国际商法英文版

2009 Pearson Education Inc publishing as Prentice HallInternational Business Law Textbook Ray August, Don Mayer, Michael Bixby. “International Business LawText, Cases and Readings” 6th Edition Pearson 2009 Pearson Education Inc publishing as Prentice HallInternational Business Law (2 Credits) Purpose: This course aims to give students from many cultures and traditions a good look at the overall structure of the global “legal environment” in which business operates today. The focus will be on global legal issues concerning state responsibility and environmental regulation, dispute settlement, trade in Goods, services and labour, intellectual property, sales, and transportation, which shows both the diversity and similarity of business and of the law. 本课程从多种文化、传统入手，培养学生审视当今企业经营所处的全球“法律环境”的整体结构，重点放在全球性法律问题，涉及国家责任和环境规制、争端解决、货物贸易、服务与劳务、知识产权、销售、运输等业务，揭示商务和法律的多样性与相似性。 2009 Pearson Education Inc publishing as Prentice HallTheoretical StudylIntroduction to International and Comparative Law 国际法与比较法入门lState Responsibility and Environmental Regulation 国家责任和环境规制lDispute Settlement 争端解决lTrade in Goods 货物贸易lServices and Labour 服务与劳务lIntellectual Property 知识产权lSales 销售lTransportation 运输 2009 Pearson Education Inc publishing as Prentice HallCase Study:l1. Commission of the European Communities v. Federal Republic of Germany 欧共体委员会诉联邦德国案l2. Chinas refusal to accept the doctrine of restrictive sovereign immunity 中国拒绝接受国家主权有限豁免原则案l3. Southern Bluefin Tuna Cases: Provisional Measures 南方蓝鳍金枪鱼案：临时措施l4. Japan-Taxes on Alcoholic Beverages 日本酒精饮料税收案l5. United States-Import Prohibition of Certain Shrimp and Shrimp Products 美国虾及虾产品进口限制案 2009 Pearson Education Inc publishing as Prentice HallCase Study:l6. European Communities-Regime for the Importation, Sale and Distribution of Bananas 欧共体香蕉进口、销售、分销制度案l7. LOreal v. eBay 欧莱雅诉eBay案l8. The Natural Gas Case天然气案l9. Great China Metal Industries Co. Ltd. V. Malaysian International Shipping Corp. 中国金属工业有限公司诉马来西亚国际航运公司案 2009 Pearson Education Inc. publishing as Prentice Hall1-1Chapter 1INTRODUCTION TO INTERNATIONAL AND COMPARATIVE LAW 2009 Pearson Education Inc. publishing as Prentice Hall1-2CHAPTER 1CHAPTER 1Defining International LawMaking International LawSources of International lawScope of International Law in PracticeInternational PersonsIndividual Rights Under International LawComparison of Municipal Legal Systems 2009 Pearson Education Inc publishing as Prentice Hall1-3International LawlHistorically, dealt with the rules and norms regulating the relationships between states (countries)lThis law between nations is called public international lawlWith growth of relationships between persons and corporations in different states, private international law developed to govern their conduct 2009 Pearson Education Inc publishing as Prentice Hallwhat is international business law? International business law is the body of rules and norms that regulates business activities carried outside the legal boundaries of states. In particular, it regulates the business transactions of private persons internationally, and the relationship of international commercial organizations. 国际商法是调整国际商法是调整跨国商事活动跨国商事活动的法律规范的总称。它调整的法律规范的总称。它调整的是的是国际私人商事交易关系国际私人商事交易关系和国际商事组织间的关系和国际商事组织间的关系. 2009 Pearson Education Inc publishing as Prentice HalllWhat is international law?International law deals with 3 kinds of international relationships:those between states and states, those between states and persons, those between persons and persons.Traditionally, international law was all about the relationships between states. That is, the law of nations resolved issues between two or more states, and the legal relationships between and among states is what is generally called public international law. As transactions among private entities grew, the phrase private international law was applied to the laws governing conduct between people (and corporations) from different states. 2009 Pearson Education Inc publishing as Prentice HallFor many, international law remains a contradiction in terms. There is no single world government to make and enforce laws, and no globally recognized forum in which to bring disputes between citizens of different nations-states. To those who see law as “the command of a sovereign”, the more consensual nature (诺成性，契约性) of international law makes it “soft” law or no law at all. Moreover, the decline in the power of states relative to the private sector poses new challenges to contemporary international law. Today, the term international law applies to any conduct outside the boundaries of states, whether of a public or a private nature. 2009 Pearson Education Inc publishing as Prentice HallThere are at least 3 ways of looking at international law. Cosmopolitans （世界主义者） claim that international law is based on universal human rights. Thus, international law should restrain states from violating norms based on universal human rights, and the consent of a state is irrelevant. By contrast, Positivists (实证主义者) focus on the sovereignty of states and their consent to limits on that sovereignty. Thus Positivists claim that international law is based on (1) the sovereign equality of all states in the international system and (2) state consent to individual international laws, either through treaties or customs. 2009 Pearson Education Inc publishing as Prentice HallPositivists international law can be seen as a series of contracts between states; international law becomes binding only through such explicit or implicit contracts. In contrast to either Cosmopolitans or Positivists, Hobbesians (霍布斯主义 “Leviathan”利维坦) are more cynical, believing that states will make agreements and abide by international law only when it suits their self-interests. 2009 Pearson Education Inc publishing as Prentice Hall Scholars, jurists, and politicians will rarely adopt one school of another with consistency, and combinations of these views can coexist among principal actors in the same nation-state. At a minimum, however, international law is understood to be more than just good manners or mutual respect between or among sovereign nation-states. Comity, for example, is the practice between states of treating each other with goodwill and civility. It is not law, however, because states do not regard it as something they are required to respect. For example, until it became a matter of legal obligation under Art. 36 of the 1961 Vienna Convention on Diplomatic Relations, it was long considered to be a customary courtesy to allow 2009 Pearson Education Inc publishing as Prentice Hallforeign diplomats the privilege of importing goods they intended for their private use free of customs duties. This privilege was not a legal right guaranteed by international law, however, because states did not feel compelled to grant the privilege except as a courtesy. Such courtesy can be seen as a kind of anticipatory reciprocity in which states do unto other states as they would hope to be treated in turn. Comity is thus understood as an informal principle that nations will extend certain courtesies to other nations, particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. This principle is most frequently invoked by courts, which will not act in a way that demeans the jurisdiction, laws, or judicial decisions of another country. 2009 Pearson Education Inc publishing as Prentice Hall1-4Schools of Thought Defining The Basis of International Law (IL)lCosmopolitans argue that IL is based upon universal human rights.lPositivists say that IL is based on the sovereign equality of all states and state consent to IL through treaties or custom.lHobbesians claim that states will make agreements and abide by IL only when it suits their self-interests. 2009 Pearson Education Inc publishing as Prentice Hall1-5Examples of Public andPrivate International Law 2009 Pearson Education Inc. publishing as Prentice HallCase 1-1 Ignacio Sequihua v. Texaco Inc. et al.United States District Court for the Southern District of Texas,Houston Division, 847 F. Supp. 61 (1994) 2009 Pearson Education Inc. publishing as Prentice HallOpinion of Judge BlackPlaintiffs, residents of Ecuador, filed this action in Texas state court asserting a variety of causes of action arising out of the alleged contamination of the air, ground, and water in Ecuador.In addition to monetary relief, Plaintiffs asked for an injunction requiring Defendants to return the land to its former condition and for a “trust fund” to be administered by the Court. The case was removed to federal court, and the Court finds that the removal was procedurally proper. In considering the defendants motions to dismiss, the Court used “comity” to rule for defendants. 2009 Pearson Education Inc. publishing as Prentice HallUnder the doctrine known as comity of nations, a court should decline to exercise jurisdiction under certain circumstances in deference to the laws and interests of another foreign country.Section 403(3) of the Restatement (Third) of the Foreign Relations Law of the United States sets forth a number of factors to be considered in determining whether the comity of nations deference should be applied. The Ninth Circuit applied similar factors in Timberlane Lumber Co. v. Bank of America National Trust and Savings Assn., 749 F.2d 1378 (9th Cir. 1984), to affirm a District Courts decision not to exercise jurisdiction. Consideration of these factors leads to the inescapable conclusion that the Court should decline to exercise jurisdiction over this case. 2009 Pearson Education Inc. publishing as Prentice HallThe challenged activity and the alleged harm occurred entirely in Ecuador; Plaintiffs are all residents of Ecuador; Defendants are not residents of Texas; enforcement in Ecuador of any judgment issued by this Court is questionable at best; the challenged conduct is regulated by the Republic of Ecuador and exercise of jurisdiction by this Court would interfere with Ecuadors sovereign right to control its own environment and resources; and the Republic of Ecuador has expressed its strenuous objection to the exercise of jurisdiction by this Court. Indeed, none of the factors favor the exercise of jurisdiction. Accordingly, the case should be dismissed under the doctrine of comity of nations.CasepointUnder the doctrine known as comity, a court should decline to exercise jurisdiction under certain circumstancesin deference to the laws and interests of another country. 2009 Pearson Education Inc publishing as Prentice Hall1-7Case 1-1Ignacio Sequihua v. Texaco Inc. lComity applied to private dispute.lCourt in Texas declined to exercise jurisdiction over activity and harm that occurred in Ecuador.lTaking jurisdiction in U.S. would have interfered with Ecuadors sovereign right to control its own environment.lCase dismissed under the doctrine of comity of nations. 2009 Pearson Education Inc publishing as Prentice Hall1-6Goodwill and Civility Between States: Comity lRepublic of the Philippines v. Westinghouse Elec. Corp. 43 F3d 65 (3rd Cir, 1994) U.S. trial court ordered the Philippine government to not harass witnesses involved in the case.Court of Appeals overturned the order.Held that a court could request compliance by a foreign sovereign as a matter of comity, but could not order compliance. Comity requires that we respect other countries sovereignty and law so that they will respect ours. 2009 Pearson Education Inc publishing as Prentice Hall1-8U.S. Courts Apply Comity and Refuse to Take Jurisdiction When:lThe defendant is a sovereign statelDefendant has insufficient contacts with the U.S. lAnother judicial forum is more convenientlCongress did not intend U.S. statute to apply extraterritoriallylCase concerns act of sovereign state on its own territory 2009 Pearson Education Inc publishing as Prentice Hall1-9The Making of International LawlGenerally, IL comes into effect only when states consent to it.lGeneral consent found in state practice the conduct and practices of states in their dealings with each other. lEvidence of general consent:Decisions of the International Court of JusticeResolutions passed by the UN General AssemblyMultilateral treaties, conclusions of international conferences, and provisions repeated over and over again in bilateral treaties 2009 Pearson Education Inc publishing as Prentice Hall1-10Sources of International LawlTreaties or conventionslInternational customlGeneral principles of law recognized by civilized nationslJudicial decisions and teachings of highly qualified legal writers lThis 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 to be relied on. 2009 Pearson Education Inc publishing as Prentice Hall1-11Treaties and ConventionslEquivalents of legislation in IL are:Treaties legally binding agreement between two or more states.Conventions legally binding agreement between states sponsored by an international organization.Customary rules that govern treaties are contained in the Vienna Convention on the Law of Treaties, ratified by 108 countries. 2009 Pearson Education Inc publishing as Prentice Hall1-12Custom As Source of International LawlCustom a long-established tradition or usage that becomes customary law if it is:Consistently and regularly observed, and(Evidence of this found in official statements of governments, opinions of legal advisors, executive decrees, orders to military forces, and court decisions.)1.Recognized by those states observing it as a practice that they must obligatorily follow. 2009 Pearson Education Inc publishing as Prentice Hall1-13General Principles of Law and Jus CogenslCourts will often rely upon general principles of law that are common to the legal systems of the world to solve international disputes.lJus cogens (强制性法规强制性法规) is a peremptory norm of general international law, recognized by the international community as a norm from which no derogation is permitted.lJus cogens - states must respect certain fundamental principles. Treaties are void if they conflict with jus cogens.Ex: Treaty by two nations to use violence against a third nation violates higher standard of jus cogens. 2009 Pearson Education Inc publishing as Prentice Hall1-14Scope of International Law in Actual PracticelInternational tribunals regard municipal law as subservient to international law.lStates have obligation to bring their municipal law into compliance with international norms.lMunicipal courts often balk at this obligation based upon strong feelings of nationalism and belief in priority for the sovereign states own law. 2009 Pearson Education Inc publishing as Prentice Hall1-15Practice in Municipal CourtslIn municipal courts, international law generally treated as correlative.lIf the international law is based on customary practice, it is received in accordance with the doctrine of incorporation（纳入原则）（纳入原则）.Customary IL is part of domestic law to the extent that it is not inconsistent.lMinority of courts - doctrine of transformationCustomary IL is applicable domestically only after adopted by legislation, court decision, or local usage. 2009 Pearson Education Inc publishing as Prentice Hall1-16Municipal Court Reception Rules Found in Treaties Two FactorslNature of the treaty:Self-executing （自动执行条约） contains a provision stating that the treaty will apply to the parties without having to adopt domestic enabling legislation.自行生效的，无需立法手续即可生效的Non-Self-Executing（非自动执行条约） requires enabling legislation before effective domestically.lConstitutional structure of the ratifying state:In U.S., President negotiates constitutional treaties that are then ratified by the Senate. Executive agreements - treaties entered into by the President, not ratified, not effective domestically. 2009 Pearson Education Inc publishing as Prentice Hall1-17Case 1-2 Sei Fujii v. Statepp.10-12lExamines whether provisions of UN Charter promoting fundamental freedoms without distinction as to race are self-executing or not.lCalifornia appellate court ruled that land purchased by Fujii, a Japanese alien, violated alien land law and escheated to state.lCA Supreme Court affirmed that UN Charter was not self-executing because language was not mandatory and required additional implementing legislation. However, law violated 14th Amend., Fujiis money returned. 2009 Pearson Education Inc publishing as Prentice Hall1-18International Persons pp. 12-42lStatesIndependent statesDependent statesInchoate states p.12lInternational OrganizationsIntergovernmental organizations (IGO)Nongovernmental organizations (NGO) 2009 Pearson Education Inc publishing as Prentice Hall1-19International Persons - StateslState - political entity comprising a territory, a population, a government capable of entering into international relations, and a government capable of controlling its territory and peoples.lAn independent state is sovereign and operates independently internationally.lA dependent state (Puerto Rico) has formally surrendered some aspect of their political and governmental functions to another state.lAn inchoate state lacks attributes of independent state, such as territory or population. 2009 Pearson Education Inc publishing as Prentice Hall1-20Case Matimak Trading Co. v. Khalily and D.A.Y. Kids Sportswear Inc.lMatimak, a Hong Kong corporation, sued in federal court in NY under diversity jurisdiction as a citizen of foreign state.lThough not formally recognized by executive branch, Matimak argued de facto recognition of Hong Kong.lRuling: Hong Kong not an independent state. Matimak not a citizen or subject of United Kingdom or any foreign state. Suit dismissed for lack of jurisdiction. 2009 Pearson Education Inc publishing as Prentice Hall1-21Case 1-4 pp. 3133 Court of Justice of the European Communities Case 274/87 Commission of the European Communities v. Federal Republic of Germany欧共体委员会诉联邦德国案 2009 Pearson Education Inc publishing as Prentice Hall1-21 JudgmentlCase 1-4 examines both the obligation of member states to bring their laws into accord with the EU treaties (in particular the European Community Treatythen known as the EEC Treaty) and the direct effect of those treaties. 2009 Pearson Education Inc publishing as Prentice Hall1-21 JudgmentlBy application lodged at the Court Registry on 16 September 1987, the Commission of the European Communities brought an action before the Court under the second paragraph of Article 169 of the EEC Treaty for a declaration that by prohibiting the importation and marketing in itslterritory of meat products from other Member States which do not comply with 2009 Pearson Education Inc publishing as Prentice Hall1-21 Paragraphs 4 and 5 of the Fleisch-Verordnung (Meat Regulation) of 21 January 1982 the Federal Republic of Germany has failed to fulfill its obligations under Article 30 of the EEC Treaty.lThe regulation in question prohibits the marketing of meat products which contain ingredients other than meat, subject to exceptions in respect of 2009 Pearson Education Inc publishing as Prentice Hall1-21 specified products the composition of which is defined, with a requirement, in certain cases, for specific information to be shown on the packaging or displayed on signs. The ban on marketing those products is supplemented by Paragraph 47, subparagraph 1, of the Lebensmittel und Bedarfsgegenstaendegesetz (Law on foodstuffs and necessities) of 15 August 1974, which prohibits the importation of foodstuffs which do not 2009 Pearson Education Inc publishing as Prentice Hall1-21 comply with German standards. Compliance with those rules is ensured by means of criminal or administrative penalties.lIt should be noted at the outset that it is undisputed that the contested rules have a restrictive effect on imports of meat products legally manufactured and marketed in other Member States. The issue between the parties is whether or not the measures in question a