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1、商法考点Chapter 1 1. International law is not really law since there is no worldwide legislature to enact it. F 2. Comity is not law because countries do not regard it as something they are required to respect. T 3. International law exists when there is a consensus of the international community. T 4.
2、To establish the existence of a customary rule of international law, one must show that the international community has observed the rule for a long period of time. F 5. General principles of international law are based on legal rules that are common to both (or all) the state parties to a dispute.
3、T 6. International tribunals generally regard states as having an obligation to bring their municipal law into compliance with international norms. T 7. A self-executing treaty is one that contains a provision that says the treaty will apply in the parties municipal courts once the parties have adop
4、ted domestic enabling legislation. F 8. Recognition of a government is usually made in a bilateral agreement. F 9. When a part of the territory of State X shifts and becomes part of the territory of State Y, the treaties made by State X continue to apply to that territory. F 10. An intergovernmental
5、 organization is a permanent organization set up by two or more states to carry on activities of common interest. T 11. State A disintegrates into States B and State C. The public property of State A located in State D becomes the property of D. F 12. Territorial sovereignty is the absolute and unqu
6、alified right of a state to exercise its functions within a territory. F 13. The phrase “ United Nations System” refers to the rules of international law enacted by the General Assembly of the United Nations. F 14. The European Parliament must approve all of the international treaties that the Europ
7、ean Union enters into. T 15. Traditionally, an individual s rights under international law are only protected by his state of nationality. T 16. The Roman law was first codified in the Corpus Juris Civilis around the year 534 A.D. F 17. The name “ common law ” (as it is used in England) is derived f
8、rom 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. F 18. The Shari a is primarily a moral and ethical code. F 19. Equitable remedies are available only when legal remedies are unavailabl
9、e or inadequate.T 20. The German Civil Code of 1896 is noted for being precise and technical. T Chapter 3 Diplomacy is the process of reconciling the parties to a disagreement by negotiation, mediation, or inquiry. T Negotiation is the process of reaching an agreement by discussion. T Mediation is t
10、he use of a third party who transmits and interprets the proposals of the principal parties, and sometimes, advances independent proposals. T Inquiries are a popular way to resolve disputes between states, with many thousands of 名师资料总结 - - -精品资料欢迎下载 - - - - - - - - - - - - - - - - - - 名师精心整理 - - - -
11、 - - - 第 1 页，共 15 页 - - - - - - - - - international inquiries having been made in the last 50 years. F A decision of the International Court of Justice has no binding force except between the parties and only in respect of the particular case. T Panelists who serve on a WTO dispute settlement panel
12、serve as representatives of their member states. F The International Center for the Settlement of Investment Disputes (ICSID) was created to encourage private investment in underdeveloped countries. T Under international law, the jurisdiction of a municipal court to try an international dispute is e
13、ssentially unlimited. F A municipal court has in personam jurisdiction when an individual or juridical person is physically present within the forum state. T Sovereign or state immunity is a doctrine that says that domestic courts must decline to hear cases against foreign sovereigns out of deferenc
14、e to their roles as sovereigns. T Choice of law clauses are valid and enforceable in all municipal courts so long as they were freely entered into. T According to the doctrine of forum non conveniens, a court is required to dismiss a case when it would be either unfair to one of the parties to go ah
15、ead and hear the case or it would be a burden on the court if it were to go ahead. F An antisuit injunction forbids a litigant from bringing a suit within the litigants home state. F According to the vesting of rights doctrine, a court is to apply the law of the state where the rights of the parties
16、 to a suit legally became effective. T Chapter 4 In civil law countries, a company can be an association of persons or of capital. T None of the partners in a civil law limited partnership have no personal liability for the debts of the business. F In a civil law country, a person may be both a limi
17、ted partner and a general partner in the same limited partnership. F A civil law stock corporation can raise money in the public marketplace through the sale of freely transferable shares. T The limited partners in a common law limited partnership can openly participate in the management of the busi
18、ness without incurring liability for the debts of the business. F Civil law limited liability companies are a popular business form widely used when setting up subsidiaries. T All of the partners in a common law secret partnership have unlimited personal liability for the debts of the business. T In
19、 common law countries, more shares may be authorized for issuance by a public corporation than are required to get a business started. T The owners of a company (or corporation) may act on its behalf both as agents and as representatives. F A nonmultinational is a domestic firm functioning in the in
20、ternational marketplace through a foreign agent. T A national multinational is a firm in one country that operates in other countries through branches and subsidiaries. T An international multinational is a business organization with two or more parent 名师资料总结 - - -精品资料欢迎下载 - - - - - - - - - - - - -
21、- - - - - 名师精心整理 - - - - - - - 第 2 页，共 15 页 - - - - - - - - - companies located in different states operating through jointly owned subsidiaries. T A joint venture is a subsidiary company that in turn owns other subsidiaries. F Host states may regulate foreign firms in the same way that they regulat
22、e local firms. T Negligence and Strict liability may be used in Japan to impose product liability on a manufacturer of a defective product. F Chapter 7 1. The World Trade Organization is a new supranational organization with the power to usurp sovereignty from its member states.T 2. The membership o
23、f the WTO is limited to states. Colonies, territories, provinces, and so forth, are not eligible for membership, even if they are responsible for conducting their own trade policies. F 3. The WTO Ministerial Council meets at least every other year to oversee the operation of the WTO.T 4. Consensus i
24、s the making of a decision by a super-majority vote, such as by two-thirds or three-quarters of the representatives present. F 5. The WTO s Understanding on Rules and Procedures Governing the Settlement of Disputesestablishes a unified system for settling disputes that arise under the WTO Agreement
25、and its annexes. T 6. the General Agreement on Tariffs and Trade was substantially rewritten in 1994, and the provisions of GATT 1994 differ dramatically from those of GATT 1947. F 7. None of the provisions of GATT 1994 are directly effective; that is, a private person in a suit may invoke none of t
26、hem. F 8. GATT 1994 s “ Most Favored Nation Rule” requires a country to treat products equally with its own domestic products once they are inside that border. F 9. GATT 1994 s “ South -South Preferences” allows developi ng countries to exchange tariff preferences among themselves without extending
27、the same preferences to developed countries. T10. GATT 1994 forbids (with few exceptions) member states from protecting their domestic industries by any means other than tariffs. T 11. GATT 1994 requires member states to disclose to other member states and the public the rules, regulations, and prac
28、tices that they follow in their domestic trade systems. T 12. Once a free trade agreement or customs union is established, The GATT rules apply to the union or area as a whole and not to its constituent states. T Chapter 7- Case Analysis Country A, a WTO member state, imposes a 25 percent tax on sal
29、es of “ cola ” soft drinks. All other soft drinks are taxed at a 5 percent rate. Cola soft drinks make up 70 percent of the soft drink market in Country A, and all of the cola soft drinks are imported. The non-cola soft drinks are all manufactured locally. Country B, another WTO member state, compla
30、ined to Country A that its tax on cola soft drinks violates the GATT s national treatment rule. Country A disagreed. Country B has now asked the WTO to establish a panel to resolve this dispute. How should the panel rule? 名师资料总结 - - -精品资料欢迎下载 - - - - - - - - - - - - - - - - - - 名师精心整理 - - - - - - -
31、第 3 页，共 15 页 - - - - - - - - - Chapter 7- Case Analysis GATT Art. III(1) says that taxes should not be imposed so as “ to afford protection to domestic production.” The meaning of the phrase “ like products” must be determined on a case-by-case basis. In particular, the products need to share common
32、 end-users and have essentially the same physical characteristics. Here cola and non-cola soft drinks seem to share the same end users and have the same basic physical characteristics. They are like products. GATT Art. III(2) requires that taxes on imported products not exceed those of domestic prod
33、ucts, so the tax on the cola soft drinks must be reduced to 5 percent. Chapter 10-Q2 No. The retailer made an invitation to treat, then there is no contract in this case. Under Article 14, an offer must be “ addressed to one or more specific persons ” In this case, the catalogue was addressed to the
34、 public, because the retailer ordinarily intend for their catalogues to have as wide a circulation as possible, and they would be happy to have them passed on to others. The phrase “ offers addressed to specific persons ” actually means “ offers restricted to the particular addressees.” To conclude,
35、 the catalogue does not meet the requirements of an offer under Art.14 of CISG, then there is no contract in this case. Chapter 10-Q3 There is no contract under CISG, because the withdrawal was effective. CISG Article 15(2) states that firm offers may be withdrawn if the withdrawal reaches the offer
36、ee “ before or at the same time” as the offer. In this case, the withdrawal reached the offeree before the offer, since the recorded withdrawal message was delivered to Buyer s place of business prior to Buyer s receipt of the offer. Therefore, there is no contract in this case. Chapter 10-Q4 There
37、is no contract under CISG, because buyer rejected the offer. CISG Article 17 clearly states that “ an offer, even if it is irrevocable, is terminated when a rejection reaches the offeror.” Because the rejection reached the Seller before the acceptance, the offer is rejected. Therefore, there is no c
38、ontract in this case. Chapter 10-Q5 Buyer need do nothing. Under CISG Article 18, an offeror cannot make silence or inactivity grounds for acceptance of his offer. Only if the offeree had agreed in advance that his silence or inactivity would constitute acceptance would there be a contract in this s
39、ituation. Therefore, the buyer has not responsibility to accept the offer. Chapter 10-Q6 Buyer breach the contract. Article 29(2) says that “ a contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or term
40、inated by agreement.” 名师资料总结 - - -精品资料欢迎下载 - - - - - - - - - - - - - - - - - - 名师精心整理 - - - - - - - 第 4 页，共 15 页 - - - - - - - - - It goes on to add, however, that “ a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct.
41、” In this case, clearly, Seller relied on Buyer s conduct. Chapter 10-Q7 No, the buyer is not able to avoid the contract. The notice Buyer gave Seller does not amount to an Article 47 Nachfrist notice, because it did not set a fixed date nor demand final performance by that date. The wire should hav
42、e said something such as “The last date on which Buyer will accept delivery is February 1. ” Chapter 10-Q8 Buyer bears the risk. Article 68 says that the risk passed to Buyer at the time the contract was signed since the goods were already in transit. If Buyer has insurance, he may have a difficult
43、time collecting on it, since the time when the damage occurred is uncertain. By agreement, Seller and Buyer could have agreed that the risk passed to Buyer at the outset of the voyage. For the purpose of asserting an insurance claim, this would have simplified matters. Chapter 10-Q9 Under Article 73
44、, Buyer may avoid the entire contract since the three programs are clearly interdependent. Seller will have to take back the programs delivered in January and February (and return the price Buyer paid), and Buyer may refuse delivery of the third (the March) program. Chapter 10-Q10 Buyer may ask for
45、damages. If Buyer does not obtain substitute barrels, he will be entitled (under Article 76) to the current price at the place of delivery; that is, $18 a barrel, or $450. If this had been a case involving force majeure, Buyer would not have been entitled to damages, but only a price reduction. Arti
46、cle 50 provides for a proportionate price reduction, so under that rule, the final price would be reduced to $14 a barrel, or $350. 考点解析：Chapter One：1. International Law(国际法 ): 3 kinds of international relationships: states and states; states and persons; persons and persons. Public international la
47、w(国际公法 ): Historically, dealt with the rules and norms regulating the relationships between states (countries). This law between nations is called public international law; Private international law(国际私法 ): with growth of relationships between persons and corporations in different states, private in
48、ternational law developed to govern their conduct 2. Comity(礼让 ): is the practice between states of treating each other with goodwill and civility. It is not law, because states do not regard it as something they are required to respect. 3. Sources of International law: Treaties or conventions; Inte
49、rnational custom; General principles of law recognized by civilized nations; Judicial decisions and teachings of highly qualified legal writers. (This list, as contained in Article 38(1) of the Statute of the International Court of Justice, implies a hierarchy, or order, in which these sources are t
50、o be relied on.)Treaties(条约 ): are 名师资料总结 - - -精品资料欢迎下载 - - - - - - - - - - - - - - - - - - 名师精心整理 - - - - - - - 第 5 页，共 15 页 - - - - - - - - - legally binding agreements between two or more states. Conventions: (公约 )legally binding agreement between states sponsored by an international organization