Summary - International
Business Law
1 What is law and where can we find it?
The organization of just behaviour
à Law organizes just behaviour in a society using two types of legal rules: substantive and formal legal rules.
Substantive law is composed of legal rules that define the content of just behaviour;
Formal law is composed of legal rules that maintain substanstive law.
à Substantive and formal legal rules are necessary to regulate two types of relations: public and private
relations.
Public law is the law that regulates the relation between a government and its citziens.
Private law is the law that regulates the relation between citziens or those who act as citziens.
à Subcategorize different legal branches.
At international level: economic cooperation
At national public law level: constitutional and administrative law, and criminal law.
At national private law level we categorize law that deals with contracts, liability, labour contracts,
the legal form of a company, privacy and intellectual property.
à ‘Just’ implies a balance between the values ‘justice’, ‘opportuness’, and ‘legal certainty’.
Justice is the moral conviction of a given society expressed in law;
Opportuness is the expression of effectiveness by a given society in law;
Legal certainty is the expression of legality in a given society.
The origin of law
à There are two opposing views regarding the origin of law: natural law and positivist law. They are two
extremes, and are usually both apparent in legal systems.
In an natural law approach it is assumed that law comes fort from nature;
In a positivist law approach, it is assumed that law comes forth from codification.
The sources of law
à The following sources are generally used: codified standards, the application of law, legal writing and
teachings, religious writing and teachings, customary law and legal principles.
à Codified standards are written rules produced by a legislator:
At international level, written standards are usually created in the form of a contract between states:
a treaty.
- A bilateral treaty is a treaty to which two states are party.
- A multilateral treaty is a treaty to which more than two states are party.
A state expresses the will to be bound by a treaty by signing and ratifying the treaty.
- The signature of a treaty implies the consent of the responsible negotiator on behalf of the state
to the treaty.
- The ratification of a treaty implies the consent of the responsible Legislator on behalf of the
state of the treaty.
There are two approaches in how international written standards have effect in the domestic legal
order of state parties to a treaty: monism and dualism.
- Monism is an approach in law in which it is assumed that the content of a signed and ratified
treaty is automatically part of the domestic legal order.
- Dualism is an approach in law in which it is assumed that a signed and ratified treaty needs to be
transformed into domestic law first before it forms part of the domestic legal order.
,à Law application is performed by courts and tribunals, the administration, and the military.
Case law is a chain of authoritative legal ruling in which the same reasoning pattern of the court is
applied in similar cases. In some countries, the principle of stare decisis applies.
- Stare decisis is a legal principle in which courts have follow the legal reasoning as applied in
previous cases.
The administration is the branch in the public sector that executes the law within the boundaries of
its competences.
- The margin of discretion is the room allowed to the administration to execute the law at their
own discretion.
In some countries, the military is authorized to apply the law, or parts of the law.
à Legal writings and teachings can be a legal source in its own right.
à In some countries, religious writing and teachings are accepted as a source of law.
A non-secular state is a state in which governance and religion are mixed;
A secular state is a state in which governance and religion are separated.
à A custom is an established and accepted legal practice.
à A legal principle is a general value that applies in law.
Ius Cogens are universally binding legal principles.
The constitution
1. Defines the State
State structure: Federation vs. Unitary State
Government system: Republic vs. Monarchy
Democracy: is a form that can be applied to both a Monarchy and a Republic
2. Attributes power to state institutions
“Trias Politica” a.k.a. “Checks and Balances”
Legislature
Judiciary Administration/The Executive
3. Defines citizen’s rights
Negative Freedom= No government interference
Positive Freedom= Government action
2 Comparative law and legal systems
à Comparative law has five main purposes:
The gaining of knowledge;
Evaluating the better law;
Substantiate the application of law;
Improve legal education;
The unification of law.
There are two levels of legal comparison: micro- and macro comparison
à Macro comparison:
Macro comparison is the activity in which the main characteristics of legal systems are compared.
A legal system is a coherent collective of legal rules in which the same hierarchy of legal sources
applies, mostly determined by the boundaries of a state.
A legal family is a group of legal systems that share the same basic characteristics in law, including at
similar hierarchy of legal rules.
, à There are 6 types of legal families:
A common law system is case law driven, for instance England.
A civil law system is driven by codified standards, for instance France.
A socialist system is driven by the administration, for instance Cuba.
A religious system is driven by religious rules, for instance Saudi-Arabia.
A traditional law system is driven by customary law, for instance the natives in Malaysia.
A mixed system contains two or more elements of the other families, for instance Japan.
à Micro comparison:
Micro comparison is the activity in which the legal solution to a social problem in legal systems are
compared.
In micro comparison, a functional method is used. This encompasses the following elements:
- The tertium comparations is the shared social problem to which the compared legal solutions
answer.
- The praesumptio similtudinis is the assumption that in essence each society faces the same
social problems.
- The legal solution to a social problem is the particular legal concept within a given legal system
that solves the involved social problem.
- Legal solutions to a similar social problem are functionally equivalent,
à Rules of thumb in micro-comparison are the following:
Determine to which legal family the legal system belongs, and what particular characteristics are
important in this legal system.
Determine how the legal sources are used by those who live in that legal system
Do not study the law in the books only, but also the law in practice.
Study the sources in the original form, preferably in the original language.
Be mindful that a legal solution may respond to more than one social problem.
3 Constitutional law
à Constitutional law regulates and restricts the attribution of power within a state.
This is done by three types of rules:
Rules that define the state.
Rules that attribute power of state institutions.
Rules that recognize fundamental rights of citiziens.
à The way power is exercised relates to what concept of freedom is supported in a society.
Negative freedom means that one is free to do whatever he wants, without any interference.
Positive freedom means that as a result of interference one has the opportunity to better provide
direction to his life.
à In most states, power within a state is distributed according to the trias politica model that was introduced
by Charles de Montesquieu:
Trias politica is the organization of a state by separating legislative, executive and judicial powers.
à States are organized in a state structure: The state structure is the way power is distributed amongst the
entities of a state. These are two common state forms: the federation and the unitary state.
A federation is a state that unites federated areas that are self-governing within the boundaries set
by the federation.
A unitary state is a centrally organized state in which al power is vested in national political
institutions.
à States are ruled according to a government system: a government system is the way in which power is
distributed amongst the political institutions of a state. Two systems are most frequently used: a monarchy
and a republic.
