国际商法(双语)复习资料

1、Functions of law: Keep the peace Enforcing standards of conduct and maintain order Facilitating planning Promoting social justice2、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: Intention：订立合同的意愿the offers words must give the offeree assurance that a binding agreement is intended. Definiteness: 明确具体indicates or describes the goods or services, expressly or implicitly specifies the quantity and the price for the goods. Communication: 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 buyersBuyers 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. Buyers 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 goodsThe 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:Definition: A sign or symbol that distinguishes one partys goods or services from another. (True trademark, trade name, service mark, collective mark, certification mark)Acquiring trademarks: Priority of use (USA,EN,CAN) Priority of registrationRegistration criteria: distinctive, not be generic or descriptive.9、PatentDefinition: a right granted to an inventor by a national government to exclusively make, use, and sell an invention for a certain period of time.Why grant patent? on private side: to protect private property; on public side: to encourage invention and industrial developmentSubject 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 communicationDuties 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 representationIndirect representation2. Common law countries rules:Disclosed principal (named principal)Partially disclosed principal (unnamed principal)Undisclosed principal13、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:Privity 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.Theory 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 doesnt require the contractual relationship between plaintiff and defendant.Breach 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 products quality or fitness for use.Theory 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 plaintiffs burden of proof. It is most efficient to protect consumers.15、DefenseThe 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.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.Characteristics of Arbitration:1. 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 a