國際商法考點期末考試

1、商法考點chapter 1 1. international law is not really law since there is no worldwide legislature to enact it. f 2. comity is not law because countries do not regard it as something they are required to respect. t 3. international law exists when there is a consensus of the international community. t 4.

2、to establish the existence of a customary rule of international law, one must show that the international community has observed the rule for a long period of time. f 5. general principles of international law are based on legal rules that are common to both (or all) the state parties to a dispute.

3、t 6. international tribunals generally regard states as having an obligation to bring their municipal law into compliance with international norms. t 7. a self-executing treaty is one that contains a provision that says the treaty will apply in the parties municipal courts once the parties have adop

4、ted domestic enabling legislation. f 8. recognition of a government is usually made in a bilateral agreement. f 9. when a part of the territory of state x shifts and becomes part of the territory of state y, the treaties made by state x continue to apply to that territory. f 10. an intergovernmental

5、 organization is a permanent organization set up by two or more states to carry on activities of common interest. t 11. state a disintegrates into states b and state c. the public property of state a located in state d becomes the property of d. f 12. territorial sovereignty is the absolute and unqu

6、alified right of a state to exercise its functions within a territory. f 13. the phrase “ united nations system” refers to the rules of international law enacted by the general assembly of the united nations. f 14. the european parliament must approve all of the international treaties that the europ

7、ean union enters into. t 15. traditionally, an individual s rights under international law are only protected by his state of nationality. t 16. the roman law was first codified in the corpus juris civilis around the year 534 a.d. f 17. the name “ common law ” (as it is used in england) is derived f

8、rom 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. f 18. the shari a is primarily a moral and ethical code. f 19. equitable remedies are available only when legal remedies are unavailabl

9、e or inadequate.t 20. the german civil code of 1896 is noted for being precise and technical. t chapter 3 diplomacy is the process of reconciling the parties to a disagreement by negotiation, mediation, or inquiry. t negotiation is the process of reaching an agreement by discussion. t mediation is t

10、he use of a third party who transmits and interprets the proposals of the principal parties, and sometimes, advances independent proposals. t inquiries are a popular way to resolve disputes between states, with many thousands of international inquiries having been made in the last 50 years. f a deci

11、sion of the international court of justice has no binding force except between the parties and only in respect of the particular case. t panelists who serve on a wto dispute settlement panel serve as representatives of their member states. f the international center for the settlement of investment

12、disputes (icsid) was created to encourage private investment in underdeveloped countries. t under international law, the jurisdiction of a municipal court to try an international dispute is essentially unlimited. f a municipal court has in personam jurisdiction when an individual or juridical person

13、 is physically present within the forum state. t sovereign or state immunity is a doctrine that says that domestic courts must decline to hear cases against foreign sovereigns out of deference to their roles as sovereigns. t choice of law clauses are valid and enforceable in all municipal courts so

14、long as they were freely entered into. t according to the doctrine of forum non conveniens, a court is required to dismiss a case when it would be either unfair to one of the parties to go ahead and hear the case or it would be a burden on the court if it were to go ahead. f an antisuit injunction f

15、orbids a litigant from bringing a suit within the litigants home state. f according to the vesting of rights doctrine, a court is to apply the law of the state where the rights of the parties to a suit legally became effective. t chapter 4 in civil law countries, a company can be an association of p

16、ersons or of capital. t none of the partners in a civil law limited partnership have no personal liability for the debts of the business. f in a civil law country, a person may be both a limited partner and a general partner in the same limited partnership. f a civil law stock corporation can raise

17、money in the public marketplace through the sale of freely transferable shares. t the limited partners in a common law limited partnership can openly participate in the management of the business without incurring liability for the debts of the business. f civil law limited liability companies are a

18、 popular business form widely used when setting up subsidiaries. t all of the partners in a common law secret partnership have unlimited personal liability for the debts of the business. t in common law countries, more shares may be authorized for issuance by a public corporation than are required t

19、o get a business started. t the owners of a company (or corporation) may act on its behalf both as agents and as representatives. f a nonmultinational is a domestic firm functioning in the international marketplace through a foreign agent. t a national multinational is a firm in one country that ope

20、rates in other countries through branches and subsidiaries. t an international multinational is a business organization with two or more parent companies located in different states operating through jointly owned subsidiaries. t a joint venture is a subsidiary company that in turn owns other subsid

21、iaries. f host states may regulate foreign firms in the same way that they regulate local firms. t negligence and strict liability may be used in japan to impose product liability on a manufacturer of a defective product. f chapter 7 1. the world trade organization is a new supranational organizatio

22、n with the power to usurp sovereignty from its member states.t 2. the membership of the wto is limited to states. colonies, territories, provinces, and so forth, are not eligible for membership, even if they are responsible for conducting their own trade policies. f 3. the wto ministerial council me

23、ets at least every other year to oversee the operation of the wto.t 4. consensus is the making of a decision by a super-majority vote, such as by two-thirds or three-quarters of the representatives present. f 5. the wto s understanding on rules and procedures governing the settlement of disputesesta

24、blishes a unified system for settling disputes that arise under the wto agreement and its annexes. t 6. the general agreement on tariffs and trade was substantially rewritten in 1994, and the provisions of gatt 1994 differ dramatically from those of gatt 1947. f 7. none of the provisions of gatt 199

25、4 are directly effective; that is, a private person in a suit may invoke none of them. f 8. gatt 1994 s “ most favored nation rule” requires a country to treat products equally with its own domestic products once they are inside that border. f 9. gatt 1994 s “ south -south preferences” allows develo

26、pi ng countries to exchange tariff preferences among themselves without extending the same preferences to developed countries. t10. gatt 1994 forbids (with few exceptions) member states from protecting their domestic industries by any means other than tariffs. t 11. gatt 1994 requires member states

27、to disclose to other member states and the public the rules, regulations, and practices that they follow in their domestic trade systems. t 12. once a free trade agreement or customs union is established, the gatt rules apply to the union or area as a whole and not to its constituent states. t chapt

28、er 7- case analysis country a, a wto member state, imposes a 25 percent tax on sales of “ cola ” soft drinks. all other soft drinks are taxed at a 5 percent rate. cola soft drinks make up 70 percent of the soft drink market in country a, and all of the cola soft drinks are imported. the non-cola sof

29、t drinks are all manufactured locally. country b, another wto member state, complained to country a that its tax on cola soft drinks violates the gatt s national treatment rule. country a disagreed. country b has now asked the wto to establish a panel to resolve this dispute. how should the panel ru

30、le? chapter 7- case analysis gatt art. iii(1) says that taxes should not be imposed so as “ to afford protection to domestic production.” the meaning of the phrase “ like products” must be determined on a case-by-case basis. in particular, the products need to share common end-users and have essenti

31、ally the same physical characteristics. here cola and non-cola soft drinks seem to share the same end users and have the same basic physical characteristics. they are like products. gatt art. iii(2) requires that taxes on imported products not exceed those of domestic products, so the tax on the col

32、a soft drinks must be reduced to 5 percent. chapter 10-q2 no. the retailer made an invitation to treat, then there is no contract in this case. under article 14, an offer must be “ addressed to one or more specific persons ” in this case, the catalogue was addressed to the public, because the retail

33、er ordinarily intend for their catalogues to have as wide a circulation as possible, and they would be happy to have them passed on to others. the phrase “ offers addressed to specific persons ” actually means “ offers restricted to the particular addressees.” to conclude, the catalogue does not mee

34、t the requirements of an offer under art.14 of cisg, then there is no contract in this case. chapter 10-q3 there is no contract under cisg, because the withdrawal was effective. cisg article 15(2) states that firm offers may be withdrawn if the withdrawal reaches the offeree “ before or at the same

35、time” as the offer. in this case, the withdrawal reached the offeree before the offer, since the recorded withdrawal message was delivered to buyer s place of business prior to buyer s receipt of the offer. therefore, there is no contract in this case. chapter 10-q4 there is no contract under cisg,

36、because buyer rejected the offer. cisg article 17 clearly states that “ an offer, even if it is irrevocable, is terminated when a rejection reaches the offeror.” because the rejection reached the seller before the acceptance, the offer is rejected. therefore, there is no contract in this case. chapt

37、er 10-q5 buyer need do nothing. under cisg article 18, an offeror cannot make silence or inactivity grounds for acceptance of his offer. only if the offeree had agreed in advance that his silence or inactivity would constitute acceptance would there be a contract in this situation. therefore, the bu

38、yer has not responsibility to accept the offer. chapter 10-q6 buyer breach the contract. article 29(2) says that “ a contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated by agreement.” it go

39、es on to add, however, that “ a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct.” in this case, clearly, seller relied on buyer s conduct. chapter 10-q7 no, the buyer is not able to avoid the contract. the notice buy

40、er gave seller does not amount to an article 47 nachfrist notice, because it did not set a fixed date nor demand final performance by that date. the wire should have said something such as “ the last date on which buyer will accept delivery is february 1. ” chapter 10-q8 buyer bears the risk. articl

41、e 68 says that the risk passed to buyer at the time the contract was signed since the goods were already in transit. if buyer has insurance, he may have a difficult time collecting on it, since the time when the damage occurred is uncertain. by agreement, seller and buyer could have agreed that the

42、risk passed to buyer at the outset of the voyage. for the purpose of asserting an insurance claim, this would have simplified matters. chapter 10-q9 under article 73, buyer may avoid the entire contract since the three programs are clearly interdependent. seller will have to take back the programs d

43、elivered in january and february (and return the price buyer paid), and buyer may refuse delivery of the third (the march) program. chapter 10-q10 buyer may ask for damages. if buyer does not obtain substitute barrels, he will be entitled (under article 76) to the current price at the place of deliv

44、ery; that is, $18 a barrel, or $450. if this had been a case involving force majeure, buyer would not have been entitled to damages, but only a price reduction. article 50 provides for a proportionate price reduction, so under that rule, the final price would be reduced to $14 a barrel, or $350. 考點解

45、析：chapter one：1. international law(國際法 ): 3 kinds of international relationships: states and states; states and persons; persons and persons. public international law(國際公法 ): historically, dealt with the rules and norms regulating the relationships between states (countries). this law between nation

46、s is called public international law; private international law(國際私法 ): with growth of relationships between persons and corporations in different states, private international law developed to govern their conduct 2. comity(禮讓 ): is the practice between states of treating each other with goodwill a

47、nd civility. it is not law, because states do not regard it as something they are required to respect. 3. sources of international law: treaties or conventions; international custom; general principles of law recognized by civilized nations; judicial decisions and teachings of highly qualified legal

48、 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.)treaties(條約 ): are legally binding agreements between two or more states. conventions: (公約 )legally binding agreement b

49、etween states sponsored by an international organization. (eg: un) custom : a long-established tradition or usage that becomes customary law(習(xí)慣法 ) if it is：consistently and regularly observed, and (evidence of this found in official statements of governments, opinions of legal advisors, executive de

50、crees, orders to military forces, and court decisions.); recognized by those states observing it as a practice that they must obligatorily follow. general principles of law and jus cogens: courts will often rely upon general principles of law that are common to the legal systems of the world to solv

51、e international disputes. jus cogens is a peremptory norm of general international law, recognized by the international community as a norm from which no derogation is permitted.jus cogens - states must respect certain fundamental principles. treaties are void if they conflict with jus cogens. 4. in

52、ternational persons: states: (含義 ) are political entities that have a territory, a population, a government capable of entering into international relations, and government capable of controlling its territory and peoples. independent states: free from the political control of other states and free

53、to enter into agreements with other international persons. dependent states: have formally surrendered some aspect of their political and governmental functions to another state. inchoate states: lack some attribute required to be treated as a fully independent state; most commonly they lack territo

54、ry or population. with a change in sovereignty over territory, several legal consequences arise and we apply the following rules: successor states are bound by dispositive treaties treaties concerned with rights over territory (boundaries & servitudes.) merger rule treaties in effect in a former

55、 state remain in effect in its territory when it becomes part of a new state. (ex: treaties of both egypt and syria remained in effect when they merged into the united arab republic). moving boundaries rule treaties of state absorbing new territory become effective within absorbed territory. interna

56、tional organizations: intergovernmental organization (igo) is a permanent organization set up by two or more states to carry on activities of common interest. private or nongovernmental organizations (ngo)is an international organization made up of organizations other than states. may be nonprofit n

57、go or for-profit multinational enterprise (mne). igo must be recognized to have legal capacitythe qualification or authority to deal with other international persons. a: the united nations: most important igo; its charter is a multilateral treaty; operates though its organs an agency that carries on

58、 specific functions within a larger organizations. un organs are the general assembly , the security council , the international court of justice , the trusteeship council, and the economic and social council. united nations system name given to various autonomous organizations (also igos) that have

59、 entered into agreements with the un to be un agencies.(如圖所示 ) b：the european union: the european union is a 25-member igo created by the founding states in order to integrate their economies and political institutions;the european treaty in 1992 established a: political union； common citizenship fo

60、r nationals of member states; social charter , monetary union , central bankand common currency(the euro). eu has supranational powers: are powers surrendered by member states to an igo. eu law is superior to the laws of member states. this means: the member states are required to bring their internal l