国际投资法(双语课程)
《国际投资法》双语课程试卷(A)
发布时间: 2008-05-13   浏览次数: 371

Instructions:
(1) This is an open-book exam and you have 2.5 hours to finish it.
(2)Put your name and study number at the top of your answers sheet.
(3) Submit your answer sheet together with this exam sheet to the examiner.
(4) Answer in Chinese all the following questions.
 
 
    1. Bank A, a branch of a foreign bank, made a loan to Enterprise B, a Sino-foreign joint venture, and Enterprise B was guaranteed by Guarantor C, a Chinese trading company. At expiry of the term, Enterprise B repaid only part of the loan and requested an extension of the repayment period. Bank A consented to a one-month extension and the two parties reached a new agreement. However, Guarantor C was not informed of the extension. Enterprise B subsequently closed down without repaying the loan and bank A instituted legal proceedings against both enterprise B and Guarantor C. Guarantor C argued that he was not a party to the new agreement; therefore he born no liability for repayment of the loan.
Questions:
Did Guarantor C have the obligation to bear liability for the loan under the Chinese law? Why?
 
2. A Hong Kong manufacture company A established a wholly owned industrial Company B as its subsidiary in Senzheng. In July 1989, Company B ordered a batch of paper products by contract from a paper product Factory C in Sezheng with total price of HK $124,000. in October 1989, Factory C made the full delivery to Company B within the time limit of the contract. Company B only issued a receipt of the goods to Factory C and requested a two-month extension of payment from its parent Company A. Factory C agreed to the extension of payment from its parent Company A to December 1989. and the three parties made a memorandum attached to the original contract. At expiry of the term, Factory C asked for payment from Company A. Company A claimed that it had already assigned Company B to another Hong Kong industrial Company D, therefore, Company D should assume the payment of goods. Factory C instituted legal proceedings against Company A.
Questions:
(1) What were the subject matters of the assignments in this case? Do you think the later assignment affects the payments of goods?
(2) Which company was under the obligation to assume the payment of goods? Why?
(3) Was the ordering contract in this case a pure domestic economic contract or foreign economic contract?
 
3. A Chinese company and a Japanese company reached a joint venture agreement to establish a hotel at the end of 1988 in China. The total investment contributed by the two parties equaled $2 million and each party, respectively, shared 50% equity of the joint venture. In Japanese company declared bankruptcy in Japan. Later, the Japanese company entered into a new agreement with the third party for assignment of its equity of the joint venture to the latter so as to repay a debt from the assignment. The assignment agreement was submitted to the local government for approval. Having discovered what had happened, the Chinese company requested the Japanese company to cancel the assignment agreement and proposed to receive the Japanese party’s equity in the same conditions. After such request and proposal were refused by the Japanese company, the Chinese company files a lawsuit against the Hong Kong company.
Questions:
(1) Was the said assignment agreement effective under Chinese law? Why?
(2) What was the right of the Chinese party in the matter of Hong Kong party’s equity assignment under Chinese law?
 
4. An American business corporation set up a wholly owned manufacturing enterprise in China. The purpose of establishment of such an enterprise was to produce in China certain types of products and then export them to the United States and the third country.
Questions:
(1) Does the said enterprise have the foreign trade operation right under Chinese law? Why?
(2) In what situation do you think the said enterprise is required to separately apply for export license for its export transactions under Chinese law?
 
5. Please give the definitions of both equity joint venture and contractual joint venture as foreign investment in China, then make comparision of these two kinds of joint venture and point out the difference between equity joint venture and contractual joint venture.
 
6. In May 1990, a French company signed a contract with a Chinese company for the purchase of canned asparagus. Under the contract, the Chinese party should supply to the French party 300 tons of such goods at the unit price of U.S.D. 15.50 each package. In June 1990, the MOFTEC of China issued an official document for all Chinese trading companies, specifying the minimum export price of U.S.D. 19.70 each package for canned asparagus. Under such a document, the export license for asparagus would be issued only upon the minimum price. The Chinese company therefore informed the French company to revise the original price clause so as to meet the minimum export price requirement. But such a proposal was refused by the French company. The Chinese company consequently suspended the delivery of the goods on the ground of being unable to obtain the export license. The French company sought damages from the Chinese company’s liability for breach of the contract. The Chinese side argued that the provision of the minimum export price was the measure of mandatory foreign trade control by the Chinese government, which constituted the event of force majeure, therefore, it should be exempted from liability for failure to perform the contract.
Questions:
(1) What’s the definition of force majeure and how to specify the range of it?
(2) What advice would you give for dealing with such a unperformed contract?
(3) Did the situation in this case constitute force majeure, and why?