国际商法答案-向嫣红主编

Chapter 1I. T T F T T T F F T TII. 1. The division of international law that deals primarily with the rights and duties of states and intergovernmental organizations as between themselves.2. The division of international law that deals primarily with the rights and duties of individuals and nongovernmental organizations in their international affairs.3. Legally binding agreement between two or more states.4. Legally binding agreement between states sponsored by an international organization.5. A long established tradition or usage that becomes customary law if it is (1) consistently and regularly observed and (2) recognized by those stated observing it as a practice that they must obligatorily follow.6. Law code promulgated in 1804 by Napoleon that collected, arranged, and simplified French Law.7. Law code promulgated in 1896 that is based primarily on the Corpus Juris Civilis and that is characterized by its detailed structure and its technical precision.8.Latin: “body of civil law.” Codification of Roman law completed about A.D. 534 at the order of Emperor Justinian, which selected, arranged, and condensed the ancient laws.III. 1. International business treaties and conventions, international trade customary cases, international business precedents, and national business laws.2. The Court of Exchequer settled tax disputes; (1) The court of Common Pleas dealt with matters that did not involve the kings direct interest, such as title to land, enforcement of promises, and payment of debts; (2) The Court of Kings Bench handled cases of a direct royal interest, such as the issuance of “writs to control unruly public officials. IV. 1. legal family2. civil law system3. Anglo-American law System4. international economic law5. writ6. equity7. the supremacy of the law8. adversarial9. inquisitorial10. custom11. laissez-faire economics 12. the principle of personal law 13. territorial law14. the conflict of laws Chapter 2I. T T F F T T T T T T F T T T F F F TII.1.That which motivates the exchange of promises or performance in a contractual agreement. The consideration, which must be present to make the contract legally binding, must result in a detriment to the promisee (something of legal value, legally sufficient, and bargained for ) or a benefit to the promisor.2.a state statute under which certain types of contracts must be in writing to be enforceable3. An action by prompt notice to cancel the contract and return the parties to the positions that they occupied prior to the transaction. Available when fraud, mistake, duress, or failure of consideration is present.4. A remedy under which a person is restored to his or her original position prior to a contract.5. The relief given to innocent parties, by law or by contract, to enforce a right or to prevent or compensate for the violation of a right.6. a sum inserted into a contract, not as a measure of compensation for its breach but rather as punishment for a default. The agreement as to the amount will not be enforced, and recovery will be limited to actual damages.7. The substitution, by agreement, of a new contract for an old one, with the rights under the old one being terminated. Typically, there is a substitution of a new person who is responsible for the contract and the removal of the original partys rights and duties under the contract.8. The capacity required by the law for a party who enters into a contract to be bound by that contract.III. 1. Very likely, yes - minus any damages caused to Larrissa by her early departure.2. No. The court held that Mike did not make an offer to heal the daughters hand in three or four days. He merely expressed an opinion as to when the hand would heal. The reason is that an expression of opinion is not an offer. It does not evidence an intention to enter a binding agreement.3. As long as the new contract is supported by consideration, the novation discharges the original contract you and Sheikh Enterprises and replaces it with the new contract between you and A & N Corporation. Sheikh prefers the novation over an assignment, because it discharges all the liabilities stemming from its contract with you. If sheikh had merely assigned the contract to A & N Corporation, Sheikh would have remained liable to you for the payments if A & N Corporation defaulted. 4. ABC Training Centers measure of damages is $1,500 (10 $150), plus incidental damages. In cases in which the breach is by the buyer, and the seller has not as yet produced the goods, compensatory damages normally equal the lost profits on the sale, not the difference between the contract price and the market price.IV. Put the following terms into English:1. promissory estoppel2. quasi contract3. damages4. the Statute of Frauds5. the parol evidence rule6. liquidated damages7. the age of majority8. subject matter of the contract9. non-breaching party10. novation of contract11. equitable remedy 12. substituted agreement 13. intended beneficiary 14. contract discharge Chapter 3I. F T T F F T T F T T F T F T T F T FII.1. A proposal by one person to another indicating an intention to enter into a contract under specified terms.2. The fixing by the buyer of an additional reasonable period of time in which the seller may perform.3. Remedy that allows a seller to ascertain specifications himself when the buyer fails to supply them as required by the contract or within a reasonable time after the seller requests them.4. shifting of responsibility for loss or damage from the seller to the buyer.5. Remedy available to either party when it becomes clear that the other party will not perform a substantial part of his obligation because of a serious deficiency in his ability to perform, his creditworthiness, his preparation for performing, or his performance.6. the exchange of goods for an amount of money or its equivalent from the seller to the buyer.7. a moveable tangible object. For the purposes of CISG, goods do not include things bought for personal use or at an auction or foreclosure sale, nor may they be ocean-going vessels or aircraft.8. Remedy that allows a buyer to pay less for non-breaching goods in those cases where the buyer is not entitled to damages.III1. No. When the offeror promises to keep the offer open for a fixed period, the offer is a firm offer, it is enforceable.2. An acceptance is not effective until it is delivered to the offeror. Yes. Minor changes in the terms contained in the offer from the offeree is not an acceptance any more, it is a counter offer.3. To deliver the goods; to hand over any related documents and to transfer the property in the goods to the buyer, to deliver goods conform to the contract.4. (1) Compel specific performance (2) avoid the contract for fundamental breach or non-delivery (3) reduce the price (4) refuse early delivery (5) refuse excess quantities. IV. Put the following terms into English:1. tender of the documents 2. shipment contract 3. rejection of goods 4. real property 5. cross-border contract 6. payment against documents 7. open-price contract8. offeree 9. material breach 10. firm offer 11. export license 12. counter offer 13. breach of contract 14. anticipatory avoidanceChapter 4I. F T T T T T F T T F T F T T T T F TII. 1. The legal liability of the manufacturer or seller of a product which, because of a defect, causes injury to the purchaser, user, or bystander.2. Imposing liability on an actor regardless of fault.3. The neglect or omission of reasonable precaution or care.4. A contract is a private agreement between the parties who have entered into it, so these parties alone should have rights and liabilities under the contract. This is referred to as privity of contract. Privity refers to the parties relationship, which is considered sufficiently direct to uphold a legal claim between them. Privity of contract establishes the basic concept that third parties have no rights in a contract to which they are not a party.5. It is a time limit, defined by the statute, within which a lawsuit must be brought.6. This defense is based upon a manufacturers compliance with the best available technology (which may or may not be synonymous with the custom and practice of the industry). This state-of-the-art defense keeps a manufacturer from liability if no safer product design is generally recognized as being possible.7. It is an affirmation made by the seller relating to the quality of the goods sold. 8. It is created by law and guarantees the merchantability and, in some circumstances, the fitness for a particular purpose of the goods sold.III.1. (1) she, or her property, was harmed by the product; (2) the injury was caused by a defect in the product; and (3) the defect existed at the time it left the defendant and did not substantially change along the way.2. manufacturers, distributors, wholesalers, and retailers.3. If there is a consolidation or merger of the two corporations; or (2) there is an express or implied agreement to assume such obligations, a corporation purchasing or acquiring the assets of another is liable for its debts?4. (1) the product was produced according to government specifications; (2) the manufacturer possessed less knowledge about the specifications than did the government agency; (3) the manufacturer exercised proper skill and care in production; and (4) the manufacturer did not deviate from the specifications. IV. 1. strict liability in tort 2. government-contractor defense 3. statute of limitation 4. statute of repose5. breach of warranty 6. state-of-the-art defense7. theories of recovery 8. negligence 9. punitive damages 10. preemption defense 11. prescription drug12. express warranty 13 implied warranty14. market-share liability Chapter 51. T T T F T T T T T T T T T F F T T T II. 1. In agency law a 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.2. A fiduciary relationship between two persons in which one (the agent) acts on behalf of, and is subject to the control of, the other (the principal)3. Legal doctrine imposing liability on a principal for torts committed by an agent who is employed by the principal and subject to the principals control.4. A principal whose identity is not known by the third party, but the third party knows that the agent is or may be acting for a principal at the time the contract is made.5. Agency relationship formed through oral or written agreement6. An agency relationship in which the principal is estopped from denying that someone is the principals agent after leading a third party to believe the person is an agent.7. One who works for, and receives payment from , an employer but whose working conditions and methods are not controlled by the employer, and independent contractor is not an employee but may be an agent. 8. Agency relationship in which an unauthorized agent commits the principal to an agreement and the principal later accepts the unauthorized agreement, thus ratifying the agency relationship.III. 1. Yes. In their principal-agent relationship, the parties agreed that Bruce would act on behalf and instead of the Crash in negotiating business with a third person.2. The employer must bear the loss under the law of agency.3. Yes. Based on the principal of agency by estoppel, Charles will be bound to fill the orders. Charless representation to Stevenson created the impression that Johnson was Charless agent and had authority to place orders. 4. Yes. Smiths power to sell Green Hills is coupled with a beneficial interest of one-half ownership in Green Hills created at the time of the loan for the purpose of supporting it and securing its repayment. The agency power is irrevocable. IV. 1. principal2. disclosed principal 3. undisclosed principal 4. apparent authority 5. withholding taxes6. fiduciary relationship7. power of attorney8. ratification9. independent contractor10. tort11. agency by appointment12. agency by operation of law13. agency by necessity 14. agency coupled with an interest Chapter 6 I. T T T F T T T T T T T T T T T F T F II. 1. A public corporation is one formed by government (for example, cities, towns and public projects) 2. Stocks are securities issued by a corporation- the purchase of ownership in the firm. 3. The process by which corporate assets are converted into cash and distributed to creditors and shareholders according to specified rules of preference. Liquidation may be supervised by members of the board of directors (when dissolution is voluntary) or by a receiver appointed by the court to wind up corporate affairs.4 The shareholders of a limited liability company are only liable for the un-paid amount on their shares should the company fail to pay its debts5. An enterprise organized around a parent firm established in one state that operates through branches and subsidiaries in other states.6. An enterprise made up of two or more parents form different states that co-own subordinate operating businesses in two or more states.7. A government-controlled multinational created by a treaty between two or more sates.8. In partnership law, partners incur joint liability for partnership obligations and debts. For example, if a third party sues a partner on a partnership debt, the partner has the right to insist that the other partners be sued with him or her.III.1. More funds are available for expansion; Two or more persons share in the decision making; Each partner may provide expertise in various areas of the operation2. A share capital of a stated amount ;The allotment and issue of company shares ;The allotment to each subscriber of one or more shares on condition that an amount will be paid to the company ;The liability of members is limited to the amount (if any) unpaid on their shares; The shares are the personal property of the members and are usually freely transferable.3. No. Smith and John may be partners, but the farmer is not a partner with them. Only Smith and John jointly own the property and have an equal right to manage the business. Also, the three do not share losses. Sharing profits does not alone prove a partnership.4. Possible not. Without a writing, Terry may have a hard time overcoming the presumption that he is entitled to only one-half of the profits of a two-person partnership. This problem could have been avoided by specifying in a written agreement how the profits would be shared.IV. 1. companies limited by shares2. companies limited by guarantee 3. private company / close corporation4. public company 5. company prospectus 6. Articles of Association 7. Memorandum of Association 8. the authorized capital 9. the issued capital 10. the paid up capital11. express power12. implied power13. Ultra vires doctrine14. subscriptions /subscription of sharesChapter 7I. 1-5 T F F T T F T F T F T F F T T T F FII.1. The WTOs top decision-making body. Meets at least once every two years.2. Top day-to-day decision-making body. Meets regularly, normally in Geneva.3. Treating ones own nationals and foreigners equally.4. Equal treatment for nationals of all trading partners in the WTO. 5. It allows a WTO member state to temporarily escape from its GATT obligations when there is a surge in the number of imports coming from other member states.6. Principles that government must make their rules, regulations, and practices open and accessible to the public and other governments.7. A group of states that have reduced or eliminated tariffs between themselves and have also established a common external tariff.8.Safeguards are emergency actions that a WTO member state may take in order to protect its domestic industry from serious injury from a sudden increase in the quantity of an imported product.III. 1.to implement, administer, and carry out the WTO Agreement and its annexes; to act as a forum for ongoing multilateral trade negotiations; to serve as a tribunal for resolving disputes; to review the trade policies and practices of member states. to cooperate with other international organizations such as the International Monetary Fund and the World Bank to achieve greater coherence in global economic policy making.2.tariff-based import restrictions; most-favorednation treatment; national treatment; reciprocity. 3. Eight. They are outlines as follows:All services are covered by GATS; Most-favored-nation treatment applies to all services, except the temporary exemptions; National treatment applies in the areas where commitments are made; Transparency in regulations, inquiry points; Regulations have to be objective and reasonable; International payments, normally unrestricted; Individual countries commitments, negotiated and bound; Progressive liberalization, through further negotiations. 4.copyright and related rights, trademark, including service marks, geographical indications, industrial design, patents, layout designs of integrates circuits, and undisclosed information, including trade secrets.IV. 1. multinational trading system2. non-discrimination treatment3. most-favoured-nation treatment4. export subsidy5. The General Agreement on Trade in Services (GATS)6. The General Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 7. restrictive trade barriers8. Generalized System of Preferences 9. dispute settlement procedures10. cross-border supply11. market access12. integrated circuits layout design13. World Intellectual Property Organization14. Dispute Settlement SystemChapter 8I. T T F T T T T T T T F T T T T T F T II.1. Copyright is an incorporeal statutory right that gives the author or an artistic work, for a limited period, the exclusive privilege of making copies of the work and publishing and selling the copies.2. Exclusive right of an author to make multiple copies of a copyrighted work.3. It is “any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.” 4. It is a mark or symbol used to identify a manufacturer or merchant. 5. They are issued for inventions already patented in another country.6. A mark or symbol used to identify a person who provides services.7. Certification of the authorship of an invention and establishment of a states right to its exclusive use. This is used in communist countries, such as China, North Korea.8. An artistic, literary, musical, or scientific creation.III.1. The former. Because its impossible to separate the utilitarian aspect of the circuit from its expression or layout.2. From the viewpoint of a consumer, a trademark serves to designate the origin or source of a product or service, indicate a particular standard of quality, represent the goodwill of the manufacturer, and protect the consumer from confusion.3. (1) national treatment National treatment is the requirement that each member state must grant the same protection to the nationals of other states that it grants to its own nationals. (2) right of priority The right of priority gives an applicant who has filed for protection in one member country a grace period of twelve months in which to file in another member state, which then must treat the appli