Chapter 25 International Law and Global Commerce McGraw-Hill/Irwin Copyright © 2011 by The McGraw-Hill Companies, Inc. All rights reserved.

Chapter Overview The definition and sources of international law. International dispute resolution methods. Commercial and intellectual property regulation in an international context.

Public Law versus Private Law Public international law primarily addresses relations between individual countries and international organizations. Private international law, which focuses on regulation of private individuals and business entities.

Sources of International Law Treaties Customs Judicial Decisions

Yahoo! v. La Ligue Contre Le Racisme, 169 F. Supp 2d 1181 The court reasoned that because the display of Nazi memorabilia could not be prohibited in the United States because of First Amendment concerns, a U.S. court cannot honor a foreign judgment that would violate the Constitution were it to be applied in the United States.

INTERNATIONAL ORGANIZATIONS UN WTO OEDC IMF

International Court of Justice Judicial branch of the United Nations. It is based in the Netherlands and its main functions are: to settle legal disputes submitted to it by member states give advisory opinions on legal questions.

European Court of Justice Sits in Luxembourg and is the final arbiter of the codes governing European Union (EU) member countries.

International Criminal Court Has global jurisdiction over criminal aspects of international treaties.

Sovereign Immunity One of the oldest doctrines of international law is that of sovereign immunity. In general, this doctrine stands for the proposition that, with some exceptions, foreign nations are exempt from jurisdiction by U.S. courts (and vice versa). The Foreign Sovereign Immunities Act (FSIA) is a federal statute codifying this concept.

Butters v. Vance International, Inc., 225 F.3d 462 (4th Cir. 2000) “Any type of governmental immunity reflects a tradeoff between the possibility that an official’s wrongdoing will remain unpunished and the risk that government functions will be impaired. The resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative.”

LEGAL SYSTEMS OF NATIONS Legal systems of the world: civil law, common law, religious-based law, and mixed law systems (referring not to a single system but to a combination of systems).

Civil Law Systems Countries using civil law systems have drawn their body of law largely from the Roman law heritage. Have opted for a systematic written codification of their general law.

Common Law Systems Countries whose law, for the most part, is based on English common law concepts and legal organizational methods that strongly favor use of case law. Great Britain, United States, Canada, and Australia, and others.

Arbitration of International Disputes The major difference between international and domestic arbitrations is that international arbitration awards have very wide enforceability. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention), allows for the enforcement of arbitration awards in many major countries, provided that the arbitration is international.

DiMercurio v. Sphere Drake Insurance PLC, 202 F.3d 71 (1st Cir. 2000) When one party challenges the validity of an arbitration clause under the Convention, the court asks: (1) Is there a written agreement to arbitrate? (2) Does the agreement provide for arbitration in the territory of a signatory of the Convention? (3) Does the agreement arise out of a commerce? (4) Is a party to the agreement not an American citizen, or does the commercial relationship have some reasonable relation with one or more foreign countries?

International Arbitration Forums International Chamber of Commerce’s International Court of Arbitration in Paris, London Court of International Arbitration American Arbitration Association (AAA).

INTERNATIONAL MEDIATION Mediation and conciliation both involve a consensual (rather than adjudicative) process, often with the involvement of a neutral third party. Such forms of dispute resolution may loosely be described as “third-party-assisted negotiation.”

Foreign Corrupt Practices Act (FCPA) The law prohibits a company, its officers, employees, and agents from giving, offering, or promising anything of value to any foreign (non-U.S.) official, with the intent to obtain or retain business or any other advantage. This prohibition is interpreted broadly in that companies may be held liable for violating the antibribery provisions of the FCPA whether or not they took any action in the United States.

U.N. Convention on Contracts for the International Sale of Goods 63 member countries. Like America’s Uniform Commercial Code, the UNCISG exists to fill-in the terms of a sale of goods contract when the parties haven’t otherwise agreed.

Coverage and Major Provisions of the UNCISG No Writing Required Offer and Acceptance rules Remedies for breach

INCO: International Chamber of Commerce Terms With title, risk of loss, and delivery terms, the language barrier can lead to confusion among the parties and to disputes regarding a loss. The International Chamber of Commerce provides international abbreviations, INCO terms, to reduce confusion.

ENFORCING IP RIGHTS ABROAD Countries have improved intellectual property rights protection significantly over the past decade. Even when the government of a country agrees to abide by them (sometimes to avoid trade sanctions), these agreements are sometimes difficult to enforce.

General Agreement on Tariffs and Trade (GATT) World Trade Organization (WTO), administers the agreement to set standards. Agreement on Trade-Related Aspects of Intellectual Property (TRIPs). TRIPs covers minimum standards for all areas of intellectual property protections and provides for enforcement and dispute resolution.

Agreements on Trademarks International trademark policy is governed primarily by two agreements: Paris Convention Madrid Protocol

Agreement on Copyrights Copyright protection in foreign countries is covered in the Berne Convention agreement.

Agreement on Patents The most important multilateral agreement on patents is the Paris Convention agreement. This agreement has been signed by approximately 160 member countries

learning outcomes checklist 25 - 1 Distinguish between international public law and international private law. 25- 2 Give examples and explain the various sources that are the body of international law. 25- 3 Explain the role of the several international courts.

learning outcomes checklist 25- 4 List the different categories of national legal systems used in the world and give an example of a country in each category. 25- 5 Apply the standards of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

learning outcomes checklist 25- 6 Explain the various methods of alternate dispute resolution in an international context. 25- 7 Articulate several specific laws that regulate international commercial law and understand when each law applies. 25- 8 Identify the methods used to enforce the rights of intellectual property holders in foreign countries.