International business law

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International business law

  1. 1. International Business Law Ipca International week (2013) Cávado and Ave Univeristy Gloria Esteban de la Rosa
  2. 2. Framework of International Business Activity The Word Trade Organization (WTO) and its impact on international contracts
  3. 3. WTO  The WTO does not define or specify trade outcomes  It does not seek to manage trade flows
  4. 4. WTO  Its - - primary functions are: to be a focal point for the negotiation of binding agreements to reduce trade barriers and agree on disciplines for policies affecting international trade; and to provide a mechanism through which WTO Members can enforce these negotiated commitments
  5. 5. WTO  administers - - - the trade agreement negotiated by its Members, in particular: General Agreement on Tariffs and Trade (GATT) General Agreement on Trade In Services (GATS) General Agreement on Trade-related Intellectual Property Rights (TRIPS)
  6. 6. Seven dimension of the WTO (for understanding its operation and function) 1. 2. 3. 4. 5. 6. 7. Single undertaking Tariffs are the only permissible form of protection Non-discrimination Reciprocity Enforcement of obligations Transparency Safety valves  Non discrimination Principle: - MFN: Most favored Nation - NT: National Treatement
  7. 7. WTO MFN: - The most favored Rule requires that a product made in one Member country be treated no less favorably than a “like” (very similar) product that originates in any other country  NT: - National tratement requires that foreign produts –one they have satisfied whatever border measures are applied- be treated no less favorably than like or directly competitive domestic products 
  8. 8. European Union  What do we know about “the Market”?  The Market is not only a place from a geografical point of view  In Law the Market is a legal notion
  9. 9. Why??  Because it sens (in law) depends on the regulation given by a specific rule  This is the raison why we can speak about the common market in the case of the European Market
  10. 10. EUROPEAN MARKET  When the EEC was created (1957), the foundational Treaty recognised the idea of a “economic place” where different kind of freedoms should be granted     Freedon to lend services Free circulation of goods Free circulation of capitals Freedom of establishment
  11. 11. EUROPEAN MARKET  Non discrimination Principle  Mutual Recognition Principle  Protection of the functioning of the market  How it is possible to protect the conditions of functioning of the common market??
  12. 12. European Competition Law  Workable competition  Competition is suitable for avoiding the economic recession  But, it is also necessary to savegard the fairness
  13. 13. European Competition Law (divided into two parts)     Unfair competition Law Operator’s Practices in the market  Unfair contracts terms Anti-trust Law General Market conditions: Vertical and Horizontal Agreements
  14. 14. Exemple: distribution contracts "The distributor can deliver their commodities outside the territory defined in this contract, except when the supplier has kept previously a specific area (to himself) or the supplier has atteined that bound to another seller until de present contract expires. Neither will the reseller sell their commodities to the supplier's clients with whom they have a bond with, nor to the clients assigned in exclusivity to another reseller until the present contract expires"
  15. 15. Unfaire Contract Terms in European Law  An - attempt to re-establish bargaining power between the parties by compensatory mechanisms: imposing warranties prohibiting exemptions clauses
  16. 16. International Contracting: General Aspects International Business Law
  17. 17. International Contracting  ROME Convention 1980 on the law applicable to contractual obligations  REGULATION ROME I (17 december 2009)
  18. 18. General Aspects  IT IS NECESSARY THAT YOU HAVE ONE CONTRACT, BECAUSE THE REGULATION IS ONLY APPLICABLE IF YOU HAVE ALREADY THE CONTRACT
  19. 19. General Aspects  IN SITUATIONS INVOLVING A CONFLICT OF LAWS (art. 1)
  20. 20. Regulation 593/2008 of the European Parliament and of the Council of 17 June 2008, on the law applicable to contractual obligations (Rome I Regulation)  FREEDOM  One OF CHOICE PRINCIPLE (art. 3) Contract should be governed by the law chosen by the parties
  21. 21. Rome I Regulation  APPLICABLE LAW IN THE ABSENCE OF CHOICE (art. 4)  A contract for the sale of goods  Provision of services  Contract relating to a right in rem in immovable property  Franchise Contract etc.
  22. 22. Rome I Regulation  Autonomy of the “choice of law Contract” from the Principal Contract (art. 12)  What does it mean?
  23. 23. Rome I Regulation  Mandatory norms  Overriding mandatory provisions (art. 9)  Mandatory norms of an internal significance and mandatory norms on an international scale
  24. 24. UNO CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG) 1980
  25. 25. When is it applicable the CISG? Art. 1: “1. This Convention applies to contacts of sale of goods between parties whose places of business are in different States: a) when the States are Contracting States, or b) when the rules of private international law lead on the application of the law of a contracting State;
  26. 26. When is it applicable the CISG?  2. The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealing between, or from information disclosed by, the parties at any time before or at the conclusion of the contract”.
  27. 27. Content of the CISG Convention  Art. 4: “This Convention governs only the formation of the contract of sale and the rights and obligation of the seller and the buyer arising from such a contract.    In particular, except as otherwise expressly provided in this Convention, it is not concerned with: a) the validity of the contract or of any of its provisions or any usage; b) the effect which the contract may have on the property in the goods sold”.
  28. 28. TERMS AND CONDITIONS IN THE CONTRACTS Sale of Goods Contacts United Nations Convention on Contracts for the international Sale of Goods 1980 –CISG-
  29. 29. When you write a Sale of Goods Contract, you should take into account that:   You should specifie which are he duties of both parties, in relation with the execution of the contract How do you know which are these duties?    First of all, you should look in the CISG. Why? Becaue it is a Convention on Uniforme Law and.. It is probably applicable to your Contract
  30. 30. Sale of Goods Contract  Freedom of contract Principle. Doy you understand the meaning of this principle?  Privity of contact principle. Principle that could be defined by the contact binding force for the parties
  31. 31. The Doctrine of the implied terms and the interpretation of Contracts Implied Terms Expressed Terms
  32. 32. International Contracts of Transportation/ Carriage
  33. 33. Contracts of Carriage  Carriage by Sea   Carriage by Road  Carriage by Air  Bill of Lading Carriage by Rail  Carriage of goods by Sea
  34. 34. Carriage of Goods by Sea  The goods should be shipped to the buyer, but this duty may fall either on the Seller or the Buyer, depending on the type of contract we are dealing with
  35. 35. Carriage of Goods by Sea  The Shipper is the person who arranges for goods to be shipped  The Carrier is the party agreeing to carry the shipper’s goods
  36. 36. Bill of Lading Port of loading/departure/shipment Port of destination/discharge
  37. 37. Bill of Lading (as a document of title)  It has de effect of a document of title if it is made clear on its face that it is negotiable. It must be an “order bill” (as against a “straight bill”).  This means that the named consignee could transfer or assign the bill of lading on to any third party simply by delivery or indorsement.
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