Chapter 1: International private law
International Public Law: The legal relationship between and among states
International business law as a part of International Private Law however, is a
specific field in itself. Until recently every country had its own ‘international
private law’.
International Private Law (IPR): Laws governing conduct between people
(and corporations) from different states
3 main issues:
1. Jurisdiction in cases of ligitation between two parties from different
states
2. Applicable law in case of international ligitation between two private
parties
3. Solutions to legal problems arising out of an international relationship
• What court of law has jurisdiction? The EEX - European Communities
Regulations on Jurisdiction and Enforcement of Judgements in Commercial
and Civil Matters (Chapter 3)
• Which law applies? ECO - European Communities Regulations on the
Apllicable Law on Contractual Obligations (Chapter 4)
• Is there a specific treaty offering a solution between contracting parties?
CIGS (Convention on the International Sale of Goods. (Chapter 5). This is
the treaty to use as the conditions of an international sales contract have
been fulfilled.
EC (European Law) takes precedence over the national laws of countries that
have signed the TFEU treaty (Treaty on the Function of the European Union,).
The EC does not cover every aspect of business competition between Member
States or between companies that are or are not in the same Member State
In order to achieve free integration through the use of a common market where
goods, persons, capital and services can circulate freely, member states should
give up their sovereignty in those areas governed by the EC treaty. As a result of
this, the EC becomes a supranational organisation “a State above the Member
States”, which has the authority to make rules that bind the EC Member States of
the EC, without they specific and prior consent.
The EC law can be distinguished between:
Directly applicable EC law: means that the provisions of EC law
apply directly within the legal systems of the Member States which
have no control over what EC law is directly applicable The TFEU
determines what EC law is to be directly applicable (Art. 288 TFEU)
Directly effective EC law: Gives right to nationals of the EC who
can rely on them in a court in their own country e.g. in a lawsuit
1
, against another person or their own national government. Directly
effective EC law is therefore only of interest to nationals as it does
not in itself affect the Member States
Art 12 EC Treaty (now Art 112 TFEU) prohibits Member States from introducing
new taxes between Member States
The EC currently has 27 Member States.
EC institutions do not correspond to any other institutions at either national or
international level. The institutions are:
• The European Parliament (budget & legislative process of the EC)
• The European Council (Supervises aspects of the legislative procedures
of Member States)
• The Council of Ministers (Making the EC policy & making decisions
based on proposals from the commission)
• The European Commission (Operates independently of any
government, the functions of the Commission are that of Initiator,
Guardian of Treaties and Executive)
• The European Court of Justice ( Has jurisdiction in only those cases
specifically prescribed by a provision in the EC Treaty If the conditions of a
Treaty Article dealing with matters of jurisdiction are met, then the
European Court of Justice has jurisdiction)
Regulations are general rules that apply uniformly throughout the EC .A
Member State can change neither the effect of a regulation nor the way it applies
in its own territory or to its nationals.
Directives require each Member State to implement the legislation in a
Directive within a certain period of time
Decisions are individual acts, binding on a Member State or an individual or a
group of individuals.
Art 267 (1): The ECJ shall have the legal right to give preminilary rulings
concerning:
• a) the interpretation of this Treaty
• b) the validity and interpretation of acts of the EC institutions
*Most of the major verdicts given by the ECJ have been made with reference to
Art. 267
A preliminary ruling is a decision by the Court of Justice of the European
Union (CJEU) on the interpretation of the European Union Law, made at the
request of a court of a European Union Member State. They are called
preliminary rulings because the referring national court, which remains
responsible for resolving the specific dispute before it, will stay its own
proceedings until its question(s) about the interpretation or validity of EU
law have been answered. Preliminary rulings can also be made, in certain
circumstances, by the European General Court, although most are made
by the ECJ.
2
, Courts and tribunals have the right to request a preliminary ruling
Under Art. 267 every court or tribunal of a Member State may request a
preliminary ruling of the ECJ
Also the Benelux Court of Justice has been recognized as a court common to
several Member states
A preliminary ruling under Art. 267 binds the national court in that parrticular
case
It is the duty of the national court to give a verdict
The ECJ cannot declare any of the acts of the institutions invalid under Art. 267.
Only by following the correct procedure under Art. 263
Under Art 263. When an action of annulment is raised, the ECJ reviews the
legality of acts of institutions of the EC, such as the commission. The good
grounds for challenged are mentioned in Art. 263 (2):
• Lack of compentence (no legal authority according to the EC treaty)
• Infringement of an essential procedural requirement
• Infringement of this Treaty
• Misuse of powers
Chapter 2: Negotiations
Generally negotiations take place before coming to a final agreement, the so
called preliminary stage.
Content of agreements can be derived from either national law or an
international Treaty like the CISG.
Agreements can be both oral and in writing
Agreement: As soon as one party accepts the offer of the other party, an
agreement is reached
So, there is an offer and the acceptance of the offer. However, negotiations
sometimes may take years
The offer is legal when:
1. An object is described
2. There is a fixed price (non-negotiable)
3. The number of object(s) is stated
As long as the price is “under negotiation” there cannot be an offer in the legal
sense of the word.
An offer can be withdrawn as long as the offerer gives the offeree notice before
the latter receives the offer
Example: A sends B an offer by mail on 24th September but withdraws the offer
by e-mail also on 24th September. In this situation, the offer no longer exists
In case of price fluctuations (steel/exchange rates), one might consider a non-
binding offer.
3
International Public Law: The legal relationship between and among states
International business law as a part of International Private Law however, is a
specific field in itself. Until recently every country had its own ‘international
private law’.
International Private Law (IPR): Laws governing conduct between people
(and corporations) from different states
3 main issues:
1. Jurisdiction in cases of ligitation between two parties from different
states
2. Applicable law in case of international ligitation between two private
parties
3. Solutions to legal problems arising out of an international relationship
• What court of law has jurisdiction? The EEX - European Communities
Regulations on Jurisdiction and Enforcement of Judgements in Commercial
and Civil Matters (Chapter 3)
• Which law applies? ECO - European Communities Regulations on the
Apllicable Law on Contractual Obligations (Chapter 4)
• Is there a specific treaty offering a solution between contracting parties?
CIGS (Convention on the International Sale of Goods. (Chapter 5). This is
the treaty to use as the conditions of an international sales contract have
been fulfilled.
EC (European Law) takes precedence over the national laws of countries that
have signed the TFEU treaty (Treaty on the Function of the European Union,).
The EC does not cover every aspect of business competition between Member
States or between companies that are or are not in the same Member State
In order to achieve free integration through the use of a common market where
goods, persons, capital and services can circulate freely, member states should
give up their sovereignty in those areas governed by the EC treaty. As a result of
this, the EC becomes a supranational organisation “a State above the Member
States”, which has the authority to make rules that bind the EC Member States of
the EC, without they specific and prior consent.
The EC law can be distinguished between:
Directly applicable EC law: means that the provisions of EC law
apply directly within the legal systems of the Member States which
have no control over what EC law is directly applicable The TFEU
determines what EC law is to be directly applicable (Art. 288 TFEU)
Directly effective EC law: Gives right to nationals of the EC who
can rely on them in a court in their own country e.g. in a lawsuit
1
, against another person or their own national government. Directly
effective EC law is therefore only of interest to nationals as it does
not in itself affect the Member States
Art 12 EC Treaty (now Art 112 TFEU) prohibits Member States from introducing
new taxes between Member States
The EC currently has 27 Member States.
EC institutions do not correspond to any other institutions at either national or
international level. The institutions are:
• The European Parliament (budget & legislative process of the EC)
• The European Council (Supervises aspects of the legislative procedures
of Member States)
• The Council of Ministers (Making the EC policy & making decisions
based on proposals from the commission)
• The European Commission (Operates independently of any
government, the functions of the Commission are that of Initiator,
Guardian of Treaties and Executive)
• The European Court of Justice ( Has jurisdiction in only those cases
specifically prescribed by a provision in the EC Treaty If the conditions of a
Treaty Article dealing with matters of jurisdiction are met, then the
European Court of Justice has jurisdiction)
Regulations are general rules that apply uniformly throughout the EC .A
Member State can change neither the effect of a regulation nor the way it applies
in its own territory or to its nationals.
Directives require each Member State to implement the legislation in a
Directive within a certain period of time
Decisions are individual acts, binding on a Member State or an individual or a
group of individuals.
Art 267 (1): The ECJ shall have the legal right to give preminilary rulings
concerning:
• a) the interpretation of this Treaty
• b) the validity and interpretation of acts of the EC institutions
*Most of the major verdicts given by the ECJ have been made with reference to
Art. 267
A preliminary ruling is a decision by the Court of Justice of the European
Union (CJEU) on the interpretation of the European Union Law, made at the
request of a court of a European Union Member State. They are called
preliminary rulings because the referring national court, which remains
responsible for resolving the specific dispute before it, will stay its own
proceedings until its question(s) about the interpretation or validity of EU
law have been answered. Preliminary rulings can also be made, in certain
circumstances, by the European General Court, although most are made
by the ECJ.
2
, Courts and tribunals have the right to request a preliminary ruling
Under Art. 267 every court or tribunal of a Member State may request a
preliminary ruling of the ECJ
Also the Benelux Court of Justice has been recognized as a court common to
several Member states
A preliminary ruling under Art. 267 binds the national court in that parrticular
case
It is the duty of the national court to give a verdict
The ECJ cannot declare any of the acts of the institutions invalid under Art. 267.
Only by following the correct procedure under Art. 263
Under Art 263. When an action of annulment is raised, the ECJ reviews the
legality of acts of institutions of the EC, such as the commission. The good
grounds for challenged are mentioned in Art. 263 (2):
• Lack of compentence (no legal authority according to the EC treaty)
• Infringement of an essential procedural requirement
• Infringement of this Treaty
• Misuse of powers
Chapter 2: Negotiations
Generally negotiations take place before coming to a final agreement, the so
called preliminary stage.
Content of agreements can be derived from either national law or an
international Treaty like the CISG.
Agreements can be both oral and in writing
Agreement: As soon as one party accepts the offer of the other party, an
agreement is reached
So, there is an offer and the acceptance of the offer. However, negotiations
sometimes may take years
The offer is legal when:
1. An object is described
2. There is a fixed price (non-negotiable)
3. The number of object(s) is stated
As long as the price is “under negotiation” there cannot be an offer in the legal
sense of the word.
An offer can be withdrawn as long as the offerer gives the offeree notice before
the latter receives the offer
Example: A sends B an offer by mail on 24th September but withdraws the offer
by e-mail also on 24th September. In this situation, the offer no longer exists
In case of price fluctuations (steel/exchange rates), one might consider a non-
binding offer.
3
