1. Company A of the United States signed an exclusive license contract with Company B of China. According to this contract, Company A allows Company B to use its own fast food cooking technology (the core of which is the recipe for making fried chicken nuggets and hamburgers) developed and used in S city for many years, and allows Company B to use its trademark and trade name for free; Company B pays Company A $654.38 million within 30 days after signing the contract, and then pays 5% of Company A's sales as a technology transfer fee every month. B company's fast food restaurant did well in the first six months after its opening. Soon, Company B found that it had opened four similar fast food restaurants in S city, using different trademarks and trade names, but the food provided was almost the same as that provided by Company B, with fried chicken nuggets and hamburgers as the main business varieties. Because of the low prices of these fast food restaurants, the sales of fast food restaurants in company B have dropped rapidly. Company B sent a letter to Company A, accusing the technology it provided of lacking novelty and originality, and accordingly demanding to terminate the contract and compensate for the losses.
(1) Is the technology transferred by Company A patented or proprietary? Why?
A: The technology transferred by Company A is proprietary technology. Proprietary technology refers to a kind of technical knowledge and experience that is formed in long-term production practice, is necessary for engaging in production activities, has never been made public, and can be transferred without patent protection. It can include technical knowledge based on one or more specific formulas, technological processes or product design schemes. In this case, the formula transferred by Company A to Company B is proprietary technology, not patented technology. Because the patented technology is an open technology that the national competent authority grants the inventor or designer exclusive rights to his invention and creation according to law, the formula in this case does not have this feature.
(2) If the other four fast food restaurants legally obtain the same formula from other companies, does Company A violate the obligation of Company B to exclusively use the licensed technology in S city? Why?
A: Company A does not violate the obligation of Company B to exclusively use the transferred technology in S city. Company A allows Company B to use proprietary technology. Proprietary technology depends on the owner's confidential technology and experience, and has the de facto exclusive right. As long as others legally acquire the technology, the law does not prohibit them from using the same technology as the proprietary technology owner. The license contract in this case does not involve other fast food restaurants legally obtaining the technology from others.
(3) If the other four fast-food restaurants have obtained the technical license of Company A, but have not used the trademark and trade name of Company A, has Company A violated its obligations agreed with Company B? Why?
A: Company A violates the obligations agreed with Company B. The license contract between Company A and Company B is an exclusive license contract, that is, only the transferee has the right to use the transferred technology in a certain area and within a certain period of time. Licensor can neither use the licensed technology itself nor license the licensed technology to a third party. Company A undertakes the exclusive licensing obligation of proprietary technology. This obligation has nothing to do with trademarks or trade names. Therefore, regardless of whether other fast food restaurants use the same trademark or trade name, Company A has violated the exclusive licensing obligation.
(4) Can Company B request to terminate the contract on the grounds that the licensed technology is not novel and original? Why?
A: No, Company B licenses proprietary technology, not novelty and originality, but undisclosed and commercially valuable.
0404
1. Short answer questions (3 small questions in this big question, 5 points for each small question, *** 15 points)
1. Briefly describe the basic ways of international technology transfer (5 points)
A: There are two basic ways of international technology transfer: one is non-commercial technology transfer. Mainly refers to the technology transfer between countries or between countries and international organizations by signing economic and technological cooperation agreements. It′s on the house. One is commercial technology transfer. The so-called international technology trade. It has the characteristic of compensation. There are two main ways: first, technology trade; The second is technical input.
2. Describe the concept and characteristics of SDR. (5 points)
A: SDR is the right to use funds allocated by IMF according to the proportion of subscribed shares of member countries. It is an artificial asset, represented by the figures in the accounts of member countries of the International Monetary Fund. Its characteristics are as follows: (1) Member countries do not need to pay any other funds to the IMF after they get the SDR; (2) When necessary, member countries can use SDR unconditionally. (3) SDR is owned by member countries for a long time.
3. How does China's arbitration legislation reflect the characteristics of the combination of arbitration and mediation? (5 points)
A: China's arbitration law embodies the characteristics of combining arbitration with mediation, which are as follows: (1) The arbitration tribunal can mediate before making an award; (2) If the parties voluntarily mediate, the arbitration tribunal shall mediate; If mediation fails, a decision shall be made in time; (3) If an agreement is reached through mediation, the arbitration tribunal shall make a conciliation statement or an award according to the result of the agreement; (4) The conciliation statement and the award have the same legal effect.
Second, the essay question (this big question ***2 small questions, each small question 15 points, ***30 points)
1. Try to explain the main contents of the risk transfer system in international sales of goods in combination with the United Nations Convention on Contracts for the International Sale of Goods. (15)
A: This system includes the meaning, time and legal consequences of risk transfer.
(1) Meaning of risk transfer: The so-called risk refers to unexpected causes that can cause damage or loss of goods. Risk transfer refers to the transfer of risks, that is, the transfer of losses caused by risks. In the international sale of goods, the risk of goods should be transferred from the seller to the buyer within a certain period of time, which is the risk transfer in the international sale of goods.
(2) Time of risk transfer: The key to risk transfer lies in when the risk is transferred from the seller to the buyer, and the laws and regulations of different countries are not consistent. The risk transfer time stipulated in the United Nations Convention on Contracts for the International Sale of Goods is:
(1) If the contract involves the transportation of goods, there are two situations:
A if the seller is not obliged to deliver the goods at a specific place, the risk passes when the goods are delivered to the first carrier according to the contract.
B if the seller is obliged to deliver the goods to the carrier at a specific place, the risk will pass when the goods are delivered to the carrier at that place.
(2) If the goods are sold in transit, the time of concluding the contract is the time of risk transfer. However, if the seller knew or should have known that the goods had been lost or damaged when concluding the contract, but did not inform the buyer of this fact, the seller shall bear the responsibility for the loss or damage.
(3) The contract does not involve the transportation of goods, nor does it involve the sale of goods in transit, that is, when the goods are delivered at the seller's business place, the risk passes when the buyer accepts the goods. If the buyer fails to do so within a proper time, the risk will pass when the goods are placed at his disposal but he fails to take delivery of the goods. If the buyer is obliged to receive the goods at a place other than the seller's place of business, the risk will pass when the delivery time arrives and the buyer knows that the goods have been delivered to him at that place.
(3) Consequences of risk transfer: If the goods are lost or damaged after the risk is transferred to the buyer, the buyer's obligation to pay the price is not released, unless such loss or damage is caused by the seller's act or omission. If the seller fundamentally violates the contract, all the provisions of risk transfer will not affect the remedies that the buyer can take for this violation.
2. Describe the main contents of the double taxation agreement and its relationship with the domestic tax laws of the Contracting States. (15)
A: (1) The main contents of the double taxation agreement include:
Scope of application of the agreement. Including the effective scope of the agreement in space and time, the scope of taxes applicable to the agreement and the scope of application of the agreement to people.
(2) the division of taxation rights for various transnational income and property values.
③ Ways to avoid and eliminate international double taxation.
④ Non-discriminatory tax treatment.
⑤ Mutual consultation procedures and information exchange system.
(2) The relationship with the domestic tax laws of the Contracting State is shown in the following aspects:
(1) The functions and functions of both have their own emphases. The function of domestic tax law mainly lies in establishing the taxation right of the contracting state, and determining the scope and degree of taxation objects and procedures. The purpose of the agreement is to restrict the source tax jurisdiction of one contracting state by using conflict norms, and at the same time stipulate the measures that another contracting state should take to eliminate double taxation when exercising tax jurisdiction.
(2) The two complement each other. On the one hand, the functions of conflict norms and substantive norms in the agreement need the cooperation and supplement of relevant entity and procedural norms in the domestic tax law of the contracting state; On the other hand, the unclear clauses in the agreement allow countries to interpret according to domestic tax laws.
(3) When there is a conflict between the two, the terms of the agreement should have priority in principle, but they cannot be absolute.
Iii. Case analysis (15)
1. China and Germany are both parties to the Washington Convention and the Seoul Convention. An enterprise in China signed a joint venture contract with Berlin Water Purification Plant, a German enterprise, to build Shanghai Sewage Treatment Co., Ltd. in Shanghai. According to the joint venture contract, the total investment of Shanghai Sewage Treatment Co., Ltd. is120,000 USD, of which the registered capital is10,000 USD. The remaining $2 million needed by the company to meet the total investment is solved through project loans.
(1) If there is a dispute between investors, can it be submitted to the International Investment Dispute Settlement Center for settlement? Why?
A: No. The center only accepts investment disputes between the government of one contracting state and the people of another contracting state.
(2) In the registered capital, how much USD should Berlin Water Purification Plant account for at least?
A: The Berlin water purification plant should account for at least $2.5 million.
(3) Who is the borrower of the project loan? According to the type of project loan, explain the source of funds and repayment guarantee of project loan.
Answer: The borrower of the project loan is Shanghai Sewage Treatment Co., Ltd. If the loan is a non-recourse loan, the income of Shanghai Sewage Treatment Co., Ltd. will be the source of repayment funds and the assets of the company will be the guarantee; If the loan is a limited recourse loan, in addition to the above income and guarantee, a third party other than Shanghai Sewage Treatment Co., Ltd. is generally required to provide guarantee.
(4) Which of the above registered capital and project loans can be insured with MIGA? What risks can be insured?
A: The registered capital invested by Berlin Water Purification Plant and the loan guarantee provided can be insured in MIGA, specifically the risks of expropriation and similar measures, war and civil strife, foreign currency exchange and default.
0304
1. Short answer questions (3 small questions in this big question, 5 points for each small question, *** 15 points)
1. Briefly describe the difference between standby letter of credit and documentary letter of credit (5 points)
Answer: (1) Standby letter of credit is a guarantee method, and documentary letter of credit is a payment method.
(2) The issuer of standby letter of credit is not limited to banks, but also includes non-bank financial institutions, and the issuer of documentary letter of credit must be banks.
(3) In the case of documentary letter of credit, the documents held by the bank constitute payment guarantee, while the issuer of standby letter of credit may not enjoy payment guarantee.
(4) Documentary letter of credit must be accompanied by documents related to the goods, while standby letter of credit is not necessary.
2. Briefly describe the nature and content of the Guidelines for Handling Foreign Direct Investment. (5 points)
A: (1) The Guidelines for Handling Foreign Direct Investment is a guiding document on handling foreign direct investment under the auspices of the World Bank and is not legally binding.
(2) This guide is mainly divided into five parts:
(1) Guide 1 specifies the scope of application of the Guide.
(2) Guide 2 stipulates the approval of foreign investment.
(3) Guide 3 stipulates the treatment of foreign investment.
(4) Guide 4 stipulates the principles of expropriation and compensation.
⑤ Guide V stipulates the way to resolve disputes.
3. How to determine the legal personality of an international economic organization? (5 points)
A: (1) The legal personality of international economic organizations can be determined by inductive or objective methods.
(2) The former refers to the investigation through the basic documents of international economic organizations, while the latter refers to the investigation through the principles of international law.
(3) When it is determined in an objective way, an international economic organization should meet the following conditions before it can have legal person status: it has an organization higher than the action center of coordinating countries; Establish their own institutions; Have specific tasks; Independent of its members, able to express their wishes
Second, the essay question (this big question ***2 small questions, each small question 15 points, ***30 points)
1. On the agreed terms and their functions in international financing agreements. (15)
A: The agreed item is one of the same clauses in the international financing agreement, which refers to a series of actions or omissions that the borrower promises to undertake during the loan period. The agreed items mainly include:
(1) negative assurance clause. The borrower shall not maintain or establish any security interest for other creditors with his property and income before paying off all the loans.
(2) Equal ranking clause. The borrower guarantees that the lender with unsecured interests and other creditors with unsecured interests of the borrower are in an equal position of compensation.
(3) Financial commitment. The borrower shall regularly report its own financial status and operating conditions to the lender and abide by the agreed financial indicators.
(4) loan terms. The borrower must use all the loans for the agreed purposes.
(5) retention of assets clause. Except for daily operations, the borrower shall not sell, transfer, lease or otherwise dispose of all, most or most of its assets. The main purpose of the agreement is to enable the lender to control and supervise the borrower's business activities and ensure that the borrower has sufficient assets to repay the principal and interest on schedule.
2. How to apply the remedy of damages in the United Nations Convention on Contracts for the International Sale of Goods? (15)
A: (1) The Convention stipulates damages for breach of contract. The amount of damages that one party should bear for breach of contract should be equal to the amount of losses, including profits, suffered by the other party due to its breach of contract.
(2) The damages shall not exceed the possible losses expected or expected by the breaching party for breach of the contract based on the facts and circumstances it knew or should have known when concluding the contract.
(3) When the contract is declared invalid, if the buyer purchases substitute goods or the seller resells the goods, the compensation amount shall include the difference between the contract price and the substitute goods price, as well as the difference between the contract price and the current price without purchase or resale.
(4) The party claiming the other party's breach of contract must take reasonable measures to reduce the losses caused by the other party's breach of contract, including the loss of profits. If these measures are not taken, the breaching party may demand that the amount of losses that can be mitigated be deducted from the damages.
(5) The remedy of damages can be applied at the same time as other remedies, and the right to claim damages is not lost due to the adoption of other remedies. If the breaching party breaches the contract due to irresistible reasons, he shall not be liable for compensation.
Iii. Case analysis (15)
1. China export company and foreign import company signed a sales contract for dried bamboo shoots on March 30th, 2006. The contract stipulates that CIF terms should be adopted, and the destination port is new york. The goods should be shipped before April 15, and relevant documents should be provided in time. China Export Company shipped the goods on April 10. Due to the weather, it usually takes only 10 days to sail for more than 20 days, and the goods arrive at the destination port on May 1 day. China Export Company delivered the relevant documents on May 10. As a result of being at sea for a long time, the goods are moldy.
(1) Is China Export Company in breach of contract? Why?
A: China Export Company breached the contract because it failed to deliver the documents in time, which is one of the important obligations of China Export Company.
(2) Is China Export Corporation responsible for the moldy goods? Why?
A: China Export Corporation is not responsible. Because according to CIF terms, when the goods cross the ship's rail, the risk is transferred from the seller to the buyer. In this case, the risk of moldy goods has been transferred from China export companies to foreign import companies.
(3) Suppose the contract stipulates that "the goods will arrive at the destination port of new york no later than April 30th, 200 1 year". What obligations did China Export Company violate?
A: China Export Company has violated its obligation to deliver the goods on time.
case analysis
1. Both Party A and Party B are parties to the United Nations Convention on Contracts for the International Sale of Goods. Company A of country A signed a contract with Company B of country B to import 100 tons of white sugar from Company B. The contract adopted FOB terms (Incoterms 2000) and stipulated that the payment method was collection. Since then, Company A has signed a contract with carrier C for the carriage of goods by sea (the contract of carriage is bound by The Hague Rules), and insured F.P.A. with insurance company D. The carrier Hope arrived in country B on time to load the goods, and company B provided the goods that meet the requirements of the contract. On the way to the destination port of country A, the Hope was damaged by a typhoon. Company B entrusts the bank to collect money from Company A, and Company A refuses to pay on the grounds that the goods are lost. Please answer the following questions:
(1) In this case, should the insurance company compensate for the loss of this batch of sugar? Why?
(2) Should the carrier compensate for the loss of this batch of sugar? Why?
(3) Who is the risk of sugar loss in this case?
2. Company A of the United States signed a contract with Company B of China to buy a batch of moon cakes, and the delivery date was one week before the Mid-Autumn Festival in that year, so as to sell them to Chinese in the United States for the Mid-Autumn Festival. However, due to the hot moon cake market in China, the supply of company B was tight, and the Mid-Autumn Festival was not delivered for one week. The actual situation in the United States is that moon cakes are difficult to sell because the Mid-Autumn Festival has passed. Company A then notified Company B to declare the contract invalid.
Q: (1) Is there a legal basis for the invalidity of Company A?
(2) Company A and Company B agreed to arbitrate in China International Economic and Trade Arbitration Commission, which party lost?
What should the other party do if the losing party fails to perform the arbitration award?
3. Company A (the buyer) in country A and Company B (the seller) in country B sign a contract for importing fruits at CFR, the port of shipment.
The inspection certificate serves as the basis for negotiating the payment, but it is agreed that the buyer has the right to reinspect at the port of destination. The goods are delivered to company C for transportation after passing the inspection at the port of shipment. Due to the epidemic situation in country B at that time, when the ship arrived outside the destination port of country A, the relevant authorities of country A fumigated the ship for several days. Later, when Company A rechecked at the port of destination, it was found that all the fruits had rotted. Excuse me: (1) According to The Hague Rules, should Carrier C be liable for compensation? Why?
(Under CFR conditions, should the insurance contract be signed by the seller or the buyer?
(3) Under CFR conditions, should the insurance premium be paid by the seller or the buyer?
Verb (abbreviation of verb) case analysis problem
1. A: (1) In this case, the insurance company should not compensate. Because Company A insured F.P.A. in this case, the damage of the goods in this case was caused by a typhoon, which was a natural disaster. The typhoon in this case caused some loss of goods, but not all. F.P.A. insurance does not cover some losses caused by natural disasters, so the insurance company is not responsible for compensation. If the shipowner wants to get compensation in this case, he should take out W.P.A. insurance, because W.P.A. insurance compensates part of the losses caused by natural disasters.
(2) The carrier shall not make compensation. Because the damage to the goods in this case was caused by natural disasters, according to the provisions of The Hague Rules, the carrier is liable.
The resulting loss of goods can be exempted.
(3) As FOB terms are used in this case, the risks of the goods are transferred at the ship's side at the loading port, so the risks on the way are borne by the buyer, that is, the risks are borne by Company A. ..
2. Answer: (1) The basis for Company A to declare the contract invalid is that Company B's behavior constitutes a fundamental breach of contract. Company B's delay in delivery is a breach of contract. Moreover, because Mid-Autumn Moon Cakes are sold at a specific time, it is very difficult for Company A to sell moon cakes because of Company B's delay in delivery, which will cause losses, thus actually depriving Company A of the expected benefits under the contract, that is, Company B's delay in delivery constitutes a fundamental breach of contract. If Company B breaches the contract, Company A has the right to declare the contract invalid and demand Company B to compensate for the losses. ..
(2) Company B will lose because of fundamental breach of contract. If Company B fails to perform the arbitration award, Company A may apply to the China court for enforcement according to law.
Case 3: A: (1) According to The Hague Rules, the carrier should not be liable for compensation, because it enjoys the right to be exempted from liability due to quarantine restrictions.
(2) Under CFR conditions, the insurance contract shall be signed by the buyer.
(3) Under CFR conditions, the insurance premium shall be paid by the buyer.
Verb (abbreviation of verb) case analysis questions (1 No.,1No.5,1No.. ***25 points)
1.A company in country A exported Thai fragrant rice to a company in country B and signed a FOB contract. The company of country A applied to the inspection agency for inspection before shipment, and the inspection results showed that the goods met the quality requirements of the contract. The company of country A sent the shipping notice to the company of country B in time after the shipment, but the quality of rice decreased due to the excessive waves during the sea voyage. After the goods arrive at the destination port, the company in country B asks the company in country A to compensate for the difference. Q: Should Company A be responsible for the above losses? If this contract is concluded on CIF terms or CFR terms, who will bear the risks and losses of soaking rice in seawater respectively? (15)
2. The consignor Ma Kexin Boots and Shoes Company exported a batch of goods, which were transported by the carrier Canadian 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. Case Analysis of Shipper's Undelivered Goods V (***25 points)
1.( 15 points)
Answer key points: The seller should not be responsible for the risks and losses suffered by the goods during transportation. The risk shall be borne by the buyer. (5 points) According to Inconterms2000, in FOB terminology, the seller only bears the risk before the goods cross the ship's rail, and the buyer bears the risk after the goods cross the ship's rail, unless the seller fails to meet the contract requirements at the time of delivery. (5 points) If the transaction is conducted on CIF or CFR terms, the seller shall not be responsible for the risks and losses suffered by the goods during transportation. According to Inconterms2000, in CIF or CFR terms, the seller only bears the risk before the goods cross the ship's rail, and the buyer also bears the risk after the goods cross the ship's rail, unless the goods do not meet the contract requirements at the time of delivery. (5 points)
2.( 10)
Key points of answer: If the ship fails to make seaworthy before and at the time of sailing (5 points), the carrier shall compensate (5 points).
Ask the carrier to compensate for the losses caused. (10)