国际商法(双语)复习资料.doc

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1、Functions of law:
①Keep the peace
②Enforcing standards of conduct and maintain order
③Facilitating planning
④Promoting social justice

2、Definition of contract( in China ):
A contract shall be an agreement whereby the parties establish, change or terminate their civil relationship.

3、Offer:
Definition: offer is a proposal by a person to another indicating an intention to enter into a contract under specific terms.
Requirements for an offer: ①Intention：订立合同的意愿the offer’s words must give the offeree assurance that a binding agreement is intended.
②Definiteness: 明确具体indicates or describes the goods or services, expressly or implicitly specifies the quantity and the price for the goods.
③Communication: 传到到受要约人an offer becomes effective when it reaches the offeree.

4、Superior force: 不可抗力
Is a clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties prevents one or both parties from fulfilling their obligations under the contract.
Elements: externality, unpredictability, irresistibility.

5、Damages:
Compensatory damages provide a plaintiff with the monetary amount necessary to replace what was lost and nothing more.
To place the claimant in the position in which he would have been had the contract not been breached.
Direct losses, consequential losses, pain and suffering, liquidated damages(约定损害赔偿).

6、Fundamental breach: 根本违约
A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract. 一方当事人违反合同的结果，如使另一方当事人蒙受损害，以至于实际上剥夺了他根据合同规定有权期待得到的东西，即为根本违反合同。

7、Remedies for the buyers
Buyer’s right to compel performance:要求实际履行 the buyer may require performance by the seller of his obligations. If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract; If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair.
Buyer’s right to avoid the contract: 撤销合同 the buyer may declare the contract avoided： the seller commits a fundamental breach or The buyer gives the seller a Nachfrist notice and the seller rejects it or does not perform within the period it specifies.
Remedy of reduction of price: 减价赔偿 If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time.
Price reduction applies to the special situation:
The buyer accepts goods
The seller must not be responsible for the nonconformity
实际所交货物交货时的价格/符合合同规定的货物交货时的价格
Non-conformity of part of the goods:部分不符 (1)If the seller delivers only a part of the goods or if only a part of the goods delivered is in conformity with the contract, articles 46-50 apply in respect of the part which is missing or which does not conform. (2)The buyer may declare the contract avoided in its entirety only if the failure to make delivery completely or inconformity with the contract amounts to a fundamental breach of the contract.
Early delivery; excess quantity: 提前交货，超额交货 (1)if the seller delivers the goods before the date fixed, the buyer may take delivery or refuse to take delivery. (2)if the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate.

8、Trademarks:
①Definition: A sign or symbol that distinguishes one party’s goods or services from another. (True trademark, trade name, service mark, collective mark, certification mark)
②Acquiring trademarks: Priority of use (USA,EN,CAN) Priority of registration
③Registration criteria: distinctive, not be generic or descriptive.

9、Patent
①Definition: a right granted to an inventor by a national government to exclusively make, use, and sell an invention for a certain period of time.
②Why grant patent? on private side: to protect private property; on public side: to encourage invention and industrial development
③Subject matter: Inventions(20 years), Utility models(20 years), Designs(10 years).

10、Right of priority(Paris Convention):
National treatment: a member country can not discriminate against foreigners in granting patent or trademark protection.
Compulsory license: it grants patent or trademark rights to third parties if the patent or trademark owner does not use it.
Right of priority: an applicant who has filed for protection in one member country shall enjoin a right of priority of 12 months for patent for inventions and utility model, 6 months for patent for patent for design and for trademarks to file in another member state.

11、Agency:
Is defined as a fiduciary relationship between two persons in which one (the agent) acts on behalf of, and is subject to he control of, the other (the principal).
Agent: person authorized by another to act for or in place of him or her.
Principal: person who, by agreement or otherwise, authorizes an agent to act on his or her behalf in such a way that the acts of the agent become binding on the principal.
Third party: any person doing business with agent.

12、Internal relationships:
Duties of agent to principal: 1. Fiduciary duty of loyalty 2. Duty of obedience 3. Duty of care 4. Duty of accounting 5. Duty of communication
Duties of principal to agent: 1. Duty to pay commission 2. Duty to reimburse and indemnify 3.Duty to keep accounts.
External Relationship:
1. Civil law countries rules:
Direct representation
Indirect representation
2. Common law countries rules:
Disclosed principal (named principal)
Partially disclosed principal (unnamed principal)
Undisclosed principal

13、Apparent authority:表见代理
Definition: Although the agent is not authorized, the principal causes the third parties to reasonably believe the agent has authority.
Legal effects of apparent authority: Principal to third party: principal is liable.(same as authorized agency). Principal has right to sue the unauthorized agent for compensation.

14、Product liability law:
The law governing the liability of producers of any product for damage caused by that product to consumers.

14、Theories of liability fixation:
①Privity of contract doctrine-tradition:合同相对性说 Injured person can sue the person only if she was a party the transaction with the injured person. No contract, no liability.
②Theory of negligence: 疏忽原则Negligence: the absence of, or failure to exercise proper or ordinary care in the design, manufacture or inspection process. It doesn’t require the contractual relationship between plaintiff and defendant.
③Breach of warranty:违反担保原则 The failure of a producer to fulfill the terms of promise, claim or representation made concerning the product’s quality or fitness for use.
④Theory of strict liability:严格责任原则 The producer is liable for the injury caused by defective product. Strict liability changes the principle of liability from fault-based liability to defect-based liability. It eases the plaintiff’s burden of proof. It is most efficient to protect consumers.

15、Defense

随科技的迅速发展，人们的生活日益趋向便捷、快速，方便，对于我国传统的手工艺制作，也很少有人问津，因此，我组想借此创业机会，在校园内开个DIY创意小屋。它包括编织、刺绣、串珠等，让我们传统的手工制作也能走进大学，丰富我们的生活。The manufacturer may be relieved of liability for injury caused by a defective product, by presenting following arguments: Contributory fault and comparative fault, Misuse of product, The product was altered or modified, State of the art.

（1）位置的优越性

自制性手工艺品。自制饰品其实很简单，工艺一点也不复杂。近两年来，由于手机的普及，自制的手机挂坠特别受欢迎。16、Arbitration:
Definition: 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.

经常光顾□ 偶尔会去□ 不会去□Characteristics of Arbitration:
1.
2. 调研提纲：Autonomy of will principle （意思自治原则）: the parties themselves can decide the issues such as arbitration location, arbitration institution, arbitration procedure, language used in arbitration
3.
4. （四）DIY手工艺品的“个性化”Private process: details are not disclosed to public
5. Offers the parties the opportunity to choose their own judge, which not possible in court proceedings
6.
7. （1） 政策优势Continuity in arbitration: the arbitrators follow the case from beginning to the end

随着社会经济、文化的飞跃发展，人们正从温饱型步入小康型，崇尚人性和时尚，不断塑造个性和魅力的现代文化价值观念，已成为人们的追求目标。因此，顺应时代的饰品文化显示出强大的发展势头和越来越广的市场，从事饰品销售是有着广阔的市场空间。Advantages of arbitration:
1. More flexible, adaptable and efficient than litigation. For example: the parties may agree to limit the extent of disclosure of documents; to submit evidence in writing; to impose time limits on the length of speeches
2.
3. （2）东西全Minimize the need for the services of a lawyer: you can do it yourself
4. Cut cost: lawyer can cost upward of $185 an hour plus expenses
5.
6. 上海市劳动和社会保障局所辖的“促进就业基金”，还专门为大学生创业提供担保，贷款最高上限达到５万元。Save time: on average 24 hours to 3 months for arbitration and up to 3 years for litigation
Disadvantages: Its limited power: the coercive action must be taken indirectly, through the local court, rather than directly, as a judge himself can do.
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