Exam international business law 16-06- The exam material consists of chapters 1, 3, 4, 7, 8, 9, 10 and 11. 4 versions A dictionary is allowed The review will be announced on nestor 40 multiple choice 4 open questions, choose from 6 Make sure you think of the steps When answering a IBL question, take the following steps:

Read the question (difficult words – legal jargon)
Identify the legal issue
Arguments of the parties involved
Find info to solve the issue
Present a possible solution Sometimes the question however is not suitable Topics:
1. Burden of proof in criminal and civil law Burden of proof: The responsibility of proving a disputed charge or allegation
2. Objective of criminal law, what does it aim to achieve Civil law is between persons (or organization) Sue someone Plaintiff/claimant – defendant On the balance of probabilities Objective is to compensate someone for damage/stop doing something/start doing something Found to be liable Criminal law is towards Prosecute someone Prosecuter (state) and defendant/accused Beyond reasonable doubt (sure) Objective is to punish Found guilty

Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restoration. 3. The tort of defamation If the statement is made in writing and published, the defamation is called &quot;libel.&quot; If the hurtful statement is spoken, the statement is &quot;slander.&quot; The government can't imprison someone for making a defamatory statement since it is not a crime. Instead, defamation is considered to be a civil wrong, or a tort. 4. The tort of negligence The neglect or omission of reasonable precaution or care. 5. Tort of trespassing Trespass to land is today the tort most commonly associated with the term trespass; it takes the form of &quot;wrongful interference with one's possessory rights in [real] property&quot; 6. Tort of comity Definition: ‘the rules of politeness, convenience and goodwill observed by states in their mutual intercourse without being legally bound by them’. Example: foreign diplomats importing goods 7. Areas of private international law Private international law: The part of international law that deals primarily with the rights and duties of individuals and nongovernmental organizations in their international affairs. 8. Table in the book 1 pg 22 Public international law - State territory - State succession - State responsibility to aliens - Law of the sea - International dispute settlement - Law of war Private international law - Torts: libel, slander, negligence, trespass and nuisance. (belasteren, false statements, nalatigheid, binnendringen, hinder) a duty of care - Money and banking - Ipr: intellectual property rights (IPR) are trademarks, copyright, patents, industrial design rights - Contracts - Transportation - Financing - Antitrust – competition - Taxation

Concept of ‘pacta sunt servanda’ once you have a contract, you can’t get out
Changes in territorial sovereignty pg 38 couple of facts Territorial sovereignty: the right of a government to exclusively exercise its powers within a particular territory. Merger rule: Legal rule that the treaties in effect in a former state remain in effect in its territory when it becomes part of a new state. Moving boundaries rule: Legal rule that the treaties of a state absorbing new territory become effective within the absorbed territory. Clean slate doctrine: doctrine that a new state coming into existence through decolonization is under no obligation to succeed to the treaties of its former colonial power. Succession of states: Occurs when (1) two states agree to join and form a single state or (2) a state dissolves and its constituent states assume the role of independent states. Disputes between two sovereign states over state succession are not matters for municipal court to decide.
Organization of the united nations, type, what does it do, why do we have it UN: most important IGO. Its charter, a multilateral treaty, came on force October 24,1945. Its goals are the maintenance of peace and security in the world, the promotion of economic and social cooperation, and the protection of human rights. Members are sovereign equal, disputes must be settled peacefully, and all members are obliged to fulfil their international obligation in good faith. The organs it has: The general assembly, the security council, the secretariat, the international court of justice, the trusteeship council, and the economic and social council.
Same for European union. But more: supremacy principle EU: IGo that has as its goals the elimination of internal frontiers and the establishment of a political, economic, and monetary union. Founded in 1951. Supremacy principle: EU law within its scope of applicability is superior to the laws of the member states. This principle has two consequences: (1) the member states are required to bring their internal laws into compliance with the EU law and (2) EU law is directly effective within member states.
European commission, functions, what does it do The European commission: The administrative and executive branch of the EU. It drafts legislation for submission to the council and the parliament, and once the legislation is adopted it is responsible for its implementation. Oversees treaties, and represents the EU internationally.
Same goes for European council European council: consists of the heads of state of the member states, along with its own president and the president of the European commission. They define the general political directions and priorities.
Remember what the free trade area FTA: a group of states that have reduced or eliminated trade barriers among themselves but maintain their individual tariffs in dealing with other states.
Customs union Customs union: a group of states that have reduced or eliminated trade barriers among themselves and have established a common external tariff.
Consultative association
Legal systems end of chapter 1, English law Civil law: from roman and Germanic practice set out in national law codes. As distinguished from public law, the body of law dealing with the rights of private citizenship. Public law: Constitutional and administrative law. It is not included in civil law codes. Common law: the legal system of England and countries that were once English colonies. It is based primarily on court-made rules or precedent.
Equity, workings of precedent table 1! Equity: Being just, impartial, and fair. Justice applied in circumstances not covered by rules of law. Precendent: Going before time, an act or instance that may be used as a model for later similar cases.
Dispute resolutions. Disadvantages of going to court Courts are public Firms do not likely want to be public Court is also very expensive and is uncertain. Also time is a factor, a court determines how long it will take Before going to court, check whether it is worth to bring someone else to court, if they do not have any money or assets it is not worth it ‘you don’t want to pluck feathers from a naked chicken’ If you do go to court; the first question they will ask is, do we have the jurisdiction or not.
Jurisdiction in criminal cases. 4 types of nexus Territoriality nexus: criteria that allow a court to assume criminal jurisdiction over an offense that was committed within the forum state. Nationality nexus: criteria that allow a court to assume criminal jurisdiction when the defendant is a national of the forum state. Protective nexus: criteria that allow a court to assume criminal jurisdiction in cases in which the national interest of the forum state was injured. Universality nexus: criteria that allow a court to assume criminal jurisdiction if the offense is one recognized by the international community as being of universal concern.
Jurisdiction in civil cases Civil suits: municipal courts can extend their jurisdiction over disputes between parties who appear within the territory of the forum state.
The European court of justice, what powers do they have. The jurisdiction European court of justice: Supreme tribunal of the EU. The full court will sit for: (1) appeals from the court of First instance (The EU’s trial court with jurisdiction over (a) disputes brought by private persons against an EU institution and (b) employment disputes between EU institutions and their employees), (2) complaints brought by the commission or by one member state against another member state for failure of the latter to meet its obligations under EU law, (3) complaints brought by a member state against the EU institution and (4) actions of one of the bodies seeking the annulment of an EU legal measure.
Alternative dispute resolution Diplomacy: the process of getting parties to a disagreement to an understanding through negotiation, mediation, or inquiry. Negotiation: The process of reaching an agreement by conferring or discussing Mediation: bringing about a peaceful settlement or compromise between parties to a dispute through benevolent intervention of an impartial third party Conciliation: the process by which an impartial third party makes an independent investigation and suggests a solution to a dispute. Good offices: a third party who provides the means by which two disputing parties may communicate with each other. Inquiry: The process by which an impartial third party makes an investigation to determine the facts underlying a dispute without resolving the dispute itself.
International Centre for the Settlement of Investment Disputes. Note unusual situation when a legal person takes a state to this body Arbitration: The process by which parties to a dispute submit their differences to the judgement of an impartial third person or group selected by mutual consent. ICSID: arbitration between private persons and states, and between persons and persons, is commonly arranged through a permanent arbitration tribunal such as the ICSID. Purpose: to encourage private investment in underdeveloped countries
Read anti-dumping and counter Anti-dumping duties to offset advantages obtained by imported goods that were sold below the price charged in their home market or below their actual cost Countervailing duties to counteract foreign export subsidies
Subsidies that people get involved GATT seeks to avoid the use of subsidies and prohibits use of export subsidies. Agreement on subsidies and countervailing measures: SCM agreement. Classifies subsidies as prohibited, actionable, non-actionable; forbids the first class and allows affected WTO member states request consultation, to obtain a remedy from the WTO&lt; or to impose countervailing duties independently.

Prohibited subsidy: a subsidy that is presumed to be trade distorting because it requires export performance or is contingent upon the use of domestic instead of imported goods. Actionable subsidy: a subsidy that may be challenged as trade distorting if it injures the domestic industry of another WTO member state, nullifies or impairs the benefits due another member state, or causes or threatens to cause serious prejudice to the interest of another member state. 40. Systems of preferences under GATT GATT: General agreement on tariffs and trade 1947. Multilateral agreement that set out the rules under which the contracting states parties were committee to negotiate reductions in customs tariffs and other impediments to international trade in goods. Most-favored-nation status: when a GATT member nation sets a favourable tariff rate on a particular type of goods imported from one GATT member, that member nation may not assess a higher tariff on the particular type of goods being imported from any GATT nation. National treatment: once goods are legally imported, they must be treated the same way as domestic goods. Transparent: trade regulations of GATT members must be published and available to all other GATT nations and their nationals. Tariffs: major principle of GATT is that each member state may protect its domestic industries only through the use of tariffs. 41. Dispute resolution under World Trade Organization. WTO: international intergovernmental organization responsible for implementing and enforcing international rules regulating trade between nations Dispute resolution: process itself is governed by an agreement known as the Understanding of Rules and Procedures Governing the Settlement of Disputes. DSU Dispute settlement organs: the organs charged with administering and carrying out the DSU are (1) the Dispute Settlement Body, (2) the Dispute Settlement Panels, and (3) the Appellate body. DSB: responsible for establishing panels, adopting their reports and those of the Appellate body, monitoring implementation of rulings and recommendations, and authorizing the suspension of concessions and other obligations. DSP: ie. Ad hoc tribunal. To assist the DSB by making objective assessment of the matter referred to it, including the facts of the case, the applicability of and conformity with the pertinent WTO agreements. AB: a panel decision may be appealed to the AB only by parties directly involved in the dispute. 42. Exceptions under GATT Escape clause: authorizes importing country to suspend, withdraw, or modify concessions if increased imports threaten serious injury to domestic producers. Exceptions on tariff rule: threatens food or essentials, agriculture, balance of payments, economic development and market commodities. General exceptions:

international labour organization: a specialized agency of the UN responsible for promoting international efforts to improve working conditions, living standards, and the equitable treatment of workers worldwide. General conference: the legislative body of the ILO Governing body: ILO agenda International labor office: the secretariat Two instruments: conventions and recommendations ILO conventions: labor conventions sponsored by the ILO ILO recommendations: International labor office opinions as to proper labor practices and as to how ILO conventions should be interpreted. 48. Intellectual property. Definition, categories Intellectual property: Useful artistic and industrial information and knowledge. Creature of national law. Artistic property: artistic, literary and musical works. Industrial property: inventions and trademarks 49. Categories of copy right Copyright: an incorporeal statutory right that gives the author of an artistic work, for a limited period, the exclusive privilege of making copies of the work and publishing and selling the copies. A work must be original but what is protected is not the idea or knowledge contained in the work, but the expression (the exact manner in which a particular work of authorship is set down in a tangible way) of the work. So does not include: ideas, procedures, methods or concepts. Pecuniary right: the right of an author to exploit a copyrighted work for economic gain. Right of reproduction: the exclusive right of an author to make multiple copies of a copyrighted work. Distribution rights: the right of an author to place a copy of a copyrighted work into circulation for the first time Right of public performance: the right of an author to communicate copyrighted work to the public. Moral rights: the right of an author to prohibit others from tampering (intentional modification of products in a way that would make them harmful to the consumer) with a copyrighted work. 50. Doctrine of exhaustion under copy right law First sale doctrine: once a copy of a copyrighted work is in circulation, the author has no further right to control its distribution. Most countries. 51. Objective of trademark law Merchants and others use five marks to identify themselves and their products. True trademark: a mark or symbol used to identify goods of a particular manufacturer. Trade name: a mark or symbol used to identify a manufacturer

Service mark: a person who provides services Collective mark: identify a group Certification mark: used by licensee or franchisee to indicate standards 52. How do you get a trademark? Acquire trade mark: (1) by use; and (2) by registration. Registration criteria: (1) must not infringe another mark and (2) be distinctive; possessing a unique design that distinguishes a product from similar products. 53. Definition of a patent, criteria for getting one Patent: an incorporeal statutory right (A statutory right is a right granted under a statute, whether federal or state. Statutory means relating to statutes, which are laws enacted by a legislature or other governing body) that gives an inventor, for a limited period, the exclusive right to use or sell a patented product or to use a patented method or process. Two justifications: (1) that patents are a confirmation of the private property rights of the inventor and (2) that a patent is a grant of special monopoly to encourage invention and industrial development. Design, plant, utility and petty patents. Criteria of an invention to get a patent. (1) invention is new, if no other inventor has obtained the patent for the same invention; it (2) involves an inventive step if the ‘subject matter’ of the invention was not ‘obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains’; and it is (3) capable of industrial application if the product or process is one that can be used in industry or commerce. 54. International patent organizations Patent organization treaty in 1970. International application. 55. Conventions Berne conventions: convention for the protection of literary and artistic works. Requires member states to establish common minimum rules to protect the pecuniary and moral rights of authors without requiring them to comply with particular formalities. Four basic principles: (1) national treatment requires each member state to extend to nationals of other member states treatment no less favourable than that which it gives its own nationals. (2) non- conditional protection is the requirement that member states must provide protection without any formalities. (3) the principle of protection independent of protection in the country of origin allows authors who are nationals of non-member states to obtain protection within the Berne union. (4) principle of common rules: minimum standards for granting copyrights common to all member states. Rome convention: international convention for the protection of performers, producers of phonograms, and broadcasting organizations. Paris convention: the international convention for the protection of industrial property. 56. World intellectual property organizations

Subjective intent approach: rule that contracts should be interpreted according to the actual intent and understanding of the parties at the time they made their agreement. Objective intent approach: rule that contracts should be interpreted according to the understanding that a reasonable person would have had at the time the agreement was made. Parol evidence rule: when a contract describes itself as being complete and final, preliminary or informal agreements made prior to or at the same time the contract was made will be ignored when interpreting it. 65. Whether under this conventions contracts need to be written up. A contract of sale need not be concluded or evidenced by writing and it is not subject to any other requirements as to form. It may be proved by any means, including witnesses. Article 11 Article 96 however, authorizes a contracting state ‘whose legislation requires contracts of sale to be concluded in or evidenced by writing’ to make a declaration at the time of ratification that article 11 does not apply where any party has his place of business in that state. 66. Valid offer is what under CISG? Offer: a proposal by one person to another indicating an intention to enter a contract under specific terms. Proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and price. An offer becomes effective only after it reaches the offeree. Acceptance is an agreement to enter a contract proposed by an offeror. Offers that do not state that they are irrevocable can be revoked any time before the offeree dispatches an acceptance. A contract comes into existence at the point in time an offer is accepted. 67. What happens when receiver changes things, does it change things? Modification of offeree Additional changes are considered to alter the terms of the offer materially. They will become part of the contract unless the offeror promptly objects. 68. Fundamental breach When one party substantially fails to deliver what the other reasonably anticipated receiving, there is a fundamental breach Remedy is avoidance: notification by a party that he is cancelling a contract and returning everything already received. Nachfrist notice: the fixing by the buyer of an additional reasonable period of time in which the seller may perform. 69. Duties of buyer and seller under CISG Seller’s duties: (1) deliver the goods, (2) hand over any documents relating to them and (3) ensure that the goods conform with the contract. Buyer’s obligations: (1) pay the price and (2) take delivery of the goods. Caveat emptor: ‘buyer be careful’

Read handout of guest lecture Competiton law provides: boundaries to commercial behaviour Competition law facilitates a: properly functioning market Only concerned with negative behaviour in the market.
Cartel law
Abuse of dominance
Merger control
State aid Decision process: unexpected visit of commission. What is the relevant product market? Only beer or also substitutes as wine Research to conclude how big the relevant product market is. What is the relevant geographic market? National, regional or global. Fine: money. Important institutions: European level: European commission, cvria Court of justice has the final say National level: Autoriteit Consument &amp; markt. Free market is fundamental in Europe. Cartel: coordinate behaviour in market, secretly: price agreements  Hurts consumer. First to tell European commission is free of fines Cartel law: Treaty on the functioning of the European union Article 101. Significant market share for dominant position is mostly &gt; Small competitors or not Vertical integration: supply chain Market entry barriers
Duties of the carrier under the bill of lading, the Hague rules Check to see that the goods loaded comply with the goods listed. Only check for outward compliance. Labels and packaging. Hague rules apply to carrier and shipper. Third parties are not covered by the Hague rules. Due diligence: a. Make the ship seaworthy b. Properly manning, equipping, and supplying the ship. c. Making the holds, safe for preservation. d. Properly handling and loading
Immunities of the carrier Due diligence must be shown, external factors.  reasonable steps taken by a person to avoid committing a tort or offence. Act of war Quarantine restrictions Neglect by the master, pilot etc
Himalays clause, privity of contract Himalya clause: a term in a bill of lading that purports to extend to third parties the carrier’s liability limits established by the Hague rules. Thus, officers, agents, stevedores can be sued under local law. Privity of contract; a contract between seller and shipper. They are the only persons who are a party to a contract and may enforce its provisions.
Maritime lien, charge on a ship. Ship can be arrested Maritieme lien: a charge or claim against a vessel or its cargo. Main purpose is to ensure that a vessel can adequately obtain credit to properly outfit itself for a voyage. Demmurage: a charge made by a ship-owner when a charterer keeps a ship idle for more than the agreed upon number of lay days.
Force majeur Superior force: an event of effect that cannot be reasonably anticipated or controlled. Delay in shipment is not force majeure. Risk of loss passed once goods were put on board.
Concept of dirty hands Maxim that a party whose actions cause the other party to breach may not complain. The plaintiff took inappropriate steps in attempting to recoup a loss to bringing a claim.

Important cases

Case 1 – 1

The Lotus case (p. 27)

The Anglo-Norwegian Fisheries Case (p. 27)

The Greco-Bulgarian Communities Case (p)

The Exchange of Greek and Turkish Populations Case (p. 29

Case 1-

Costa v ENEL case (p. 50)

Case 3 – 1

The Holiday Inns v Morocco Case (p. 141)

The Alcoa Case (p. 142)

3. 3-

The Multiproduct case (p. 170)

Case 3 – 7

Case 3 – 8

7 – 1, 7 – 2, 7 – 3, 7 – 4, 7 – 5

8 – 1, 8 – 2, 8 – 6

9 – 1, 9 -2, 9 -3 , 9 – 4, 9 – 5,

10 – 1, 10 – 2, 10 – 3

11 – 1, 11 – 3

IBL 2016: Tutorial Overview

Tutorial 1 Chapter 1 (question 1,

2, 4 and 5) and 3

(question 1, 2, 8 and 9)

Tutorial 2 Chapter 7 (question 2,

3, 9 and 10) and 8 (1, 5 ,

6 and 7)

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Exam international business law 16-06-16

The exam material consists of chapters 1, 3, 4, 7, 8, 9, 10 and 11.

4 versions

A dictionary is allowed

The review will be announced on nestor

40 multiple choice

4 open questions, choose from 6

Make sure you think of the steps

When answering a IBL question, take the following steps:

1. Read the question (difficult words – legal jargon)

2. Identify the legal issue

3. Arguments of the parties involved

4. Find info to solve the issue

5. Present a possible solution

Sometimes the question however is not suitable

Topics:

1. Burden of proof in criminal and civil law

Burden of proof: The responsibility of proving a disputed charge or allegation

2. Objective of criminal law, what does it aim to achieve

Civil law is between persons (or organization)

Sue someone

Plaintiff/claimant – defendant

On the balance of probabilities

Objective is to compensate someone for damage/stop doing something/start doing something

Found to be liable

Criminal law is towards

Prosecute someone

Prosecuter (state) and defendant/accused

Beyond reasonable doubt (sure)

Objective is to punish

Found guilty