Summary International Business Law

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ISBN-10 0273768611 ISBN-13 9780273768616
197 Flashcards & Notes
7 Students
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This is the summary of the book "International Business Law ". The author(s) of the book is/are Don Mayer. The ISBN of the book is 9780273768616 or 0273768611. This summary is written by students who study efficient with the Study Tool of Study Smart With Chris.

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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 law 
    is 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 law 
    regulates 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 law
    state 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 law 
    a state can persistently object to the rule and the rule will not apply to this state
  • what are the 3 kind of international relation ships
    1 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 cogens 
    relates 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 Commission 
    is 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 gestionis
    A 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 imperii
    Since 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?

    1. international conventions
    2. international custom, as evidence of a general practice accepted as law
    3. the general principle of law recognized by civilized nations
    4. 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 arbitration
    consent 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 the 
    Security 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 transformation
    holds 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 

    1.  usus, a consistent and recurring practice 
    2. 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 treaty
    contains 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 treaty
    which 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. 

  • Cosmopolitans
    Based on human rights
    International law should restrain states from violating human rights
  • Positivists
    Based on sovereign equality of all states
    International law only binding through contracts
  • Hobbesians
    States only abide their agreements if it serves their self interest
  • Bases for taking jurisdiction
    territorial 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 incorporation
    Used by majority of countries
    Customary IL is part of domestic law to the extent that it is not inconsistent
  • Doctrine of transformation
    Used by minority of countries
    Customary IL is applicable only after it is adopted by legislation, court decision or local usage
  • Treaties can be
    Self executing (directly effective within signatory states upon ratification)
    Non self executing (enact enabling legislation before it becomes effective domestically)
  • Constitutional treaties
    President has responsibility for negotiating treaties
    Senate ratifies them
    Act as self-executing
  • Executive treaties
    Made solely by the President
    No consent of Senate
    Act as non-self-executing
  • 3 kinds of State
    Independent 
    Dependent
    Inchoate (imperfectly formed or developed states)
  • Declaration doctrine
    Happens automatically by operation of law whenever a government can control its people and territory
  • Constitution doctrine
    Requires it to be recognised by other states and to participate in international area
  • Estrada doctrine
    Foreign governments will not be explicitly recognised
  • Territorial sovereignity
    Imperative for a state to exist
    Exclusively exercise its powers within a particular territory
  • Merger rule
    Treaties in effect in a former state remain in effect in its territory when it becomes part of a new state
    2 exceptions
    - terminate the treaty or extend it to entire territory
    - if conditions necessary to accomplish its objective have radically changed
  • Moving boundaries rule
    When territory of one state shifts to another
    Treaties of absorbing state become effective in absorbed territory
  • Clean state doctrine
    Decolonised 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 IGOs
    Custom unions (common external tariff
    FTA (Free trade agreement; maintain individual tariffs)
    Economic consultative agreement (exchange info, coordinate economic policy, promote trade cooperation)
  • UN goals
    Maintain worldwide peace and security
    Promote economic and social cooperation
    Protect human rights
  • UN organs
    General 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)
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Time charter party
- Hire monthly
- direct ship to wherever it is needed
- Charterer not allowed to engage in lawful trades, carry lawful goods only
Voyage charter parties
- Owner agrees to provide ship at named port at specified time and to carry goods to contract destination
- 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)
The Hague and Hague-Visby Rules
- Require carrier transporting goods under bill of lading to exercise due diligence
- 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
Differences order bill vs bills of exchange
Bill of lading obtained by fraud and endorsed to bona fide purchaser for value will not give its owner the title to the goods described on the bill
- bills of exchange are considered quasi-negotiable
- title to goods will pass only when bill of lading is negotiated
Similarities order bill vs bills of exchange
May be made out to bearer or to the order of a named party
(Bearer transferred by delivery; Order transferred by negotiation)
Purposes of bill of lading
- Carriers receipt for goods
- Evidence of contract of carriage
- Document of title for the goods
3 sorts of common carriers
- Conference line (association of seagoing carriers operating on established routes; joined together to offer common freight rates)
- 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)
Inland carriage
Seller responsible (except for Ex Works)
Transport goods from seller's place of business to sea/airport
Freight forwarders
Firms that make or assist in making of shipping arrangements
Specialised knowledge of international markets, finance, transport, customs, sales, law
A typical transportation
- Goods are picked up at seller's place by inland carrier, transported to seaport for carriage abroad
- 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