International Business Law Prof. M.E. Storme 2013-2014

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International Business Law Prof. M.E. Storme 2013-2014. SOURCES international law v. international sources. Distinction: Rules of international origin Rules of international public law ( ius gentium ) International public law distinguished from: - PowerPoint PPT Presentation

Text of International Business Law Prof. M.E. Storme 2013-2014

  • International Business Law Prof. M.E. Storme2015-2016

  • SOURCESinternational law v. international sourcesDistinction:Rules of international originRules of international public law (ius gentium)International public law distinguished from:- (national) public law (constitutional, administrative, criminal, tax, ...)- private law including international private law

  • SOURCESthe international legal order (ius gentium)Classic view: international legal order as legal order between states and/or international organisations / dualismNuance 1: private organisations as players; access of private parties to international organisations (incl. courts)Nuance 2: direct effect of rules of international law in the internal (national) legal order (if accepted by national constitutional law)

  • SOURCESsources of international public law(Formal) sources of international public law (ius gentium):TreatiesCustomary law, general principles of lawDecisions of international organisationsSoft law

  • SOURCESTreaties (categories)parties: bilateral, multilateraldomain: commerce, war & peace, diplomatic relations, foreigners ...legal form: trait-convention (mutual obligations) / trait-loi (introducing legal rules).Some important types:* FNC (friendship navigation commerce); free trade zone or economic union, customs, ...* founding international organisations* investment treaties, state loans* judicial cooperation (e.g. extradition, evidence)* demarcation e.g. double taxation avoidance treaties; jurisdiction and enforcement; conflict of law rules* unification of law

  • SOURCESTreaties: unification of lawDomain:either limited to transnational relationships (international sales, international transport, ...)or also applicable to domestic ones (e.g. bills of exchange) Sometimes different versions (creating confusion)How to interpret:General rules in the Vienna Convention in the Law of TreatiesIn many conventions a clause demanding autonomous interpretation (eg art. 7 CISG, see Ch. 4)usually no institution with the authority to give a uniform interpretation exceptions: Benelux Court, Court of Justice EU, OHADA Common Court (Abidjan), etc.exchange of information (Lugano Treaty, CLOUT and CISG Digest, )

  • SOURCESSome substantive concepts Standards of treatment:minimum standard or equitable treatmentequivalent (national) treatment MFN (most favoured nation) clause with the possible exception of preferential treatmentSanctions:determined by treaty provisionscustomary law: prohibition of boycott (unless an obligation to boycott is imposed) (in practice business parties may be caught bewteen conflicting policies imposing boycot c.q. prohibiting to take part in it)

  • SOURCES Treaties: effectsEffects in the international legal order: international liability of states international jurisdiction (i.a. Permanent Court of Arbitration)possibly sanctions

  • SOURCES Treaties: effectsEffects in the domestic / national legal order, before the domestic courts (so-called direct effect ). Conditions determined by national constitutional law, usually the following:- either implemented or directly applicable by virtue of another rule (adde: doctrine of (vertical) direct effect of EU-Directives)- content of the rule must be sufficiently precise and unconditional to be applied without further measures of implementation (self-executing) (NB. This is a question which also arises within a legal order, whether a rule is self-executing or not)Examples in EU (member st. Legal order): many rules in EU-Treaties. Not: GATT

  • SOURCES International customary lawConditionsobjective element: (widespread) general practiceopinio iuris: accepted as law Often disputed ! Sometimes extended to general principles of law as a new kind of natural lawImportancelimited in the field of international economic lawmore important in other fields (rights & immunities of states; war & peace; human rights (aspects of), )

  • SOURCESDecisions of internat.organis.Sometimes binding:- Decisions concerning the internal operation of an IO- Binding force provided by treaty (see supra on the conditions of direct effect) - e.g. resolutions under Ch. VII UN Charter (Security council). According to art. 103 UN Charter priority over any other rule (thus even ECHR).- e.g. decisions of EU institutions within their competence (as to direct effect, instruments differ regulations, directives, decisions, ...) -If not binding: = soft law

  • SOURCES - Soft lawTypes:non-binding decisions of International Organisationsnon-binding treaties (gentlemans agreements)codes of conduct; recommendations; principlesStill softer: legislative guides, The ILC (international law commission expert group of the UN) has prepared many drafts (treaties, articles, principles) some have been enacted as treaties(Possible) effects:not legally binding; political consequences; moral effects; commercial pressure; de lege ferenda (model for future rules), chosen as rules by the parties

  • SOURCESThe national legal orderNational law includes international public law (and other international sources) as far as received (conditions for reception and possible direct effect are determined by national constitutional law)National public law and private law may have sources of international origin (eg human rights, uniform laws, ...)Application of foreign national law in transnational relationships ? Distinction between public law and private law < next slides

  • SOURCES Effects of national / foreign public lawPublic law includes: administrative law, tax law, criminal law, competition law and other economic public law (e.g. import & export regulation, valuta exchange regulation; supervision of financial institutions and markets, expropriation, ...) Starting point: each country applies only its own public law according to its own criteria of applicabilityapplication is usually territorial, sometimes extraterritorial (e.g. taxes, competition,). In how far accepted by international law ?demarcation by treaties (e.g. double tax avoiding treaties; criminal jurisdiction, etc.) Exceptions (states applying foreign public law): cooperation treaties in matters of public law, e.g. assistance in enforcing criminal sanctions, collecting taxes, extradition,

  • SOURCESThe (national)international private lawPrivate law = property, contract, tort, restitution, company law, trust, intellectual property, .Application of private law in transnational relationships is determined by rules of IPL. Basically 2 types of rules of IPL:conflict rules (national or uniform)substantive rules of IPL (mostly uniform rules) (often applied only after the conflict rule)See topic 3.

  • PLAYERSStates as rule-makers State as legislator / rulemaker (government)direct (national sources of national law)creating international sources: concluding treaties, etc. ratifying and implementing international sources (incl. uniform law)founding of, and taking part in international organisationsState as party to conventions of international public law engaging itself in obligations (e.g. commodity agreements, bilateral or multilateral trade agreements, ...)

  • States as trade partnersPurpose: contracts to obtain or sell goods an services for use by the government of by its citizens Methods: directly as contracting partner or through state companies or mixed enterprises / joint venture (many gradations)Regulation of the internationale trade (s. further, e.g. public procurement opened to foreign business)State as contracting party: corruption risk; international rules to fight corruption esp. on the active side. I.a. UNCAC (UN Convention against corruption, in force 2005) (Japan & NE have signed but not ratified)State as contracting party: determine the applicable law(s)

  • States as trade partnersUNCAC (UN Convention against corruption, in force 2005)

  • States as trade partners - UNCACUNCAC (UN Convention against corruption, in force 2005)Ch. 2: preventive measures (i.a. anti-corruption bodies, recruitment principles, codes of conduct for public officials, appropriate system of public procurement, money-laundering prevention, Ch. 3: criminalization (bribery of officials, diversion of property by public official, trading in influence, abuse of functions, bribery in private sector, laundering of proceeds of crime, obstruction of justice, etc.Ch. 3: law enforcement: prosecution; freezing seizure and confiscation, compensation for damage, protection of witnesses etc., overcoming bank secrecy, ...)Ch. 4 international cooperation (extradition, legal assistance, etc.)Ch. 5 Asset recovery; .....

  • States as trade partnersAnti-Corruption Policy:Application of the UNCAC: i.a. the EU Transparency Directive and Accounting Directive impose disclosure of payments to authorities- in the US: Foreign Corrupt Practices Act (FCPA)

    Companies are expected to take their responsibility when doing business with partners that may engage in corrupt behaviour:- There is a OECD Convention on Combating Bribery of Foreign Public Officials in International Business- The ICC (international chamber of commerce) has a code of Rules on Combating Corruption and proposes a model anti-corruption clause to be inserted in contracts

  • States - immunitiesImmunity from jurisdiction for foreign states before national courts Starting point: immunity, unless waived Many restrictions (national law, treaties). In Europe: European Convention (CoE) on State Immunities Basel 1972 (only 8 ratifications, incl. Belgium, NL, D, UK) In the UK internally: British State Immunities Act 1976/1978In the US: FSIA (Foreign Sovereign Immunities Act 1976, am. 2008, now 28 US Code ch. 97)Attempt at harmonisation: UN Convention on Jurisdictional immunities of states and