国际商法

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国际商法

• 国际商法概念
  • The dictionary defines law as
    • a.A rule established by authority,society,or custom
    • b.The body or system of such rules
    • c.The control or authority imposed by such a system of rules
  • International law defined
    • The body of rules and norms that regulates activities carried outside the legal boundaries.
      • Lack of single world government to make and enforce laws,no globally recognize forum to bring disputes to.
    • It regulates three international relationships
      • Those between states and states
      • Those between states and persons
      • Those between persons and persons
  • Schools on the NATURE OF INTERNATIONAL LAW
    • Cosmopolitans 世界主义/人权主义
      • based on universal human rights,the consent of state is irrelevant
    • Positivists 实证主义
      • can be seen as contracts between all the equally sovereign states in the international system,implementation through the treaties or customs
    • Hobbesians 霍布斯主义
      • international law only when suites states's self interests
  • COMITY
    • 国家之间文明友好的态度（不具有约束力）
    • defined:The practice,or sourtesy,between nations of treating each other with good will and civility
      • NOT A LAW
  • JURISDICTION
    • 管辖权（对外）
    • The Principle of Territorial Jurisdiction 属地原则
      • 在他国犯法他国有权制裁
    • The Principle of Nationality Jurisdiction 属人原则
      • 在他国犯法我国有权制裁
    • The Principle of Objective Territoriality Jurisdiction 目的地原则
      • 受影响国家有权制裁
    • 基本判定原则
• THE MAKING OF INTERNATIONAL LAW
  • No Formal Law-making MAchinery
  • Basic Mechanism For Creating International Law: Consensus of the international community
• SOURCE OF INTERNATIONAL LAW
  • international conventions
    • 国际成文法条
    • TREATY
      • between two or more states.
    • CONVENTION
      • between states sponsored by an international organization.
  • international custom
    • 国际惯例（习惯法）
    • Rules that have been around for a long time or which are generally accept
    • behavioral element（行为因素） consistent and recurring action (or lack of action)
    • psychological element（心里因素） states observing the custom regard it as binding
  • the general principles of law
    • 一般原则和强制性法规（绝对法）
    • common to both(or all) the state parties to a dispute
    • certain fundamental principles
      • ex.禁止使用武力
    • jus cogens
      • 特定情况下，违背普遍原则的法条
  • judicial decisions and the teachings of the qualified publicists
    • 司法裁决及国际法专家学说
    • judicial decisions
    • Teachings of publicists
  • 优先级从上至下
• THE SCOPE OF INTERNATIONAL LAW IN ACTUAL PRACTICE
  • The practice in International Tribunals
  • The practice in Municipal Courts
    • 意义：Once a court determines that a particular rule of international law is applicable in a particular case,taht law will be treated as law and not as a fact
    • 结果：The court must determine whether ot not the international law has been received into the local Jurisprdence
      • customary practice
        • Doctrine of incorporation（in most countries)并入论
        • Doctrine of trasformation转化论
      • treaties
        • Nature of the treaty
          • Self-executing：contains a provision stating that the treaty will apply to the parties without their having to adopt any domestic enabling legislation
            • 自我执行型：包含一项规定可以适用于缔约国且不必通过国内立法
          • Non-self-xecuting
        • The stucture of the ratifying state
          • constitutions may assigh to ome or more state organs the responsibility for entering into treaties
• INTRNATIONAL PERSONS
  • State and their subdivisions
  • International organizations
  • Businesses
  • Individuals
  • SUBJECT
• COMPARISON OF MUNICIPAL LEGAL SYSTEMS
  • COMMON LAW(EUR,RUSSIAN)
  • CIVIL LAW(USA,CANADA)
  • MIXED LAW(CHINA)
• STATE RESPONSIBILITY
  • State was only responsible to another state for an injury to an individual alien or foreign business
    • To establish a state responsibility, There must be a conduct consisting of an action or omission attributable to the State under international law; and The conduct must constitute a breach of an international obligation of the State. The sovereign state must consent to being adjudged responsible by another state or international tribunal.
    • Rationale for this was that injury to a state's national is an injury to that state
    • Doctrine of Imputability
      • A state is only responsible for actions that are imputable or attributable to it.
        • Acts within the scope of officials's authoriy
        • Acts outside their scope of authority but the state provided the means or facilities to accomplish the act
  • Nonimputable Acts(States are not responsible for the acts of
    • private persons
    • officials of other states
    • officials of international organizations
    • inssurrectionaries ……
• STANDARD OF CARE
  • Once a court or other tribunal decides taht a state is connected to an action,it has to determine the criteria it is to judged by
  • THE NATIONAL STANDARD
    • The state should treat an alien exactly as it treats its own nationals——no better,no worse.
  • THE INTERNATIONAL STANDARD
    • A country has no obligation to admit aliens to its territory. However, once it does, it must treat them in a civilized manner.
• EXPROPRIATION/NATIONALIZATION
  • Taking or deprivation of the property of foreigners by a government.
  • Expropriation/ Nationalization is legal if A.A legitimate public purpose; B.The state pays prompt, adequate, and effective compensation.
• DENIAL OF JUSTICE
  • A denial, unwarranted delay or obstruction of access to courts
  • Gross deficiency in the administration of judicial or remedial process
  • Failure to provide guarantees which are generally considered indispensable to the proper administration of justice
  • A manifestly unjust judgment
  • 概要
• THE MULTINATIONAL ENTERPRISE
  • The liability of the onwers is limited to their investment in their company
    • 股东责任有限制
  • Rights and benefits accuring to the company belong to the company,not to its onwers
    • 公司有独立的权利，与股东分离
  • The owners are neighter managers nor agents nor representatives of the company,and may not make decisions on behalf of the company
    • 股东无权参与公司决策
• WHY ARE THEY BIINDING?
  • Share sense of commitment
  • One country fears taht if it does not respect its promises,other countries will not respect their promisses.
• FAULT AND CAUSATION
  • Fault:Knowledge or Negligence A country is responsible for injuries regardless of fault.
    • difficult to prove a lack of proper care by a state
  • Causation: the relationship b/w cause and effect
• Can individuals be the subject of international law?
  • NO(Traditional law)
    • The law of state responsibility:a state can seek compensation form other states for injureis done to its nationals
  • YES(New trend)
    • Treats individuals as a subject of international law.
    • Regards individuals as having basic human rights.
    • Entitles individuals to assert claims on their own behalf against states.
      • 起诉其他国家
    • Entitles individuals to protest the actions of their own national state.
      • 抗议自己国家