2022年国际贸易法律实务试题.docx

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1、精品学习资源名词说明1、 offer and acceptanceOfferand acceptance analysis is a traditionalapproach in contract law used to determine whether an agreement exists between two parties. An offer is an indication by one person to another of their willingness to contract on certain terms without further negotiations.

2、 A contractis then formed ifthere is express or impliedagreement. A contractis said to come into existence when acceptance of an offer has been communicated to the offeror by the offeree.An offer is an expression of willingness to contract on certain terms, made with the intention that it shall beco

3、me binding as soon as it is accepted by the person to whom it is addressed, the offeree.The expression referred to in the definition may take different forms, such as a letter, newspaper, fax, email and even conduct, as long as it communicates the basis on which the offeror is prepared to contract.T

4、he intention referred to in the definition is objectively judgedby the courts.Acceptance is a final and unqualified expression of assent to the terms of an offer.Alternatively, an offer consisting of a promise to pay someone if the latter performs certain acts which the latter would not otherwise do

5、 such as paint a house may be accepted by therequested conduct instead of a promise to do the act. The performance of the requested act indicates objectively the partys assent to the terms of the offer.2、 信用证3、 特殊提款权4、 独占许可5、 国际特许专营International FranchisingThe U.S. has experienced an explosion in bu

6、siness format franchising in the last two decades. the most efficient business model for distributing goods and services and the very advanced U.S. free market economy rewards efficiency above all.Essentially franchising is a very specific method or way of distributing goods and services.It has been

7、 around in one form or another since man first began to engage in commercial enterprise. It has evolved from a simple grant of a right or privilege in the middle ages to the sophisticated business format franchise concept of today欢迎下载精品学习资源Modernday franchising is primarilyin the business format mod

8、e. This type franchising not only grants the right to use the name and sell the products or services of the franchiser but it also involves the transfer of the total way of doing business that has been developed by the franchiser6、 市场经济国家Market Economy Nations7、 仲裁ArbitrationThe essence of arbitrati

9、on is that it is an agreement between two or more parties to try to resolve a dispute outside of the court system.The parties agree upon a third party as an arbitrator who willact as a judge and jury. Aftergivingthe parties the opportunityto present their side of the story and to present any relevan

10、t documents or other evidence, the arbitrator will act as King Solomon to decide who wins and who loses.Arbitration Awardbinding arbitration generally means that the winning party can take an arbitration award to a court of law and enforce it if the losing party does not comply with the terms of the

11、 decision.Non-bindingarbitration refers to a situation where the parties agree to use arbitrationas a forum to try to resolve their differences, but neither party is bound to comply with any decision bythe arbitrator.简答1、 rules of acceptanceAcceptance is a final and unqualified expression of assent

12、to the terms of an offer.Alternatively,an offer consisting of a promise to pay someone ifthe latter performs certain acts which the latter would not otherwise do such as paint a house may be accepted by the requested conduct instead ofa promise to do the act. The performance of the requested act ind

13、icates objectively the partys assent to the terms of the offer.Communication of acceptance.There are several rules dealing with the communication of acceptance: The acceptance must be communicated:Depending on the construction of the contract, the acceptance may not have to come until欢迎下载精品学习资源the n

14、otificationof the performanceof the conditionsin the offer.but nonetheless the acceptance must be communicated.Prior to acceptance, an offer may be withdrawn.An offer can only be accepted by the offeree, that is, the person to whom the offer is made.Anofferee is not bound ifanother person accepts th

15、e offer on his behalf withouthis authorisation:It may be impliedfrom the construction of the contract that the offerorhas dispensed with the requirement of communication of acceptance. If the offer specifies a method of acceptance , you must accept it using a method that is no less effective than th

16、e method specified. Silence cannot be construed as acceptance:2、 cisg适用范畴The UnitedNations Convention on Contracts forthe InternationalSale of Goods the“ CISG”is one of the documents produced through the diplomaticefforts of the UnitedNations Commis sion on International Trade Law “ UNCITRAL” .The C

17、ISG attempts to bridge the gap between the differentlegal systems of the world, mainlybetween the civillawFrench and German sub-traditionsand the common law English and American sub-traditions, by creating a uniform law for the international sale of goods preamble of the CISG. The CISG governs the f

18、ormation of the contract of sale aswell as the rights and obligations of the buyer and seller including their remedies. It came into force on 1 January 1988 for those countries that were then parties to it.The Sphere of Application of CISG(1) This Convention applies to contracts of sale of goods bet

19、ween parties whose places of business are in different States(a) when the States are Contracting States； or(b) when the rules of private international law lead to the application of the law of a ContractingState.(2) The fact that the parties have their places of business in differentStates is to bed

20、isregarded whenever this fact does not appear eitherfrom the contractor fromany dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract.(3) Neither the nationalityof the parties nor the civilor commercial character of the parties or of

21、the contract is to be taken into consideration in determining the application of this Convention.3、 买方或者卖方的救济方法欢迎下载精品学习资源Remedies for breach of contract by the seller(1) Ifthe seller failstoperformany ofhis obligationsunder the contract orthis Convention, the buyer may:(a) exercisetherightsprovidedi

22、narticles46to52；(b) claim damages as provided in articles 74 to 77.(2) The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies.(3) No period of grace may be granted to the seller by a court or arbitral tribunal when thebuyer resorts to a remedy f

23、or breach of contract.Remedies for breach of contract by the buyer(1) If the buyer fails to perform any of his obligations under the contract or this Convention, the seller may:(a) exercisetherightsprovidedinarticles62to65；(b) claim damages as provided in articles 74 to 77.(2) The seller is not depr

24、ived of any right he may have to claim damages by exercising his right to other remedies.(3) No period of grace may be granted to the buyer by a court or arbitral tribunal when the seller resorts to a remedy for breach of contract.The seller may require the buyer to pay the price,The seller may decl

25、are the contract avoided(a) if the failure by the buyer to perform any of his obligations under the contract orthisConventionamountstoafundamentalbreachofcontract；or(b) if the buyer does not, within the additional period of time fixed by the seller in accordance with paragraph 1 of article 63, perfo

26、rm his obligation to pay the price or take delivery of the goods, or if he declares that he will not do so within the period so fixed ；However, in cases where the buyer has paid the price, the seller loses the right to declare the contract avoided unless he does so:a in respect of late performance b

27、y the buyer, before the seller has become aware that performance has been rendered； orb in respect of any breach other than late performance by the buyer, within a reasonable time:4、 两个图写流程 13 条5、 排他许可双方的权益义务关系欢迎下载精品学习资源6、 判定市场经济国家的标准Criteria of Market Economy1. It differs from either historical sel

28、f-sufficient economy or planned economy,2. Criteria of Market Economy as Defined by Relevant Antidumping Laws of the USA, the EU and Canada3. Non-MarketEconomy Countries as referred to by the US Department of Commerce are countries whose operation does not follow market costs or price rulesCriteria

29、of Market Economy as Defined by the USA：Non-MarketEconomy Countriesas referred to by the US Department of Commerce are countries whose operation does not follow market costs or price rulessix statutory requirements ：(1) the extent to which the currency of the foreign country is convertible into the

30、currency of other countries；(2) the extent to which wage rates in the foreign country are determined by free bargainingbetween labor and management；(3) the extent to which joint ventures or other investments by firms of other foreign countries are permitted in the foreign country ；(4) the extent of

31、government ownership or control Of the means of production；(5) the extent of government control over the allocation of resources and over the price and output decisions of enterprises, requesting that decisions concerning the output and prices of an industryare free of government interventionand tha

32、t all importantproduct inputs are paid at market prices ；(6) such other factors as the administrating authority considers appropriate. 7Criteria of Market Economy as Defined by the EU(1) prices, costs and inputs etc are determined by market demand and supply ；(2) firms have one clear set of basic ac

33、counting records which are independently audited in line with international accounting standards and are applied for all purpose.(3) The production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market economy system, in particular

34、in relation to depreciation of assets, other write-offs, barter trade and payment via compensation of debts.(4) The firms concerned are subject to bankruptcy and property laws that guarantee legal certainty and stability for the operation of firms, and,(5) exchange rate conversions are carried out a

35、t the market rate.Criteria of Market Economy as Defined by Canadanon-market economy（ 1 ） is the governments role in formulating economic policies and controlling economic activities interfering the normal performance of the market economy. This includes the percentage and structure of governmental i

36、nfluence in pricing, distribution of products andprocedures for making offers； the pricingmechanism of domestic products and services；planning and controllingof production of commodities and provision of services and market restrictions ； the control of domestic and international trade； further refo

37、rms in the structure and functions of government organizations欢迎下载精品学习资源(2) how does the government control or govern enterprises in respect of production, sales and procurement. And how is control or governing applied in connection with enterprises financing.(3) in respect of international trade, t

38、he conditions and procedures foreign trade enterprises must comply with the government to allow them to carry out foreign trade businesses； government guidance and control in respect of quotas and prices of import and export products.(4) market-oriented reforms of state-owned enterprises, including

39、the existing types of owner-ship, when and how the ownership system was transformed ； in the state-owned enterprises under government control, the mechanism for determining prices of elementary factors such as raw materials, energy, labor cost as well as quantity and prices of their products, the ma

40、nagingofenterprises funds and performance,the distributionof profits,the relationshipbetween employers and employees and the availability of loans etc.(5) whether there are different interest rates for differententerprises, industries and domestic and international trade departments. Whether exchange rates are determined by the market asfar as exporters are concerned and whether enterprises enjoy autonomy in obtaining foreign exchanges and keeping foreign exchanges, etc.7、 有瑕疵的仲裁协议的法律效力论述1、 买卖双方的救济方法2、 仲裁裁决的撤销案例1、 越南鱼2、 货物贸易欢迎下载精品学习资源欢迎下载