International Business Law Dr. Paulius Čerka

International law ? 1. Public International Law. 2. Private International Law. 3. International Commercial Law. 4. Transnational Law. 5. Comparative International Law.

SOURCES OF LAW FOR INTERNATIONAL BUSINESS TRANSACTIONS 1) INTERNATIONAL LAW: governs conduct outside nation-states 2) NATIONAL LAW: governs conduct within nation-states home state host state

LEGAL GEOGRAPHY OF THE WORLD 1) Romano-Germanic Civil Law 2) Anglo-American Common Law 3) Islamic Law (“Shari’a”) 4) Socialist Law

Public International Law problem NO WORLD LEGISLATURE TO MAKE THE LAW NO WORLD EXECUTIVE BRANCH TO ENFORCE THE LAW NO WORLD COURT TO RESOLVE INTERNATIONAL DISPUTES

INTERNATIONAL DISPUTE RESOLUTION United Nations International Court of Justice (ICJ) (“Peace Palace”) only nations can sue (“standing”) no submit to jurisdiction no comply with judgment no precedent

SOURCES OF INTERNATIONAL LAW Treaties & Conventions Custom General Principles Judicial Decisions & Scholarly Writings

Main “commercial” conventions: CONVENTION ON THE INTERNATIONAL SALE OF GOODS (CISG) HAGUE CONVENTIONS NEW YORK CONVENTION CONVENTIONS ON THE TRANSPORT OF GOODS (CMR)

CONVENTION ON THE INTERNATIONAL SALE OF GOODS (CISG) DEVELOPED BY UNCITRAL (UN Commission on International Trade Law)  HQ in Vienna, Austria  60 representatives from nations in every world region 69 COUNTRIES  2/3 of all world trade  5 continents

ICC INCOTERMS 2000 STANDARD CONTRACT TERMS CREATED BY ICC IN TERMS 4 GROUPS: C, D, E, F

HAGUE CONVENTIONS SERVICE OF PROCESS DISCOVERY CHOICE OF COURTS AGREEMENT

NEW YORK CONVENTION arbitration countries (Gabon & Bahamas 3/07) presumption of enforcement award in country member of treaty arbitration agreement in writing signed by the parties authenticated original or certified copy

Vision: A common (European) contract law Assumption:  Plurality of systems is confusing  Conflict rules are complicated  Domestic legal system are meant for domestic transactions Vision:  An international system deriving from the parties’ own practice

Restatements To improve lex mercatoria’s weaknesses:  Difficult to determine  Not systematic  Too vague 1994, UNIDROIT Principles of International Commercial Contracts, 1995, PECL  Not a codification of existing principles  Systematic set of principles based on consensus among international academics

UNIDROIT Principles of International Commercial Contracts Drafted in 1994 by the International Institute for the Unification of Private Law Establish a balanced set of rules designed for use throughout the world No binding effect Persuasive authority

Principles of European Contract Law Commission on European Contract Law” : PECL I,II and III: mission_on_ecl/ Aim of PECL  Binding for all EU public contracts  Binding for private contracts, if referred to by parties  Long term: binding for all contracts

CONTRACT LAW COMPARISON: EUROPE (VS. UNITED STATES)  1997 EUROPEAN PRINCIPLES (US = Restatement of Contracts)  NO WRITING REQUIREMENT (US = $500 or more for sale of goods)  ORAL EVIDENCE OF MODIFICATION (US = parole evidence rule)

COMMON LAW pacta sunt servanda (contracts are binding) good faith in contracting consideration (quid pro quo) CIVIL LAW abus de droit (no enforce unfair clauses) good faith in negotiation (culpa in contrahendo) no consideration

 ADVERTISEMENTS CAN BE OFFERS (US = no)  RECEIPT AS ACCEPTANCE (US = mailbox rule)

 BREACH OF CONFIDENTIALITY IN NEGOTIATIONS (US = no)  NACHFRIST NOTICE = additional time for performance if seller gives notice (US = no)  LIQUIDATED/PENAL DAMAGES the same