国际商法

International business/commercial 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.国际商法是调整商事活动的法律规范的总称。它调整国际私人商事交易关系和国际商事组织间的关系.

1、法的渊源source of law: refer to the body of rules and norms which judges and other arbitrators will draw upon in deciding a case,and where these rules and norms are to be found.

(2)The sources of international commercial law include domestic law and international law.

1.Domestic law: constitutional law、statute law、administrative law、case law

2.International law: Treaties and convention、international model law、Trade custom、General principles、Judicial decisions or publicists’ writing.

2、Applicability of the CISG适用范围

(1)Applicability: (a) for commercial sales of goods，not for consumer sales.(b)between parties whose places of business are in different countries (nationality not considered)

(2)Sales of goods excluded:排除适用的销售

1、consumer goods sold for personal、family or household use. 2、goods bought at auction(拍卖) 3、electricity. 4、stocks、securities、negotiable instruments、or money. 5、ships、vessels or aircraft. 6、assembly contracts 7、contracts that are in preponderant part for the supply of labor or other services. 8、liability of the seller for death or personal injury caused by the goods parties agree to exclude the Convention or they choose other law.

3、Interpreting CISG的解释

General principles: (a)the duty to communicate information needed by the other party. (b)the obligation to mitigate damage resulting from a breach.

4、General principles laid down in PICC:

(1)Freedom of contract (2)Openness to usages (3)Favor Contracts (4)Observance of Good Faith and Fair Dealing.

5、区别(1) Differences from the German code:

(a)Written in a short period of time; (b)Style and form: Straightforward, easy to read, understandable to everyone.

(2)Differences from the English common law: It contains flexible general rules rather than detailed provisions.

(3)German Civil Code of 16

Characteristics:(a) Incredibly precise and technical.(b)Special terminology is used.

Differences from the French code: It is meant exclusively for the use of trained experts(not lay readers)

6、UK law英国合同分类：（1）contract by deed. (2)contract in writing. (3)contract evidenced in writing. (4)oral contract

7、Essential elements of a valid contract:

(1)an agreement between parties(offer and acceptance). (2)legal sufficient consideration. (3)legal capacity. (4)not for illegal purpose,not contrary to public policy. (5)intention to create legal relations

8、offer

(1)the concept: An offer is a proposal by one person to another indicating an intention to enter a contract under specified terms.

(2)requirements of offer: (a)an offer must be addressed to one or more specific persons. (b)an offer must be sufficiently definite and indicates the intention of the offeror to be bound.

(3)validity of an offer: An offer becomes valid when it arrives at the offeree.

(4)Lapse of offer(失效): (1)on the death either of the offeror or the offeree before acceptance.(2)by non-acceptance within the time prescribed for acceptance.(3)when no time for acceptance is prescribed,by non-acceptance within a reasonable time.(4)express rejection. (5)counter offer.

(5)Revocation of an offer(撤销): The offeror notifies the offeree of the invalidity of the offer so as to be free from it before acceptance of the offeree.

9、Acceptance

(1)concept: Offeree’s manifestation of the intention to be bound to the terms of the other.

(2)requirements of acceptance: (1)must be made by the offeree.(2)must be made within the period of validity.(3)must match the terms of the offer exactly and unequivocally.

10、Consideration

(1)concept: Consideration is some benifit received by a party who gives a promise or performs an act, or some detriment suffered by a party who receives a promise.

(2)General rules(对价满足的原则)

(a)is required for all simple contract (not contracts under seal). (b)must have sufficient value but need not be adequate to the promise. (c)must be possible to perform. (d)must be legal. (e)must be present or future and can’t be past. (f)must move from the promisee(privity of contract). (g)must not be too vague(moral obligation isn’t consideration)

11、General principle of remedies:

(1)the doctrine of compensation补偿原则:(a)doctrine of expectation interest.期待利益(b)doctrine of reliance interest.信赖利益(c)doctrine of restitution interest.归还利益(d)the doctrine of limitations on damages减损原则

12、Specific performance实际履行

Civil law. Specific performance is the usual remedy

Common law. The usual remedy is damages. Specific performance is used only where money damages can’t be calculated or are inadequate.

13、Anticipatory breach of contract预期违约：

(1)definition:One contracting party may inform the other party, before the time fixed for performance under the contract, that he will not perform his obligations under contract.

(2)Remedy: Two Choices

The other party thus entitled to terminate performance immediately and claim damages at the date of the acceptance of the breach.

He can also select to affirm the contract and demand performance at the time stipulated in the contract.

13.SOGA

The Sale of Goods Act 1979 is an Act of the Parliament of the United Kingdom which regulates English contract law and UK commercial law in respect of goods that are sold and bought.

14.UCC

The Uniform Commercial Code (UCC or the Code), first published in 1952, is one of a number of uniform acts that have been promulgated to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America.

14. Partnership Law

1.Definition : Partnership is the relationship which subsists between persons carrying on a business in common with a view to profit.

2.requirements :

two or more persons;

carrying out a business;

as co-owners/co-ownership: profit+management;

for profits;

intent (to form a partnership).

15. Limited Partnership有限合伙

A limited partnership is a form of partnership similar to a general partnership, but in a limited partnership, besides one or more general partners, there are one or more limited partners. 由至少一名普通合伙人(general partner)和至少一名有限合伙(limited partner)组成的企业，前者对合伙企业的债务负无限责任，后者则只负有限责任，即仅以其出资额为限对合伙承担有限责任。

features:

(1) A limited partnership has 2 to 50 partners. One or more of the partners in the partnership must have unlimited liability for the debts of the firm. This means that although some partners are limited partners, at least one of the partners cannot be a limited partner.

(2) The general partners have management control, and have joint and several

liabilities for its debts. While the limited partners cannot participate in the management and control of the partnership’s business; their liability for the debts of the partnership is the capital contributions to the partnership.

16. Limited Liability Partnerships (LLP)

1.Legislation over LLP

The Limited Liability Partnership Act 2000 (LLPA 2000) allowed the formation of the Limited Liability Partnership. The intention was to create a form of corporate body that combines the advantages of the corporate form of companies with the flexibility of a partnership.

2.features of LLP

LLPs have much more in common with COMPANIES than standard partnerships. Some of the major professional firms in the UK, including major firms of accountants and auditors, have turned themselves into an LLP.

1. It has a legal personality, separate from individual partners:

It can own property in its own right.

It can create ‘floating charges’ over its business assets.

It can enter into a contract in its own name, as a party to the contract.

It can sue and be sued in its own name.

2.Must be registered with the Registrar of Companies, with formation documents signed by at least two members. The designated member(s) is responsible for administration and filing

3.Partners are known as members, of which there must be at least two (no upper limit applies).

4.The name of the partnership must end with LLP.

5.LLPs must file annual returns and accounts, where applicable an audit is also required.

6.Every member of an LLP is an agent of the LLP, with power to bind the LLP to contracts with other parties within the scope of their actual, implied and apparent authority.

7.The liability of all partners is limited to their capital investment in the partnership. An LLP, like a company, provides limited liability for its owners.

8.For tax purposes LLPs are treated as a partnership. In other words, the profits of the partnership are not taxed directly, unlike the profits of a company. The individual partners in an LLP are taxed personally on their share of the partnership profits, which is treated as one of their sources of taxable income.

15.Types of Company

1.UK Law

(1) Unlimited companies

Unlimited companies share all features of separate legal personality as limited companies, save for the limited liability afforded to its members. Such companies do not have to file their accounts, are free to purchase their own shares.

(2) Companies limited by guarantee

Those that limit the liability of its members to an agreed amount, often being a nominal figure for the protection of the guarantor(s). Certain non-trading entities such as charities and educational establishments may adopt this company form as it allows them to drop the suffix ‘Ltd’ from most of the company’s documents.

(3) Private limited companies

Private limited companies account for most of the registered companies in the UK. These are companies that limit the liability of members to any amounts unpaid on their share capital. Private companies are subject to many aspects of company law, but they are less regulated than public companies.

(4) Public Limited companies

Similar to private limited companies in that they limit the liability of their members via the use of shares. However, in a plc, its shares or debentures may be advertised for sale to the general public, and a stock market listing may be applied for. Not all plcs are listed on a stock market.

15. Separate Legal Personality

1.Salomon v Salomon & Co and the General Rule

The concept of separate legal personality was permitted to be applied to private companies in the case of Salomon v Salomon & Co. In essence, it was established that the members of a company were separate legal persons to the company itself, separated by the “veil of incorporation”.

Salomon v Salomon & Co Limited [17]

Salomon was a leather merchant. He formed Salomon & Co Limited. Salomon and six members of his family each subscribed for one share. The company then bought Salomon’s leather business, and paid for it with 20,000 new shares, debentures of £10,000. Salomon therefore held 20,001 of the company’s 20,007 shares. The company was unsuccessful and later wound up. The liquidator, representing the company’s unpaid creditors, argued that Salomon personally should be liable for unpaid debts, and that Salomon should not be a creditor of the company for the amount of the debenture debt.

The ruling in the case was that the business was owned by the company and the debts were liabilities of the company. Salomon as an individual was under no further liability to the company or its creditors, and he was a secured creditor of the company owed £10,000 for the debenture debt.

16. Lifting the Veil (例外规则）

In some circumstances, the veil of incorporation allows people to evade their legal obligations, or use companies to commit frauds.

Therefore, there are common law and statutory exceptions to the general rule in Salomon v Salomon. Under these exceptions, the veil is lifted, so that members/directors of a company can be held personally liable for company debts.

17. Key distinctions between ordinary and preference shares:

Feature Ordinary Preference

Dividends Variable Fixed, cumulative

usually

Voting rights Yes Restricted

General meetings May attend and vote Restricted

Liquidation Rank last;Entitled to capital and share of surplus. Rank

above ordinary shares;Entitled to repayment of capital only

18.Debentures债券

(1)概念：Debentures are a form of loan capital a company can use to raise finance. In strict legal term, they are documents that acknowledge borrowing by a company. When a company borrows under the terms of a debenture, the debenture holders are lenders to the company, and are therefore creditors of the company.

(2)Main differences between shares and debentures:

Shares Debentures

Status Member Creditor

Returns Dividends, variable Interest, fixed

Issued Never at a discount Discounted/ At Par/ Premium

Security None Fixed/ Floating charges

Liquidation Rank last Rank first

19.Charges

1. Nature of a charge: How does it work?

A charge is a form of security. A charge over a company’s assets gives the creditor or lender a prior claim, ahead of unsecured creditors and shareholders of the company, to repayment of his debt out of the proceeds from those assets. There are two types of charges: fixed charges and floating charges.

2.Fixed charges

(1) Definition

A charge on specific assets. It applies to the asset from the moment that the charge is created, and it remains attached to the asset until the debt is repaid. The asset most commonly subject to fixed charges is land, although any other long-term capital asset may also be charged.

(2) Features of fixed charges

They attach to specific assets upon creation.

Charged asset may not be FREELY disposed of by the company.

Default by the company enables the charge holder to sell the asset and recover monies owed.

Upon liquidation, fixed charge holders rank first.

20.Directors: major types

A company is an artificial person, and cannot manage itself. Companies therefore have individuals to give it leadership and direction. This is provided by the board of directors. A company may have several different types of directors.

21.Executive director

Someone employed to be a member of the company’s board, involving themselves in the daily management of business. Most executive directors work full-time for the company, and may have a contract of employment. They receive a remuneration package that includes a salary.

22. Non-executive director

A part-time board member, with no daily management responsibility and attending board meetings only. They receive a fee for their services, not a salary. Eds and NEDs have the same duties as directors and share the same powers and responsibilities, and they are all involved in decision-making. It is widely acknowledged that boards are more effective if they comprise both executive and non-executive directors.

23. Managing director (MD)

A company may appoint one or more managing directors who have the

implied actual authority to enter into commercial contracts on behalf of the company. A managing director (MD) has wider apparent powers than any director who is not appointed an MD. A managing director may be given the title of CEO.

24.Shadow director

A person might seek to avoid the legal responsibilities of being a director by avoiding appointment as such but using his power, say as a major shareholder, to manipulate the acknowledged board of directors. It was in order to regulate such potential activity by those who exercise control over companies from behind the scenes that the concept of the shadow director was introduced.

26. Directors’ Authority and Duties

Directors’ powers are derived from the AoA of the company and the laws of agency. The board of directors may exercise “all the powers of the company”, though this power is given to the board collectively as a whole, not individual directors.

Individual directors have power to bind the company if they have ANY of the following:

(a) Express (actual) authority: per their service contract, the articles, or delegated by the board;

(b) Implied (actual) authority: from the position held. For example, it would be appropriate for a third party to believe that an MD has authority to bind his company to a contract.

(c) Apparent authority: In addition to having actual authority (express or implied), an director may also have ostensible/apparent authority, which is wider than either express or implied authority. Apparent authority exists when a company allow a third party to believe (hold out) that an individual has authority to bind the company, even when actual authority (express or implied) does not exist.

Directors’ general duties

(1) Acting within the Company’s constitution. (2) Promote the success of the company. (3) Independent judgment.(4) Reasonable skill, care and diligence.(5) Avoid conflicts of interest.(6) Benefits from third parties.(7) Duty to declare to the company’s other directors any interest a director has in a proposed transaction or arrangement with the company.

28.Company Meetings and Resolutions

1. AGM & extraordinary general meeting

A company may call the following types of meeting:

(a) Annual General Meeting (AGM): called by the company’s directors;

(b) Extraordinary/Interim general meeting: called when required by the directors, or members owning 10% of the share capital.

2. Resolutions

Any company may pass the following resolutions: ordinary resolutions and special resolutions.

3. Ordinary resolutions

An ordinary resolution is passed if it receives the support of a simple majority. The articles of association of the company should specify matters for which an ordinary resolution of members is required. As a general rule, ordinary resolutions are sufficient for fairly ‘routine’ and relatively unimportant decisions.

4.Special resolutions

A special resolution is passed if it receives the support of at least 75% (UK law) or 2/3 (Chinese law) of the members who attend and vote. Situations where a special resolution of the members is required:

alter the company’s articles of association

change the company’s name

reduce the company’s share capital

29. Liquidation

1. Definition of liquidation

Winding up, or liquidation, is the process whereby the life of the company is brought to an end. The assets are realized, debts are paid out of the proceeds, and any surplus amounts are returned to members. Liquidation leads on to dissolution of the company.

30.Scope of Intellectual Property in WIPO

Article 2(viii) provides that “intellectual property shall include rights relating to:

literary, artistic and scientific works 文学、艺术和科学作品

performances of performing artists, phonograms and broadcasts表演艺术家的表演以及唱片和广播节目

inventions in all fields of human endeavor人类一切活动领域内的发明

14.Particular average(单独海损): A partial loss of the subject matter insured caused directly by a peril insured against. No other cargo sacrificed to save the voyage and the owner who suffered the damage refer to the insurance company

provided his policy covers the specific loss.

General average(共同海损)：A partial and deliberate sacrifice of the ship,freight,or cargo,or additional expenses incurred to rescue a ship and its cargo from impeding danger or for the common safety of the adventure under a peril of the sea or some other hazards. The party suffering G.A is entitled to a ratable contribution from the other parties interested.

15、major types of charter parties:

Bareboat charter/Demise charter 光船租船

Time charter party 定期租船/期租

Voyage charter party 定期租船/航租

(1)Bareboat charter:ship-owner leases entire vessel and has lost control of it.Charter has responsibility of operating it as though it were his own vessel. Charter pays all expenses(fuel,stores,provisions,harbor dues,pilotage)and employs and pays the crew. There may be a clause in the charter party that master and chief engineer must be approved of by ship-owner. Charter is responsible for the upkeep, preservation and safety of the vessel.

(2)Voyage charter party航租: A charter party for carriage of a full cargo, not for a period of time, but for one voyage only, between named ports. Charter

assumes no responsibility for operation of vessel but pays stevedoring expenses in and out. Charter is particularly concerned with the laytime, dispatch and demurrage.

(3)Time charter party期租: A contract between the shipowner and charterers by which the shipowner agrees to let and the charter to hire the vessel for the specified term for employment. Owner almost always pays the wages of the master and crew.

Charterers provide coals and pay port charges.

Freight is usually made payable monthly advance.

Master is required to obey the orders of the charterers as regards the employment of the vessel.

16、copyright and related rights

1. Subject Matter (保护对象):Literary, Artistic and Scientific Works

2.Threshold of Protection(版权保护的最低要求)

Originality(独创性) or Intellectual Creation (智力创作)、Authorship (作者创作)、 Fixation (固定)

3.Rights Comprised in Copyright

Economic Rights (经济权利) :Economic Rights (经济权利) are concerned with protecting the economic interests of copyright owners.

Moral Rights (精神权利):Moral Rights (精神权利) are concerned with protecting the personality and reputation of authors.

Related Rights (邻接权)

17.Patentable Subject Matter：General Rules

Patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. (TRIPS Art. 27)

The conditions of patentability are expressed differently.

18.Patentability (Subject Matter: Invention)

Utility (实用性)：The invention must be capable of being used in any kind of industry (including agriculture)

Novelty (新颖性)：An invention must not have been available to the public prior to the original application date.

Inventive Step (创造性)：The invention must not merely be something new; it must represent a development over prior art. in different jurisdictions.

19. Exceptions of Patentability

(1) scientific discoveries; 科学发现(2) rules and methods for mental activities;智力活动的规则和方法(3) methods for the diagnosis or for the treatment of diseases;疾病的诊断和治疗方法(4) animal and plant varieties;动物和植物品种(5) substances obtained by means of nuclear transformation.用原子核变换方法获得的物质

20. Alternative dispute resolution (ADR) 概念、种类、优缺点

概念：(also known as external dispute resolution in some countries) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement other than litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party.

When disputes arise between the seller and the buyer, there are four ways to settle down in sequence: negotiation, mediation, arbitration and litigation.

Friendly negotiation and mediation are the most popular ways in the process of dispute settlement, which are able to maintain friendship between the exporter and the importer.

When negotiation and mediation do not work, the two parties may turn to arbitration and litigation. Litigation is usually costly and time-consuming. Compared with litigation, arbitration is a better alternative.

21. Arbitration Defined and Advantages仲裁概念、优缺点

1) Arbitration Defined

Arbitration is a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding.

Non-judicial legal technique for resolving disputes by referring them to a neutral party for a binding decision, or “award”(arbitral verdict).

2) Advantages of arbitration

1) Procedural flexibility. 2) Neutrality. 3) Selection of arbitrators. 4) Time and costs. 5) Confidentiality 秘密性

22.代理关系的建立Formation of Agency Relations

1. With the consent of principal

(a) Express agreement between the agent and principal;

(b) Implication: The position that someone holds may imply they have the power to bind, such as partners in a partnership, or directors in a company;

(c) Ratification追认: Where although the purported agent acted without

authority, the principal retrospectively ratifies the contract when: principal existed, have the legal capacity, within reasonable time, entire ratification, sufficiently clearly express to the third party.

23.代理人的代理权限： Authority of Agents

1) Where an agent’s authority has been agreed with the Principal, verbally or in writing, then their authority is said to be actual express authority.

2) Implied (by their position) authority: In the absence of express authority, the agent’s power to bind may be implied by the position held, for example the Managing Director and Company Secretary.

3) Apparent/ostensible authority: arising in two ways:

Where a person makes a representation to third parties that another person has the authority to act as his agent, even though he has not actually been appointed as agent.

Where a person has previously represented to a third party that another person has the authority to act as his agent and the authority was subsequently taken away/ended, but the third parties who previously dealt with the agent have not been informed of this fact.

25.1.Criteria of Protectability

(a)Distinctiveness(显著性、识别性): the function to distinguish products or services. The distinctive character of trademarks must be evaluated in relation to the context, namely the goods or services to which the trademark is applied.

(b)Public order and morality (公序良俗)

2.Exclusions from Registration

(a)Signs conflict with earlier non-trademark rights, such as copyright, patent, name, design, portrait, publicity

(b)Functional signs: signs (generally shapes or packages) resulting from the nature of the good, necessary to obtain a technical result or substantially valuable for the good itself.