国际商法第一章introduction_to_international_and_comparative_law
第一章国际商法导论
Contents of the contemporary
international business law
• Traditional material trade transaction law • immaterial transactions of technology,
capital ,service and so on. e.g. company law
Conventions are the legally binding agreements between states sponsored by international organizations.
公约是指针对某一些重大问题，有国际组织发起的，多个国家 参与国际会议二缔结的多变条约，它的主要内容多为造法性的。
• 2 the contents of international business law
—— mainly about the international business transactions, as well as the relationships between multinational corporations.
国际商法
International Business Law
Chapter One: Introduction to International Business Law
Three Tasks
• Task one: what is International business law?
• Task two: what are the sources of International business law?
International business law----- refers to total norms and customary practices regulating International business transactions and all kinds of relationships between business organizations across national boundaries. • 国际商法是调整国际商事交易（commercial transaction）与商事组织（business organization） 各种关系的法律规范（legal norm）的总和。
国际商法概念
国际商法概念International business law is the body 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间的关系.Chapter one 第一章Introduction to International Business Law (国际商法总论)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 LawTrademark 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B. International treaties and conventions国际条约和惯例Differences between treaties and convention:The most important international conventions:The United nations Convention on Contract for the International Sales of Goods （CISG，联合国国际货物销售合同公约）Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (the Hague rules，海牙规则)The Paris Convention for the Protection of Industrial Property (Paris Convention，巴黎公约 )Understanding on the Rules and Procedures Governing the Settlement of Disputes (DSU，争端解决规则与程序谅解）C .International model law国际通则Definition定义: rules and norms worked out and passed by some international organizations for the free choice by nations.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 lawD. International trade customs and usages国际贸易惯例Definition(定义): the general rules and practices in international trade activities that have become generally adopted through unvarying habit and common use. (used to be oral but later compiled into written rules)Influence: not law, but plays an important role.1. as binding rules by agreed upon by the parties to the contract.2. as interpreting or filling the gaps in the contract.(only for usages the parties agreed to be bound or that derive from their past dealings, or the usages the party knew or ought to have known and that are regularly observed in the industry or trade involved.Chapter Two 第二章Forms of international Business 国际商事方式I Some International Trade TheoriesB. Absolute Advantage 绝对优势Adam Smith 亚当.斯密绝对优势理论（Theory of Absolute Advantage），又称绝对成本说（Theory of Absolute Cost）、地域分工说（Theory of Territorial Division of Labor）。
国际商法导论An_Introduction_to_International_Commercial_Law
International Business LawAn Introduction to International Business Law国际商法导论I.The Concept and Sources of International Business Law国际商法的概念和渊源I.1 Concept of the International Business Law: What is International Business Law? 国际商法的概念: 什么是国际商法？International Business Law is the sum total of laws of regulating the various relationships between international business transaction and the business organizations. 国际商法是调整国际商事交易和商业组织的各种关系的法律规范的总和。
The regulating objects and ranges of international business law are broader than that of the traditional business law. 国际商法的调整对象和范围比传统的商法更为广泛。
The traditional business law mainly includes the contents of the business law of act, the company law(UK)/the law of corporation(USA), the law of bills, the law of maritime commerce, the law of insurance, etc.. 传统的商法主要包括商行为法、公司法、票据法、海商法、保险法等内容。
国际商法1单元演示文稿
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II. Sources of International Business Law
Sources of International Business Law are what international tribunals rely on in determining the content of international business law. The main sources include international treaties and conventions, international customs and usages, national business law.
Transactions Contents of International Business Law
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I. Definition of International Business Law
1. Defining International Business Law International business law refers to the
Conventions are binding agreements between states sponsored by international organizations.
国际商法Chapter One
Chapter OneIntroduction to International Business Law1. What is the “International Business Law”?2. What is the basic source of international business law?3. What is the meaning of CISG in Chinese?4. What is the meaning of INCOTERMS 2000 in Chinese?5. What is the meaning of the Hague Rules in Chinese?6. International treaties and conventions means the general rules and practices in international trade activities that have become generally adopted through unvarying habit and common use.（）7. International business custom can be differentiated three concepts. What are they?8. All international trade custom does not have any legal binding effect until the parties of an international business transaction choose it to apply to their contract, and the court and arbitration institution may decide or enforce accordingly. （）9. What is the meaning of International Chamber of Commerce？10. What is the meaning of UCP 600?11. What is the common-law system or English Law system or Anglo-American law system?12. What is the civil-law system or Continental law system or Romano-Germanic law system?14. Common-law systems are based largely on case law, that is, on court decision. ( )15. Louisiana and every Canadian province except Quebec adopted a common-law system. ( )16. What is the main difference between the civil law system and the common law system?17. Common-law systems are based mainly on statutes, legislative acts. ( )。
国际商法第一章
International Licensing Agreements
• International licensing agreements: contracts by which the holder of intellectual property will grant certain rights in that property to a foreign firm to use for a period of time under certain conditions in return for a licensing fee • How does this work as a business model? • Technology transfer: exchange of technology and know how between firms in different countries through licensing
– Copyrights: legal rights to an artistic or written work – Trademarks: the legal right to use a name or symbol; that identifies a firm or its product – Patents: governmental grants to inventors assuring them of the legal right to produce, use and sell their invention for a period of years
9
Trade: exporting
• Direct: often use foreign sales agents • Indirect: use export trading companies
国际商法(英语专业)
International Business Law国际商法课程教案YUAN TIANForeign Language Teaching and Research DepartmentHeilongjiang UniversityChapter OneIntroduction to International Business LawI. Teaching ObjectivesOn completion of this Chapter, students should be able to:1.Get to know the objectives and feature of this course;2.Get to know the basic relationship among such elements as:➢International;➢Business;➢Law3.Grasp the basic requirements of legal English learning.4.Get to know the features of international law;5.Get to know the sources of international law.II. The Points to Be Highlighted1. The relationship among the key elements as “international”, “business” and “law”2. The understanding of the nature of lawIII. T eaching Approaches and FacilitiesApproaches: 1. Pair/Group work 2. Discussion 3 Task-based approach4. Communicative approach5. Questions and answers……Facilities: PPT demonstration in the media classroom; on-line researchIV. Background Information1. Economic globalization, in recent years, has been one of the hottest focuses in the world. Although it is extremely difficult to define economic globalization, many economists and business experts believe that no business can be purely domestic, and the realities of the modern world make all business international.2. The causes of these developments are numerous:(1) Incredible advances in efficiency of communication;(2) Extraordinary reductions in transport costs;(3) Growing prevalence of instant tele-and-cyber-transactions;(4) Treaty and other norms causing reduction of governmental barriers to trade;(5) The blessing of relative peace in the world.V. Teaching Procedures and Contents1. Introduce the outline of this Chapter:This Chapter will discuss:❖WHAT IS INTERNATIONAL LAW?❖SOURCES OF INTERNATIONAL LAW✧International conventions;✧International custom;✧General principles of law;✧Judicial decisions;✧Teachings of publicists.❖THE SCOPE OF INTERNATIONAL LAW❖COMPARISON OF MUNICIPAL LEGAL SYSTEMS✧Romano-Germanic Civil Law;✧Anglo-American Common Law;✧Islamic Law2. WHAT IS INTERNATIONAL LA W?❖Defined: The body of rules and norms that regulates activities carried on outside the legal boundaries of nationsIt regulates three international relationships:1) Those between states and states.2) Those between states and persons.3) Those between persons and persons.❖The differences between public international law and private international law❖Is International Law Really Law?1) Because nations and individuals regard international law as law, it is law.2) Comity: The practice, or courtesy, between nations of treating each other with goodwill and civility.3) Comity is not law because countries do not regard it as something they are required to respect.3. SOURCES OF INTERNATIONAL LAW❖Defined: Those things which international tribunals rely upon in determining the content of international law; ❖Treaties and Conventions:1) Definitions:✧Treaties are agreements between one or more nations.✧Conventions are agreements sponsored by international organizations.2) Reasons for binding effect:✧Shared sense of commitment✧Because one country fears that if it does not respect its promises, other countries will not respect theirpromises3) Rules governing treaties:✧Traditionally customary;✧Now codified in the Vienna Convention on the Law of Treaties (in force since 1980).❖Custom1) Defined: Rules that have been around for a long time or which are generally accepted.Caveat: Customary rules are constantly changing.2) Establishing the existence of a customary law: Must show two elements —one behavioral and one psychological:✧Usus(Latin for: usage): Is the consistent and recurring action (or lack of action if the custom is one ofnoninvolvement) by states.✧Opinio juris et necessitatis (Latin for: Of the opinion that the rule is proper and required): The custom mustbe regarded by states observing it as one that they must obligatorily follow.3) Exceptions to the application of custom:✧Persistent objector: A state that persistently objects to a practice during its formative stages will neverbecome a party to it.✧A state allowed by the international community to deviate from a customary practice.❖General PrinciplesGeneral principles of law are common to both (or all) the state parties to a dispute.4. COMPARISONS OF MUNICIPAL LEGAL SYSTEMS❖Legal “families”1) Romano-Germanic Civil Law.2) Anglo-American Common Law.3) Islamic Law.❖The Romano-Germanic Civil Law SystemThe Oldest and most influential of the legal familiesA. French Civil Code1) French Civil Code (Code Napoleon) of 1804✧The right to possess private property;✧The freedom to contract;✧The autonomy of the patriarchal family.2) Differences from the German Code:✧Written in a short period of time.✧Its style and form are one that is straightforward, easy to read, and understandable to everyone.3) Differences from the English common law: It contains flexible general rules rather than detailed provisions.B. German Civil Code of 1896.1)Characteristics of the German Code:✧Incredibly precise and technical.✧Special terminology is used.2) Differences from the French Code: It is meant exclusively for the use of trained experts (not lay readers).C. Countries with Civil Law systems distinguish between the civil law and public Law.1) Public law evolved separately from the movement for codification of civil or private law.✧Public law is constitutional and administrative law.✧Public law is treated in a variety of ways in the civil law countries.❖The Anglo-American Common Law System1) Historical origins:In 1066, the Normans conquered England and William the Conqueror began to centralize the governmental administration of his new kingdom.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.2) The “common law” must be distinguished from the law which evolved out of:✧Equity: A principle of justice de veloped by the king’s chaplain, or chancellor, to provide parties with aremedy when none was available in the king’s courts.✧Admiralty (the laws governing sailors) and other specialized jurisdictions.❖The Islamic Law System——Known as Shari’a.1) Sources in the order of their importance:✧The Koran.✧The Sunnah or decisions and sayings of the Prophet Muhammad.✧The writings of Islamic scholars who derived rules by analogy from the principles established in theKoran and the Sunnah.✧The consensus of the legal community.2) Note that the Shari’a is primarily a moral code.✧It is principally concerned with ethics.✧In this respect, it contains many principles in common with the civil law and the common law.✧It is much less concerned with promoting commerce and international relations than the secular legalsystems.VI. Assignments1. Translation Exercises:Article 38(1) of the Statute of the International Court of Justice lists the sources that the Court is permitted touse.The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:(a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;(b) International custom, as evidence of a general practice accepted as law;(c) The general principles of law recognized by civilized nations;(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.2. Case study—The Lotus in 1927A collision occurred on the high seas between a French steamer and a Turkish collier in which some Turkish crew members and passengers lost their lives. When the French ship docked in a Turkish port, the Turkish government began criminal proceedings against the French officers on watch at the time of the collision. The French appealed to the permanent Courts of International Justice arguing that Turkey had violated international law, because, France said, only the flag state has jurisdiction over criminal incidents on the high seas.The PCIJ said that the few cases France cited for this proposition “merely show that states had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstentions were based on their being conscious of a duty to abstain would it be possible to speak of an international custom.”Conclusion: Turkey was allowed to continue with its criminal prosecution.VII. Reference MaterialInternational business law (Text, Cases, and Readings) Ray AugustInternational Business Law and Its Environment by Richard Schaffer, Beverley EarleInternational Business Law: A Transactional Approach by Larry DiMatteo and Lucien J. DhoogeChapter TwoThe Multinational EnterpriseI. Teaching ObjectivesOn completion of this Chapter, students should be able to:1.know the basic forms of International business;2.better understand the structures of multinational enterprises.3.grasp the basic attributes of a multinational organization;4.learn to differentiate national multinational corporation from international multinational corporation;5.get familiar with basic international regulations and home state regulations of multinational enterprises6.get familiar with basic international regulations;7.grasp the host state regulations of multinational enterprises.II. The Points to Be Highlighted1. The difference between the national Multinational Corporation and the international Multinational Corporation.2. The basic attributes of a multinational organization.III. T eaching Approaches and FacilitiesApproaches: 1. Pair/Group work 2. Discussion 3 Task-based approach4. Communicative approach5. Questions and answers……Facilities: PPT demonstration in the media classroom; on-line researchIV. Background InformationPre-lecture illustrationGet familiar with the outline of this Chapter:❖THE BUSINESS FORM❖THE MULTINATIONAL ORGANIZATION❖INTERNATIONAL REGULATION OF MULTINATIONAL ENTERPRISES❖HOME STA TE REGULATION OF MULTINATIONAL ENTERPRISES❖HOST STATE REGULATION OF MULTINATIONAL ENTERPRISESV. Teaching Procedures and ContentsSection 1 THE BUSINESS FORM1. Multinational Nature●Depending on place of creation:Home or parent organizations—located within a single state;Multiple parents located in multiple states.● A matter of municipal law2. Business Forms in Civil Law States1) Company: An association of persons or of capital organized for the purpose of carrying on a commercial, industrial, or similar enterprise.2) 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.✧Limited partnership: A company of two or more persons, at least one of whom has unlimited personalliability for the debts of the business and at least one other who is an investor having limited liability.✧Silent partnership: A secret relationship between two or more persons, one of whom carries on abusiness in his name alone without revealing the participation of the other who has limited personal liability.✧Partnership limited by shares: A company of one or more general partners who have unlimited personalliability for the debts of the company and limited participation by investors in the form of shares. The company is taxed as a corporation.3) Corporation: A company of capital whose owners have limited personal liability.✧Stock corporation: A corporation that can raise money in the public marketplace through the sale offreely transferable shares. Its financial statements have to be disclosed to the public.✧Limited liability company: A corporation owned by members that does not issue negotiable sharecertificates and is subject to minimal public disclosure laws.3. Business Forms in Common Law States1) Company: An association of persons organized for the purpose of carrying on a commercial, industrial, or similar enterprise.2) Partnership: An association of two or more persons who co-own and manage a business for profit and who are each liable to the full extent of their personal assets for its debts.✧Limited partnership: A partnership consisting of one or more general partners who manage the businessand who are each liable to the full extent of their personal assets for its debts and one or more limited partners whose liability is limited to the funds they invest.✧Secret partnership: A partnership in which the participation of one or more persons as partners is notdisclosed to the public by any of the partners. All of the partners have unlimited personal liability.3) Joint stock company: An unincorporated association of persons whose ownership interests are represented by transferable shares. The shareholders have unlimited personal liability.4) Business trust: A business arrangement in which the owners of a property, known as beneficiaries, transfer legal title to that property to a trustee who then manages it for them.✧The beneficiaries hold transferable trust certificates entitling them to the income generated by theproperty and a residual equitable share at the time the trust is terminated.✧The trustee has unlimited personal liability while the beneficiaries have limited personal liability.5) Corporation: A separate juridical entity owned by shareholders who may have limited, unlimited, or no liability.✧Public corporation: A corporation that can raise money in the public marketplace through the sale offreely transferable shares. Its financial statements have to be disclosed to the public.✧Private corporation: A corporation that may not ask the public to subscribe to its shares, bonds, or othersecurities and which is subject to less stringent public disclosure laws than a public corporation.✧Limited liability company: An unincorporated business association.4. The Importance of the Separate Legal Identity of Companies1) Juridical entities (such as companies) have legal identities separate from that of their owners.2) Significance:✧ The liability of the owners is limited to their investment in the company.✧ The owners are neither managers nor agents nor representatives of the company.✧ The rights and benefits accruing to the company belong to the company and not its owners.✧ The property rights of a company can only be claimed by that company.Section 2 THE MULTINATIONAL ORGANIZATION1. Parent Company1) The Non-multinational.✧ Defined: A domestic firm functioning in the international marketplace through a foreign agent.✧ Note: Neither the principal nor the agent are truly multinational enterprises because neither operatesoutside of its home state.2) The National Multinational✧ Defined: A firm in one country — the “parent” — that operates in other countries through branches andsubsidiaries.3) The International Multinational✧ Two or more parent companies located in different states operate through jointly owned subsidiaries inseveral states.✧ Public Trans-nationals.✧ Defined: A government-controlled multinational enterprise created by treaty between two or morestates.2. The Subordinate Structure1) Subordinates subject to direct control of the parent:2) Representative office: A foreign contact point where interested parties can obtain information about a particular firm.✧ It does not do any business on its own.3) Agent: An individual who is employed as an independent representative of a firm.✧Agents are subject to the supervision of the parent firm (or principal).✧Their authority is limited to what the parent delegates to them.4) Branch: A larger unit of the parent company which involves not only the placement of individuals in a particular locale, but also the establishment of a facility, such as an assembly plant, mining operation, or service office.✧The authority of branch personnel is limited to what the parent has delegated.5) Disadvantages of these subordinates:✧The parent has to assume all of the risk of investing abroad.✧ A foreign firm (or its agent or its branch) is often taxed at higher rates than local firms.✧Many developing states require local participation in order for a foreign firm to either invest or expandits local investment.3. Firms not subject to the direct control of the parent1) Subsidiary: An independently organized and incorporated company.✧The subsidiary’s company status insulates the par ent from unlimited liability.✧Locally organized companies are commonly entitled to certain tax benefits that foreign branches are not.2) Joint venture: An association of persons or companies who are involved in “a collaboration for more than a transitory period.”✧Business form: May be any type of business form (e.g., an association, a partnership, a limitedpartnership, a secret partnership, or a limited liability company).✧The investors share the risk.✧Entry into foreign markets is usually easier for a multinational that is affiliated with a local jointventurer.3) Holding company: A subsidiary company that in turn owns other subsidiaries.✧Reason for setting up holding companies:⏹To establish a consolidated management team for a group of subsidiaries or subsidiaries owned bydifferent parents.⏹For tax advantages.✧Business form: Most commonly a holding company is organized as a limited liability company whoseshares are held by its parent or parents.Section 3 INTERNATIONAL REGULATION OF MULTINATIONAL ENTERPRISES1. Several International Organization have Promulgated Rules of Ethical Behavior for Multinational Enterprises, including:✧Organization for Economic Cooperation and Development (OECD).✧International Labor Organization (ILO).✧International Chamber of Commerce (ICC).2. These are only Suggested RulesBinding international codes do not exist as yet.Section 4 HOME STATE REGULATION OF MULTINATIONAL ENTERPRISES1. Introduction✧The most important forms of home state regulation are:1) Regulation of competition.2) Regulation of injuries caused by defective products.3) Prohibition of sharp business practices.4) Regulation of securities.5) Regulation of labor and employment.6) The establishment of accounting standards.7) Taxation.✧Some of these rules are applied extraterritorially by home state, most notably:1) Regulation of competition.2) Regulation of injuries caused by defective products.3) Prohibition of sharp business practices.2. Unfair Competition Laws1) United States Unfair Competition Laws.✧Sherman Antitrust Act of 1890 is the principal US law regulating anti-competitive behavior.✧Clayton Act of 1914 Defines certain specific acts that constitute unfair business competition, including:◆Exclusive dealing agreements and tying clauses.◆Mergers that result in a monopoly.◆Interlocking directorates.✧Robinson-Patman Act of 1936 makes price discrimination illegal.2) Extraterritorial Application of US Antitrust Laws.✧Statutorily authorized: The Sherman Act declares that it applies to conduct affecting “trade or commerceamong the several states, or with foreign nations.”✧Judicially imposed limits on the extraterritorial application of the US antitrust laws.✧Personal Jurisdiction Requirements:✧Applicable state “long arm statutes.”: Due process forbids a court from assuming personal jurisdictionunless a defendant has “minimum contacts” with the forum state.3) Subject matter jurisdiction requirement.✧The courts have created two tests for determining when they have subject matter jurisdiction in anAmerican antitrust case.⏹Effects test: Companies carrying on business outside of the US will come within the subject matterjurisdiction of a US court if their business activity is:◆Intended to affect US commerce.◆Not de minimis.⏹Balancing Test (or “choice of law” test): Defined: A court should balance the interests of the statesconcerned in determining if subject matter jurisdiction exists.◆This is now the prevalent test in the US.3. Regulation of Anticompetitive Behavior in the European Union1) The European Community Treaty contains two provisions regulating business competition.✧Article 85 prohibits normal arm’s length competitor s from entering into agreements or carrying onconcerted practices which either prevent, restrain, or distort trade.✧Article 86 forbids businesses with a dominant position in their marketplace from taking improperadvantage of their position to the detriment of consumers.2) Compliance: EU Commission is solely responsible for enforcing Articles 85 and 86.3) Extraterritorial application of the EU’s business competition rules.✧EU Commission and the EU Court of Justice have adopted (in essence) the US “effects test.”✧EU effects test: The EU business competition rules apply to foreign firms to the extent that the firm’sactivities have an effect on trade or commerce within the EU.4. Opposition to the Extraterritorial Application of Unfair Competition Laws1) Blocking Statutes: Typically have three features:✧They limit the extent to which a US plaintiff can obtain evidence or seek production of commercialdocuments outside of the US for use in investigations or proceedings in the US.✧They make it difficult for a successful plaintiff to enforce a US judgment outside the US.✧By virtue of a “clawback” provision, they allow defendants to bring suit in their home country torecover the punitive damages they paid in the US.✧Judicial Injunctions are sometimes granted by courts to prohibit one of their nationals from initiating anantitrust suit in the US against another of their nationals.5. Product Liability Laws1) Purpose of product liability laws: To discourage manufacturers from putting defective products into the marketplace.2) Product Liability Theories.✧Breach of contract.✧Negligence.✧Strict liability.Most states use only the first two; Common law countries use all three; EU now relies principally on the last.3) Extraterritorial Application of Product Liability Laws✧The country that has been most willing to apply its product liability laws extraterritorially: The US.✧Considerations of US courts in determining whether they can exercise jurisdiction in a product liabilitycase:⏹Personal jurisdiction.⏹Forum non conveniens.6. Sharp Practices1) Defined: Dishonest business dealings meant to obtain a benefit for a firm regardless of the means used.✧Examples: Misrepresentation and bribery.2) Governing law: Municipal (local) law.3) Extraterritorial application of sharp practices law.✧The country that has been most willing to apply its sharp practices laws extraterritorially: The US.✧US legislation: Foreign Corrupt Practices Act (FCPA) of 1977.✧Caveat: They may only be charged with a violation of the FCPA after the company has first beencharged and convicted of the same violation.✧Forbid bribes to:⏹Foreign government officials.⏹Foreign political party officials.⏹Candidates for foreign political office.Section 5 PIERCING THE COMPANY VEIL1. Defined:Ignoring the corporate structure of a company (i.e., “piercing the company veil”) and exposing the shareholders to personal liability.2. Four circumstances where this is done:1) The Controlled Company: The corporate status of a controlled company will be ignored if both:✧Its financing and management are so closely connected to its parent that it does not have anyindependent decision-making authority; and✧It is induced to enter into a transaction beneficial to the parent but detrimental to it and to third parties.2) The Alter Ego Company: The company veil will be pierced if the company is not treated by its shareholders as a separate juridical entity (i.e., it is treated as the alter ego of the shareholders).✧The commingling of corporate and personal assets.✧The use of company assets by shareholders for their own personal benefit.✧The failure to hold and record minutes of board of directors’ meetings.3) Undercapitaliza tion: A company’s veil will be set aside if, at the time it was formed, it was provided with insufficient capital to meet its prospective debts or potential liabilities.4) Personal Assumption of Liability: Shareholders who have personally guaranteed the obligations of a company can, of course, be made to answer for those obligations.VI. Assignments1. Critical thinking on Business FormsCurly owns part of the Nyuck-Nyuck wise Guys, a major league baseball team. Curly becomes disgusted with the whole business of baseball when the team makes a $50-million, five-year deal with a free agent, Mr. Potatohead. Without telling the other owners, Curly purports to transfer his interest in the team to Shemp. (Curly is one of several hundred owners.) On the issue of whether Curly’s interest is in fact transferable, does it matter whether the team is partnership or a corporation?●If it’s a corporation, Shemp probably is an owner.Freely transferable ownership for a corporation unless subject to a written restriction on transfer (close corporation)●If it’s a partnership, Shemp isn’t an owner.A partnership interest is only transferable with the remaining partners’ approval unless t he partnership contract provides otherwise; without it, the transferee cannot become a full partner (e.g., he cannot vote.)VII. Reference MaterialPrinciples of International Business Transactions (The Concise Hornbook Series) (Hornbook Series Student Edition) by Ralph H. Folsom, Michael W. Gordon, and John A. SpanogleFundamentals of International Business Transactions by Ronald BrandThe Law & Business of International Project Finance by Scott L. HoffmanChapter ThreeCISGI. Teaching ObjectivesOn completion of this Chapter, students should be able to:1.Get familiar with the application scope of CISG and relevant background knowledge;2.Get a general idea about the basic theory of contract under common law system.3.Grasp the basic principles applicable to the interpretation of CISG;4.Learn to distinguish offer from acceptance in the theory of contracts;5.Get familiar with the general standards of contract performance. Grasp the function of agency relationship incorporation law.II. The Points to Be Highlighted1.Applying the contract theory to practical issues solving;2.Specify the application scope of CISGIII. T eaching Approaches and FacilitiesApproaches: 1. Pair/Group work 2. Discussion 3 Task-based approach4. Communicative approach5. Questions and answers……Facilities: PPT demonstration in the media classroom; on-line researchIV. Background Information1. In an international transaction, at least one party is likely to have its rights decided under the law of a foreign country because two parties to the sales contract must be governed by the law of only one country. What is more important, there are many differences between national laws.2. As a result, the function and nature of sales law are viewed differently in different legal systems. Each system has its individual rules for deciding the validity of a contract for interpreting its terms, and for defining the remedies available to a party upon a breach.3. Thus, when a firm enters a contract governed by foreign law, it is undertaking an added risk. Obviously, the conflicts of laws of different countries are big impediments to both parties to a sales contract.V. Teaching Procedures and ContentsGet familiar with the outline of this Chapter:❖UNITED NATION’S CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG)。
国际商法课1(1)
w of Business Organizations（国际商事组织法）
w of Agency （国际商事代理法） 4.International Contract Law （国际商事合同法） 6.International Cargo Transportation and Insurance
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Statute of the International Court of Justice 国际法院规约 A custom of some kind of comes from a usage, and a usage develops from a general practice 某种习惯法来源于习惯，习惯则由一般的做法发 展而来
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This entitles states to require that obligations be respected and to rely upon the obligations being respected.
这允许各州要求义务被尊重和依赖的义务被尊重
第六条 双方当事人可以不适用本公约，或在第十二条 的条件下，减损本公约的任何规定或改变其效力。
1980年 1983年 1924年 1930年 1977年 1883年 1985年
联合国国际货物销售合同公约 国际货物销售代理公约 统一提单若干法律规定的国际公约 统一汇票本票法公约 产品责任法律适用公约 保护工业产权巴黎公约 承认及执行外国仲裁裁决公约
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1. International Treaties and Conventions
V. Contents of International Business Law
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四、案件争议焦点 德克萨斯州地方法院、联邦法院是否享有该案的管 辖权。 五、判决理由 1.该案件的争议行为和侵害事实都发生在厄瓜 多尔。 2.原告均居住于厄瓜多尔，但是被告不是居住 在德克萨斯，故德克萨斯州地区法院的管辖权有 异议。 3.对该案的管辖将侵犯厄瓜多尔对于其领土内的 环境和资源的控制权，即侵犯其国家主权。
Examples of Public and Private International Law
Schools of Thought Defining The Basis of International Law (IL)
Cosmopolitans argue 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.
to not harass witnesses involved in the case. 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.
Sources of International Law
1. Treaties or conventions 2. International custom 3. General principles of law recognized by civilized nations 4. Judicial decisions 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.
4.厄瓜多尔强烈反对德克萨斯州地区法院 对于该案的管辖。 故该案最终被解散。 六、案情分析和结论 礼让原则的适用，就是要求一国法院在某 些情况下不能行使管辖权，因为这种管辖 将侵犯另一国的法律和利益。
U.S. Courts Apply Comity and Refuse to Take Jurisdiction When: The defendant is a sovereign
What is International Law?
Historically, dealt with 3 kinds of international relationship：1.those between states and states;2.those between states and persons ;3.those between persons and persons. the rules and norms regulating the relationships between states (countries) This law 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
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
Chapter 1
INTRODUCTION TO INTERNATIONAL AND COMPARATIVE LAW
Topics for this chapter:
Defining International 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
Suggestions on study
1.Prepare new lessons 2.Take notes carefully in class 3.Underline key points 4.Review the lessons we have learnt 5.Raise questions or turn to the teacher for help whenever you are in trouble.
conferences, and provisions repeated over and over again in bilateral treaties
The particular consent of a state
1.declarations of its government 2.domestic legislation 3.court decisions 4.treaties the state signed or entered into.
The Making of International 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:
daily performance contains:
1.Attendance rate—5 points will be deducted for each unreasonable absence. Late attendance for 3 times is considered as one absence. 2.Classroom dynamics—express your views 3.Fufil the assignments 4.case analysis (The 70 cases in the textbook )
International Business Law
Lecturer:谢扬 E-mail:yang1112fan@
Testing & Evaluating Mode
Characteristics of this course: a major compulsory course Great daily performance + good final examination score= High grade Daily performance takes 30% Final examination result takes 70%
Case analysis
Ignacio Sequihua v. Texaco Inc 一、当事人： 原告：厄瓜多尔 被告：美国 二、案情简介 厄瓜多尔声称美国的行为污染了厄瓜多尔 的空气、土地和河流。厄瓜多尔在美国的 德克萨斯州地区法院提起诉讼。原告要求
被告停止侵害，将受污染的土地恢复原状， 并且提供一笔信托基金用于污染防治。 该案件被转移至联邦法院，转移程序合 法。给予被告提出的要求联邦法院驳回原 告，不予受理该案的要求，法院最终援引 “礼让”原则解散了这一案件。 三、判决结果 联邦法院解散了这一案件。
Decisions of the International Court of Justice Resolutions passed by the UN General Assembly Multilateral treaties, conclusions of international
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