International Law Essay

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International law should more appropriately be named transnational  law. Transnational law is defined  by Philip Jessup as “all law which regulates  actions  or events  that  transcend  national  frontiers.” Transnational law encompasses public international law, private international law, and foreign and comparative law. It includes not only norms that are “international” by their nature, such as treaties or customs, but also domestic rules and principles governing transnational issues, such as Chinese law dealing with foreign litigants or with Spanish business activities abroad. This essay  is organized  into  the  three  definitional  areas: public international law; private international law, including international dispute resolution; and transnational transactions.

Public International Law

Public international law has usually been defined as the law of relationships  between “states” (nations or countries).  A more expansive definition now in use comes from U.S. law experts: the rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se (among themselves) as well as with some of their  relations  with persons, whether natural  or juridical. The sources  of public international  law include  (1) treaties,  conventions,  protocols, charters  of international member-state organizations  (e.g., the  United  Nations),  and  executive agreements;  (2) customary  international law;  and (3) principles common  to major legal systems. Note that  no international laws that  apply to all nations and citizens of the world are enacted by a super national body, such as the United  Nations.  When  an issue of international law arises, it may be raised in the  courts  of a particular  nation  or in an international forum  created  by the consent  of some or all nations (e.g., the World Trade Organization).

A  treaty   is  an   agreement   between   countries, which can be bilateral (two nations), trilateral (three nations), or multilateral (more than three). There are thousands of treaties in effect globally at this time, covering almost every imaginable aspect of global relations from the law of the sea to human rights to war to  commerce.  International organizations  may also be included in treaties. A convention is also an agreement  or compact  between nations, often negotiated though  the  United  Nations  on a regional  or global basis. Protocols are agreements that typically address matters  less important than treaty language, but frequently relate to treaty matters. Executive agreements are entered by the chief executive officer of a nation.

In the United States, treaties are recognized in the Constitution, binding  on  federal  and  state  governments. Some treaties are self-executing, that is, once adopted,  these treaties  are binding. Executory treaties, on the other hand, need a domestic law enacted by the legislature or an act of the president to be effective. In the United  States, executive agreements  are as binding as treaties. Some of the agreements can be entered by the president alone, and some are based on congressional authority or a treaty, allowing the president to execute the agreement.

Many treaties affect the conduct of global business and  foreign investment.  There are numerous  intellectual property rights treaties, often bilateral, and domestic laws in various countries  which implement the  treaties.  A summary  of the  previously informal customary  international law that governs all treaties is itself found in a treaty signed by 97 countries: the 1980 Vienna Convention on the Law of Treaties.

Businesses are  affected by many  public  international  agreements,  especially executive agreements. Trade agreements, the anti-bribery convention, environmental  treaties, and protection of intellectual property  rights  treaties  all have a profound  impact on international business, be it direct foreign investment, licensing, or importing/exporting.

Trade agreements  are often executive agreements that  address  trade  goals, such  as liberalizing  trade through reduced tariffs or non-tariff barriers, or protecting trade through quotas or tariffs. Trade barriers include tariffs, also known as import  duties. Tariffs can be assessed ad valorem (as a percentage of value) or as flat tariffs (based on the number of units). Nontariff  barriers  include  embargoes  and  quotas,  and indirect non-tariff barriers. Embargoes can dictate a complete ban on imports  and/or  exports with a foreign nation or a ban on certain goods. Quotas are limits on the number of imports into a country, based on value or quantity. Indirect non-tariff barriers are laws, regulations, practices, and social values that result in reducing the purchase of foreign goods.

Historically, countries  have imposed trade barriers for many reasons: tax collection,  protection of domestic  industry,  foreign policy support,  national defense, protection of the  environment or  natural resources, promotion of cultural or religious values, protection of public health and safety, and reciprocation for the barriers of other countries. As countries came to realize that trade barriers may benefit parochial interests,  the countries  have also determined that  barriers   damage  the  international  economy. To fully benefit from globalization, most  countries are establishing rules to attempt  to reduce barriers, notably through  the General Agreement  on Tariffs and Trade (GATT).

GATT Principles

Almost every industrial  sector  of the  economies  of developed countries is now governed by trade agreements. The most significant agreement  is the GATT of 1994, which among other  provisions, created  the World  Trade  Organization  (WTO).  The purpose  of the original GATT of 1947, signed by 23 countries, was to  promote  and  expand  trade  between  signatory nations by reducing tariffs and non-tariff barriers. Over 125 countries,  called members,  have now adopted  the  1994 GATT,  which  includes  the  1947 provisions, many multilateral  trade agreements,  and the Uruguay Round Agreements. The Uruguay Round addresses specialized areas of trade relations. GATT requires  the domestic  trade  rules of members  to be based on GATT principles.

The WTO  sets  policies and  rules  to  implement GATT principles and settles trade disputes between nations.  It  is not,  however,  a  forum  for  litigation between  private  parties.  The WTO  includes  about 150 members—all the members  of GATT and other countries if two-thirds of the WTO members approve the nation’s application.

One  critical  rule  of GATT  and  WTO  is that  a nation  cannot  retaliate  against  another  nation  that has imposed a trade restriction.  The offended member must proceed through  the WTO dispute resolution process. The remedy may in fact include permission to impose a retaliatory  trade restriction  against the offending member.

Marketing  laws come  into  play when companies hire representatives  to promote  products  abroad. In some countries,  such as the United States, there are few, if any, restrictions  on the relationship  between a company and its representatives.  In other countries, local representatives  are protected  by domestic laws, regardless of a contract  between the parties. France, Paraguay, and the European Union, for example, have protectionist provisions for representatives.

Recent  Developments In Public International Law

An area of public international law that  has gained attention since the mid-1970s has been anti-bribery legislation. Almost every country  bans bribery of its public officials. A few countries also ban their citizens from paying bribes to officials in foreign countries. In 1977, the U.S. Congress adopted the Foreign Corrupt Practices Act, the only act of its kind among all nations for 20 years. In 1999, several countries,  including all major European  countries,  adopted  the Convention on Combating  Bribery of Foreign Public Officials in International Business (CCB). Most of the large international companies are headquartered in nations that have adopted the CCB.

Attention  to environmental concerns  has grown exponentially  in the  past  half-century.  Many  laws have been passed by nations, and regional environmental treaties have been adopted addressing some environmental issues. The United  Nations  adopted the Stockholm Declaration on the Human  Environment in 1972, leading to over 30 multilateral  agreements.  Over  100 nations  have adopted  the  treaty governing trans boundary movements  of hazardous wastes,  the  Basel Convention   on  Trans boundary Movements  of Hazardous  Wastes  and  Their  Disposal. More  than  150 nations  signed the  Convention on International Trade  in Endangered  Species of Wild Fauna and Flora that governs the import and export  of endangered  species. The Montreal  Protocol addresses  the ozone layer and has been very controversial  among developed countries. The 1992

Framework Convention  on Climate Change and the 1997 Kyoto Protocol  have attempted to limit emissions, with no  agreement  on  enforcement mechanisms to date. Businesses will have to take the then current status of environmental treaties into account when developing locations abroad and at home.

Intellectual  property  rights  (IPRs) include  protections  for  inventions,  literary,  architectural and artistic works, and words, phrases, symbols, and designs that are eligible for patents, copyrights, and trademarks. Each country grants certain right to the owners of the material. The 2000 GATT Agreement on  Trade-Related  Aspects  of Intellectual  Property Rights (TRIPS) requires its member nations to adopt minimum IPR protections and effective enforcement mechanisms. The signatories must abide by the earlier Paris Convention  (patents  and trademarks)  and Berne Convention (copyrights) that result in foreign IPR holders having the same protection as domestic holders of patents, copyrights, and trademarks.

The 1970 Patent  Cooperation  Treaty  centralized the  application   process  for  international  protection  of patents.  The UN  World  Intellectual  Property  Organization   (WIPO)  processes  the  applications and sends them to countries that the applicant specifies, or to the European Union for its member countries. A similar system exists through WIPO for trademarks.  Companies  must  take care about  relying on TRIPS, as various nations are seeking mechanisms to delay compliance or interpret its provisions to protect  domestic  businesses, rather  than foreign holders of IPRs.

A growing concern for global business is the issue of human  rights.  Nongovernmental organizations (NGOs) and  corporations are forming  alliances to address human rights in the business setting. Under the auspices of the United Nations, over 60 signatories, including some major global companies, signed a “global compact” in 2000 to support human rights, eliminate child labor, allow trade unions, and protect the environment. Lawsuits have been filed under the U.S. Alien Tort  Claims Act, passed over 200 years ago, claiming multinational companies can be liable for  human  rights  abuses  by foreign  governments that helped the companies, when the multinational knew and condoned  the violations. In 2005, Unocal agreed to settle such a lawsuit claiming the oil company encouraged  and assisted the rape, torture,  and murder of Burmese locals by government soldiers so that Unocal could build a gas pipeline.

Private International Law

Private international law deals with the relationships between parties and conflicts of laws when the parties are in a legal dispute. The relationships are largely dictated  by private contracts  between parties. There are, however,  several treaties  and  conventions  that attempt  to  introduce  common  ground  for transactions. Notably, the Convention  on Contracts  for the International Sale of Goods (CISG), adopted by some 64 countries, determines the rights of buyers and sellers of most  merchant  goods in signatory countries, unless the contracting  parties opt out of the Convention  or have contract  provisions  that  supersede  the Convention.  Three large categories of sales excluded from the CISG are (1) consumer  goods sold for personal, family, or household use, (2) many labor or service contracts,  and (3) stocks, securities, negotiable instruments, and money.

As is the  case in most  countries,  contracts  may be enforced under  CISG if they were entered  (1) by mutual  consent,  (2) with legal consideration (a bargained  exchange,  whether  goods, money,  or otherwise), (3) with legal capacity (not legally incompetent, minors, or under  the influence of drugs or alcohol), and (4) for a legal purpose. The Convention addresses contract performance  and remedies for breach.

International disputes can be resolved in a number of ways. Diplomatic channels are often the first line of approach, whether nations themselves are involved or citizens and businesses of those nations are in dispute with each other or with a foreign government.

The International Court  of Justice (World  Court) formed under the United Nations Charter  hears certain cases, but only when states are in dispute  with each other, or states file a claim on behalf of individual citizens or businesses whose rights have been violated and the complaining  state  alleges that  the violation also infringes  on the  state  itself. Both complainant and respondent are free to submit to the jurisdiction of the World Court, but are not required to do so. For the  above reasons,  few business  disagreements  are heard at the World Court.

In the world of commerce, business contracts typically specify how disputes  will be resolved, through a choice of court  and law, or by alternative  dispute resolution,  such as mediation  or arbitration.  A sales contract  dispute  between  a European  country  and China will be heard typically in the courts identified in the contract,  and the law of the country  the parties specified will be applied by the courts. The cases can be complicated  when a court in a given country must  apply law from another  country,  often involving experts to testify as to what the foreign law provides linguistically and legally. In the absence of contract language, elaborate rules are considered  by the courts, such as the legal presence of a litigant in the jurisdiction of the court, which body of law to apply, where the disputed  transaction  occurred,  where the contract was made, where it was to be performed, and other matters.

Issues that often arise in both domestic and international  cases  are  proper  jurisdiction  and  proper forum.  Even if parties  to a contract  agree to use a particular court or court system, a threshold question is whether the court is authorized  by law to hear the particular type of subject matter in the case in controversy. In addition  to subject matter  jurisdiction,  the court must obtain jurisdiction  over the person or an object in controversy. If an object, such as real estate or personal property, is in the geographic jurisdiction of the court, the requirement is satisfied. If a defending person or business or government  is being sued, the court obtains jurisdiction if the defendant has the requisite  degree of contact  in the geographic locale, and if the defendant  is properly served the pleadings filed by the suing party.

In addition to proper jurisdiction, the forum or geographical location of the court must be proper. Often, more than one court has proper  jurisdiction, and the proper  location must be chosen. A case is eligible to be heard in different courts, depending on the country and state, including where defendants reside, where the cause of action arose, where a contract was made, where a contract was to be performed, or where all the plaintiffs reside. The court can transfer a case, even if venue is proper, if it determines another court would be more convenient for parties and witnesses and justice would be better served. This forum non convenient principle can apply in any court case, whether criminal or civil. A noted  example involved the chemical leak disaster in Bhopal, India, resulting in Indian citizens filing suit in New York federal court against Union Carbide. The judge dismissed the case, in favor of Indian courts, as most of the evidence, records, and Hindi-speaking witnesses were in India, as well as several other  reasons that made India the better forum to administer justice.

Once  a judgment  is entered  against a defendant, a problematic  procedure  arises in the  international context.  Enforcement   of  a  judgment   in  a  foreign nation presents special problems. For example, if the defendant did not appear in court, he may argue that the method  used to serve him was unfair under  his own nation’s laws. He can challenge the judgment in his country, and if the foreign court agrees with him, it will not honor  the judgment  and allow collection to proceed.  Many countries  have signed the Hague Convention  on Service Abroad of Judicial and ExtraJudicial Documents  in Civil and  Commercial  Matters, which addresses service, albeit not uniform  for the signatory countries.

Foreign And Comparative Law

Where  no international agreement  controls  a particular area of activity, companies are subject to domestic laws, regulations, and customs. Businesses face myriad differences in laws in foreign countries. For  example,  domestic  marketing  laws come  into play when  companies  hire  representatives  to  promote  products  abroad.  In some countries,  such as the United States, there  are few, if any, restrictions on the relationship  between a company and its representatives.  In  other  countries,  local  representatives are protected  by domestic laws, regardless of a contract  between the parties. France, Paraguay, and the European Union, for example, have protectionist provisions for representatives  that  override negotiated terms in a contract.

When  advertising abroad, nations  place a varying degree of control  over media and message. In some countries, sexual innuendo or explicit messages might be ignored, while in other  countries,  severe punishment may ensue, including personal punishment for the company’s local representative.  The European Union, the United  States, and most other  countries have bans on false advertising. The interpretation of what  constitutes   false advertising  varies,  however. In the  United  States, for example, false advertising must  be a misstatement of fact, not  mere  opinion or  exaggeration.  In Japan, exaggeration  is also forbidden. Many countries  strictly regulate  advertising available or aimed at children. The European  Union prohibits advertising that directly encourages minors to persuade  their  parents  to purchase  the goods or services advertised. Some countries,  notably France, ban advertising in any language other than their own languages. Some countries ban advertising of certain products, such as alcohol and tobacco.

The corporation and  tax  laws of countries  can encourage or hamper foreign business. Direct foreign investment in subsidiaries or branch offices is subject to the  host  country’s tax laws, absent  a tax treaty. Even with a treaty, definitions of income, allowable deductions  and their limits, depreciation  treatment, and e-sales treatment are calculated domestically. A home  country  for a business may have restrictions on  tax avoidance  by establishing  facilities in low-tax-rate  countries.  All countries  control  ownership in some or all industries. Foreign investors may have to partner  with host companies  or citizens to purchase property, enter leases, and operate facilities. A few countries  do not allow foreign majority control of any branch or subsidiary.

The history of nationalization and expropriation of assets shows a marked  difference among  nations  in cultural and political treatment of foreign investment. Communist and  socialist governments  nationalized all domestic and foreign business. In the second half of the 20th century, nations in Latin America, Africa, and Asia expropriated  only foreign business assets. The prevailing, although  not  exclusive, view now is that  government  has the right to take private property under the condition that the taking is for a public purpose, often hotly debated. Whether compensation is just and prompt  depends on the nation taking the property. Investors can purchase political risk insurance, but the cost is often prohibitive or has a considerable effect on the enterprise.

Companies  operating  offices and facilities in foreign countries  are subject to the host domestic labor laws. Employee benefits, such as paid medical leave, will vary. Employee dismissal for no reason  will be allowed  in  some  countries,   including  the  United States, unless a union contract is in force, or anti-discrimination  laws apply. In other countries,  considerable legal restraints and guaranteed employment may govern. Some nations require employee involvement in management by inclusion on the board of directors, sometimes,  or other  methods.  When  a foreign purchaser acquires a domestic business, the investor may step into the seller’s place with respect  to employee rights and union contracts. By contrast, in the United States, when a company  is sold, all employees may be terminated unless  a union  collective bargaining agreement provision has restrictions.

A  key  consideration   for  foreign  investment   is the degree to which antitrust  regulations will affect business. Most countries  have one form or another of antitrust  or competition legislation. Some are detailed, such as Germany’s, and some leave much interpretation  to  the  courts,  such  as  the  United States and Japan. The basic principle in each law is the prevention or distortion  of competition.  Vertical arrangements between  manufacturers  and  suppliers, distributors, and customers may all be subject to review in certain countries. Perhaps exclusive distribution  agreements  are banned; perhaps  a company cannot have more than a certain percentage of market share  in an industry,  perhaps  exclusive patent licensing is banned.

Engaging in global business is a complex undertaking, requiring  knowledge on many fronts. The legal considerations alone are formidable and demand competent counsel  from experienced  international advisors.

Bibliography: 

  1. Ray A. August, Don Mayer, and Michael Bixby, International Business Law, 5th ed. (Pearson Prentice Hall, 2008);
  2. Malcolm  Evans and  Patrick  Capps, International  Law (Ashgate, 2009);
  3. Georgetown Journal of International Law, www.law.georgetown.edu/journals (cited  March  2009);
  4. Andrew Guzmán,  How International  Law  Works:  A  Rational  Choice Theory (Oxford University  Press, 2008);
  5. Oona Hathaway,  “Why We Need International Law,” Nation  (v.285/16, 2007);
  6. International Bar Association,  ibanet.org  (cited  March 2009);
  7. “International: Controlled Explosion,”  Economist (v.382/8514, February 3, 2007);
  8. “International: Escaping the Terror List,” Economist (v.386/8565, February 2, 2008);
  9. Charlotte Ku and Paul F. Diehl, International  Law: Classic and  Contemporary  Readings (Lynne Rienner,  2009);
  10. Russell A. Miller and Rebecca M. Bratspies, Progress in International Law (Martinus  Nijhoff Publishers,  2008);
  11. Richard  Schaffer, Filiberto  Agusti,  and  Beverley Earle, International  Business Law and Its Environment, 7th ed. (Thomson South-Western, 2008).

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