我国法院对《联合国国际货物销售合同公约》的适用

随着统一法之风盛行,《联合国国际货物销售合同公约》的成员国已遍布全球,几乎所有贸易大国都参与其中。我国作为创始成员国在公约的司法实践中扮演着重要角色。但由于部分法官国际法知识相对缺乏,在公约的适用方面把握不准。文章选取若干典型判决,从公约的直接适用和选择适用两方面指出正确的公约适用方法,并通过对公约与国内法的衔接和中国对第一条第1款(b)项的保留等中国化问题的分析,明确了我国法院在适用CISG公约时应注意的一些问题。     

《联合国国际货物销售合同公约》的适用探析

《联合国国际货物销售合同公约》是目前调整国际货物买卖的最重要的国际统一实体法。本文从公约适用的主体、公约不适用的销售合同及货物销售、公约不涉及的法律问题、公约适用的任意性及公约与国内法的关系等五个方面就公约适用问题进行了归纳和总结,并对某些模糊问题作了澄清和探讨。     

Toward Normalization of Defamation Law: The U.K. Defamation Act of 2013 and the U.S. SPEECH Act of 2010 as Responses to the Issue of Libel Tourism

In the wake of several high-profile libel actions brought by U.S. celebrities and foreign businessmen in London because of more favorable defamation laws there, London was dubbed the “libel tourism capital of the world.” The U.S. response in 2010 was the passage of the SPEECH Act, preventing courts from enforcing libel judgments from foreign jurisdictions not providing the same level of protection as the United States. Similarly, in 2013 the United Kingdom responded to international and national criticism by passing the Defamation Act to address the loophole in its system that caused the abuse. Both acts have been criticized, the first for its aggressiveness, and the second for its conservative nature. This article examines the development of the law of defamation in the two jurisdictions and analyzes the content of both statutes, along with their criticisms, proposing international cooperation to address the issue of libel tourism.     

State-Organized Crime,International Law and Structural Contradictions

Following the trail blazed by Bill Chambliss in his 1988 Presidential Address to the American Society of Criminology, this article engages two interrelated issues concerning the concept of state-organized crime that he pioneered. First, the article develops Chambliss’s argument that criminologists should define state crime as behavior that violates international agreements and principles established in the courts and treaties of international bodies. Second, although Chambliss effectively argued that international law “on the books” provides a framework of substantive concepts and categories that allows criminologists to define certain state actions as a form of crime, “in action” international laws fail to provide legal accountability for states and protection for victims. This article demonstrates, however, that Chambliss’s structural contradictions theory of law can help to explain this paradox.     

THE RESERVATION OF THE SEAS EXCLUSIVELY FOR PEACEFUL PURPOSES

The general principle of the high seas shall be reserved for peaceful purposes is embodied in the United Nations Convention on the Law of the Sea (UNCLOS), and it is comprehensively in conformity with the principles and purposes of the UN Charter. It is also applicable to the Exclusive Economic Zones (EEZs). In exercising their rights and performing their duties under the United Nations Convention on the Law of the Sea, the States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations. It can only be said that “military activities” do not include “law enforcement activities.” Marine scientific research conducted for military purposes is, if contrary to the principles in article 301 of the Convention, forbidden in any part of the oceans.     

What the Trial Judge Needs to Know about the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance

Since the 1950s, there have been several international multi‐lateral treaties for recognition and enforcement of child and spousal support orders. They operated, primarily, in civil law countries where “creditor‐based jurisdiction” allowed establishment of an order in the country of habitual residence of the child or the custodial parent. The United States, requiring “minimum contacts” with the debtor to establish personal jurisdiction, could not be a party to such agreements. For nearly fifty years the U.S., and a few states, sought to fill the need for international reciprocity by negotiating individual country‐to‐country or state‐to‐country arrangements. With ratification of the 2007 Family Maintenance Convention, the United States was finally able to join in a multi‐lateral treaty. The treaty took effect in the United States on January 1, 2017, establishing procedures for international recognition, enforcement and modification of family support orders with 35 other countries already party to the Convention (including the entire European Union). The grand bargain struck during the negotiations between 2003 and 2007 was that the U.S. would honor a foreign order if, under the facts presented, there were sufficient minimum contacts with the debtor that would have supported personal jurisdiction if the order had been entered in any state in the U.S. If unable to recognize a foreign order, the U.S. agreed to take steps to issue a new one. The treaty establishes administrative procedures that, in many respects, are nearly identical to interstate enforcement of domestic support orders in this country. But there are also aspects of the treaty that are entirely new and warrant explanation for family and juvenile court judges. This article focuses on several unique provisions of the treaty that judges and attorneys need to understand.     

《2010年国际贸易术语解释通则》与《销售合同公约》货物风险转移原则的牵连性与独立性

《联合国国际货物销售合同公约》作为国际贸易的统一实体法,创设的货物风险转移原则较为笼统性,因而为最新的国际贸易术语统一惯例《2010年国际贸易术语解释通则》预留了足够的空间。尽管强制法限制惯例的约定,但两种规则并不冲突,彼此之间相辅相承。秉承公约的传统,同时利用国际贸易惯例的功能,改革与完善国际货物买卖和运输交接货的责任界定与风险转移,是国际商会对于《2010年国际贸易术语解释通则》的杰出奉献。     

U.S. Judicial Implementation of the Hague Convention in Cases Alleging Domestic Violence

This qualitative study examined U.S. legal cases where battered mothers living abroad fled with their children to the United States. These women subsequently faced child abduction lawsuits brought by their batterer. The cases are governed by the Convention on Civil Aspects of International Child Abduction (the Hague Convention) which was ratified by the U.S. in 1988. Using content analysis, the study analyzed 47 published U.S. state and federal judicial opinions involving the Convention and allegations of domestic violence. It finds that U.S. courts are reluctant to employ Convention provisions that could prevent children from being returned to their mother's batterer.     

Law and Family Formation Among LGBQ‐Parent Families

This article addresses how the law affects family formation among families with lesbian, gay, bisexual, and queer (LGBQ) parents in the United States. Our discussion draws on a socio‐legal approach to law that focuses not only on the law on the books (what we refer to as “legal barriers”) but also on issues like how the law is practiced, how people experience the law in everyday life, and how the law serves as an interpretive framework through which people understand themselves and their families (what we refer to as “social barriers”). In our review, we highlight how attorneys can play a role in valuing and advancing rights for LGBQ‐parent families and LGBTQ prospective parents.     

Market Practice and the Evolution of Foreign Sovereign Immunity

The twentieth century witnessed a “tectonic” shift in international law, from absolute to restrictive theories of sovereign immunity. As conventionally understood, however, this transformation represented only a change in default rule. Under absolute immunity, courts could not hear lawsuits and enforce judgments against a foreign sovereign without its consent. Under restrictive immunity, foreign sovereigns were not immune to their commercial acts, regardless of consent. Using a two‐century dataset of loan contracts, we show that market practice undermines this conventional understanding. For centuries, loan contracts were structured as if the rules of sovereign immunity could not be changed by contract. In the 1970s, however, market practice changed, seemingly in response to the codification of sovereign immunity law in the United States and United Kingdom. We explore why market practice conflicts with the conventional understanding of sovereign immunity, and we examine the association between codification and the structure of sovereign loan contracts.     

论CISG在一些国际商事案件中的应用(英文)

本文系作者根据其办理国际商事案的笔记整理撰写,主要涉及《销售公约》的适用、公约与内国法的互动、国际法优先、原《涉外经济合同法》第6条规定的缺陷及其对中国仲裁员的但他们却往往没有意识到的负面影响;作者还希图让同行注意澳大利亚学者Marcus S Jacobs在其专门为中国同行撰写的文章中对《销售公约》适用的见解。     

Contract Negotiations and the Common Law: A Move to Good Faith in Commercial Contracting?

Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of “good faith” as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2) [2020] EWHC 1581 (TCC) in England and Wales; Bhasin v Hrynew 2014 SCC 71 and Callow v Zollinger 2020 SCC 45 in Canada. This paper will examine the extent to which these cases may open the way more generally for a duty to negotiate commercial contracts in good faith. It will examine the reception of these cases and whether they indicate (i) greater acceptance of “good faith” as part of contract law thinking and (ii) a possible extension of good faith into the pre-contractual period.

     

美国《2018年出口管制法》评析与启示

美国《2018年出口管制法》在术语定义和政策声明、出口管制的权限和管理、许可证、确定和控制"新兴和基础技术"出口的要求、涉及与美国全面禁运的国家有关的审查、惩罚和强制执行等方面作出了许多新规定。该法使美国出口管制体系走向法典化、系统化和多边化,建立跨部门许可审查机制,确立"合规协助"条款,扩大了"新兴和基础技术"这一出口管制范围,并扩张出口管制域外管辖权,同时加强了惩罚和执行力度。我国应注重"新兴与基础技术"的管制,完善出口管制系列清单,扩大出口管制管理机构的执法权限,为出口经营者出口合规提供具体指导,严格执行阻断法,推进双边与多边出口管制标准的设立以应对该法的实施。     

Extraterritorial criminal jurisdiction: Its impact on criminal justice

Public international law recognizes the right of states to protect themselves and their subjects against threats and damage from within their territory and outside. In the international sphere, the means and methods of national protection are restricted by the extraterritorial jurisdiction of courts and the laws they enforce.Criminal justice today is being confronted on an ever increasing scale by international criminal offenses that impinge on domestic concerns: drugs, securities and financial manipulations, money laundering, and terrorism, to mention only a few. This article discusses some of the issues that arise under the United States Constitution when criminal justice agencies are called upon to enforce U.S. laws beyond U.S. territorial limits. The principles of extraterritorial jurisdiction are discussed along with a number of United States court cases pointing to the importance of this new area of criminal justice.     

反垄断请求的可仲裁性问题研究——以美国为视角

本文以美国为视角,对反垄断请求的可仲裁性问题进行了探讨。文章概述了美国法院在这一问题上的态度,讨论了《纽约公约》的相关规定以及美国的有关立法和司法实践,论及了《谢尔曼法》和AmericanSafety等案件,并对美国法院审理三菱汽车公司一案的判决予以重点研究,分析了该案判决对国际商事仲裁所产生的深远影响。     

Moving Children through Private International Law: Institutions and the Enactment of Ethics

This article examines how the Hague Convention on the Protection of Children and Co‐operation in Respect of Intercountry Adoption (Hague Adoption Convention) plays a central role in justifying the institution of legal adoption. The Hague Adoption Convention has often been regarded as a response to the challenges that the “global situation” brings to adoption practice. Based on private international law, the agreement contains protocols and norms to ensure the protection of the child in intercountry adoption. In the article, I propose that the Hague Convention can be understood as a “transparency device”; a complex assemblage working in pursuit of global “good governance.” The device, however, also operates as justification within the institutional domain, allowing adoption agencies to make distinctions between legitimate and illegitimate adoptions. Idemonstrate how the logic of transparency disguises as much as it promises to reveal. While the doctrine's aim is to validate adoptability and combat trafficking, it also helps to mainstream Euro‐American adoption knowledge to other parts of the world.     

The Inefficiency of Quasi–Per Se Rules: Regulating Information Exchange in EU and U.S. Antitrust Law

It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the relevant approach under the EU competition regime. Using economic theories of harm concerning information exchange to understand the imposition of liability in relation to “stand-alone” instances of information exchange, we argue that such liability must be grounded on the conception of a prophylactic rule. We characterize this rule as a form of ex ante regulation and explain why it has no ex post counterpart in antitrust law. In contrast to the U.S. antitrust regime, we argue that the implementation of such a rule pursuant to EU competition law leads to higher error costs without a significant reduction in regulatory costs. As a majority of jurisdictions have competition law regimes that resemble EU competition law more closely than U.S. antitrust law, our thesis has important implications for competition regimes around the world.     

The Angry Pamphleteer: True Threats,Political Speech,and Applying Watts v. United States in the Age of Twitter

Since the 1969 case Watts v. United States, courts have consistently held that politically motivated speech about or directed to public figures may be punished if it qualifies as a “true threat” rather than protected political hyperbole. Criticism of public officials lies at the core of First Amendment protection, even when that criticism is caustic or crude. Such caustic speech appears on Twitter with increasing frequency, often pushing the boundaries of the constitutional guarantees of free speech. Through an analysis of the political speech-true threat cases that apply Watts, this study identifies and assesses three distinct modes of analysis that lower courts use to distinguish political speech from true threats. They are: (1) criteria-based analysis; (2) ad hoc balancing; and (3) a form of balancing referred to herein as “line-crossing analysis.” This study concludes that criteria-based analysis is the most prominent mode used by lower courts. As applied to new media and political participation, criteria-based analysis risks unduly restricting valuable political speech.     

Horizontal Effect and the Constitutional Constraint

This article offers a new interpretation – the ‘constitutional constraint’ model – of the duty the Human Rights Act imposes on the courts to give horizontal effect to European Convention rights through the common law. The model requires courts to develop the common law compatibly with the Convention, but only where compatibility can be achieved by incremental development. We argue that models requiring more than incremental development are unsustainable; that deep constitutional norms compel the constraint of incrementalism, which is preserved under the HRA; and that by virtue of section 2 of the HRA, Convention rights function as principles rather than hard‐edged rights in this context. This further undermines the idea that the courts must strictly apply Convention rights and cannot allow them to be overridden by non‐Convention factors. The final section explores the nature of incrementalism in this context and the impact of the model on the doctrine of judicial precedent.     

How American Commercial Bail Developed Differently from Other Common Law Countries

Outside the United States those countries sharing the common law tradition are pervasively hostile to commercialization of the bail process, whereas in the United States it is the typical approach. In some jurisdictions payment for bail is a crime; in others it is simply obstructed by various civil legal disabilities. How the American branch of the common law heritage came to deviate so strikingly from the rest on the matter of commercial bail is the topic of this article.

Beginning in the second half of the nineteenth century, courts principally in Ireland, England, and India began to act against payment to bail sureties on the concept that any indemnification of them—even partial—undermined their reliability. Irish courts took the approach that indemnified potential sureties were unreliable and should be rejected by courts. Where all potential sureties were indemnified, bail should be denied. In England courts declared agreements to indemnify sureties illegal contracts contrary to public policy, which would not be enforced by courts. While India took up the refinement of this position, England went on to declare agreements to pay bail sureties to be criminal conspiracies.

Meanwhile in the United States a circumscribed version of the position that indemnification contracts were against public policy—and therefore illegal and unenforcible—actually gained acceptance between 1870 and 1912. In 1912, however, Justice Holmes in Leary v. U.S. renounced the common law concept of bail sureties in favor of an “impersonal and wholly pecuniary” view. This terminated the anti-indemnification movement. Courts soon noted the detrimental effects of commercialism on bail.