1、International Business Law,Chapter 1 Introduction,On March 20, 1869, William E. Story had promised his nephew, William E. Story II, $5,000 if his nephew would abstain from drinking alcohol, using tobacco, and playing cards or billiards for money until the nephew reached 21 years of age. Story II acc

2、epted the promise of his uncle and did refrain from the prohibited acts until he turned the agreed-upon age of 21. After celebrating his 21st birthday on January 31, 1875, Story II wrote to his uncle and requested the promised $5,000.,Hamer v. Sidway,The uncle responded to his nephew in a letter dat

3、ed February 6, 1875 in which he told his nephew that he would fulfill his promise. Story I also stated that he would perfer to wait until his nephew was older before actually handing over the (then) extremely large sum of money (according to an online inflation calculator, $5000 in 1890 would be wor

4、th approximately $118,000). The elder Story also declared in his letter that the money owed to his nephew would accrue interest while he held it on his nephews behalf. The younger Story consented to his uncles wishes and agreed that the money would remain with his uncle until Story II became older.,

5、William E. Story I died on January 29, 1887 without having transferred any of the money owed to his nephew. Story II had meanwhile transferred the $5,000 financial interest to his wife; Story IIs wife had later transferred this financial interest to Louisa Hamer on assignment. The elder Storys estat

6、e executor refused to grant Hamer the money, believing there was no binding contract due to a lack of consideration. As a result, Hamer sued the estates executor, Franklin Sidway.,Opinion of the court,The Court of Appeals reversed and directed that the judgment of the trial court be affirmed, with c

7、osts payable out of the estate. Judge Alton Parker (later Chief Judge of the Court of Appeals), writing for a unanimous court, wrote that the forbearance of legal rights by Story II, namely the consensual abstinence from drinking liquor, using tobacco, swearing, and playing cards or billiards for mo

8、ney until he should become 21 years of age constituted consideration in exchange for the promise given by Story I. Because the forbearance was valid consideration given by a party (Story II) in exchange for a promise to perform by another party (Story I), the promisee was contractually obligated to

9、fulfill the promise.,Suppose you are working in a large business corporation, you manufacture and export cotton textiles, then one day, a big foreign buyer contacts you by e-mail, and wants to place a large order to you. Then please think, if you want to do the business transaction with him, what af

10、fairs may it affect?,Outline of Chapter One,Contents of International Business Law,International business law (IBL) is the body of legal rules and norms that regulates various affairs of international trade and international business organizations. 國(guó)際商法是指調(diào)整國(guó)際商事交易和商事組織的法律規(guī)范的總稱(chēng)。,The “internationality”

11、 of international business law means that its regulating objects are commercial relationships with foreign elements, that is to say that at least one element among the subject, the object and the content of an international commercial relationship is across national borders.,Internationality,“國(guó)際性”,它

12、是指它所調(diào)整的對(duì)象是具有國(guó)際因素的商事關(guān)系，也就是說(shuō)，在國(guó)際商事法律關(guān)系的主體、客體和內(nèi)容三個(gè)要素中，至少有一個(gè)方面是跨越國(guó)界的。,Therefore, a commercial transaction is international if: (1) The parties have their places of business in different States or Countries; (2) The parties have their nationalities from different countries; (3)The commercial activities a

13、re performed in a State or District outside the Country or Countries of one or more parties; (4) The object of the commercial relationship is located in a State or District outside the Country or Countries of one or more parties.,當(dāng)商事關(guān)系存在下列情形時(shí)，即被認(rèn)為是具有國(guó)際因素： （1）當(dāng)事人的營(yíng)業(yè)地分處于不同的國(guó)家； （2）當(dāng)事人具有不同國(guó)家的國(guó)籍； （3）商事活動(dòng)

14、發(fā)生在當(dāng)事人一方或幾方所在國(guó)以外的國(guó)家或地區(qū)； （4）商事關(guān)系的對(duì)象位于當(dāng)事人一方或幾方所在國(guó)以外的國(guó)家或地區(qū)。關(guān)于國(guó)際商事法律中的“商事”一詞，有關(guān)國(guó)際組織或國(guó)家大多采取廣義的解釋。,An international business transaction which is economic in character will be considered to be commercial.,“Commercial”,The definition of UNICITRAL Model Law on International Commercial Arbitration,Any trade

15、transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and

16、other forms of industrial and business co-operation; carriage of goods or passengers by air, sea, rail or road. :,聯(lián)合國(guó)國(guó)際商事仲裁示范法（UNCITRAL Model Law on International Commercial Arbitration）對(duì)“商事”一詞給出的注解是：供應(yīng)或交換貨物或服務(wù)的任何貿(mào)易交易；銷(xiāo)售協(xié)議，商事代表或代理；保付代理；租賃；建造工廠；咨詢；工程；許可證；投資；融資；銀行；保險(xiǎn)；開(kāi)采協(xié)議或特許權(quán)；合營(yíng)企業(yè)或其它形成的工業(yè)或商業(yè)合作；貨物或旅客的航

17、空、海上、鐵路或公路運(yùn)輸?！?Article 2 of the Notice of the Supreme Peoples Court on the Disposal of the Relevant Issues about the Foreign-related Arbitration and Foreign Arbitral Matters by the Peoples Court points out that the so-called “commercial legal relationships whether contractual or not” refer to econom

18、ic relationships of rights and obligations arisen from contracts, torts or relative legal regulations, for example, sale of goods, property leasing, project contracting, undertaking of processing, transfer of technology, joint venture, cooperative venture, exploration and exploitation of natural res

19、ources, insurance, credit loan, labor, agency, consultant service and guest and cargo transportation by sea, air, railway and road, and product liability, environment pollution, accident at sea and title dispute, but not including disputes between foreign investors and the host government.,根據(jù)中華人民共和國(guó)

20、最高人民法院1987年4月 10日關(guān)于執(zhí)行我國(guó)加入的承認(rèn)及執(zhí)行外國(guó)仲裁裁決公約的通知第二條，所謂“商事，包括貨物買(mǎi)賣(mài)、財(cái)產(chǎn)租賃、工程承包、加工承攬、技術(shù)轉(zhuǎn)讓、合資經(jīng)營(yíng)、合作經(jīng)營(yíng)、勘探開(kāi)發(fā)自然資源、保險(xiǎn)、信貸、勞務(wù)、代理、咨詢服務(wù)和海上、民用航空、鐵路、公路的客貨運(yùn)輸以及產(chǎn)品責(zé)任、環(huán)境污染、海上事故和所有權(quán)爭(zhēng)議等。,Commercial Organizations,Companies or corporations Company limited by shares Company with limited liability Company of unlimited liability Par

21、tnership Sole proprietorship,What affairs can we encounter when we do business transactions?,Sales,Creditors Rights,IPR,E-Commerce,Product Liability,Bills,Contracts,Courts Procedures,Professional liability,Organizations,Agency,Torts,Business Decision Making,Con,IB Law,Agency Law,Contract Law,Arbitra

22、tion Law,Negotiable Instrument Law,Product Liability Law,Sales Law,Company Law,Main Contents of IBL,Primary Sources of IBL,Treaties are legally binding agreements on international business between two or more sovereign states.,Conventions are legally binding agreements between states sponsored by in

23、ternational organizations, such as the United Nations.,International Treaties and Conventions (國(guó)際條約和國(guó)際公約),條約是指兩個(gè)或兩個(gè)以上國(guó)家之間在國(guó)際商事問(wèn)題上達(dá)成的具有約束力的協(xié)議。,公約是指國(guó)與國(guó)之間在國(guó)際組織主持下達(dá)成的具有約束力的協(xié)議。,International Treaties and Conventions (國(guó)際條約和國(guó)際公約),Article 2(1) (a) of 1969 Vienna Convention on the law of Treaties states that

24、 “treaty” mean an international agreement concluded between States in written from and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.,維也納條約法公約 第2條,稱(chēng)“條約”者，謂國(guó)家間所締結(jié)而以國(guó)際法為準(zhǔn)之國(guó)際書(shū)面協(xié)定，不論其載于一項(xiàng)單獨(dú)文書(shū)或兩項(xiàng)以上相互有關(guān)之

25、文書(shū)內(nèi)，亦不論其特定名稱(chēng)如何；,Treaty,May also be known as agreement, protocol, covenant, convention, exchange of letters, accord, exchange of notes, memorandum of understanding, pact,Characteristics of Treaties and Conventions,Treaties are binding to contracting states, they must be followed by those countries. T

26、reaties can be divided into bilateral and multilateral ones. In some occasions, only had the treaties or conventions been adopted by parties, then can they be used to bind the legal relationship between parties, otherwise, they do not have absolute enforceability.,Pacta sunt servanda(1) Pacta sunt s

27、ervanda (Latin for “agreements must be kept”), is a brocard(法律格言), a basic principle of civil law and of international law. In its most common sense, the principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that non-fulfillment of respectiv

28、e obligations is a breach of the pact. The general principle of correct behavior in commercial praxis and implies the bona fide is a requirement for the efficacy of the whole system, so the eventual disorder is sometimes punished by the law of some systems even without any direct penalty incurred by

29、 any of the parties.,Pacta sunt servanda(2) With reference to international agreements, every treaty in force is binding upon the parties to it and must be performed by them in good faith.Pacta sunt servanda is based on good faith. This entitles states to require that obligations be respected and to

30、 rely upon the obligations being respected. This good faith basis of treaties implies that a party to the treaty cannot invoke provisions of its municipal (domestic) law as justification for a failure to perform. The only limit to pacta sunt servanda are the peremptory norms of general international

31、 law, called jus cogens (compelling law).,Teaching Contents,Meanwhile, because international business law is of a private nature, the principle of party autonomy also applies to international business transactions. Under some circumstances, only when the parties of an international business transact

32、ion have willingly chosen a treaty, the treaty is binding upon the legal relationship between them. Otherwise, it is not. For example, article 6 of CISG in 1980 states: “The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of i

33、ts provisions.”,the principle of party autonomy,UN Convention on Contracts for the International Sale of Goods (CISG) (1980) 聯(lián)合國(guó)國(guó)際銷(xiāo)售合同公約,Examples of International Treaties and Conventions,Convention on International Bill of Exchange and International Promissory Note of the United Nations 聯(lián)合國(guó)國(guó)際匯票和國(guó)際本

34、票公約 Convention on the Recognition and Enforcement of Foreign Arbitral Awards 承認(rèn)與執(zhí)行外國(guó)仲裁裁決公約,The UNIDROIT Convention on Agency in the International Sale of Goods in 1983; 國(guó)際私法統(tǒng)一學(xué)會(huì)國(guó)際貨物銷(xiāo)售代理公約,The International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading in 1924, th

35、e Hague Rules; 1924年統(tǒng)一提單某些法律規(guī)定的國(guó)際公約,The Convention on the Unification of the Law Relating to Bills of Exchange and Promissory Notes in 1930統(tǒng)一匯票本票法公約 Convention Providing a Uniform Law of Cheques 統(tǒng)一支票法公約，又稱(chēng)為1931年關(guān)于統(tǒng)一支票法的日內(nèi)瓦公約,The Convention on the Law Applicable to Products Liability in 1977, the Hag

36、ue Convention 產(chǎn)品責(zé)任適用法律公約（又稱(chēng)海牙規(guī)則） The Paris Convention on the Protection of Industrial Property in 1883 and revised in 1979, the Paris Convention 保護(hù)知識(shí)產(chǎn)權(quán)巴黎公約（又稱(chēng)巴黎公約）,The Meaning of International Custom,Custom and usage refers to the “general rules and practices that have become generally adopted throu

37、gh unvarying habit and common use”. And, international trade custom and usage means the general rules and practices in international trade activities that have become generally adopted through unvarying habit and common use.,According to Article 38 (1) (b) of the Statute of the International Court o

38、f Justice, “International custom” is, “as evidence of a general practice accepted as law”. International trade customs and usages are international customs in international business law. As for trade usage, it is considered as any system, custom, or practice of doing business used so commonly in a v

39、ocation, field, or place that an expectation arises that it will be observed in a particular transaction.,Article 9 (2) of CISG states: “The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ough

40、t to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned”.,Custom, Usage and General Practice,Generally, a custom of some kind comes from a usage, and a usage develops from a general pr

41、actice. In nowadays, almost all international business customs are in written form, and they are usually made or codified by international organizations or international conferences. International business custom may be in the form of a model law, uniform rules, standard contract, etc.,Consistently

42、and regularly observed,A custom is a long established tradition or usage that becomes customary law if it is,Recognized by those states observing it as a practice that they must obligatorily follow,International Rules for the Interpretation of Trade Terms (2000) 國(guó)際貿(mào)易術(shù)語(yǔ)解釋通則 Uniform Customs and Practi

43、ce for Documentary Credits (UCP600) 跟單信用證統(tǒng)一慣例 Warsaw-Oxford Rules1932華沙-牛津規(guī)則,International Trade Customs,國(guó)際貿(mào)易慣例的特點(diǎn),國(guó)際貿(mào)易慣例是在長(zhǎng)期的國(guó)際貿(mào)易實(shí)踐中自發(fā)形成的。 國(guó)際貿(mào)易慣例是為某一地區(qū)、某一行業(yè)的人們所普遍遵守和接受的，偶然的實(shí)踐不能成為國(guó)際貿(mào)易慣例，這是國(guó)際貿(mào)易慣例的客觀特征。 國(guó)際貿(mào)易慣例必須能使人們產(chǎn)生必須遵照此慣例辦理的義務(wù)感和責(zé)任感，這是國(guó)際貿(mào)易慣例的主觀特征。 國(guó)際貿(mào)易慣例具有任意性，沒(méi)有強(qiáng)制適用力。,The Binding Effectiveness of In

44、ternational Custom,As rules and principles developed gradually from the international business practices in the long-run, international trade customs are, by nature, not law: neither international treaties or conventions, nor national legislations. An international trade custom does not have any leg

45、al binding effect until the parties of a international business transaction choose it to apply to their contract, and the court and arbitration institution may decide or enforce accordingly.,Incoterms Do . . .,Incoterms 2000 may be included in a sales contract if the parties desire the following: To

46、 complete a sale of goods. To establish basic terms of transport and delivery in a short format. To indicate each contracting partys costs, risks, and obligations with regard to delivery of the goods as follows:,When is the delivery completed? How does a party ensure that the other party has met tha

47、t standard of conduct? Which party must comply with requisite licenses and government-imposed formalities? What are the mode and terms of carriage? What are the delivery terms and what is required as proof of delivery? When is the risk of loss transferred from the seller to the buyer? How will trans

48、port costs be divided between the parties? What notices are the parties required to give to each other regarding the transport and transfer of the goods?,Incoterms Do Not,5. Protect a party from his/her own risk of loss.,4. Determine how title to the goods will be transferred.,2. Define contractual

49、rights and obligations other than for delivery.,3.Specify details of the transfer, transport, and delivery of the goods.,7. Define the remedies for breach of contract.,Why national law is one of the primary sources in International Business Law?,Islamic Law,Common Law,Civil Law,Socialist Law,World L

50、egal Systems,World Legal Syatems,Common Law,Civil Law,Legal Systems Across the World,The Civil Law System,The Civil Law System is the oldest and most influential of the legal families. This legal system term is derived from Roman law and Germanic practice and set out in national codes. It may also b

51、e referred to as Roman Law System, Roman-Germanic family, or Continental System. The French Civil Code of 1804 and German Civil Code of 1896 are regarded as the very basis of the modern civil law.,大陸法系,大陸法系，又稱(chēng)民法法系、羅馬日耳曼法系或成文法系。在西方法學(xué)著作中多稱(chēng)民法法系，中國(guó)法學(xué)著作中慣稱(chēng)大陸法系。指包括歐洲大陸大部分國(guó)家從19世紀(jì)初以羅馬法為基礎(chǔ)建立起來(lái)的、以1804年法國(guó)民法典和1

52、896年德國(guó)民法典為代表的法律制度以及其他國(guó)家或地區(qū)仿效這種制度而建立的法律制度。,I,Established in continental Europe, is based on a comprehensive code.,II,Came from the Roman tradition and was codified in the sixth century in Justnian Code,III,In the 18th century, France codified the law into a civil, commercial, penal, civil procedure a

53、nd criminal procedure code.,Other European countries such as Germany and Switzerland followed with a codification of their law.,The colonization of Africa, Asia, and Latin America spread the civil law system.,Civil Law System (Continental Law, Roman Law, Code Law),emphasize the importance of written

54、 law; make comprehensive code,all civil law countries divided their laws into public law and private law,Case has no legal validity,Characteristics of Civil Law,Source of Civil Law Systems,In theory, the legal code will set forth all the principles needed for the legal system.,Courts are required to

55、 interpret the code and apply the rules to individual cases.,Courts may not depart from the code and develop their own laws,The only official source of civil law is a statutory code,Anglo-American Law System is the legal system of England and countries that were once English colonies. It is based on

56、 court-made rules or precedents. It is also called English Law System or Common Law System. Common law legal systems are in widespread use, particularly in England and in those nations which trace their legal heritage to England, as former colonies of the British Empire including the United States.,

57、Common Law System,Primary Sources of British Law,It includes Common Law and Equity Law,Laws Issued by Parliament and Administrations,It has very little influence in Britain now,Origin of Common Law,In 1066, William, Duke of Normandy (a province in France) united (統(tǒng)一) the England. Soon, William estab

58、lished a national court system and English royal court, and sent judges to local places to hear cases. This developed into what is now called Common Law.,Battle of Hastings,Battle of Hastings,The Emerging of Equity Law,(1) Common law system required that a person who wants to make claim to the court

59、 must have a “writ”(令狀). (2) But the Provisions of Oxford”(1258) prohibited the creation of new writs. The king ordered the Chancellor (樞密大臣) to hear new cases, and the Chancellor had the right to ignore the Common law, and hear the cases in accordance with the principle of fairness and justice(公平正義原則). (3) Thus came into the equity law.,Differences Between La