国际商法PartI Introduction

1、International Business Law国际商法II. Chapter One Introduction to International Business Law国际商法简介1. What Is International Business Law?Body of rules and norms that regulates business activities carried outside the legal boundaries of states. In particular, it regulates the business transactions of priv

2、ate persons internationally, and the relationship of international commercial organizations.国际商法是调整跨国商事活动的法律规范的总称，它调整国际私人商事交易关系和国际商事组织间的关系。1) Source of law法的渊源“Sources of law“ refer to the body of rules and norms which judges and other arbitrators will draw upon in deciding a case, and where these r

3、ules and norms are to be found.法的各种具体表现形式，如宪法、法律、法规。2. Sources of international business law国际商法渊源2) The sources of international commercial law include domestic law （国内法）and international law（国际法）.(1) Domestic / National law（国内法） constitutional law 宪法 statute law（成文法）: body of law enacted by legisl

4、ative bodies administrative law（行政法规）: regulations created by administrative agency. case law（判例法） National law is the most important source. Take China as an example:The Contract Law合同法Trademark Law商标法The Civil Procedure Law民事诉讼法Arbitration Law仲裁法(2) International law国际法Treaties and conventions条约与公

5、约International model law国际示范法Trade custom商事惯例Judicial decisions司法判决(1) treaties and conventions条约与公约Treaty: legally binding agreements between two or more states.(约束两个或更多的国家的法律协议)Convention: legally binding agreements between states sponsored by an international organization.(由国际组织发起的约束两个或更多的国家的法律协议

6、)Examples of international conventions: The United nations Convention on Contract for the International Sales of Goods（CISG 联合国国际货物销售合同公约） The Paris Convention for the Protection of Industrial Property (巴黎公约 )(2) International model law国际示范法Rules and norms worked out and passed by some international

7、 organizations for the free choice by nations. Example: Principles of International Commercial Contract by the International Institute for the Unification of Private Law （国际统一私法协会国际商事合同通则, UNIDROIT PICC ）(3) International trade customs and usagesA. Definition: general rules and practices in internat

8、ional trade that have become generally adopted through common use. B. Example: The International Rules for the Interpretation of Trade Terms (INCOTERMS 2010 国际贸易术语解释通则）(4) Judicial decisions，as subsidiary means for the determination of rules of law. 4. Comparison of Municipal Legal System1) Legal Fa

9、milies/System 法系 Romano-Germanic Civil Law Family 民法法系( the Roman law family, the continental law family, the civil law family): France, Germany, and Switzerland etc. Anglo-American Law Family 英美法系 ( the common law family, the case law family): England, America, India etc. Islamic Law Family 伊斯兰法系:

10、Islamic countries.2) Differences between the two main legal families(1) source of law 法源: in common law system, case law （判例法）as the primary source but also with a number of statutes; in civil law system, only statutes（成文法）.(2) categories of laws 法律分类 Division between public law（公法） and private law（

11、私法） in the civil law tradition; Division between common law（普通法） and equity law（衡平法） in the common law tradition.(3) codification 法典化 Codification in the civil law tradition; Generally no codification but separate laws in the common law tradition.French Civil Code法国民法典 (1) French Civil Code of 1804,

12、 incorporating the spirits of the French Revolution like: The right to possess private property; The freedom to contract.(2) Style and form: straightforward, easy to read, understandable to everyone.“My glory is not to have won for ty battles, for Waterloos defeat will blot out the memory of as many

13、 victories. But nothing can blot out my Civil Code. That will live eternally.”German Civil Code of 1896(in effect on Jan.1, 1900)Incredibly precise and technical.Special terminology is used.meant exclusively for the use of trained experts (not lay readers).(4) litigation modes 诉讼模式: authority mode（职

14、权主义）; litigant mode（当事人主义）. Common law courts usually use an adversarial system wherein two sides present their cases to a neutral judge (litigant mode). The civil law system applies an inquisitorial system wherein an examining judge serves two roles by developing the evidence and arguments for both

15、 sides during the investigation phase.(authority mode)5. Islamic legal family/Sharia Law伊斯兰法系Sharia law is the legal framework within which the public and some private aspects of life are regulated for those living in a legal system based on Islam. Sharia deals with all aspects of day-to-day life, including politics, economics, banking, business law, contract law, and social issues.The penalty for theft in Sharia lawQuran sets out two punishments for theft， depending on how many time