Lecture 1

Question 1

Primary sources of law

Answer 1

• Constitutions
• Statutes — legislation
• Court decisions and precedent

Question 2

The rulemaking powers of the executive branch

Answer 2

• Executive orders and regulations originating from president’s cabinet (US)
• “Ordonnances” (Fr)

Question 3

Is there an “International Business Law”?

Answer 3

• National laws include several subjects among which are International Public Law and International Private Law
• “International Business Law” does not exist as such
• In a given legal order, some substantive rules of national law can have an international source

Question 4

Interantional business law definition

Answer 4

A system of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law such as the United Nations, the Arab League and the African Union.

Question 5

Scope of international business law

Answer 5

It covers almost every facets of inter-state and international activity, such as the use of the sea, trade, outer space, Antarctica, postal services, the carriage of goods and passengers by air and the transfer of money.

International public law is also concerned with nationality*, extradition, the use of armed force, human rights and protection of the environment.

Question 6

Sources of international business law

Answer 6

• treaties
• international custom
• general principles of law recognized by civilized nations
• judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Question 7

INTERNATIONAL BUSINESS LAW DOES NOT EXIST AS SUCH

Answer 7

There is no “international business law” as a set of substantive rules. Each country has its own set of substantive rules applicable to businesses. In a given international business situation, only one of these sets of substantial rules will apply.

Question 8

Civil Law System

Answer 8

• Emerged on Continental Europe and spread throughout many countries, notably via the colonies of European countries (Latin America, Africa, Asia).
• Socialist law (the official name of the legal system used in Communist states) is based on the civil law system.

Question 9

Common Law System

Answer 9

• Originated in England.
• Used in nations that trace their legal heritage to England, such as colonies of the British Empire (US, Singapore, India, Canada, South Africa…).

Question 10

Religious Law System

Answer 10

• The legal source is a religion (Sharia in Islam, Halakha in Judaism and Canon law in some Christian groups).
• A few states have enacted religious law (ex: Iran, Saudi Arabia, Mauritania apply Sharia law).

Question 11

Mixed Legal Systems

Answer 11

• Louisiana in the US combines civil and common law.
• Israel’s legal system combines common law, civil law and Halakha.

Question 12

Main differences between common law and civil law

Answer 12

Question 13

The main distinguishing factor between common law and civil law — approach

Answer 13

Question 14

The American exception in the legal world

Answer 14

• State and federal laws.
• Judges are elected.
• Judges are more willing than in other Common law countries to interpret or consider legislative intent behind statutes.
• Jury trial in civil proceedings and criminal cases.
• Adversarial system where judges have an arbitration-like role.
• Empowerment of all courts to carry out judicial review of statutes.

Question 15

The theory of the hierarchy of norms (Hans Kelsen 1881-1973)

Answer 15

Question 16

Supremacy clause: art. VI, clause 2 of the Constitution of the United States

Answer 16

• the Constitution creates itself as the supreme law;
• the Constitution also constructs federal law;
• as the most powerful law of the land, the Constitution can then decree that federal law prevails over state law;
• federal law, regulations & executive orders must conform to the Constitution that created them.

Question 17

In the EU, how do national and EU laws interact?

Answer 17

A. The primacy doctrine

B. The scope of EU laws

Question 18

The primacy doctrine

Answer 18

Question 19

The scope of EU laws

Answer 19

Question 20

What laws apply to a company?

Answer 20

• Mandatory rules
  
  • Despite the law chosen by the parties, a judge may decide to apply rules deriving from his own national law when these rules serve a political, cultural, social or economic objective that is critical to the proper organization and functioning of the society (mandatory rules)
• Public rules
  
  • Public order is an exceptional corrective mechanism which allows a judge to rule out the law normally applicable when the provisions of this law are considered unacceptable. A law provision is unacceptable notably when:
    • It’s contrary to the national morals, or principles of universal justice (ex: a law based on racial discrimination).
    • It goes against the national principles which underlie the economic, political or social organization of a country (ex: the equality between men and women principle).

Question 21

Effects doctrine

Answer 21

Question 22

Direct effect principle

Answer 22

In European Union law, direct effect is the principle that Union law may, if appropriately framed, confer rights on individuals which the courts of member states of the European Union are bound to recognise and enforce. Direct effect is not explicitly stated in any of the EU Treaties.