International Business Law International Business Law Prof. M.E. StormeProf. M.E. Storme

2017-20182017-2018

SOURCESSOURCESinternational law v. international law v. international sourcesinternational sources

Distinction:Distinction:- Rules of international originRules of international origin- Rules of international public law (Rules of international public law (ius gentiumius gentium)) International public law distinguished from:International public law distinguished from:

- (national) public law (constitutional, - (national) public law (constitutional, administrative, criminal, tax, ...)administrative, criminal, tax, ...)- private law including « international private - private law including « international private law »law »

SOURCESSOURCESthe international legal order (ius the international legal order (ius

gentium)gentium)- Classic view: international legal order as Classic view: international legal order as

legal order between states and/or legal order between states and/or international organisations / dualisminternational organisations / dualism

- Nuance 1: private organisations as Nuance 1: private organisations as players; access of private parties to players; access of private parties to international organisations (incl. courts)international organisations (incl. courts)

- Nuance 2: direct effect of rules of Nuance 2: direct effect of rules of international law in the internal (national) international law in the internal (national) legal order (if accepted by national legal order (if accepted by national constitutional law)constitutional law)

SOURCESSOURCESsources of international public sources of international public

lawlaw (Formal) sources of international public (Formal) sources of international public

law (ius gentium):law (ius gentium):- TreatiesTreaties- Customary law, general principles of lawCustomary law, general principles of law- Decisions of international organisationsDecisions of international organisations- Soft lawSoft law

SOURCESSOURCESTreaties (categories)Treaties (categories)

- parties: bilateral, multilateralparties: bilateral, multilateral- domain: commerce, war & peace, diplomatic relations, domain: commerce, war & peace, diplomatic relations,

foreigners ...foreigners ...- legal form: legal form: traité-convention traité-convention (mutual obligations) /(mutual obligations) / traité-loi traité-loi

(introducing legal rules).(introducing legal rules).Some important types:Some important types:* FNC (friendship navigation commerce); free trade zone or * FNC (friendship navigation commerce); free trade zone or

economic union, customs, GATT and other WTO treaties ...economic union, customs, GATT and other WTO treaties ...* founding international organisations* founding international organisations* investment treaties, state loans* investment treaties, state loans* judicial cooperation (e.g. extradition, evidence)* judicial cooperation (e.g. extradition, evidence)* « demarcation » e.g. double taxation avoidance treaties; * « demarcation » e.g. double taxation avoidance treaties;

jurisdiction and enforcement; conflict of law rulesjurisdiction and enforcement; conflict of law rules* unification of law; minimum standards (esp. human rights)* unification of law; minimum standards (esp. human rights)

SOURCESSOURCESTreaties: unification of lawTreaties: unification of law

Domain:Domain:- either limited to transnational relationships (international sales, either limited to transnational relationships (international sales,

international transport, ...)international transport, ...)- or also applicable to domestic ones (e.g. bills of exchange) or also applicable to domestic ones (e.g. bills of exchange) Sometimes different versions (creating confusion)Sometimes different versions (creating confusion) How to interpret:How to interpret:- General rules in the Vienna Convention in the Law of TreatiesGeneral rules in the Vienna Convention in the Law of Treaties- In many conventions a clause demanding autonomous In many conventions a clause demanding autonomous

interpretation (eg art. 7 CISG, see Ch. 4)interpretation (eg art. 7 CISG, see Ch. 4)- usually no institution with the authority to give a uniform usually no institution with the authority to give a uniform

interpretation interpretation - exceptions: Benelux Court, Court of Justice EU, OHADA exceptions: Benelux Court, Court of Justice EU, OHADA

Common Court (Abidjan), etc.Common Court (Abidjan), etc.- exchange of information (Lugano Treaty, CLOUT and CISG exchange of information (Lugano Treaty, CLOUT and CISG

Digest, …)Digest, …)

SOURCESSOURCESSome substantive concepts Some substantive concepts

Standards of treatment of foreign Standards of treatment of foreign goods/services/persons:goods/services/persons:

- minimum standard or equitable treatmentminimum standard or equitable treatment- equivalent (« national ») treatment equivalent (« national ») treatment - MFN (most favoured nation) clause – with the MFN (most favoured nation) clause – with the

possible exception of « preferential treatment »possible exception of « preferential treatment »

Treaties: effects/sanctionsTreaties: effects/sanctions Effects in the international legal order: Effects in the international legal order: - international liability of states international liability of states - international jurisdiction, i.a.: international jurisdiction, i.a.: - International Court of Justice (estalblished by the UN Charter; jurisdiction in pricniple only International Court of Justice (estalblished by the UN Charter; jurisdiction in pricniple only

based on consent)based on consent)- Permanent Court of Arbitration (established by the Hague Convention for the Pacific Permanent Court of Arbitration (established by the Hague Convention for the Pacific

Settlement of International Disputes 1899/1907, 119 members)Settlement of International Disputes 1899/1907, 119 members) Possible sanctions:Possible sanctions:- determined by treaty provisionsdetermined by treaty provisions- customary law: prohibition of boycott (unless an customary law: prohibition of boycott (unless an

obligation to boycott is imposed) (in practice obligation to boycott is imposed) (in practice business parties may be caught between conflicting business parties may be caught between conflicting policies imposing boycot c.q. prohibiting to take part policies imposing boycot c.q. prohibiting to take part in it) in it)

- (rarely) binding dispute settlement, eg DSU in WTO(rarely) binding dispute settlement, eg DSU in WTO

Treaties: effectsTreaties: effects Effects in the domestic / national legal order, Effects in the domestic / national legal order,

before the domestic courts (so-called « direct before the domestic courts (so-called « direct effect  »). Conditions determined by national effect  »). Conditions determined by national constitutional law, usually the following:constitutional law, usually the following:

- either implemented or directly applicable by - either implemented or directly applicable by virtue of another rule (adde: doctrine of (vertical) virtue of another rule (adde: doctrine of (vertical) « direct effect » of EU-Directives)« direct effect » of EU-Directives)

- content of the rule must be sufficiently precise - content of the rule must be sufficiently precise and unconditional to be applied without further and unconditional to be applied without further measures of implementation (self-executing) (NB. measures of implementation (self-executing) (NB. This is a question which also arises within a legal This is a question which also arises within a legal order, whether a rule is self-executing or not)order, whether a rule is self-executing or not)

- Examples in EU (member st. Legal order): many Examples in EU (member st. Legal order): many rules in EU-Treaties. Not: GATT (rules in EU-Treaties. Not: GATT (C-149/96, C-149/96, Portugal v. CouncilPortugal v. Council; C-377/02 Van Parys); C-377/02 Van Parys)

SOURCESSOURCES International customary law International customary law ConditionsConditions- objective element: (widespread) general practiceobjective element: (widespread) general practice- opinio iurisopinio iuris: accepted as law : accepted as law Often disputed ! Often disputed ! Sometimes extended to « general principles of law » as Sometimes extended to « general principles of law » as

a new kind of natural lawa new kind of natural law ImportanceImportance- limited in the field of international economic lawlimited in the field of international economic law- more important in other fields (rights & immunities of more important in other fields (rights & immunities of

states; war & peace; human rights (aspects of), …)states; war & peace; human rights (aspects of), …)

SOURCESSOURCESDecisions of Decisions of

internat.organis.internat.organis. Sometimes binding:Sometimes binding:- Decisions concerning the internal operation of an IO- Decisions concerning the internal operation of an IO- Binding force provided by treaty (see - Binding force provided by treaty (see supra supra on the on the

conditions of direct effect) conditions of direct effect) - e.g. resolutions under Ch. VII UN Charter (Security - e.g. resolutions under Ch. VII UN Charter (Security

council). According to art. 103 UN Charter priority council). According to art. 103 UN Charter priority over any other rule (thus even ECHR).over any other rule (thus even ECHR).

- e.g. decisions of EU institutions within their - e.g. decisions of EU institutions within their competence (as to direct effect, instruments differ competence (as to direct effect, instruments differ – regulations, directives, decisions, ...) -– regulations, directives, decisions, ...) -

If not binding: = soft lawIf not binding: = soft law

SOURCES - « Soft law »SOURCES - « Soft law » Types:Types:- non-binding decisions of International Organisationsnon-binding decisions of International Organisations- non-binding treaties (gentleman’s agreements)non-binding treaties (gentleman’s agreements)- codes of conduct; recommendations; ‘principles’codes of conduct; recommendations; ‘principles’- Still softer: legislative guides, …Still softer: legislative guides, …- The ILC (international law commission – expert group The ILC (international law commission – expert group

of the UN) has prepared many drafts (treaties, of the UN) has prepared many drafts (treaties, articles, principles) – some have been enacted as articles, principles) – some have been enacted as treatiestreaties

(Possible) effects:(Possible) effects:not legally binding; but used for interpretation of not legally binding; but used for interpretation of binding instruments; political consequences; moral binding instruments; political consequences; moral effects; commercial pressure; effects; commercial pressure; de lege ferendade lege ferenda (model (model for future rules), chosen as rules by the parties for future rules), chosen as rules by the parties

SOURCESSOURCESThe national legal orderThe national legal order

National law includes international public law (and National law includes international public law (and other international sources) as far as « received » other international sources) as far as « received » (conditions for reception and possible « direct effect » (conditions for reception and possible « direct effect » are determined by national constitutional law)are determined by national constitutional law)

National public law and private law may have sources National public law and private law may have sources of international origin (eg human rights, uniform laws, of international origin (eg human rights, uniform laws, ...)...)

Application of foreign national law in transnational Application of foreign national law in transnational relationships ? relationships ?

Distinction between public law and private law < next Distinction between public law and private law < next slidesslides

SOURCESSOURCES Effects of national / foreign public lawEffects of national / foreign public law

Public law includes: administrative law, tax law, criminal law, Public law includes: administrative law, tax law, criminal law, competition law and other economic public law (e.g. import competition law and other economic public law (e.g. import & export regulation, valuta exchange regulation; supervision & export regulation, valuta exchange regulation; supervision of financial institutions and markets, expropriation, ...) of financial institutions and markets, expropriation, ...)

Starting point: each country applies only its own public law Starting point: each country applies only its own public law according to its own criteria of applicabilityaccording to its own criteria of applicability

- application is usually territorial, sometimes extraterritorial application is usually territorial, sometimes extraterritorial (e.g. taxes, competition,…). In how far accepted by (e.g. taxes, competition,…). In how far accepted by international law ?international law ?

- demarcation by treaties (e.g. double tax avoiding treaties; demarcation by treaties (e.g. double tax avoiding treaties; criminal jurisdiction, etc.) criminal jurisdiction, etc.)

Exceptions (states applying foreign public law): cooperation Exceptions (states applying foreign public law): cooperation treaties in matters of public law, e.g. assistance in enforcing treaties in matters of public law, e.g. assistance in enforcing criminal sanctions, collecting taxes, extradition, …criminal sanctions, collecting taxes, extradition, …

SOURCESSOURCESThe (national) ’international private The (national) ’international private

law’law’ Private law = property, contract (incl. labour), Private law = property, contract (incl. labour),

tort, restitution, company law, trust, intellectual tort, restitution, company law, trust, intellectual property, ….property, ….

Application of private law in transnational Application of private law in transnational relationships is determined by rules of « IPL ». relationships is determined by rules of « IPL ».

Basically 2 types of rules of IPL:Basically 2 types of rules of IPL:- conflict rules (national or uniform)conflict rules (national or uniform)- substantive rules of IPL (mostly uniform rules) substantive rules of IPL (mostly uniform rules)

(often applied only after the conflict rule)(often applied only after the conflict rule)See topic 2.See topic 2.

PLAYERSPLAYERSStates as rule-makers States as rule-makers

State as legislator / rulemaker (government)State as legislator / rulemaker (government)- direct (national sources of national law)direct (national sources of national law)- creating international sources: concluding creating international sources: concluding

treaties, etc. treaties, etc. - ratifying and implementing international sources ratifying and implementing international sources

(incl. uniform law)(incl. uniform law)- founding of, and taking part in international founding of, and taking part in international

organisationsorganisations State as party to conventions of international State as party to conventions of international

public law engaging itself in obligations (e.g. public law engaging itself in obligations (e.g. commodity agreements, bilateral or multilateral commodity agreements, bilateral or multilateral trade agreements, ...)trade agreements, ...)

States as trade partnersStates as trade partners Purpose: contracts to obtain or sell goods an services Purpose: contracts to obtain or sell goods an services

for use by the government of by its citizens for use by the government of by its citizens Methods: directly as contracting partner or through Methods: directly as contracting partner or through

state companies or mixed enterprises / joint venture state companies or mixed enterprises / joint venture (many gradations)(many gradations)

Regulation of the internationale trade (s. further, e.g. Regulation of the internationale trade (s. further, e.g. public procurement opened to foreign business)public procurement opened to foreign business)

State as contracting party: corruption risk; State as contracting party: corruption risk; international rules to fight corruption esp. on the international rules to fight corruption esp. on the active side. I.a. UNCAC (UN Convention against active side. I.a. UNCAC (UN Convention against corruption, in force 2005) (since 1027 also Japan corruption, in force 2005) (since 1027 also Japan ratified)ratified)

State as contracting party: determine the applicable State as contracting party: determine the applicable law(s)law(s)

States as trade partnersStates as trade partners UNCAC (UN Convention against corruption, in force 2005UNCAC (UN Convention against corruption, in force 2005

States as trade partners - States as trade partners - UNCACUNCAC

Anti-Corruption Policy:Anti-Corruption Policy:UNCAC (UN Convention against corruption, in force 2005)UNCAC (UN Convention against corruption, in force 2005) Ch. 2: preventive measures (i.a. anti-corruption bodies, Ch. 2: preventive measures (i.a. anti-corruption bodies,

recruitment principles, codes of conduct for public officials, recruitment principles, codes of conduct for public officials, appropriate system of public procurement, money-laundering appropriate system of public procurement, money-laundering prevention, prevention,

Ch. 3: criminalization (bribery of officials, diversion of property Ch. 3: criminalization (bribery of officials, diversion of property by public official, trading in influence, abuse of functions, bribery by public official, trading in influence, abuse of functions, bribery in private sector, laundering of proceeds of crime, obstruction of in private sector, laundering of proceeds of crime, obstruction of justice, etc.justice, etc.

Ch. 3: law enforcement: prosecution; freezing seizure and Ch. 3: law enforcement: prosecution; freezing seizure and confiscation, compensation for damage, protection of witnesses confiscation, compensation for damage, protection of witnesses etc., overcoming bank secrecy, ...)etc., overcoming bank secrecy, ...)

Ch. 4 international cooperation (extradition, legal assistance, Ch. 4 international cooperation (extradition, legal assistance, etc.)etc.)

Ch. 5 Asset recovery; .....Ch. 5 Asset recovery; .....

States as trade partnersStates as trade partners Application of the UNCAC: Application of the UNCAC: - i.a. the EU Transparency Directive and Accounting Directive i.a. the EU Transparency Directive and Accounting Directive

impose disclosure of payments to authorities; 2003 Framework impose disclosure of payments to authorities; 2003 Framework Decision on Combating corruption in the private sectorDecision on Combating corruption in the private sector

- - in the US: Foreign Corrupt Practices Act (FCPA) (with a resource - in the US: Foreign Corrupt Practices Act (FCPA) (with a resource Guide issued by the US Dept. Of Justice)Guide issued by the US Dept. Of Justice)

Companies are expected to take their responsibility when doing Companies are expected to take their responsibility when doing business with partners that may engage in corrupt behaviour:business with partners that may engage in corrupt behaviour:

- There is a OECD Convention on Combating Bribery of Foreign There is a OECD Convention on Combating Bribery of Foreign Public Officials in International BusinessPublic Officials in International Business

- 2 Council of Europe Conventions (Civil Law, Criminal Law)2 Council of Europe Conventions (Civil Law, Criminal Law)- The ICC (international chamber of commerce) has a code of “Rules The ICC (international chamber of commerce) has a code of “Rules

on Combating Corruption” and proposes a model anti-corruption on Combating Corruption” and proposes a model anti-corruption clause to be inserted in contractsclause to be inserted in contracts

- The ISO has adopted The ISO has adopted ISO 37001 Anti-Bribery Management System ISO 37001 Anti-Bribery Management System Standard (October 2016)Standard (October 2016)

States as trade partnersStates as trade partners

Anti-Corruption Policy:Anti-Corruption Policy:

Sector-specific initiatives, e.g. EITI (Extractive Industries Sector-specific initiatives, e.g. EITI (Extractive Industries Transparency Initiative); 29 countries are ‘compliant’ with the EITI Transparency Initiative); 29 countries are ‘compliant’ with the EITI Standard, 20 more have promised to comply.Standard, 20 more have promised to comply.

States - immunitiesStates - immunities Immunity from jurisdiction for foreign states before national courts Immunity from jurisdiction for foreign states before national courts - Starting point: immunity, unless waived Starting point: immunity, unless waived - Many restrictions (national law, treaties). Many restrictions (national law, treaties). - In Europe: European Convention (CoE) on State Immunities Basel In Europe: European Convention (CoE) on State Immunities Basel

1972 (only 8 ratifications, incl. Belgium, NL, D, UK) 1972 (only 8 ratifications, incl. Belgium, NL, D, UK) - In the UK internally: British State Immunities Act 1976/1978In the UK internally: British State Immunities Act 1976/1978- In the US: FSIA (Foreign Sovereign Immunities Act 1976, am. 2008, In the US: FSIA (Foreign Sovereign Immunities Act 1976, am. 2008,

now 28 US Code ch. 97)now 28 US Code ch. 97)- Attempt at harmonisation: UN Convention on Jurisdictional Attempt at harmonisation: UN Convention on Jurisdictional

immunities of states and their property 2004 (not in force yet, 21 immunities of states and their property 2004 (not in force yet, 21 ratifications, but 30 required). But cited by the ECtHR (23 March ratifications, but 30 required). But cited by the ECtHR (23 March 2010, 2010, Kudak/Lithuania (labour case) Kudak/Lithuania (labour case) and 29 June 2011 and 29 June 2011 Sabeh El Sabeh El Leil) Leil) as customary law and recognised as customary law in eg as customary law and recognised as customary law in eg Belgian case law)Belgian case law)

- In general not contrary to art. 6 ECHR if there is no immunity In general not contrary to art. 6 ECHR if there is no immunity before their own domestic courts (see ECtHR in before their own domestic courts (see ECtHR in McElhinneyMcElhinney 21 Nov 21 Nov 2011, in 2011, in FogartyFogarty, in , in Al-AdsaniAl-Adsani, in , in Jones/UKJones/UK 2 June 2014) (courts of 2 June 2014) (courts of canon law within the Roman-catholic church also considered as canon law within the Roman-catholic church also considered as domestic courts)domestic courts)

States - immunitiesStates - immunities Immunity from jurisdiction for foreign statesImmunity from jurisdiction for foreign states Rule and exceptionsRule and exceptions- In the USA - FSIA: with exceptions in § 1605 ff, mainly: claims based In the USA - FSIA: with exceptions in § 1605 ff, mainly: claims based

upon commercial activity in the US, tort committed in the US, upon commercial activity in the US, tort committed in the US, expropriation in violation of international law, terrorismexpropriation in violation of international law, terrorism

- UN Convention has exceptions for i.a. Commercial contracts (art. 10), UN Convention has exceptions for i.a. Commercial contracts (art. 10), Labour contracts (but not for members of diplomatic missions, ect..) Labour contracts (but not for members of diplomatic missions, ect..) (art. 11), IP rights art. 14) etc.(art. 11), IP rights art. 14) etc.

- Overall Result: distinguish Overall Result: distinguish actaacta iure imperii / acta iure gestionis iure imperii / acta iure gestionis (already Belgian Cass. 11 June 1903); not every ’act of state’ is (already Belgian Cass. 11 June 1903); not every ’act of state’ is immune.immune.

- Jurisdictional immunity also covers foreign torts (ICJ 3 feb 2012 Jurisdictional immunity also covers foreign torts (ICJ 3 feb 2012 Germany v. Italy on acts committed by German soldiers in Italy in Germany v. Italy on acts committed by German soldiers in Italy in WW II: no jurisdiction of Italian courts*), unless the tort is unrelated to WW II: no jurisdiction of Italian courts*), unless the tort is unrelated to the political order (Cass. 11 June 1903) (comp. Art. 12 UN the political order (Cass. 11 June 1903) (comp. Art. 12 UN Convention: no immunity for personal injury or damage to property Convention: no immunity for personal injury or damage to property by author acting in a foreign country)by author acting in a foreign country)

- Immunity covers also the « Holy See » (as a sovereign)Immunity covers also the « Holy See » (as a sovereign)* But the Italian Constitutional Court refuses to abide and gives absolute priority to * But the Italian Constitutional Court refuses to abide and gives absolute priority to jurisdictional protection over state immunity: Corte Costituzionale 238/2014.jurisdictional protection over state immunity: Corte Costituzionale 238/2014.

States - immunitiesStates - immunities Immunity from jurisdiction for foreign statesImmunity from jurisdiction for foreign states Separate immunity for diplomatic missions (Vienna Diplomacy Separate immunity for diplomatic missions (Vienna Diplomacy

Convention art. 22 and 25 + general principle Convention art. 22 and 25 + general principle ne impediatur ne impediatur legatiolegatio))

Waiver, i.e. acceptance of jurisdiction, mostly not before domestic Waiver, i.e. acceptance of jurisdiction, mostly not before domestic courts of foreign state, butcourts of foreign state, but

- international courts- international courts- arbitration , see Ch. 8 and 12.arbitration , see Ch. 8 and 12.- Form & Effect of waiver: art. 7 UN ConventionForm & Effect of waiver: art. 7 UN Convention

States - immunitiesStates - immunities Immunity from enforcement for foreign statesImmunity from enforcement for foreign states Starting point: immunityStarting point: immunity Waiver of immunity of jurisdiction is not yet a waiver of Waiver of immunity of jurisdiction is not yet a waiver of

immunity of enforcement against state property immunity of enforcement against state property - Result: immunity for assets used by the public service (s. eg art. Result: immunity for assets used by the public service (s. eg art.

55 New York Arbitration Convention)55 New York Arbitration Convention)- Cass.B. set immunity of international organisations aside in 3 Cass.B. set immunity of international organisations aside in 3

cases because of lack of effective remedy (art. 13 ECHR). Idem cases because of lack of effective remedy (art. 13 ECHR). Idem Cass.Fr.Cass.Fr.

- In the Argentina debt cases, a US Court allowed post-judgment In the Argentina debt cases, a US Court allowed post-judgment discovery of Argentinian assets in the US held by third parties discovery of Argentinian assets in the US held by third parties (banks). Compare the ‘(banks). Compare the ‘alter egoalter ego’ doctrine assimilating certain ’ doctrine assimilating certain entities to the state itself (eg possibly a central bank). Argentina entities to the state itself (eg possibly a central bank). Argentina filed a complaint with the ICJ (international court of justice)filed a complaint with the ICJ (international court of justice)

- Belgian Court of Cass. (22 Nov. 2012) did not set aside immunity Belgian Court of Cass. (22 Nov. 2012) did not set aside immunity of the Argentinian embassy accounts; idem French Court of of the Argentinian embassy accounts; idem French Court of Cass. 28 Sep 2011 (but reasoning changed in a more recent Cass. 28 Sep 2011 (but reasoning changed in a more recent case Cass. 13 May 2015 case Cass. 13 May 2015 Commisimpex/CongoCommisimpex/Congo))

States - sovereigntyStates - sovereignty

Starting point of the international public law: Starting point of the international public law: - sovereignty also regarding the economic order;sovereignty also regarding the economic order;- equality of rights under international law, also in equality of rights under international law, also in

relation to (participation in) international traderelation to (participation in) international trade Many international treaties provide benefits for Many international treaties provide benefits for

« developing countries » (further benefits for « developing countries » (further benefits for LLDC’s, least developed countries)LLDC’s, least developed countries)

Disputed « right » to development and « duty » of Disputed « right » to development and « duty » of solidarity (soft law ?)solidarity (soft law ?)

International organisationsInternational organisations

Universal organisations (in principle open for all states)Universal organisations (in principle open for all states)- GATT, now WTO (1994), with a General Council and separate GATT, now WTO (1994), with a General Council and separate

Councils for GATT, GATS, TRIPS and a Dispute Settlement BodyCouncils for GATT, GATS, TRIPS and a Dispute Settlement Body- UNO, with General Assembly, Security council, EcoSocUNO, with General Assembly, Security council, EcoSoc- Uncitral (international trade law): treaties and model laws Uncitral (international trade law): treaties and model laws - Unctad (trade & development): granting developing countries Unctad (trade & development): granting developing countries

access to the world economy access to the world economy - ILO: labour standardsILO: labour standards- Unidroit: create uniform law (mostly private law)Unidroit: create uniform law (mostly private law)- Hague conference: unification of IPLHague conference: unification of IPL

Restricted organisations, i.a. OECD, OPEC, G10+>G20 (with Restricted organisations, i.a. OECD, OPEC, G10+>G20 (with Basel Committee) etc.Basel Committee) etc.

International organisationsInternational organisations Free trade organisationsFree trade organisations Types: free trade zone / customs union / common Types: free trade zone / customs union / common

market / monetary union market / monetary union Examples:Examples:- EUEU- EFTA, EEAEFTA, EEA- NAFTA, CAFTA (Central America), MercosurNAFTA, CAFTA (Central America), Mercosur- ASEAN / SAARC (SAFTA)ASEAN / SAARC (SAFTA)- Possibly CETA (Canada - Europe)Possibly CETA (Canada - Europe)- COMESA (East & Southern Africa), …COMESA (East & Southern Africa), …

PLAYERS - NGO’sPLAYERS - NGO’s Private organisations: not subjects of international public law, but Private organisations: not subjects of international public law, but

governed by national law (although sometimes involved in the governed by national law (although sometimes involved in the activities of I.O.’s)activities of I.O.’s)

Some influential NGO’s :Some influential NGO’s :- ICC: for standard contracts and uniform rules; Court of arbitration ICC: for standard contracts and uniform rules; Court of arbitration

(organising arbitral tribunals) (organising arbitral tribunals) - International Accounting Standards Board (IASB), setting the IFRS International Accounting Standards Board (IASB), setting the IFRS

(International Financial Reporting Standards)(International Financial Reporting Standards)- - World economic forum DavosWorld economic forum Davos- Comité maritime international: maritime transport conventionsComité maritime international: maritime transport conventions- Institut de droit international: tries to « codify » international Institut de droit international: tries to « codify » international

public law, …..public law, …..- ICANN = California corporation (internet corporation for assigned ICANN = California corporation (internet corporation for assigned

names and numbers), with a Governmental advisory committee names and numbers), with a Governmental advisory committee (111 countries)(111 countries)

PLAYERS - BUSINESSPLAYERS - BUSINESSRights and obligations of business:Rights and obligations of business:-Will mostly be determined by the applicable national law (see Ch. 2 Will mostly be determined by the applicable national law (see Ch. 2 for the determination of the applicable law)for the determination of the applicable law)-sometimes directly protected by international law, see esp. sometimes directly protected by international law, see esp. Investment protection in Ch. 8.Investment protection in Ch. 8.-Sometimes able to create their own rules and make them nearly self-Sometimes able to create their own rules and make them nearly self-executing. See e.g. certain payments systems in Ch. 9; blockchain executing. See e.g. certain payments systems in Ch. 9; blockchain applications, etc.applications, etc.

UN Human Rights Council Guiding Principles on Business and UN Human Rights Council Guiding Principles on Business and Human Rights 2011Human Rights 2011

PLAYERS - BUSINESSPLAYERS - BUSINESSBusiness organisations have many general obligations, incl.Business organisations have many general obligations, incl.-prohibition of unfair commercial practices; rules on advertising and prohibition of unfair commercial practices; rules on advertising and marketing (see also ICC Code of Advertising and Marketing marketing (see also ICC Code of Advertising and Marketing Communication)Communication)-prohibition of agreements and practices restricting competitionprohibition of agreements and practices restricting competition-Prohibition of corruption; in some countries even an obligation to Prohibition of corruption; in some countries even an obligation to prevent bribery (UK Bribery Act art. 7)prevent bribery (UK Bribery Act art. 7)-obligation of financial information (accounts, obligation of financial information (accounts, …)…)-obligation of non-financial information (big enterprises): EU Directive obligation of non-financial information (big enterprises): EU Directive 2013/34 (as amended Dir 2014/95)2013/34 (as amended Dir 2014/95)-oobligations to pay taxes etc... bligations to pay taxes etc... aand provide relevant informationnd provide relevant information-obligations from the applicable labour lawobligations from the applicable labour law-environmental protection obligations, public safety obligations, environmental protection obligations, public safety obligations, ……-respect IP rightsrespect IP rights-ddata protection obligations (respect privacy) now in the EU Reg. ata protection obligations (respect privacy) now in the EU Reg. 2016/6792016/679-liability for unsafe products put on the market (product liability)liability for unsafe products put on the market (product liability)

PLAYERS - BUSINESSPLAYERS - BUSINESS Liabilities related to the supply chain:Liabilities related to the supply chain:

Contractual liability:Contractual liability:- Business may be contractually liable for acts of their suppliersBusiness may be contractually liable for acts of their suppliers- See chapters on contract law (sales, general contract law)See chapters on contract law (sales, general contract law)

Extracontractual liability: next slideExtracontractual liability: next slide

PLAYERS - BUSINESSPLAYERS - BUSINESS Liabilities related to the supply chain:Liabilities related to the supply chain: Extracontractual liability:Extracontractual liability:- Tendency to impose upon business duties of care in relation to Tendency to impose upon business duties of care in relation to

earlier chains in the supply chainearlier chains in the supply chain- E.g. OECD Due diligence Guidelines for Responsible Supply Chain of Minerals, on E.g. OECD Due diligence Guidelines for Responsible Supply Chain of Minerals, on

EU level EU Reg. 2017/821EU level EU Reg. 2017/821 laying down supply chain due diligence obligations for for responsible sourcing of minerals originating in conflict-affected and high-risk responsible sourcing of minerals originating in conflict-affected and high-risk areas, in the US S.1522 of the Dodd-Frank Act 2010 areas, in the US S.1522 of the Dodd-Frank Act 2010

- OECD Due Diligence Guide for responsible supply chains in the garment and OECD Due Diligence Guide for responsible supply chains in the garment and footwear sector 2017footwear sector 2017

- OECD-FAO  Guidance on Responsible  Agricultural Supply Chains 2016OECD-FAO  Guidance on Responsible  Agricultural Supply Chains 2016- E.g. Efforts to prevent ‘slavery’ and trafficking required by the UK Modern E.g. Efforts to prevent ‘slavery’ and trafficking required by the UK Modern

Slavery Act 2015, California Transparency in Supply Chains Act 2010;Slavery Act 2015, California Transparency in Supply Chains Act 2010;- E.g. efforts required by Anti-Corruption laws: in some countries even an E.g. efforts required by Anti-Corruption laws: in some countries even an

obligation to prevent bribery (UK Bribery Act art. 7)obligation to prevent bribery (UK Bribery Act art. 7)

- Possible duty to control also later chains in the supply chain:Possible duty to control also later chains in the supply chain:- E.g. Lanham Act in the USA (15 US § 1051): trademark owner must supervise the E.g. Lanham Act in the USA (15 US § 1051): trademark owner must supervise the

quality of goods and services produced under its trademark by third partiesquality of goods and services produced under its trademark by third parties