INTERNATIONAL LAW — 19/02

What is international law?

-​ The basis of this law is equal power (to regulate their own behavior) .

-​ International law, it seems to be a contract between equal individuals. Int. law does
not work with states.
and for nation state

-​ it involves all the states that exist in the world.

-​ Int. law entirely depends on the world states to implement the rules.
There is nothing above int law

-​ The only way to change the int law is to re-negotiate that treaty.

State Sovereignty
Clashes
Solving the conflicts

The paradox:

international law commision (ILC)

The only thing they can do is draft many suggestions.need to pass to that commision before
coming out with the laws, and many of them become treaties.

How to create international law?

they have equal rights and

POTENTIAL CLASHES: The importance of international and domestic law

int. is entirely based on agreements.

you decide what treaties go to and not go to, but you can not decide what treaties enter or
not the world.
Sources:
1.Treaty (Velt 1969)
2.Custom (custom)

A custom rule

You can not negotiate

Domestic, no states can say to another state what to do.

principle of sovereignty, decide what agreements to enter and which one no. The only way
that domestic law, incorporate int law (mono
dualistic two steps:
they come to the conference to sign the diplomatic,
at home they rakty it , and turn it into domestic law

Which law has competence to decide what, and when?

We have 2 state laws that are applicable.
int can help that

If there is no international treaty to solve the issue, you bring the domestic law where the
dispute was born.

SOLVING THE CONFLICT

international law does not care how being implemented, they only care about the effect of
applying it.

public roles (executing decisions like police, court, and others)\

(CLASS 2) – 26/02
INTERNATIONAL LAW: AN OVERVIEW

Legal intersections in international business

International law binds states
environmental regulations, trade agreements

Public international law

Private international law
The only thing that int. can do here
Public and int. law we just int law
Private law is another thing. (in any instance that have international context but is not a
public instance)

How do they intersect? If they are in the same int. treaty

3 different laws, which one do we apply?

Private international law— It's the domestic law (the agreement) that tells us which law to
apply in an international problem.

We have a seller and buyer from different countries, the congress needs to decide which law
we need to apply.
The bolivian want to apply their laws because it's beneficial for them, while the Icelandic
want to apply their laws, so the private international law decides which one uses it.

Intersection between private and public law – international law.

In order for there to be a conflict, there have to be different laws applicable to the
same issue.
-​ Conflicts between international law (easy: int.law)
-​ Conflicts between national laws, two domestic laws (easy: PIL) private international
law.
-​ Conflicts between international law and national law (hard: establish conflicting rules
and make state change its laws)

How do we ascertain the content of laws applicable to a transaction?

GENERAL CONSIDERATIONS WITH RESPECT TO INTERNATIONAL LAW

-​ may be soft (non-binding) there are just recommendations.

-​ may be hard (binding)

-​ What is binding international law?

-​ Beginning of an answer in the Statute of the International Court of Justice Article 38

Differences between soft and hard law

customs are hard law

treaties are soft law

soft law — states ought to bring.. (it's a treaty law but it's not mandatory. it's just a
recommendation)
hard law– states must..
Int. Lawmakers = States

How?

Treaties / Custom / General Principles (Article 38 )

E.g., The ICJ Statute = Treaty Law Art. 38.1.a and (reflection of)

Customary International Law Art. 38.1.b

1.​ What are the barriers that businesses need to have strategies for overcoming when
setting out to plan in worldwide terms for its business operations?
2.​ How could companies deal with them?

(CLASS 3) 4-03
THE EXTERNAL AND INTERNAL LEGAL CONTEXTS OF INTERNATIONAL BUSINESS

part 1: the external context – public international law concerned with transnational economic
activities (international law on private and public economic activity) . financial, trade.
economic agreement between states. countries.
part 2: the internal context — the contracts that establishes international transactions, how
they tie different domestic private laws to one and the same contract (PIL)

PART 1
External context: international law concerned with transnational economic activities
(international law on economic activity)

How sovereign states (with or without influence of international organizations) in the realm of
the international society have agreed to set up the macro-environment for their respective
citizens to interact and trade with each other.
INTERNATIONAL ECONOMIC LAW

Institutional framework: Bretton Woods Conference 1944 – Agreement 1945

Purpose: avoid disorder – establish trade discipline – interdependence - peace (If we make
dependent states of each other, they would not fight)

Theoretical basis: theory of comparative advantage and economies of scale (how do they do
this?)

Results:

-​ International Monetary Fund (IMF); International Bank for Reconstruction and

Development (IBRD or The World Bank) – international finance

-​ General Agreement on Tariffs and Trade (GATT later WTO). We didn't get the WTO,
we get the first agreement of how to trade – international trade

-​ Regional or subject matter specific organizations – international investment

Difference between an agreement and organization. WTO today is the most important
organization.

THEORY OF COMPARATIVE ADVANTAGE

The idea that an economy's ability to produce a particular good or service at a lower
opportunity cost than its trading partners. The Sources of Comparative Advantage are a
country's resources, that is the land, labor, capital and enterprise.

ECONOMIES OF SCALE (the basis of how european union is constructed)

The idea that production at a larger scale (more output) can be achieved at a lower cost.
Per-unit cost of producing a product falls as the scale of production rises. This enables
specialization.

Trade between countries need not depend on country differences under the assumption of
economies of scale.

Indeed, it is conceivable that countries could be identical in all respects and yet find it
advantageous to trade.

For this reason, economies-of-scale models are often used to explain trade among countries
like the United States, Japan, and the European Union.
INTERNATIONAL FINANCE

GOAL: To create an international financial system with proper institutions and a proper logic
aimed at ensuring a stable environment for the world economy as well as financial resources
for development.

Begs the questions:

a)​ What exactly is the world economy?

b)​ for whom and how are economies to develop (what is development)?
c)​ Is development always measurable in, or translatable to, economic terms?

THE INTERNATIONAL MONETARY FUND

Purposes (goals): 1. promote international monetary cooperation and exchange rate stability
2. remove trade obstacles 3. provide short term assistance to correct balances of payments
imbalances. (loan giving)

Main business: Provide loans to member states with balance-of-payments problems. (slide
26, no study slide imf)

KEY TAKEAWAYS:

-​ The balance of payments (BOP) is the record of all international financial

transactions made by the residents of a country.
-​ There are three main categories of the BOP: the current account, the capital account,
and the financial account.
-​ The current account is used to mark the inflow and outflow of goods and services into
a country.
-​ The capital account is where all international capital transfers are recorded.
-​ In the financial account, international monetary flows related to investment in
business, real estate, bonds, and stocks are documented.
-​ The current account should be balanced versus the combined capital and financial
accounts, leaving the BOP at zero, but this rarely occurs.

THE WORLD BANK (GROUP)

International Bank of Reconstruction and Development plus all of its institutions constitute
the group

Common objective: transfer of resources and the promotion of investments for developing
countries i.e., aid long term development and reduce poverty

The “philanthropic” essence of the group visible in the cocreation of Global Environmental
Facility together with UNEP and UNDP

Relationship with the IMF? (slide 27, not study for the text) (to be a member of the world
bank you need to be a member of the imf)
INTERNATIONAL TRADE

GATT 1947 – WTO 1994 (when it signed)

An international system to abolish trade barriers.

The last of the multilateral negotiation rounds (Uruguay Round) led to a comprehensive
single trade organization: WTO (entry into force 1/1 1995).

WTO incorporates all the multilateral trade agreements negotiated under GATT 1947. (slide
28, no study)

the WTO has the power to execute.

Trade barriers can be divided into tariffs (customs duties, import taxes) (by the 90s
developed countries tariffs were below 4%) and non-tariff barriers (import bans and
quantitative restrictions [quotas]))

8 rounds in total - ninth round underway Doha development agenda (WTO homepage)

if 2 members of the WTo, you have to sue it inside the organization.

If you are a member of the WTO, you have to except the dispute inside the WTO (has the
power to settle this)

FOREIGN INVESTMENT

Expansion of economies —> desire to invest in other states which leads to inter-state
issues:
|
Capital exporting countries require guarantees and protection for its nationals and the
investments they make
|
Capital importing countries demand the ability to regain or retain control over certain parts of
their economies.
 |
Example of Legal problem: Expropriation of foreign property.
|
Solution: Customary International Law: expropriation is legitimate if: (there are 3 cumulative
ideas)
-​ Is in the public interest
-​ Without discrimination on the basis of nationality
-​ Accompanied by appropriate compensation

Customary international law also stipulates that the host country determines the conditions
of establishment of foreigners within its territory. Legal uncertainty for investors. Call for legal
instruments to encourage investments: BITS have been created. Bilateral investment
treaties and the issue is also addressed by multilateral agreements such as GATS and
TRIPS. In general, BITs provide that nationals and companies of the State parties should
enjoy non-discriminatory treatment, protection, and security, prompt adequate and effective
compensation in the event of expropriation.

its entirety based on

(CLASS 4) 11-03

PART 2 – INTERNAL CONTEXT: the contracts involving international transactions and

the different domestic private laws applicable on these contracts

partly economy
legal contract: a legal- binding agreement, how its done

because of these freedom; they can choose what to choose (international agree concepts)

THE INTERNAL CONTEXT OF INTERNATIONAL BUSINESS LAW: THE CONTRACT

is the internationality involved.

in order to apply this contract (international contract) there are many aspects to make these
contracts international. Usually, if the contract only has one, except for the fact that would
be enough.
if there is a conflict in regards to the contracts, parties debate about it. And once it get to the
court, the question will be 1. what court should answer these? 2. what law should be apply
for the problem? (the court will never answer the question number 2, if they answer the
question number 1 “no”)

THE CONTRACT

Anything can be a reason for conflict.

transport is often included in the form of contracts, risk (who is responsible for the product),
damage (what if i receive in bad non-compliance (even if there is no damage, it hurts me
legally), conflict resolution (they usually special agreement, of a. what court we need to go if
there is a conflict b. what we need to do)

USUAL CONFLICTS ISSUES

interpretation of contract clause: (what does the contract mean?= what law should be used?)

non-compliance:

defects in good/service: (usually connected to non-compliance)

PRIVATE INTERNATIONAL LAW

Conflicts of law (PIL) rules concern a) what forum to adjudicate and b) what law to
apply.​

someone I deal with A, another II one deals with b. If II deals with A, he will have the
authority there even though it's wrong.
The authority of the court is its own court.

​ ) There is always one forum that is better than another but the power to decide resides
a
with the adjudicating body dealing with the matter. ​

b) What law to apply on the interpretation of contracts if the contract can be interpreted by
more than one domestic contract or other private law?​(even though

The Hague Conference on Private International Law (HCCH) aims at the unification of
conflicts of law (PIL) rules. ​

We can avoid conflict in 2 ways. UNIFICATION, two types – Form to solve a conflict (the
forms are laws; PIL) , try conflict solution identities– Contract (the contract immediately, like
incoterms: substantial contract law), in these case we try to avoid conflict

(What law to apply on the interpretation of contracts if the contract can be interpreted by
more than one domestic civil law? / Main principle: party autonomy – look first to the
contract, Hague Principles 2015 (soft law) / Conflicts of law (PIL) rules concern a) what
forum to adjudicate and b) what law to apply)

The problem of how to avoid conflicting judicial decisions has been, for a long time, a central
concern of international lawyers. This concern has encouraged not least international
organizations such as the Hague Conference on Private International Law (HCCH) to aim for
the unification of Private International Law. With 83 members (82 States and the EU)
representing all continents, the HCCH is the most important organization in this area. The
statutory mission of the HCCH is to work for the 'progressive unification' of Private
International Law rules.

https://www.hcch.net/en/instruments/conventions/full-text/?cid=135

CONFLICT RESOLUTION
Party autonomy is the rule. The part choice should be respected.

Can we choose every choice of law we want? yes.

legislative jurisdiction is what law matter the court

(CLASS 5) 25-03

INTERNATIONAL PRIVATE LAW – CONFLICT OF LAW

Is this an international relationship?

TWO TERMS FOR THE SAME THING

Neither one of the terms is sufficiently precise to completely avoid misunderstandings. Each
focuses on slightly different aspects of one and the same problem: the problem of competing
legal resolutions to civil matters.
PIL – focus on private/public distinction
Conflict of laws – focus on the difference between the legal system.

int. Private law is part of domestic law. There is no difference, but they emphasis on different
things.

private int. law –emphasize in internationallity

conclift of laws — emplhasize on two or more apply to the same
Conflict of laws is the term used primarily in the United States, Canada, and, increasingly,
the United Kingdom. In most other countries (and historically in the United Kingdom), the
term private international law is used. The term conflict of laws (sometimes also conflicts or
conflicts law) describes the body of law of each country or state that is designed to resolve
problems arising from the differences between legal
systems.
PIL derives from the civil-law distinction between private and public law, whereby private law
addresses the legal relationships between and among individuals, corporations, and even
the state in its relations with individuals and corporations when it is not acting in a
governmental capacity (for example, in the conclusion of contracts), while public law deals
with the law governing state institutions as well as the latter's governmental.g.,
regulatory-relations with private parties.
We need to take some from both definitions to get it right: it is the body of (public) law of
each country, law designed to resolve the differences between legal system's different civil
regulations.

THE PROBLEM THAT PIL/COL IS TO SOLVE

These first 2 you find it on domestic law:

-​ a basis in a civil law dispute (private ind. V. Private ind.) (that we established private
and private, and that is not possible.)

-​ Two or more private law regulations potentially applicable (it has to be an

international aspect; internationally. the only thing that can not be is the choice of law

-​ Pil is misleading if taken to refer to a solution to a private conflict situated within

international law

-​ Col better captures the fact that it is a matter of rules that are solely national in origin
(unless countries have concluded treaties concerning them)
Clarification of last bullet point: even if countries have concluded treaties concerning rules of
conflicts of law then these treaty rules will still have their origin in national laws to the extent
that the treaties bind the states to legislate in certain manners and directions. But the
difference is that this question could potentially be adjudicated by an international tribunal
like the ICJ. Recall the Lugano case from session 3.

LEGAL ISSUES COVERED BY PIL/COL

1.​ Adjudicative jurisdiction (which Court?, is the best indicating to lead with that
problem)
2.​ Choice of law (what law?)
3.​ Enforcement of the judgment (how to enforce a decision that covers assets and/or a
person in another territory?)

Conflicts law addresses three principal questions. First, when a legal problem touches upon
more than one country, it must be determined which court has jurisdiction to adjudicate
(settle) the matter. Second, once a court has taken jurisdiction, it must decide what law it
should apply to the question before it. The rules that the courts find itself bound by may
direct it to its own law or call for the application of the law of another country. Third,
assuming that the court ultimately renders a judgment in favor of the plaintiff, conflicting law
must address the enforcement of the judgment.

The rationale d’être of Pil/col-rules: differences between legal systems

Notable differences exist, for example, between countries pertaining to the common-law
tradition and those pertainig to the civil law tradition. In contract law, for example, civil law
countries have no direct counterpart to the common-law requirement that a promise be
supported by "consideration"—i.e., by a bargained-for exchange-in order to be binding.
Similarly, the systems differ with respect to formalities that may be required for a contract
(e.g., a writing). Even within the broad groups of common law and civil law, national legal
systems diverge, sometimes substantially.
(Consideration is the central concept in the common law of contracts and is required, in most
cases, for a contract to be enforceable. Consideration is the price one pays for another's
promise. It can take a number of forms: money, property, a promise, the doing of an act, or
even refraining from doing an act.)

Similarly, civil-law countries differ in many respects in the solutions they provide for specific
legal problems, depending on whether they belong to the Nordic, Germanic, or
Roman-Franco legal family. In German law, for example, the Commercial Code
(Handelsgesetzbuch) prescribes a subjective approach toward defining a merchant: it
depends on the person and the purpose and manner of his actions. The French Code de
Commerce adopts an objective approach: it is the particular transaction that determines
which party in a transaction is the merchant. Older Swedish law focused on the definition of
a merchant (köpman); newer legislative provisions employ more comprehensive concepts of
those engaged in commerce (näringsidkare).

INTERNATIONAL REGULATION OF PIL/COL

-​ Starting point: PIL/COL is part of national legal systems!

-​ No systematic supranational or international regulation of PIL

-​ However, international treaties aimed at unification exist

Either

-​ of particular substantial matters (with incidental regulation of col/PIL)

Or,

-​ Of conflict of law rules (procedural treaty)

A. Hague principles 2015: (how the int. unification procedure

1.​ self-law
2.​ apply on choice of law

Conflicts law is a part of national legal systems and is not codified in a systematic way on the
supranational or international level. Nevertheless, some international treaties have unified
particular areas of substantive and conflict law with respect to the participating states.
When a treaty provides uniform rules of substantive law—as does the United Nations
Convention on Contracts for the International Sale of Goods (1980)-it may displace national
law, rendering the rules of conflict law obsolete. In contrast, when an international treaty
unifies conflict law issues, substantive differences between national laws continue to exist,
but the uniform rules provide a way to bridge them telling us which law to use and when.
However, conventions exist in relatively few areas of substantive law and conflicts law; also,
the number of states participating in them is relatively small, and the interpretation and
application of international treaties remain matters for the courts of the individual
participating states.
A notable exception was the Convention on the Law Applicable to Contractual Obligations
(1980), commonly known as the Rome Convention, which applied in the member states of
the European Union (EU) and whose interpretation lay within the scope of the European
Court of Justice upon reference from national courts. The EU possesses lawmaking powers
that enable it to establish uniform rules of substantive law, thereby displacing previous
national law and eliminating conflicts. In 2008 the EU adopted the Rome I Regulation, which
transformed the Rome Convention into binding EU law, and the Rome I Regulation, which
provided rules for determining the applicable law in cases of non contractual obligations.

Projects for the unification or harmonization of laws on a wider (in some cases worldwide)
basis have been pursued since the middle of the 19th century, among others by an italian
initiative to a conference for the harmonization of private international law. IN 1893 these
intentions were successful with the founding of the Hague Conference on PIL. In 1904 Japan
became the first non-European state to participate in the Hague Conference. Over the years,
the Hague Conference has produced many conventions, some of which have enjoyed
notable success, such as the Convention on the Civil Aspects of International Child
Abduction (1980) and the Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters (1965).

The International Institute for the Unification of Private Law (Unidroit), established in Rome in
1926, sponsors projects for the unification of substantive law. Examples include its early
efforts with respect to international sales law and the more recent drafting of the Unidroit
Principles of International Commercial Contracts (2004).

In Latin America, there is the Mercosur (also known as the Common Market of the South)
that has produced harmonization of important aspects of international business law,
particularly in the areas of trademark, investment, and competition (antitrust) law.
Another unifying force of growing importance is international business practice and custom is
the so-called lex mercatoria [Latin: "law merchant"], to which courts, arbitration tribunals, and
parties increasingly refer in their decisions and commercial dealings.

BASIC GENERAL PRINCIPLES (OF LAW?)

Principle of comity (the golden rule of international law)

-​ Treat others the way that you wish to be treated by them

Party autonomy
-​ Relates both to the first and the second question to which PIL provides answers
-​ Means the Freedom of parties to decide what court should hear the case and what
law should govern it

Although few uniform international conflicts rules exist recognized as law independent of
treaties, there are some common principles that are recognized to varying extent throughout
the world. The ancient international principle of comity-which, like the biblical Golden Rule,
posits that even sovereign states should extend courtesies and privileges to each
other-explains why one country would give effect to the law of another.
Party autonomy (i.eThe freedom of parties to decide what court shall hear their case and
what law shall govern it) is recognized by most countries, those of Latin America being a
notable exception.

ADJUDICATIVE JURISDICTION: WHAT COURT?

●​ A court always decides its own competence

●​ Most countries allow parties to agree to the jurisdiction of a court. Different ways of
checking consent.

●​ Some states accepts that a court decline to deal with a case based on convenience –
avoiding, strictly speaking not denying jurisdiction

-​ common law countries: reasons based on forum non conveniens (practical –

non-clogging – reasons are accepted: e.g., unduly burdensome for part,
forum shopping etc.)

-​ Civil law countries: cannot dismiss actions for forum non conveniens reasons
(EU law stipulates main rule and exception [Brussels I and II regulation])

As stated earlier, the first question in an international case involving a potential

conflict-of-laws problem is which court has jurisdiction to adjudicate the matter.
Most countries allow the parties to agree to the jurisdiction of a court. Consent may take the
form of an express agreement in the initial business contract or at the time the dispute
arises. Alternatively, consent may be the result of conduct. The plaintiff's consent appears
from the filing of the action. The defendant's consent may be presumed when, rather than
objecting to the court's jurisdiction, the defendant cappears and begins to litigate the
controversy. Now, even when both parties consent to a court's jurisdiction, the court in a
common-law country may still decline to hear the case for example, when neither of the
parties nor the controversy has a connection to the country in which the court is located. In
most cases, however, a court's jurisdiction is not an issue unless and until the defendant
objects to it.

Adjudicative jurisdiction in civil matters not traditionally considered a matter of international

interests in contrast with adjudicative jurisdiction in penal law matters

Although the plaintiff decides where to sue, the courts in that location may not have
jurisdiction, or they may have jurisdiction but be unwilling to exercise it, for reasons of forum
non conveniens (Latin: "inconvenient forum"), as may happen in some common-law
countries.

ADJUDICATIVE TRENDS (IN THE ABSENCE OF AGREEMENTS)

Traditionally, civil-law and common-law countries have followed different approaches in
determining which court has jurisdiction in a civil action when the parties have not agreed on
or submitted to the forum.

One visible trend is to start from the premise that there is one principal place where a suit
can be filed: place of domicile of an individual or the seat of legal persons such as a
corporation ("general jurisdiction").

In addition to these general bases of jurisdiction, a suit ordinarily may be brought in the
courts of the place to which the suit has a special connection.g., where a tort was committed
or where its effects were felt, where the alleged breach of a contract occurred, or, if title to
real property is involved, where the property is located ("specific jurisdiction"). Whereas
specific jurisdiction requires a relationship (giving rise) between the defendant's in-state
contacts and the claim, general jurisdiction is "all-purpose" jurisdiction, there need be no
relationship between the contacts and the claim. So, when general jurisdiction is proper, the
defendant can be sued in the forum state for any claim whatsoever, regardless of where the
claim arose. Put differently, the defendant's contacts with the forum are so extensive that the
defendant should expect that it can be sued in that forum for anything that happened
anywhere.

So, General jurisdiction refers to the authority a court has over a broad array of court
cases. ... On the other hand, specific jurisdiction is the ability of a court to hear a lawsuit in
a state other than the defendant's home state, if that defendant has minimum contacts within
the state where the suit will be tried.

Increasingly, countries have limited the exercise of special jurisdiction (and have
prohibited parties from varying these limitations by agreement) for the protection of
weaker parties, such as employees and consumers.

Other trends are less widely used and recognized: Some countries provide bases of
jurisdiction for the benefit of local plaintiffs. French law, for example, grants jurisdiction if the
plaintiff possesses French nationality, and German law permits a local plaintiff to sue an
absent defendant on the basis of any property the defendant may have in Germany,
regardless of whether the litigation is related to the property or even to Germany in any other
way (though modern German court decisions have given this provision a more limited
reach).
CHOICE OF LAW (LEGISLATIVE JURISDICTION)

1 agreement? if the answer is “no” you need to ask 1) general jurisdiction – no 2) specific
jurisdiction – yes (if we have choice of law, we choose law country B. If we DO NOT have
choice of law, we use the law)

●​ A decision made by the court exercising jurisdiction (there is no choice of law)

●​ Party autonomy

●​ Lex fori (the law of the place)

●​ Flexibility (based on some shared principles) is trending:

-​ Nationality or domicile/residence of person

-​ Commercial transaction: closest connection

➔​ Place of business
➔​ Principal residence of the party to affect performance
➔​ Language used by parties in negotiations
➔​ Currency and modality of payment

●​ When case involves legal person (cooperation)

-​ Incorporation of entity (common law)

-​ Seat of business (place of decision making and management

In its choice of the applicable law, the court that exercises jurisdiction determines which law
to apply to a case that involves foreign parties, foreign transactions, or a number of foreign
elements. In a simple world, the court would always apply its own law, the law of the forum
(known in Latin as the lex fori). Indeed, some modern methodologies, particularly in the
United States, do favor the lex fori approach.

Party autonomy (i.e., the freedom of parties to decide what court shall hear their case and
what law shall govern it) is recognized by most countries, those of Latin America being a
notable exception.

Especially with respect to commercial transactions (e.g., contracts), modern conflict laws
emphasize flexibility.

Legal systems have established different criteria for the selection of one country's law over
that of another for application to a particular case or problem. There are, however, some
widely (albeit not uniformly) shared principles.
For questions of family law, inheritance, and (in limited types of cases) even liability in tort,
legal systems will consider the nationality or, alternatively, domicile or habitual residence of
one or both/all persons involved.

For commercial transactions, a transaction's "closest connection" to a legal system may be

emphasized over traditional connecting factors such as where the transaction was
concluded. Factors determining a close connection to a particular state and its law may be
the place of business or principal residence of the party that is to effect the performance in
question, the language used by the parties in their negotiations and contract formation, the
currency and modalities of payment specified, and other factors that are not as incidental as
the place of contracting may be (e.g., when a contract is concluded in a hotel or other
meeting place because both parties are in transit).

For cases involving legal persons (corporations), many countries, particularly those of the
common-law tradition, refer to the law of the state where the entity is incorporated, but
others, especially those employing civil-law principles, refer to the law of the corporate
"seat," defined as the place of central management and decision making.

CHOICE OF LAW: THE ROME CONVENTION AND NOW ROME REGULATIONS I AND II

-​ Flexibility Article 4 (is mandatory)

-​ Contract’s closest connection: lists presumptions for closest connection

-​ Rome I regulation (Successor to RC): replaces presumptions with specific rules for
certain contract types, for all others remain a general reference to closest law

-​ Rome II (tort) same structure: specific rules for a few torts, for all others reference to
the law of the place of injury.

The movement towards flexibility is evident in Article 4 of the Convention on the Law
Applicable to Contractual Obligations (1980), commonly known as the Rome Convention,
which first established the general principle that the applicable law should be that to which
the contract has the closest connection.
Although the article provided some presumptions regarding what law that might be, it
concluded by making it possible for the court to correct the result: if the court found that,
exceptionally, another law was more closely connected to the contract or to one of its issues,
then it should apply that law. The convention's successor, the Rome I Regulation, replaces
the presumptions with specific rules for a number of contract types and retains the general
reference to the most closely connected law for all other contracts.

In tort the EU's Rome II Regulation contains specific rules for a few torts but in general calls
for the application of the law of the place of injury, with exceptions in favor of the law of the
parties' common habitual residence and, as an alternative, of a more closely connected law.
The Rome I Regulation also provides special rules for consumer, insurance, and
employment contracts mirroring the adjudicative answers of the same regulation that limits
the party's choice of forum in these cases
PROCEDURAL MATTERS: ALWAYS LEX FORI

We differentiate from procedural matters and substantial matter

-​ Procedural matters – what is a procedural matter? (who sued who, determined by

law, who has to present and when the documents? is decided by the court precidial
law. And it's always Lex Fori.

-​ Time limitations are sometimes considered substantive matters (civil law) and
sometimes procedural (common law)

and that will affect the outcome.

On procedural issues, a court will always apply its own law. There is no agreement, however,
on which issues are procedural and which are substantive. Time limitations (statutes of
limitations), for example, are considered substantive in civil-law countries but procedural in
certain other countries and in many states of the United States.

ENFORCEMENT

-​ The nature of a legal judgment – sovereign act of state which binds the state that
provides the court

-​ Executive power of states are limited – recognition and enforcement requires

international cooperation

-​ Federal states, the EU – mandatory recognition

-​ Internationally – recognition is a matter of national law

-​ Tendencies of national law – principle of comity (recognizing court sometimes

controls the other court’s exercise of jurisdiction, public policy and procedural rights
of defendant, but not review of the merits of the case)

Judgments are sovereign acts that have no force beyond the jurisdiction of the court that
renders them.

Thus, if assets for satisfying a judgment in favor of a creditor are unavailable locally,
recognition and enforcement of the judgment will need to be sought in a state in which the
debtor does hold assets

Within the United States, recognition and enforcement of sister-state judgments are
mandated by the full faith and credit clause of the federal Constitution and are facilitated
procedurally in many states by uniform state laws. For EU member-states the Brussels
Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
Matters (1968) and its successor, the Council Regulation on Jurisdiction and the Recognition
and Enforcement of Judgments in Civil and Commercial Matters (2000; Brussels I), perform
a similar function by mandating the automatic recognition and enforcement of EU
member-state civil and commercial judgments in all other member states, subject only to few
exceptions.

Internationally, the recognition of a judgment is a matter of national law, although it is

sometimes dealt with in bilateral or multilateral treaties (except in the United States, which is
not party to any judgments-recognition treaty).

National legal systems will ordinarily recognize a judgment rendered in a foreign country
(sometimes on the condition of reciprocity), provided that the rendering court had jurisdiction
(as measured by the standards of the recognizing court), that the judgment debtor had
received notice sufficient to enable him to defend, and that the foreign judgment does not
offend the public policy of the recognizing state. Most systems do not allow a review of the
foreign judgment on the merits (a so-called révision au fond [French: "review of the
background"]). However, when a court rejects a foreign judgment on the basis of public
policy, it will necessarily have considered substantive or procedural aspects of foreign law
and, because of its disapproval of them, refuse to accept the outcome of the case.

(CLASS 7) 15-04
ARBITRATION

WHAT IS ARBITRATION?

A private dispute resolution (although not entirely disconnected from a state’s public
dispute settlement structure.
-​ Governed by minimum rules of procedure (the order is provided by the state)
-​ Enforceable through state apparatus (you have to rely to the state)

It's a private dispute resolution to the state. view from a non state policy.

HOW TO INITIATE ARBITRATION

Arbitration is consensual
-​ If one party resist arbitration it is not a viable option
-​ Future disputes: arbitration clause in contract (how to consent arbitration, 3 ways
future disputes. also if you already have a dispute: existing dispute
-​ Existing dispute: referred to arbitration by a submission agreement
-​ Once accepted no unilateral withdraw from arbitration (cf. mediation, its an
alternative of arbitration)

judicial dispute solution (strongest and formally one)

-​ court system –
-​ arbitration

Alternative dispute solution

-​ mediation (why to use this one? want avoid public system)
WHY ARBITRATION?

The overarching reason spells CONTROL

​ control over arbitrator/s
​ control over process (it can be quick, because you need to respect the minimal rules)
​ control over information made public

CONTROL OVER ARBITRATORS

-​ Parties to a dispute choose the composition of their own dispute settlement body
-​ Jointly agree on one arbitrator
-​ Or, a three person arbitration where each chooses one and these two choose the
presiding arbitrator
-​ If the arbitration is not ad hoc then the arbitration institution can suggest potential
arbitrators if the parties desire this
-​ Enables a dispute settlement based on special competence

CONTROL OVER PROCESS

Arbitration is considered a neutral form of dispute settlement in so far as

​ - parties can agree upon arbitrators from neutral countries
​ - applicable law
​ - language
​ - venue of the arbitration

Neutral in so far as no one enjoys home court advantage

CONTROL OVER INFORMATION

Arbitration is not part of a state’s public administration – hence rules of public record do not
apply (we can choose how much information we make public)

The parties may settle their disputes while maintain confidential within the arbitration
procedure
​ - the existence of arbitration (!)
​ - any disclosures made during the procedure
​ - the award and its final decision itself

(why is this important? Trade secrets, business secrets, public image)

WHY ARBITRATION?

Quicker and smoother (simplified and costume made) process, less costly due to the
previous two reasons, and, not as harmful for the public image of the parties as a normal
court procedure.
IS AN ARBITRATION AWARD EFFICIENT?

The New York Convention (1958) binds 165 states and makes awards enforceable in those
states through the adjudicative and executive branches of their administration

Its private, consensus, awards (it means judgment, of who is right and who is wrong)
Is that award efficient? They have an international convention that makes this award
efficient.

WHY NOT ARBITRATION? (WHY NORMAL LITIGATION IN COURT?)

Questionable objectivity – the selection of arbitrators is a business, many national arbitration

groups actively market their services to companies (selling goods to consumers)

Uneven playing field – the stronger party imposes the arbitration clause as a sales condition
(there is no condition of parties being equal in arbitration) consumer vs retailers, employee
vs employer common.

Lack of transparency.

if you have more weaknesses that are exposed.

An arbitration body’s final decision is often hard or impossible to challenge (due to its private
nature but public enforceability)
-​ No right to appeal
-​ The underlying issue cannot be tried again (if perceived as unfair or illogical) due to
procedural rules like res judicata.

The only way to review an arbitration by the law is if something is formally done incorrectly.

INTERNATIONAL RULES OF ARBITRATION 1

UNCITRAL: United Nations Commission on International Trade Law (connected to the wto?
no directly this is the body, they produce many treaties one of them is the arbitration rules. .)

UNCITRAL Arbitration Rules (New York 19760 (revised 2010, added article 2013) for ad hoc
tribunals (they are manual of arbitration rules. the receptionist of this from the perspective of
someone who is gonna be the arbitrator)

UNICTRAL Model Law on International Commercial Arbitration (1985)

Difference?
-​ 1976 is directed to parties to a conflict. “Rules that can be selected by parties either
as part of their contract or after a dispute arises, to govern the conduct of an
arbitration”
-​ 1985 is directed towards states. “Provides a pattern that law-makers can adopt as
part of their national legislation on arbitration”.
(FALTA NOTA)

INTERNATIONAL TREATIES ON ARBITRATION RULES

decide what in your domestic law should reflect on

INTERNATIONAL RULES OF ARBITRATION 2

International Chamber of Commerce (ICC) Arbitration Rules 2021 (also acts as institution on
its own)
-​ Arbitration institution (package deal)
-​ Requirement for using ICC rules and institutions is that parties to contract, treaty or
separate arbitration agreement consent to use ICC arbitration.
-​ The ICC administer administration (unlike UNCITRAL)
-​ International Court of Arbitration

●​ Court? no, it can not be court.

●​ No formal judgments – judicial supervision of arbitration proceedings (if we were in a
normal court they would be formal processes, but here no)
-​ Confirming, appointing and replacing arbitrators, deciding challenges made against
them
-​ Monitoring arbitral process (speed and efficiency)
-​ Scrutinizing and approving arbitral awards
-​ Setting and managing fees

(FALTA NOTA)

INTERNATIONAL RULES OF ARBITRATION 3

WIPO (World Intellectual Property Organization) Arbitration and Mediation Center is a

neutral, international and non-profit dispute resolution provider. 1994. (they can be both
arbitration and mediation)

Appropriate for all commercial disputes but contain provisions on confidentiality and
technical and experimental evidence that are of special interest to parties to intellectual
property disputes. (they are a higher level of confidentiality)

INTERNATIONAL RULES OF ARBITRATION 4

International Council for Commercial Arbitration (ICCA)

An international NGO (non-governmental organization) working for the promotion of use of

arbitration and improving the processes of Arbitration. Convenes congresses and
conferences, sponsors dispute resolution publications, promotes the harmonization of
arbitration rules and standards. (based on domestic law, even it can drawn arbitration rules)

INTERNATIONAL RULES OF ARBITRATION 5

Convention on the Settlement of Investment Disputes Between States and Nationals of
Other States

International Centre for Settlement of Investment Disputes (ICSID)

when you have a state interest and foreign international dispute.

(FALTA NOTA)

THE AWARD

The instrument by which the arbitration body records its decision in the arbitration
It is not a recommendation – it is a final settlement. (summarizes and embraces the final
decision, it’s not a recommendation it a state. ex. who represent who, who represents what
in court)

Examples:
​ declaring the respective rights and obligations of parties
​ order one of the party to do or refrain from doing something

Awards take on res judicata effect and can be executed with the help of a state apparatus.
Not all decisions taken by the tribunal are awards – some can be either or, their classification
determines what kind of procedural rules and what kind of legal effect. Only awards can be
set aside or enforced by courts. (cf. ICC rules 23.1 (?)).

(FALTA NOTA)

PARTIAL AND FINAL AWARDS

Partial Awards settle (finally) specific issues of the disputes – Final Awards includes final
decision on every matter submitted to it. (it doesn’t change)

Open discussion how to classify and define

Interim awards – final decision while arbitration in progress (very close to partial awards, the
difference is the, it can change)
-​ (A) Partial (final) award of a portion of the dispute (e.g. jurisdiction, applicable law,
liability)

-​ (B) More appropriate meaning: awards that do not finally settle any aspect of the
dispute but decides a question for the time being (measures of protection). Can this
form really be called an award? (ICC Rules leave that decision to the tribunal).

AWARD ON AGREED TERMS

This is a consequence of the fact that the parties to the dispute control the settlement.
Under certain conditions (UNCITRAL model law) the tribunal may opt for not recording the
settlement between the parties.

-​ Conditions concerning the arbitration tribunal’s obligation to assure itself that the
award does not constitute fraud or violate mandatory rules of law.
​
-​ Conditions corresponding to a court’s rights under the New York Convention to not
authorize an award that is violating public policy.

INTERPRETATION OF AWARDS

Most arbitration rules provide for the possibility for the arbitral tribunal to interpret awards
that contain operational parts of an unclear and/or complex nature.

It is executed upon request of one of the parties, but it is not mandatory for the tribunal to
provide.

The interpretation becomes part of the original award if added.

It must be of the award, not the reasoning, and should not include new arguments or alter
the original decisions.

CONTENT OF AWARD

UNCITRAL rules and model law state:

-​ The award must be in writing
-​ Be signed by arbitrators (missing signature explained)
-​ State the date and place of arbitration
-​ State the reasons upon which the award is based, unless the parties have agreed
that no reasons are to be given.

(FALTA NOTA)

REMEDIES OF AWARDS

No specification exists as to remedies in arbitration laws or rules.

In principle, any remedy available under the applicable law in litigation in a state court is
available in arbitration. (you can use that or use another type of measure)

Remedies ordered may have to be enforced by a state court. The tribunal should therefore
be aware of any limitations there may be in the country where the award is likely to be
enforced. (they are usually state by court)

TERMINATION OF ARBITRATION

When:
 -​ A final award is issued (correct mistakes and making additional award exceptions)
-​ The claimant withdraws his/her claim (UNCITRAL model law: if respondent do not
object thereto based on a, by the tribunal, recognized legitimate interest in obtaining
a final settlement)
-​ The parties agree on the termination of the proceedings
-​ The arbitral tribunal finds that the continuation has become unnecessary or
impossible

correction of formal mistakes, but no editing the document.

CONFIDENTIALITY

It is a restricted principle since any action to set aside an award or to enforce it automatically
makes it public.

Recent case law of national arbitration laws has denied that confidentiality is an inherent
aspect of arbitration.
In negotiations of the model law:
​
“It may be doubted whether the model law should deal with the question whether an award
may be published. Although it is controversial, since there are good reasons for and against
publication, the decision may be left to the agreement of the parties or the arbitration rules
chosen by them. If, nevertheless, a provision were to be included, probably an acceptable
compromise could be that the award may be made public only with the express consent of
the parties.”

Arbitration rules often provide provisions (rules) on confidentiality.

Arbitration (body) → decisions (makes) → it can choose to make an AWARD or makes

ORDERS (doesn’t have the power)

(CLASS 8) 22-04

UNIFORM LAWS TO INTERNATIONAL SALES CONTRACTS

INTERNATIONAL REGULATION OF CROSS-BOUNDARY CONTRACTS

Renders the recourse to PIL superfluous (Choice of law/Choice of forum) since it constitutes
the parties’ choice

Stems from of the Principle of Party Autonomy: Freedom of contract to choose their rights
and obligations

These rules become the Law of the Contract

What do they cover?

-​ Where and how to settle disputes
 -​ Terms and short hand clauses often collected and developed by an international
body

(FALTA NOTA)

SOME UNIFORM (HARD) LAW CONVENTIONS (AND SOFT LAW INSTRUMENTS)

●​ United Nations Convention on the International Sales of Goods (CISG)

●​ UNIDROIT Principles of International Commercial Contracts (UPICC)

●​ UNICTRAL UN Convention on the Use of Electronic Communication in International

Contracts (Complements CISG)

●​ UNCITRAL Convention on the Limited Period in International Sales of Goods

(Limitation Convention)

●​ And more…

SOFT LAW AND HARD UNIFORM LAW

The impact of soft law instruments aiming at harmonizing sales terms comes mainly from
being a source of inspiration to domestic laws.

SUBSTANTIVE LAW OF INTERNATIONAL SALES: CISG #APPLICABILITY

CISG is a hard law instrument which is binding upon parties, judges and arbitrators if the
conditions set out in the convention are met. It applies to contracts of the:

-​ 1. sale of goods that are international – i.e., when the contracting parties have their
places of business in different States,

-​ 2. and if both States in 1 are Contracting States, or, when rules of PIL leads to the
law of a Contracting State (there are accumulative the 1 and 2)

-​ CISG does not apply if the parties have agreed upon non-application (Art. 6) or a
Contracting State has lodged a declaration under Art. 95 to not apply the CISG
through the application of its PIL. (you can use CISG because you have party
autonomy)

-​ If the international character of a sale is not apparent to the parties, then this is to be
ignored in determining the convention’s application.

WHEN CAN A UNIFORM CONTRACT LAW BE APPLIED?

By direct application of a uniform law treaty (when is that?)

 -​ Convention on the International Sales of Goods (CISG) defines its own scope of
application – the kinds of cross-border contracts and communications to which it
applies.

Article 1 (1):

-​ (a) when the parties’ respective places of business, as determined under the CISG,
are in different Contracting States,
-​ (b) when a PIL rule leads to the application of the law of a Contracting State (the law
of a Contracting State applies because the parties have selected it in the contract)

FUNCTION OF PIL IN RELATION TO APPLICATION

Any court faced with a dispute involving international cross-border transactions will have to
turn to its country’s PIL to find or validate the chosen applicable law

-​ If there is an agreement on applicable law made by the parties, PIL determines

whether that agreement (party’s choice) is valid and effective

-​ If there is no such agreement or if the parties choice of law is invalid or ineffective,

PIL determines which law applies

-​ In the latter case: if the PIL rules points to a state’s law and that state is a contracting
party to a uniform law then indirectly that law can become applicable anyway

●​ In sum: three ways of making a uniform law applicable to an international

transaction (think about this as international contract law)

●​ 1. When the parties have chosen as law the law of a State that has adopted
a uniform law instrument

●​ 2. When the parties have chosen a uniform law instrument as their

transaction’s rules of law

●​ 3. When, absent a choice of law by the parties, the relevant PIL rules lead to
the application of a uniform law treaty.

SUBSTANTIVE LAW OF INTERNATIONAL SALE: CISG #CONTRACT OF SALES

What is a contract for sale under the CISG? (the art 1 and 3)

Arts. 1 and 3. Often self-evident. Transactions that point to a kind of contract that stipulates
the obligations of the seller and buyer according to Arts. 30 and 53:

-​ Seller has to deliver goods

-​ Buyer has to receive goods and pay an agreed price.

 -​ Article 3 differentiates sales contract from service and work contract – seller is to give
something, not do something.

-​ Art. 3(1) extends the sales contract concept to contracts to supply goods to be
manufactured by the seller as long as the substantial part of the material necessary
for manufacturing does not come from the buyer. (is more a service when you give
the material to a person to do a product, so when someone provide a thing, it counts
as service contract)

-​ Art. 3(2) extends the sales contract concept to mixed contracts – contracts for sales
in which the seller’s obligation includes to provide labor or services as long as this
part is not the preponderant part of the contract.

-​ New technology: contracts for sale? goods?

(FALTA NOTA)

CONTRACTS OUTSIDE OF THE SCOPE OF UNIFORM LAW

Types of contracts exempted from application of CISG (Arts. 2 and 3).

Party autonomy (Art. 6) parties opting out of the Convention or derogating from or vary the
effect of any of its provisions (except Art.12)

SUBSTANTIVE LAW OF INTERNATIONAL SALES: CISG #EXCLUDED CONTRACTS

Art. 2 lists six categories of international sales excluded from CISG

-​ Buyer’s personal purpose (consumer laws)

-​ Auction or execution or otherwise authorized by law
-​ Nature of the goods:
●​ Shares and other securities
●​ Money
●​ Ships, vessels, hovercraft and aircrafts
●​ Electricity (supply of gas and oil and other energy sources are included)

SUBSTANTIVE LAW OF INTERNATIONAL SALES: CISG #SCOPE

Application confirmed – then what?

What kind of issues does the law cover?

-​ Arts. 4 and 5 CISG

-​ Art. 4: CISG covers 1) the issue whether and when a contract has been concluded
(formation of a contract) and 2) the issue of rights and obligations of the seller and
buyer arising from the contract.
 -​ Art. 4: rights and obligations of third parties are not governed by the convention;
validity of the contract, any of its provisions, or any usage is not covered by the
convention; the effect of the contract on the property in the goods sold (legal effect of
passing of property (ownership) is always decided by domestic law).

-​ Art. 5: The liability for the seller of death or personal injury caused by the goods to
any person is not governed by CISG. (Product liability)

RESPECT FOR PARTY AUTONOMY TO CHOOSE APPLICABLE LAW OF CONTRACT

In arbitration, parties’ choice to apply transnational uniform sales and contracts law on their
transaction is generally respected

If the parties’ have chosen a given State’s court as an applicable forum to dispute, they must
consider whether that court will give full effect to their choice of law agreement. Not the
same general respect here.

SUBSTANTIVE LAW OF INTERNATIONAL SALES: CISG #INTERPRETATION

Art. 7 provides a framework for the uniform interpretation of CISG minimizing the need to
use PIL and domestic substantive law:

-​ Principle of internationality

-​ Principle of uniformity – goal is to interpret terms and concepts autonomously.

meaning to terms found within the CISG and not domestic law.

-​ Principle of good faith

When a question concerning a matter governed by the Convention is not expressly settled in
it, the question is to be settled in conformity with the general principles on which the
Convention is based. Recourse to domestic law is ultima ratio.

(FALTA NOTA)

SUBSTANTIVE LAW OF INTERNATIONAL SALES: CISG #PRINCIPLES OF

INTERPRETATION

When interpreting and filling gaps of a CISG contract under the principle of autonomous
method recourse is to be taken to internal and external general principles.

External: principles developed in soft law instruments and guides referred to by parties or
impacting the domestic law which points to CISG as applicable law.

Internal:
 -​ Art. 8 interpretation of states and other conduct of a party. Preference for the
interpretation of unilateral statements and conduct in accordance with the intention of
the party speaking or acting so long as the other party knew or could not have been
unaware of the intent. If the intention is not known to the other party and could not
have been known, then (8(2)) the statement is to be interpreted in accordance with
the understanding that a reasonable person of the same kind as the other part would
have had.
-​ In order to find this meaning out – a contextual approach is to be taken. Context
specified as “all relevant circumstances of the case including negotiations, practices
established between parties, usages and subsequent conduct”.

Art. 9 General principle of considering practices and usages for fillings gaps of the contract

-​ Practices established between parties (bilateral effect)

-​ Agreed usage (bilateral effect)

-​ International usages of trade or customs (erga omnes)

All three can become integral parts of a contract during its formation either by express or
implied agreement, and they can be used for interpreting the intention according to context
of specific unilateral statements and acts.

The ICC’s INCOTERMS are a set of widely accepted definitions for the most commonly used
terms of trade for the sale and purchase of goods. Describe the allocation of certain
obligations, risks and costs, import and export formalities and transport.

(FALTA NOTA)

INCOTERMS IN CISG

Published by ICC (first time 1939)

Definition of terms rather than rules – help provide clarity for seller and buyer as to what they
have to do respectively.

Under the CISG the INCOTERMS are considered either as agreed usages and practices
established by parties or as trade usages.

What does INCOTERMS cover?

-​ Interplay especially in regard to delivery, passing of risk and payment

Significance of Art. 6 CISG partial derogation

(FALTA NOTA)
POTENTIAL CLASHES BETWEEN UNIFORM LAWS AND NATIONAL REGULATION

No form requirement in CISG for contract (Art. 11). V. Domestic requirements for validity

Unclean acceptance: material changes to contract (Art.19). V. domestic legal effects of

material changes

(FALTA NOTA)
OBLIGATIONS OF THE PARTIES UNDER CISG

Obligations of the seller Art. 30 CISG.pdf

-​ Elaborated Arts. 31 – 44 (including buyer’s obligation to examine and give notice)

Obligations of the buyer Art. 53

-​ Elaborated Arts. 54-60

PASSING OF RISK AND PRESERVING THE GOODS

Section IV, Chapter V of Part III CISG

This is where INCOTERMS often are used.

-​ They clarify the seller's obligation to arrange for the contract of carriage, insurance,
allocation of costs, and so forth…

(CLASS 9) 29-04
CISG INCOTERMS

work with each other.

the only way to not use an incoterm in a contract, is to write in the contract that its not going
to use that inctoterm.

CISG MATERIAL OBLIGATION

Obligations of the seller Art. 30

Elaborated Arts. 31 – 44 (including buyer’s obligation to examine and give notice

Obligations of the buyer Art. 53
Elaborated Arts. 54-60

CISG

Remedies for non-compliance// Buyer: Arts. 45-52. Seller: Arts. 61-65.

INCOTERMS IN CISG

-​ Published by ICC (first time 1939) — (it's the main institution of arbitration, it sets the
rules, it's the author of the incoterms)
-​ Definition of terms rather than rules – help provide clarity for seller and buyer as to
what they have to do respectively. (they define who is going to do what, depending
the situation, and also provide clarity = incoterms)

-​ Under the interpretative principles of CISG the INCOTERMS are considered either as
agreed usages (you agree on what you want) and practices established (either) by
parties or as trade usages.

-​ What does INCOTERMS cover?

●​ delivery (when delivery happens and takes places), passing of risk and
payment of insurance

-​ Significance of Art. 6 CISG partial derogation – supplement/replaces this way Arts 66

- 70.

INCOTERMS only regulate defined aspects of the contract of sale and not those
aspects common to all contracts, such as ​
mistake and other matters affecting their validity (does CISG cover? no), transfer of
property (does CISG cover? no), impossibility of performance, misrepresentation,
duties of the seller regarding the qualities of the goods, the buyer’s duty to pay,
impediments against performance caused by unforeseen and unavoidable events,
breach and remedies for breach of contract. These aspects will still be regulated by
means of contractual stipulations or the governing law of the contract.​
​
INCOTERMS = PASSING THE RISK AND PRESERVING THE GOODS

This is where INCOTERMS often are used.

-​ They clarify seller’s obligation to arrange for the contract of carriage, insurance,
allocation of costs, and the passing of risk
​
“INCOTERMS® do not replace the CISG’s provisions on delivery and the passing of risk in
toto (there are things that are not covered) , but merely supersede them in so far as they are
mutually exclusive. For the rest, they function in tandem. Aspects which are not governed by
the INCOTERMS® rules, or inadequately regulated, can be supplemented by the
Convention, and vice versa”

if the incoterms says something the CISG cannot say something, if the CISG say
https://www.tibagroup.com/blog/incoterms-2020
Homework

1.​

a.​ They need to use CISG (art. 1b)

b.​ They do not need to use CISG, the need to use the national law of denmark
2. They are going to use the law of New york, how they stipulated in the contract

3. Each one:
a.​ If both parties of each country agree, they can use the English law.
b.​ v\
c.​ the parties may not.. based on you cannot remove (cannot change)

5. case law, future goods (goods that are not yet there) are covered by the CISGS (Art 3.1
and 3.2)

IP (INTELLECTUAL PROPERTY) RIGHTS: INTERNATIONAL REGULATION

INTELECTUAL PROPERTY (all creations of the human mind, that is what have in common)

Copyright, patent, registered design, geographical indications, trademarks

Intellectual Property: creations of the human mind

IP rights protect the interests of innovators and creators by giving them rights over their
creations

WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO) CONVENTION 1967

No definition of Intellectual Property but a list of examples: (do not give a list of the things
that implies, but gives a bunch of examples)
-​ literary, artistic and scientific works;
-​ performances of performing artists, phonograms and broadcasts;
-​ inventions in all fields of human endeavor;
-​ scientific discoveries;
-​ industrial designs; (zara, h&m)
-​ trademarks, service marks, and commercial names and designations;
-​ protection against unfair competition; and
-​ “all other rights resulting from intellectual activity in the industrial, scientific, literary or
artistic fields”.

WHY PROTECT INTELLECTUAL PROPERTY?

​
Countries generally have laws to protect IP for two main reasons:
-​ to give statutory expression to the rights of creators and innovators in their creations
and innovations while balancing this private interest against the public interest in
accessing creations and innovations; (to give an incent them to create more, by
giving them something, recognition of their work)
-​ to promote creativity and innovation, contributing to economic and social
development.
HISTORICAL DEVELOPMENT IN INTERNATIONAL LAW

Paris Convention for the Protection of Industrial Property (1883) (Paris Convention)

Berne Convention for the Protection of Literary and Artistic Works (1886) (Berne
Convention).

-​ Both treaties have been administered by the World Intellectual Property Organization
(WIPO) since the 1960s.

The need for international protection of IP became evident when foreign exhibitors refused to
attend the international exhibition of inventions in Vienna in 1873 because they were afraid
their ideas would be stolen.

RECENT DEVELOPMENT

Until the early 1990s, the treaties and international organizations concerned with intellectual
property occupied a highly specialized and technocratic corner of international law.

Few connections to other issue areas.

That relative isolation ended in 1994 when the United States and the European
Communities, pressured by their respective intellectual property industries, shifted
negotiations over intellectual property from the WIPO to the WTO and linked the result of
those negotiations (the TRIPs Agreement) to the new WTO dispute settlement system.

RESULT:

Two different bodies concerned with the same subject matter WIPO (managing BERNE AND
PARIS CONVENTIONS)

WTO (managing TRIPS)

WIPO is since 1974 part of the UN as a specialized agency

WTO is independent from the UN

MODERN INTERNATIONAL CONVENTIONS

TRIPS and WIPO (see notes)

Rules relating to intellectual property also exist in other international institutions:

-​ Conference of the Parties to the Convention on Biological Diversity (CBD)
-​ World Health Organization (WHO)
-​ World Intellectual Property Organization (WIPO)
-​ Food and Agriculture Organization (FAO)
 -​ Intersection of human rights and intellectual property is also a widely discussed topic
studied from different perspectives within the United Nations human rights system as
well as the WTO and the WHO.

The TRIPS agreement says WTO member countries must comply with the substantive
obligations of the main conventions of WIPO – the Paris Convention on industrial property,
and the Berne convention on copyright (in their most recent versions)

TWO BRANCHES OF IP RIGHTS

INDUSTRIAL PROPERTY

Industrial property takes a range of forms:

-​ patents for inventions

-​ industrial designs (aesthetic creations related to the appearance of industrial
products)
-​ trademarks
-​ layout-designs of integrated circuits
-​ commercial names and designations
-​ geographical indications
-​ protection against unfair competition.

COPYRIGHT (the right to copy and the right to be known as the author)

Copyright relates to literary and artistic creations: (we protect the expression of something)

-​ E.g., books, music, paintings and sculptures, films and technology-based works
(such as computer programs and electronic databases).

-​ Copyright or authors’ right - historic difference which is now mainly referred to as the
difference between the economic and moral rights of the author. Authors’ right

(falta nota)
fair use — copyright (can use it)
|__ patents (can not use it)

1.​ copyright
2.​ registered design
3.​ patents
4.​ Champagne
5.​ the look, share and feel of product
6.​ 50 years after the death of the person (70 after the death)
7.​ 20 years
8.​ copyright
9.​ registered designs (also trademarks)
10.​trademarks (patent)