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International Business Law

International Business Law. Dr. Paulius Čerka. International law ?. 1. Public International Law. 2. Private International Law. 3. International Commercial Law. 4. Transnational Law. 5. Comparative International Law. SOURCES OF LAW FOR INTERNATIONAL BUSINESS TRANSACTIONS.

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International Business Law

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  1. International Business Law Dr. Paulius Čerka

  2. International law ? • 1. Public International Law. • 2. Private International Law. • 3. International Commercial Law. • 4. Transnational Law. • 5. Comparative International Law.

  3. SOURCES OF LAW FOR INTERNATIONAL BUSINESS TRANSACTIONS 1) INTERNATIONAL LAW: governs conduct outside nation-states 2) NATIONAL LAW: governs conduct within nation-states • home state • host state

  4. LEGAL GEOGRAPHY OF THE WORLD 1) Romano-Germanic Civil Law 2) Anglo-American Common Law 3) Islamic Law (“Shari’a”) 4) Socialist Law

  5. Public International Law problem • NO WORLD LEGISLATURE TO MAKE THE LAW • NO WORLD EXECUTIVE BRANCH TO ENFORCE THE LAW • NO WORLD COURT TO RESOLVE INTERNATIONAL DISPUTES

  6. INTERNATIONAL DISPUTE RESOLUTION • United Nations International Court of Justice (ICJ) (“Peace Palace”) • only nations can sue (“standing”) • no submit to jurisdiction • no comply with judgment • no precedent

  7. SOURCES OF INTERNATIONAL LAW • Treaties & Conventions • Custom • General Principles • Judicial Decisions & Scholarly Writings

  8. Main “commercial” conventions: • CONVENTION ON THE INTERNATIONAL SALE OF GOODS (CISG) • HAGUE CONVENTIONS • NEW YORK CONVENTION • CONVENTIONS ON THE TRANSPORT OF GOODS (CMR)

  9. CONVENTION ON THE INTERNATIONAL SALE OF GOODS (CISG) • DEVELOPED BY UNCITRAL (UN Commission on International Trade Law) • HQ in Vienna, Austria • 60 representatives from nations in every world region • 69 COUNTRIES • 2/3 of all world trade • 5 continents

  10. ICC INCOTERMS 2000 • STANDARD CONTRACT TERMS • CREATED BY ICC IN 1936 • 13 TERMS • 4 GROUPS: C, D, E, F

  11. HAGUE CONVENTIONS • SERVICE OF PROCESS • DISCOVERY • CHOICE OF COURTS AGREEMENT

  12. NEW YORK CONVENTION • arbitration 1958 • 139 countries (Gabon & Bahamas 3/07) • presumption of enforcement • award in country member of treaty • arbitration agreement in writing signed by the parties • authenticated original or certified copy

  13. Vision: A common (European) contract law • Assumption: • Plurality of systems is confusing • Conflict rules are complicated • Domestic legal system are meant for domestic transactions • Vision: • An international system deriving from the parties’ own practice

  14. Restatements • To improve lex mercatoria’s weaknesses: • Difficult to determine • Not systematic • Too vague • 1994, UNIDROIT Principles of International Commercial Contracts, 1995, PECL • Not a codification of existing principles • Systematic set of principles based on consensus among international academics

  15. UNIDROIT Principles of International Commercial Contracts • Drafted in 1994 by the International Institute for the Unification of Private Law • Establish a balanced set of rules designed for use throughout the world • No binding effect • Persuasive authority

  16. Principles of European Contract Law • Commission on European Contract Law” • 1995-2002: PECL I,II and III: http://www.cbs.dk/departments/law/staff/ol/commission_on_ecl/ • Aim of PECL • Binding for all EU public contracts • Binding for private contracts, if referred to by parties • Long term: binding for all contracts

  17. CONTRACT LAW COMPARISON: EUROPE (VS. UNITED STATES) • 1997 EUROPEAN PRINCIPLES (US = Restatement of Contracts) • NO WRITING REQUIREMENT (US = $500 or more for sale of goods) • ORAL EVIDENCE OF MODIFICATION (US = parole evidence rule)

  18. COMMON LAW • pacta sunt servanda • (contracts are binding) • good faith in contracting • consideration • (quid pro quo) CIVIL LAW • abus de droit (no enforce unfair clauses) • good faith in negotiation (culpa in contrahendo) • no consideration

  19. ADVERTISEMENTS CAN BE OFFERS (US = no) • RECEIPT AS ACCEPTANCE (US = mailbox rule)

  20. BREACH OF CONFIDENTIALITY IN NEGOTIATIONS (US = no) • NACHFRIST NOTICE = additional time for performance if seller gives notice (US = no) • LIQUIDATED/PENAL DAMAGES the same

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