IMBA International Business Law

rules of order that dictate some minimum expectation for how to live in a society for civility and reduced chaos with reasonable protections of rights and minimal interference of others rights

obligation to prove one’s assertion, always rests on plaintiff

criminal, civil

tort law, contract law

intentional, negligence, strict liability

assault and battery, defamation, false imprisonment, trespassing, intentional infliction of emotional distress

failure to use reasonable care under the circumstances

not intentional or negligent but still wrongdoing/harm done

state statutes, federal statutes, administrative, constitutional, common law, branches of government (checks and balances)

common, civil, theocratic/Islamic, Socialist

rely on previous court decisions through precedent

extensive codes and statutes derived from the Roman era

religion/religious texts are the rule of law

government controlled

Comity, Act of State, Sovereign Immunity

US will recognize judgments of other countries (because we want them to reciprocate and recognize our judgments)

do not interfere with government activities if they are within the boundaries of that country (Mexican company in US cannot fight eminent domain)

will not sue foreign nations in a US court unless it makes sense to do so

country waives their immunity, country engages in activity with direct impact on US, tort was committed within US borders

customs, treaties/international agreements, international organizations

Mutual Assent, Consideration, Capacity, Legality, Statute of Frauds

meeting of the minds between a promisor and promisee, determined by an offer/proposal and acceptance/approval of offer

value given in exchange for both offeror and offeree, past consideration is No consideration, preexisting duty rule

if it is already the job, duty, responsibility, requirement, etc. of the person it is not consideration (firefighter or police officer)

promise of future gifts, can be a benefit for the offeror or detriment to the offeree

the ability or power to do, experience, or understand something

minors, mentally incompetent, intoxicated persons

cannot avoid contracts for necessity items, can avoid/void contracts for luxury/non-essential items and receive full refund in return no matter what

must make some restitution

a contract must have the quality or state of being in accordance with the law

contracts to commit a crime/intentional torts, Sunday contracts (not necessarily anymore), usury violation, regulatory license violation

writing requirement for a contract

must have definite terms, the proposal must be communicated with only the intended offeree (ad in a paper is an invitation to offer, not an offer itself), there must be an objective intent to enter into a contract (reasonable offer)

revocation, rejection, lapse of time, irrevocable offers, death, bankruptcy, destruction of subject matter

act by offeror, can terminate offer anytime before acceptance

act by offeree by saying no to offer, if the offeree then changes their mind and wants to accept they must now make a new offer, counteroffers are considered rejection and new offer

specified, unspecified

exact amount of time is given to consider the offer and that time has elapsed

reasonable but not exact amount of time is given to consider offer under the circumstances and that time has elapsed

require option contracts

requires consideration in return for option to exercise or not in the future (offeree give $50 for 3 days to think about offer)

mirror image rule, mailbox rule

the acceptance must be exactly the same terms as the offer and any deviation makes it a counteroffer (or rejection and new offer)

timing rule that states an acceptance is valid upon dispatch from the offeree and not receipt of the offeror, only applies with consistent or faster medium of communication (mail and mail or mail and fax) and done correctly (proper address and postage, etc.)

any modification of a real estate contract requires new consideration

real estate contract, long term contract (not completed in under a year), promise to pay debt of another, certain marriage contracts (if there is a performance component with the vow – I’ll give you a Porsche if you marry me)

almost anything works (napkin, post it note, printer paper, email, etc.) but must have clear/legible definite terms and signature of party to be charged

all terms must be in the completed writing because no testimony of oral modifications can be submitted during trial if not in writing

perfect, substantial, insignificant

face amount of contract is due if the performance is carried out exactly to the terms in the contract

if there is a good faith attempt at performance but still a technical breach occurs because not all terms in contract are met then the price can be adjust given the problem

if there is a substantial breach of contract which leaves the breached upon party with no recovery then there is no liability to pay

compensatory damages/remedy of resale as a recourse to make the innocent party whole (if a contract for $400,000 and buyer walks away, but can still sell for $385,000 then can only sue buyer for remaining $15,000), no punitive damages are allowed because the goal is not to punish the guilty party but to make the innocent party whole

rules and codes developed in the 1950’s for sales of goods contracts, every state adopted except for Louisiana, does not apply to services or real estate (that would be under common law), for mix of service and goods contract apply UCC or Common depending on which is dominant portion of contract in financial terms

definite terms with a few exceptions

price term can be left open and determined to be fair market value, delivery date can be left open and determined to be at a reasonable time given the circumstances, can have an open delivery location and if it is the first time doing business and do not specify that dictates buyer pickup at seller location, must agree on quantity

firm offer must be made by merchant in that industry (someone who typically deals in that industry) in writing, no consideration is required for extra allotted time to think about offer

no mirror image rule, battle of the forms, mailbox rule applies

if there are only minor deviations or discrepancies between the offer and acceptance then UCC says contract is valid, last shot rule applies

the last revision to come through as an acceptance is in effect as long as an objection does not take place

modifications to goods contracts without consideration is acceptable as long as both parties act in good faith

sales of goods over $500 must be in writing to be enforceable, signature of party to be charged is required unless using written confirmation rule, parol evidence rule is followed

specially manufactured goods, admitting terms under oath, partial performance (take the portion accepted out of the statute and make it binding)

party not being charged can send a confirmation letter/email that satisfies the requirement as long as the party to be charged does not object within a reasonable amount of time, this must occur between merchants in writing that outlines the terms

comply with perfect tender rule, cure rights

protects the buyer by allowing them to insist on perfect performance

allows seller opportunity to correct any defect or discrepancy within timeframe of original deal (if any time left), requires buyer notify seller of problem/why rejection of goods is occurring, does not apply if seller delivers at last minute and order is incomplete or incorrect, if last minute and offer is lacking portion and seller offers buyer something that better than originally offered then more time can be granted but buyer can still reject order

pay, inspection rights

able to inspect goods prior to payment unless it is a cash on demand contract

reject entire order, accept entire order regardless of error, accept correct portion and reject incorrect portion

carrier contracts, non-carrier contracts

shipment contracts, destination contracts

in-transit risk is on buyer, seller must get goods to carrier and then risk is transferred

in-transit risk is on seller until delivery is made directly to buyer

merchant seller, non-merchant seller

risk is on seller even if buyer is late because the seller is a merchant and can rely on inventory insurance

risk is on buyer upon tender of delivery (when it is made available to buyer) even if they do not show up

title, express, implied, disclaimers

proves that goods are not stolen or encumbered

representation of fact about a product will perform as represented, puffery or sales talk does not qualify as an express warranty, model or warranty book presented must match actual product sold

merchantability, fitness

good if fit for ordinary purpose

not restricted to just merchants (as merchantability is), seller must know buyer’s particular purpose, buyer relies on seller’s opinion, seller provides inadequate product recommendations/sale

as is, limited warranty, full or lifetime warranty

voids any breach of merchantability or fitness warranty claims

cannot limit the merchantability or fitness on new products but can limit the duration of said warranty

resale, lost profits

recoup the difference between original contract price and resale price

more for inventory vs. one item with resale

cover

sue for the amount of higher costs due to sudden breach

created in the 1980’s for international sale of goods, influenced by the UCC but not does not/cannot follow it exactly, adopted by about 84 countries

ads can be deemed as offered because typically these sellers have the inventory of multiple items to sell, firm offers do not have to be in writing and can be merchant to merchant, price cannot be open but must be specified, quantity always must be specified

does not follow mirror image rule, follows battle of the forms, mailbox rule is not followed but instead acceptances are valid upon receipt largely due to time zone issues in international transactions

no writing requirements, parol evidence rule not followed

largely due to cultural differences in international transactions (many countries allow or expect verbal agreements/oral contracts) but many international contracts will still have some written component because of the large price involved

does not follow perfect tender rule, can only reject contract if there is a fundamental breach, buyer has inspection rights, cure rights are extended

seller must be notified of the problem, cure is extended beyond original contracted date of delivery to be reasonable and flexible given the nature of international deals

all apply (title, express, implied, merchantability, fitness)

all fall under carrier contracts and Incoterms given international/mutlimodal travel

UCC if both companies are American based, If one is American and one if foreign then CISG applies, if a disagreement on which law controls judge will appoint CISG, CISG is evidence of trade customs and thus controls customs in a country and if a dispute arises over conflict of a peculiar law custom of the CISG can be an influencing factor

trademark, patent, copyright

unique marks to a brand that are valuable to the company due to brand recognition/loyalty

has to the potential to last a lifetime or longer due to renewability, first filing is good for 6 years, each subsequent filing is good for 10 years

requires company policing the marks in order to avoid abandonment and report infringements, Circled R is a registered trademark on the federal level, TM is trademark on the state level

protections for inventions of product, services, and processes

exclusive rights on a patent are granted to the inventor for 20 years, the patent application is made available to the public making the information accessible to competitors (to stimulate competition), royalties are still due to original patent owner for duration of patent

inventor must be able to show the invention is novel, has utility, is non-obvious (to someone experienced in that industry)

if the aspect is extremely valuable companies should pursue trade secret law versus patents to avoid public divulging of information and require employees to sign confidentiality and non-compete agreements

protection of artistic efforts such as written or performed works

good for the lifetime of the artist plus 70 years

further than most think, commercial use (such as in a bar or store) can be subject to licensing fees or otherwise copyright violations, doctrine of fair use

using copyrighted materials for educational purposes is not considered infringement

Paris convention of 1883, World Intellectual Property Organization (WIPO), EU single filing

each country taking part has to give same protection to outside patents that they gave to their own residents, date of intial filing in home country is effective date applied when transferring to/filing in another country

agency of the United Nations, created uniform application process, headquartered in Switzerland 186 countries (wide recognition)

single filing process for 34 countries and one court for patent disputes

Berne Convention of 1886, 2002 Copyright Treaty

did not have to file with any entity but simply include a Circled C on artistic work to get protection from infringement

WIPO takes on copyright filing responsibilities

part of the World Trade Organization, all member countries must recognize all three IP (trademarks, copyrights, patents), all patents must be protection for at least 20 years, all copyrights must be protected for at least 50 years plus the lifetime

full and fair competition, no collusion, no/reduced restraints on trade

government involvement in industry sparked by robber Barron’s but especially Rockefeller wanting to be the only provider in oil industry

Illegal Per Se, Rule of Reason Test

violation of law

horizontal price fixing agreements, horizontal market or territory allocation, group boycotts

permissible or lawfully allowed activities

vertical market or territory agreement, vertical mandatory resale pricing agreement, exclusive dealing contracts (tied to quality)

prohibit sales below cost except if it is a going out of business sale, a grand opening sale, sale of perishables

treat all retailers the same except when pricing to meet competition or cost justification

agreements between competitors at the same level of the supply chain

agreements between members up and won the supply chain (between manufacturers, wholesalers, retailers, etc.)

wrongful attempts to monopolize, innocent attainment of a monopoly, merger activity

62% market share can be considered a monopoly

very good high capital areas, powerful patent

horizontal between competitors which can be damaging to consumers, vertical along the supply chain, conglomerate diversification through mergers

stop collusion that restricts competition, stop abuse from any dominant market share holder

quotas which set restrictions on the number of exports

tariffs/duties, non-tariff barriers

dumping fees, countervailing duties that make up for subsidized goods/industries

quotas, embargoes

restrictions on repatriation of profits, moratorium, political risks

prohibit payment to a country or individual/company within a country

court of international trade

border and transportation authority, emergency preparedness and response, science and technology, information analysis and infrastructure protection

secret service, FEMA, coast guard, customs and border protection

international trade administration

US bureau of industry and trade, looks at national security and policy, enforces US export controls

employment at will doctrine, title VII of the Civil Rights Act of 1964, fair labor standards act (FLSA), equal pay act of 1963, age discrimination act

employer can fire employee for any reason including no reason at all

if employee has jury duty, if employee has filed for protected benefits such as worker’s compensation

prohibits employment discrimination on the basis of the neutral factors of race, religion, sex (including orientation/transgender beginning in 2012), national origin, or color in terms of hiring, firing, and terms or conditions of employment

Bona fide occupational qualification

work requirement reasonably necessary to the normal performance of a job, such as being a certain age or gender, or having the ability to lift a certain amount of weight (would not hire a male to oversee a girl’s locker room or a Jewish Rabbi to preach at a Catholic church, etc.)

reviews claims by disenfranchised employees who may be victims of discrimination under Title VII

old law stated that it had to involve a loss of benefit (sleep with me or lose your job), new law states it can be a loss of benefit and/or simply creating a hostile work environment (men making lewd comments but no physical threats toward women)

prohibits child labor, stipulates overtime pay

females should make the same salary as males, failed due to misconstrued meaning of how the act was defined in terms of similarity between male and female counterparts in the workplace (had to have the exact same job, years of service, etc.), now determined that pay can be different if there is a reasonable factor other than sex

labor law that forbids employment discrimination against anyone at least 40 years of age in the United States

worker compensation, unemployment benefits, social security, occupational safety and health administration (OSHA)

form of insurance providing wage replacement and medical benefits to employees injured in the course of employment, through no fault of their own, in exchange for mandatory relinquishment of the employee’s right to sue his or her employer for the tort of negligence

payments by an employer to a laid off worker

paid by taxpayers and matched by employers, includes 4 programs

retirement, medicare, disability, death

main federal agency charged with the enforcement of safety and health legislation through inspections

job security in Europe, EU Employment Discrimination Prohibitions of 2000, international labor organization (ILO)

excellent and sturdy job security, employee participation in management decisions, attractive severance packages for employees which often deters firms from firing people frivolously, termination must be for a cause due to wrongful termination suits being more prevalent

counterpart but broader than title VII in US

after WWI (1919), first push to look at working conditions focusing on safety issues, became an agency of the UN, US became involved in 1934 to stress the communication between workers and employers, national labor relations act (NLRA) of 1935

also known as the Wagner Act, allows private employees the right to form a union and engage in collective bargaining, formation of unions are by vote and majority rules, collective bargaining systems require that the employers negotiate with a union representative, while employees have the right to engage in strike activities employers also have the right to engage in lock out activities and/or hire permanent replacements, employees must pay dues and support union except for Right to Work Statute state employees, Europe is more unionized than US especially in Scandinavian countries

allow state employees the right to work without mandatory union membership/dues requirements

settlement agreements, mediation, arbitration, litigation

resolution between disputing parties about a legal case, there is often a good incentive to settle disputes without lawyers when dealing with cross border deals

third party mediator will attempt to intervene into a dispute and make parties discuss differences in order to arrive at an agreement, mediators judgement is a non-binding agreement allowing parties to continue dispute through arbitration or litigation, mediators do not require law degrees/licenses

third party arbitrator or arbitration panel will allow each side to represent their case and make a binding judgement that is enforceable the same as any court judge’s verdict, arbitrators typically do not have law degrees but are usually specialists or experts in the industry in which the dispute is taking place, arbitration clause is in contract dictates that litigation is not an option, usually cheaper than litigation

if a settlement cannot be reached either one their own or through mediation or arbitration then a law suit can be commenced,

prepare summons and complaint, forward summons and complaint to sheriff’s office for sheriff or deputy to deliver to defendant, answer is prepared by defendant, discovery tools like depositions are used to gather evidence in preparation for trial, trial commences

summons is the order to appear before a judge, complaint is the list of allegations

jury selection, opening arguments, offering of evidence/calling of witnesses (always starts with plaintiff), closing arguments, jury instructions, jury deliberation, judge verdict

12 fair and impartial jurors, challenges by lawyers can be for cause or peremptory

a request that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror

a defendant’s or lawyer’s objection to a proposed juror, made without needing to give a reason, each side gets 2

can keep, overturn, or adjust (remittitur or additur) jury’s decision

over subject matter, over individuals

be in the right court given the issues/circumstances (divorce is in family court, etc.)

sheriff’s deputy serves papers, long-arm statute can be invoked, state versus federal

allows for a state court to obtain personal jurisdiction over an out-of-state defendant on the basis of certain acts committed by an out-of-state defendant, provided that the defendant has a sufficient connection with the state

general jurisdiction

court’s authority to hear all kinds of cases, which arise within its geographic area

limited jurisdiction to hear cases involving disputes between diversity of citizenship that are over $75,000

proper venue is either where the cause of the litigation occurred (site of accident or breach of contract, etc.) or the place of the defendant

precursor to WTO, established to boost international recovery through trade after WWII, 8 meetings were held in the 40 years with topics ranging and growing away from just trade while growing membership from 23 to 102 members

GATT became WTO in 1995, currently has 164 member countries, responsible for encouraging/facilitating/regulating trade between members

trade negotiations, implementation and monitoring, dispute settlements, outreach, building trade capacity

trade without discrimination, freer trade through negotiation, predictability through binding and transparency, promoting fair competition, encouraging development

undemocratic, tramples labor and human rights issues, destroying environment, increasing hunger, increasing inequality, increasing international opposition

effective January 1 of 1994, includes Mexico/US/Canada, extension on previous Canada/US free trade area, distinguished/enforceable intellectual property rights, purpose to foster trade by eliminating trade barriers

dollar/peso exchange rate stabilized, auto manufacturers moved to mexico instead of china, US reliance on middle-eastern and Venezuelan oil declined, tariffs reduced import prices and inflation risk, consolidated auto manufacturing drives down costs

quadrupled trade, decreased cost of trade, promotes economic growth, decreased prices of goods and services, job creation, US FDI in Canada and Mexico at least tripled

manufacturers moved to Mexico, reduced wages, Mexican farmers put out of business, negative environmental impact, deforestation

trade agreement among twelve of the Pacific Rim countries and the US

open markets, set high standard trade rules, address issues in global economy, reduce barriers to trade

manufacturing, food and agriculture, natural resources and energy, services

increase economic growth/jobs for member nations, effect on US through increase in agriculture exports and help machinery industry, raise current standards in China

lack of transparency in agreement, strict patent laws will significantly affect pharmaceutical industry, investor-state dispute settlements (ISDS)

a politico-economic union of 28 member states that are located primarily in Europe with a developed internal single market through a standardised system of laws that apply in all member states to ensure the free movement of people, goods, services, and capital within the internal market

promote greater social, political and economic harmony among member nations of Western Europe because those economies that are interdependent are less likely to engage in conflict

European Commission (like US executive branch), The Council of the EU (like the US Senate), European Parliament (like US House of Representatives), European Council (more like Guidance), European Court of Justice (like US judicial branch), Economic and Social Committee, Committee of Regions, European Court of Auditors

quick implementation of the Euro/monetary policy, created one of the largest economies in the world, free trade, largest suppliers of development and humanitarian programs, helps underdeveloped countries, free movement of people helps with labor shortages, consumer benefits, increased travelling and tourism

claims of devaluing the heritage and culture of individual nations, lack of separation of powers leaves room for abuse, common agricultural policy, use of Euro lowers economic growth of more developed countries due to lack of individual monetary policy, free movement of people and safety concerns, regulated labor markets are not addressing high unemployment in regional areas, more developed/wealthy nations at disadvantage

intergovernmental organization to promote international co-operation, replacement for the ineffective League of Nations

peacekeeping, peacebuilding, humanitarian assistance, conflict prevention

part parliament/part secret diplomatic conclave, investigate disputes/situations that might lead to international friction to determine if it is likely to endanger maintenance of international peace and security, unique ability as only UN body with authority to take legal action whenever peace is threatened, UN members agree to accept and carry out decisions made by SC

world food program (ending famine), vaccinations, world intellectual property organization (WIPO), protecting Galapagos Islands, world peace

Rwanda Genocide, abuse in the Congo, Iraq oil for food program

peace leads to stability which leads to expansion of business interests and trade, UN global compact

bureaucratic processes, undemocratic security council, lacking local partnerships, overlapping agencies, poor internal governances/transparency/accountability, reactive vs. preventative, irrelevant, report writing vs. implementation, bloated and inefficient, dominated by the rich, job lobbying, marginalized G77, too much funding from too few, not enough funding

Britain’s Exit from the EU, referendum on June 23 2016, vote for leaving won 52% to 48%

feel EU was not addressing issues occurring since 2008 in southern Europe, rise of nationalism, UK faced loss where both parties had endorsed remaining with EU but many members had gone in opposition

Northern Ireland and Scotland voted majority to stay while England and Wales voted just over majority to leave (but the capital cities of England and Wales voted majority to stay), most young and educated people voted majority to remain but turnout of young people was lower

there is a large majority of UK residents that live or have moved abroad in EU countries that now face the risk of deportation but most did or could not vote, there are a large number of other EU residents in the UK that face the same threat but had no right to vote on the issue

any country in EU is allowed to leave as long as it is in accordance with the country’s constitution (holding a referendum satisfies this), exiting country must notify European Council to engage in negotiations and arrangements, treaties cease to apply, exiting country can not be a part of any negotiations if agreements are not met, countries that want to then reenter must invoke article 49 and redo the entry process

in November the High Court ruled that Article 50 cannot be invoked without Parliament, there will be an appeal of the High Court’s ruling on Dec. 3rd

began April 9th 1949 to deter Soviet aggression towards various elected governments through a large and supportive alliance, currently has 28 members

deter Soviet expansion, forbid revival of nationalist militarism in Europe through strong North American presence, encourage European political integration

during = massive retaliation and detente, after = war in Yugloslavia

wider definition of defense, changes in security environment coupled with new tasks, focusing more on partnerships and cooperation, peacekeeping operations enforced, military focuses on more efficient deployable troops and learner operations

Eastern Atlantic partnership council, heightened awareness of possible conflicts, NATO-Russia Council, Russian pride vs. need for coalition, propaganda war, NATO enlargement is seen as encroachment and disrespectful of security concerns and promises made

restricted access to Western financial markets/services, embargo on exports to Russia of high-tech and oil exploration/production, embargo on exports to Russia of military/dual-use goods, Russia banned food imports from Western nations