法学院 2005—2006 学年第（一）学期期末考试
02 级《国际贸易法》（双语）试卷（A）
年级
题号
得分
一
班级
二
三
姓名
四
五
学号
六
七
八
总分
I．True or False（30%）
1．Despite the lack of international law-making machinery, states function informally as both lobbyists and
legislators.
2．The customary rules that govern treaties are now codified in the Vienna Convention on the Law of
Treaties.
3．According to the doctrine of incorporation, customary international laws are treated as adopted by a
municipal court to the extent that they are not inconsistent with prior municipal legislation or judicial
decisions of final authority.
4．To avoid any possible connotation that recognition also means approval, many governments have
adopted the Estrada Doctrine of never formally recognizing other governments.
5．An intergovernmental organization is a permanent organization set up by two or more states to carry on
activities of common interest.
6．The German Civil Code of 1896 is noted for being precise and technical.
7．According to the forum non conveniens doctrine, a court may refuse to exercise its power to hear a case
when it is either inconvenient or unfair to do so.
8．Choice of law clauses are valid and enforceable in all municipal courts so long as they were freely
entered into.
9．By giving their consent to an International Center for the Settlement of Investment Disputes (ICSID)
arbitration, the parties implicitly agree not to seek any other remedy.
10．The Dispute Settlement Body is actually the WTO General Council convened under its own Chairman
and following its own rules of procedure.
11．Diplomacy is the process of reconciling the parties to a disagreement by negotiation, mediation, or
inquiry.
12．An inquiry is a process used to determine a disputed fact or facts, but not resolve the entire dispute.
13．GATT 1947 was both a framework of rules and an institution.
14．The WTO Ministerial Council meets at least every other year to oversee the operation of the WTO.
15 The most basic goal of the General Agreement on Tariffs and Trade (GATT 1994) is the progressive
liberalization of world trade.
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16．The General Agreement on Tariffs and Trade (GATT 1994) forbids (with few exceptions) member
states from protecting their domestic industries by any means other than tariffs.
17．A free trade area is an arrangement involving both the elimination of internal tariffs and the
establishment of a common external tariff for member countries.
18．The WTO Antidumping Code forbids WTO member states from dumping (i.e., introducing the
commerce of one country into another at less than its normal value).
19．According to the United Nations Convention on Contracts for the International Sale of Goods (CISG),
the damages which a breaching party is required to pay when the injured party entered into a good faith
substitute transaction is the difference between the contract price and the price the injured party received
(or paid) in the substitute transaction.
20．The United Nations Convention on Contracts for the International Sale of Goods (CISG) deals
principally with the formation of contracts and with the rights and obligations of buyers and sellers.
II. Multiple Choices （30%）
1．The sources of international law which Article 38(1) of the Statute of the International Court of Justice
states that the court is permitted to use in settling disputes are:
a.
general principles of law.
b.
international conventions.
c.
the case law of municipal courts.
d.
All of the above.
e.
Both a. and b. above
2．Which of the following states is not required to observe a particular rule of customary international law?
a.
A persistent objector.
b.
A state that has recently acquired its independence following the division of its predecessor state.
c.
A superpower.
d.
All of the above.
e.
Both a. and b. above.
3．A state is an international person with:
a.
a government.
b.
a population.
c.
a territory.
d.
All of the above.
e.
Both a. and b.
4．The right of all states to transit the Suez and Panama canals is an example of a/an:
a.
easement.
b.
license.
c.
negative servitude.
d.
positive servitude.
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e.
profit a prendre.
5．Which of the following are goals of the United Nations?
a.
Maintenance of peace and security in the world.
b.
Promotion of economic and social cooperation.
c.
Protection of human rights.
d.
All of the above.
e.
Both a. and c. above.
6．Which of these medieval English courts handled cases of direct royal interest?
a.
Common Pleas.
b.
Equity.
c.
Exchequer.
d.
King’s Bench.
e.
Manorial.
7．Which of the following is true?
a.
Courts are held to know the law that applies in their own state.
b.
Courts are held to know the law of foreign states.
c.
Courts are held to know the rules of international law.
d.
All of the above.
e.
Both a. and c. are true.
8．In determining if a transaction is commercial for the purpose of applying the doctrine of restrictive
sovereign immunity, one should consider:
a.
the designation the parties placed on the transaction.
b.
the nature of the transaction.
c.
the purpose to which the goods involved in the transaction will be put.
d.
whether the state that is a party to the transaction is the plaintiff or the defendant.
e.
None of the above.
9．An appeal of a WTO dispute settlement panel report may be made to the Appellate Body by:
a.
any WTO member state.
b.
any party to the dispute, including parties not directly involved.
c.
only parties directly involved in the dispute.
d.
only the party charged with violating a WTO obligation.
e.
only with the authorization of the Dispute Settlement Body.
10．When the International Court of Justice hands down a decision:
a.
either party may request the ICJ to interpret its judgment when there is uncertainty or
disagreement about its meaning or scope.
b.
either party may request the ICJ to revise its decision if some new fact comes to light that was not
previously known to the Court or the party making the request.
c.
the judgment is final and without appeal.
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d.
All of the above are true statements.
e.
Only a. and b. above are true statements.
11．When a mediator provides a channel of communication (and nothing more) between the parties to a
dispute, he is:
a.
arbitrating.
b.
attempting a conciliation.
c.
providing his good offices.
d.
using diplomatic tact.
e.
None of the above.
12．State A and State B have both accepted the contentious jurisdiction of the International Court of Justice
using Article 36(2) optional clause declarations. State A’s declaration limits the jurisdiction of the ICJ to
matters involving border disputes and diplomatic immunity. State B’s declaration limits the jurisdiction of
the ICJ to matters involving border disputes and the interpretation of treaties. In a case where State A and
State B are the parties, the ICJ would have jurisdiction as to:
a.
any violation of international law.
b.
border disputes.
c.
border disputes and diplomatic immunity.
d.
border disputes and the interpretation of treaties.
e.
border disputes, diplomatic immunity, and the interpretation of treaties.
13．The Uruguay Round (1986-1994) of Multilateral Trade Negotiations was devoted to:
a.
adopting new special agreements (e.g., agriculture).
b.
creating a new World Trade Organization.
c.
expanding the GATT principles to new fields (e.g., services and intellectual property).
d.
All of the above.
e.
None of the above.
14．The WTO’s General Council also functions as the WTO’s:
a.
Appellate Body.
b.
Dispute Settlement Body.
c.
Trade Policy Review Body.
d.
Both a. and b. above.
e.
Both b. and c. above.
15．Which of the following are exceptions to the General Agreement on Tariffs and Trade’s (GATT 1994’s)
“Most Favored Nation Rule”?
a.
Member states may join together to create customs unions and free trade areas.
b.
Member states may restrict imports to protect public health, safety, welfare, and their national
security.
c.
Member states may take actions to counter dumping and subsidization.
d.
All of the above.
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e.
None of the above.
16．A new free trade area or a customs union that involves the participation of a WTO member state must
be approved by the WTO’s:
a.
Council for Trade in Goods.
b.
Director-General.
c.
General Council.
d.
Legal Advisor.
e.
Ministerial Conference.
17．WTO member states are allowed to take measures contrary to the General Agreement on Tariffs and
Trade (GATT 1994) if the measures are:
a.
designed to conserve exhaustible materials.
b.
meant to protect national treasures of artistic, historic, or archaeological value.
c.
necessary to protect human, animal, or plant life, or health.
d.
All of the above.
e.
None of the above.
18．According to the WTO’s Antidumping Code, a WTO member state must, before it can impose
antidumping duties with respect to another signatory state,
a.
consult with the WTO.
b.
show that imported goods are priced below their normal value.
c.
show that there has been an injury or the threat of injury to a domestic industry in the importing
state.
d.
All of the above.
e.
Both b. and c. above
19．According to the United Nations Convention on Contracts for the International Sale of Goods (CISG),
a party may suspend his performance once it becomes apparent that the other party will not be able to
perform a substantial part of his obligations as a result of a serious deficiency in the latter’s:
a.
ability to perform.
b.
conduct in performing.
c.
conduct in preparing to perform.
d.
creditworthiness.
e.
All of the above.
20．When a court is required to interpret the provisions of the United Nations Convention on Contracts for
the International Sale of Goods (CISG), which of the following should it look to FIRST for guidance?
a.
The CISG itself.
b.
The general principles on which the CISG is based.
c.
The rules of private international law.
d.
The Vienna Convention on the Law of Treaties of 1969.
e.
None of the above.
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III．Case Analysis (40%)
1. On December 1, Seller sent to Buyer an offer to sell 5,000 widgets to Buyer for $25 apiece. The offer
stated: "The offer will remain open until December 31." On December 10, Buyer answered: "The price is
too high, I don't accept your offer." Then, on December 15, Buyer changed his mind and sent a telegram
stating: "I accept your December 1 offer after all." Seller replied: "Your acceptance is too late, since you
already rejected the offer." In turn, Buyer answered: "The acceptance is good, since you promised to keep
your offer open until December 31." Is there a contract under the CISG?
2. Seller and Buyer entered into a written contract for the manufacture by Seller of 10,000 widgets of a
design specified by Buyer and set out in the contract. The contract also provided: "This contract may only
be modified in a writing signed by both parties." Before Seller had begun work on the widgets, Buyer and
Seller agreed by telephone to a change in the specifications for 2,500 of the widgets. Seller then produced
and delivered the 2,500 widgets as specified. Buyer refused to accept them because they did not conform to
the specifications in the original contract. Assuming CISG applies, who breached?
3. Dealer in the United States owned a cargo of 10.000 barrels of oil that had been shipped from Mexico on
January 1 for arrival in the United States on February l. On January 15, Dealer informed Buyer that the oil
was en route and they concluded a contract. On arrival, inspection showed that the oil had been
contaminated by seawater at some indeterminate time during the voyage. Assuming CISG applies, who
bears the risk?
4. Seller agreed to deliver three software programs to Buyer that are specially designed for Buyer's business.
The first was to be delivered in January, the second in February, the third in March. The program delivered
in January worked fine, but the one delivered in February was defective. It not only failed to function
properly, it also made the other two programs effectively worthless. Seller was unable to correct the defect,
and no suitable replacement could be found from another supplier. What CISG remedies are available to
Buyer?
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参考答案：
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III.
1. No. CISG Article 17 clearly states that “an offer, even if it is irrevocable, is terminated when a rejection
reaches the offeror.” Because the rejection reached the Seller before the acceptance, the offer is rejected.
2. Buyer.
Article 29(2) says that “a contract in writing which contains a provision requiring any
modification or termination by agreement to be in writing may not be otherwise modified or terminated by
agreement.” It goes on to add, however, that “a party may be precluded by his conduct from asserting
such a provision to the extent that the other party has relied on that conduct.” Here, clearly, Seller relied
on Buyer’s conduct.
3. Buyer. Article 68 says that the risk passed to Buyer at the time the contract was signed since the goods
were already in transit. If Buyer has insurance, he may have a difficult time collecting on it, since the
time when the damage occurred is uncertain. By agreement, Seller and Buyer could have agreed that the
risk passed to Buyer at the outset of the voyage.
For the purpose of asserting an insurance claim, this
would have simplified matters.
4. Under Article 73, Buyer may avoid the entire contract since the three programs are clearly
interdependent. Seller will have to take back the programs delivered in January and February (and return
the price Buyer paid), and Buyer may refuse delivery of the third (the March) program.
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