Public Business Law

Class 1 slides
Marta Plasztan-Brehoszki
Email:
[Link]@[Link]
Please send an email if you would like a
consultation
 About the lecture and the exam

Course goals:
 Introduction to the world of business law from an
institutional angle
 covering problems and questions of legal sources,
 role of states in international business,
 law and structure of intergovernmental organizations,
 procedural background to assisting international
business players
30 points

 20 points with the written exam

 5 extra points with an oral presentation
 5 extra points with the presense
Assessment:
Final grade at the end of the semester: points
 0-15 1 (fail)
 16-18 2 (satisfactory)
 19-22 3 (fair)
 23-26 4 (good)
 27-30 5 (excellent)
Compulsory readings:
 Slides distributed among students electronically
Recommended readings:
 August - Mayer - Bixby: International Business Law, PEARSON,
2013
 Hoda, Anwarul: Tariff Negotiations and Renegotiations under the
GATT and the WTO: Procedures and Practices, Cambridge
University Press, 2019
 Barton – Goldstein – Josling – Steinberg: The Evolution of the
Trade Regime: Politics, Law, and Economics of the GATT and the
WTO, Princeton University Press, 2008
 How to prepare for the presentation?

[Link]

(International Court of Justice)

 [Link]
cases
 Alleged Violations of Sovereign Rights and Maritime Spaces in
the Caribbean Sea (Nicaragua v. Colombia)
 Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda)
 Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)
 Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica)
 What is international law?
International law deals with three kinds of international relationships:
(1)those between states and states,
(2)those between states and persons, and
(3)those between persons and persons.

The law of nations resolved issues between two or more states, and the legal
relationships between and among states is called public international law. The
phrase “private international law” is applied to the laws governing conduct
between people (and corporations) from different states.
The law of international economic relations can be either public
or private law.
Public international law
Private international law
Public int. law Private int. law

 Sources of international law Torts

 International personality Private relations

(success.)
 State territory Money and banking
 State succession Intellectual property
 State responsibility to aliens Commercial
 Law of the sea Contracts and sales
 International dispute settlement Transportation
 Law of war
Financing
Securities regulations
Antitrust
Taxation
Philips vs. Eyre
Edward John Eyre (5 August 1815 – 30 November 1901) was an English
land explorer of the Australian continent, colonial administrator, Lieutenant-
Governor of New Zealand's province, and Governor of Jamaica.
 What happened in the Philips vs. Eyre case?
 Do you agree with the decision?
 Philips v Eyre
 Eyre had been the governor of Jamaica during the
Morant Bay Rebellion.
 As governor he ordered a forceful response, which led to the
deaths of numerous Jamaicans and the arrest and the
summary execution of various political figures, whom Eyre
believed to be instigators of the uprising. At the end of his term
as governor, the colonial assembly had passed an Act of
Indemnity covering all acts done in good faith to suppress
the rebellion after the proclamation of martial law.
 When he returned to England, several Jamaicans sued him for
trespass to the person and false imprisonment in the
Courts of England.
The Court held that Eyre could not be sued for his conduct in
Jamaica.
To bring an action the claimant must satisfy two requirements.
Firstly, the alleged conduct must "be of such a character that it
would have been actionable if it had been committed" in the
local jurisdiction.

Secondly, "the act must not have been justifiable by the law of
the place where it was done."
The Act that Eyre passed just before leaving caused his
actions to be found to be justifiable by the law of
Jamaica and thus he could not be actionable in England.
Comity

Comity is the practice between states of treating each other with

goodwill and civility. It is not law, however, because states do
not regard it as something they are required to respect.
For example, until it became a matter of legal obligation under the
1961 Vienna Convention on Diplomatic Relations, it was long
considered to be a customary courtesy to allow foreign diplomats
the privilege of importing goods for their private use free of
customs duties.
This privilege was not a legal right guaranteed by international
law, however, because states did not feel compelled to grant
the privilege except as a courtesy.
Such courtesy can be seen as a kind of anticipatory
reciprocity in which states do unto other states as they
would hope to be treated in turn.
A group of Dutch jurists created the doctrine of international comity in the late
seventeenth century, most prominently Ulrich Huber.
Huber and others sought a way to handle conflicts of law more pragmatically to
reinforce the idea of sovereign independence.
At the core of his ideas surrounding comity was the respect of one sovereign
nation to another.
Huber wrote that comitas gentium ("civility of nations") required the application of
foreign law in certain cases because sovereigns "so act by way of comity that rights
acquired within the limits of a government retain their force everywhere so far as they
do not cause prejudice to the powers or rights of such government or of their subjects.
„
Huber "believed that comity was a principle of international law" but also that "the
decision to apply foreign law itself was left up to the state as an act of free will
A century after Huber, Lord Mansfield, known for being Chief
Justice of the Court of King's Bench in England for three
decades, introduced the doctrine of comity to the English law.
Lord Mansfield viewed the application of comity as
discretionary, with courts applying foreign law "except to the
extent that it conflicted with principles of natural justice or
public policy
He demonstrated this principle in Somerset v Stewart (King's Bench
1772), which held that slavery was so morally odious that a British
court would not recognize the property rights of an
American slaveholder in his slave out of comity.
English courts and scholars adopted Lord Mansfield ideas on comity
and provides a new means for courts to recognize foreign law where
the application of English law would lead to injustices
Questions

 Who was Mr James Somerset?

 What happened to him?
 Who sued who?
 What was the court’s decision?
Territorial Jurisdiction
It has been customary for courts in many states to hear and decide cases with
international aspects. If a business incorporated in one state operates a
manufacturing facility in another state and violates the law of the other state,
the other state will have the well recognized power under customary
international law to hear and decide a case against the foreign defendant.
This is known as a state’s territorial basis for taking jurisdiction over a case
involving foreign actors.

Nationality Jurisdiction
A second well-known basis for jurisdiction exists: If U.S. companies do certain
acts in other states, they may still be held accountable in U.S. courts under the
principle of nationality jurisdiction. If foreign companies act in ways that
directly affect a state other than their own, they may be held accountable by
the other state.
 Making of international law
Within states, law is made by legislatures, courts, and other agencies of government.
However, at international level, no formal lawmaking machinery exists.

International law comes into effect only when states consent to it. The general
consent of the international community can be found in state practice, that is, in the
conduct and practices of states in their dealings with each other.
Statements or evidence of general consent can be found in the decisions of the
International Court of Justice (ICJ), in resolutions passed by the General Assembly
of the United Nations, in lawmaking multilateral treaties, and in the conclusions of
international conferences.
 Legal sources of international law

The sources of international law are what courts and other international tribunals
rely on to determine the content of international law.
The Statute of the ICJ lists the sources that the court is permitted to use.

This listing implies a hierarchy, or order, in which these sources are to be relied
on.
 International conventions and
treaties

International customs

General principles of law

Judicial decisions of international courts

1. Treaties and Conventions
Treaties are legally binding agreements between two or more states.
Conventions are legally binding agreements between states sponsored by international organizations.
Both are binding upon states because of a shared sense of commitment and because one state fears that if it
does not respect its promises, other states will not respect their promises. Most of the customary rules that once
governed treaties are contained in the Vienna Convention on the Law of Treaties, which came into force in 1980.
2. International customs – Some rules have been around for such a long time or are so generally
accepted that they are described as customary law. International customary law is constantly
changing.
To show that a customary practice has become customary law, two elements must be established:
a) The first—called usus in Latin—requires consistent and recurring action by states.
b) The second element in showing that a customary practice has become law is the requirement that
states observing the custom must regard it as binding.

Even if the international community follows a practice and recognizes it as binding customary law, under
some circumstances the rule will not apply to a particular state.
This happens when a state persistently objects to a practice during its formative stages and thus never
becomes a party to it. This can also happen after a customary rule has become generally accepted, if a
state is allowed by the international community to deviate from the general practice.
 The Paris Agreement 2015 UN
Climate change is a global emergency that goes beyond national borders. It is an issue that
requires international cooperation and coordinated solutions at all levels.
To tackle climate change and its negative impacts, world leaders at the
UN Climate Change Conference (COP21) in Paris reached a breakthrough on 12 December
2015: the historic Paris Agreement.
The Agreement sets long-term goals to guide all nations to:
 substantially reduce global greenhouse gas emissions to hold global temperature increase to
well below 2°C above pre-industrial levels and pursue efforts to limit it to 1.5°C above pre-
industrial levels, recognizing that this would significantly reduce the risks and impacts of
climate change
 periodically assess the collective progress towards achieving the purpose of this agreement
and its long-term goals
 provide financing to developing countries to mitigate climate change, strengthen resilience
and enhance abilities to adapt to climate impacts.
The Agreement is a legally binding international treaty. It entered into force on 4 November 2016.
Today, 195 Parties (194 States plus the European Union) have joined the Paris Agreement.
2020 the United States officially withdraws from the Paris
Agreement, the landmark international accord to keep climate
change in check and limit future greenhouse gas emissions.
 USA and the Paris Agreement
On January 20, on his first day in office, President Biden signed the instrument to
bring the United States back into the Paris Agreement. Per the terms of the
Agreement, the United States officially becomes a Party again today (from 2021
February)
Some rules have been around for such a long time or are so generally accepted that
they are described as customary law. International customary law, however, is
hardly static.
Simply because certain practices were once followed in the international community
does not mean that they are still followed today. For example, rules that govern
the “art” of war are revised at the end of practically every major conflict to
reflect the circumstances of a changed world. The present rule that requires a
soldier to fight only with combatants is decidedly outdated in today’s world of
terrorism and guerrilla warfare and will likely be changed in the near future. The
rate of change for international commercial law is rapid as well
Today, most of the customary rules are contained in the Vienna Convention on
the Law of Treaties, which came into force in 1980. It only applies to treaties
adopted after a party ratifies the agreement.
Article 2(1)(a) of the Vienna Convention states that “‘Treaty’ means an
international agreement concluded between states in written form
and governed by international law, whether embodied in a single
instrument or two or more related instruments and whatever its
particular designation.”
This definition excludes certain agreements, such as oral promises, unilateral
promises, agreements relating to international organizations, agreements
governed by municipal law, and agreements that were clearly not intended to
create a legal relationship.
Even so, the oral declaration of one state’s government to an official of
another state can potentially bind the declarant’s state.
This was seen in the case of Denmark v. Norway, decided by the PCIJ in 1933.
(The PCIJ was the international judicial organ of the League of Nations.)

Let’s see slides 30-32

 International
conventions
and treaties

International
customs

General principles of law

Judicial decisions of international courts