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Legal & Ethical > 3054-Chapter 6 > Flashcards

3054-Chapter 6 Flashcards

1
Q

What is international law?

A

It governs the conduct of states and international organizations and their relationships with one another and with natural and juridical persons.

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2
Q

What is comparative law?

A

It is the study of the legal systems of different states.

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3
Q

For purposes of international law, what is a state?

A

It is an entity possessing territory, a permanent population, a government, and the legal capacity to engage in diplomatic relations.

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4
Q

T/F - Do international organizations consist of states?

A

True

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5
Q

T/F - Natural and juridical persons refers to both individuals and business organizations?

A

True

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6
Q

What are the two characteristics of customary international law?

A

1) act is general and consistent among the states and 2) states must accept this general and consistent practice as binding law.

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7
Q

What is an international agreement?

A

It is a written agreement made between states governed by international law that relates to an international matter. They must be ratified to be effective.

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8
Q

What are the two forms of an international agreement?

A

1) bilateral (between 2 states) and multilateral (between more than 2 states)

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9
Q

What are the methods a business can use to enter a foreign market?

A

1) Foreign sales representative or distributor 2) franchise 3) joint venture 4) subsidiary or affiliate

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10
Q

What is the difference between the foreign sales representative and a distributor?

A

A distributor takes title of the goods for resale and assumes the sales risk. A foreign sales representative is paid by commission after forwarding sales to the company.

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11
Q

What is a franchise agreement?

A

It is a contract where a franchisor grants permission (license) to a foreign entity (franchisee) to utilize the franchisor’s name, trademark, or copyright in the operation of a business and associated sales of goods in a foreign state. Usually in exchange for a percentage of sales.

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12
Q

What is a licensing agreement?

A

It is an agreement that grants permission to a company in the target market to utilize the licensor’s intellectual property, consisting of patents, trademarks, copyrights, or trade secrets in exchange for royalties, usually based on sales.

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13
Q

What is a joint venture?

A

It is an agreement where parties share (various proportional arrangements) profits and management responsibilities for a specific project.

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14
Q

An affiliate is …?

A

a business enterprise located in one state that is directly or indirectly owned and controlled by a company located in another state.

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15
Q

An affiliate is established in accordance to and is subject to the laws and regulations of what state?

A

Usually the foreign state.

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16
Q

What Act prohibits US companies from offering or paying bribes to foreign governments in exchange for obtaining or retaining business.

A

the Foreign Corrupt Practices Act (FCPA)

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17
Q

What is a tariff?

A

Tariffs are taxes levied on imported goods.

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18
Q

What is an ad valorem tariff?

A

It is a tax levied on imported goods based on a percentage of the value of the good.

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19
Q

What is a specific tariff?

A

It is a tax levied on imported goods based on the number or weight of the imported units or a flat per unit charge.

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20
Q

What is a compound tariff?

A

It is a tax levied on imported goods based on a combination of specific tariff and ad valorem tariff calculations.

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21
Q

What is a non tariff barrier?

A

It is any impediment to trade other than tariffs, including quotas, embargoes and indirect barriers.

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22
Q

Laws, practices, customs and traditions that limit or discourage the sale and purchase of imported goods are called…?

A

Indirect barriers

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23
Q

What is GATT?

A

It is the General Agreement on Tariffs and Trade. It is a comprehensive multi-lateral trading system designed to achieve distortion-free international trade by minimizing tariffs and removing artificial barriers.

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24
Q

What does the WTO do?

A

It facilitates international cooperation in opening markets and provides a forum for future trade negotiations and the settlement of international trade.

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25
Q

What does most favored nation or normal trade relations mean?

A

It means that member states treat goods coming from other WTO member states on an equal basis. It prohibits discrimination of like products based on country of origin.

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26
Q

What is national treatment?

A

It prohibits member states from taxing, regulating or otherwise treating imported products differently than domestic products.

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27
Q

Limits that control the importation of certain products on the basis of number of units, weight, or value for national economic reasons or for the protection of domestic industry.

A

Quantitative restrictions

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28
Q

What is dumping?

A

It is the practice wherein an exporter sells products in a foreign state for less than the price charged for the same or comparable goods in the exporter’s home market.

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29
Q

What is a subsidy?

A

It is a government payments to a specific industry or enterprise.

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30
Q

What forms can a subsidy take?

A

A subsidy can be direct funds transfers, like loans and grants; loan guarantees; tax credits; government procurement; and price supports.

31
Q

What are the 3 types of subsidies?

A

1) Actionable, 2) nonactionable and 3) domestic

32
Q

What is an actionable subsidy?

A

It is illegal and include those payable to domestic manufacturers on the basis of export performance or for the use of domestic input in the manufacturing process. They are remedied through the imposition of countervailing duties, special tariffs imposed on subsidized goods to offset the benefit.

33
Q

What is a nonactionable subsidy?

A

It is expenditures for r&d, aid to underdeveloped regions within a state and aid to foster compliance with environmental standards.

34
Q

Domestic subsidies are…?

A

generally not actionable unless they are not a part of the government’s legitimate responsibility of directing industrial growth and funding social programs and they cause material injury to other WTO member states.

35
Q

What is the dispute resolution process under the Dispute Settlement Understanding?

A

Recognized governments of member states may bring an action alleging a violation.

  • the states consult each other in an attempt at resolution
  • mediation with a trade expert
  • WTO Secretariat appoints a panel (3-5 experts to hear arguments and review documents) which drafts and adopts a ruling
  • contest in front of appellate body-could result in only cease & desist in a reasonable time, failure could lead to sanctions and/or removal of concessions, with sanctions lasting only as long as the violation is in place.
36
Q

What are the 3 basic types of regional trade agreements?

A

1) multilateral free trade, 2) customs unions and 3) bilateral free trade

37
Q

What is a multilateral free trade agreement?

A

A multilateral free trade agreement is made up of 3 or more states to reduce and gradually eliminate tariffs and other trade barriers. ex. NAFTA

38
Q

What are the goals and functions of NAFTA?

A
  • Grants most favored nation only to goods from North America
  • Reduces barriers to direct foreign investment and ensures the free flow of capital
  • More comprehensive and equitable dispute resolution process coordinated with the FTC
  • addresses environmental & workers rights and basic labor rights
39
Q

What are basic labor rights?

A

Examples are freedom of association, right to engage in collective bargaining and strikes, prohibitions on forced labor and child labor, freedom from employment discrimination, equal pay for equal work, acceptable working conditions and workplace health and safety

40
Q

What is a customs union?

A

It is a free trade area with the additional feature of common external tariff on products originating outside of the union. An example is the EU.

41
Q

What are the 3 benefits of comparative law?

A

They are 1) gain a better understanding of the general purpose of law 2) better develop a critical viewpoint on own legal system as one of many alternatives and 3) fosters critical thinking about alternative laws.

42
Q

T/F - Civil law systems derived from Roman law?

A

True. It has also been strongly influenced by the French Civil Code of 1804 (Napoleon) and the German Civil Code of 1896.

43
Q

What does the civil code mostly focus on?

A

Property, contracts, torts, family law generally favored protection of private property, individual freedom and freedom of contract.

44
Q

In a civil law system is there a jury?

A

No. There is a judge or panel of judges.

45
Q

Is the case tried the same as in the US?

A

No. The judge assists in gathering evidence and formulating theories. No evidence need be entered into the case. Heresay is OK.

46
Q

When did the English Common Law system begin?

A

1066 with William the Conquerer. He centralized the government and the court system.

47
Q

What 4 principles guide the British courts?

A

1) Constitutions, 2) legislation, 3) regulations and 4) precedent or stare decisis (Adversarial system)

48
Q

How are judges chosen?

A

Civil judges are trained & tested. Common law judges are appointed or elected.

49
Q

What is process for common law cases?

A

Filing - 1) Discovery 2) Judge is not involved until trial 3) Judge does not gather evidence 4) Rely on juries

50
Q

T/F - consequence of the use of juries is little use of rules in making a judgment?

A

False. Common law systems have extensive rules governing admissibility of evidence because of the use of juries.

51
Q

What is the basis of the socialist legal system?

A

That the rights of society as a whole outweigh the rights of the individual.

52
Q

What is an Islamic legal system?

A

It is derived from and interpreted in harmony with Shari’a and the Koran. It focuses on moral conduct, such as honoring agreements and acting in good faith.

53
Q

What is lex Mercatoria?

A

Law of merchants - body of customs or trade usages merchants developed to facilitate business transactions. Sourced from public international law, uniform laws, general principles of contract law, rules of international organizations, custom and usage, standard form contracts and arbitral decisions.

54
Q

Where can national laws be found?

A

In civil law countries, national laws are usually found in codes. In the US they are usually found in common law of contracts and contracts relating to the sale of goods.

55
Q

What is CISG?

A

It is the Convention on the International Sale of Goods. It applies to the commercial sales of goods (an exchange of tangible personal property between merchants in return for consideration).

56
Q

Who is a merchant?

A

A merchant is someone engaged in the transfer of goods in the ordinary course of business.

57
Q

What 2 sets of laws govern the sale of goods in the US?

A

The CISG and the UCC or Uniform Commercial Code.

58
Q

What is the UCC?

A

The UCC applies when both parties are from the US.

59
Q

When is the CISG applicable?

A

CISG applies

  • 1 US party and 1 resident of a country that has ratified CISG.
  • if national conflict-of-law rules direct the court or arbitral body to apply the law of a state that has ratified CISG.
  • evidence of trade usage and customs.
    • Can be opted out of
60
Q

National contract law applies in what areas not covered by CISG?

A

Services, real estate & intellectual property

61
Q

How are international labor standards developed?

A

They arise from general human rights instruments that apply across a broad spectrum of areas and from specialized documents that focus exclusively on labor.

62
Q

What does the Universal Declaration of Human Rights of 1948 set forth?

A

It prohibits slavery, -
grants everyone the right to free choice of employment, -just and favorable conditions of work, -
reasonable limitation of working hours
-and compensation adequate to provide for the worker’s health and family situation.

63
Q

T/F - The Universal Declaration of Human Rights of 1948 is often referred to as the basis for modern human rights law.

A

True

64
Q

What is the central principle of the International Labor Organization?

A

“Labor should not be regarded merely as a commodity or article of commerce.

65
Q

When was the ILO formed?

A

In 1919 as a part of the Treaty of Versailles.

66
Q

What was the Declaration on Fundamental Principles and Rights at Work?

A

It enumerated “core labor standards”

  • freedom of association
  • right to engage in collective bargaining
  • elimination of forced labor, child labor, compulsory labor
  • discrimination
67
Q

What are the two primary types of jurisdiction?

A

Subject-matter jurisdiction and personal jurisdiction

68
Q

What is subject matter jurisdiction?

A

It is based on type of case ex. civil, criminal, domestic, etc.

69
Q

What is personal jurisdiction?

A

It is based on power over the persons appearing before it.

70
Q

General personal jurisdiction

A

the defendants presence in the forum

71
Q

Specific personal jurisdiction

A

purposeful availment of the protection of the forum

72
Q

What are the requirements for a US court judgment to be fully enforceable?

A

The court must possess power over the type of case (subject matter) and over the people appearing before it (personal jurisdiction).

73
Q

What is the act of state doctrine?

A

It’s a non jurisdictional prudential doctrine based on the notion that the courts of one country will not sit in judgment on the acts of the government of another state done within its own territory.

Legal & Ethical (5 decks)

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