法学院 2006—2007 学年第（一）学期期末考试《International Trade Law》试卷（B）

年级 班级 姓名 学号 题号 一 二 三 四 五 六 七 八 总分得分I. Translation (20%)1．法典化2．本票3．强制执行4．普惠制5．空白背书6．保兑行7．法律选择条款8．批准9．工厂交货10．票据责任11．customary law

12．sovereign immunity 13．commercial invoice14．legitimate 15．tribunal 16．multilateral trade negotiation 17．country of origin 18．breach of contract 19．suspension of performance 20． International Center for the Settlement of Investment Disputes

II. Choose definitions (20%)1．particular average2．private international law 3．estoppel 4．glossator 5．personal jurisdiction 6．waive 7．customs union 8．dumping 9．consensus 10．direct effect

11．tariffs 12．preempt 13．offer 14．withdrawal 15．freight forwarder 16．account party 17．protest 18．assignment 19．trade acceptance 20．bill of lading

A. Cancellation by the offeree of an acceptance..B. The transfer of all or part of an assignor’s contractual rights to an assignee.C. Formal certification that a negotiable instrument was dishonored by a party liable for its payment.D. The person who requests a bank or some other person to issue a letter of credit.

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E. A proposal by one person to another indicating an intention to enter into a contract under specified terms.F. That division of international law that deals primarily with the rights and duties of states and intergovernmental organizationa as between themselves.G. A bill of exchange on which the drawer and the payee are the same person.H. To take precedence over.I. A instrument issued by a warehouseman or carrier to a shipper that serves as a receipt for goods shipped, as evidence of the contract of carriage, and as a document of title for the goods.J. Governmental charges imposed on goods at the time they are imported into a state..K. A loss to a ship or its cargo that is not to be shared in by contributions from all those interested,but is to be borne by the owner of the injured thing.L. Legal rule that one cannot make an allegation or denial of fact that is contrary to one’s previous actions or words.M. A firm that makes or assists in the making of shipping arrangements.N. A group of states that have reduced or eliminated tariffs between themselves and have also established a common external tariff.O. One who makes a textual gloss or glossary.P. The making of a decision by general agreement and in the absence of any voiced objection.Q. The principle whereby a treaty may be invoked by a private person to challenge the actions of a state that is a party to the treaty.R. Selling exported goods at prices below their normal value.S. The requirement that a tribunal must have power over the parties before it may hear a dispute.T. To voluntarily give up a legal right.III. True or False (20%)

1．The Multilateral Trade Negotiations (or GATT 1947 “rounds”) were, from the outset,

devoted to non-tariff matters and the drafting of non-tariff codes.

2．Unlike the proposed International Trade Organization’s Havana Charter, the WTO

Agreement separates institutional arrangements from the substantive provisions governing world trade.

3．The WTO Ministerial Council meets at least every other year to oversee the operation of

the WTO.

4．A subsidy is a financial contribution made by a government or other public body that

confers a benefit on an enterprise, group of enterprises, or an industry.

5．A WTO member state injured by another member state’s subsidies is required to notify

the WTO and to consult with the state causing the injury.

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6．The United Nations Convention on Contracts for the International Sale of Goods (CISG)

makes illegal contracts unenforceable.

7．When interpreting a contract, the courts in most civil law countries will only consider the

statements of the parties as they would have been objectively interpreted by a reasonable and prudent third party.

8．According to the United Nations Convention on Contracts for the International Sale of

Goods (CISG), a contract is not formed until the offeree accepts the offeror’s offer.

9．A would-be acceptance that contains material differences from the offer is a counteroffer.

10．According to the United Nations Convention on Contracts for the International Sale of

Goods (CISG), avoidance is a party’s right to be excused from having to perform any obligation required by a contract.

11．Almost all domestic laws allow the parties to a sales contract to define the meaning of

the trade terms (such as FOC, CIF, etc.) that they use in their contract.

12．The word “free” when used in a trade term means that the seller must pay all costs

associated with delivering the goods to the buyer.

13．A Delivered Ex Ship (DES) trade term requires the seller to deliver goods to a buyer at

an agreed port of destination.

14．While freight forwarders commonly arrange and oversee the shipment of goods abroad,

it is common practice for a seller of goods to itself arrange for inland carriage.

15．A vessel that accepts goods for transport from more than one person is known as a

charterparty.

16．The Uniform Law on Bills of Exchange and Promissory Notes (ULB) is actually three

separate conventions.

17．A “time bill of exchange” is one that the drawee must pay at a definite future time.

18．A promissory note is a three party instrument whose parties are the “drawer,” the

“drawee” and the “payee.”

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19．A statement in a bill of exchange that the bill is drawn under a letter of credit will not

affect the bill’s negotiability.

20．In the United States, if a maker draws a check to a payee who does not exist (a “fictitious

payee”), then any endorsement added by the persons who has caused the check to be drawn will be ineffective, and the person taking the check from him will have no rights against the maker.

IV. Multiple choice (20%)

1．Which of the following sources of international law does the International Court of Justice

normally regard as the most authoritative? a. Customary international law. b. General principles of law. c. International conventions. d. Judicial decisions. e. Teachings of legal writers.

2．The Vienna Convention on the Law of Treaties applies to treaties and conventions that:

a. are governed by municipal law. b. are in writing. c. are made orally. d. relate to international organizations. e. All of the above.

3．In the United Kingdom, treaties are made by:

a. the Crown (i.e., the executive). b. the Crown with the approval of Parliament. c. the prime minister with the approval of the foreign secretary. d. the prime minister with the approval of the queen. e. None of the above.

4．A state that lacks some attribute (i.e., territory, population, or government) required for it

to be treated as a fully independent state is known as a/an: a. dependent state. b. developing state. c. inchoate state. d. non-state. e. underdeveloped state.

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5．Which of the following organs of the United Nations may authorize the use of armed

force? a. Economic and Social Council.b. General Assembly.c. International Court of Justice.d. Secretariat.e. Security Council.

6．Which of the following is not an example of how negotiations are conducted?

a. Through debates at an international organization.b. Through normal diplomatic channels.c. Through summit meetings.d. Through the establishment of mixed or joint commissions.e. Through the use of competent authorities.

7．International disputes between states are most commonly heard by which of the following

tribunals?a. Arbitration tribunals.b. International tribunals.c. Municipal courts.d. All of the above.e. Both a. and b. above.

8．An appeal of a WTO dispute settlement panel report may be made to the Appellate Body

by:a. any WTO member state.b. any party to the dispute, including parties not directly involved.c. only parties directly involved in the dispute.d. only the party charged with violating a WTO obligation.

e. only with the authorization of the Dispute Settlement Body.

9．In order to constitute an International Center for the Settlement of Investment Disputes

(ICSID) arbitration tribunal,a. both the state where the investment is being made (the host state) and the state of

which the investor is a national (the home state) must both be parties to the ICSID convention.

b. both the investor and the host state must have consented to ICSID jurisdiction.c. the host state must have notified ICSID of the class or classes of disputes that it

considers arbitrable.d. All of the above are required.e. Both a. and b. above are required.

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10．Mr. A, a citizen of State A, hijacks an airplane belonging to State B. While the aircraft is

in the air flying over State C, Mr. A shoots and kills Mr. D, a national of State D. The plane then lands in State E and Mr. A is arrested and charged with Mr. D’s murder in State E. State E may assume jurisdiction in this criminal case based on which of the following international law nexuses?

a. Nationality nexus.b. Protective nexus.c. Territoriality nexus.d. Universality nexus.e. None of the above.

11．The goal of the “Bretton Woods System” was to establish which of the following

organizations to administer and harmonize world trade?a. The Bank for International Settlements.b. The Coordinating Committee on Multilateral Export Controls.c. The International Trade Organization.d. The Trade Policy Review Board.e. The World Trade Organization.

12．The WTO’s Trade Policy Review Board (TPRB):

a. carries out periodic reviews of the trade policies and practices of member states.b. directs noncomplying member states to bring their trade policies into compliance

with the requirements of the WTO.c. functions as a tribunal to resolve disputes between states as to whether or not their

trade policies comply with WTO requirements.d. All of the above.e. Both b. and c. above.

13．Which of the following statements about the General Agreement on Tariffs and Trade

(GATT 1994) is/are true?a. Member states may impose quantitative restrictions on imports of agricultural and

fisheries products to stabilize their national agricultural market.b. Member states may impose reasonable quantitative restrictions on imported goods to

safeguard their balance-of-payments position.c. Member states may not impose quotas or other quantitative restrictions that block the

function of the price mechanism.d. All of the above.e. None of the above.

14．A commodity arrangement “stabilization program” involves:

a. contractual arrangements to buy and sell the goods at agreed-upon prices.

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b. export quotas to limit the quantities available to the world market during stressful times.

c. internationally financed buffer stocks, operated by a central body, which buys and sells from those stocks to stabilize market prices.

d. All of the above.e. None of the above.

15．Technical regulations are mandatory laws and provisions that specify the:

a. characteristics of products.b. processes and production methods for creating products.c. terminology, symbols, packaging, marking, or labeling requirements for products,

processes, or production methods.d. All of the above.e. None of the above (technical regulations are not mandatory but voluntary).

16．According to the Bills of Exchange Act (BEA) and the Uniform Commercial Code

(UCC), a bill of exchange must:a. be in writing.b. be payable “to order” or “to bearer.”c. contain the term “bill of exchange” in the heading and the language of the

instrument.d. All of the above.e. Both a. and b. above.

17．A “trade acceptance” involves:

a. a drawee who buys goods from a drawer and owes the sale price to the drawer.b. a drawer who buys goods from a drawee and owes the sale price to the drawee.c. a maker who buys goods from a payee and owes the sale price to the payee.d. a payee who buys goods from a maker and owes the sale price to the maker.e. None of the above.

18．If a bill of exchange or promissory note is assigned,

a. an assignee can acquire more rights from the assignment than the assignor possessed.b. an assignee acquires only those rights that the assignor possessed.c. any objections to honoring the assigned obligations that could be raised against the

assignor can be raised against the assignee.d. both b. and c. above.e. None of the above.

19．A “holder in due course” is one who has acquired a bill of exchange or promissory note:

a. by negotiation.b. by paying value for it.

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c. in good faith.d. All of the above.e. Both b. and c. above.

20． Which of the following letters of credit cannot be altered without the beneficiary’s

express consent?a. Clean.b. Confirmed.c. Irrevocable.d. Red Clause.e. None of the above.

V. Case analysis (20%)1. On December 1, Seller sent to Buyer an offer to sell 5,000 widgets to Buyer for $25 apiece. The offer stated: “The offer will remain open until December 31.” On December 10, Buyer answered: “The price is too high, I don’t accept your offer.” Then on December 15, Buyer changed his mind and sent a telegram stating: “I accept your December 1 offer after all.” Seller replied: “Your acceptance is too late since you already rejected the offer.” In turn, Buyer answered:” The acceptance is good, since you promised to keep your offer open until December 31.” Is there a contract under the CISG?2. Seller contracted to deliver 1,000 barrels of oil to Buyer for $14,000. When the oil arrived, 975 barrels complied fully with the contract description. Twenty-five were contaminated and unacceptable. Oil in comparable barrels was available in the local market for a price of $18 a barrel in 25-barrel lots. Seller offered not to charge Buyer for the barrels. Is there a contract under CISG? Is so, what payment is due Seller?3. Seller in San Francisco agreed to ship goods to Buyer in London under a CIF San Francisco contract. After the goods were loaded aboard the ship, but before it departed from San Francisco, Seller tendered the documents required by the contract to Buyer and asked to be paid. Buyer refused, asserting that it had a right to inspect the goods upon their arrival in London, and that it did not have to pay until it did so and was satisfied that the goods were in compliance with the contract. Seller sues for immediate payment. Will Seller win?4. The SS Anxious was transporting goods to several ports on the east coast of Africa, including Beira in Mozambique. While still several hundred miles at sea, the Anxious learned that rebel forces opposing the Mozambique government were attacking Beira. The ship, nonetheless, pulled into Beira and tied up at a pier. Immediately thereafter, it was struck by a mortar round. The goods in the ship’s main cargo hold were destroyed. Is the ship liable for the loss?

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Answers to international trade law test BI. Translation1．codification 2．promissory note 3．enforcement 4．generalized system of preference 5．endorsement in blank 6．confirming bank 7．choice-of- law clause 8．ratification 9．EXW10． liability on the instrument

11．习惯法12．主权豁免13．商业发票14．合法的15．法官席,法庭16．多边贸易谈判17．原产国18．违约19．中止履行20．国际投资争端解决中心

II. Choose definitions1.K 2.F 3.L 4.O 5.S 6.T 7.N 8.R 9.P 10.Q 11.J 12.H 13.E 14.A 15.M 16.D 17.C 18.B 19.G 20.I

III. True or False1.T 2.T 3.T 4.T 5.F 6.F 7.F 8.T 9.T 10.T 11.T 12.F 13.T 14.T 15.F 16.T 17.T 18.T 19.T 20.F

IV. Multiple choice1.c 2.b 3.a 4.c 5.e 6.a 7.e 8.c 9.d 10.d 11.c 12.a 13.d 14.d 15.d 16.e 17.a 18.d 19.d 20.c

V. Case analysis 1. CISG Article 17 clearly states that “an offer, even if it is irrevocable, is terminated when a rejection reaches the offeror.” Because the rejection reached the Seller before the acceptance, the offer is rejected.2. Buyer may ask for damages. If he buys replacement barrels on the local market and pays a reasonable price for them, he will be entitled (under Article 75) to that price. If Buyer does not obtain substitute barrels, he will be entitled (under Article 76) to the current price at the place of delivery; that is, $18 a barrel, or $450. If this had been a case involving force majeure, Buyer would not have been entitled to damages, but only a price reduction. Article 50 provides for a proportionate price reduction, so under that rule, the final price would be reduced to $14 a barrel, or $350.3. Yes. A buyer has a duty to pay upon the presentation of documents by the seller. See Incoterms CIF Article B.1. See also Biddell Bros. v. E. Clemens Horst Co., [1911] K.B. 214 (King’s Bench 1911), where these exact facts were at issue.4. Under both The Hague Rules and The Hague-Visby Rules, a ship is exempt from losses due to acts of war. However, it will remain liable if it does not take reasonable precautions to avoid danger. Here, the ship did not avoid the danger. It would be liable.

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