发布于:2016-07-07 21:41     浏览量:5508






(a) Each member of the board of directors, when discharging the duties of a director, shall act: (1) in good faith, and (2) in a manner the director reasonably believes to be in the best interests of the corporation.

(b) The members of the board of directors or a committee of the board, when becoming informed in connection with their decision-making function or devoting attention to their oversight function, shall discharge their duties with the care that a person in a like position would reasonably believe appropriate under similar circumstances.

(c) In discharging board or committee duties a director, who does not have knowledge that makes reliance unwarranted, is entitled to rely on the performance by any of the persons specified in subsection (e)(1) or subsection (e)(3) to whom the board may have delegated, formally or informally by course of conduct, the authority or duty to perform one or more of the board’s functions that are delegable under applicable law.

(d) In discharging board or committee duties a director, who does not have knowledge that makes reliance unwarranted, is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, prepared or presented by any of the persons specified in subsection (e).


Implied terms about title

(1)   In a contract of sale, other than one to which subsection (3) below applies, there is an implied term on the part of the seller that in the case of a sale he has a right to sell the goods, and in the case of an agreement to sell he will have such a right at the time when the property is to pass.

(2)   In a contract of sale, other than one to which subsection (3) below applies, there is also an implied term that—

(a)     the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance not disclosed or known to the buyer before the contract is made, and

(b)    the buyer will enjoy quiet possession of the goods except so far as it may be disturbed by the owner or other person entitled to the benefit of any charge or encumbrance so disclosed or known.

(3)   This subsection applies to a contract of sale in the case of which there appears from the contract or is to be inferred from its circumstances an intention that the seller should transfer only such title as he or a third person may have.

(4)   In a contract to which subsection (3) above applies there is an implied term that all charges or encumbrances known to the seller and not known to the buyer have been disclosed to the buyer before the contract is made.

(5)   In a contract to which subsection (3) above applies there is also an implied term that none of the following will disturb the buyer’s quiet possession of the goods, namely—

(a)    the seller;

(b)    in a case where the parties to the contract intend that the seller should transfer only such title as a third person may have, that person;

c anyone claiming through or under the seller or that third person otherwise than under a charge or encumbrance disclosed or known to the buyer before the contract is made.


The United States, after threatening unilateral action under the much criticized Section 301 of the Trade Act of 1974, brought the matter to the WTO. The facts presented by the United States Trade Representative were sharply contested. But even if these facts had been conceded, theUnited Stateswould have faced a serious problem: neither trade law nor antitrust law provided a forum or context for examination of the whole problem. The alleged private restraints were subject to the jurisdiction of the Japan Fair Trade Commission (JFTC), but the JFTC, not unpredictably, found no antitrust violation.Japan's trade-restraining statutes, alone, were the basis for theUScase at the WTO, but they were only a piece of the picture. A dispute resolution panel concluded thatJapan's laws did not run afoul of the GATT rules. Whether the laws seriously harmed trade and competition was not relevant. The GATT's prohibitions against trade-restraining laws are narrow. They do not prohibit measures simply because they unreasonably restrain trade. The US challenge failed because (i) the trade-restraining laws of the Japanese government were not new restraints of which the United States had no notice at the time Japan agreed to reduce its trade protection (i.e. the existence and enforcement of the laws did not defeat United States' reasonable expectations) and (ii) the measures did not discriminate against foreigners; they were neutral on their face.


In order to conceptualize this world, I introduce literature on legal pluralism, and I suggest that, following its insights, we need to realize that normative conflict among multiple, overlapping legal systems is unavoidable and might even sometimes be desirable, both as a source of alternative ideas and as a site for discourse among multiple community affiliations. Thus, instead of trying to stifle conflict either through an imposition of sovereigntist, territorially-based prerogative or through universalist harmonization schemes, communities might sometimes seek (and increasingly are creating) a wide variety of procedural mechanisms, institutions, and practices for managing, without eliminating, hybridity. Such mechanisms, institutions, and practices can help mediate conflicts by recognizing that multiple communities may legitimately wish to assert their norms over a given act or actor, by seeking ways of reconciling competing norms, and by deferring to other approaches if possible. Moreover, when deference is impossible (because some instances of legal pluralism are repressive, violent, and/or profoundly illiberal), procedures for managing hybridity can at least require an explanation of why a decision maker cannot defer. In sum, pluralism offers not only a more comprehensive descriptive account of the world we live in, but also suggests a potentially useful alternative approach to the design of procedural mechanisms, institutions, and practices.


a)董事会成员履行董事义务,应 (1) 诚信行事;和(2)以其合理认定的符合公司最大利益的方式行事。







Contracts also generate general duties of care in dealing with the rights, objects of legal protection and legally protected interests of the contractual partners. Such “collateral” obligations do not normally have any relation to the content of the respective “primary” performance obligation and can therefore in principle become significant in every type of contract. The more ambitious a legal system is in the development of such contractual collateral obligations for the protection of interests already existing independent from the direct performance expectations formed by the contract, the more practical weight is given to the respective concurrence of actions rules, which give details of the relationship of contractual liability with parallel tortuous liability. The narrower the scope of contractual duties is, the narrower the overlaps with the area of application of tort law turn out to be. The consequence is in turn, that the area of application of the respective legal principles governing concurrence of actions becomes narrower. A concurrence of actions rule which grants in principle contractual liability priority of application over tortuous liability, has to keep the area of contractual liability narrow in the interest of protecting the victim, if tort law is more favorable to an injured party in an individual case than contract law.


Subject to the provisions of the Declaration and other provisions of law, a unit owner:

(1) may make any improvements or alterations to his unit that do not impair the structural integrity or mechanical systems or lessen the support of any portion of the common interest community;

 (2) may not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the common interest community, without permission of the Unit Owners Association (hereinafter called “Association”);

(3) after acquiring an adjoining unit or an adjoining part of an adjoining unit, may remove or alter any intervening partition or create apertures therein, even if the partition in whole or in part is a common element, if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the common interest community. Removal of partitions or creation of apertures under this paragraph is not an alteration of boundaries;

(4) may subdivide a unit into two or more units. Subject to the provisions of law, upon application of a unit owner to subdivide a unit, the Association shall prepare, execute, and record an amendment to the Declaration;

(5) The amendment to the Declaration must be executed by the owner of the unit to be subdivided, assign an identifying number to each unit created, and reallocate the allocated interests formerly allocated to the subdivided unit to the new units in any reasonable manner prescribed by the owner of the subdivided unit.


For much of our history, theUnited Stateswas not a lender but a borrower of law. TheUnited Statesis a common-law system; and the common law was, in its origins, essentially English. In the first part of the nineteenth century, American courts looked to English law for inspiration, to English jurists and treatise writers. Case law was peppered with citations of English cases. Notable scholar-judges, like James Kent and Joseph Story, also read, absorbed, and tried to import into American law key aspects and insights of European legal thought. The British influence declined throughout the nineteenth century; and in the twentieth century it was all but dead. American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone; but current British law almost never gets any mention. In the twentieth century German philosophy had some residual influence; and Karl Lewellyn, for one, absorbed a good deal of German legal culture. It is fair to say, however, that American lawyers and jurists have been, on the whole, extremely parochial. At some crucial points, scholars and states people did look abroad. English law influenced the shape of the workers’ compensation statutes; key phrases were lifted almost verbatim from the English act. The English act, in turn owed something to legislation adopted earlier inBismarck’sGermany. The English Companies Law of 1929 and a Securities Act of 1933 were real influences on the text of the Securities and Exchange Act. Commercial statutes similarly were indebted to British models.


 (i) In general. The Department of Commerce (hereinafter called “Department”) normally will attribute a subsidy to the products produced by the corporation that received the subsidy.

(ii) Corporations producing the same product. If two (or more) corporations with cross-ownership produce the subject merchandise, the Department will attribute the subsidies received by either or both corporations to the products produced by both corporations.

(iii) Holding or parent companies. If the firm that received a subsidy is a holding company, including a parent company with its own operations, the Department will attribute the subsidy to the consolidated sales of the holding company and its subsidiaries. However, if the Department finds that the holding company merely served as a conduit for the transfer of the subsidy from the government to a subsidiary of the holding company, the Secretary will attribute the subsidy to products sold by the subsidiary.

 (iv) Input suppliers. If there is cross-ownership between an input supplier and a downstream producer, and production of the input product is primarily dedicated to production of the downstream product, the Department will attribute subsidies received by the input producer to the combined sales of the input and downstream products produced by both corporations (excluding the sales between the two corporations).

(v) Transfer of subsidy between corporations with cross-ownership producing different products. In situations where paragraphs (b)(6)(i) through (iv) of this section do not apply, if a corporation producing non-subject merchandise received a subsidy and transferred the subsidy to a corporation with cross-ownership, the Department will attribute the subsidy to products sold by the recipient of the transferred subsidy.

(vi)Cross-ownership defined. Cross-ownership exists between two or more corporations where one corporation can use or direct the individual assets of the other corporation(s) in essentially the same ways it can use its own assets. Normally, this standard will be met where there is a majority voting ownership interest between two corporations or through common ownership of two (or more) corporations.





(试题一:合同法与侵权法,选自The interaction of contract law and tort and property law in Europe: a comparative study





3)在获得 相邻单元或相邻单元的相邻部分的 所有权后,可以拆除或改变(横亘单元间的)任何隔墙,或在该隔墙上开口,即使该隔墙的全部或部分属于“共有部分”,惟上述行为不得损害共同利益社区的结构的整体性,机械系统,或减少共同利益社区的任何部分的支撑。本款所谓隔墙的拆除或在隔墙上开口不属于对边界的改变;






(试题三:法律史,选自弗里德曼的专著:“American Law in the 20th Century”)


一 (一般规定)商务部一般认定获得补贴的公司所生产的产品存在补贴。

二 (生产相同产品的公司)如果两个(或两个以上)具有交叉所有权的公司均生产涉案商品,商务部将把其中任何一家公司或两家公司获得的补贴认定为两家公司生产的产品均存在补贴。

三 (控股公司或母公司)如果获得补贴的公司是控股公司(包括自己也经营的母公司),商务部将认定该控股公司及其各子公司的销售总额存在补贴。但是,商务部如确认控股公司仅是补贴从政府流向其子公司的渠道,商务部部长会认定该子公司销售的产品存在补贴。

四 (投入供应商)如果一家投入供应商与一家下游生产商之间具有交叉所有权,且投入品的生产主要用于下游产品的生产,商务部将会把投入生产商获得的补贴认定为两家公司生产的投入品和下游产品的销售总和中存在补贴(不包括两公司之间的买卖)。

五 (生产不同产品但具有交叉所有权的公司与公司之间的补贴转移)凡不适用本条第(b)(6)(i)(iv)款情形的,如果生产非涉案商品的一家公司获得补贴,但已将该补贴转移至另一家与其具有交叉所有权的公司,则商务部将会认定接受被转移补贴的后一家公司所生产的产品存在补贴。





Following the limited success of his action in domestic law, Mosley petitioned the European Court of Human Rights, claiming a violation of articles 8 (the right to private life) and 13 (the right to an effective remedy), and seeking to establish whether the United Kingdom had a positive obligation under article 8 to protect Mosley by providing a legal duty on the News of the World to warn him in advance to allow him to seek an injunction.

The court dealt firstly with the questions whether the applicant was still a victim of any breach of article 8 and whether he had exhausted all effective domestic remedies before petitioning the Court. On the issue of whether he was a victim, despite receiving compensation in the High Court, the European Court held that no sum of money awarded after publication of information causing the applicant humiliation could provide a remedy for his specific complaint - that no legal requirement existed which obliged the media to give advance warning to an individual of a publication which related to their private life. Hence, the applicant was a victim under the Convention. For similar reasons the court held that the applicant had not failed to exhaust effective domestic remedies (under art 34 of the Convention) by failing to appeal on the issue of exemplary damages, or by pursuing a claim for an account of profits or under the Data Protection Act 1998 for destruction of the relevant data. In the court's view, none of those remedies could have addressed the applicant's specific complaint about the absence of a legal requirement of prior notification of the publication of the article which had interfered with his right to respect for his private life.


In the Middle Ages there was a twofold organization of paramount or legal social control, namely, state control and church control. The writers of the church took their ideas of law largely from the Greek philosophers and the Roman law books. They conceived that the state existed in order to maintain justice and so to maintain the law of God. The teachers of law in the medieval universities postulated an emperor over all Christendom in its temporal aspects as the pope was over its spiritual aspects. State and church were held co-workers in maintaining justice and realizing the law of God. In time, they became rivals for the paramountcy. But typically in the Middle Ages they were expected to work together as concurrent agencies of upholding the social and moral order. The so-called restoration of the empire under Charlemagne gave an ideal to which men of the time recurred constantly in the quest of order and legal unity.

But the ideas derived from the Roman law books were not only in contact with ideas of fathers of the church, they came also in contact with ideas of the Germanic law. Thus the juristic thought of the time was a resultant. There were two ideas of law: (1) The Roman-Byzantine, academic idea of enacted law— the civil law as enactments of the emperor Justinian, and the canon law as enactments of the popes — and (2) the idea of law as authoritatively declared custom, the idea of the customs of the Germanic peoples, authoritatively ascertained and declared by reduction to writing iuxta ex-emplum Romanorum.


Historically, Chinese society preferred rule by moral suasion, rather than relying on codified law enforced by the courts. The teachings of Confucius1 have had an enduring effect on Chinese life and have provided the basis for the social order through much of the country's history. Confucians believed in the fundamental goodness of man and advocated adherence to li (propriety), a set of generally accepted social values or norms of behaviour. Education was considered the most important means for maintaining order, and codes of law were intended only to supplement li, not to replace it.

Confucians held that codified law was inadequate to provide meaningful guidance for the entire panorama of human activity, but they were not against using laws to control the most unruly elements in the society. The first criminal code was promulgated sometime between 455 and 395 BC. There were also civil statutes, mostly concerned with land transactions.

Most legal professionals were not lawyers but generalists trained in philosophy and literature. The local, classically trained, Confucian gentry played a crucial role as arbiters and handled all but the most serious local disputes. This basic legal philosophy remained in effect for most of the imperial era. The criminal code was not comprehensive and often not written down, which left magistrates great flexibility during trials. The accused had no rights and relied on the mercy of the court; defendants were tortured to obtain confessions and often served long jail terms while awaiting trial. A court appearance, at minimum, resulted in loss of face, and the people were reluctant and afraid to use the courts. Rulers did little to make the courts more appealing, for if they stressed rule by law, they weakened their own moral influence.


Article 5.2 of the Commercial Law allows the parties to choose foreign law in case one party is a foreign element. The language which allows the parties to choose foreign law is slightly different and clearer than art.759 of the Civil Code:

Parties to a commercial transaction with a foreign element may agree to apply a foreign law or international practice, provided that such foreign law or international practice is not contrary to the basic principles of Vietnamese law.”

Although the language of the Commercial Law is much clearer, it is not perfect. What constitutes “the basic principles of Vietnamese law”? A commercial contract is subject to both the general “basic principles” as set out in Ch. II Pt One of the Civil Code, and the “basic principles” as they specifically apply to a commercial transaction as set out in the Commercial Law. Both Codes contemplate that the parties are equal in the transaction and have freedom to negotiate and agree to terms. In addition, the Civil Code refers to the principle of legal compliance in “establishment and execution of civil rights and performance of civil obligations”, while the Commercial Code refers to the principle of application of common commercial practices. However, the grounds to challenge application of foreign law as incompatible with the “basic principles” of Vietnamese law would likely be narrow.


试题一 (239 words)

Few informed observers of America's civil justice system would dispute that Americans who cannot afford legal representation in court "routinely forfeit basic rights, not due to the facts of their case or the governing law, but due to the absence of counsel." Forging a solution to this serious problem, however, has proven elusive, with the United States now lagging far behind other advanced industrial democracies in ensuring access to justice for its low-income population. Litigation strategies aimed at achieving the recognition of a constitutionally based right to counsel have foundered as judges have hesitated to establish new rights that would likely be   onerous for the government to support and enforce. Meanwhile, legislators have been reluctant to commit substantial additional public funds to make a civil justice system already regarded as wasteful and dysfunctional even more litigious. Against this background, it is noteworthy that all three branches of California's politically fractured state government recently rallied around a new approach to the problem in the form of Assembly Bill (AB) 590. The legislation, signed into law in the fall of 2009, establishes pilot programs that will begin to give low-income Californians   access to counsel in "civil matters involving critical issues affecting basic human needs." Defined by three key elementslegislative as opposed to judicial line-drawing, targeted experimentation, and an emphasis on pragmatism over judicially enforceable guaranteesAB 590 represents an important new model for expanding access to justice to low-income people.


试题二 (263 words)

As all criminal justice observers know, the United States Constitution requires the suppression of evidence found by illegal police activity. Texas's statutory exclusionary rule goes even further by excluding evidence illegally procured by private citizens. Texas's expansive exclusionary rule is drastically out-of-step with the rest of the nation and very beneficial to criminal defendants.

The Texas Code of Criminal Procedure specifies that "no evidence obtained by an officer or any other person in violation of federal or state law shall be admitted in evidence against the accused on the trial of any criminal case." Under this rule, if an individual citizen violates a statutory or constitutional guarantee and turns the resulting evidence over to the police, that evidence will be inadmissible, even if the police had no connection to the misconduct.

 For example, in 2005, a priest in Grand Prairie, Texas was charged with ppossession of child pornography. Because the lurid images had been illegally procured by private actorsanother priest and a church deaconwho searched his computer without consent, the judge was forced to suppress the photos. With no evidence to rely on, state prosecutors had no choice but to dismiss the charges. Although Texas's statutory exclusionary rule decimated the state prosecution, federal prosecutors were not restricted by a private actor exclusionary rule. Federal prosecutors therefore charged the then-former priest with violation of federal child pornography laws and relied on the very same evidence that was inadmissible in Texas state court. The former priest pleaded guilty to the federal charges and was sentenced to more than four years in federal prison.

试题三(300 words)

   On July 12, 2007, Senator Russ Feingold proposed the Arbitration Fairness Act of 2007 (AFA). The bill purports to address numerous failings of current arbitration practice in the United States by amending the Federal Arbitration Act (FAA), which, along with subsequent case law interpreting it, largely shapes current arbitration practice. The FAA, passed in 1925, was initially designed to permit arbitration agreements to be enforceable across state lines. Advocates of the FAA emphasized both the business and legal advantages of increasing arbitration's usefulness. In addition to these gains, Congress hoped to confront longstanding suspicion of arbitral proceedings by promoting a policy favoring arbitration. By its terms, the FAA implies a preference for extremely limited judicial review. While it permits the courts to enforce an agreement to arbitrate, it allows review and possible reversal of an arbitral award only on narrow procedural grounds. 

For many years following the passage of the FAA, courts took a relatively modest approach in considering the scope of pre-dispute arbitration clauses. For example, in 1953 the Supreme Court refused to enforce an agreement to arbitrate, stating that the right to a judicial forum could not be waived. Over time, however, the Supreme Court articulated two doctrines that gave pre-dispute arbitration clauses a uniquely powerful position among contracts. First, the separability doctrine effectively provides the arbitration clause with "its own legal identity." A second doctrine, known as the kompetenz-kompetenz doctrine, gives the arbitrator sweeping authority to decide on matters concerning "the validity or the scope of the agreement to arbitrate." In practical terms, these doctrines combined mean that even when the contract itself apparently contains problems of formation or illegality that would normally render an entire contract invalid, the arbitration clause is still binding; an arbitrator rather than a court must evaluate the validity of the contract.

试题四(327 words

The facts of the Arar case are well-known and highly provocative. Maher Arar is a dual citizen of Canada and Syria and resides in Canada, to which he immigrated with his family when he was seventeen. In September 2002, during a layover at John F. Kennedy Airport in New York, he was detained by U.S. officials as a possible terrorist. Arar alleged that, during his detention in the United States, he was denied access to counsel and was subjected to coercive questioning and abusive conditions of detention. Arar was then transported, without his consent, to Syria. He alleged that, while in Syria, he was tortured and interrogated pursuant to instructions from U.S. officials. In October 2003, Arar was released into the custody of Canadian officials, and he returned toCanada.

Arar filed suit in the Eastern District of New York against several federal officials in their personal capacities, alleging that his Fifth Amendment rights were violated by his detention in the United States (“domestic claim”), as well as by his incarceration and torture in Syria (“Syrian claims”). The district court dismissed with prejudice Arar's Syrian claims on the grounds that “the foreign policy and national-security concerns raised [by these claims] are properly left to the political branches of government.” It also dismissed his domestic claim on the grounds that Arar had failed to show which defendants, if any, were personally involved in the alleged constitutional violations that occurred in the United States. The court gave Arar leave to “replead [this] claim without regard to [the Syrian claims] and name those defendants that were personally involved in the alleged unconstitutional treatment.”

Writing for a panel of the Second Circuit, Judge Cabranes affirmed the district court's dismissal of Arar's Syrian claims, both because an alternative remedial scheme existed and because national security and foreign relations concerns constituted “special factors” that “counsel[ed] against creation of a Bivens remedy.” He dismissed Arar's domestic detention claim for failure to state a claim.



The U.S. Supreme Court has not squarely confronted the death penalty’s constitutionality since the 1970s. In that decade, the Court actually ruled both ways on the issue. In McGautha v.California, the Court first held in 1971 that a jury’s imposition of the death penalty without governing standards did not violate the Fourteenth Amendment’s Due Process Clause. But then in 1972, in the landmark case of Furman v.Georgia, the Court interpreted the Cruel and Unusual Punishments Clause to hold that death sentences – as then applied – were unconstitutional. In that five-to-four decision, delivered in a per curiam opinion with all nine Justices issuing separate opinions, U.S. death penalty laws were struck down as violations of the Eighth and Fourteenth Amendments. The sentences of the “capriciously selected random handful” of those sentenced to die, one of the Justices wrote, are “cruel and unusual in the same way being struck by lightning is cruel and unusual.” Other Justices also emphasized the arbitrariness of death sentences, with some focusing on the inequality and racial prejudice associated with them.


Four years later, the Supreme Court reversed course yet again, approving once more the use of executions. After thirty-five states reenacted death penalty laws in the wake of Furman, the Supreme Court upheld the constitutionality of death penalty statutes in Gregg v. Georgia and two companion cases. The Court ruled that laws purporting to guide unbridled juror discretion – and requiring capital jurors to make special findings or to weigh “aggravating” versus “mitigating” circumstances – withstood constitutional scrutiny. The Court in Gregg emphasized that the Model Penal Code itself set standards for juries to use in death penalty cases. Only mandatory death sentences, the Court ruled that year, were too severe and thus unconstitutional. In its decision in Woodson v. North Carolina, the Court explicitly ruled mandatory death sentences, the norm in the Framers’era, were no longer permissible and had been “rejected” by American society “as unduly harsh and unworkably rigid.”325 words



The main features of the Anglo-American civil trial developed in the practice of the English common law courts in medieval and early modern times, as a consequence of the jury system, in which panels of lay persons were used to decide cases. Legal professionals – judges and lawyers – operated the initial pleading stage of the procedure, which was meant to identify and to narrow the dispute between the parties. If the dispute turned on a matter of law – that is, on a question such as whether the complaint stated a legally actionable claim, or whether some particular legal rule governed – the professional judges decided the case on the pleadings. If, however, the pleadings established that the case turned on a question of fact,the case was sent for resolution at trial by a jury composed of citizens untrained in the law. So tight was the linkage between trial and jury that there was in fact no such thing as nonjury trial at common law. In any case involving a disputed issue of fact, bench trial (adjudication by the judge sitting without a jury) was unknown until the later nineteenth century.


In the early days of the jury system, in the twelfth and thirteenth centuries, jurors were drawn from the close vicinity of the events giving rise to the dispute, in the expectation that the jurors would have knowledge of the events, or if not, that the jurors would be able to investigate the matter on their own in advance of the trial. Medieval jurors came to court mostly to speak rather than to listen – not to hear evidence, but to report a verdict that they had agreed upon in advance. Across the later Middle Ages, the jury ceased to function in this way for complex reasons, including cataclysmic demographic dislocations following the Black Death (the great plague) of the 1340s and the effects of urbanization in producing more impersonal social relations. By early modern times, jurors were no longer expected to come to court knowing the facts. The trial changed character and became an instructional proceeding to inform these lay judges about the matter they were being asked to decide. (359 words)



Among businessmen and lawyers familiar with commercial practice in complex transactions on both sides of the Atlantic, it is a common observation that a contract drafted in theUnited Statesis typically vastly more detailed than a contract originating inGermanyor elsewhere on the Continent.


Why are American contracts so much more detailed than European? The Belgian legal writer Georges van Hecke discussed this subject in a stimulating paper that is now a quarter-century old. He offered three explanations. Firstly, perfectionism. Van Hecke attributed to the American lawyer a drive “for perfection that is not commonly to be found inEurope. The average American businessman is prepared to pay for this perfection in the form of high fees,” while his European counterpart is not. Secondly, federalism. Van Hecke directed attention to the multiplicity of American jurisdictions. “An American lawyer, when drafting a contract, does not know in what jurisdiction litigation will arise. He must make a contract that will achieve its purpose in any American jurisdiction.” By contrast, the European lawyer “always has in mind the law of one country where the contract is being localized by both choice of law and choice of forum.” Thirdly, code law versus case law. The most intriguing of van Hecke’s suggestions is that the different American style of contracting is a manifestation of that seemingly profound difference between Continental and Anglo-American legal systems: The European private law is codified whereas the American is not. Codification, especially inGermanyand in the German-influenced legal systems, entailed not only a reorganization of the law, but a scientific recasting of legal concepts. “The European lawyer has at his command a store of synthetic concepts, such as ‘force majeure’ [an odd example, since equivalent notions exist in the common law]. Their exact meaning may not always be perfectly clear, but they do save a lot of space-consuming enumeration.” By contrast, American lawyers draft to combat “the lawless science of their law, that codeless myriad of precedent, that wilderness of single instances.” Thus, van Hecke observes, “when a European and an American lawyer want to express the same thing, an American lawyer needs far more words.” American contracts are prolix because American substantive law is primitive.(369 words)



In international law, including WTO law, it is well accepted that certain questions of a preliminary character which are independent from the merits may nonetheless stop the proceedings before findings on the merits are made. This eventuality need not be expressly stated in the governing instruments of the judicial body concerned. Questions of jurisdiction and admissibility are both part of the universe of preliminary questions that, while leaving the merits of the case untouched, have the potential to prevent or postpone a final judgment on the merits.

包括WTO 法在内的国际法领域均普遍认为:某些先决问题虽独立于案件实质争议,却可能在就案件实质争议作出裁决前阻止程序进程,这种可能性无需在有关司法机构的适用条文中明确规定。管辖权和受理权争议都属于先决问题范畴,因为将案件实质争议搁置一旁不予审理,这些先决性问题可能会阻碍或者拖延对案件实质争议作出最终判决。

The difference between jurisdiction and admissibility is a feature of the general international law of adjudication. Besides the International Court of Justice, the European Court of Human Rights (ECHR) and arbitral tribunals have also made this distinction. For example, in SGS v. Philippines, the tribunal of International Center for Settlement of Investment Disputes found that it did have jurisdiction to consider a contractual claim under the so-called “umbrella clause” of the bilateral investment treaty at issue. The tribunal, however, declined to exercise this jurisdiction, concluding that the claim was not admissible because of a forum clause in the contract stating that contractual claims must be brought to domestic courts. Importantly, neither the Statute of the International Court of Justice, nor the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, under which SGS v. Philippines was decided, explicitly includes the distinction between jurisdiction and admissibility. The Dispute Settlement Understanding of the WTO does not contain this distinction either, but that alone is not a reason to disregard the distinction out of hand. In fact, the dichotomy between jurisdiction and admissibility is embedded in the separation between the authority of the tribunal and the more general procedural relationship between the parties. The development of this distinction before the International Court of Justice, and its spillover to the ECHR and arbitral tribunals, indicates that there is a more general role for it in international dispute settlement. Analogously, in our view, the distinction between jurisdiction and admissibility should also be applied in WTO dispute settlement. (344 words)

一般国际法裁断的特征之一是对管辖权和受理权加以区分。除国际法院外,欧洲人权法院和仲裁庭也对两者加以区分。例如,在“瑞士通用公证行诉菲律宾案”中,国际投资争议解决中心仲裁庭裁定,仲裁庭对于根据该案涉及的双边投资条约中所谓的“保护伞条款”提起的纯合同诉请的确享有管辖权。但是,仲裁庭拒绝行使管辖权,并对该诉请不予受理,因为合同中的法院管辖条款已规定纯合同诉请必须诉至内国法院。更重要的是,《国际法院规约》和《解决国家与他国国民之间投资争端公约》(“瑞士通用公证行诉菲律宾案”依据该公约仲裁)均未明确规定管辖权和受理权之间的差别。WTO《关于争端解决规则与程序的谅解》也未对两者加以区分,但是不能仅凭这一点就完全无视两者之间的差异。实际上,管辖权和受理权两者之所以截然不同,原因在于仲裁庭权限与争端方之间普遍程序关系是分离的。国际法院对管辖权和受理权加以区分的司法实践发展还对欧洲人权法院和仲裁庭产生了影响。这都表明,国际争端解决中对管辖权和受理权加以区分会更为普遍。由此看来,对管辖权和受理权加以区分应当同样适用于WTO 争端解决。


试题1 [340 words]

The Supreme People’s Court (SPC) attempts to improve consistency in judicial decision making through a new legal device called the guiding cases system. According to the 2010 Guiding Cases Provisions, the SPC selects and publishes guiding cases that must be taken into account by lower courts when deciding similar cases.

All legal systems must ensure a certain consistency in the application of law. The hierarchical organization of the judiciary provides for a mechanism that guarantees consistent adjudication. Typically, the highest courts within a judicial system have appellate jurisdiction relating to appeals on points of law. If a higher court disagrees with the interpretation of the law by a lower court, it will quash or amend the decision, or else remit the case to the lower court to decide in the light of the law as stated by the higher court. The authority of the decisions of the highest courts within a judicial system has the effect of making the application of law consistent throughout the judicial system. In common law systems, a decision made by a superior court is a binding precedent that all inferior courts are required to follow.

In China, as in other continental legal systems, this doctrine of binding precedents is not applied. However, in legal systems that do not follow this doctrine, the appeal mechanism in effect renders the decisions of higher courts binding on lower courts. Lower courts follow the legal views of higher courts because their deviating decisions would be overturned on appeal by an appellate court. The Chinese four-level court system only allows one appeal to be made to a court of higher ranking, which minimizes the impact of the provincial high courts’ or the SPC’s decisions on those of lower level courts. Compared with the organization of judiciaries in other countries, there appears to be a gap in the formal legal control over lower courts by provincial high courts and the SPC. Guiding cases are designed to fill this gap, promote centralization of the judiciary and strengthen the position of the SPC.

(SourceAhl, Björn: Retaining Judicial Professionalism: The New Guiding Cases Mechanism of the Supreme People's Court. The China Quarterly, Volume 217, 2014.)

试题2 [342 Words]

The Supreme Court’s practice of revising its opinions is surprising to most people, including those who follow the Court, and naturally raises the question: Why? Why does the Court make mistakes notwithstanding the talent of its personnel and the intensity of its internal review procedures? Why does the Court not do more to eliminate mistakes prior to publication of the slip opinions? And why does the Court insist on correcting all of its mistakes? The answers to some of these questions are quite obvious, but to others far less so.

One obvious answer is that everyone needs a good editor, and Supreme Court Justices are no exception, even those who are especially talented writers. In internal Court correspondence, Chief Justice Stone described himself as “probably the most ineffective proof reader who ever sat on the Bench.” And the central role of the opinion, as the Court’s ultimate work product, makes it essential to write and edit carefully, which includes review and revision.

Less obvious is why mistakes persist after publication of the slip opinion. After all, the structure of opinion writing within the Court provides ample opportunity for close scrutiny that invites revision. …The more elusive inquiry is therefore why, given all this exceedingly intense and skilled scrutiny, revision is still necessary after the Court’s opinion is first announced and published. As the Reporter himself acknowledged in private correspondence to the Chief Justice in 1984, by making a “considerable number of corrections and editorial changes in the Court’s opinions after their announcement and prior to their publication in the United States Reports . . . we actually operate a system that is completely at odds with general publishing practices.”

The most fundamental reason is that mistakes are inevitable and will persist even after the rigorous reviewing process. The Justices and their chambers can, of course, reduce the number of mistakes by being more rather than less careful and by being more rather than less skilled. But no matter how much time and skill are applied, the possibility of mistakes cannot be eliminated.

(Source: Richard J. Lazarus: The (Non)finality of Supreme Court Opinions. 128 Harvard Law Review, 2014. pp. 540-625.)

试题3 [300 words]

As in most writing on damages, the rights-based literature is rarely explicit about whether the law it purports to explain is a law that creates legal duties to pay damages or merely a law that provides for court-imposed liabilities——or whether the distinction even makes a difference. Rights-based theorists frequently describe damages law using the language of liabilities. But these theorists' explanations for that law assume and justify legal duties to pay damages. The explanations fall into two main groups. In the first group are explanations that suppose wrongdoers should pay damages for the same reason that they should comply with their primary legal duties. The reason is the same, according to this view, because the original duty transforms itself, at the moment of injury, into a duty to pay damages. For rights-based theorists who adopt this explanation, the original right that was breached lives on, albeit in a different form. The second group of rights-based explanations of damages supposes that committing a wrongful injury gives rise, on the basis of a complex notion of responsibility, to a new and different “duty to repair.”  Both of these approaches thus explain damages law using the same kinds of individualist arguments that their defenders use to explain primary duties to perform contracts, not to injure others, and so forth. Indeed, rights-based theorists must explain damages in terms of individualist duties if they wish to provide a general theory of private law rather than merely a theory of primary duties. And like the individualist duties that explain primary legal duties, the individualist duties that, in this view, explain duties to pay damages arise from prelitigation facts——in this case the fact of a wrongful injury. It follows that, at least in principle, wrongdoers should pay damages immediately upon the commission of a wrong.

(Source: Stephen A. Smith: Duties, Liabilities, and Damages, 125 Harv. L. Rev., 2012. pp. 1730-1731)

试题4 [303 words]

Each area of private law also has direct or indirect connections to others. The law of property informs the law of torts because one of the ways in which one person can wrong another is by interfering with the ownership, or use and enjoyment, of land and chattels. It follows that one will sometimes need to know the rules of property in order to know whether a tort has been committed. One will also need to take into account changing conceptions of property to make sense of tort law. A number of tort doctrines once hinged on the idea that a wife's services counted as something in which her husband had a property interest. This patriarchal notion was the source of the actions for loss of consortium and alienation of affections. The eventual abandonment of this application of the concept of property had direct implications for tort law, though it did not have singular entailments. Courts and legislatures were faced with the question of whether to scrap these torts or to reconceptualize them as claims for interferences with spousal relations. 

Even though tort is to some degree dependent on property, tort is not beholden to property any more than it is beholden to contract, or any more than property and contract are beholden to tort. Some tort claims vindicate rights or interests that property and contract refuse to treat as possessory or contractual rights——for example, tortious interference with commercial advantage.  Sometimes courts applying tort law reserve the right not to recognize what are, so far as the law of contract is concerned, valid waivers of liability for tortious conduct. Again, the departments and concepts of private law interact in complicated ways, and a lot of what legal reasoning should involve is thinking through these connections and what they entail for particular cases.

 (Source: John C. Goldberg, Introduction: Pragmatism and Private Law, 125 Harv. L. Rev., 2012. pp. 1654-1655)