INTERNATIONAL BUSINESS LAW
opm: nieuwe prof dus samenvattingen van vorige jaren nt meer van toepassing!
en outline kan doorheen het jaar nog veranderen
about the course:
- classes: recordings on toledo
- discussion sessions with compulsory attendance and mandatory preparation (dates & topics to
be announced)
- = 1 or 2 mandatory discussion classes: where we will engage in an active debate
- course materials: (cannot bring to exam)
- slides & class notes
- reader with relevant legislation → at cudi
we have to know all the content of the slides
→ prof doens’t have enough time to go through all of it
(unless it is cases that prof didn’t talk about: then they are just illustrations of the application of
some principles)
cases are there to illustrate the legal principles → only have to know the ones prof spent some
time on in the class
we can bring additional legislation if needed
→ bring 101 & 102 TFEU bc not in reader
exam:
- written exam: essay questions
- open questions
- closed book, but reader (not annotated) allowed
- opm: codexreglement geldig in reader
- you can also make references to the CISG advisory council opinions
PART 1. GENERAL FRAMEWORK
what is IBL?
- focus will mainly be private law
- but also some public aspects
- = very broad course
=> idea is to focus on rules that are relevant for conducting business
why IBL?
importance of international trade & why we have law on international business:
- explanation of national trade: theory of comparative advantage:
- = countries and businesses in countries can specialize in things (vb. are better in
things that they are better due to location,...)
- = some areas are better than others in doing certain things
- then there will be added value in international trade
1
, - process of internationalization will occur in the absence of excessive barriers to trade
as entrepreneurs pursue the profites associated with trade
historical introduction:
- pre-GATT era:
- original idea = mercantilism: you need to export more than you import
- bc more money is flowing inside our country
- whole trade policy needs to be based on that premises
- ⇒ facilitate export & restrict import
- = protectionism: trade policies will be to protect our markets from import
from cheaper production areas outside our countries’ boarders
- this was very profitable way of looking at things bc a lot of countries had
colonies
- ⇒ cheap way to have these products produces “within the boarders
of your country” and then export them to the world
- but decolonisation happened
- → idea of mercantilism becomes less attractive
- bc we have less goods to export and we need things we don’t
have ourselves
- GATT era:
- context: after WW2: world became more globalised than ever
- UN was established
- within context of UN: there were discussions on figuring out ways to have
these barriers on international trade removed & have tariffs & quantitative
restrictions implemented by the different nations be limited to facilitate int.
trade
- during geneva talks in 1947: General Agreement on Tariffs & Trade came to
be
- idea in 1948: was to have parallel to GATT talks to have an international
trade organisation
- ultimately did not come to be
1
- WTO
- in 1997: WTO agreement was reached
- = took GATT and GATT became part of WTO treaties
- GATT only focused goods
- now not only goods but also services and IP + procedures for
settlement of disputes
- 166 members
- opm: not as successful anymore:
- bc appellate body of the disputes settlement understanding requires
appointment by US and it stopped doing that
- ⇒ many countries came to realisation that WTO, having talks with
everyone around the world may not be able to reach any consensus
on global scale anymore
- so we shifted from having global talks on reducing tariffs to
bilateral regional talks through concluding preferential trade
1
we will have one class on WTO law
2
, agreements with those states where we want to conclude
those agreements with
- → other states: may implement at this moment more
protectionist approaches to int. trade
- beyond WTO:
- consensus by small group of mayor players used to be enough, but that has passed
- other economies emerge (vb. BRICS)
- states have moved away from reliance on WTO for future progress
- moved towards preferential trade agreements (PTAs) between like-minded states
- 350+ PTA’s in place, mostly bilateral
I. SOURCES AND PLAYERS IN INTERNATIONAL LAW
sources:
- international law
- treaties
- parties: bilateral, multilateral (reservations)
- domain: commerce, war & peace, diplomatic relations, foreigners,....
- relevant types of treaties:
- FCN (friendship, commerce and navigation): free trade zne or
economic union, customs, GATT and other WTO treaties
- founding international organisations
- investment treaties, state loans
- judicial cooperation (vb. extradition, evidence)
- “democration”: vb. double taxation avoidance treaties; jurisdiction
and enforcement; conflict of law rules
- unification of law; minimum standards (esp. human rights)
- how to interpret?
- general rules in 1969 VCLT2
- 116 ratifications: not signed by oa. France, India + not
ratified by USA
- in many conventions: clause demanding autonomous interpret. (vb.
art 7 CISG)
- unfortunately, no institution with authority to give uniform
interpretation
- exceptions: Benelux Court, CJEU, OHADA Common Court
(Abidjan), Caribbean CoJ (Caricom) etc
- tension…
- need for common interpretation methods & common
interpretation
- taking into account the national environment in which the
rule has to function / be applied
- effects to the international legal order
- = a bit more vague…
- international liability of states
- international jurisdictions: oa.
2
eerste doc in reader
often referred to in court decisions on interpretation of treaties
3
, - international court of justice: established by the UN Charter,
jurisdiction in principle only based on consent
- permanent court of arbitration: established by the hague
convention for the pacific settlement of international disputes
1899/1907, 119 members
- possible sanctions:
- determined by treaty provisions (vb. antidumping measures)
- customary law: prohibition of boycott (unless an obligation
to boycott is imposed)
- in practice business parties may be caught between
conflicting policies imposing boycott cq prohibiting
to take part in it
- (rarely) binding dispute settelent (vb. DSU in WTO)
- effects in the national legal order
- before the domestic courts (= direct effect / the treaty is self
executing)
- = before the national court you can rely as an individual on
the contents of this treaty
- so we have agreement between states: you can rely on the
obligations for the states created by these treaties
- what determines whether treaty has direct effect:
- in national legal system it will be the rules of that
national legal system
- often 2 conditions that have to be met:
- 1) needs to be sufficiently precise,
unconditional for it to be applicable in
national legal system
- if there is any vagueness on
obligation of state: no direct effect
bc not possible to apply without
further decisions in implementing
the treaty
- 2) question whether implementation
necessary of the instrument or if there is any
other rule that gives it direct effect
- vb. directive: creates obligation for
MS to implement what is in the
directive
- vb. directive on minimum
harmonisation → as long as
minimum is met, the requirement of
implementing the directive is met
- vb. maximum harm: sets standard
where it is and you cannot go over
or under → MS have to implement
that rule as it is
- → when a MS does not implement
directive within time: rule of
4
opm: nieuwe prof dus samenvattingen van vorige jaren nt meer van toepassing!
en outline kan doorheen het jaar nog veranderen
about the course:
- classes: recordings on toledo
- discussion sessions with compulsory attendance and mandatory preparation (dates & topics to
be announced)
- = 1 or 2 mandatory discussion classes: where we will engage in an active debate
- course materials: (cannot bring to exam)
- slides & class notes
- reader with relevant legislation → at cudi
we have to know all the content of the slides
→ prof doens’t have enough time to go through all of it
(unless it is cases that prof didn’t talk about: then they are just illustrations of the application of
some principles)
cases are there to illustrate the legal principles → only have to know the ones prof spent some
time on in the class
we can bring additional legislation if needed
→ bring 101 & 102 TFEU bc not in reader
exam:
- written exam: essay questions
- open questions
- closed book, but reader (not annotated) allowed
- opm: codexreglement geldig in reader
- you can also make references to the CISG advisory council opinions
PART 1. GENERAL FRAMEWORK
what is IBL?
- focus will mainly be private law
- but also some public aspects
- = very broad course
=> idea is to focus on rules that are relevant for conducting business
why IBL?
importance of international trade & why we have law on international business:
- explanation of national trade: theory of comparative advantage:
- = countries and businesses in countries can specialize in things (vb. are better in
things that they are better due to location,...)
- = some areas are better than others in doing certain things
- then there will be added value in international trade
1
, - process of internationalization will occur in the absence of excessive barriers to trade
as entrepreneurs pursue the profites associated with trade
historical introduction:
- pre-GATT era:
- original idea = mercantilism: you need to export more than you import
- bc more money is flowing inside our country
- whole trade policy needs to be based on that premises
- ⇒ facilitate export & restrict import
- = protectionism: trade policies will be to protect our markets from import
from cheaper production areas outside our countries’ boarders
- this was very profitable way of looking at things bc a lot of countries had
colonies
- ⇒ cheap way to have these products produces “within the boarders
of your country” and then export them to the world
- but decolonisation happened
- → idea of mercantilism becomes less attractive
- bc we have less goods to export and we need things we don’t
have ourselves
- GATT era:
- context: after WW2: world became more globalised than ever
- UN was established
- within context of UN: there were discussions on figuring out ways to have
these barriers on international trade removed & have tariffs & quantitative
restrictions implemented by the different nations be limited to facilitate int.
trade
- during geneva talks in 1947: General Agreement on Tariffs & Trade came to
be
- idea in 1948: was to have parallel to GATT talks to have an international
trade organisation
- ultimately did not come to be
1
- WTO
- in 1997: WTO agreement was reached
- = took GATT and GATT became part of WTO treaties
- GATT only focused goods
- now not only goods but also services and IP + procedures for
settlement of disputes
- 166 members
- opm: not as successful anymore:
- bc appellate body of the disputes settlement understanding requires
appointment by US and it stopped doing that
- ⇒ many countries came to realisation that WTO, having talks with
everyone around the world may not be able to reach any consensus
on global scale anymore
- so we shifted from having global talks on reducing tariffs to
bilateral regional talks through concluding preferential trade
1
we will have one class on WTO law
2
, agreements with those states where we want to conclude
those agreements with
- → other states: may implement at this moment more
protectionist approaches to int. trade
- beyond WTO:
- consensus by small group of mayor players used to be enough, but that has passed
- other economies emerge (vb. BRICS)
- states have moved away from reliance on WTO for future progress
- moved towards preferential trade agreements (PTAs) between like-minded states
- 350+ PTA’s in place, mostly bilateral
I. SOURCES AND PLAYERS IN INTERNATIONAL LAW
sources:
- international law
- treaties
- parties: bilateral, multilateral (reservations)
- domain: commerce, war & peace, diplomatic relations, foreigners,....
- relevant types of treaties:
- FCN (friendship, commerce and navigation): free trade zne or
economic union, customs, GATT and other WTO treaties
- founding international organisations
- investment treaties, state loans
- judicial cooperation (vb. extradition, evidence)
- “democration”: vb. double taxation avoidance treaties; jurisdiction
and enforcement; conflict of law rules
- unification of law; minimum standards (esp. human rights)
- how to interpret?
- general rules in 1969 VCLT2
- 116 ratifications: not signed by oa. France, India + not
ratified by USA
- in many conventions: clause demanding autonomous interpret. (vb.
art 7 CISG)
- unfortunately, no institution with authority to give uniform
interpretation
- exceptions: Benelux Court, CJEU, OHADA Common Court
(Abidjan), Caribbean CoJ (Caricom) etc
- tension…
- need for common interpretation methods & common
interpretation
- taking into account the national environment in which the
rule has to function / be applied
- effects to the international legal order
- = a bit more vague…
- international liability of states
- international jurisdictions: oa.
2
eerste doc in reader
often referred to in court decisions on interpretation of treaties
3
, - international court of justice: established by the UN Charter,
jurisdiction in principle only based on consent
- permanent court of arbitration: established by the hague
convention for the pacific settlement of international disputes
1899/1907, 119 members
- possible sanctions:
- determined by treaty provisions (vb. antidumping measures)
- customary law: prohibition of boycott (unless an obligation
to boycott is imposed)
- in practice business parties may be caught between
conflicting policies imposing boycott cq prohibiting
to take part in it
- (rarely) binding dispute settelent (vb. DSU in WTO)
- effects in the national legal order
- before the domestic courts (= direct effect / the treaty is self
executing)
- = before the national court you can rely as an individual on
the contents of this treaty
- so we have agreement between states: you can rely on the
obligations for the states created by these treaties
- what determines whether treaty has direct effect:
- in national legal system it will be the rules of that
national legal system
- often 2 conditions that have to be met:
- 1) needs to be sufficiently precise,
unconditional for it to be applicable in
national legal system
- if there is any vagueness on
obligation of state: no direct effect
bc not possible to apply without
further decisions in implementing
the treaty
- 2) question whether implementation
necessary of the instrument or if there is any
other rule that gives it direct effect
- vb. directive: creates obligation for
MS to implement what is in the
directive
- vb. directive on minimum
harmonisation → as long as
minimum is met, the requirement of
implementing the directive is met
- vb. maximum harm: sets standard
where it is and you cannot go over
or under → MS have to implement
that rule as it is
- → when a MS does not implement
directive within time: rule of
4
