国际商法(英语专业)

精品文档 1欢迎下载 International Business Law 国际商法国际商法 课程教案课程教案 YUAN TIAN ForeignForeign LanguageLanguage TeachingTeaching andand ResearchResearch DepartmentDepartment HeilongjiangHeilongjiang UniversityUniversity 精品文档 2欢迎下载 ChapterChapter OneOne IntroductionIntroduction toto InternationalInternational BusinessBusiness LawLaw I I TeachingTeaching ObjectivesObjectives On completion of this Chapter students should be able to 1 Get to know the objectives and feature of this course 2 Get to know the basic relationship among such elements as International Business Law 3 Grasp the basic requirements of legal English learning 4 Get to know the features of international law 5 Get to know the sources of international law II II TheThe PointsPoints toto BeBe HighlightedHighlighted 1 The relationship among the key elements as international business and law 2 The understanding of the nature of law III III TeachingTeaching ApproachesApproaches andand FacilitiesFacilities Approaches 1 Pair Group work 2 Discussion 3 Task based approach 4 Communicative approach 5 Questions and answers Facilities PPT demonstration in the media classroom on line research IV IV BackgroundBackground InformationInformation 1 Economic globalization in recent years has been one of the hottest focuses in the world Although it is extremely difficult to define economic globalization many economists and business experts believe that no business can be purely domestic and the realities of the modern world make all business international 2 The causes of these developments are numerous 1 Incredible advances in efficiency of communication 2 Extraordinary reductions in transport costs 3 Growing prevalence of instant tele and cyber transactions 4 Treaty and other norms causing reduction of governmental barriers to trade 5 The blessing of relative peace in the world V V TeachingTeaching ProceduresProcedures andand ContentsContents 1 1 IntroduceIntroduce thethe outlineoutline ofof thisthis Chapter Chapter ThisThis ChapterChapter willwill discuss discuss WHAT IS INTERNATIONAL LAW SOURCES OF INTERNATIONAL LAW International conventions 精品文档 3欢迎下载 International custom General principles of law Judicial decisions Teachings of publicists THE SCOPE OF INTERNATIONAL LAW COMPARISON OF MUNICIPAL LEGAL SYSTEMS Romano Germanic Civil Law Anglo American Common Law Islamic Law Task Design explain the outline of this chapter to the students after the brainstorming of the students 2 2 WHATWHAT ISIS INTERNATIONALINTERNATIONAL LAW LAW DefinedDefined The body of rules and norms that regulates activities carried on outside the legal boundaries of nations It regulates three international relationships 1 Those between states and states 2 Those between states and persons 3 Those between persons and persons TheThe differencesdifferences betweenbetween publicpublic internationalinternational lawlaw andand privateprivate internationalinternational lawlaw PublicPublic InternationalInternational LawLawPrivatePrivate InternationalInternational LawLaw Source of international lawTorts International personalityContracts and sales State territoryTransportation State successionFinancing State responsibility to aliensIntellectual property Law of the seaAntitrust Law of warTorts States and StatesPersons and Persons DivisionDivision ofof subjectsubject mattermatter hashas becomebecome moremore blurredblurred nowadaysnowadays Task design ask students to illustrate each point according to their respective understanding IsIs InternationalInternational LawLaw ReallyReally Law Law 1 Because nations and individuals regard international law as law it is law 2 Comity The practice or courtesy between nations of treating each other with goodwill and civility 精品文档 4欢迎下载 3 Comity is not law because countries do not regard it as something they are required to respect 3 3 SOURCESSOURCES OFOF INTERNATIONALINTERNATIONAL LAWLAW Defined Defined Those things which international tribunals rely upon in determining the content of international law TreatiesTreaties andand ConventionsConventions 1 Definitions Treaties are agreements between one or more nations Conventions are agreements sponsored by international organizations 2 Reasons for binding effect Shared sense of commitment Because one country fears that if it does not respect its promises other countries will not respect their promises 3 Rules governing treaties Traditionally customary Now codified in the Vienna Convention on the Law of Treaties in force since 1980 CustomCustom 1 Defined Rules that have been around for a long time or which are generally accepted Caveat Customary rules are constantly changing 2 Establishing the existence of a customary law Must show two elements one behavioral and one psychological Usus Latin for usage Is the consistent and recurring action or lack of action if the custom is one of noninvolvement by states Opinio juris et necessitatis Latin for Of the opinion that the rule is proper and required The custom must be regarded by states observing it as one that they must obligatorily follow 3 Exceptions to the application of custom Persistent objector A state that persistently objects to a practice during its formative stages will never become a party to it A state allowed by the international community to deviate from a customary practice GeneralGeneral PrinciplesPrinciples General principles of law are common to both or all the state parties to a dispute Task design comparative study in groups to analyze the order of legal effect of the above resources of law 4 4 COMPARISONSCOMPARISONS OFOF MUNICIPALMUNICIPAL LEGALLEGAL SYSTEMSSYSTEMS LegalLegal familiesfamilies 1 Romano Germanic Civil Law 2 Anglo American Common Law 3 Islamic Law TheThe Romano GermanicRomano Germanic CivilCivil LawLaw SystemSystem The Oldest and most influential of the legal families A A FrenchFrench CivilCivil CodeCode 1 French Civil Code Code Napoleon of 1804 精品文档 5欢迎下载 The right to possess private property The freedom to contract The autonomy of the patriarchal family 2 Differences from the German Code Written in a short period of time Its style and form are one that is straightforward easy to read and understandable to everyone 3 Differences from the English common law It contains flexible general rules rather than detailed provisions B B GermanGerman CivilCivil CodeCode ofof 1896 1896 1 Characteristics of the German Code Incredibly precise and technical Special terminology is used 2 Differences from the French Code It is meant exclusively for the use of trained experts not lay readers C C CountriesCountries withwith CivilCivil LawLaw systemssystems distinguishdistinguish betweenbetween thethe civilcivil lawlaw andand publicpublic Law Law 1 Public law evolved separately from the movement for codification of civil or private law Public law is constitutional and administrative law Public law is treated in a variety of ways in the civil law countries TheThe Anglo AmericanAnglo American CommonCommon LawLaw SystemSystem 1 Historical origins In 1066 the Normans conquered England and William the Conqueror began to centralize the governmental administration of his new kingdom The name common law is derived from 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 2 The common law must be distinguished from the law which evolved out of Equity A principle of justice developed by the king s chaplain or chancellor to provide parties with a remedy when none was available in the king s courts Admiralty the laws governing sailors and other specialized jurisdictions TheThe IslamicIslamic LawLaw SystemSystem KnownKnown asas ShariShari a a 1 Sources in the order of their importance The Koran The Sunnah or decisions and sayings of the Prophet Muhammad The writings of Islamic scholars who derived rules by analogy from the principles established in the Koran and the Sunnah The consensus of the legal community 2 Note that the Shari a is primarily a moral code It is principally concerned with ethics In this respect it contains many principles in common with the civil law and the common law It is much less concerned with promoting commerce and international relations than the secular legal systems 精品文档 6欢迎下载 Task design group work and on line research VI VI AssignmentsAssignments 1 1 TranslationTranslation Exercises Exercises Article 38 1 of the Statute of the International Court of Justice lists the sources that the Court is permitted to use The Court whose function is to decide in accordance with international law such disputes as are submitted to it shall apply a International conventions whether general or particular establishing rules expressly recognized by the contesting states b International custom as evidence of a general practice accepted as law c The general principles of law recognized by civilized nations d Subject to the provisions of Article 59 judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of law 2 2 CaseCase studystudy TheThe LotusLotus inin 19271927 A collision occurred on the high seas between a French steamer and a Turkish collier in which some Turkish crew members and passengers lost their lives When the French ship docked in a Turkish port the Turkish government began criminal proceedings against the French officers on watch at the time of the collision The French appealed to the permanent Courts of International Justice arguing that Turkey had violated international law because France said only the flag state has jurisdiction over criminal incidents on the high seas The PCIJ said that the few cases France cited for this proposition merely show that states had often in practice abstained from instituting criminal proceedings and not that they recognized themselves as being obliged to do so for only if such abstentions were based on their being conscious of a duty to abstain would it be possible to speak of an international custom Conclusion Turkey was allowed to continue with its criminal prosecution VII VII ReferenceReference MaterialMaterial International business law Text Cases and Readings Ray August International Business Law and Its Environment by Richard Schaffer Beverley Earle International Business Law A Transactional Approach by Larry DiMatteo and Lucien J Dhooge 精品文档 7欢迎下载 ChapterChapter TwoTwo TheThe MultinationalMultinational EnterpriseEnterprise I I TeachingTeaching ObjectivesObjectives On completion of this Chapter students should be able to 1 know the basic forms of International business 2 better understand the structures of multinational enterprises 3 grasp the basic attributes of a multinational organization 4 learn to differentiate national multinational corporation from international multinational corporation 5 get familiar with basic international regulations and home state regulations of multinational enterprises 6 get familiar with basic international regulations 7 grasp the host state regulations of multinational enterprises II II TheThe PointsPoints toto BeBe HighlightedHighlighted 1 The difference between the national Multinational Corporation and the international Multinational Corporation 2 The basic attributes of a multinational organization III III TeachingTeaching ApproachesApproaches andand FacilitiesFacilities Approaches 1 Pair Group work 2 Discussion 3 Task based approach 4 Communicative approach 5 Questions and answers Facilities PPT demonstration in the media classroom on line research IV IV BackgroundBackground InformationInformation Pre lecturePre lecture illustrationillustration GetGet familiarfamiliar withwith thethe outlineoutline ofof thisthis Chapter Chapter THE BUSINESS FORM THE MULTINATIONAL ORGANIZATION INTERNATIONAL REGULATION OF MULTINATIONAL ENTERPRISES HOME STATE REGULATION OF MULTINATIONAL ENTERPRISES HOST STATE REGULATION OF MULTINATIONAL ENTERPRISES Task design illustrate the outline of this chapter to the students V V TeachingTeaching ProceduresProcedures andand ContentsContents SectionSection 1 1 THETHE BUSINESSBUSINESS FORMFORM 1 1 MultinationalMultinational NatureNature Depending on place of creation Home or parent organizations located within a single state Multiple parents located in multiple states 精品文档 8欢迎下载 A matter of municipal law 2 2 BusinessBusiness FormsForms inin CivilCivil LawLaw StatesStates 1 Company An association of persons or of capital organized for the purpose of carrying on a commercial industrial or similar enterprise 2 Partnership A company of two or more persons who co own and manage a business and who are each liable to the full extent of their personal assets for its debts Limited partnership A company of two or more persons at least one of whom has unlimited personal liability for the debts of the business and at least one other who is an investor having limited liability Silent partnership A secret relationship between two or more persons one of whom carries on a business in his name alone without revealing the participation of the other who has limited personal liability Partnership limited by shares A company of one or more general partners who have unlimited personal liability for the debts of the company and limited participation by investors in the form of shares The company is taxed as a corporation 3 Corporation A company of capital whose owners have limited personal liability Stock corporation A corporation that can raise money in the public marketplace through the sale of freely transferable shares Its financial statements have to be disclosed to the public Limited liability company A corporation owned by members that does not issue negotiable share certificates and is subject to minimal public disclosure laws 3 3 BusinessBusiness FormsForms inin CommonCommon LawLaw StatesStates 1 Company An association of persons organized for the purpose of carrying on a commercial industrial or similar enterprise 2 Partnership An association of two or more persons who co own and manage a business for profit and who are each liable to the full extent of their personal assets for its debts Limited partnership A partnership consisting of one or more general partners who manage the business and who are each liable to the full extent of their personal assets for its debts and one or more limited partners whose liability is limited to the funds they invest Secret partnership A partnership in which the participation of one or more persons as partners is not disclosed to the public by any of the partners All of the partners have unlimited personal liability 3 Joint stock company An unincorporated association of persons whose ownership interests are represented by transferable shares The shareholders have unlimited personal liability 4 Business trust A business arrangement in which the owners of a property known as beneficiaries transfer legal title to that property to a trustee who then manages it for them The beneficiaries hold transferable trust certificates entitling them to the income generated by the property and a residual equitable share at the time the trust is terminated The trustee has unlimited personal liability while the beneficiaries have limited personal liability 5 Corporation A separate juridical entity owned by shareholders who may have limited 精品文档 9欢迎下载 unlimited or no liability Public corporation A corporation that can raise money in the public marketplace through the sale of freely transferable shares Its financial statements have to be disclosed to the public Private corporation A corporation that may not ask the public to subscribe to its shares bonds or other securities and which is subject to less stringent public disclosure laws than a public corporation Limited liability company An unincorporated business association 4 4 TheThe ImportanceImportance ofof thethe SeparateSeparate LegalLegal IdentityIdentity ofof CompaniesCompanies 1 Juridical entities such as companies have legal identities separate from that of their owners 2 Significance The liability of the owners is limited to their investment in the company The owners are neither managers nor agents nor representatives of the company The rights and benefits accruing to the company belong to the company and not its owners The property rights of a company can only be claimed by that company Task design traditional explanation and question and answer on class SectionSection 2 2 THETHE MULTINATIONALMULTINATIONAL ORGANIZATIONORGANIZATION 1 1 ParentParent CompanyCompany Risk Sharing Common law countries use all three EU now relies principally on the last 3 Extraterritorial Application of Product Liability Laws The country that has been most willing to apply its product liability laws 精品文档 13欢迎下载 extraterritorially The US Considerations of US courts in determining whether they can exercise jurisdiction in a product liability case Personal jurisdiction Forum non conveniens 6 6 SharpSharp PracticesPractices 1 Defined Dishonest business dealings meant to obtain a benefit for a firm regardless of the means used Examples Misrepresentation and bribery 2 Governing law Municipal local law 3 Extraterritorial application of sharp practices law The country that has been most willing to apply its sharp practices laws extraterritorially The US US legislation Foreign Corrupt Practices Act FCPA of 1977 Caveat They may only be charged with a violation of the FCPA after the company has first been charged and convicted of the same violation Forbid bribes to Foreign government officials Foreign political party officials Candidates for foreign political office Task design Group discussion and compare the relevant regulations with Chinese regulations SectionSection 5 5 PIERCINGPIERCING THETHE COMPANYCOMPANY VEILVEIL 1 1 Defined Defined Ignoring the corporate structure of a company i e piercing the company veil and exposing the shareholders to personal liability 2 2 FourFour circumstan