国际商法全套课件（英文版）.pdf

Economic Background for International Business What is international business?International Business the economic system of exchanging good,services and intellectual property,conducted between individuals and businesses in multiple countries.The principle integral parts of international business Goods,Services and Intellectual Property A comparison between domestic business and international business.Economic Background for International Business Globalization Increasing economically interdependence among countries An economic process and a political eventwith significant legal connotations.The influence of globalization on international business lawIt requires the unification and harmonization of national laws on international Business.II.Theoretical background for International Business Theory of absolute advantage In 18th century by Adam Smith Its core:nations should concentrate their efforts on producing those goods that they can make most efficiently.Surplus of goods is then traded for goods that another nation has produced under the same circumstances.Comparing a state to a householdtailor clothes V.shoemaker shoesTheoretical background for International Business Theory of comparative advantage In 19th century by David Ricardo a model of two countries and two commodities based on the factor of laboi Its core:a country would export the product in which it had the greater advantage,and import the commodity in which its advantage was less.Theoretical background for International Business Theory of factor endowments Hekscher-Ohlin Model:two countries,two products,and two factors of production:capital and labor Its core:Each country will export the product that uses its relatively abundant factor more intensively.shortcomingsIII.Fundamentals of International Business Law HistoryIn the 14-16th century,Lex Mercatoria(customs)By the 18th century,national codes(courts recognized the Lex Mercatoria)In the 20th century,esp.World War II,a uniform set of modern rules governing international trade:IMF,WB,GATT(WTO)c 八III.Fundamentals of International Business Law Definition Clive Schmitthoffa Clive Schmitthoffs Definition of International Trade Lawthe law of international trade covers an unusually wide spectrum of business activity.it includes The International Sale of Goods;Marketing Organization Abroad;Finance of Export;Insurance of Exports;Transportation of Exports;International Commercial Dispute Settlement;Construction and Long Term Contracts;and Customs LawIII.Fundamentals of International Business LawDefinition of International Business Law八The body of rules and norms that regulates the cross-border transactions in goods,services and intellectual property between parties.一 Parties:natural persons,legal persons,international organizations and states(on some occasions in the capacity of commercial entity)III.Fundamentals of International Business Law Sources of international business lawInternational treaties and conventions e.g.CISG5 Hague Rules,New York Convention,WTO Agreements International business customs and usages e.g.UCP 600,Incoterms 2000八 National law Others:soft law,e.g.international model lawLegal Background for International Business Law Overview of world legal systems The Romano-Germanic Civil Law System Germany,France,and Japan etc.Codification:French Civil Code,German Civil Code The Anglo-American Common Law System The U.S.,U.K,Canada,Australia etc.Case law:precedentsIV.Legal Background for International Business Law The Role of international organizations in international business IGOsI.UNCITRAL(United Nations Commission on International Trade Law)It is the core legal body of the United Nations in the field of international trade law Purpose:to promote international trade through the harmonization of trade law among nations.It prepares legal texts in a number of key areas such as international commercial dispute settlement,electronic commerce,insolvency,international payments,sale of goods,transport law,procurement and infrastructure development.UNCITRAL International sale of goods The United Nations Convention on Contracts for the International Sale of Goods(CISG)adopted 1980,took effect in 1988 International transport law The United Nations Convention on the Carriage of Goods by Sea(The Hamburg Rules)adopted in 1978,took effect in 1992.The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea(The Rotterdam Rules)adopted 2008,to be opened for signature on 23 September 2009 in Rotterdam,the Netherlands.a uniform law providing for modern door-to-door container transport including an international sea leg,but not limited to port-to-port carriage of goods International Commercial Arbitration and Conciliation UNCITRAL Model Law on International Commercial Arbitrationadopted in 1985,amended in 2006.The Model Law is designed to assist States in reforming and modernizing their laws on arbitral procedure.It covers all stages of the arbitral process from the arbitration agreement,the composition and jurisdiction of the arbitral tribunal and the extent of court intervention through to the recognition and enforcement of the arbitral award.UNCITRAL Model Law on International Commercial Conciliation(adopted 2002)International payments United Nations Convention on International Bills of Exchange and International Promissory Notes(adopted in 1988)Model Law on International Credit Transfers(adopted in 1992)United Nations Convention on Independent Guarantees and Stand-by Letters of Credit(adopted in 1995,entered into force in 2000)International electronic commerce UNCITRAL Model Law on Electronic Commerce(adopted in 1996)UNCITRAL Model Law on Electronic Signatures(adopted in 2001)United Nations Convention on the Use of Electronic Communications in International Contracts(adopted in 2005)International insolvency UNCITRAL Model Law on Cross-Border Insolvency(adopted in 1997)International procurement UNCITRAL Model Law on Procurement of Goods,Construction and Services(adopted in 1994)For more information,please visit www.UNCITRAL.orgIV.Legal Background for International Business LawII.The IMF and the World Bank created at the Brett on Woods Conference IMF:to promote exchange stability,assist all members to ease balance of payment.WB:promote economic development of poor countries.IV.Legal Background for International Business LawIII.An overview of EU Historical Development1.taking shape in 1951 with the establishment of the European Coal and Steel Community.2.Two additionalncommunitiesn-the European Economic Community and the European Atomic Energy Community-were created in 1957.3.In 1965,common institutions(see below)were established for the three communities and the three communities became known collectively as the European Community(EC).4.In 1993,the Maastricht Treaty renamed the EC as the European Union.IV.Legal Background for International Business Law Supranational powers.1.EU law within its scope of applicability is superior to the laws of the member states.2.This supremacy principleH has two consequences:one,the member states are required to bring their internal laws into compliance with EU laws and5 two5 EU law is directly effective within the member states.Legal Background for International Business Law The EU institutions are:(1)The European Commission,which is the administrative and executive branch of the EU.It primary responsibilities are to see the EU rules are respected and EU policies are implemented.(2)The European Council is the principal EU rulemaking institution.It is made up of ministers of the EU member states.(3)The European Parliament is the principal EU deliberative and supervisory body.It must give its opinion of EU legislation before it can be adopted by the Council.IV.Legal Background for International Business Law(4)The European Court of First Instance is the Ells trial court with jurisdiction over(a)disputes brought by private persons against EU institutions and(b)employment disputes between EU institutions and their employees.(5)The European Court of Justice is the Ells supreme tribunal.(6)The European Economic and Social Council is an EU consultative body made up of a wide range of special interest groups.八IV.Legal Background for International Business Law(7)The European Committee of Regions is an EU consultative body made up of representatives from local and regional governments.(8)The European Central Bank is responsible for carrying out the EUs monetary policy.(9)The European Court of Auditors is responsible for overseeing the EU budget.IV.Legal Background for International Business LawIV.WTO The WTO serves four basic functions:(1)to implement,administer,and carry out the WTO Agreement and its Annexes;(2)to act as a forum for ongoing multilateral trade negotiations;(3)to serve as a tribunal for resolving disputes;and(4)to review the trade policies and practices of member states.IV.Legal Background for International Business Law The organizational structure of WTO(1)The Ministerial Conferencemeets bienniallycomposed of representatives of all WTO membersresponsible for all WTO functions and is able to make any decisions necessaryIV.Legal Background for International Business Law The organizational structure of WTO(2)The General Councilmeets whenever it is appropriate composed of representatives of all WTO membershas executive authority over the day to day operations and functions of the WTOIV.Legal Background for International Business Law The organizational structure of WTO(3)the councils,committees and bodiesall created by the WTO Agreement and are open to representatives of all member states.See Exhibit 1-2IV.Legal Background for International Business Law NGOsI.ICC(International Chamber of Commerce)Purpose:to harmonize,codify,and standardize international business practices.Major Achievements:UCP(Uniform Customs and Practice for Documentary Credits);Incoterms(International Rules for the Interpretation of Trade Terms)Created a forum for the settlement of disputes-the International Court of Arbitration.IV.Legal Background for International Business LawII.UNIDROIT(The International Institute for the Unification of Private Law)八purpose:to harmonize and coordinate the private law of states.Major achievement:drafted Principles of International Commercial Contract in 1994.Drafted conventions in respect of international leasing,international factoring,international agency,etc.Chapter 2-4The Law of Business OrganizationsChapter 2-4Fundamentals of Business OrganizationThree major forms of business organizationthe sole proprietorship the partnership the corporationc八Six important factors in deciding form of business organization(1)ease of creation and management(2)the ability of the owner(3)continuity of operations(4)tax considerations(5)transferability and(6)the need for capital.Chapter 2 Sole ProprietorshipsI.What is sole proprietorship?Sole proprietorship is the simplest and oldest form of business.“a sole proprietorship refers to a business entity established under this law in the territories of China,with its capital contributed by one individual.The assets of a sole proprietorship are owned personally by the sole proprietor,who assumes unlimited liability to the extent of his personal assets?一 Sole Proprietorship Law of PRCChapter 2 Sole ProprietorshipsII.Advantages and Disadvantages The proprietor receives all of the profits It is often easier and less costly to start a sole proprietorship The sole proprietorship also provides more flexibilityc八 unlimited liability-the proprietor alone bears the burden of any losses or liabilities incurred by the enterprise.lacking continuity on the death of the proprietor the proprietors opportunity to raise capital is limitedChapter 2 Sole ProprietorshipsIII.Sole Proprietorships under the Law of ChinaSole Proprietorship Law of PRC Xqqk effect as of January 1st 2000.definition on the sole proprietorshiprules on its creation,operation,dissolution and other matters related to the sole proprietorship.Chapter 2 Sole Proprietorshipsthe sole proprietor may manage the affairs of the sole proprietorship by himself,or may appoint orhire another person with the capacity for civil act to manage the sole proprietorshipThe agent or employee shall perform the obligations of good faith and due care,and manage the affairs of the sole proprietorship in accordance with the contract with the sole proprietorAny restriction by the sole proprietor on the authority of the agent or employee shall not constitutes a defense against a third person in good faith.Chapter 2 Sole Proprietorships A sole proprietorship shall be dissolved when(1)The sole proprietor decides to dissolve the sole proprietorship;(2)The sole proprietor is deceased or is declared deceased,and there is no heir or the heir has renounced his inheritance;(3)Its business license of is lawfully revoked;and(4)Any other situation prescribed by law or administrative regulations has occurred.Chapter 3 PartnershipsI.Fundamentals of partnershipsDefinition:A partnership arises from an express or implied agreement between to or more persons to carry on a business for a profit.Forms of partnershipsIn US:general partnerships-all partners are individually liable for all the debts of the partnershiplimited partnerships-general partners+limited partners;a limited partner may not participate actively in the management of the partnership.limited liability partnerships-the individual partners will not be liable for acts of malpractice committed by other partners;all partners in a limited liability partnership can actively participate inChapter 3 PartnershipsIn China(newly revised Partnership Law of PRC)A general partnership composed of general partners who have unlimited joint and several liability for the debts of the partnership.A limited partnership composed of general partners and limited partnersA special general partnership often used to establish professional service entity.For debts of a special general partnership arising from malpractice,the partner(s)who committed such malpractice shall bear unlimited liability and the other partner(s)shall bear limited liability.All the partners of a special general partnership shall bear unlimited joint and several liability for the other debts of the partnership.Chapter 3 PartnershipsII.Partnership formation documents to be filed:a written application for registration,a partnership agreement and the identity papers of partners.partnership agreement is a prerequisite for establishing a partnership under the law of China.partnership agreement,also called articles of partnership,can include virtually any terms that the partners wish,unless they are illegal or contrary to public policy.A sample partnership agreement and discussionChapter 3 PartnershipsIII.Partnership operation The rights and duties of partners are governed largely by the terms of their partnership agreement.Otherwise,the applicable laws impose the rights and duties amo