2023年国际贸易法律实务试题.doc

名词解释

1、 offer and acceptance
Offer and acceptance analysis is a traditional approach in contract law used to determine whether an agreement exists between two parties. An offer is an indication by one person to another of their willingness to contract on certain terms without further negotiations. A contract is then formed if there is express or implied agreement. A contract is said to come into existence when acceptance of an offer has been communicated to the offeror by the offeree.
An offer is an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed, the "offeree".
The "expression" referred to in the definition may take different forms, such as a letter, newspaper, fax, email and even conduct, as long as it communicates the basis on which the offeror is prepared to contract.The "intention" referred to in the definition is objectively judged by the courts.
Acceptance is a final and unqualified expression of assent to the terms of an offer.
Alternatively, an offer consisting of a promise to pay someone if the latter performs certain acts which the latter would not otherwise do (such as paint a house) may be accepted by the requested conduct instead of a promise to do the act. The performance of the requested act indicates objectively the party's assent to the terms of the offer.

2、 信用证

3、 尤其提款权

4、 独占许可

5、 国际特许专营
International Franchising
The U.S. has experienced an explosion in business format franchising in the last two decades.
the most efficient business model for distributing goods and services and the very advanced U.S. free market economy rewards efficiency above all..
Essentially franchising is a very specific method or way of distributing goods and services.
It has been around in one form or another since man first began to engage in commercial enterprise. It has evolved from a simple grant of a right or privilege in the middle ages to the sophisticated business format franchise concept of today
Modern day franchising is primarily in the business format mode. This type franchising not only grants the right to use the name and sell the products or services of the franchiser but it also involves the transfer of the total way of doing business that has been developed by the franchiser

6、 市场经济国家
Market Economy Nations

7、 仲裁
Arbitration
The essence of arbitration is that it is an agreement between two or more parties to try to resolve a dispute outside of the court system.
The parties agree upon a third party as an arbitrator who will act as a judge and jury. After giving the parties the opportunity to present their side of the story and to present any relevant documents or other evidence, the arbitrator will act as King Solomon to decide who wins and who loses.
Arbitration Award
"binding" arbitration generally means that the winning party can take an arbitration award to a court of law and enforce it if the losing party does not comply with the terms of the decision.
"Non-binding" arbitration refers to a situation where the parties agree to use arbitration as a forum to try to resolve their differences, but neither party is bound to comply with any decision by the arbitrator.

简答

1、 rules of acceptance
Acceptance is a final and unqualified expression of assent to the terms of an offer.
Alternatively, an offer consisting of a promise to pay someone if the latter performs certain acts which the latter would not otherwise do (such as paint a house) may be accepted by the requested conduct instead of a promise to do the act. The performance of the requested act indicates objectively the party's assent to the terms of the offer.
Communication of acceptance.
There are several rules dealing with the communication of acceptance:
The acceptance must be communicated:
Depending on the construction of the contract, the acceptance may not have to come until the notification of the performance of the conditions in the offer. but nonetheless the acceptance must be communicated.
Prior to acceptance, an offer may be withdrawn.
An offer can only be accepted by the offeree, that is, the person to whom the offer is made.
An offeree is not bound if another person accepts the offer on his behalf without his authorisation:
It may be implied from the construction of the contract that the offeror has dispensed with the requirement of communication of acceptance. If the offer specifies a method of acceptance , you must accept it using a method that is no less effective than the method specified. Silence cannot be construed as acceptance:

2、 cisg合用范围
The United Nations Convention on Contracts for the International Sale of Goods (the “CISG”) is one of the documents produced through the diplomatic efforts of the United Nations Commission on International Trade Law (“UNCITRAL”). 
The CISG attempts to bridge the gap between the different legal systems of the world, mainly between the civil law (French and German sub-traditions) and the common law (English and American sub-traditions), by creating a uniform law for the international sale of goods (preamble of the CISG). The CISG governs the formation of the contract of sale as well as the rights and obligations of the buyer and seller (including their remedies). It came into force on 1 January 1988 for those countries that were then parties to it.
The Sphere of Application of CISG
(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States
(a) when the States are Contracting States; or
(b) when the rules of private international law lead to the application of the law of a Contracting State.
(2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract.
(3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention.

3、 买方或者卖方旳救济措施
Remedies for breach of contract by the seller
(1) If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may:
(a) exercise the rights provided in articles 46 to 52;
(b) claim damages as provided in articles 74 to 77.
(2) The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies.
(3) No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract.
Remedies for breach of contract by the buyer
(1) If the buyer fails to perform any of his obligations under the contract or this Convention, the seller may:
(a) exercise the rights provided in articles 62 to 65;
(b) claim damages as provided in articles 74 to 77.
(2) The seller is not deprived of any right he may have to claim damages by exercising his right to other remedies.
(3) No period of grace may be granted to the buyer by a court or arbitral tribunal when the seller resorts to a remedy for breach of contract.
The seller may require the buyer to pay the price,
The seller may declare the contract avoided
(a) if the failure by the buyer to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or
(b) if the buyer does not, within the additional period of time fixed by the seller in accordance with paragraph (1) of article 63, perform his obligation to pay the price or take delivery of the goods, or if he declares that he will not do so within the period so fixed;
However, in cases where the buyer has paid the price, the seller loses the right to declare the contract avoided unless he does so:(a) in respect of late performance by the buyer, before the seller has become aware that performance has been rendered; or(b) in respect of any breach other than late performance by the buyer, within a reasonable time:

4、 两个图写流程 13条

5、 排他许可双方旳权利义务关系

6、 判断市场经济国家旳原则
Criteria of Market Economy
1．It differs from either historical self-sufficient economy or planned economy,
2.Criteria of Market Economy as Defined by Relevant Antidumping Laws of the USA, the EU and Canada
3."Non--Market Economy Countries" as referred to by the US Department of Commerce are countries whose operation does not follow market costs or price rules

Criteria of Market Economy as Defined by the USA：
"Non--Market Economy Countries" as referred to by the US Department of Commerce are countries whose operation does not follow market costs or price rules
six statutory requirements：
(1) the extent to which the currency of the foreign country is convertible into the currency of other countries;
(2) the extent to which wage rates in the foreign country are determined by free bargaining between labor and management;
(3) the extent to which joint ventures or other investments by firms of other foreign countries are permitted in the foreign country;
(4) the extent of government ownership or control Of the means of production;
(5) the extent of government control over the allocation of resources and over the price and output decisions of enterprises, requesting that decisions concerning the output and prices of an industry are free of government intervention and that all important product inputs are paid at market prices;
(6) such other factors as the administrating authority considers appropriate. 7

Criteria of Market Economy as Defined by the EU
(1) prices, costs and inputs etc are determined by market demand and supply;
(2) firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purpose.
(3) The production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market economy system, in particular in relation to depreciation of assets, other write-offs, barter trade and payment via compensation of debts.
(4) The firms concerned are subject to bankruptcy and property laws that guarantee legal certainty and stability for the operation of firms, and,
(5) exchange rate conversions are carried out at the market rate.

Criteria of Market Economy as Defined by Canada"non-market economy"
（1）is the government's role in formulating economic policies and controlling economic activities interfering the normal performance of the market economy? This includes the percentage and structure of governmental influence in pricing, distribution of products and procedures for making offers; the pricing mechanism of domestic products and services; planning and controlling of production of commodities and provision of services and market restrictions; the control of domestic and international trade; further reforms in the structure and functions of government organizations
(2) how does the government control or govern enterprises in respect of production, sales and procurement? And how is control or governing applied in connection with enterprises' financing?
(3) in respect of international trade, the conditions and procedures foreign trade enterprises must comply with the government to allow them to carry out foreign trade businesses; government guidance and control in respect of quotas and prices of import and export products.
(4) market-oriented reforms of state-owned enterprises, including the existing types of owner-ship, when and how the ownership system was transformed; in the state-owned enterprises under government control, the mechanism for determining prices of elementary factors such as raw materials, energy, labor cost as well as quantity and prices of their products, the managing of enterprises' funds and performance, the distribution of profits, the relationship between employers and employees and the availability of loans etc.
(5) whether there are different interest rates for different enterprises, industries and domestic and international trade departments. Whether exchange rates are determined by the market as far as exporters are concerned and whether enterprises enjoy autonomy in obtaining foreign exchanges and keeping foreign exchanges, etc.

7、 有瑕疵旳仲裁协议旳法律效力

论述

1、 买卖双方旳救济措施

2、 仲裁裁决旳撤销

案例

1、 越南鱼

2、 货品贸易

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