《国际商法教程》练习题参考答案.pdf

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1、Chapter 1Answers to Self-Quizzes1.F.It regulates both horizontal and vertical legal relationship.2.T.3.F.A business transaction is international if its subject,object,or contents is across nationalborders.4.F.Trade in service and IP are also important part of international business.5.F.When states a

2、nd their subdivisions conduct commercial activities,they are parties inhorizontal legal relationship.6.F.UNIDROIT is an ind印 endenl IGO.7.T.8.F.ICSID specializes in investor-state investment disputes.9.T.10.F.WTO creates a multilateral trading system.11.F.The three sisters in formulating private law

3、 refers to HCCH,UNIDROIT,and theUNCITRAL.12.F.The HCCH specializes in harmonizing conflict of laws.13.T.14.T.15.F.Judicial interpretations issued by the Supreme Peoples Court is also a part of national lawin China.16.F.Free trade area is the first,also lowest stage of economic integration.17.T.18.T.

4、19.F.NAFTA is a free trade area.20.F.Customs related to trade must meet the behavioral element and psychological element inorder to become international trade customs.21.F.The Incoterms is only used in trade in goods.22.T.23.T.24.F.Civil law system is based on codes.25.T.26.T.Guiding Questions:1.Wha

5、t are the differences between the Civil Law System and Common Law System?Answers:Legal SystemcCivil Law System Common Law SystemStatus of law Independent of government Superior to governmentLegal rules Based on general principlesBased on specificcircumstancesScope Private law Private law,public lawB

6、asic source Codes Case lawMost influenced by Legislators JudgesReasoning Deductive InductiveProcedural Inquisitorial AdversarialFact finder Judge JuryUse of case law as precedents Respected RequiredConstitutional review bySpecial agency or category ofcourtsRegular courtsReview of governmentagenciesS

7、pecial agency or category ofcourtsRegular courts2.In Grant v Australian Knitting Mills Ltd 1936,is the court correct in following theprecedent of Donoghue v Stevenson 1932?Answers:(1)What is the doctrine of precedent?The doctrine of precedent requires that the previous precedent be followed by the l

8、ater case ifthe basic facts of later case are substantially similar to the precedent.But the precedent bindsonly on the court that decided the case and on the courts of inferior rank in the same judiciaryhierarchy.(2)To what extent,are the facts of Grant v.Australian Knitting Mills similar to Donogh

9、ue v.Stevenson?Basic facts PrecedentDonoghue vStevensonLater caseGrant v Australian Knitting MillsPlaintiff Ms.Donoghue Mr.GrantPlaintiffs Legal identity Consumer ConsumerDefendants legal identity Manufacturer ManufacturerSufferings Sick shock Skin diseaseCause of action Tort TortDecision Neighbor p

10、rinciple Follow the precedentChapter 2Answers to Self-Quizzes1.False.China is a unitary country and has neither federal nor province court system.2.False.The US Supreme Court has discretion to hear judgments appealed from the highestcourt in a state.3.False.China has the system of“four levels and tw

11、o instances of trials/4.False.A foreigner can be subject to in personal jurisdiction of a country if this individualphysically present within the country or consent to the jurisdiction of the country.5.True.6.False.US law has no written requirement.7.True.8.True.9.True.10.False.Plaintiffs cannot res

12、ist forum non conveniens on the basis of unfavorable substantivelaw in alternative forums.11.False.Courts should consider comity when granting anti-suit injunction.Generally when theforeign proceedings are vexatious or oppressive or when they will otherwise causeinequitable hardship,a court may issu

13、e an anti-suit injunction.12.True.13.True.14.False.Anti-dumping and anti-monopoly regulations are mandatory laws in China.15.False.Courts in the two countries may not interpret the principle in the same way.16.True.17.False.Recognition is often confined to non-monetary judgments.18.False.In China,re

14、cognition and enforcement of foreign judgments can be conductedaccording to the principle of reciprocity and according to treaties concluded by China.19.False.Currently,Chinese courts prefer the view of reciprocity in practice/20.False.The US does not require reciprocity to recognize and enforce for

15、eign judgments.However,in the future,the US may impose the reciprocity requirement in order toencourage foreign courts to recognize and enforce American judgments.21.False.The Hague Choice of Court Convention requires an exclusive choice of courtagreement.22.True.23.False.China makes a reservation o

16、n service by post when acceding to the Hague ServiceConvention.24.True.25.False.Generally arbitration proceedings should not be open to the public.26.True.27.False.Ad hoc arbitration is an arbitration conducted without the assistance of an arbitralinstitution.28.True.29.False.The seat of arbitration

17、 may not be the same as the place of hearing.30.False.The primary source of the tribunafs powers is the parties1 arbitration agreement.31.True.32.True.33.False.Competence-Competence means that an arbitral tribunal can determine its ownjurisdiction.34.False.Arbitration procedures must comply with the

18、 fundamental principles of natural justiceand due process.35.True.36.True.37.False.The 1958 New York Convention regulates the recognition and enforcement ofnon-ICSID arbitral awards.38.True.39.True.40.False.If an arbitral award deals with disputes outside the scope of arbitration agreement,thisaward

19、 may be partially or wholly set aside.41.True.42.False.ICSID only deals with investor-state disputes.43.True.44.True.45.False.WTO Appellate Bodys decision is final.46.True.47.True.Guiding Questions:Case 1Question A:AnswerIf the Country L is ChinaPart Four Special Provisions of the Civil Procedures I

20、nvolving Foreign Elements of Chinese CivilProcedural Law provides that:if a lawsuit brought against a defendant who has no domicile inChina concerning a contract dispute or other disputes over property rights and interests,if:the contract is signed or performed within China,the object of the action

21、is within China,the defendant has detainable property within China,or the defendant has its representative agency,branch,or business agent withinChina,the defendant may be under the jurisdiction of the peoples court located in the place where thecontract is signed or performed,the subject of the act

22、ion is located,the defendants detainableproperty is located,the infringing act takes place,or the representative agency,branch orbusiness agent is located.You may apply the above Chinese law to the facts of the case to reach an answer.2.If the Country L is the USThe US court will apply the“minimum c

23、ontacts test to determine whether the court can exercisepersonal jurisdiction.The court should consider:Whether the company has performed acts that relate to the forum country;Whether the suit is based on those acts,andWhether the company has indicated by its conduct that it intended to rely on the

24、benefits(such as doing business)of the forum country.Whether the exercise of jurisdiction be unfair and unreasonable,taking into account theinterests of the defendant and plaintiff,the forum country and other states that may havean interest in the matter.You should apply the above US law to the fact

25、s of the case to reach an answer.3.Notably,courts in China and the US may use forum non conveniens to dismiss the suit.Discuss.Question B:AnswerChoice of law rules follow a two-step procedure:First,if the parties to a dispute have concluded a choice of law clause;Second,if the parties have not agree

26、d as to which law should apply(either expressly orimpliedly),then the court should determine for itself which law it should apply by(1)following statutory choice of law provisions,(2)determining which country has the mostsignificant relationship with the dispute,or(3)determining which country has th

27、e greatestinterest in the outcome of the case.In this case,parties have not make a choice of law clause,soChinese court will follow the Law of the Application of Law for Foreign-related CivilRelations of the PRC.The US court will follow the most significant relationship and apply the governmentalint

28、erest test.You should combine the facts of the case with the above guidance to reach an answer.Case 2:AnswerAn arbitration agreement can either be signed by both parties or incorporated from other legaldocuments.It is valid as long as it is in writing.In this case,Contract 2 makes reference to awrit

29、ing arbitration clause in Contract 1 instead of including one in it.It is undisputed that thearbitration clause in Contract 1 is valid.It remains valid when incorporated into Contract 2.Therefore,there is a valid arbitration clause in Contract 2.Case 3:Answer:China should consider adopt/reciprocity

30、in law“in recognizing and enforcing foreignjudgments,because Reciprocity in practice is substantially a revenge on a judgment-rendering country thatdenies recognition and enforcement of foreign judgments.However;the requested countryrevenges a private party not the judgment-rendering country itself.

31、Therefore,it revenges awrong target,especially when the winning party of a foreign judgment is a citizen of therequested country.Reciprocity in practice seldom successfully pushes a judgment-rendering country torecognize and enforce a judgment issued by a requested country.The reason is that denying

32、recognition and enforcement of foreign judgments does not seriously harm ajudgment-rendering country.Therefore,the revenge is hard to be successful.It is difficult to prove courts in a judgment-rendering country have ever recognized andenforced judgments issued by a requested country.Chapter 3:Answe

33、rs to Self-Quizzes1.False.Owners personal liability is a very important factor in selecting to use which form ofbusiness organization.2.False.Another purpose of registered capital requirement is to offer some protection tocreditors in case the business fails.3.True.4.False.5.False.Starting in March

34、2014,the minimum registered capital of RMB 30,000 is no longer alegal requirement in China.6.False.In the U.S.,the requirement on Registered Capital varies from state to state.7.True.8.True.9.False.Only single-individual owned enterprise can have branch offices;IICH cannot.10.False.IICH can operate

35、either under a trade name or in the owners own name.11.False.To establish a Partnership Enterprise(either a general partnership or a limitedpartnership),one has to file documents with local government agencies in China.12.False.Certain persons cannot be general partners in a partnership enterprise,s

36、uch asstate-owned entities,public corporations,non-for-profit enterprises and people holdingspecial positions,such as police,prosecutors,or judges.13.False.The partnership agreement for limited partners is prohibited by law to allocate alllosses to certain partners,but is OK to allocate all profits

37、to certain partners.14.False.A limited partner in a limited partnership in China cant contribute labor ascontribution.15.False.Partners in a general partnership cannot compete with the general partnershipsbusiness.16.False.Partners do not need to file with the Secretary of State to form a general pa

38、rtnership.As long as partners associate themselves as co-owners and share the profits and losstogethec a general partnership can be deemed to be formed.17.True.18.True.19.False.A formal written partnership agreement is not necessarily required to form a generalpartnership,as long as partners associa

39、te themselves as co-owners and share the profits andloss together,a general partnership can be formed.20.True.21.True.22.True.23.True.24.True.25.True.26.True.27.False.Shareholders of a Limited Liability Corporation in China cannot exceed 50,andinitiators of a Corporation by Share cannot exceed 200.2

40、8.False.For Limited Liability Corporation,as it is a private corporation,transfer of shares needsconsent of other shareholders.For a Corporation by Share,as it is a public corporation,shares can be freely transferred and needs no consent of other shareholders.29.True.30.True.31.True.32.True.33.False

41、.The Business Scope will be shown both in the Business License and the Articles ofAssociations.34.False.The U.S.,not China,requires corporations to have a Registered Agent.35.False.The U.S.has S corporation and C corporation due to its tax code,but China does nothave S corporation and C corporation.

42、36.False.Corporate governance matters are normally governed by the U.S.state laws.37.False.The doctrine of“Piercing the Corporate Veil imposes liability on shareholders thatabuse the separate status of a corporation.So if such shareholder is a parent company ofsuch corporation,liability can also be

43、imposed on the parent company.38.True.39.False.S corporation limits its shareholders to not to exceed 75.40.False.The shares of a public company can be bought or sold at a public securities market,while the shares of a private company cannot.41.False.China has the legal requirement of Business Scope

44、,but the U.S.does not.42.True.For China,it is Administration of Industry and Commerce,and for the U.S.,it is theSecretary of State.43.False.Chinese corporations shall have Supervisor/s Committee or Executive Supervisor,butnot U.S.corporations.44.False.The Business Judgment Rule is intended to protec

45、t management,such as directors,officers,or managers,from liabilities arising from the management decisions they made,aslong as those management decisions are in good faith and with reasonable skills andprudence.45.No.China does not have LLC as a form of business entity.Chinas Limited Liability Corpo

46、rationis not the same concept as Limited Liability Company in the U.S.46.True.47.True.48.False.In certain states in the U.S.,single-member LLC is also permitted.49.True.50.True.51.False.LLC in the U.S.is an unincorporated form,while Limited Liability Corporation is a“corporate form.52.False.Branch o

47、ffice does not have a separate legal status,and its debts and obligations areultimately born by its parent company.53.True.54.False.Only a foreign(non-Chinese)company can establish a Representative Office in China.AChinese company can establish a regular branch office.55.False.A Representative Offic

48、e can only engage in not-for-profit activities for its foreign parentcompany.56.False.57.True.58.False.While the shares of a subsidiary are controlled by its parent company,the subsidiary isa legal entity separate from its parent company.59.True.60.True.When a parent company(as the shareholder)abuse

49、s the limited liability and uses thesubsidiary as a shell,such parent company could be liable for the debts or obligations of thesubsidiary under the theory of Piercing the Corporate Veil.”Guiding Questions:Case 1:Question A:Answers:1)If Xiaoming likes to start a one-man shop,he can choose Single-Sh

50、areholder LimitedLiability Corporation,which allows Xiaoming to limit the liability to the amount ofcontribution he plans to make from his personal savings and need not to worry about riskinghis personal apartment or car if the business fails.In addition,it will allow him to operatebranch offices in