Q: 1. Is the final handling method of Jinlong Trading Co., Ltd. reasonable and why?
2. If the claim of Jinlong Trading Co., Ltd. is established, how to compensate Jinlong Trading Co., Ltd.?
Answer: 1. The final handling method of Jinlong Trading Co., Ltd. is reasonable. Nanyang Co., Ltd. failed to deliver the goods within the specified time, which constituted a breach of contract. Later, both parties failed to reach an agreement on the contract change (Dingtian Co., Ltd. agreed to postpone the delivery, but the price requirement was lowered by 65,438+00%). Under the condition that the original contract is still valid, Nanyang Co., Ltd. declares that it will no longer perform the delivery obligation, which constitutes a fundamental breach of contract, so Jinlong Trading Co., Ltd. has the right to terminate the contract. In addition, Jinlong Trading Co., Ltd. has not lost its right to claim compensation because of the relief measures such as terminating the contract. 2. Jinlong Trading Co., Ltd. shall compensate for all kinds of losses including profits suffered by Nanyang Co., Ltd. due to its breach of contract, but such compensation shall not exceed the possible losses expected or reasonably expected by the other party when signing the contract.
Twenty-seven The shipper, Thailand Manders Grain Company, exported a batch of rice, which was transported by the carrier, Mexican government commercial shipping company. After the goods are loaded, the carrier issues a marine bill of lading to the shipper, and the provisions applicable to The Hague Rules are listed on the back of the bill of lading. However, a fire broke out before the ship sailed, causing damage to the goods. After investigation, the cause of the fire was the negligence of the hired personnel authorized by the captain when heating the drainage pipeline. The shipper demands compensation from the carrier for the losses caused by the undelivered goods.
Q: Should the carrier be liable for compensation? Why?
A: The carrier, the Mexican government commercial transportation company, should be responsible for the loss. According to the Hague rules, the carrier must do his duty to make the ship seaworthy before and at the time of sailing. In this case, the accident occurred before the voyage; 2. The carrier fails to perform its duties due to the negligence of its employees; Due to the above reasons, the ship was unseaworthy, which delayed the shipping schedule and caused damage to the goods. Therefore, this case belongs to the situation that the carrier failed to fulfill the obligation of making the ship seaworthy before sailing, and it cannot be exempted from its responsibility on the grounds of the fault of managing the ship in the exemption matters.
India Golden Lion Co., Ltd. exported cashmere shawls to Germany Thomas Co., Ltd. and signed a FOB contract. Jinshi Co., Ltd. applied to the inspection agency for inspection before shipment, and the inspection results showed that the goods met the quality requirements of the contract. Golden lion co., ltd. sent a shipping notice to Thomas co., ltd. in time after shipment, but the quality of the goods decreased due to being soaked in rain during the sea voyage. After the goods arrived at the port of destination, Thomas limited liability company asked Golden Lion Limited to compensate for the difference.
Q: Should Golden Lion Co., Ltd. be responsible for the above losses?
A: Golden Lion Co., Ltd. (the seller) should not be responsible for this loss. According to Incoterms 2000, under FOB terms, the seller bears risks and expenses before the goods cross the ship's rail at the port of shipment, and the buyer bears risks and expenses after the goods cross the ship's rail at the port of shipment, unless the seller fails to meet the contract requirements at the time of delivery. In this case, the seller submitted the goods in conformity with the contract, and issued the shipping notice in time, which has fulfilled the contractual obligations and the risk has been transferred to the buyer, so the seller is not responsible for the loss.
Twenty-nine The shipper, Thailand Manders Grain Company, exported a batch of rice, which was transported by the carrier, Mexican government commercial shipping company. After the goods are loaded on the ship, the carrier issues a marine bill of lading to the shipper, and the clauses applicable to The Hague Rules are stated on the back of the bill of lading. However, before sailing, the first mate and some ships were detained by the local public security organs, which led to the failure to leave Hong Kong on time and the failure to deliver the goods on time. The shipper demands compensation from the carrier for the losses caused by the undelivered goods.
Q: Should the carrier be liable for compensation? Why?
A: The carrier should not be responsible. According to The Hague Rules, the actions of the government or competent authorities, quarantine restrictions or judicial seizure are matters exempted from the carrier's liability, and no liability is required.
30. In 2008, Quebec, Canada, decided to tax the recyclable and non-reusable canned beer sold in the province on the grounds that it was not conducive to environmental protection. In fact, almost all the canned beer sold in the market is produced by Craighoven factory in France, and the local beer is bottled. In addition, local canned drinks and cans are not taxed. Craig Heating Factory believes that Quebec's move violates WTO rules (both Canada and France are members of the WTO), and Quebec believes that the measures it takes are within the scope of general exceptions and are not bound by GATT rules, so there is controversy between the two sides.
Q: 1. Does this dispute fall within the scope of general exception? 2. Does this dispute fall within the scope of adjustment of the Agreement on Technical Barriers to Trade?
A: 1. The dispute between the two sides belongs to the adjustment scope of GATT national treatment principle. It does not fall within the scope of the general exception of GATT. The general exception does not include measures taken for environmental protection. 2. This dispute does not belong to the adjustment scope of the Agreement on Technical Barriers to Trade, and the packaging standard has nothing to do with the nature and quality of the product.
3 1. China Co., Ltd. and park geun-hye Sub-company of Korea set up a joint venture to produce medical devices, with park geun-hye of Korea as the chairman. China contributed land, plant and original equipment, and South Korea contributed 50,000 US dollars. * * * Five years after the joint venture, due to poor economic benefits, Han Fangpu contracted the enterprise to South Korea's Li Zhengxing through a contract without the consent of the Chinese side, and claimed to give the Chinese side a certain contracting fee every year. In the following three years, because the contract fees were not fulfilled and no profits were distributed to China, China sued.
Q: How to handle this case?
A: 1. Sino-foreign joint ventures should be operated by both parties. The contract that the chairman of the ROK unilaterally contracts an enterprise to an individual is against the law and should be invalid. The contract should be terminated and joint operation should be resumed. 2. Sino-foreign joint ventures shall distribute profits and bear risks in proportion to their investment. South Korea not only contracted the enterprise to others, but also kept China from making profits for a long time, which also violated the Sino-foreign Joint Venture Law. On the basis of finding out the final surplus of the enterprise, compensate the losses of the Chinese joint venture.
Five, case analysis questions (this question L5. Integral)
36. In March 2000, Company A of the United States signed an exclusive license contract with Company B of China, allowing Company B to use its technology to produce an advanced chip in China in the next five years. Any dispute shall be submitted to Beijing China International Economic and Trade Arbitration Commission.
Arbitration settlement. In April 2003, because of the huge market in China, Company A invested and set up a factory in China, using the same technology.
Produce similar chips. In May 2004, due to strategic adjustment, Company A sold its factory equipment in China to Company C, and allowed Company C to do so.
The company uses the same technology to produce chips. Please answer the following questions: (1) What is an exclusive license contract? (2) Assuming that technology is freely imported and exported, if Company B fails to register the technology contract with the competent authorities in China, is the contract valid? Why?
(3) Is it legal for Company A to use the same technology to produce similar chips in China in April 2003? Why? (4) Can Company A license Company C to use the same technology to produce chips in China in May 2004? Why? (5) If Company A and Company B only agreed on the arbitration institution and place, but not the applicable law, how to solve this problem? (6) If Company B suffers serious damage because Company C uses the technology licensed by Company A, who should Company B claim compensation from? Why?
Verb (abbreviation of verb) 36.( 1) An exclusive license contract means that in a certain area and within a certain period, the licensee has the exclusive right to use the transferred technology, and the supplier may not license the technology to any third party within the specified period, but the supplier still has the right to use the technology to manufacture and sell related products in the area. (3 points) (2) Effective. (1) Because in China, a technology trade contract with free import and export takes effect when it is established according to law, and registration is not a condition for the contract to take effect. Registration is only a means for the government to manage technology import and export activities. (2 points) (3) Law. (1) Since the contract between Company A and Company B is an exclusive licensing contract, that is to say, the contract only excludes Company A from licensing any third party to use the technology in China within the specified period, Company A still has the right to use the technology in China. (1) (4) Company A can no longer license Company C to use the same technology in China. (1) As the contract between Company A and Company B is an exclusive license contract, it means that Company A promises not to license the technology to any third person in China within five years, and Company A has not licensed Company C for more than five years. (1 min) (5) When the parties have not agreed on the substantive law applicable to their disputes, the arbitration tribunal shall choose the applicable substantive law; (1 min) The arbitration tribunal may decide the applicable substantive law through the conflict rules of relevant countries or those generally accepted by all countries. (2 points) (6) Company B claims from Company A. (1) Company C used this technology because Company A violated the contract with Company B. (1)
Verb (abbreviation of verb) case analysis problem
one
In April 2006, China Dingtian Co., Ltd. and German beveridge Co., Ltd. signed an import contract for cold-rolled coils. According to the contract, beveridge Co., Ltd. will deliver the goods before the end of June 2006. Payment will be made by letter of credit.
After the contract was signed, Dingtian Co., Ltd. opened the letter of credit on schedule. However, as of June 30, 2006, Dingtian Co., Ltd. has not received any notice from beveridge Co., Ltd. that the goods have been loaded or delayed. On July 3rd, Tian Co., Ltd. and beveridge Co., Ltd. sent faxes, saying that the scheduled cargo ship could not sail until July 15 for some reason, and delivery on time could not be guaranteed. They asked Ding Tian Co., Ltd. to extend the shipment date of the letter of credit to July 15 and the validity period to July 3 1, and asked Ding Tian Co., Ltd. to reply by fax on July 4th.
Dingtian Co., Ltd. replied as scheduled, informing Beverly Co., Ltd. that the condition for amending the L/C is to reduce the price by 10%, otherwise the contract will be cancelled.
However, Beverly Co., Ltd. disagreed and still asked Dingtian Co., Ltd. to extend the validity of the letter of credit, otherwise the goods would be sold to others.
Dingtian Co., Ltd. formally wrote to Beverly Co., Ltd. on July 5 to cancel the contract and file a claim.
Q:
1. Is the final handling method of Dingtian shares reasonable and why?
2. If the claim of Dingtian Co., Ltd. is established, how can Dingtian Co., Ltd. compensate?
Key points of the answer:
1. The handling method of Dingtian shares is reasonable. Because beveridge Company's failure to deliver the goods on time constitutes a breach of contract, and Dingtian Company refuses to extend the letter of credit and still fails to fulfill the delivery obligation, beveridge Company's behavior constitutes a fundamental breach of contract. Dingtian Co., Ltd. has the right to terminate the contract and claim compensation from beveridge Co., Ltd.
2. Beverly Co., Ltd. shall pay the difference between the price stipulated in the contract and the price of the goods at the seller's place when the seller should deliver the goods. If the buyer replenishes the goods, it shall pay the difference between the contract price and the replenishment price.
two
Yusuf India Co., Ltd. exported cashmere shawls to McLaren Germany Co., Ltd. and signed a CIF contract.
Yusuf Co., Ltd. applied to the inspection agency for inspection before shipment, and the inspection results showed that the goods met the quality requirements of the contract. Yusuf Co., Ltd. issued a shipping notice to McClellan Co., Ltd. in time after shipment, but the quality of the goods decreased due to being soaked in rain during the sea voyage. After the goods arrived at the port of destination, McClellan Co., Ltd. asked Yusuf Co., Ltd. to compensate for the difference.
Q:
1. Should Yusuf AG be responsible for the above losses?
2. Who will bear the risk of the goods being soaked in seawater?
Key points of the answer:
1. Yusuf Co., Ltd. shall not be responsible for the above losses. The products provided by Yusuf Company have passed the inspection by the commodity inspection authorities, and the buyer has been informed in time after shipment, and the obligations of the seller have been properly and fully fulfilled. At the same time, according to CIF terms, if the seller does not breach the contract, the risk of the goods crossing the ship's rail should be borne by the buyer, so the loss of the goods should be borne by McClellan Co., Ltd.
2. Under CIF terms, the buyer only needs to insure FPA. The coverage of FPA covers all losses of goods caused by natural disasters and all or part of losses of goods caused by accidents. Therefore, insurance companies can resolutely compensate for the losses caused by the decline in quality. If the carrier and its employees are at fault for the goods being rained, their losses can be borne by the carrier and McLaren Limited respectively.
three
Dongyi Co., Ltd. quoted Golden Apple International Co., Ltd. "500 metric tons of rubber, 545 US dollars per ton CFR China Port, August shipment, sight L/C payment, valid within 20 days."
Golden Apple International Co., Ltd. immediately called back "Price reduction 10%, arbitration by China International Economic and Trade Commission, other conditions accepted."
Dongyi shares did not reply.
Q: Is the contract established? Why?
The key point of the answer: the contract is not established. The price was changed due to the call back from Golden Apple, which constituted a substantial change in the offer and counter-offer.
four
Ruan Brothers sold 65,438+0,200 tons of first-class rice, and the transaction was made on a FOB basis. The goods are inspected by a notary at the time of shipment and meet the quality conditions stipulated in the contract. The seller sends the shipping advice in time after shipment. However, due to the excessive waves during transportation, rice was soaked in seawater, and its quality was affected. The goods can only be sold at the price of third-class meters at the port of destination, and the buyer asks the seller to compensate for the difference.
Q: Should the seller be responsible for the loss and why?
Key points of the answer: the same as two.
five
Shipper Pearson Beer Co., Ltd. exports a batch of goods, which are transported by the carrier Canadian Government Commercial Shipping Company. After the goods are loaded on the ship, the carrier Canadian government commercial shipping company delivers the goods to the company.
Pearson Beer Co., Ltd. issued the ocean bill of lading, with the applicable terms marked on the back.
However, the diesel engine exploded before the ship sailed, which caused the ship to fail to sail on time and damaged the goods. After investigation, the reason is that the hired personnel authorized by the captain are trying out the diesel engine.
Caused by negligence.
Q: Can the shipper Pearson Beer Co., Ltd. claim for the loss caused by the non-delivery from the carrier Canadian Government Commercial Shipping Company?
Key points of the answer:
1. The carrier, the Canadian government commercial shipping company, shall compensate for the failure to make the ship seaworthy before and at the time of sailing.
2. The carrier must do its duty to make the ship seaworthy before and at the time of sailing, which has three specific meanings:
A the ship is seaworthy before and at the time of sailing;
B. Crew, ship equipment and supplies are appropriate;
C the ship shall be suitable for the safe transportation and storage of goods.
six
Same as five.
Company A is a British company and Company B is a Sino-foreign joint venture located in Shanghai. Party A and Party B signed an international contract for the sale of goods, which stipulated that Company B would pay by letter of credit. After company B paid, the bill of lading made no mention of the goods. After investigation, it is because there is a problem that the consignee column in the bill of lading submitted by Party A to the bank does not meet the requirements for filling in the bill of lading.
Q: Would you please judge that the following points may be wrong in the consignee column? Is that the name of company A? Is that the name of company B? Or by company index? Or is it based on the index of company B?
Key points of the answer:
Company name.
eight
The Prince was delivered to the charterer at Hamburg Port on March 1990 and returned to the shipowner at Shanghai Port in China on March 5. The lease time exceeds the lease term stipulated in the charter party 10 month. Due to the rising market rent, the shipowner requires the charterer to pay the overdue rent according to the market rent when the ship should have been returned. Q: According to the provisions of China's Maritime Law, in this case, how should the return rent of overdue ships be calculated? Is it calculated according to the market rental price at the end of the lease term of 199 1 1? Is it calculated according to the market rental price of199015 at the end of the last voyage in February? Or the rental price stipulated in the contract? Or 199 1 according to the market rental price when the ship was returned on March 5?
Key points of the answer:
According to the provisions of China's maritime law, it should be calculated according to the market rent rate 199 1 1 at the expiration of the lease term.
nine
China Wanlijia Enterprise Co., Ltd. imported a batch of newsprint from Canada, 300 cases, and shipped it by sea. During transportation, some fuel leaked out due to the rupture of the oil pipe on board, which polluted the newsprint. Unloading at Qingdao Port on July 8, 2004 18, found the loss of 100 cases. The goods were insured with W.P.A. on September 25th, 2006, and he demanded compensation from the insurance company. The insurance company refused to pay compensation. Q: Is it reasonable? Why?
Key points of the answer:
It is reasonable for the insurance company to refuse compensation:
1. FPA covers all losses of the insured goods due to the following reasons: a. natural disasters, such as bad weather, lightning, tsunami, earthquake, flood, etc.;
B. All or part of the goods are lost due to vehicle detention, sinking, collision, fire, explosion and other accidents; C some losses caused by natural disasters such as bad weather at sea before and after the above accidents; D. All or part of the losses caused by one or more goods falling into the sea during loading and unloading; E reasonable expenses incurred by the insured in rescuing the goods, etc. W.P.A. insurance covers all the responsibilities of F.P.A., and also covers some losses of the insured goods caused by natural disasters such as bad weather. This loss is not covered by insurance.
2. During the claim period. The claim period shall be counted from the time when the insured goods are completely unloaded from the means of transport at the final unloading place, and the longest period shall not exceed 2 years.
ten
On the way to the freighter, the cargo hold caught fire and the fire spread to the engine room. For the safety of the cargo, the captain ordered emergency measures to inject water into the cabin to put out the fire. Although the fire was put out, it was impossible to continue sailing because of the damage of the main engine. So the captain decided to hire a tugboat to tow the cargo ship to a nearby port for maintenance, and then transport the goods to Singapore after maintenance.
According to statistics, accidents always cause the following losses:
1, 2000 cases of goods were destroyed by fire.
2.800 cases of goods were damaged by irrigation.
The main engine and some decks were destroyed by fire.
Rent a tugboat to pay some expenses.
5. Due to the maintenance of the ship, the schedule of the ship was postponed, and the crew's salary and the fuel of the ship were additionally increased.
Q:
Among the above losses, which are particular average? What are the general average?
Key points of the answer:
1 and 3 are particular average.
2, 4 and 5 are general average.
Among them, 2000 tons of peanuts burned by the fire and the main engine and some decks damaged by the fire are direct losses caused by the fire and belong to particular average.
The rest is the losses and expenses caused by the captain ordering water to extinguish the fire in order to maintain the safety of the ship and cargo, which belongs to general average.
eleven
On June 20th, 2003, China Jialitong Co., Ltd. and a certain country Hurley Co., Ltd. signed a GFR contract for purchasing 500 tons of cotton. The letter of credit issued by Jialitong Co., Ltd. stipulates that the shipment date is from February 1 day to February 15, 2004.
As the cargo "Prince Charming" chartered by Hurley Co., Ltd. was hit by a hurricane on its way to a foreign port, the loading was not completed until February 20, 2004. After obtaining the letter of guarantee issued by Hurley Co., Ltd., the carrier issued the bill of lading in accordance with the terms of the letter of credit, and the "Prince Charming" left the loading port on February 2 1.
Jialitong Co., Ltd. insured the goods with W.P.A. On February 28th, 2004, the "Prince Charming" caught fire while passing through the Daniil Strait, causing some cotton to burn. In the process of ordering fire fighting, the captain caused some cotton to get wet.
Due to the delay of the ship at the loading port, the price of cotton fell when the ship arrived at the destination, and Jialitong Company had to cut the price sharply when selling the surplus cotton, which caused great losses to Jialitong Company.
Q: 1. What is the loss of burning cotton on the way, and who should bear it? Why?
2. Can Jialitong Company recover the loss caused by the falling cotton price from the carrier? Why?
Key points of the answer:
1. This is a particular average, and the insurance company should bear the loss. The cotton burned on the way belongs to particular average, and according to CFR terminology, the risk is borne by Tong Co., Ltd., the buyer. Jialitong Co., Ltd. insured W.P.A., and the coverage of compensation included particular average, so it was borne by the insurance company. 2. Jialitong Co., Ltd. can recover the loss caused by the fall of cotton price from the carrier. Because the carrier delayed the shipment and signed the bill of lading, he should be responsible for the delay in delivery.
twelve
Country A informed country B that it was forbidden to import mutton from country B on the grounds that the hormone content of mutton exceeded the standard, which affected people's health. After investigation in country B, it was found that the hormone content of mutton sold in country A was the same as that in country B. It was also found that country A kept importing mutton of the same quality from country C. ..
Country B thinks that country A has violated the DATT principle and their interests have been violated.
Country A retorted that the measures they took did not violate the DATT principle and were allowed by general exceptions.
Q:
1 and does the practice of country A violate the principles of GATT? Violate that principle Why?
2. Is the reason for country A's rebuttal correct? Why?
Key points of the answer:
The practice of 1 and country A violates the most-favored-nation treatment principle of GATT.
The principle of most-favored-nation treatment means that a member must immediately and unconditionally give the same or similar imported products from other members preferential treatment in tariffs or other aspects.
The essence of the MFN principle is to require WTO members not to discriminate against the same or similar import and export products from or exported to different member countries, which is the cornerstone of multilateral trade rules and the legal basis on which the multilateral trading system depends.
2. The reason for country A's refutation is wrong.
With regard to the general exception, Article 20, paragraph 1 of GATT stipulates that the measures taken by contracting parties to protect the lives and health of people, animals and plants belong to the general exception.
On the one hand, country A is allowed to sell mutton of the same quality in its own country, and on the other hand, it imports mutton of the same quality from country C. Therefore, the general exception clause cannot be quoted.