international business law
TRANSCRIPT
International Business Law
Ipca International week (2013)
Cávado and Ave Univeristy
Gloria Esteban de la Rosa
Framework of International Business Activity
The Word Trade Organization (WTO) and its impact on
international contracts
WTO
The WTO does not define or specify trade outcomes
It does not seek to manage trade flows
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
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)
Seven dimension of the WTO (for understanding its operation and function)
1. Single undertaking2. Tariffs are the only
permissible form of protection
3. Non-discrimination4. Reciprocity5. Enforcement of
obligations6. Transparency7. Safety valves
Non discrimination Principle:
- MFN: Most favored Nation
- NT: National Treatement
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
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
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
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
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??
European Competition Law
Workable competition
Competition is suitable for avoiding the economic recession
But, it is also necessary to savegard the fairness
European Competition Law(divided into two parts)
Anti-trust Law
General Market conditions: Vertical and Horizontal Agreements
Unfair competition Law
Operator’s Practices in the market
Unfair contracts terms
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"
Unfaire Contract Terms in European Law
An attempt to re-establish bargaining power between the parties by compensatory mechanisms:
- imposing warranties- prohibiting exemptions clauses
International Contracting: General
Aspects
International Business Law
International Contracting
ROME Convention 1980 on the law applicable to contractual obligations
REGULATION ROME I (17 december 2009)
General Aspects
IT IS NECESSARY THAT YOU HAVE ONE CONTRACT, BECAUSE THE REGULATION IS ONLY APPLICABLE IF YOU HAVE ALREADY THE CONTRACT
General Aspects
IN SITUATIONS INVOLVING A CONFLICT OF LAWS (art. 1)
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 OF CHOICE PRINCIPLE (art. 3)
One Contract should be governed by the law chosen by the parties
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.
Rome I Regulation
Autonomy of the “choice of law Contract” from the Principal Contract (art. 12)
What does it mean?
Rome I Regulation
Mandatory norms
Overriding mandatory provisions (art. 9)
Mandatory norms of an internal significance and mandatory norms on an international scale
UNO CONVENTION ON CONTRACTS
FOR THE INTERNATIONAL SALE
OF GOODS (CISG) 1980
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;
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”.
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”.
TERMS AND CONDITIONS IN THE
CONTRACTS
Sale of Goods ContactsUnited Nations Convention on Contracts for
the international Sale of Goods 1980 –CISG-
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
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
The Doctrine of the implied terms and the
interpretation of Contracts
Implied Terms Expressed Terms
International Contracts of Transportation/
Carriage
Contracts of Carriage
Carriage by Sea
Carriage by Rail
Carriage by Road
Carriage by Air
Carriage of goods by Sea
Bill of Lading
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
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
Bill of Lading
Port of loading/departure/shipment
Port of destination/discharge
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.