國際商法(英語專業(yè)).doc

International Business Law 國際商法課程教案International Business Law國際商法課程教案YUAN TIANForeign Language Teaching and Research Department Heilongjiang UniversityChapter OneIntroduction to International Business LawI. Teaching ObjectivesOn completion of this Chapter, students should be able to:1. Get to know the objectives and feature of this course;2. Get to know the basic relationship among such elements as: International; Business; Law3. Grasp the basic requirements of legal English learning.4. Get to know the features of international law; 5. Get to know the sources of international law.II. The Points to Be Highlighted1. The relationship among the key elements as “international”, “business” and “l(fā)aw”2. The understanding of the nature of lawIII.Teaching Approaches and FacilitiesApproaches: 1. Pair/Group work 2. Discussion 3 Task-based approach4. Communicative approach 5. Questions and answersFacilities: PPT demonstration in the media classroom; on-line researchIV.Background Information1. Economic globalization, in recent years, has been one of the hottest focuses in the world. Although it is extremely difficult to define economic globalization, many economists and business experts believe that no business can be purely domestic, and the realities of the modern world make all business international.2. The causes of these developments are numerous:(1) Incredible advances in efficiency of communication;(2) Extraordinary reductions in transport costs;(3) Growing prevalence of instant tele-and-cyber-transactions;(4) Treaty and other norms causing reduction of governmental barriers to trade;(5) The blessing of relative peace in the world.V. Teaching Procedures and Contents1. Introduce the outline of this Chapter:This Chapter will discuss:v WHAT IS INTERNATIONAL LAW? v SOURCES OF INTERNATIONAL LAW International conventions; International custom; General principles of law; Judicial decisions; Teachings of publicists.v THE SCOPE OF INTERNATIONAL LAWv COMPARISON OF MUNICIPAL LEGAL SYSTEMS Romano-Germanic Civil Law; Anglo-American Common Law; Islamic LawTask Designexplain the outline of this chapter to the students after the brainstorming of the students. 2. WHAT IS INTERNATIONAL LAW?v Defined: The body of rules and norms that regulates activities carried on outside the legal boundaries of nationsIt regulates three international relationships:1)Those between states and states.2)Those between states and persons.3)Those between persons and persons.v The differences between public international law and private international lawPublic International LawPrivate International LawSource of international lawTortsInternational personalityContracts and salesState territoryTransportationState successionFinancingState responsibility to aliensIntellectual propertyLaw of the seaAntitrustLaw of warTortsStates and StatesPersons and PersonsDivision of subject matter has become more blurred nowadaysTask design: ask students to illustrate each point according to their respective understanding. v Is International Law Really Law?1) Because nations and individuals regard international law as law, it is law.2) Comity: The practice, or courtesy, between nations of treating each other with goodwill and civility.3) Comity is not law because countries do not regard it as something they are required to respect.3. SOURCES OF INTERNATIONAL LAWv Defined: Those things which international tribunals rely upon in determining the content of international law;v Treaties and Conventions: 1) Definitions: Treaties are agreements between one or more nations. Conventions are agreements sponsored by international organizations.2) Reasons for binding effect: Shared sense of commitment Because one country fears that if it does not respect its promises, other countries will not respect their promises3) Rules governing treaties: Traditionally customary; Now codified in the Vienna Convention on the Law of Treaties (in force since 1980).v Custom1) Defined: Rules that have been around for a long time or which are generally accepted.Caveat: Customary rules are constantly changing.2) Establishing the existence of a customary law: Must show two elements one behavioral and one psychological: Usus (Latin for: usage): Is the consistent and recurring action (or lack of action if the custom is one of noninvolvement) by states. Opinio juris et necessitatis (Latin for: Of the opinion that the rule is proper and required): The custom must be regarded by states observing it as one that they must obligatorily follow.3) Exceptions to the application of custom: Persistent objector: A state that persistently objects to a practice during its formative stages will never become a party to it. A state allowed by the international community to deviate from a customary practice.v General PrinciplesGeneral principles of law are common to both (or all) the state parties to a dispute.Task design: comparative study in groups to analyze the order of legal effect of the above resources of law. 4. COMPARISONS OF MUNICIPAL LEGAL SYSTEMS v Legal “families”1)Romano-Germanic Civil Law.2)Anglo-American Common Law.3)Islamic Law.v The Romano-Germanic Civil Law SystemThe Oldest and most influential of the legal familiesA. French Civil Code 1) French Civil Code (Code Napoleon) of 1804 The right to possess private property; The freedom to contract; The autonomy of the patriarchal family.2) Differences from the German Code: Written in a short period of time. Its style and form are one that is straightforward, easy to read, and understandable to everyone.3) Differences from the English common law: It contains flexible general rules rather than detailed provisions.B. German Civil Code of 1896.1)Characteristics of the German Code: Incredibly precise and technical. Special terminology is used.2) Differences from the French Code: It is meant exclusively for the use of trained experts (not lay readers).C. Countries with Civil Law systems distinguish between the civil law and public Law.1) Public law evolved separately from the movement for codification of civil or private law. Public law is constitutional and administrative law. Public law is treated in a variety of ways in the civil law countries.v The Anglo-American Common Law System1) Historical origins:In 1066, the Normans conquered England and William the Conqueror began to centralize the governmental administration of his new kingdom.The name “common law” is derived from the theory that the kings courts represented the common custom of the realm, as opposed to the local customary law practiced in the county and manorial courts.2) The “common law” must be distinguished from the law which evolved out of: Equity: A principle of justice developed by the kings chaplain, or chancellor, to provide parties with a remedy when none was available in the kings courts. Admiralty (the laws governing sailors) and other specialized jurisdictions.v The Islamic Law SystemKnown as Sharia.1) Sources in the order of their importance: The Koran. The Sunnah or decisions and sayings of the Prophet Muhammad. The writings of Islamic scholars who derived rules by analogy from the principles established in the Koran and the Sunnah. The consensus of the legal community.2) Note that the Sharia is primarily a moral code. It is principally concerned with ethics. In this respect, it contains many principles in common with the civil law and the common law. It is much less concerned with promoting commerce and international relations than the secular legal systems. Task design: group work and on line research.VI. Assignments1. Translation Exercises:Article 38(1) of the Statute of the International Court of Justice lists the sources that the Court is permitted to use.The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:(a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;(b) International custom, as evidence of a general practice accepted as law;(c) The general principles of law recognized by civilized nations;(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.2. Case studyThe Lotus in 1927A collision occurred on the high seas between a French steamer and a Turkish collier in which some Turkish crew members and passengers lost their lives. When the French ship docked in a Turkish port, the Turkish government began criminal proceedings against the French officers on watch at the time of the collision. The French appealed to the permanent Courts of International Justice arguing that Turkey had violated international law, because, France said, only the flag state has jurisdiction over criminal incidents on the high seas. The PCIJ said that the few cases France cited for this proposition “merely show that states had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstentions were based on their being conscious of a duty to abstain would it be possible to speak of an international custom.” Conclusion: Turkey was allowed to continue with its criminal prosecution.VII. Reference Material International business law (Text, Cases, and Readings) Ray AugustInternational Business Law and Its Environment by Richard Schaffer, Beverley EarleInternational Business Law: A Transactional Approach by Larry DiMatteo and Lucien J. Dhooge Chapter Two The Multinational Enterprise I. Teaching ObjectivesOn completion of this Chapter, students should be able to:1. know the basic forms of International business;2. better understand the structures of multinational enterprises.3. grasp the basic attributes of a multinational organization;4. learn to differentiate national multinational corporation from international multinational corporation;5. get familiar with basic international regulations and home state regulations of multinational enterprises6. get familiar with basic international regulations;7. grasp the host state regulations of multinational enterprises.II. The Points to Be Highlighted1. The difference between the national Multinational Corporation and the international Multinational Corporation.2. The basic attributes of a multinational organization.III.Teaching Approaches and FacilitiesApproaches: 1. Pair/Group work 2. Discussion 3 Task-based approach4. Communicative approach 5. Questions and answersFacilities: PPT demonstration in the media classroom; on-line researchIV.Background InformationPre-lecture illustrationGet familiar with the outline of this Chapter: v THE BUSINESS FORM v THE MULTINATIONAL ORGANIZATIONv INTERNATIONAL REGULATION OF MULTINATIONAL ENTERPRISESv HOME STATE REGULATION OF MULTINATIONAL ENTERPRISESv HOST STATE REGULATION OF MULTINATIONAL ENTERPRISES Task design: illustrate the outline of this chapter to the students. V. Teaching Procedures and ContentsSection 1 THE BUSINESS FORM1. Multinational Naturel Depending on place of creation: Home or parent organizationslocated within a single state; Multiple parents located in multiple states.l A matter of municipal law2. Business Forms in Civil Law States1) Company: An association of persons or of capital organized for the purpose of carrying on a commercial, industrial, or similar enterprise.2) Partnership: A company of two or more persons who co-own and manage a business and who are each liable to the full extent of their personal assets for its debts. Limited partnership: A company of two or more persons, at least one of whom has unlimited personal liability for the debts of the business and at least one other who is an investor having limited liability. Silent partnership: A secret relationship between two or more persons, one of whom carries on a business in his name alone without revealing the participation of the other who has limited personal liability. Partnership limited by shares: A company of one or more general partners who have unlimited personal liability for the debts of the company and limited participation by investors in the form of shares. The company is taxed as a corporation.3) Corporation: A company of capital whose owners have limited personal liability. Stock corporation: A corporation that can raise money in the public marketplace through the sale of freely transferable shares. Its financial statements have to be disclosed to the public. Limited liability company: A corporation owned by members that does not issue negotiable share certificates and is subject to minimal public disclosure laws.3. Business Forms in Common Law States1) Company: An association of persons organized for the purpose of carrying on a commercial, industrial, or similar enterprise.2) Partnership: An association of two or more persons who co-own and manage a business for profit and who are each liable to the full extent of their personal assets for its debts. Limited partnership: A partnership consisting of one or more general partners who manage the business and who are each liable to the full extent of their personal assets for its debts and one or more limited partners whose liability is limited to the funds they invest. Secret partnership: A partnership in which the participation of one or more persons as partners is not disclosed to the public by any of the partners. All of the partners have unlimited personal liability.3) Joint stock company: An unincorporated association of persons whose ownership interests are represented by transferable shares. The shareholders have unlimited personal liability.4) Business trust: A business arrangement in which the owners of a property, known as beneficiaries, transfer legal title to that property to a trustee who then manages it for them. The beneficiaries hold transferable trust certificates entitling them to the income generated by the property and a residual equitable share at the time the trust is terminated. The trustee has unlimited personal liability while the beneficiaries have limited personal liability.5) Corporation: A separate juridical entity owned by shareholders who may have limited, unlimited, or no liability. Public corporation: A corporation that can raise money in the public marketplace through the sale of freely transferable shares. Its financial statements have to be disclosed to the public. Private corporation: A corporation that may not ask the public to subscribe to its shares, bonds, or other securities and which is subject to less stringent public disclosure laws than a public corporation. Limited liability company: An unincorporated business association.4. The Importance of the Separate Legal Identity of Companies1) Juridical entities (such as companies) have legal identities separate from that of their owners.2) Significance: The liability of the owners is limited to their investment in the company. The owners are neither managers nor agents nor representatives of the company. The rights and benefits accruing to the company belong to the company and not its owners. The property rights of a company can only be claimed by that company.Task design: traditional explanation and question and answer on class. Section 2 THE MULTINATIONAL ORGANIZATION 1. Parent CompanyRisk Sharing & Economies of ScaleNon-multinational EnterpriseNational Multinational EnterpriseInternational MultinationalEnterprise1) The Non-multinational. Defined: A domestic firm functioning in the international marketplace through a foreign agent. Note: Neither the principal nor the agent are truly multinational enterprises because neither operates outside of its home state.2) The National Multinational Defined: A firm in one country the “parent” that operates in other countries through branches and subsidiaries.3) The International Multinational Two or more parent companies located in different states operate through jointly owned subsidiaries in several states. Public Trans-nationals. Defined: A government-controlled multinational enterprise created by treaty between two or more states.2.The Subordinate Structure1) Subordinates subject to direct control of the parent:2) Representative office: A foreign contact point where interested parties can obtain information about a particular firm. It does not do any business on its own.3) Agent: An individual who is employed as an independent representative of a firm. Agents are subject to the supervision of the parent firm (or principal). Their authority is limited to what the parent delegates to them.4)Branch: A larger unit of the parent company which involves not only the placement of individuals in a particular locale, but also the establishment of a facility, such as an assembly plant, mining operation, or service office. The authority of branch personnel is limited to what the parent has delegated.5) Disadvantages of these subordinates: The parent has to assume all of the risk of investing abroad. A foreign firm (or its agent or its branch) is often taxed at higher rates than local firms. Many developing states require local participation in order for a foreign fi