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Trade Law > Inroduction > Flashcards

Inroduction Flashcards

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1
Q

What is Law?

A

Law is the totality of all norms governing the external order of coexistence of men.

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2
Q

What are the two types of laws?

A
  1. Objective Law - legal system, i.e. the totality of all legal principles;
  2. Subjective Law - the right and remedies of the rights owner to do or refrain from doing anything by virtue of an objective right;
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3
Q

What is the purpose of law

A

establishment and maintenance of justice, legal certainty and peace between the people.

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4
Q

What is the Written Law/ Material Law

A

Codified within the framework of a legislative procedure or international treaties.

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5
Q

Order of precedence of written law

A
  1. Law of Nations/ international law (e.g. United Nations Charter);
  2. EU-law (e.g. EU treaty, EU regulations, EU directives)
  3. Constitutional law;
  4. Laws;
  5. Ordinances;
  6. Statutes
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6
Q

Unwritten law (custody law)

A
  • Has evolved through long-term use in legal practice;
  • Is perceived as a right, without it being a law;
  • e.g. trading customs, trade terms
    NOT: Supreme Court case law
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7
Q

What are the legal sources?

A

Written law/ Material law

Unwritten law/ custody law

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8
Q

Public Law (between the subjeccts)

A
  • PL regulates the relationship between the citizen and state
  • Principle of supremacy and subordination between public authority and citizen
  • covers law of nations, European law, constitutional law, administrative law, criminal and procedural law
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9
Q

EU-law

A

Treaty about the Functioning of the EU
El-Regulations
EU-Directives

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10
Q

Constitutional law

A

Grundgesetz

Constitution of countries

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11
Q

Administrative Law

A

Construction Law
Police Law
Tax Law
Social legislation and Welfare

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12
Q

Criminal Law

A

Narcotic Drug Law

Administrative Offence Law

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13
Q

Private Law (between subjects)

A
  • legal relation between citizens
  • level of equality
  • tools: contract
  • Jurisdiction: ordinary courts
  • Legal process: Civil courts, commercial courts; Special responsibilities: Labour Law
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14
Q

Private Autonomy

A

Principle:Everyone can organise his or her own living conditions within the framework of the legal order
- Human self-determination
Found in:
- Freedom of contract; Statutory autonomy; Testamentary autonomy;
Does not apply without limits!

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15
Q

Mandatory/ dispositive law

A
  • Compliant/dispositive law - legal norms may be amended by the contracting parties
  • Compulsive/ mandatory law - legal norms can not be amended by the contracting parties by means of an agreement
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16
Q

Substantive and procedural law

A

Substantive Law - rules that are creating and obligations (German Civil Code, German Commercial Code, French Code Civil, Italien Codice Civile)
Procedural Law - rules for enforcing substantive law (German Code of Civil Procedure, Criminal Procedure Code, Administrative Procedure Code);
procedural law follows substantive

17
Q

Major legal areas

A

Commercial and contract law; Corporate law; Industrial property rights; Tax law; Public law regulations (competition law)

18
Q

The European company: Societas Europaea (SE)

A
  • product of harmonisation efforts in company law of the EU. It is a joint-stock company (legal entity) whose capital divided into shares,the registered office must be in an EU member state.
    Approx 400 SE in Germany; min capital 120.000(AG 50.000;Gmbh 25.000)
19
Q

Reasons to convert company to SE

A
  • Image:more modern,international;
  • Board structure can be determined:german form of a joint-stock company is structured in the 2-tier system(management- and supervisory-board),but could be done 1-tier system (administration board).
  • Change of domicile:SE can change his seat easier to another member state of the EU;
  • Co-determination rights;
20
Q

Co-determination rights

A

Legal basis: Co-determination law, One-Third Participation law
Law:supervisory board of companies (esp.AG) has to contain 50% employees of their representatives if company has more that 2000 employees in germany
One0third participation law:supervisory board of companies has to contain 33% employees of their representatives if company has at least 500 employees in DE
Major element: if a co-determination agreement is concluded the status of codetermination present at conversion to SE will remain frozen

21
Q

International Civil Procedure Law

A

National and international law, regulations regarding international jurisdiction of courts

22
Q

International Private Law

A
  • National Law and International law;
  • European Law;
  • Regulations regarding the material (substantive) law to apply
23
Q

International Law

A

Law (contracts) between states:

  • International Conventions
  • International Customs
  • The general principles of law recognised by civilised nations
  • Judicial decisions and the teaching of the most highly qualified publicists
24
Q

International Convention

A
  • WTO (World Trade Organisation) and GATT (Agreement on Tariffs and Trade)
  • UN and its Commissions (ILO (international labour organisation), ECOSOC (Economic and Social Council)
    UNCITRAL (United Nations Commission on International Trade Law (Model Law on International Arbitration; model law on electronic commerce; model law on international credit transfer))
  • IMF (International Monetary Fund)
    -World Bank)
25
Q

International Customs

A
  • Practice of states and the underlying legal opinion;

- Time is of essence until new rule becomes customary law)

26
Q

Principles of Law

A

Role: Filling existing legal gaps from major law system (French and German Law, Common Law)

  • Prohibition of abuse of rights;
  • Restitution of unjust enrichment;
  • Obligation to repair in case of injury;
  • Principle of good faith;
  • Companies have legal personality
27
Q

Judicial decisions and teaching of publicists

A
  • Court decisions are subsidiary means for the interpretation of International Law (decisions are only applicable between the parties of the lawsuit, generally no effect on third parties (inter parters), but courts can use the reasoning for other cases)
  • Teaching of highly qualified publicists (interpreting legal texts, not creating law)
28
Q

The Law of European Union

A

“Supranational Orded”
Treaty of the European Union (TEU)
-Treaty of the Functioning of the European Union (TFEU)
-Law of the EU has primacy over national law (general rule), so (member states try to make local law in harmony with EU-law; directive; regulation

29
Q

Regulation

A

A regulation is a binding legal act that all EU countries must fully comply to. For
example, to ensure that common safeguard measures apply to goods imported
into the EU, it has adopted a regulation to this effect.

30
Q

The institutional triangle of EU

A
  • The European Parliament represents the interests of the EU citizens. The only EU institution which is directly elected by people. The Parliament holds its plenary sessions in Strasbourg and Brussel
  • The European Commission is the second part of the institutional triangle that manages the EU. The Commission represents the EU as a whole. Its members are appointed for a five-year term, subject to approval by the European Parliament;
  • The Council of the European Union (Council of Ministers), EUs main decision-making body and represents the EU member states. Each member state will have the presidency for a 6 month period. Every Council meeting is attended by one minister from each EU country depending on the topic (justice and home affairs, trade, transport and the environment.
31
Q

Law-making process

A

Commission (proposing a draft)
European Parliament and Council (reviewing text in two successive readings)
European Parliament and Council (Joint adoption “Co-decision-procedure”)

Trade Law (3 decks)

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