International commercial law
International commercial law:
Introduction:
Conquering new markets brings a lot of legal questions for companies. For this reason,
conquering these markets can be a though job.
Example: Belgian company wants to sell on the Spanish market. Steps:
1) Entry strategy (how does the company enter the foreign market?)
2) When there’s an international dispute, ask 3 questions:
- Court? Which court will decide about the dispute? In this case it’s either the
Belgian or the Spanish court.
- Applicable law (Rome 1): follows from which court the law that is valid for the
responsible court.
- Execution of the court’s decision?
3) Court is there an international treaty applicable to the case? Is there international
law/ regulation applicable? In this case we use the Convention of Vienna, which is a
convention on contracts for the international sale of goods. The courts deciding on
the dispute takes this convention into account.
4) General conditions of Sale: General. Clauses on a contract, used by a company in all
contracts of a certain type. They are mostly in the advantage of the company. In this
example, the Belgian company wants these conditions to be valid also for Spanish
customers. E.g. Warranty, return policy, responsibilities, when and how to pay …
- Retention of Title: When the customer doesn’t pay and goes bankrupt, you, as a
seller, can demand to get your products back.
- Transport of goods who is responsible (when does it pass from buyer to
seller?) Incoterms!
- Getting paid: how will I be paid; how can I make sure I’m being paid?
- Compensations for damages?
5) Product liability
6) Other legal problems, e.g. problems with competition, problems with the
environment, government issues, problems not linked to suppliers or customers.
Global trade: sum of import and export of products. This global trade has quickly grown over
the past years. This has various reasons: the liberalization of trade, big reduction in
transportation and communication costs, the end of the Cold War (countries do not have to
put a lot of money in military investments anymore).
Growth of China: Because Chinese economy is growing really strong, the global trade of
other countries is stalling. You have to take into account the legal regulations and be aware
of the risks. These risks can be linked to contracts, environment in which the transactions
find place…
Risks related to environment of transactions:
- Economic, political, environmental, societal and technological… changes. you
can try to adapt to these changes, but that is difficult. A lot of these risks are
connected in some sort of way.
- Impact of European law:
1
, International commercial law
Risks in international trade:
Foreign policy risks:
- Border measures: import quota, taxes…
- Behind-the-border measures: long-term policies to make their own companies
bigger, e.g. nationalisation, state aid
- E.g. war, embargos
categories of measures restricting trade:
state aid to national companies: makes it difficult for foreign companies to compete with
their products. This isn’t allowed within EU, unless it brings an advantage for all inhabitants
of a country.
consumption subsidy: non-subsidized product becomes more expensive.
export subsidy: disadvantageous position for the industry in the importing country.
export taxes or restriction: to protect national security (new technology, weapons…), to
preserve natural resources, to encourage the supply of raw materials to local industries.
import ban: to protect existing domestic industries, protection of the health of a
population, protection of the environment…
investment measures: prohibiting foreigners from investing in certain industries.
local content requirement: e.g. in France, series that are dubbed.
migration measure: protection of the own workforce, for people who are willing to work
for a lower wage (and mostly do not invest the earned money here but send it back to their
native country).
public procurement: ‘buy-local’ campaigns.
Quotas and tariff measures: decrease the welfare of domestic consumers, increase the
welfare of domestic producers. The tariffs are passed on to the consumers, products get
more expensive. Risk of smuggle.
Sanitary measures: safety, to make sure that people consume safe products, products
that can harm the consumer aren’t allowed.
technical barrier to trade: e.g. in China, certain wines or spirits have to be tested in a
laboratory to see if there aren’t any extra chemicals in them.
Domestic policy risks:
Events that can happen within the borders of a country.
- Revolt and civil wars.
- Risk of civil unrest and revolts.
- Risk of financial/ economic crisis.
- …
Economic policy risks:
- Capital controls: when government tries to keep the money inside the country.
- Nationalization: When government takes over a company.
Credit insurance:
- For protection against the aforementioned risks.
- Never covers 100%
- Often provided by private companies
2
, International commercial law
International contract of sale:
- Legal systems differ from one country to another
- How are legal systems dealing with general conditions of sale and retention of
title? contracts of sale!
- Deals with transport as well important in international trade (e.g. Inco terms),
product liability, payment conditions…
Chapter 2: International private law and European law
International private law deals with the main questions concerning international
conflicts:
Jurisdiction
Applicable law
Execution of court decisions
solutions to legal problems arising out of an international legal relationship.
Main sources of International commercial/ business law:
Treaties
European law (big part)
Rules made by private international entities such as the international chamber of
commerce (ICC) about for example the Incoterms
Less important sources: national law and court decisions.
European law:
- Deals with several aspects of international private law
- Basis of the EU: - TEU and TFEU
- Main points of TEU:
Principles and values of the EU
Main objectives of EU
Main institutions of EU
Rules of common foreign and security policy.
- Main points of TFEU
Free movement of workers
see PowerPoint.
-ICJ (international court of justice): interpretation of European law
-European Commission
-EU law: directly applicable: no need for further acts by the governments of the
Member states, the governments don’t have to change their own national law
Directly effective: give rights to nationals of the member states who can rely on
them in a court in their own country.
Free movement of persons
Free movement of goods
Rights to equal pay for men and women
Competition law
Main points of TFEU!
3
International commercial law:
Introduction:
Conquering new markets brings a lot of legal questions for companies. For this reason,
conquering these markets can be a though job.
Example: Belgian company wants to sell on the Spanish market. Steps:
1) Entry strategy (how does the company enter the foreign market?)
2) When there’s an international dispute, ask 3 questions:
- Court? Which court will decide about the dispute? In this case it’s either the
Belgian or the Spanish court.
- Applicable law (Rome 1): follows from which court the law that is valid for the
responsible court.
- Execution of the court’s decision?
3) Court is there an international treaty applicable to the case? Is there international
law/ regulation applicable? In this case we use the Convention of Vienna, which is a
convention on contracts for the international sale of goods. The courts deciding on
the dispute takes this convention into account.
4) General conditions of Sale: General. Clauses on a contract, used by a company in all
contracts of a certain type. They are mostly in the advantage of the company. In this
example, the Belgian company wants these conditions to be valid also for Spanish
customers. E.g. Warranty, return policy, responsibilities, when and how to pay …
- Retention of Title: When the customer doesn’t pay and goes bankrupt, you, as a
seller, can demand to get your products back.
- Transport of goods who is responsible (when does it pass from buyer to
seller?) Incoterms!
- Getting paid: how will I be paid; how can I make sure I’m being paid?
- Compensations for damages?
5) Product liability
6) Other legal problems, e.g. problems with competition, problems with the
environment, government issues, problems not linked to suppliers or customers.
Global trade: sum of import and export of products. This global trade has quickly grown over
the past years. This has various reasons: the liberalization of trade, big reduction in
transportation and communication costs, the end of the Cold War (countries do not have to
put a lot of money in military investments anymore).
Growth of China: Because Chinese economy is growing really strong, the global trade of
other countries is stalling. You have to take into account the legal regulations and be aware
of the risks. These risks can be linked to contracts, environment in which the transactions
find place…
Risks related to environment of transactions:
- Economic, political, environmental, societal and technological… changes. you
can try to adapt to these changes, but that is difficult. A lot of these risks are
connected in some sort of way.
- Impact of European law:
1
, International commercial law
Risks in international trade:
Foreign policy risks:
- Border measures: import quota, taxes…
- Behind-the-border measures: long-term policies to make their own companies
bigger, e.g. nationalisation, state aid
- E.g. war, embargos
categories of measures restricting trade:
state aid to national companies: makes it difficult for foreign companies to compete with
their products. This isn’t allowed within EU, unless it brings an advantage for all inhabitants
of a country.
consumption subsidy: non-subsidized product becomes more expensive.
export subsidy: disadvantageous position for the industry in the importing country.
export taxes or restriction: to protect national security (new technology, weapons…), to
preserve natural resources, to encourage the supply of raw materials to local industries.
import ban: to protect existing domestic industries, protection of the health of a
population, protection of the environment…
investment measures: prohibiting foreigners from investing in certain industries.
local content requirement: e.g. in France, series that are dubbed.
migration measure: protection of the own workforce, for people who are willing to work
for a lower wage (and mostly do not invest the earned money here but send it back to their
native country).
public procurement: ‘buy-local’ campaigns.
Quotas and tariff measures: decrease the welfare of domestic consumers, increase the
welfare of domestic producers. The tariffs are passed on to the consumers, products get
more expensive. Risk of smuggle.
Sanitary measures: safety, to make sure that people consume safe products, products
that can harm the consumer aren’t allowed.
technical barrier to trade: e.g. in China, certain wines or spirits have to be tested in a
laboratory to see if there aren’t any extra chemicals in them.
Domestic policy risks:
Events that can happen within the borders of a country.
- Revolt and civil wars.
- Risk of civil unrest and revolts.
- Risk of financial/ economic crisis.
- …
Economic policy risks:
- Capital controls: when government tries to keep the money inside the country.
- Nationalization: When government takes over a company.
Credit insurance:
- For protection against the aforementioned risks.
- Never covers 100%
- Often provided by private companies
2
, International commercial law
International contract of sale:
- Legal systems differ from one country to another
- How are legal systems dealing with general conditions of sale and retention of
title? contracts of sale!
- Deals with transport as well important in international trade (e.g. Inco terms),
product liability, payment conditions…
Chapter 2: International private law and European law
International private law deals with the main questions concerning international
conflicts:
Jurisdiction
Applicable law
Execution of court decisions
solutions to legal problems arising out of an international legal relationship.
Main sources of International commercial/ business law:
Treaties
European law (big part)
Rules made by private international entities such as the international chamber of
commerce (ICC) about for example the Incoterms
Less important sources: national law and court decisions.
European law:
- Deals with several aspects of international private law
- Basis of the EU: - TEU and TFEU
- Main points of TEU:
Principles and values of the EU
Main objectives of EU
Main institutions of EU
Rules of common foreign and security policy.
- Main points of TFEU
Free movement of workers
see PowerPoint.
-ICJ (international court of justice): interpretation of European law
-European Commission
-EU law: directly applicable: no need for further acts by the governments of the
Member states, the governments don’t have to change their own national law
Directly effective: give rights to nationals of the member states who can rely on
them in a court in their own country.
Free movement of persons
Free movement of goods
Rights to equal pay for men and women
Competition law
Main points of TFEU!
3
