国际商法期末复习重点英文版完整版

国际商法期末复习重点

英文版

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IBL is the body of rules and norms that regulates international business trade a n d i n t e r n a t i o n a l b u s i n e s s o r g a n i z a t i o n s. Sources of IBL

What does it mean by source of law

National law

International treaties and conventions

Trade customs and usages

International model law

Common law system

Common law is the law as developed and pronounced by the courts in deciding cases;

Competent court

The reasoning of an adjudication

Precedent

Civil law system

Civil law is the codified law which is made by legislature to regulate specific relationships;

1. Roman law

2. Made law

3.Code and statute

definition of partnership

Defined as a Profit-making economic organization which is Established of a partnership agreement, Make a Joint capital contributions, conduct business jointly,Share incomes and risks and bear unlimited joint and several

liabilities for debts of the partnership enterprise.

特点：Profit-making economic organization;

Establishment of a partnership agreement;

Joint capital contribution;

Sharing of incomes and risks;

Bearing of unlimited joint and several liabilities for debts

Creation of a partnership:①an association of two of more persons②carrying on a business ③co-ownership④for profit⑤intent(目的)⑥partnership by estoppel

Limited liability partnership有限责任合伙的责任承担: In a limited liability partnership, some partners have limited liability,some partners have unlimited liability.

General partnership普通合伙的责任承担:Bearing of unlimited joint and several liabilities for debts.

出资方式：Capital contribution:in cash; tangible goods; land or land use rights; intellectual property; or other proprietary rights; or in the form of labor service if it is agreed by all of the partners;

partners’ rights and duties：①A partner has the right of compensation（补偿） from the partnership（The amount of compensation is decided by how the partners agreed in the partnership agreement）②A partner has the right of sharing profit from the partnership③Partners owe a duty to devote full time and best efforts to the affairs of the partnership;④Self-interest is prohibited;⑤Secret profits in dealing with the partnership is

prohibited;⑥Partners owes a duty to disclose all information and facts from a third party to other partners;⑦Concealment of information and facts is prohibited;⑧That partners work hand in glove with (in collusion with) others for selfish purpose is prohibited;⑨Partners have a duty to account for any expenditures they make of the partnership funds;Partners have the duty to be joined as plaintiffs or defendants in legal suits

合伙企业的管理：co-management

Dissolution of the partnership means that the economic organization ceases to be associated as an entity to carry on a business;

1.Non-wrongful dissolution

2.Wrongful dissolution

3.The death or bankruptcy of any partner automatically dissolves the partnership;

4.A court order or decree dissolves a partnership;

Winding up:liquidation of the assets of the business of the partnership after dissolution happens;

Continuation of the partnership by the remaining partners;

Completion of work by the partnership before dissolution;

Sharing of profits, bearing of debts, returning of assets;

Definition of corporation:

A corporation is a form of an economic organization in which the shareholders make investment, elect management and take limited liability for the debts of the corporation.

特征：1.Independent legal status;

2.Creation must be permitted by government;

3.Management is accomplished through the election of the shareholders;

4.The shareholders take limited liability;

5.The ownership interest of the corporation is freely transferable;

6.Double taxation;

legal status:A corporation is a legal person and a legal entity independent of its owners (shareholders) and its managers (officers and the board of directors). Its life is unaffected by the retirement or death of its shareholders, officers, and directors.

“Piercing the corporation veil” theory Means to prevent the company's independent personality abuse and protect the interests of the creditors and social public interests, the specific legal relationship of specific facts, denied that the company and its shareholders behind the independent

personality and limited liability of shareholders, shall be ordered to the shareholder of the company (including natural person shareholders and legal person shareholders) to the company creditors or directly responsible for public interests, to achieve fairness and justice of the requirements and set up a kind of legal action.

滥用权力的表现1.Separate legal personality is capable of abuse by shareholders to evade legal obligations;

2.Domination of the corporation by shareholders;

3.Looting of corporation assets;

Management of corporations：Management agencies；Board of

directors;officers of the corporation; board of supervisors;Management of a corporation is elected by the shareholders;

Termination of corporation:

①Voluntary termination:

Maturity of pre-agreed period; Completion of pre-agreed project;

Agreement of the shareholders to terminate

②Involuntary termination：

Wrongful trading;Unable to pay its debts; Business of the corporation is not commenced within;Tax evasion;Court resolution;

Shareholders’ rights :

①shareholders’ meeting

②shareholders’ election of directors

③fundamental corporate changes

④shareholders’ inspection and information rights

⑤distribution to shareholders

⑥Shareholders’ lawsuit

Shareholders’ liabilities:

① Shareholders should be liable for short distribution and illegal distribution

②I f the shareholders abuse the corporate personality to evade legal obligations, they are liable for the debts of the corporation

An agency is defined as a fiduciary relationship that results when one person,the principal,consents that another person,the agent, shall act on behalf of the principal.

Ostensible agency表见代理：in some situations,an agent’s powers are expanded neither by agreement with the principal nor by custom or emergency. Under the doctrine of apparent authority of ostensible authority, authority may be created or expanded when the principal causes third parties to reasonably believe the agent has authority.

Express authority明示授权—employment contract; resolution of the board of directors; advisory memorandum; power of attorney;

Implied authority默示授权—on the basis of express authority; in the customary fashion; emergencies; apparent authority and estoppel；secret limitations;

Ratification追认：an agent exceeds the limited authority granted; a non-agent purported to act as agent;

Unauthorized contract：1)implied warranty of authority---whether the third party knew that the agent had no authority at the conclusion of the contract;

2)non-existent principal;

Termination of an agency

Act of the parties---accomplishment of contract purpose/occurrence of events; lapse of time; mutual agreement; unilateral termination;

Operation of law---incapacity, bankruptcy, death; illegality; impracticality. Seller’s obligations:

1.Delivery of the Goods–

2.The turning over of documents

3.The seller’s assurance of the qu ality of the goods

4.The seller’s assurance of ownership of the goods

5.The seller’s assurance of ownership of the goods Exceptions ----

The buyer knew or could not have been unaware of the charge or encumbrance upon the goods;

The seller’s compliance with technical drawings, designs, formulas or other specifications furnished by the buyer;

Buyer’s obligations :Payment of price;Taking delivery.

Buyer’s remedies

Compelling of specific performance---the buyer had not resorted to another remedy; the nonconformity constituted a fundamental breach; timely notice-giving of the nonconformity; timely request of specific performance.

Avoidance---the seller’s breach of contract constitutes a fundamental breach; the seller rejects to perform within the nachfrist notice by the buyer

Price reduction---the buyer reduces a proportionate part of the purchase price in order to offset the shortage or to reflect the reduced value of the nonconforming goods.

Refusing early delivery and excess quantity

Seller’s remedies

1. to compel specific performance;

2. to avoid the contract for a fundamental breach or failure to cure a defect;

3. to obtain missing specifications

Remedies available to both buyers and sellers

1. suspension of performance;

2. avoidance in anticipation of a fundamental breach;

3. avoidance of an installment contract;

4. avoidance;

5. damages;

Bill of lading

A bill of lading is a contract between a carrier (seller, buyer or their agent) and an ocean carrier for the carriage of goods.

Characteristics of B/L

1.As a certificate of receipt:as prima facie evidence between the shipper

and the carrier,if B/L is not transferred; as final evidence between the

carrier and the transferee of B/L;

2. As an evidence of the carriage contract between the carrier and the shipper;

3.As a document of title:the carrier delivers the goods against the original B/L;

Classifications of B/L提单的分类

Loaded B/L;Named B/L;To the order B/L;Blank B/L;

Antedated B/L倒签提单-it is issued earlier than the actual shipping date; Advanced B/L预借提单-it is issued before the shipping of the goods;

Clean B/L 清洁提单issued through indemnity-it is issued through indemnity to cancel the “unclean” facts of the goods;