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Summary - International Business Law
1 introduction to international and comparative law
what is international law?
the body of legal rules and norms that regulates activities carried beyond the legal boundaries of a single state
International lawis the body of rules and norms that regulates activities carried on outside the legal boundaries of a single state.
what are the 3 kind of international relation ships
1 states - states 2 states - persons 3 persons - persons
Public International lawregulates the rights and duties of intergovernmental organisations as between themselves.
what is public international law?
the division of international law that deals primarily with the rights and duties of states and intergovernmental organizations as between themselves
example of public international lawstate succession
what is private international law?
the part of international law that deals primarily with the rights and duties of individuals ands nongovernmental organizations in their international affairs
During the formative stage of a rule of customary lawa state can persistently object to the rule and the rule will not apply to this state
what are the 3 kind of international relation ships1 states - states
2 states - persons
3 persons - persons
what is comity?
the practice of courtesy existing between states of treating each other with goodwill and civility.
Jus cogensrelates to a norm of general international law which states must comply with.
what is territorial basis?
if a business incorporated in a different state operates a manufacturing facility in your state and violates the law of your state, your state will have the wellrecognized power under customary international law to hear and decide case against the foreign defendant.
The European Commissionis the EU’s executive branch but has legislative functions too. It drafts legislation for submission to the Council and Parliament, and once the legislation is adopted it is responsible for its implementation. The Commission also is responsible for overseeing the implementation of the treaties that establish the EU. Additionally, it represents the EU internationally.
what is National Jurisdiction?
if US companies do certain acts in foreign states, they may still be held accountable in US courts under the principle of nationality jurisdiction.
jure gestionisA state is immune if it purely performs governmental acts
what is objective territoriality jurisdiction?
if a foreign company acts in a way that directly affects a state other than their own, they may be held accountable by the other state.
jure imperiiSince the government engages in nongovernmental activities, the government is not immune
under article 38(1) of the Statue of the ICJ which sources are they permitted to use?
- international conventions
- international custom, as evidence of a general practice accepted as law
- the general principle of law recognized by civilized nations
- subject to provisions of article 59, judicial decisions and teachings of the most highly qualified publicists of various nations.
once engaged in a contract including arbitrationconsent cannot be unilaterily withdrawn
what is a treaty?
legally binding agreement between 2 or more states
There is no way to force a state to comply with a judgment. However, State A may have recourse to theSecurity Council, which may, if it deems necessary, make recommendations or decide upon measures to give effect to the judgment.
what is a convention?
legally binding agreement between states sponsored by an international organization
doctrine of transformationholds that customary international law is not applicable until clearly adopted by legislative action.The reception rules found in treaties (how international law is adopted) depend on two factors: Nature of the treaty and the constitutional structure of ratifying state
what is custom?
a long established tradition or usage that becomes customary law it it is
- usus, a consistent and recurring practice
- opinion juris sive necessitates (states must recognize the custom as being a practice that they must obligatorily follow as compared with one that they follow out of courtesy to other states.
self-executing treatycontains a term that says it is directly effective within the signatory states upon ratification,
what is persistent objection?
active rejection of a customary practice from its first observance by other states
non-self-executing treatywhich requires state parties to enact enabling legislation before it becomes effective domestically
what is Jus Cogens?
A peremptory norm of general international law, recognized by the international community of States as a norm from which no derogation is permitted.
CosmopolitansBased on human rights
International law should restrain states from violating human rights
PositivistsBased on sovereign equality of all states
International law only binding through contracts
HobbesiansStates only abide their agreements if it serves their self interest
Bases for taking jurisdictionterritorial basis (ex. business incorporated in one country, with operating facility in another, violates their rules)
nationality jurisdiction (ex. US companies that violate laws in other countries can be held accountable in US courts)
objective territorial (ex. foreign companies acting in a way that directly affects a state other than their own, can be held accountable by that other state)
Evidence of general consents found in- decisions of ICJ
- resolutions passed by General Assembly of UN
- law-making multilateral treaties
- conclusions on international conferences
- sometimes when provision is constantly repeated in bilateral treaties
Sources of International law- international conventions and treaties
- international custom
- general principles of law
- judicial decisions and teachings of publicists
Doctrine of incorporationUsed by majority of countries
Customary IL is part of domestic law to the extent that it is not inconsistent
Doctrine of transformationUsed by minority of countries
Customary IL is applicable only after it is adopted by legislation, court decision or local usage
Treaties can beSelf executing (directly effective within signatory states upon ratification)
Non self executing (enact enabling legislation before it becomes effective domestically)
Constitutional treatiesPresident has responsibility for negotiating treaties
Senate ratifies them
Act as self-executing
Executive treatiesMade solely by the President
No consent of Senate
Act as non-self-executing
3 kinds of StateIndependent
Inchoate (imperfectly formed or developed states)
Declaration doctrineHappens automatically by operation of law whenever a government can control its people and territory
Constitution doctrineRequires it to be recognised by other states and to participate in international area
Estrada doctrineForeign governments will not be explicitly recognised
Territorial sovereignityImperative for a state to exist
Exclusively exercise its powers within a particular territory
Merger ruleTreaties in effect in a former state remain in effect in its territory when it becomes part of a new state
- terminate the treaty or extend it to entire territory
- if conditions necessary to accomplish its objective have radically changed
Moving boundaries ruleWhen territory of one state shifts to another
Treaties of absorbing state become effective in absorbed territory
Clean state doctrineDecolonised country under no obligation to succeed treaties of its former colonial power
Does not apply when two states come into existence through disintegration of a predecessor
Specialised IGOsCustom unions (common external tariff
FTA (Free trade agreement; maintain individual tariffs)
Economic consultative agreement (exchange info, coordinate economic policy, promote trade cooperation)
UN goalsMaintain worldwide peace and security
Promote economic and social cooperation
Protect human rights
UN organsGeneral Assembly (deliberative organ)
Security council (maintain international peace and security)
Secretariat (administrative, responsible for reports and recommendations to SC and GA)
ICJ (judicial body)
Trusteeship council (supervising non-self-governing territories)
Latest added flashcards
- direct ship to wherever it is needed
- Charterer not allowed to engage in lawful trades, carry lawful goods only
- may charge dead freight if ship is not full
- Charterer is able to terminate the contract by virtue of cancellation clause
- Describe lay days (nr of days charterer may keep ship idle for loading goods)
- Exempt carrier from liabilities from any damages arising from certain acts
- Liability limts
- Time limits
- Himalaya clause (purports to extend the carrier's liabilities limits to third parties established by the Hague amd Hague-Visby rules
- bills of exchange are considered quasi-negotiable
- title to goods will pass only when bill of lading is negotiated
(Bearer transferred by delivery; Order transferred by negotiation)
- Evidence of contract of carriage
- Document of title for the goods
- Independent lines (seagoing common carrier operating over established routes with standard rate schedule)
- Tramp vessel (seagoing common carrier operating with states rate schedule, without established routes)
Transport goods from seller's place of business to sea/airport
Specialised knowledge of international markets, finance, transport, customs, sales, law
- Goods deposited in warehouse and examined by customs official
- In case load not big enough, wait for other goods
- Crew stows goods aboard, marks goods with leading markt, issue bill of lading to shipper
- In country B, crew will unload goods when buyer produces bill of lading
- Goods are shipped to customhouse for inspection
- Release of goods for entry in country B
- Inland carrier transports goods to buyer's place of business