Samenvatting van hoofdstuk 1 t/m 8 van het boek: A Basic Guide to International Business Law. Auteur: H. Wevers. Mét belangrijke illustraties uit het boek en vertalingen van lastige termen. Docent Hanzehogeschool: Wabbe de Vries.
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Recap International Business Law
10th June 2018
Chapter 1, Introducton to Internatonaa rivate Law and European Law
International law is law agreed by two or more states and is applicable to those states and in most
cases their natonalss By signing a Treaty or Convention of states agree to be bound by it ruless
States that sign a treaty or convention agree to be bound by its ruless
International law can be divided into International Public Law and International Private Laws
Internatonal Public Law is concerned with such issues as the set-up of internatonal insttutonsn for
example human rightss The aim of Internatonal Private Law is to solve problems in internatonal legal
relatonships which arise from diferent legal systemss Basically every country has it own
Internatonal Private Laws International Private Law deals with three main issues:
- Jurisdiction in cases of litiiation1 between two partes from diferent statess
- The law to be applied in cases of internatonal litgaton between two private partess
- Solutions to leial problems arising out of an international relationships
EU law means: the Treaty on the Functionini of the EU and all legislaton which is based on itn
binding for all Member States of the EUs
In many casesn when there are partes involved in a problemn who live in diferent countriesn the
queston is: which law is applicable? The rules of Internatonal Private Law provide answers to such
cases by focussing on aspects such as the place of residence, workini place or the nationality of the
partess Three main issues of International Private Law can be deducted from those cases:
1. What court of law has jurisdiction in a case of litiiationo How is the verdict2 of a court of law
that has jurisdicton executed? To answer the questonn we can look to the Brussels I Regulatonn
which will be dealt with in Chapter 3s
2. What law is to be applied in order to resolve the confict between the contractini parties and
other parties to the contracto The regulaton to be used here is the Rome I Regulatons
3. Is there e specifc treaty that provides an immediate solution to a confict between contractini
partieso As this is the contract used most ofen in the worldn this queston will be dealt with by
using the contract of sales
As the conditons of an internatonal sales contract have been fulflledn the treaty to use here is the
United Nations Convention on the International Sale of Goods (CISG), will be dealt with in Chapter
5s It is good to know that for example Dutch court of law can have jurisdictonn but not automatcally
apply his own laws Dutch court of law can also apply for example French laws
European Law in itself is also International Laws EU Law is more important than we ofen realise it
takes precedence over the natonal laws of countries that have signed tot Treaty on the Functionini
of the European Union (TFEU)s However EU Law does not cover every aspect of business competton
between Member Statesn so other internatonal rules and regulatons stll have a role to plays To
examine the efect EU law has over natonal law see the case of Costa vss ENELs
The main objectve of the EU is to achieve economic inteiration through the use of a common
market where goods can circulate freelys The EU is called a supranational orianisationn a ‘State
above the Member States’n which has the authority to make rules that bind the Member States of
1
Procesvoering
2
Vonnis
1
,the EUs EU law takes precedence over natonal law and is thus applied uniformly throughout the EUs
In EU law we can distnguish between directly applicable EU law and directly efective EU laws EU
law that is directly applicable means that the provisions of EU law apply directly within the legal
systems of the Member Statesn without the need of further acts by the governments of these
Member Statess The treaty on the Functionini of the EU (TFEU) determines what EU law is to be
directly applicables Artcle 222 TFEU states that Regulatons of the EU are always directly applicable
and that a Reiulation shall have general applicatons
The provisions of directly efective EU law give rights to natonals of the EU who can rely on them in
a court in their own country esgs in a lawsuit against another person of their own natonal
governments Directly efectve EU law is therefore only of interest to nationals as it does not in itself
afect the Member Statess Any provisionn for example a Treaty Artclen only has a direct efect if the
ECJ (European Court of Justcee has said it doess Only the ECJ can decide if EU law has direct efectn a
queston on which neither Member States nor their natonals are competent to pronounces If the ECJ
decides a Treaty Article should have direct efectn then a natonal can rely on this Artcle before a
natonal court of laws
Arts 112 TFEU prohibits3 Member States from introducini new taxes between Member Statess For
example the ECJ conclude that arts 112 TFEU is directly efective (because of the Van Gend & Loos
casees A Treaty Artcle must meet in order to have a direct efect:
- The provision must be clear and unambiiuouss
- The provision must be unconditionals
- The provision must take efect without further acts of the EU or Member Statess
Other examples of Artcles of the TFEU which the ECJ has decided have a direct efect include:
- Free movement of persons (Arts 45 TFEUe;
- Free movement of goods (Arts 34n 35n 36 TFEUe;
- Right to equal pay for men and women (Arts 157 TFEUe;
- Competton law (Arts 1n1n 1n2 TFEUes
All EU natonals can enforce these Artcles in national court.
EU institutions are uniques They do not correspond to any other insttutons at either natonal or
internatonal level nor do they have any connecton with Treates other than the Treaty on the
Functoning of the European Union (TFEUes The institutions of the EU are:
- European Parliament (Art. 223 0 234 TFEU): members are directly elected by European citienss
The number of representatves from each country varies according to the siies The members
deals with specifc aspects of EU policys The European Parliament has a role in approving the
budget of the EU which is submited in draf form by the Council of Ministerss The European
Parliament has also a role in the legislatve process of the EUs
- Council of the EU (Art. 235, 236 TFEU): The moment the TFEU came into efectn the European
Council became a new insttuton of the EUs The European Council supervises certain aspects of
the legislatve procedures of Member Statesn such as criminal proceduress The European Council
has several other areas of responsibilityn ranging from employment in the EU tot terrorist threatss
- Council on Ministers (Art. 237 – 243 TFEU): is also referred to as the Council of the European
Union and has a rotatng membership of representatves at ministerial levels Each representatve
is authorised to speak and act for his own governments The functons of the Council are:
Making EU policy in all areas
Making decisionsn based on proposals from the Commissions
Much of the work of the Council is done by COREPERn a permanent body of representatves from
the Member Statess
3
Verbiedt
2
, - European Commission (Art. 244 – 250 TFEU): has 22 Members appointed by the agreement of
the governments of the Member Statess The Commission operates independently of any
governmentn body or persons The functons of the Commission are that of:
Initator: it initates EU legislaton
Guardian of the Treates: to investgate whether Member States or undertakings abide by
the obligatons of the TFEU or those imposed on them by EU insttutonss
Executve: implementng the policies decided by the Councils
- European Court of Justice (Art. 251 – 281 TFEU): has jurisdicton in only those cases specifcally
prescribed by a provision in the TFEUs
Apart from the TFEUn there are several other types of leiislation:
- Reiulationsn general rules that apply uniformly throughout the EUn and no further acts of
Member States are necessarys
- Directivesn require each Member State to implement the legislaton in a Directve within a certain
period of tmes They grand Member States discretonary powers as to the means of
implementatons It is important that Member States incorporate Directves into their own
natonal legal systems within the prescribed tme limitss
- Decisionsn are individual actsn binding on a Member State or an individual or group individualss
According to Arts 267 (1e TFEUn the ECJ shall have the leial riiht to iive preliminary rulini
concerning4: (ae the interpretation of the Treaty; and (be … the validity and interpretation of acts of
the insttutons of the Community (…es Most of the major verdicts given by the European Court of
Justce have been made with reference to Arts 267s Arts 267 enables the European Court of Justce to
add new law to already existng EU laws
A natonal court is enttled to put questions concernini the validity and interpretation of EU law to
the ECJs Arts 267 ensures a uniform interpretation of the Artcles of the TFEU and uniformity in the
application of EU law throughout the EUs
Conditions for a preliminary rulini under Arts 267 THEU are:
1. ‘Courts and tribunals’ have the right to request a preliminary rulini Under Arts 267 ‘every court
of tribunal of a Member State’ may request a preliminary ruling of the ECJs Any body that
exercises a judicial functonn makes legally binding decisions on the rights and obligatons of
individuals and is subject to the control of public authorites is considered to be a court of
tribunal under Arts 267s
2. The necessity of the preliminary rulini.
Another conditon mentoned in Arts 267 (2e is that a decision by the European Court of Justce
on a queston raised by a natonal court is necessary to enable it to give judgements A reference
under Arts 267 is unnecessary if: the queston is irrelevantn has already been decided or the
correct interpretaton is so obvious that there is no room for any doubts
3. No judicial remedy under national law
Arts 267n 3 TFEU states that in a case pending before a court or tribunal of a Member State
against whose decisions there is no judicial remedy under natonal lawn that court or tribunal
shall bring the mater before the Court of Justces The natonal court of law must refer to the ECJs
4. Questions put before the European Court of Justice must involve ienuine 5 issues of EU law
Those questons must be raised by that natonal courts It is not the job of the ECJ to give advisory
opinions on general or hypothetcal questonss The preliminary ruling has to be applied to a real
disputes This conditon is not found in Arts 267 TFEUs Every tme a natonal court of law
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