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1、国际商法复习资料整理1. Consideration in Common Law (Consideration is one of the three elements of contract formation in common law, the other two being offer and acceptance.) l Consideration is some benefit received by a party who gives a promise or performs an act, or some detriment suffered by a party who r
2、eceives a promise. l Consideration is that which is actually given or accepted in return for a promise. l Some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other l In plain English, consideratio
3、n is the price you pay to purchase another persons promise. 2. General Rules on Consideration 1) Consideration required for all simple contracts. (A promise without consideration is a gift; one made for consideration is a bargain.) 2) Consideration must have a value that is recognized by the law but
4、 need not be equal to the promise. 3) Consideration must be present or future and cannot be past. 4) Consideration must be possible to perform. (A promise to do the impossible would not be accepted as consideration) 5) Consideration must be legal. (An illegal consideration makes the whole contract i
5、nvalid.) 6) Consideration must move from the promise. 7) Consideration must not be too vague. (Moral consideration is not consideration.) 8) Performance of an existing contractual duty is not valuable consideration 3. Exceptions to the Consideration Requirement 1) Contract under seal does not need c
6、onsideration 2) Promissory Estoppel 3 Mistakes l Mistakes under common law mean a misunderstanding about a fact, often occurs between the parties to a contract. l Mistake under civil law means error relating to the nature of contracted object amounts to the cause for a invalid contract. Types of mis
7、takes 1) Common mistake: the parties are in agreement but are both mistaken about a fact that is essential to the existence of the contract. 2) Mutual mistake: occurs when the parties to an apparent contract misunderstand each other regarding an essential fact. 3) Unilateral mistake: occurs where on
8、e party is mistaken and the other party is aware, or should be aware, of the mistake and does nothing to correct it. (eg.古董) Chapter Five: Contract Law for the International Sale of Goods 1. Remedies for breach of contract Breach of contract: is committed when a party without lawful excuse fails or
9、refuses to perform what is due from him under the contract, or performs defectively or incapacitates himself from it. The doctrines of compensation 1) The doctrine of expectation interest 正常遵循时的收益 2) The doctrine of reliance interest 因为信赖合同所产生的成本 3) The doctrine of restitution interest 不当得利的利益也要返还 T
10、he doctrine of limitations on damages 1) Non-breaching party has the duty to mitigate damages 没有违约的一方应尽最大限度减少损失 2) Damages must be established with a reasonable degree of certainty 损失必须是确定的 3) Damages must be either foreseeable to the breaching party or would naturally flow from the breach. Types of
11、 damage: l Compensatory damage: damage intended to compensate for a quantifiable loss.补偿性赔偿 l Consequential damage: damage resulting indirectly from the act complained of 特殊赔偿/后续赔偿 l Liquidated damage: a contractually agreed upon amount to be paid in the event of a breach of the contract. 合同限定赔偿 l N
12、ominal damage: a small or insignificant amount of money awarded by a court or jury to demonstrate that a 象征性赔偿 l Punitive damage: 惩罚性的赔偿 双倍赔偿 2. Obligations of the Seller and the Buyer Seller 1) Delivery of the goods 2) The turning over of the documents 3) The sellers assurance of the quality of the
13、 goods 4) The sellers assurance of ownership of the goods Buyer 1) Payment of the price 2) Taking delivery 3. Excuses for Non-performance Excuses 1) Impossibility of performance A. the death of one of the parties; B. the destruction of the specific subject matter of the contract; 合同标的物被毁 C. when the
14、 performance of the contract has been rendered illegal or made impossible due to the fault of the other party. 2) Supervening illegality 后发违法 3) Frustration of purpose (eg. 有些产品禁运；国王游行租房子) 4) Commercial impracticability: a thing is impossible in legal contemplation when it is not practicable; and a
15、thing is impracticable when it can be done only at an excessive and unreasonable cost. 商业目的的不可行 Chapter Six: Carriage of Goods by Sea 1. Bill of Lading A 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 good
16、s, which states that certain goods have been shipped on a particular ship or have been received for shipment. The difference between receipt and B/L Receipt: carrier 接收了货物，但还没出运；是收据，运输合同的证明； Quantity (eg. 有取证的责任，哪一箱没上船) Condition of goods received (reasonable inspection)外包装完好无损就可以了 Leading market B/
17、L: carrier接收了货物并且已经出运了 Characteristics of the B/L l 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. l It is a document of title (not property物权, possession拥有权，物权无转移) l It is evidence of contract of carriage l
18、It is a contract of carriage B/L is transferable, but not negotiable B/L in the hand of the shipper: prima facie evidence 可反驳证据 B/L in the hand of the endorser: conclusive evidence 不可反驳证据 提单在不同人手上其法律效力不一样： Carrier/shipper 证明承运合同 Consignee 运输合同 Endorser: document of title/possession Chapter Seven: Fi
19、nance of International Trade 1. The bill of exchange: a written order by the drawer to the drawee to pay money to the payee. 2. Characteristics of bill of exchange l it is transferable by delivery, and with the transfer, rights embodied in it are transferred, such that the transferee can enforce the
20、m in his own name. l where the transferee takes it in good faith and for value, he takes it free of any defects of title of the transferor. l bills of exchange are treated as cach. 3. Types of bill of exchange Clean Bill and Documentary Bill Sight Bill and Time Bill Commercial Bill and Bankers Bill
21、Commercial Acceptance Bill and Bankers Acceptance Bill 4. Letter of Credit L/C is a standard, commercial letter of credit is a document issued mostly by a financial institution, used primarily in trade finance, which usually provides an irrevocable payment undertaking. 5. Basic principles of L/C rul
22、es by UCP500 1) Independence principle: means that the banks obligations under the letter of credit are independent of the buyers and sellers obligations under the contract for the sale of goods. 2) Rule of strict compliance: means the terms of the documents presented to the issuing bank must strict
23、ly conform to the requirements of the letter of credit (no discrepancy) Chapter Fourteen: International Commercial Dispute Settlement Should the parties settle, litigate, mediate, or arbitrate? Where should the dispute be settled? Which law applies to the transaction? If a resolution (a settlement,
24、a verdict, or a judgment) is reached, how will it be enforced? 1. Settlement of disputes through municipal courts (1). Jurisdiction and venue Jurisdiction: means the “power to hear”, the legal right by which judges “exercise their authority” or “competence”. Venue: means the appropriate geographical
25、 location of the court with jurisdiction. l Conflicts of jurisdiction l Choice of forum clauses Forum Non Convenience Minimum contracts 最低联系原则 l Choice of law clauses l Relevant provisions of Chinese law Choice of law by the parties The Forum Choice of law by the tribunal Municipal Courts a) place o
26、f contracting International Tribunals b) place of performance Alternative Dispute Resolution c) predominant contracts Commercial Arbitration d) law of the forum 2. International Tribunals (1). International Court of Justice (ICJ) Contentious jurisdiction 诉讼管辖 Advisory jurisdiction 咨询管辖 Judgment (2). International Center for the Settlement of Investment Disputes (ICSID) 解决投资争议国际中心 3. Alternative dispute resolution (ADR) 非司法方法 l Negotiation: is the process of reaching an agreement by discussion l Mediation l Mini-trial 4. Commercial arbitration
