国际经济法英文复习.docVIP

1. The sources of international economic law1) International economic treaties2) International Business Practices3) The normative resolutions of the UN General Assembly 4) National legislation 2. Conclusion of an international contract for sale of goodsInternational Sale of Goods is the agreements between the parties. It is concluded by one partys offer and the other partys acceptance. More often a contract couldnt reach after the offer, the party often makes counter-offer, after repeated consultations, the two sides reached consensus and the contract could be sustained. In the consultation process, the offer and acceptance are two important legal steps. United Nations Convention on Contracts for International Sale of Goods 1980 carried out in articles 14-24 of this provision.1. Offer An offer (要约)is a proposal by one person to another indicating an intention to enter into a contract under specified terms. In the words of the Restatement Second of Contracts 24, an offer must be a manifestation of willingness to enter in- to a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it. Thus, the first element of an offer is a manifestation of an intention to be presently bound subject only to an appropriate acceptance.1) Conditions constitute an offer.A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price. An offer becomes effective when it reaches the offeree.A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal.2) Withdraw and revoke the offer.An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. However, an offer cannot be revoked: (a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or (b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer.3) Lapse of offer. After the lapse of the offer, both the offeror and the offeree are no longer bound by the offer. Lapse due mainly to the following situations (i) the offer has expired due to time passing, that is, the offeree didnt accept in the specified period. (ii) The revocation of the offer by the offeror. (iii) The offerors refusal to offer due to lapse. A refusal by the offeror may be express or it can be implied, a implied rejection is manifested is manifested mainly changes in the contents of the original offer. Changes for the offer are called counter-offer.2. Acceptance A contract isnt formed until the offer is accepted by the offeree. The acceptance(接受) is the offeree s manifestation of the intention to be bound to the terms of the offer. In all legal systems, the offeree may accept at any time until the offer is revoked by the offeror, until the offer expires due to the passage of time, until it is rejected by the offeree, until the offeree makes a counteroffer, or until termination in some other manner. Under the CISG, an acceptance may take the form of a statement or any other conduct by the offeree that indicates the offeree s intention to be bound to the contract.1) Requirements of Acceptance(i) An acceptance must be made by the offeree. A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance.However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph.(ii) An acceptance must be made within the period of validity. (Late acceptance is a counteroffer only) A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect. If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect.(iii) An acceptance must match the terms of the offer exactly and unequivocally. Otherwise it is considered a counteroffer and thus a rejection of the original offer. A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer. However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one partys liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.2) Time of Acceptance.An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise.3) Withdraw the acceptance. An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective.3. CISGArticle 57 (1) If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: (a) at the sellers place of business; or (b) if the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place. (2) The seller must bear any increases in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the contract. Article 58 (1) If the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at the buyers disposal in accordance with the contract and this Convention. The seller may make such payment a condition for handing over the goods or documents. (2) If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer except against payment of the price. (3) The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity. Time of passing of risk.If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk. Nevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise.The risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract. However, if the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage. Nevertheless, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller.4. Carriage of Goods by SeaA bill of lading is an instrument issued by an ocean carrier to a shipper with whom the carrier has entered into a contract for the carriage of goods, which states that certain goods have been shipped on a particular ship or have been received for shipment.The bill of lading has three characteristics: (a) it is a receipt issued by or on behalf of the carrier whereby he acknowledges that he has shipped the goods or received them for shipment; (b) it evidences the terms of the contract of carriage which is normally concluded earlier; (c) it is a document of title.Losses Losses fall into two main classes: total loss and partial loss. (1) Total loss. This loss can either be actual total loss(实际全损失) where vessel or cargo are totally and irretrievably lost, or constructive total loss(推定全损) in a case where the ship or the goods have been abandoned because the cost of salvage or recovery would have been out of proportion to the value. (2) Partial loss. This means the loss to the goods is only partial. In case of partial loss a fine distinction is drawn between particular average and general average. In marine insurance average has an entirely different meaning from its normal usage and it means loss or damage to the goods in the course of sea transportation due to natural calamities and accidents and extraneous risks. (a) Particular average (单独海损) is a partial loss to the insured cargo and the loss must be borne by the owner of this individual consignment. (b) General average (共同海损) is a loss that results when extraordinary expenses or losses are incurred in saving the vessel or its cargo from danger at sea. This ancient principle of maritime law, which was developed long before insurance was available, spreads the risk of a disaster at sea by making all parties to the voyage contribute to any loss incurred. Under this role, if A s cargo is damaged or sacrificed in the process of saving the ship, and B s cargo is saved as a result, B or its insurer must contribute to A for the loss. As claim is a general average. In other words, the owner of the cargo that was sacrificed would have a general average claim for contribution against the owner of the cargo that was saved. For ex- ample, when fire threatens an entire ship, and certain cargo is damaged by water in putting the fire out, the owners of all of the cargo must contribute to the loss of the cargo that was damaged by the water. The owners of cargo that is thrown over- board to save a sinking ship may have a claim against those whose cargo was there- by saved. General average claims are typically covered by marine insurance.Insurance Cover According to the stipulations of the Peoples Insurance Company of China, the following basic insurance covers are available in marine insurance: 1. Free From Particular Average Insurance (FPA)(平安险) Under free from particular average insurance the insurance company will be responsible to pay claims for total or constructive total losses suffered by the whole lot of cargoes during transportation due to such natural calamities as vile weather, thunder and lightning, tidal wave, earthquakes, and floods, or for total or partial losses due to the ship or carrier being on fire, stranded, sinking, colliding or meeting other fortuitous accidents. 2. With Particula