdelivery
The carrier may deliver the good only to the holder of an original bill of lading. Failure to do so constitutes carrier’s misdelivery.
lading Carrier’s duties and immunities under bills of
lading Other questions
Three Functions of for the goods from the carrier.
the Visby Amendments 1968
the Hague-Visby Rules amendments to the original 1924 Hague Rules effective in the UK, Canada, most Western European countries, Japan, HK, Singapore, etc. raise the per package limitation of carriers to an amount based on special drawing rights of the IMF, or approximately $1000. make the carrier liable for all losses resulting from his recklessness in the operation and navigation of the ship.
lading and charterparty
1. Bills of lading
1. Fundamentals of bills of lading Definition Three functions Types of bills of lading International conventions governing bills of
Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea) ---adopted 2008, to be opened for signature on 23 September 2009 in Rotterdam, the Netherlands.
International Conventions the Hague Rules 1924 the Hague-Visby Rules 1968 (Visby
Amendments) the Hamburg Rules 1978 The Rotterdam Rules (The United Nations