Transcript Transnational Business Law

Transnational Business Law
International and
Foreign Law Research
Nov. 8, 2006
Increase of International Trade &
Investment
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Reduced tariff and nontariff barriers to trade (World
Trade Organization agreements & regional trade
agreements)
More nations transition to market economies
Improved communication (e-Commerce)
Reduced foreign investment barriers
Technology transfers of IP easier
Points from Reading
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Essien, Victor, “Research in Transnational
Business Law,” in Accidental Tourist on the
New Frontier: An Introduction to Global Legal
Research, Jeanne Rehberg and Radu D.
Popa ed. (Littleton: Rothman, 1998) p207230.
Terms
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International business law
International commercial law
International transactions
Transnational law
International trade law
Law of international trade and investment
Definition ?
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Regulation of business relationships across
borders and with
countries/individuals/corporations.
Lex Mercatoria – Latin for “the law of merchants”
Three Elements of Transnational
Business Law
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Trade
Licensing or Franchising
Investment
(1) International Trade
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Import and export of goods and services
Balance: protect local industries from harm by foreign competitors
AND encourage trade across borders.
Barriers to trade: tariffs (import & export duties), import quotas,
import licensing procedures, environmental standards, customs
procedures, government procurement policies and subsidies etc.
Limit these barriers: bilateral treaties and trade agreements with
“most favored nation” status (both agree no other nation receives more
favorable treatment)
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General Agreement on Tariffs and Trade (GATT, 1947), replaced by World
Trade Organization (WTO, 1995) an international arrangement with over
149 countries, holding Multilateral Trade Negotiations (e.g., Uruguay
Round, Doha Round)
North American Free Trade Agreement (NAFTA)(US, Canada, Mexico) –
free trade area agreement
International Trade
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WTO Structure
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Ministerial Body (meets every 2 years, Seattle)
General Council (main governing body)
Secretariat (staff)
WTO Dispute Resolution Process
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“request for consultations” = complaint
Panel investigates & reports
Appellate body (appeals routine)
Implementation:
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Loser must bring into compliance. If not, winner can retaliate.
Other Issues of International Trade
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Customs Classification and Valuation
Antidumping Duties
Subsidies & countervailaing duties
Boycott law
Antitrust Laws
International Sales Law
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UN Convention on Contracts for the International Sale of Goods
(CISG), Apr. 11, 1980, 19 I.L.M. 671. (entered into force Jan. 1, 1988).
– Governs sale of goods between parties in US and over 40
countries.
– Drafted by UN Commission on International Trade Law
(UNCITRAL) - goal of unification of international commercial law
(e.g., UNCITRAL Model Law on Electronic Commerce)
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INCOTERMS: Written formulation of “international commercial
terms” drafted by International Chamber of Commerce
Topics: bills of lading, sales agent and distributorship
agreements, countertrade agreements (barter), letters of credit,
electronic commerce
UNIDROIT: International Institute for the Unification of Private
Law (e.g., draft uniform law on international sales)
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(2) Licensing and Franchising
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Holder of Intellectual Property rights (copyright, trademark, patent)
grants rights to a foreign entity.
Franchising = form of licensing that gives you the right to use a trade
name or trademark in offering goods/services (for a fee).
Avoid the “Issues” related to Trade, but lose control/ownership.
Governed by Agreements, Treaties, Regulations.
Transfer of Technology Agreements (Multinational Governance)
 Trade Related Intellectual Property Rights (TRIPS) from WTO
Uruguay Round (1993)
 Paris Convention (1967) – patents
 NAFTA & technology transfers
(3) Investment
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Direct = ownership and control of business in
host country (invest in manufacturing,
mining, farming, assembly facilities etc.)
Portfolio = owning only MINORITY interest in
a foreign venture and getting money via
dividends (no management).
Investment
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Who governs? Host Nation, Home Nation, Multi-National
Organizations.
EU, NAFTA (Chpt. 11), WTO investment rules (TRIMs)(trade
related investment measures – mixture of barriers and
incentives)
Organisation for Economic Cooperation and Development
(OECD) – 30 member countries; Guidelines for conduct of
multinational enterprises; promote democracy and market
economy
UN & International Chamber of Commerce: create
investment rules
World Bank (home of International Centre for the Settlement of
Investment Disputes – arbitration of disputes)
Bilateral Investment Treaties (BITs)
Resolving Cross-Border Business
Disputes
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International Commercial Arbitration
Dispute Resolution Panels
Litigation
International Commercial Arbitration
(ICA)
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Binding; avoid court
Increasing in Americas, Europe, Middle East.
UN Convention on Recognition and Enforcement of Arbitral
Awards (1958) (New York Convention).
Two types
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Ad Hoc (parties select arbitrators and rules)
Institutional (e.g., International Chamber of Commerce Court of
Arbitration)
Arbitration Rules
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UNCITRAL Arbitration Rules
World Bank’s International Center for the Settlement of Investment
Disputes (ICSID) Arbitration Rules
International Chamber of Commerce (ICC) Rules
International Business Litigation
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Issues: jurisdiction, location, service of
process abroad, evidence, remedies
(punitive damages?), enforcement of
judgment.