Samenvatting
Summary International business law
- Instelling
- Hanzehogeschool Groningen (Hanze)
Engelse Samenvatting van het boek A Basic Guide to International Business Law ISBN: , 5e druk H1 t/m H8.
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Voorbeeld van de inhoud
Chapter 1 Introduction to International Private Law and European LawInternational law is law agreed by two or more states and is applicable to those states and in most
cases their nationals. It is laid down in rules referred to as Treaties, Conventions, Regulations and
Declarations. States that sign a Treaty of Convention agree to be bound by its rules.
International law can be divided into International Public Law and International Private Law.
International Public Law: is concerned with such issues as the set-up of international institutions (the
United Nations, the European Community, and the European Court of Human Rights), human rights
(European Convention on Human Rights) and the extradition of nationals from another country to
their home country.
International Private Law: the aim is to solve problems in international legal relationships which
arise from different legal systems. International Private Law provides a set of rules either to decide
the matter, of to refer the litigating parties to a national legal system where the answer lies.
Basically every country has its own International Private Law. However, over the years several
Treaties and Regulations have been set up to deal internationally with these legal problems.
EU law means: The Treaty on the Functioning of the EU and all legislation which is based on it,
binding for all Member States of the EU.
Three main issues (pillars) of Internal Private Law are:
1. What court of law has jurisdiction in a case of litigation? How is the verdict of a court of law
that has jurisdiction executed? (Brussels 1 explained in chapter 3)
2. What law is to be applied in order to resolve the conflict between the -contracting- parties
i.e. the parties to the contract? (Rome 1 explained in chapter 4)
3. Is there a specific treaty that provides an immediate solution to a conflict between
contracting parties? As this is the contract used most often in the world, this question will be
dealt with by using the contract of sale.
Bear in mind that, if the answer to question 1 is that a Dutch court of law has jurisdiction, this does
not automatically mean that Dutch law should be applied. It might very well be that a Dutch court of
law should apply Belgian, French, English or any law other than Dutch law.
European law in itself is also International Law. One of the main differences is the fact that all EU law
is based on one Treaty, the Treaty on the Functioning of the European Union (TFEU), instead of
numerous Treaties on various subjects. Another difference is that several institutions and types of
legislation are based on this TFEU, and this is unusual in the field of International Private Law.
European Law is more important than we often realise as it takes precedence over the national laws
of countries that have signed the TFEU. However European Law does not cover every aspect of
business competition between Member States of between undertakings that are or are not the same
Member State. So other national and international rules and regulations still have a role to play. To
examine the effect EU law has over national laws see the case of Costa vs ENEL.
The main objective of the EU is to achieve economic integration through the use of a common
market where goods, persons, capital and services can circulate freely. A very important condition to
make it work is that Member States should give up their sovereignty in those areas governed by the
EU Treaty. As a result of this EU becomes a so-called supranational organization, a ‘State above the
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,Member States’ which has the authority to make rules that bind Member States of the EU, without
their specific and prior consent.
EU law takes precedence over national law and is thus applied uniformly throughout the EU. In EU
law we can distinguish between directly applicable EU law and directly effective EU law.
EU law that is directly applicable means that the provisions of EU law apply directly within the legal
systems of the Member States, without the need for further acts by the governments of these
Member States. The TFEU determines what EU law is to be directly applicable. Art. 288 TFEU states
that regulations of the EU are always directly applicable and that a Regulation shall have general
application.
The provisions of directly effective EU law give rights to nationals of the EU, both persons and
companies, who can rely on them in a court in their own country e.g. in a lawsuit against another
person of their own national government. Directly effective EU law is therefore only of interest to
nationals as it does not in itself affect the Member States. Any provision only has a direct effect if the
ECJ (European Court of Justice) has said it does. Only the ECJ can decide if EU law had direct effect, a
question on which neither Member States nor their nationals are competent to pronounce. If the ECJ
decides a Treaty Article should have direct effect, then a national can rely on this Article before a
national court of law.
Art. 112 TFEU prohibits Member States from introducing new taxes between Member States. The ECJ
listed the requirements a Treaty Article must meet in order to have a direct effect:
The provision must be clear and unambiguous
The provision must be unconditional
The provision must take effect without further acts of the EU or Member States
Other examples of Articles of the TFEU which the ECJ has decided have a direct effect include:
Free movement of persons (Art. 45 TFEU)
Free movement of goods (Art. 34, 35, 36 TFEU)
Right to equal pay for men and women (Art. 157 TFEU)
Competition law (Art. 101, 102 TFEU)
All EU nationals can enforce these Articles in national court.
The institutions of the EU are:
European Parliament (EP) (Articles 223 – 234 TFEU): Members are directly elected by
European citizens. Number representatives from each country varies according to size.
Elected members take part in Parliamentary Committees dealing with specific aspects of EU
policy. EP has a role in approving the budget of the EU which is submitted in draft form by
the Council Members. EP has a role in the legislative process of the EU.
Council of the EU (Articles 235, 236 TFEU): supervises certain aspects of the legislative
procedures of Member States. Several other areas of responsibility, ranging from
employment in the EU to terrorist threats.
Council of Ministers (Articles 237 – 243 TFEU): also referred as Council of the EU and has
rotation membership of representatives. Each representative is authorized to speak and act
for his own government. The functions of the council are: making EU policy in all areas,
making decisions, based on proposals from the Commission. Much work is done by CORPER,
a permanent body of representatives from the Member States.
European Commission (Articles 244 – 250 TFEU): operates independently of any
government, body or person. The functions are: initiator; it initiates Eu legislation. Guardian
of the Treaties; investigate whether Member States/ undertakings abide by the obligations
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, of the TFEU or those imposed on them by EU institutions. Executive; implementing the
policies decided by the council.
European Court of Justice (ECJ) (Articles 251 – 281 TFEU): has jurisdiction in only those cases
specifically prescribed by a provision in the TFEU.
Apart from the TFEU, there are several other types of legislation:
Regulations: are general rule that apply uniformly throughout the EU, and no further acts of
Member States are necessary.
Directives: require each Member State to implement the legislation in a Directive within a
certain period of time. They grant Member States discretionary powers as to the means of
implementation. A Member State can be penalized if it does not implement the directive
within the prescribed period.
Decision: individual acts, binding on a Member State or an individual or a group of
individuals.
According to art. 267 (1) TFEU the ECJ shall have the legal right to give preliminary rulings
concerning: (a) the interpretation of this Treaty; and (b) the validity and interpretation of acts of the
institutions of the Community. Art. 267 TFEU enables the ECJ to add new law to already existing EU
law. A national court is entitled to put questions concerning the validity and interpretation of EU law
to the ECJ. Art. 267 ensures a uniform interpretation of the articles of the TFEU and uniformity in the
application of EU law throughout the EU.
Conditions for a preliminary ruling under art. 267 TFEU are:
1. ‘Courts and tribunals’ have the right to request a preliminary ruling: under art. 267 ‘every
court or tribunal of a Member State’ may request a preliminary ruling of the ECJ.
2. The necessity of the preliminary ruling: another condition in art. 267 (2) TFEU is that a
decision by the ECJ on a question raised by a national court is necessary to enable it to give
judgement. A reference under art. 267 is unnecessary if:
The question regarding EU law is irrelevant
The question regarding EU law has already been decided by the ECJ
The correct interpretation of EU law is so obvious that there is no room for any doubt
3. No judicial remedy under national law: art. 267 (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 national law, that court or tribunal shall bring the matter before the ECJ.
4. Questions put before the ECJ must involve genuine issues of EU law: the preliminary ruling
has to be applied to a real dispute. This condition is not found in art 267 TFEU, but rather
derives from the case of Foglia vs Novello.
A preliminary ruling binds the national court in that particular case. It is its duty to give a verdict. It is
not possible for the ECJ to declare ant of the acts of the institutions invalid by means of this
preliminary ruling. In order for this to be done one must follow the correct procedure under art. 263
TFEU.
Under art. 263 TFEU when an action for annulment is raised the ECJ reviews the legality of acts of
the institutions of the EU, such as the Commission.
Revisable acts: under art. 263 TFEU Regulations, Directives and Decisions are revisable acts.
Right to challenge: Under art. 263 (2) and (4) TFEU the right to challenge these acts is given to
Member States, the Council, the Commission and to natural or legal persons. The decision must be
addressed to this person of if this is not the case, be direct and individual concern to this person.
The grounds for challenge are mentioned in Art. 263 (2) TFEU:
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