国际商法期末复习重点英文版

国际商法期末复习重点•rj英文版HUA system olpcc room [HUA16H S2A-HUAS8Q8-HUAH1688]IBL is the body of rules and norms that regulates international business trade and international business organizations ・Sources of IBLWhat does it mean by source of lawNational lawInternational treaties and conventionsTrade customs and usagesInternational model lawCommon law systemCommon law is the law as developed and pronounced by the courts in deciding cases; Competent courtThe reasoning of an adjudicationPrecedentCivil law systemCivil law is the codified law which is made by legislature to regulatespecific relationships;1.Roman law2・ Made law3・ Code and statutedefinition of partnershipDefined as a Profit-making economic organization which is Established of a partnership agreement, Make a Joint capital contributions, conduct business jointly,Share incomes and risks and bear unlimited joint and severalliabilities for debts of the partnership enterprise・特点：Profit-making economic organization;Establishment of a partnership agreement;Joint capital contribution;Sharing of incomes and risks;Bearing of unlimited joint and several liabilities for debtsCreation of a partnership:①an association of two of more persons②carrying on business ③ co - ownership ④ for prof it® intent (U W) ©partnership by estoppelLimited lidb订ity partnership 有限责任合伙的责任承担:In a limited liability partnership, some partners have limited liability, some partners have unlimitedliability.General partnership 普通合伙的责任承担:Bearing of unlimited joint and severalliabilities for debts・出资方式：Capital contribution: in cash; tangible goods; land or land use rights; intellectual property; or other proprietary rights; or in the form of labor service ifit is agreed by all of the partners:partners' rights and duties：①A partner has the right of compensation (补偿) from the partnership (The amount of compensation is decided by how the partners agreed in the partnership agreement) ②A partner has the right of sharing profit from thepartnership®Partners owe a duty to devote full time and best efforts to the affairs of the partnership;©Self-interest is prohibited;©Secret profits in dealing with the partnership is prohibited;©Partners owes a duty to disclose all information and facts from a third party to other partners;©Concealment of infornidtion and facts is prohibited;©That partners work hand in glove with (in collusion with) others for selfish purpose is prohibited;©Partners have a duty to account for any expenditures they make of the partnership funds partners have the duty to be joined as plaintiffs or defendants in legal suits合伙企业的管理：co-managementDissolution of the partnership means that the economic organization ceases to be associated as an entity to carry on a business;1.Non-wrongful dissolution2.Wrongful dissolution3.The death or bankruptcy of any partner automaticdlly dissolves the partnership;4.A court order or decree dissolves a partnership;Winding up：liquidation of the assets of the business of the partnership after dissolution happens;Continuation of the partnership by the remaining partners:Completion of work by the partnership before dissolution;Sharing of profits, bearing of debts, returning of assets:Definition of corporation：A corporation is a form of an economic organization in which the shareholders make investment, elect management and take limited liability for the debts of the corporation.特征：1・ Independent legal status;2.Creation must be permitted by government;3.Management is accomplished through the election of the shareholders;4.The shareholders take limited liability;5.The ownership interest of the corporation is freely transferable;6.Double taxation;legal status：A corporation is a legal person and a legal entity independent of its owners (shareholders) and its managers (officers and the board of directors)・ Its life is unaffected by the retirement or death of its shareholders, officers, and directors. "Piercing the corporation ve订” theory Means to prevent the companys independent personality abuse and protect the interests of the creditors and social public interests, the specific legal relationship of specific facts, denied that the company and its shareholders behind the independent personality and limited liability of shareholders, shall be ordered to the shareholder of the company (including natural person shareholders and legal person shareholders) to the company creditors or directly responsible for public interests, to achieve fairness and justice of the requirements and set up a kind of legal action. 滥用权力的表现1・ Separate legal personality is capable of abuse by shareholders to evade legal obligations;2.Domination of the corporation by shareholders;3.Looting of corporation assets;Management of corporations：Management agencies； Board ofdirectors;officers of the corporation; board of supervisors;Management of a corporation is elected by the shareholders;Termination of corporation：(DVoluntary termination:Maturity of pre-agreed period; Completion of pre-agreed project;Agreement of the shareholders to terminate©Involuntary termination：Wrongful trading;Unable to pay its debts; Business of the corporation is not commenced within;Tax evasion;Court resolution;Shareholdersrights :(Dshareholders' meeting©shareholders* election of directors©'fundamental corporate changes ©shareholders' inspection and information rights©distribution to shareholders©Shareholders' lawsuitShareholders^ liabilities:① Shareholders should be liable for short distribution and illegal distribution@If the shareholders abuse the corporate personality to evade legal obligations, they are liable for the debts of the corporationAn agency is defined as a fiduciary relationship that results when one person,the principal,consents that another person,the agent, shall act on behalf of the principa1. Ostensible agency 表见代理：in some situations, an agent' s powers are expanded neither by agreement with the principal nor by custom or emergency・ Under the doctrine of apparent authority of ostensible authority, authority may be created or expanded whenthe principal causes third parties to reasonably believe the agent has authority.Express authority 明示授权一employment contract; resolution of the board of directors: advisory memorandum; power of attorney;Implied authority 默示授权一on the basis of express authority; in the customary fashion; emergencies; apparent authority and estoppel； secret limitations;Ratification 追认：an agent exceeds the limited authority granted; a non-agent purported to act as agent;Unauthorized contract： 1)implied warranty of authority -------- whether the thirdparty knew that the agent had no authority at the conclusion of the contract; 2)non-existent principal;Termination of an agencyAct of the parties ----- a ccomplishment of contract purpose/occurrence of events;lapse of time; mutual agreement; unilateral termination;Operation of law ---- incapacity, bankruptcy, death; illegality; impracticality・Seller^ s obligations：1.Delivery of the Goods -2.The turning over of documents3.The seller s assurance of the quality of the goods4.The seller' s assurance of ownership of the goods5. -------------------------------------------------------------------------------------------------------------- T he sellers assurance of ownership of the goods Exceptions ---------------------------The buyer knew or could not have been unaware of the charge or encumbrance upon the goods;The sellers compliance with technical drawings, designs, formulas or other specifications furnished by the buyer;Buyers obligations :Payment of price;Taking delivery.Buyers remediesCompelling of specific performance ------ the buyer had not resorted to anotherremedy; the nonconformity constituted a fundamental breach; timely notice- giving of the nonconformity; timely request of specific performance・Avoidance ---- t he seller* s breach of contract constitutes a fundamental breach;the seller rejects to perform within the nachfrist notice by the buyerPrice reduction ---- the buyer reduces a proportionate part of the purchase pricein order to offset the shortage or to reflect the reduced value of the nonconforming goods・Refusing early delivery and excess quantitySeller' s remedies1.to compel specific performance;2.to avoid the contract for a fundamental breach or failure to cure a defect;3.to obtain missing specificationsRemedies available to both buyers and sellers1.suspension of performance;2.avoidance in anticipation of a fundamental breach;3.avoidance of an installment contract;4.avoidance;5・ damages;Bill of ladingA bill of lading is a contract between a carrier (seller, buyer or their agent) and an ocean carrier for the carriage of goods・Characteristics of B/Ll.As a certificate of receipt:as prima facie evidence between the shipperand the carrier, if B/L is not transferred; as final evidence between the carrier and the transferee of B/L;2.As an evidence of the carriage contract between the carrier and the shipper;3.As a document of title：the carrier delivers the goods against the originalB/L;Classifications of B/L 提单的分类Loaded B/L;Named B/L;To the order B/L;Blank B/L;Antedated B/L 倒签提单-it is issued earlier than the actual shipping date;Advanced B/L 预借提单-it is issued before the shipping of the goods;Clean B/L 清洁提单issued through indemnity-it is issued through indemnity to cancel the "unclean" facts of the goods:。

IBL is the body of rules and norms that regulates international business trade and i n t e r n a t i o n a l b u s i n e s s o r g a n i z a t i o n s. Sources of IBLWhat does it mean by source of lawNational lawInternational treaties and conventionsTrade customs and usagesInternational model lawCommon law systemCommon law is the law as developed and pronounced by the courts in deciding cases; Competent courtThe reasoning of an adjudicationPrecedentCivil law systemCivil law is the codified law which is made by legislature to regulate specific relationships;1. Roman law2. Made law3.Code and statutedefinition of partnershipDefined as a Profit-making economic organization which is Established of a partnership agreement, Make a Joint capital contributions, conduct business jointly,Share incomes and risks and bear unlimited joint and several liabilities for debts of the partnership enterprise.特点：Profit-making economic organization;Establishment of a partnership agreement;Joint capital contribution;Sharing of incomes and risks;Bearing of unlimited joint and several liabilities for debtsCreation of a partnership:①an association of two of more persons②carrying on a business ③co-ownership④for profit⑤intent(目的)⑥partnership by estoppelLimited liability partnership有限责任合伙的责任承担: In a limited liability partnership, some partners have limited liability,some partners have unlimited liability.General partnership普通合伙的责任承担:Bearing of unlimited joint and several liabilities for debts.出资方式：Capital contribution:in cash; tangible goods; land or land use rights; intellectual property; or other proprietary rights; or in the form of labor service if it is agreed by all of the partners;partners’ rights and duties：①A partner has the right of compensation（补偿）from the partnership（The amount of compensation is decided by how the partners agreed in the partnership agreement）②A partner has the right of sharing profit from the partnership③Partners owe a duty to devote full time and best efforts to the affairs of the partnership;④Self-interest is prohibited;⑤Secret profits in dealing with the partnership is prohibited;⑥Partners owes a duty to disclose all information and facts from a third party to other partners;⑦Concealment of information and facts is prohibited;⑧Thatpartners work hand in glove with (in collusion with) others for selfish purpose is prohibited;⑨Partners have a duty to account for any expenditures they make of the partnership funds;Partners have the duty to be joined as plaintiffs or defendants in legal suits合伙企业的管理：co-managementDissolution of the partnership means that the economic organization ceases to be associated as an entity to carry on a business;1.Non-wrongful dissolution2.Wrongful dissolution3.The death or bankruptcy of any partner automatically dissolves the partnership;4.A court order or decree dissolves a partnership;Winding up:liquidation of the assets of the business of the partnership after dissolution happens;Continuation of the partnership by the remaining partners;Completion of work by the partnership before dissolution;Sharing of profits, bearing of debts, returning of assets;Definition of corporation:A corporation is a form of an economic organization in which the shareholders make investment, elect management and take limited liability for the debts of the corporation. 特征：1.Independent legal status;2.Creation must be permitted by government;3.Management is accomplished through the election of the shareholders;4.The shareholders take limited liability;5.The ownership interest of the corporation is freely transferable;6.Double taxation;legal status:A corporation is a legal person and a legal entity independent of its owners (shareholders) and its managers (officers and the board of directors). Its life is unaffected by the retirement or death of its shareholders, officers, and directors. “Piercing the corporation veil” theory Means to prevent the company's independent personality abuse and protect the interests of the creditors and social public interests, the specific legal relationship of specific facts, denied that the company and its shareholders behind the independent personality and limited liability of shareholders, shall be ordered to the shareholder of the company (including natural person shareholders and legal person shareholders) to the company creditors or directly responsible for public interests, to achieve fairness and justice of the requirements and set up a kind of legal action.滥用权力的表现1.Separate legal personality is capable of abuse by shareholders to evade legal obligations;2.Domination of the corporation by shareholders;3.Looting of corporation assets;Management of corporations：Management agencies；Board of directors;officers of the corporation; board of supervisors;Management of a corporation is elected by the shareholders;Termination of corporation:①Voluntary termination:Maturity of pre-agreed period; Completion of pre-agreed project;Agreement of the shareholders to terminate②Involuntary termination：Wrongful trading;Unable to pay its debts; Business of the corporation is not commenced within;Tax evasion;Court resolution;Shareholders’ rights :①shareholders’ meeting②shareholders’ election of directors③fundamental corporate changes④shareholders’ inspection and information rights⑤distribution to shareholders⑥Shareholders’ lawsuitShareholders’ liabilities:① Shareholders should be liable for short distribution and illegal distribution②If the shareholders abuse the corporate personality to evade legal obligations, they are liable for the debts of the corporationAn agency is defined as a fiduciary relationship that results when one person,the principal,consents that another person,the agent, shall act on behalf of the principal. Ostensible agency表见代理：in some situations,an agent’s powers are expand ed neither by agreement with the principal nor by custom or emergency. Under the doctrine of apparent authority of ostensible authority, authority may be created or expanded when the principal causes third parties to reasonably believe the agent has authority. Express authority明示授权—employment contract; resolution of the board of directors; advisory memorandum; power of attorney;Implied authority默示授权—on the basis of express authority; in the customary fashion; emergencies; apparent authority and estoppel；secret limitations;Ratification追认：an agent exceeds the limited authority granted; a non-agent purported to act as agent;Unauthorized contract：1)implied warranty of authority---whether the third party knew that the agent had no authority at the conclusion of the contract; 2)non-existent principal;Termination of an agencyAct of the parties---accomplishment of contract purpose/occurrence of events; lapse of time; mutual agreement; unilateral termination;Operation of law---incapacity, bankruptcy, death; illegality; impracticality.Seller’s obligations:1.Delivery of the Goods–2.The turning over of documents3.The seller’s assurance of the quality of the goods4.The seller’s assurance of ownership of the goods5.The seller’s assurance of ownership of the goods Exceptions ----The buyer knew or could not have been unaware of the charge or encumbrance upon the goods;The seller’s compliance with technical drawings, designs, formulas or other specifications furnished by the buyer;Buyer’s obligations :Payment of price;Taking delivery.Buyer’s remediesCompelling of specific performance---the buyer had not resorted to another remedy; the nonconformity constituted a fundamental breach; timely notice-giving of the nonconformity; timely request of specific performance.Avoidance---the seller’s breach of contract constitutes a fundamental breach; the seller rejects to perform within the nachfrist notice by the buyerPrice reduction---the buyer reduces a proportionate part of the purchase price in order to offset the shortage or to reflect the reduced value of the nonconforming goods. Refusing early delivery and excess quantitySeller’s remedies1. to compel specific performance;2. to avoid the contract for a fundamental breach or failure to cure a defect;3. to obtain missing specificationsRemedies available to both buyers and sellers1. suspension of performance;2. avoidance in anticipation of a fundamental breach;3. avoidance of an installment contract;4. avoidance;5. damages;Bill of ladingA bill of lading is a contract between a carrier (seller, buyer or their agent) and an ocean carrier for the carriage of goods.Characteristics of B/L1.As a certificate of receipt:as prima facie evidence between the shipper and the carrier,if B/L is not transferred; as final evidence between the carrier and the transferee of B/L;2. As an evidence of the carriage contract between the carrier and the shipper;3.As a document of title:the carrier delivers the goods against the original B/L; Classifications of B/L提单的分类Loaded B/L;Named B/L;To the order B/L;Blank B/L;Antedated B/L倒签提单-it is issued earlier than the actual shipping date;Advanced B/L预借提单-it is issued before the shipping of the goods;Clean B/L 清洁提单issued through indemnity-it is issued through indemnity to cancel the “unclean” facts of the goods;。

1. Consideration in Common Law(Consideration is one of the three elements of contract formation in common law, the other two being offer and acceptance.)●Consideration is some benefit received by a party who gives a promise or performs an act, or somedetriment suffered by a party who receives a promise.●Consideration is that which is actually given or accepted in return for a promise.●Some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, orresponsibility given, suffered or undertaken by the other●In plain English, consideration is the price you pay to purchase another person’s promise.2. General Rules on Consideration1)Consideration required for all simple contracts. (A promise without consideration is a gift; one made forconsideration is a bargain.)2)Consideration must have a value that is recognized by the law but need not be equal to the promise.3)Consideration must be present or future and cannot be past.4)Consideration must be possible to perform. (A promise to do the impossible would not be accepted asconsideration)5)Consideration must be legal. (An illegal consideration makes the whole contract invalid.)6)Consideration must move from the promise.7)Consideration must not be too vague. (Moral consideration is not consideration.)8)Performance of an existing contractual duty is not valuable consideration3. Exceptions to the Consideration Requirement1)Contract under seal does not need consideration2)Promissory Estoppel3 Mistakes●Mistakes under common law mean a misunderstanding about a fact, often occurs between the parties to acontract.●Mistake under civil law means error relating to the nature of contracted object amounts to the cause for ainvalid contract.Types of mistakes1)Common mistake: the parties are in agreement but are both mistaken about a fact that is essential to theexistence of the contract.2)Mutual mistake: occurs when the parties to an apparent contract misunderstand each other regarding anessential fact.3)Unilateral mistake: occurs where one party is mistaken and the other party is aware, or should be aware, ofthe mistake and does nothing to correct it. (eg.古董)Chapter Five: Contract Law for the International Sale of Goods1. Remedies for breach of contractBreach of contract: is committed when a party without lawful excuse fails or refuses to perform what is due from him under the contract, or performs defectively or incapacitates himself from it.The doctrines of compensation1)The doctrine of expectation interest 正常遵循时的收益（成本）2)The doctrine of reliance interest 因为信赖合同所产生的成本3)The doctrine of restitution interest 不当得利的利益也要返还The doctrine of limitations on damages1)Non-breaching party has the duty to mitigate damages 没有违约的一方应尽最大限度减少损失2)Damages must be established with a reasonable degree of certainty 损失必须是确定的3)Damages must be either foreseeable to the breaching party or would naturally flow from the breach.Types of damage:●Compensatory damage: damage intended to compensate for a quantifiable loss.补偿性赔偿●Consequential damage: damage resulting indirectly from the act complained of…特殊赔偿/后续赔偿（eg. 下一单收益）●Liquidated damage: a contractually agreed upon amount to be paid in the event of a breach of the contract.合同限定赔偿●Nominal damage: a small or insignificant amount of money awarded by a court or jury to demonstrate thata …象征性赔偿●Punitive damage: 惩罚性的赔偿（eg. 欺诈、盗版书）双倍赔偿2. Obligations of the Seller and the BuyerSeller1)Delivery of the goods2)The turning over of the documents3)The seller’s assurance of the quality of the goods4)The seller’s assurance of ownership of the goodsBuyer1)Payment of the price2)Taking delivery3. Excuses for Non-performanceExcuses1)Impossibility of performanceA.the death of one of the parties;B.the destruction of the specific subject matter of the contract; 合同标的物被毁C.when the performance of the contract has been rendered illegal or made impossible due to the fault ofthe other party.2)Supervening illegality 后发违法（签订的时候合法，之后不合法）3)Frustration of purpose (eg. 有些产品禁运；国王游行租房子)4)Commercial impracticability: a thing is impossible in legal contemplation when it is not practicable; and athing is impracticable when it can be done only at an excessive and unreasonable cost. 商业目的的不可行Chapter Six: Carriage of Goods by Sea1. Bill of LadingA bill of lading is an instrument issued by an ocean carrier to a shipper with whom the carrier has entered into a contract for the carriage of goods, which states that certain goods have been shipped on a particular ship or have been received for shipment.The difference between receipt and B/LReceipt: carrier 接收了货物，但还没出运；是收据，运输合同的证明；Quantity (eg. 有取证的责任，哪一箱没上船)Condition of goods received (reasonable inspection)外包装完好无损就可以了Leading marketB/L: carrier接收了货物并且已经出运了Characteristics of the B/L●It is a receipt issued by or on behalf of the carrier whereby he acknowledges that he has shipped the goodsor received them for shipment.●It is a document of title (not property物权, possession拥有权，物权无转移)●It is evidence of contract of carriage●It is a contract of carriageB/L is transferable, but not negotiableB/L in the hand of the shipper: prima facie evidence 可反驳证据B/L in the hand of the endorser: conclusive evidence 不可反驳证据提单在不同人手上其法律效力不一样：Carrier/shipper 证明承运合同Consignee 运输合同Endorser: document of title/possessionChapter Seven: Finance of International Trade1. The bill of exchange: a written order by the drawer to the drawee to pay money to the payee.2. Characteristics of bill of exchange●it is transferabl e by delivery, and with the transfer, rights embodied in it are transferred, such that thetransferee can enforce them in his own name.●where the transferee takes it in good faith and for value, he takes it free of any defects of title of thetransferor.●bills of exchange are treated as cach.3. Types of bill of exchange•Clean Bill and Documentary Bill•Sight Bill and Time Bill•Commercial Bill and Bankers' Bill•Commercial Acceptance Bill and Bankers' Acceptance Bill4. Letter of CreditL/C is a standard, commercial letter of credit is a document issued mostly by a financial institution, used primarily in trade finance, which usually provides an irrevocable payment undertaking.5. Basic principles of L/C rules by UCP5001)Independence principle: means that the banks’ obligations under the letter of credit are independent of thebuyer’s and seller’s obligations under the contract for the sale of goods.2)Rule of strict compliance: means the terms of the documents presented to the issuing bank must strictlyconform to the requirements of the letter of credit (no discrepancy)Chapter Fourteen: International Commercial Dispute Settlement•Should the parties settle, litigate, mediate, or arbitrate?•Where should the dispute be settled?•Which law applies to the transaction?•If a resolution (a settlement, a verdict, or a judgment) is reached, how will it be enforced?1. Settlement of disputes through municipal courts(1). Jurisdiction and venueJurisdiction: means the “power to hear”, the legal right by which judges “exercise their authority”or “competence”.Venue: means the appropriate geographical location of the court with jurisdiction.●Conflicts of jurisdiction●Choice of forum clausesForum Non ConvenienceMinimum contracts 最低联系原则●Choice of law clauses●Relevant provisions of Chinese lawChoice of law by the parties Choice of law by the tribunala) place of contractingb) place of performancec) predominant contractsd) law of the forum The ForumMunicipal Courts International Tribunals Alternative Dispute Resolution Commercial Arbitration2. International Tribunals(1). International Court of Justice (ICJ)Contentious jurisdiction 诉讼管辖Advisory jurisdiction 咨询管辖Judgment(2). International Center for the Settlement of Investment Disputes (ICSID)解决投资争议国际中心3. Alternative dispute resolution (ADR) 非司法方法●Negotiation: is the process of reaching an agreement by discussion●Mediation●Mini-trial4. Commercial arbitration。

提单（bill of lading）是承运人在接管货物或把货物装船之后签发给托运人，证明双方已订立运输合同，并保证在目的地按照提单所载明的条件交付货物的一种书面凭证租船合同（charter party）：是船舶所有人与承租人达成的协议，规定承租人以一定的条件向船舶所有人租用一定的船舶或一定的舱位以运输货物，并就双方的权利和义务、责任与豁免等各项以条款形式加以规定，用以明确双方的经济、法律关系。

航次租船合同（Voyage Charter part）：是为完成特定航次运输，由船舶出租人提供船舶或船舶的部分舱位，装运约定的货物，从一港运至另一港，由承租人支付约定运费的合同定期租船合同(time charter part)：指出租人在一定是期限内把配备船员的船舶出租给承租人供其按约定的用途使用的协议信用证(letter of credit)：是银行以本身的信誉像卖方提供付款信用与担保的一种方式托收（collection）：由卖方向买方开出汇票，委托银行向买方收款的结算货款的方式光票托收(clean collection)：是指由卖方开出汇票委托银行向买方收款跟单托收(documentary collection)：是指卖方将汇票附上提单、保险单、发票等转运单据，一并交给银行，委托银行向买方收取货款汇票(bill of exchange)：是指出票人签发的，委托付款人在见票时或者在指定日期无条件支付确定金额给收款人或持票人的单据信托关系：指一方基于对另一方的信赖将自己的特定财产交于另一方管理，另一方则承诺为对方的最佳利益而行为或为了双方的共同利益而行为要约（offer）：是向一个或一个以上特定的人提出的订立合同的建议保险单（Insurance Policy），保险人与被保险人订立保险合同的正式书面证明。

独立抽象性原则(principle of autonomy)：是独立于其基础合同的交易，即使信用证中提及到基础合同的任何内容，银行也与基础合同无关，也不受基础合同的约束严格相符原则（strict compliance)：单证表面严格相符、单单表面严格相符。

国际商法知识点总结英文Key Knowledge Points in International Commercial Law1. Principles of International Commercial ContractsInternational commercial contracts are the backbone of global trade. Understanding the principles of contract law is crucial for companies engaged in international business. The key elements of a valid contract include offer, acceptance, consideration, intention to create legal relations, and certainty of terms. In the international context, parties may encounter issues such as choice of law, jurisdiction, and the enforceability of contracts across borders.2. The United Nations Convention on Contracts for the International Sale of Goods (CISG)The CISG is the most widely adopted international treaty for the sale of goods. It provides a uniform set of rules for contracts for the international sale of goods and governs the rights and obligations of both buyers and sellers. Understanding the provisions of the CISG, such as the obligations of the parties, the determination of the contract price, and the remedies for breach of contract, is essential for businesses engaged in international trade.3. International Trade LawInternational trade law encompasses the rules and regulations that govern the exchange of goods and services across national borders. It covers areas such as import and export regulations, tariffs, customs duties, and trade agreements. Businesses need to be aware of the legal framework governing international trade to ensure compliance and mitigate risks.4. IncotermsIncoterms are internationally recognized terms that define the responsibilities of buyers and sellers in international trade transactions. They provide a set of standard rules for the interpretation of trade terms, such as delivery, transport, insurance, and risk allocation. Understanding the different Incoterms is essential for negotiating and drafting international commercial contracts.5. International Dispute ResolutionDisputes are inevitable in international commercial transactions. Understanding the various methods of international dispute resolution, such as litigation, arbitration, and mediation, is crucial for businesses engaged in cross-border trade. Each method has its advantages and disadvantages, and the choice of dispute resolution mechanism should be carefully considered based on the specific circumstances of the dispute.6. Intellectual Property Rights in International BusinessIntellectual property (IP) rights play a crucial role in international business, as they protect the creations of the mind, such as inventions, trademarks, and copyrights. Understandingthe principles of IP law and the international treaties and conventions that govern IP rights is essential for businesses engaged in cross-border trade, as it helps protect their intangible assets from infringement and unauthorized use.7. Cross-Border Mergers and AcquisitionsInternational mergers and acquisitions involve complex legal issues related to corporate law, antitrust law, and regulatory compliance. Understanding the legal framework governing cross-border M&A transactions, including the due diligence process, merger control regulations, and the negotiation and drafting of acquisition agreements, is essential for companies seeking to expand their global footprint through M&A activities.8. Compliance with International Regulations and StandardsInternational businesses need to comply with a myriad of regulations and standards, including those related to product safety, environmental protection, anti-corruption, and data privacy. Understanding the legal requirements and best practices for compliance in different jurisdictions is essential for maintaining the reputation and sustainability of the business.9. International Commercial ArbitrationArbitration is a widely used method for the resolution of international commercial disputes. Understanding the principles of international arbitration, including the selection of arbitration rules, the appointment of arbitrators, the conduct of arbitral proceedings, and the enforcement of arbitral awards, is essential for businesses engaged in cross-border transactions.10. Legal and Ethical Issues in International BusinessOperating in the global marketplace raises various legal and ethical challenges for businesses, such as bribery and corruption, human rights violations, and supply chain management. Understanding the legal and ethical issues in international business is crucial for companies to navigate the complex landscape of global trade while upholding ethical standards and corporate social responsibility.In conclusion, international commercial law is a vast and complex field that requires a deep understanding of legal principles, regulations, and customs that govern cross-border transactions. Businesses operating in the global marketplace need to be aware of the key knowledge points in international commercial law to ensure compliance, mitigate risks, and seize opportunities in the global economy.。

国际商法英文笔记Lesson 1I.Obligation and contractA.DefinitionAn obligation is a legal link between two persons : according to one becomes the debtor and a creditor.There are two kinds of obligations:- A binding obligation: something you need to comply with- A non-binding obligation: you may finish the contract without any consequences.All contracts (legal relationship) are based on the free will.Obligation are an undertaking to give or to not give, to do or to do not do.Contract is a legal act, which materialised the exchange of two consents.The first thing you have to do is to check by the legal regime, which is applicable: is it the Chinese or the French law. You have to wonder what the date of effectiveness of the contract.A contract can be materialised by any means: oral, emails.Everything is a matter of evidence in a contractual relationship.The consent should be clear without any reserve or without any conditions.If you undertake to do something in a contract you are the debtor and the other party is a creditor.If you have several creditors it can become complicated: if they are three buyers for your house. Who is the real creditor? In this case the contractors can be jointly liable by obligation. For instance if three people buy a house and one of them is doing a renovation: the three contractors are jointly liable by obligation.B.Defining the right partyDefining the proper party is a big issue. For example when you are renting a house, you have to check who is the real landlord.Relative effect of the contract: contract only binds the people who have signed the contract: the other people are called third party.If you are signing a contract with a subsidiary of the holding, which has no money: the subsidiary may not be able to respect the contract. Indeed a contract with a subsidiary Creating a company in Hong Kong takes one week. You can thus create a small company (an investment vehicle) in Hong Kong to protect your interests with new contractors.Normally third parties have no right to claim the effect of the contract, except if you ask thethird party to be a co-contractor.An other person who may be concern by a contract is a decedent.C.Formalism of a contractMost of the time the formalisation of a contract are not compulsory.But more and more companies ask you to sign legal agreement.You must check if there is a formalism to the contract.Indeed the issue is to prove the content of the agreement.But writing a contract can be quite useful when you want to negotiate.For instance you can also write down the steps of the conversation, in order to formalize the consent of the two parties. Understanding the consent of the other party can be really difficult especially in an other country. You may have a system in oder to be sure that the other party understands what you want.Indeed you have to check that the consent of the other party has not been fooled.You have also to check the requirements. Trading gold is regularised by special laws.A contract can be not valid the required formalism.In some case your signature is not always enough, you need sometimes a third party. The tax regime can totally changes with a third party.Contract between two people have several requirements:-The capacity of the contractors-The consent must be free-In some countries there must be full awarenessA franchising contract: you can decide to create a shop of a big brand if the company agrees. You pay and in exchange the big company gives you some knowledge on how their shop work and so one.Disclosure: dollD.Conditions of the validity of a contract.There are several conditions of the validity of a contract.1) The legal capacity is a condition of the validity of a contract.The legal capacity may be a physical capacity, or mental capacity.You are legally empowered for a company if you are the position legal representative of a company. You have the capacity to sign the contract in the name of the company.The management by fact: in some cases even though you are not the legal representative, you may sign the contract and the company will be forced to fulfil the contract. For example, if the contractor could not know that you were the legal representative.When you are signing a contract with a company the companies needs to be established. For human the age of majority is a legal capacity.A contract can be nul and void.2) Define the object of the contractPricing: the price is not always fixed in a contract, you can ask a third party to determine the price. Sometimes it is hard to determine the price of an object, you need an expert.In English law you need a cause for the contract.You need to check how the consents can be expressed in a contract.3) The object has to be legal.4) The language of the contract is a condition of the validity of the contract.E.Contract’s principlesContract may not be cancelled by one party.You can terminate the contract in several cases:-open term contract can be finished at any time by one of the party because the length of the contract is not determinate. Since the abolition of slavery, you canfinish the relationship whenever you want.Contract for life are usually nul and void apart from certain case like VIGThere are several kind of termination of the contract:-Termination of the contract for the future-Termination of the contract for the past.F.The end of a contractTermination of the contract for the future.The retroactivity is the fact to put the two parties in the same position before the signature of the party. In the case of the breach of a contract you can ask the contractor to pay you back.G.Legal regimeLegal regime are really significant as it determinates the law of which country is applicable.H.The content of a contractContracts create rights and obligations for several parties.1) Sinegmalatic or reciprocal contract: the obligation to one party is linked to the obligation of the other party. For example party, one party has the obligation to pay and the other one to deliver a service.2) Unilateral contract: the obligation is only for one party.Contract may be for free or against payment.Payment can be provided by money, exchange, or services.Contract can be binding without condition or undercondition.You have two kinds of obligation.-The condition precedent : if the condition is fulfilled there is a new obligation: the trigger event that enable you to go forward. I agree to pay the rent of thehouse, until the death of the owner. The issuance of share is provided withcertain conditions.-The condition subsequent (condition résolutoire): when the condition is realized the contract is finished.There are two kind of contract-Contract with an open term (CDI)-Contract with a fix term (CDD)-Instance performance contract: some contracts are effective immediately. You buy a bike you are directly the owner of the bike-Successive performance contract. However some contracts needs several steps.You build a house, there are several steps. Successive performance contractenables you to negociate.Difference between civil contract/ administrative contract/ commercial -Administrative are subjective courses. In most countries laws protect consumers.-Commercial contract are subjective to commercial courts where there are no professional judges (you can be judge by your competitors for instance).-Civil contractSpecific contracts with specific rules depending on the countries.I.The different types of contractbour contractIn some countries the protection of the employees are really strict in terms of hours.It is important to know the tax regime.The labour contract has to be drafted in the country where the company is and they are submitted to public regulation.2.The wedding contractThe wedding contract organise the goods of the couple: the couple can decide to share or not their patrimony.There are several regimes:Separation regime3.The agency contractYou represent a party on its name and its behalf: you give obligation to a third party.The agency contract is usually used in distribution.There are specific contracts of termination depending on the country.4.Logistic contractLogistic contract: agreement according to which one person agrees to transport people or goods on your behalf.J.Lease agreementLease agreement: the owner of an asset is renting a good in exchange of a rental fee which is defined by the two parties.The renter has to give back the good to the landlord in the same state as the origin.K.Consulting/ service agreementA person is providing a service to the benefit of the principle. It is not the same as a labour contract: the employee needs to give protection to its employees. A service provider can organise his work as he wants, whereas a worker is under the subordination of its employee.Withholding tax system:Public order regulation has always to be checked.L.How to make a contract?You have to check what are the market practices of this contract: indeed sometimes you need to do preliminary negotiation.There are several steps:1) There are preliminary steps for the negotiation: you want first to determine the main principles.2) Assigning3) Closing: they check if all the elements have been realized or not1.The different steps of a contract1) Identifications of the parties,2) Definition of the termsIn the recitals we explain the elements of the contract: the object, the cause, the offer, the acceptance.Guarantees can take different forms:-third parties guaranty-bank guaranty: best guaranty-mortgage : you borrow money from someone and if you don’t pay you will have to give the mortgage back.-lean:The termination clause: modalities ways to end (préavis).The defaulting party has to pay the fix amount to repair the damages.Force majeure close: the agreement close in which there is a natural disaster all the parties will suspend their obligation.Arbitration: is an alternative mode of resolution of conflicts in some sensitive case.M.SignatureAppendice to give the parties the basis of their consencesN.Corporate companyA company is a legal person: it has the legal capacity to enter in a contract.Affectio societatis: the willingness to persue a common goal.A person is also a legal entity.A limited liability company: if a company goes bankruptcy, nobody can seize your goods. You are only force to pay at first the capital in order to create the company.1.To set up a company-Name of the company-Select the place of registration-Define the out cover needs of the company: The registered capital: the amount and the stock that the company needs to reach the break even, to be profitable, to be-You have to define how you are going to bring the capital: cash contribution, contribution in kind (to transfer the ownership of some equipment, andintangible assets (franchising)), industry contribution.-The schedule of the capital.-To choose the manager.-To prepare a contract between the shareholders.pany lawA.The different types of companies (the example of France)Some companies are intended to carry out a professional activity. The most used social forms in France are as follows:1.Limited Liability companies•SARL/EURL: limited liability companyWFOE: a company close to the EURL with only one member of the companyJoint venture: Chinese + Foreginer•SA: Corporation•SAS/ SASU: Simplified company by shares2.Unlimited liability companies•SNC : “société en collectif” (joint and several liability of the partners).B.How to chose the legal form of the company?1) Each legal form is subject to a different regime. We must take into account, for example :•The minimum amount of capital required for each type of company•The number of shareholders•Liability of the shareholders•Applicable tax rules2) Giving a legal framework consistent with the business constraints of the company. Certain types of companies have a better image among others : for the SA or SAS, for example, the number of partners and a larger registered capital will generate confidence.Nowadays crowd founding has become a fashionable way to invest money, however it raises also liability problems.An offshore status: you don’t need a company on site to open a bank account. It is a situation where your companies don’t do business where the ir bank account is located : this status gives you 0% tax regime. But you have to take care the taxation regime based on treaty. The registered capital is the protection of the creditor.C.How to choose the place of registration of the company1.The choice of location related to the activity of the company that willbe created•Need/ requirement to charge in the country where the activity is carried on •Hire staff on site•Access to finance / credit:•Access to government support for business creation2.Rules constraints different in each country•Time of incorporation: time to create a company and to open a bank account.•Minimum capital•Conditions relating to payment of capital•Cost of administration, through the services of a Company Secretary•Use the services of an outside accounting firm or accounting internally maintenance cost,•Legal fees, deposit accounts, any other formalities.D.How to finance the development of a company?•Personal funds•Bank loan•Debt•Fund raising / venture capital: shareholder loan: apport en compte courant. Financing by debt: provide a loan, pay interestFinancing by equity (capital): taking risks, a part of the capital, become an investorSeed financing: to launch the business (seed= graine).Loan taker ≠ risk takerE.Venture capital1.What is venture capital?•Venture capital is the term used when investors buy shares of a company. A venture capitalist invest money in a company with a high risk but which providesa potential high growth.•The venture capitalist is betting on people/ on a team.•The goal is to achieve high profitability and the investment is generally made fora limited period of time.•The financing can take the form of a participation in the capital or by convertible debts.2.To whom is it possible to raise funds ?There are three kinds of private investors:•Love Money: people close to you, that are ready to give money for you but they don’t expect anything in return.•Business Angels: they are professional investors who enter the capital at the really first stages of the company.•Private equity funds: different rounds of private equity funds through private meeting (that still not a public offer)F.Structuration of a fund raising in China.G.Fund raisingThe main stages of the fundraising :•Preparation of the business plan•Presentation to potential investors (road show)•Negotiation with the investor(s)•Finalization of the agreement/ signing/closing•Post-closing•Exit•First, second, third… round•Due diligence: audit by an investor (if the company is already in operation). He will check the accounting, the social, the corporate organisation, to check the risk.•Negotiation on the valuation of the company and the conditions for the dilution of the founder(s) and the existing shareholder(s)•Negotiation on the voting rights of the investors•Execution of the Term Sheet.1.Right negotiated by the investors•Difference between Ordinary Shares et Preferred Shares.•Liquidation Preference: a right given to a class of preferred shares allowing that share to received proceeds in a liquidation in advance of other classes of shares.•Dividends: most companies funded by a fundraising keep their capital for development and not for distribution to share holders. Investors usuallydiscourage the distribution of dividends.•Anti-dilution Rights: a price protection for investors. This is accomplished by effectively repricing an investor’s shares to a lower price per share in the eventthat the company completes a financing at a lower valuation than a previousfinancing round.They are two kinds of way for employees to be remunerated.-investment by equity can be dangerous because of the dilution-The bonus is calculated on the profit of the company.Right negotiated by the investor:•Representations by the company and sometimes the individual management members: authorization to hire a manager at this salary or not.•Seats on the board of directors: it is where the power of the company is located.•Redemption rights: an investor will ask the company to be paid back the amount of shares he invested and to leave the company.•Conversion rights: to convert one share into several shares•Right of first Refusal: pre-emption right.Right in commercial relationship: to give the right to someone to distribute yourproduct in China, and then the distributer will have the right to be the firstperson you talk to if you want to develop you business in Hong Kong for instance.Right in shares: To substitute yourself to a third party as long as you areproposing the same term than the other party.For instance, if a third party want to buy shares for that price, and you have the right of first refusal, if you want tobuy them for the same price than the third party, you will have the right to do itand not the third party anymore.•Drag along/ Tag along (Co sell right):•Drag along: if you don’t want to have a crazy minority shareholder and you want him to sell his share. By signing a drag along close you force a minorityshareholder (10%) to force him to sell his share who want to buy everything.•Tag along: the right if the main shareholders want to sell their shares, to also sell your minority shares at the same price and condition as the main shareholders.Type of security: type of shares.Pre money: the value of the company before the cash is invested.Post money: the value of the company after the cash is invested.ESOP: Employee Stock Option Plan: negociate the number of shares during the contract.The Cap table shows the share holding structure.GAAP: General Accounting PrinciplePost closing obligation: is a condition will allow one party to terminate the deal.There are several kinds of obligations:•Best effort obligation: an obligation to do your best but not an obligation to reach the goal.•Result obligationBridge Loan: a loan which is used to bridge one point to another (for instance it gives enough money for the company to survive during the negotiation). If the negotiation fail the company will have the debt, if the company succeed, the buyer will receive some companies’ shar es.A vesting: the period you have to wait to receive all your shares.Non-competition agreement: an agreement to avoid that an employee goes to the competitor. Non solicitation confidentiality: you cannot ask your colleagues or clients to leave the company with you.Information rights: the company will have to deliver several information to the investor.No shop clause: the period during which all the parties stop the negotiation with competitors.III.Intellectual propertyA.What elements can be protected?It is an intangible asset that protect:•Trademark: symbol or words legally registered or established by use as representing a company or product and allows to originate the source ofproducts or services.The trademark•Patents: a government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or sellingan invention against the disclosure of the invention•Designs•Copyrights: the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material.B.What are the consequences of the protection?• A registered trademark provides prima evidence of ownership and exclusive rights•Right to defend its trademarks against infringements•The legitimacy to the use the trademark.漂泊的船，寻找一个温馨港口；孤寂的心，渴望一声温暖问候。

第一章重点1What is International Law? P12.Goodwill and Civility友好和礼貌Between States: Comity国家之间:礼让Republic 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.菲律宾共和国与西屋电气电工。

公司43 F3d 65(3圆,1994)美国的审判法庭下令菲律宾政府不要骚扰证人参与此案。

上诉法院推翻了秩序。

认为,法院可以要求合规被外国主权作为一种礼让,但不能订单合规。

友谊需要我们尊重其他国家的主权和法律,这样他们会尊重我们。

3.P5 The Making of International Law4.Custom As Source of International Law 自定义为源的国际法 (P7)Custom –a long-established tradition or usage that becomes customary law if it is:①Behavioral element: Consistent and recurring action--Consistently and regularly observed. (Evidence of this found in official statements of governments, opinions of legal advisors, executive decrees, orders to military forces, and court decisions.)②Psychological element: Recognized by those states observing it as a practice that they must obligatorily follow.（长期以来的习惯）自定义——一个历史悠久的传统或用法,成为习惯法如果它是:①行为元素:一致和重复动作——持续和定期观察。

国际商法双语知识点总结Introduction国际商法是指规范国际贸易和商业活动的法律体系。

国际商法是国际私法的分支，其内容涵盖了国际合同、国际货物买卖、国际运输、国际支付结算、国际投资和国际仲裁等领域。

本文将重点介绍国际商法的相关知识点，并结合双语进行详细解析。

一、国际商法基本原则1. Autonomy of the will(意志自治)Autonomy of the will is the basic principle of international commercial law, which means that the parties to an international business transaction are free to determine the content and form of their transaction. This principle reflects the idea of freedom of contract and is essential for the development of international trade.意志自治是国际商法的基本原则，意思是国际商事交易的各方有权自由确定其交易的内容和形式。

这一原则体现了合同自由的理念，对国际贸易的发展至关重要。

2. Good faith(诚实信用)Good faith is another fundamental principle of international commercial law, which requires the parties to act honestly and fairly in their business dealings. This principle helps to ensure the smooth operation of international trade and promotes trust and cooperation among business partners.诚实信用是国际商法的另一个基本原则，要求各方在商业交易中诚实和公平地行事。

国际商法1.“international business law”as the body of legal rules and norms that regulatesinternational commercial trade and international business organizations2.The fact that international business law regulates international transactions of a commercialnature calls for an explanation.3.The basic sources of international business law include international conventions andtreaties, international customs and usages, and national business laws.三大渊源4.国家：Common-law system: England United States, Canada. Civil-law system: Frenchand German5.E-EXW.F-FCA, FAS, FOB.C-CFR,CIF, CPT, CIP.D-DAF, DES, DEQ, DDU, DDP6.Business organization 形式：sole proprietorship, partnership, joint venture, incorporatedcompany, association, trust and franchise7.Corporation: corporate form is the most important type of business organization in theworld it is generally set up by two or more persons carrying on a business for profits.8.Partnership is not a separate legal entity.合伙不是一个法律实体。

国际商法英文笔记Lesson 1I.Obligation and contractA.DefinitionAn obligation is a legal link between two persons : according to one becomes the debtor and a creditor.There are two kinds of obligations:- A binding obligation: something you need to comply with- A non-binding obligation: you may finish the contract without any consequences.All contracts (legal relationship) are based on the free will.Obligation are an undertaking to give or to not give, to do or to do not do.Contract is a legal act, which materialised the exchange of two consents.The first thing you have to do is to check by the legal regime, which is applicable: is it the Chinese or the French law. You have to wonder what the date of effectiveness of the contract.A contract can be materialised by any means: oral, emails.Everything is a matter of evidence in a contractual relationship.The consent should be clear without any reserve or without any conditions.If you undertake to do something in a contract you are the debtor and the other party is a creditor.If you have several creditors it can become complicated: if they are three buyers for your house. Who is the real creditor? In this case the contractors can be jointly liable by obligation. For instance if three people buy a house and one of them is doing a renovation: the three contractors are jointly liable by obligation.B.Defining the right partyDefining the proper party is a big issue. For example when you are renting a house, you have to check who is the real landlord.Relative effect of the contract: contract only binds the people who have signed the contract: the other people are called third party.If you are signing a contract with a subsidiary of the holding, which has no money: the subsidiary may not be able to respect the contract. Indeed a contract with a subsidiary Creating a company in Hong Kong takes one week. You can thus create a small company (an investment vehicle) in Hong Kong to protect your interests with new contractors.Normally third parties have no right to claim the effect of the contract, except if you ask thethird party to be a co-contractor.An other person who may be concern by a contract is a decedent.C.Formalism of a contractMost of the time the formalisation of a contract are not compulsory.But more and more companies ask you to sign legal agreement.You must check if there is a formalism to the contract.Indeed the issue is to prove the content of the agreement.But writing a contract can be quite useful when you want to negotiate.For instance you can also write down the steps of the conversation, in order to formalize the consent of the two parties. Understanding the consent of the other party can be really difficult especially in an other country. You may have a system in oder to be sure that the other party understands what you want.Indeed you have to check that the consent of the other party has not been fooled.You have also to check the requirements. Trading gold is regularised by special laws.A contract can be not valid the required formalism.In some case your signature is not always enough, you need sometimes a third party. The tax regime can totally changes with a third party.Contract between two people have several requirements:-The capacity of the contractors-The consent must be free-In some countries there must be full awarenessA franchising contract: you can decide to create a shop of a big brand if the company agrees. You pay and in exchange the big company gives you some knowledge on how their shop work and so one.Disclosure: dollD.Conditions of the validity of a contract.There are several conditions of the validity of a contract.1) The legal capacity is a condition of the validity of a contract.The legal capacity may be a physical capacity, or mental capacity.You are legally empowered for a company if you are the position legal representative of a company. You have the capacity to sign the contract in the name of the company.The management by fact: in some cases even though you are not the legal representative, you may sign the contract and the company will be forced to fulfil the contract. For example, if the contractor could not know that you were the legal representative.When you are signing a contract with a company the companies needs to be established. For human the age of majority is a legal capacity.A contract can be nul and void.2) Define the object of the contractPricing: the price is not always fixed in a contract, you can ask a third party to determine the price. Sometimes it is hard to determine the price of an object, you need an expert.In English law you need a cause for the contract.You need to check how the consents can be expressed in a contract.3) The object has to be legal.4) The language of the contract is a condition of the validity of the contract.E.Contract’s principlesContract may not be cancelled by one party.You can terminate the contract in several cases:-open term contract can be finished at any time by one of the party because the length of the contract is not determinate. Since the abolition of slavery, you canfinish the relationship whenever you want.Contract for life are usually nul and void apart from certain case like VIGThere are several kind of termination of the contract:-Termination of the contract for the future-Termination of the contract for the past.F.The end of a contractTermination of the contract for the future.The retroactivity is the fact to put the two parties in the same position before the signature of the party. In the case of the breach of a contract you can ask the contractor to pay you back.G.Legal regimeLegal regime are really significant as it determinates the law of which country is applicable.H.The content of a contractContracts create rights and obligations for several parties.1) Sinegmalatic or reciprocal contract: the obligation to one party is linked to the obligation of the other party. For example party, one party has the obligation to pay and the other one to deliver a service.2) Unilateral contract: the obligation is only for one party.Contract may be for free or against payment.Payment can be provided by money, exchange, or services.Contract can be binding without condition or undercondition.You have two kinds of obligation.-The condition precedent : if the condition is fulfilled there is a new obligation: the trigger event that enable you to go forward. I agree to pay the rent of thehouse, until the death of the owner. The issuance of share is provided withcertain conditions.-The condition subsequent (condition résolutoire): when the condition is realized the contract is finished.There are two kind of contract-Contract with an open term (CDI)-Contract with a fix term (CDD)-Instance performance contract: some contracts are effective immediately. You buy a bike you are directly the owner of the bike-Successive performance contract. However some contracts needs several steps.You build a house, there are several steps. Successive performance contractenables you to negociate.Difference between civil contract/ administrative contract/ commercial -Administrative are subjective courses. In most countries laws protect consumers.-Commercial contract are subjective to commercial courts where there are no professional judges (you can be judge by your competitors for instance).-Civil contractSpecific contracts with specific rules depending on the countries.I.The different types of contractbour contractIn some countries the protection of the employees are really strict in terms of hours.It is important to know the tax regime.The labour contract has to be drafted in the country where the company is and they are submitted to public regulation.2.The wedding contractThe wedding contract organise the goods of the couple: the couple can decide to share or not their patrimony.There are several regimes:Separation regime3.The agency contractYou represent a party on its name and its behalf: you give obligation to a third party.The agency contract is usually used in distribution.There are specific contracts of termination depending on the country.4.Logistic contractLogistic contract: agreement according to which one person agrees to transport people or goods on your behalf.J.Lease agreementLease agreement: the owner of an asset is renting a good in exchange of a rental fee which is defined by the two parties.The renter has to give back the good to the landlord in the same state as the origin.K.Consulting/ service agreementA person is providing a service to the benefit of the principle. It is not the same as a labour contract: the employee needs to give protection to its employees. A service provider can organise his work as he wants, whereas a worker is under the subordination of its employee.Withholding tax system:Public order regulation has always to be checked.L.How to make a contract?You have to check what are the market practices of this contract: indeed sometimes you need to do preliminary negotiation.There are several steps:1) There are preliminary steps for the negotiation: you want first to determine the main principles.2) Assigning3) Closing: they check if all the elements have been realized or not1.The different steps of a contract1) Identifications of the parties,2) Definition of the termsIn the recitals we explain the elements of the contract: the object, the cause, the offer, the acceptance.Guarantees can take different forms:-third parties guaranty-bank guaranty: best guaranty-mortgage : you borrow money from someone and if you don’t pay you will have to give the mortgage back.-lean:The termination clause: modalities ways to end (préavis).The defaulting party has to pay the fix amount to repair the damages.Force majeure close: the agreement close in which there is a natural disaster all the parties will suspend their obligation.Arbitration: is an alternative mode of resolution of conflicts in some sensitive case.M.SignatureAppendice to give the parties the basis of their consencesN.Corporate companyA company is a legal person: it has the legal capacity to enter in a contract.Affectio societatis: the willingness to persue a common goal.A person is also a legal entity.A limited liability company: if a company goes bankruptcy, nobody can seize your goods. You are only force to pay at first the capital in order to create the company.1.To set up a company-Name of the company-Select the place of registration-Define the out cover needs of the company: The registered capital: the amount and the stock that the company needs to reach the break even, to be profitable, to be-You have to define how you are going to bring the capital: cash contribution, contribution in kind (to transfer the ownership of some equipment, andintangible assets (franchising)), industry contribution.-The schedule of the capital.-To choose the manager.-To prepare a contract between the shareholders.pany lawA.The different types of companies (the example of France)Some companies are intended to carry out a professional activity. The most used social forms in France are as follows:1.Limited Liability companies•SARL/EURL: limited liability companyWFOE: a company close to the EURL with only one member of the companyJoint venture: Chinese + Foreginer•SA: Corporation•SAS/ SASU: Simplified company by shares2.Unlimited liability companies•SNC : “société en collectif” (joint and several liability of the partners).B.How to chose the legal form of the company?1) Each legal form is subject to a different regime. We must take into account, for example :•The minimum amount of capital required for each type of company•The number of shareholders•Liability of the shareholders•Applicable tax rules2) Giving a legal framework consistent with the business constraints of the company. Certain types of companies have a better image among others : for the SA or SAS, for example, the number of partners and a larger registered capital will generate confidence.Nowadays crowd founding has become a fashionable way to invest money, however it raises also liability problems.An offshore status: you don’t need a company on site to open a bank account. It is a situation where your companies don’t do business where the ir bank account is located : this status gives you 0% tax regime. But you have to take care the taxation regime based on treaty. The registered capital is the protection of the creditor.C.How to choose the place of registration of the company1.The choice of location related to the activity of the company that willbe created•Need/ requirement to charge in the country where the activity is carried on •Hire staff on site•Access to finance / credit:•Access to government support for business creation2.Rules constraints different in each country•Time of incorporation: time to create a company and to open a bank account.•Minimum capital•Conditions relating to payment of capital•Cost of administration, through the services of a Company Secretary•Use the services of an outside accounting firm or accounting internally maintenance cost,•Legal fees, deposit accounts, any other formalities.D.How to finance the development of a company?•Personal funds•Bank loan•Debt•Fund raising / venture capital: shareholder loan: apport en compte courant. Financing by debt: provide a loan, pay interestFinancing by equity (capital): taking risks, a part of the capital, become an investorSeed financing: to launch the business (seed= graine).Loan taker ≠ risk takerE.Venture capital1.What is venture capital?•Venture capital is the term used when investors buy shares of a company. A venture capitalist invest money in a company with a high risk but which providesa potential high growth.•The venture capitalist is betting on people/ on a team.•The goal is to achieve high profitability and the investment is generally made fora limited period of time.•The financing can take the form of a participation in the capital or by convertible debts.2.To whom is it possible to raise funds ?There are three kinds of private investors:•Love Money: people close to you, that are ready to give money for you but they don’t expect anything in return.•Business Angels: they are professional investors who enter the capital at the really first stages of the company.•Private equity funds: different rounds of private equity funds through private meeting (that still not a public offer)F.Structuration of a fund raising in China.G.Fund raisingThe main stages of the fundraising :•Preparation of the business plan•Presentation to potential investors (road show)•Negotiation with the investor(s)•Finalization of the agreement/ signing/closing•Post-closing•Exit•First, second, third… round•Due diligence: audit by an investor (if the company is already in operation). He will check the accounting, the social, the corporate organisation, to check the risk.•Negotiation on the valuation of the company and the conditions for the dilution of the founder(s) and the existing shareholder(s)•Negotiation on the voting rights of the investors•Execution of the Term Sheet.1.Right negotiated by the investors•Difference between Ordinary Shares et Preferred Shares.•Liquidation Preference: a right given to a class of preferred shares allowing that share to received proceeds in a liquidation in advance of other classes of shares.•Dividends: most companies funded by a fundraising keep their capital for development and not for distribution to share holders. Investors usuallydiscourage the distribution of dividends.•Anti-dilution Rights: a price protection for investors. This is accomplished by effectively repricing an investor’s shares to a lower price per share in the eventthat the company completes a financing at a lower valuation than a previousfinancing round.They are two kinds of way for employees to be remunerated.-investment by equity can be dangerous because of the dilution-The bonus is calculated on the profit of the company.Right negotiated by the investor:•Representations by the company and sometimes the individual management members: authorization to hire a manager at this salary or not.•Seats on the board of directors: it is where the power of the company is located.•Redemption rights: an investor will ask the company to be paid back the amount of shares he invested and to leave the company.•Conversion rights: to convert one share into several shares•Right of first Refusal: pre-emption right.Right in commercial relationship: to give the right to someone to distribute yourproduct in China, and then the distributer will have the right to be the firstperson you talk to if you want to develop you business in Hong Kong for instance.Right in shares: To substitute yourself to a third party as long as you areproposing the same term than the other party.For instance, if a third party want to buy shares for that price, and you have the right of first refusal, if you want tobuy them for the same price than the third party, you will have the right to do itand not the third party anymore.•Drag along/ Tag along (Co sell right):•Drag along: if you don’t want to have a crazy minority shareholder and you want him to sell his share. By signing a drag along close you force a minorityshareholder (10%) to force him to sell his share who want to buy everything.•Tag along: the right if the main shareholders want to sell their shares, to also sell your minority shares at the same price and condition as the main shareholders.Type of security: type of shares.Pre money: the value of the company before the cash is invested.Post money: the value of the company after the cash is invested.ESOP: Employee Stock Option Plan: negociate the number of shares during the contract.The Cap table shows the share holding structure.GAAP: General Accounting PrinciplePost closing obligation: is a condition will allow one party to terminate the deal.There are several kinds of obligations:•Best effort obligation: an obligation to do your best but not an obligation to reach the goal.•Result obligationBridge Loan: a loan which is used to bridge one point to another (for instance it gives enough money for the company to survive during the negotiation). If the negotiation fail the company will have the debt, if the company succeed, the buyer will receive some companies’ shar es.A vesting: the period you have to wait to receive all your shares.Non-competition agreement: an agreement to avoid that an employee goes to the competitor. Non solicitation confidentiality: you cannot ask your colleagues or clients to leave the company with you.Information rights: the company will have to deliver several information to the investor.No shop clause: the period during which all the parties stop the negotiation with competitors.III.Intellectual propertyA.What elements can be protected?It is an intangible asset that protect:•Trademark: symbol or words legally registered or established by use as representing a company or product and allows to originate the source ofproducts or services.The trademark•Patents: a government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or sellingan invention against the disclosure of the invention•Designs•Copyrights: the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material.B.What are the consequences of the protection?• A registered trademark provides prima evidence of ownership and exclusive rights•Right to defend its trademarks against infringements•The legitimacy to the use the trademark.漂泊的船，寻找一个温馨港口；孤寂的心，渴望一声温暖问候。