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南开大学法学院院长左海聪教授在第三届中澳法学院院长会议上的发言

时间:2012-12-03 点击:

Collaborative research and teaching in international business law
Zuo Haicong

International business law, or the modern Lex Mercatoria originated from the medieval Lex Mercatoria. Through 11 century to 21 century, the Lex Mercatoria has been developing for hundred years. Although the contents and forms of the Lex Mercatoria have been changing from time to time during the thousand period, some basic business elements, for example, bill s of lading, insurance policies, negotiable instruments , letter of credits, partners and corporations have been maintaining since their coming into being.
    International business law, or the modern Lex Mercatoria originated from the medieval Lex Mercatoria. Through 11 century to 21 century, the Lex Mercatoria has been developing for hundred years. Although the contents and forms of the Lex Mercatoria have been changing from time to time during the thousand period, some basic business elements, for example, bill s of lading, insurance policies, negotiable instruments , letter of credits, partners and corporations have been maintaining since their coming into being.
    Thanks to the cherished legal legacy, international business law today maintains the uniformity feature of the lex Mercatoria since the Middle Ages, which results in that the teachings on international business law in different countries (including China and Australia) have many similarities. In the meantime these teachings also have differences because teachers have to take into account of his domestic legal circumstances.
    Taking the textbooks respectively by Professor Shijian Mo [1]and myself[2] as examples, this presentation attempts to explore the similarities and differences of the teachings in international business law in China and Australia firstly. Then possible collaborative teaching and research activities will be discussed.
  Thanks to the cherished legal legacy, international business law today maintains the uniformity feature of the lex Mercatoria since the Middle Ages, which results in that the teachings on international business law in different countries (including China and Australia) have many similarities. In the meantime these teachings also have differences because teachers have to take into account of his domestic legal circumstances.
    Taking the textbooks respectively by Professor Shijian Mo 1and myself2 as examples, this presentation attempts to explore the similarities and differences of the teachings in international business law in China and Australia firstly. Then possible collaborative teaching and research activities will be discussed.

Ⅰ. Similarities and differences of the teachings in international business law in Australia and china
A. Similarities and differences in structures
  Mo’s book contains 12 chapters, covering the following fields: international sale of goods under domestic law; CISG; contracts relating to intellectual property; contracts for Carriage of goods by sea, air and land; Means of payment in international trade; international banking and financing; marine insurance, aviation insurance and international trade; foreign investment law; the world trade organization; regional trade organizations; international commercial litigation and conflict of laws; Alternative means of settling international commercial disputes.
  Zuo’s book consists of 14 chapters, including: introduction; settlement of international commercial disputes; law of international agency; Unidroit Principles of International Commercial Contracts; Incoterms 2000; CISG; international transportation law; law of international transportation insurance; international payment law; international loan law; international financial leasing; international guarantee by banks; international intellectual property protection and trade; international electronic Commerce.
    Seven chapters in two books discuss the similar topics: sale, transportation, insurance, payment, intellectual property, finance, dispute settlement, which makes the two books similar in structure.
  Zuo’s book includes a general introduction chapter, which reflects a tradition of Chinese law textbooks. As normal, the introduction chapter of a Chinese law textbook discusses the concept, developments, basic principles and sources of international business law. Mo’s book covers international regulatory law, such as WTO and RTA , while Zuo’s book does not cover these contents.
  
B. Similarities and differences in the contents
(A)  Legal morms
  Both books discuss the core norms existed in uniform international business law, for example, Unidroit Principles of International Commercial Contracts, CISG, Incoterms 2000, Hague Rules, Warsaw Convention, London Institute Cargo Clauses, URC, UCP600, UNIDROIT Convention on International factoring, UNIDROIT Convention on international Financial Leasing, etc.
(B)  Case law
  Both books explores international business case law, although each book talks more about leading cases arisen from respective background. In the meantime both books deal with some leading cases judged by courts in UK and the United States and some international arbitral awards because these cases are so influential all over the world. For example we have to refer to the Liverpool case in teaching the Hague Rules, the Sztejn case in discussing fraud exception of letter of credits.
C. Similarities and differences in Basic ideas and styles
  Zuo’s book holds that international business law is an older separate branch of international law than international economic law. It regulates transnational business transactions between private individuals while international economic law governs economic relations between states. Its basic principles are party autonomy, good faith, etc. international business usages are principal and central sources, while international business treaties are important ones, international restatement and model law are supplementary ones. Mo’s book combines international regulatory law with international transaction law.
    Zuo’s book is with more civil law style while Mo’s book more common law style. The former one emphasizes more on conceptual analysis than case study, and the latter focuses more on case law.
  Both books make comparison with domestic business law when discussing specific legal issues. For example, when teaching the formation and performance of international sale contracts, they refer to Chinese and Australian Contract Laws.
  In a word, both books are more similar than different in structure, content and basic ideas.
Ⅱ. Possible collaborative teaching and research activities
  Since international business law is one of the most globalized law disciplines, it is easier than some other disciplines for colleagues in two countries to conduct collaborative teaching and research.
  The collaborative activities can be academic-oriented or practical oriented ones. Academic-oriented activities may include faculty exchanges, student exchanges, workshops, seminars, symposium, joint  L.L.M. program, etc. Practical-oriented activities may cover establishing joint center for the ascertainment of the content of foreign laws, joint consultancy center for international businessman. Among these activities, three should be elaborated in detail.
A. Exchange of Regular report on new developments of international business law
  Although the statutes of international business law, for example, conventions, codified usages and restatements, apply both in China and Australia, the interpretation and application in two countries ought to be the same due to the uniformity principle. But if we do not have frequent and adequate exchanges among judges, arbitrators and academics, the  same statutory provisions may be interpreted in a different way and the aim of uniform application of the statutes will be frustrated. This situation calls for a regular report on new development of legislations and jurisprudences by one country to the other. Academic colleagues may play a important part in this activity.
B. Joint L.L.M. Program
  Australian law schools are ideal for offering L.L.M. Program in international business law to Chinese law students for three reasons. Firstly English is the language of international business and international business law, it is a right way for Chinese law students to practice professional English to attend an L.L.M program in international business law offered by an Australian law school. Secondly, common law states have been dominating in formulating and interpreting international business law for a long time, Australian law schools, as common law schools, have traditional advantages in this kind of program. Thirdly, the 21st century is a Asian-Pacific century and the business relations between China and Australia is getting more and more interdependent, such a program can meet the increasingly demands for international business law education.
C. Establishing center for ascertainment of the content of each other’s domestic commercial law
  Although international substantive business law plays a more and more important role in solving international business disputes, domestic law, through the application of rules of conflict of laws, still play a part. However, the difficulties in ascertaining the content of foreign commercial law may lead to go back to lex fori. To establish a joint center for ascertaining foreign law between a Chinese law school and an Australian one is an effective way to solve this problem. This center can be a helpful institute both for academic and practical purposes.
  Nankai law school, which has a rich tradition in international business law, looks forward to collaborative research and teaching in international business law with Australian law schools.
 
【作者简介】
 Dr. Dean and Professor of International Law, Nankai University Law School, haicongzuo@yahoo.com.cn.

【注释】
[1] John Shijian MO, International commercial law, third edition, LexisNexis, 2004.
[2] Haicong ZUO, International Business Law, Chinese version,China Law Press, 2008.

 

 
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