国际商法(双语版)(txt+pdf+epub+mobi电子书下载)

作者:韩永红 李婷婷

出版社:人民邮电出版社

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国际商法(双语版)

国际商法(双语版)试读:

前言

“一带一路”倡议的提出和自由贸易试验区的设立将有利于我国扩大和深化对外开放。随着我国与世界更频繁、更深入的经济互动,对于国际化、复合型人才的市场需求也会更为突出。在国际经贸实务中,我国需要培养一批既具有扎实专业知识又具有娴熟跨文化沟通能力的人才。在此种背景下,双语教学无疑是顺应时代的产物。

应人民邮电出版社编辑的邀约,我们编写了《国际商法(双语版)》一书。为方便使用者快速了解本书,现将几个相关问题简要说明如下。

一、在体例设计上,本书在考虑国际商法内容体系完整性的前提下,更注重适应中国高校双语教学的需要。关于国际商法的内容体系,法学界存在不同见解。大陆法系国家大多以传统意义上的商事立法为核心。英美法系国家则秉承实用主义的理念,将国际商务活动所涉及的法律,统统纳入国际商法。因此,国际商法的内容体例并未完全定型,可谓见仁见智。本书编著者将国际商法界定为:调整跨越一国国境的平等主体之间商事交易关系的法律规范。以此为依据,结合国际商务活动的整个流程,本书正文设四部分,共计十章。第一部分:国际商务的法律环境;第二部分:国际货物买卖法(国际货物买卖合同、国际货物运输保险、国际货物买卖支付);第三部分:国际知识产权转让(知识产权法律基础、知识产权国际条约和国际组织、知识产权许可);第四部分:国际商事争议解决(国际商事争议解决方法、国际商事仲裁)。每章包括“导言”“热身问题”“正文”“小结”和“课后练习”。导言是对各章内容和结构的简介;课前对“热身问题”的讨论则可以帮助学习者获取必要的背景知识,激发学习者的研读兴趣和探索热情;小结是对各章所讨论的主要理论、规则和观点的简要归纳,以帮助学习者回顾本章的主要内容;课后练习包括“正误辨析”“问答题”“案例题”“拓展阅读”等多种形式。

二、在内容安排上,本书兼顾理论性与实用性、全球性与地方性。本书紧扣国际商法的法律渊源,既注重对重要国际商事惯例和国际条约的阐释,也看重主要贸易国家国内法的影响,尤其关注中国相应的立法和司法实践。从而使学习者认识到国际商法不仅是国际法亦是国内法,在学习国际商法的过程中,既要有全球视野,也要关注本土法律资源。在论述法律规则的过程中,本书会穿插图表和中外典型案例以帮助学习者更好地理解和应用相关法律规则,从而提升本书内容的实务操作性。对于重要内容,本书采用黑体字予以突出,以提醒学习者重点掌握和理解这些内容。

三、在写作语言上,本书力图使语言既严谨、流畅同时又不失活泼。为培养学习者直接以英语思考、分析和解决法律问题的能力,本书未采用一般双语教材中英文对照的方式写作。本书每章的正文用英文写作,但导言和小结用中文写作。另外,对于正文中重要的法律概念、规则和制度则采用脚注的方式,以中文给出较为全面、精炼的介绍。

本书提供教学PPT等资料、资料下载请参见书末的“配套资料科学索取示意图”本书在编著过程中,参考了国内外的一些相关著作和研究成果,在此对这些作者深表谢意,主要参考文献见书后附录。此外,本教材的出版得到人民邮电出版社以及编辑的大力支持,在此亦深表谢意。

编著者秉承认真、负责的态度写作本书,但鉴于能力和时间的限制,本书想必仍难免错漏之处,谨请读者不吝指正。对于本书的任何建议和意见可发送至邮箱:unahan722@163.com韩永红2016年5月·广州白云山下Part Ⅰ The Legal Environment of International BusinessChapter 1 International Business and the Risks导读

本章主要介绍和讨论:(1)国际商务的一般知识,包括国际贸易的内容、历史和主要参与主体等;(2)国际商务的经济环境、政治环境、文化环境和竞争环境;(3)国际商务中可能存在的三类主要风险,包括政治风险、交易风险和法律风险。本章学习的目的在于了解国际商务及其国际环境,为后续国际商法的学习奠定知识基础。Warm-up Questions

(1) What do you think the impact of international business on your daily life?

(2) How does international business differ from domestic business?

(3) According to you, what are the risks of doing business internationally?1.1 What is International Business?

International business consists of import and export of goods and services. Exporting is the shipment of goods out of a country or the providing of services to a foreign buyer located in another country. Importing is the entering of goods into a country or the receipt of [1]services from a foreign provider. Exporting is often the first choice when businesses decide to expand abroad. It may provide businesses an opportunity to reach new customers and to explore new markets. Importing is also a regular and necessary part of international business. It involves purchasing goods or services on a worldwide basis to reduce production costs. Such a process is often described by [2]the term of global outsourcing.

International business may be conducted between individuals, businesses and even governments in multiple countries. Businesses include the very small firm that exports (or imports) a small quantity to only one country, as well as the very large multinational corporations [3](MNCs) with integrated operations and strategic alliances around the world. It is reported that exports by MNCs accounts for one-third of world exports, and one–third of the world's production of goods and services.

International business is different from domestic business because the environment changes when a firm crosses national borders. An individual traveling from his home country to a foreign country needs to have the proper documents, to carry foreign currency, to be able to communicate in the foreign country, to be dressed appropriately, and so on. Doing business in a foreign country involves similar issues and is thus more complex than doing business at home. States generally have different economic environments, government systems, laws and regulations, currencies, taxes and duties as well as different cultures and practices. Companies doing business in a foreign country would encounter greatest distances, communication problems, language and cultural barriers, differences in ethics and religions, different currencies and exposure to strange foreign laws and government regulations. Typically, a company understands its domestic environment quite well, but is less familiar with the environment in other countries and must invest more time and resources into understanding the new environment. The following considers some of the important aspects of the environment that [4]change internationally.1.2 The Environment of International Business

A. The economic environment can be very different from one nation to another. Countries are often divided into three main categories: the developed or industrialized countries, the developing countries or emerging economies and the least developed countries or third world. These distinctions are usually made on the basis of per [5]capita gross domestic product (GDP). Better education, infrastructure, technology, health care, and so on are also often associated with higher levels of GDP.

Within each category there are major variations, but overall the developed countries generally have a high per capica GDP, have a high standard of living and are in the later stages of industrialization. They are characterized by advanced technology, modern production and management methods, and advanced research facilities. They have diversified economies rather than only dependent on agriculture, oil or mining alone. Today it can be said that many developed countries are entering a postindustrial economy, with declining manufacturing but a growing service sectors. The best examples of developed countries may include the United States, Canada, the European Nations, Australia, New Zealand, Israel and Japan. The developing countries usually have a lower per capita GDP than developed countries. According to a system used by the World Bank, a developing countries is one with a per capita GDP of $ 11,905 or less. Many have large agrarian populations, densely populated cities, and unskilled labor. However, the typical developing country is hard to describe. Some rely almost only on oil exports such as the oil-dependent countries of the Middle East, although wealthy but are still considered developing countries. Some are newly emerging [6][7]economies like China, Brazil, Indian, Russia and South Africa. The least developed countries (LDCs) are the world's most impoverished and vulnerable countries. The criteria is based on per capita GDP averaged over three years. As of 2015, a least developed country is one with a per capita GDP of $ 1035 or less. Currently, the list of LDCs covers 48 countries including Laos, Afghanistan, Bangladesh and so on.

In addition to level of economic development, countries can be classified as free-market, centrally planned, or mixed. Free-market economies are those where government intervenes minimally in business activities, and market forces of supply and demand are allowed to determine production and prices. Centrally planned economies are those where the government determines production and prices based on forecasts of demand and desired levels of supply. Mixed economies are those where some activities are left to market forces and some, for national and individual welfare reasons, are government controlled. In the late twentieth century there has been a substantial move to free-market economies, but some countries remained largely centrally planned economies, and some government maintained control of business activities.

Clearly the level of economic activity combined with education, infrastructure, as well as the degree of government control of the economy, affect virtually all aspects of doing business, and a company needs to understand this environment if it is to operate successfully internationally.

B. The political environment is another important aspect of international business environment. It refers to the type of government, the government relationship with business, and the political risk in a country. Doing business internationally thus implies dealing with different types of governments, relationships, and levels of risk.

There are many different types of political systems, for example, multi-party democracies, one-party states, constitutional monarchies, dictatorships (military and nonmilitary). Also, governments change in different ways, for example, by regular elections, occasional elections, death or war. Government-business relationships also differ from country to country. Business may be viewed positively as the engine of growth, or may be viewed negatively as the exploiter of the workers, or somewhere in between as providing both benefits and drawbacks. Specific government-business relationships can also vary from positive to negative depending on the type of business operations involved and [8]the relationship between the people of the host country and the [9]people of the home country. To conduct a business successfully in a foreign country, a company needs to have a good understanding of all of these aspects of the political environment.

C. The cultural environment is one of the critical components of the international business environment. It seems more difficult to understand the cultural environment, because the cultural environment is essentially unseen. The “culture” has been described as a shared, commonly held body of general beliefs and values that determine what is right for one group. National culture is described as the body of general beliefs and values that are shared by a nation. Beliefs and values are generally seen as formed by factors such as history, language, religion, geographic location, government, and education; thus firms begin a cultural analysis by seeking to understand these factors.

Companies need to understand what beliefs and values they may find in countries where they do business. In fact, a number of models of cultural values have been proposed by scholars. The most well-known is that developed by Hofstede in 1980. This model proposes four dimensions of cultural values including individualism versus collectivism, uncertainty avoidance, power distance and masculine [10]versus feminality. Individualism is the degree to which a nation values and encourages individual action and decision making. Uncertainty avoidance is the degree to which a nation is willing to accept and deal with uncertainty. Power distance is the degree to which a national accepts and sanctions differences in power. And masculinity is the degree to which a nation accepts traditional male [11]values or traditional female values. This model of cultural values has been used extensively because it provides data for a wide array of countries. Many academics and managers found this model helpful in exploring management approaches that would be appropriate in different cultures. For example, in a nation that is high on individualism (such as the U.S.A.), individual goals, individual tasks, and individual reward systems to be effective, whereas the reverse would be the case in a nation that is low on individualism.

D. The competitive environment can also change from country to country. This is partly because of the economic, political, and cultural environments; these environmental factors help determine the type and degree of competition that exists in a given country. Competition can come from a variety of sources. It can be public or private sector, come from large or small organizations, be domestic or global, and stem from traditional or new competitors.

The nature of competition can also change from place to place: competition may be encouraged or discouraged in favor of cooperation; relations between buyers and sellers may be friendly or hostile; barriers to entry and exit may be low or high; regulations may permit or prohibit certain activities.

An important aspect of the competitive environment is the level and acceptance of technological innovations in different countries. The last decades of the twentieth century saw major advances technology, and this is continuing in the twenty-first century. Technology often is seen as giving firms a competitive advantage; hence, firms compete for access to the newest technology, and international firms transfer technology to be globally competitive. It is easier than ever for even small businesses to have a global presence thanks to the internet, which greatly expands their exposure, their market, and their potential customer base. For economic, political, and cultural reasons, some countries are more accepting of technological innovations, others less accepting. To do international business effectively, companies need to understand these competitive issues and assess their impact.1.3 History of International Business

As a matter of fact, international business is as old as the oldest civilization. Throughout the history of mankind, countries traded to obtain needed items from silk to spices that were not readily available in their own countries. Asia, Middle East, Africa and Europe have been the major marketplaces of trade for hundreds of years. In history, there were famous “silk road”, which linked the market of China with Middle East and Europe, and the first international sea trade route established by the Europeans in the sixteenth century. With the advent of great naval power, Portugal and Spain opened the Americas, India, and the Pacific to trade. For more than three hundred years, trade in cotton, corn, horses, weapons and even slaves thrived among Europe, America and Africa.

Since the end of World War II, much has changed in the field of international business. The General Agreement on Tariffs and Trade (GATT) negotiation rounds resulted in trade liberalization, and this was continued with the formation of the World Trade Organization (WTO) in [12]1995. At the same time, worldwide capital movements were liberalized by most governments, particularly with the advent of electronic funds transfers.

The world today is more economically interdependent than at any time of the history. It is said twentieth century was the century of [13]emerging globalization. “Globalization” has been one of the most frequently cited terms in economic and legal literatures. Many economists and business experts even conclude that globalization makes no business purely domestic. Even the small local companies are affected by global competition and world events.

In effect, globalization is rather an economic concept with significant legal meaning. It is an economic process which appears to be unstoppable. Undoubtedly, with the increasing globalization of economy, we will experience more cross-border activities. Many economists and business experts believe that no trade can be purely domestic in such a globalization process. The reality of the increasing economic interdependence among countries makes all trade international. No longer can an economic or policy change in one country occur without causing reverberations throughout the world's markets. For example, the deterioration in trade relations between the United States and China can affect the manufacturing plants in Canada or Mexico. The Mad Cow disease affected far more than the English cattle but the trade in beef worldwide.

Globalization can be attributed to many factors. Natural resources and raw materials are unevenly located around the world. Technology advances in communications has brought people closer than ever and made the world, to some extent, a village on the earth. Most of nations have moved away from pure protectionism of trade and increasingly toward free trade. Recent decades has seen a steady and robust [14]movement towards regional integration, for example, EU and the [15]development of free trade areas such as China-ASEAN and NAFTA.[16] Technologies of patents, copyrights, trademarks and know-how are transferred by licensing agreements around the world, as freely as goods and services are sold. Greater political stability in newly emerged economically powerful countries has led to increasing trade volume around the world.

Globalization is also a legal event, as evidenced by the spread of rule of law among nations. Greater economic interdependence has required countries to reach agreement on important legal issues. The global economy has been affected by the development of widely accepted international conventions and practices, which provide a reliable and consistent legal environment for international business. Meanwhile, national laws are required to be harmonized and adjusted to new development in international business.1.4 Risks of International Business

Factors such as differences in language, culture, economics, politics and laws bring about barriers and costs——risks. No company can make a strategic business decision or enter into an important business transaction without a full evaluation of the risks involved. To a great degree, the management of international business is the management of risk. In this part we will discuss just two types of international business risks: political risk and the risk of exposure to foreign laws and courts.

A particular concern of international companies is the degree of political risk in a foreign location. Political risk is generally defined as the risk to a company's business interests resulting from political instability or civil unrest, political change, war, or terrorism in a country [17]in which the company is doing business. For example, political decisions by governmental leaders about taxes, currency valuation, trade tariffs, wage levels, labor laws, environmental regulations and development priorities, can affect the business conditions and profitability. Similarly, political disruptions such as terrorism, riots, civil wars, international wars, and even political elections that may change the ruling government, can dramatically affect the businesses. Generally, political risk is associated with instability and a country is thus seen as more risky if the government is likely to change unexpectedly, if there is social unrest, or if there are riots, revolutions, war, terrorism, and so on.

Companies naturally prefer countries that are stable and that present little political risk, but the returns need to be weighed against the risks, and firms often do business in countries where the risk is relatively high. In these situations, companies seek to manage the [18]perceived risk through political risk insurance, ownership and management choices, supply and market control, financing arrangements, and so on. In addition, the degree of political risk is not solely a function of the country, but depends on the company and its activities as well——a risky country for one company may be relatively safe for another. Handling political risk requires planning and vigilance. First, the company must have an understanding of the domestic affairs of a country. Typical questions might include: Is the country subject to religious or ethnic strife? Is the country politically stable? Can the government of the country rule effectively? The firm must also understand regional politics. Is the region stable? Are neighboring countries in the region hostile? Finally, it is well advised that managers of the company should keep abreast of all political affairs that could affect their business interests worldwide.

Exposure to foreign law and courts is another risk for international business. Laws vary from country to country depending on social, political, cultural and historical traditions. Some acts that are perfectly legal in one country may be illegal in another. Most travelers to a foreign country could conceivably break laws but not even be aware of it. It is true not only for criminal law but also for the law of contracts, torts, employment, intellectual property and other business laws. For example, under Islamic law in many Middle Eastern countries, there is prohibition against charging interest on a loan. However, in other parts of world, it is almost taken for granted.

Settling disputes between companies can be much more difficult in international business than in domestic business. It may involve complex procedural problems: What country's court should hear the case? What countries law should apply? Should the case be submitted [19][20]to arbitration? and so on. Litigation in a foreign court is both costly and time consuming. The laws of a foreign country can differ greatly from those laws one is accustomed to at home. In addition, language and logistical issues can be problems as well. A company may respectively need representation by attorneys in its own country and in the foreign country. Frequent court appearances could cost a lot of time and travel expense.Chapter Summary

本章是关于国际商务及国际商务环境的介绍。国际商务是一种跨越国界的商业活动,是在不同国家之间进行商品、劳务、资本、技术和信息等资源的国际转移,其主体活动是进出口贸易,包括货物贸易和服务贸易。个人、企业乃至政府(在某些情况下)都可以从事国际商务活动,其中最活跃的主体当属跨国公司。

相较国内商务活动,国际商务因跨越了过境而更为复杂。他国的经济环境、政治环境、文化环境和竞争环境等情况都将对国际商务活动产生重要影响,可能会给国际商务活动带来政治、经济和法律风险。

国际商务的历史悠久。“二战”之后国际商务发展迅速,全球化加剧了国家之间的经济依赖,有力地促进了国际商务的繁荣,也对国际商务的法律规制产生了重大影响。ExercisesPart Ⅰ. True or False Statements: Decide whether the following

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