国际商法英文笔记doc资料.docx

1、国际商法英文笔记doc资料国际商法英文笔记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 fini

2、sh 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

3、 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 with

4、out 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

5、 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 wh

6、o 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. I

7、ndeed 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 the t

8、hird 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 co

9、ntract.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 par

10、ty 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 b

11、y 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 con

12、sent 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 validit

13、y 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

14、 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

15、 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 c

16、an 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 contrac

17、t is a condition of the validity of the contract. E.Contracts 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 abo

18、lition of slavery, you can finish 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

19、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 i

20、t 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 obli

21、gation 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

22、 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 the house, until the death of the owner. The issuance of share is provided with certain conditions. -The condition subsequent (

23、condition rsolutoire): 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 bik

24、e-Successive performance contract. However some contracts needs several steps. You build a house, there are several steps. Successive performance contract enables you to negociate. Difference between civil contract/ administrative contract/ commercial-Administrative are subjective courses. In most c

25、ountries 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 contract1.La

26、bour 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 contrac

27、t 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. Ther

28、e 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 whi

29、ch 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 it

30、s 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

31、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) Assigning 3) Closing: they check if all the elements have been realized or not1.The different steps of a contract1) Ident

32、ifications 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 dont pay you will have to give the mortgage back. -lean:The termination clause: modalities ways to end (pravis).The defaultin