国际商法(英文)试卷

浙江工业大学2014 / 2015学年

第二学期试卷 B 卷

课程International Commercial Law 姓名，班级，学号

I.Please explain the following terms(5 point for each):

(1) private international law

(2)silent partnership

(3)copyright

(4)preferred stock

(5)offer

(6) a bill of lading

II.Please answer the following questions briefly(8 point for each):

(1)The most important forms of national regulation include?

(2)Please name the four basic functions the WTO serves?

(3)Please name the three concerns ILO conventions and recommendations have dealt

with?

(4) What are carrier’s duties under a bill of lading?

(5) Why goods bought for personal, family or household use are excluded?

(6)Describe and give comments on irrevocable and revocable letters of credit?

III.Please analyze the following cases(10 points for the first one, 12 points for the second one):

(1)On January 1, Seller sent a letter to Buyer offering to sell to Buyer 5,000 widgets for $25

apiece. The letter also stated: “This offer is binding and irrevocable until February 1.” On January 5, prior to Buyer’s receipt of the letter, Seller called Buyer on the telephone and left the following message on the answering machine at Buyer’s place of business: “Ignore my letter of January 1. I have decided to withdraw the offer contained in it.” On January 7, after listening to her answering machine and reading the letter that arrived that same day, Buyer sent Seller the following telegram: “I accept your offer of Jan. 1.” Is there a contract under the CISG?

(2)State A is a member of ILO, but it has not ratified either the ILO Convention Concerning

Freedom of Association or the ILO Convention Concerning the Application of the Principles of the Rights to Organize and Bargain Collectively. Some workers within State A have lodged complaints with the ILO about their rights to associate and bargain collectively. Can the ILO’s Fact-Finding and Conciliation Commission consider their complaints?

B卷参考答案

I.Please explain the following terms(5 point for each):

(1)private international law

Private international law is applied to the laws governing conduct between people (and corporations) from different states.

(2)silent partnership

A secret relationship between two or more persons, one of whom carries on a business in his

name alone without revealing the participation of the other who has limited personal liability..

(3)copyright

A copyright is title to certain pecuniary rights and, in most countries, certain moral rights for

a specified period of time.

(4)preferred stock

Preferred stock entitles owners to a guaranteed dividend, a priority at the time of liquidation, or some other preference over ordinary shareholders.

(5)offer

An offer is a proposal addressed to specific persons indicating an intention by the offeror to be bound to the sale or purchase of particular goods for a price..

(6)a bill of lading

A bill of lading I san instrument issued by an ocean carrier to a shipper with whom the carrier

has entered into a contract for the carriage of goods.

II.Please answer the following questions briefly(8 point for each):

(1)The most important forms of national regulation include (a) the regulation of competition; (b) the regulation of injuries caused by defective products;(c) the prohibition of sharp sales practices;

(d) the regulation of labor and employment; (e) the establishment of accounting standards; (f) taxation.

(2) The WTO serves four basic functions: (a) to implement, administer, and carry out the WTO Agreement and its annexes; (b) to act as a forum for ongoing multilateral trade negotiations; (c) to serve as a tribunal for resolving disputes; (d) to review the trade policies and practices of member states.

(3)Please name the three concerns ILO conventions and recommendations have dealt with?

ILO conventions and recommendations have dealt with three concerns. First, they have focused on the basic issues of labor protection, and the protection of women and children. Second, they have concentrated on setting up the basic machinery and institutions the tare needed to make labor protection effective. Third, they have worked to promote and protect the human rights and fundamental freedoms of workers.

(4)A carrier transporting goods under a bill of lading is required to exercise “due diligence” in : (a) making the ship seaworthy; (b) properly manning, equipping, and supplying the ship; (c) making the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage, and preservation; (d) properly and carefully loading, handling, stowing, carrying, keeping, caring for and discharging the goods carried.

(5) Goods bought for personal, family and hoursehold use excluded for two reasons: (a) a double standard could arise if different rules governed sales by local shopkeepers to foreigners. (b) many local laws protect consumers, and that protection would be lost if CISG is applied.

(6) Irrevocable letters of credit cannot be altered without the beneficiary’s express consent. Revocable letters of credit are revocable by the issuing bank. The former is preferred by beneficiaries because it provides the most security. The later is disliked by beneficiaries because it provides the least security.

III.Please analyze the following cases(10 points for the first one, 12 points for the second one):

(1)On January 1, Seller sent a letter to Buyer offering to sell to Buyer 5,000 widgets for $25

apiece. The letter also stated: “This offer is binding and irrevocable until February 1.” On January 5, prior to Buyer’s receipt of the letter, Seller called Buyer on the telephone and left the following message on the answering machine at Buyer’s place of business: “Ignore my letter of January 1. I have decided to withdraw the offer contained in it.” On January 7, after listening to her answering machine and reading the letter that arrived that same day, Buyer sent Seller the following telegram: “I accept your offer of Jan. 1.” Is there a contract under the CISG?

分析：根据联合国国际货物销售合同公约的规定，本案中的合同没有成立。对于要约的生效问题，公约的规定采用了“到达主义”，本案中，在第一封邮件未到达受要约人时，要约人就通过打电话的方式撤回了要约，也就是说要约并没有生效就已经被撤回了。在没有要约的情况下，受要约人的答复只能说是一个新的要约，所以合同没有达成。

(2) State A is a member of ILO, but it has not ratified either the ILO Convention Concerning

Freedom of Association or the ILO Convention Concerning the Application of the Principles of the Rights to Organize and Bargain Collectively. Some workers within State A have lodged complaints with the ILO about their rights to associate and bargain collectively. Can the ILO’s Fact-Finding and Conciliation Commission consider their complaints?

分析：对于一般的ILO公约，只有在ILO成员国签署了公约的情况下，ILO的有关机构才能对于缔约国未能执行公约的规定进行调查和处理。但是，由于ILO认为在所有的公约中，有关工人结社和集体谈判自由的内容非常重要，所以特别规定，其成员国无论是否签署这两个公约，ILO机构都有权对其不满足工人结社和集体谈判自由权利的行为进行调查。