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EKR112 Commercial Law 2 > Repetition notes > Flashcards

Repetition notes Flashcards

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1
Q

Can commercial regulation be contracted out of

A

No, regulation is mandatory

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2
Q

Explain the principle of flexibility in commercial law

A

That commercial law should be slow to declare a practice impossible if legal consistency is not threatened

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3
Q

The international supply chain contracts are protected by the unfair contract act 1977

A

No, only commercial transactions

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4
Q

What is the officious bystander test

A

That for a contract term to be implied in fact it should be as obvious as to be understood to be so by a random bystander

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5
Q

Does civil law recognize the right of undisclosed principles to intervene in contracts made by an agent not known to have them as principle

A

No

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6
Q

Unidrot 1983 convention focuses on…

A

external relations and the authority of agents

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7
Q

If someone does an action in their own name but then want the action to relate to another can that person ratify that action

A

No, a principle can only ratify actions taken in their name

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8
Q

Estoppel is the basis of apparent authority

A

True

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9
Q

Name two contracts of carriage

A

Bill of lading and sea way bill

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10
Q

In CIF the seller pays for shipping and is responsible for the goods on board

A

No, the shipper is responsible for the goods, the seller however has to pay for insurance

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11
Q

How does the B/L reach the buyer of goods

A

When the goods are loaded the shipper issues the bill of landing and gives it to the seller who then gives it to the buyer.

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12
Q

What is the relation between shipper and seller in buy ship sell

A

Charter-party and bill of lading before its transferred to the buyer or the bank

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13
Q

What is the relation between seller and buyer in buy ship sell

A

A sales contract

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14
Q

What is the relation between the buyers bank and the seller in buy ship sell assisted by credit

A

A promise to pay

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15
Q

What is the relation between the seller and their bank in the credit assisted buys ship sell

A

notify credit

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16
Q

what is the relation between shipper and buyer in buy ship sell

A

B/L

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17
Q

The Hague rules only apply if they are in a contract clause

A

True

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18
Q

The Hague rules apply even if there is no intent to send a bill of lading in a contracting state

A

False, there has to be at least intention to send it

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19
Q

Explain the ping pong match between the shipper and the carrier if there is a faulty delivery

A

Firts the shipper needs to prove that there was a contract with the carrier and that the goods are damaged or missing. If they are the carrier must prove that they are covered by their immensities in the Hague rules f.ex navigation or management errors or dangers of the sea. If they are covered it falls to the shipper to prove that the vessel was not seaworthy and that it is the cause of the damage which counters the immensities. If the ship is fount to be then the carriers last resourt is to prove that they exercised proper due diligence to make the ship seaworthy and that the unseaworthyness was not their fault.

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20
Q

If the ship is not seaworthy but the carrier exercised due diligence they may keep their immunities

A

Yes, if not negligent

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21
Q

Due dilligence requires personal examination of the competence of the crew, not just certificates

A

True

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22
Q

B/L is issued even if shipper does not demand it

A

No, shipper must demand it

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23
Q

What is written on the B/L

A

At least leading marks (how to find them), quantity and condition of the goods

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24
Q

The shippers liabilities can be contracted out of

A

No, they cannot be lessened, only increased

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25
Q

Perils of the sea need to be unforeseeable to give immunities

A

No

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26
Q

What is the maximum liability if the value of the goods is unknown in the B/L

A

666 currency per package or 2 currency per kg

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27
Q

Give two examples of INCOTERMS regarding shipping

A

CIF and FOB

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28
Q

Does governments like FOB

A

Yes for some reason

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29
Q

When is a letter of credit perferred in buy ship pay

A

when the buyer has poor solvency, when the buyers country lacks foreign reserves, when you export special goods or when time is of the essance. Aka when there is a greater risk of default or delay in payment

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30
Q

What three determinations need to be made before imposing custom duties

A

The goods classification, its value and its origin

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31
Q

Is GATT concerned with export duties

A

no

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32
Q

Import duty discrimination is allowed in GATT

A

No

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33
Q

The WTO needs to be notified of a country’s is to impose quantitative restrictions

A

true

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34
Q

What is the WTO’s opinion on quantitative restriction

A

Generally does not allow it, especially if they are discriminatory although there are exceptions f.ex during a quarantine it is allowed

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35
Q

How shall the licences to export a quantitatively restricted good be distributed

A

Generally poportionately to how it was before such restriction although agreements shall be made with theose partoies with a substantial interest in exporting the goods (generally controlling at least 10% of market)

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36
Q

What is MFN obligation

A

most favored nation obligation which obligates nations not to palce different tariffs on different countries

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37
Q

Is the term “like products” defined by GATT

A

No

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38
Q

What is a mixed duty

A

When the tariff to pay is either ad valorem or specific, whichever is higher

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39
Q

What are the requirements of non automatic licenses

A

They shall be non-discriminatory, give reasons if declined, give ther right of apparel/review and have a time limit on procedures

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40
Q

what is PPM

A

process and production method, a way to classify “like products”

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41
Q

What are the three tiers of the national treatment test

A
  1. Is the tariff an internal tax, 2. are the products a like (are they competitors/ substitutes), 3. is the import tax in excess between the products (is it discrimination). This is the result of case law to determine if there is discrimination in tariffs
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42
Q

What are the exceptions allowed under GATT to discriminate & tariff

A

for public morals, for life & health, against prison/slave labor, to safeguard national treasures, exhaustible resources & secrets and lastly to prevent war

43
Q

There is a trend of national laws becoming less soft suggestions and more hard laws

A

Yes

44
Q

What is the CSDDD

A

the corporate sustainability due dilligence directive, if large companies do not look where they get their stuff from they may face fines up to 5% of turnover and products made through slave labor cannot be sold in the EU

45
Q

What is trade facilitation

A

To simplify and harmonize trade standards

46
Q

What is a single window

A

To have one place to send documents relating to trade with a nation

47
Q

What is ISWE

A

Interoperability between nations single windows

48
Q

What does BEPS pillar 2 do

A

It implements a 15% minimal corporate tax rate for OECD countries

49
Q

What are the TFEU and TEU

A

The primary laws of the European union,

50
Q

What are the secondary laws of the European union

A

The EU regulations and directives

51
Q

What are the difference between EU regulations and directives

A

Regulations are to be put in member states laws while member-states are free to decide how to comply with the directives

52
Q

What are the Globe rules

A

They are the rules that decide that if a country has a lower than 15% corporate tax they must top it up for large multinationals. It is made up of two parts IIR (income inclusion rule forcing popup in nation) and UTPR (unexpected profit rule forcing popup for exporters)

53
Q

Who do the Globe rules apply for

A

Large multinationals and domestic firms with a turnover greater than 750M€

54
Q

Is double taxation a legual issue

A

It depends on your point of view, it is more an economic problem with its origin in law. In many cases the law is clear and cut but unfair

55
Q

Insolvency proceedings can serve as liquidity provider

A

Yes

56
Q

What are involuntary insolvency proceedings

A

Proceedings instigated by creditors or public agencies to put the firm in liquidation. For this they must prove that debtor is insolvent and cannot pay their debts

57
Q

What is an out out of court informal debt restructuring called

A

A workout

58
Q

Name and explain tree formal debt restructuring methods

A

DIP (debtor in possession) where the directors remain on post and implement changes demanded, IP (insolvency practitioiner) when a licenced professional is imployed to stear the ship on course and DIP SIP whe debtor rmains in charge but supervised by professional

59
Q

What is a hybrid debt restructuring method

A

When courts are minimally involved and things are usuually resolved by majority rule

60
Q

Rescue financing is normally not allowed by insolvency courts

A

True, if they are approved they may however gain priority

61
Q

What is an enhanced workout

A

A workout with by standards set by an authority like the central bank

62
Q

insolvency in automatically an excuse to void contracts

A

No

63
Q

A seller can decline sending goods if the buyer is insolvent

A

True

64
Q

What is a country court administration and wo may use it

A

It can only be used if debt is under 5000€ and it creates a moratorium and oversight of the case by the court IP

65
Q

What is an IVA in insolvency

A

individual voluntary arrangement, DIP SIP with moratorium

66
Q

What is DRO in insolvency

A

Debt relief order, if they have less than 1000€ assets and 50€ income and less than 20000€ in debt they may be forgiven

67
Q

When you are personally bankrupt what can you not do

A

take a loan or be in charge of a company

68
Q

In an administratin the IP becomes the liquidator if the company is a lost cause

A

true

69
Q

What are recivers tasks

A

They are debt collectors and security providers

70
Q

What are clawbacks in insolvency

A

That trasactions made in the twilight period shall be void to pervent opertunistic behaviour

71
Q

When is DIP a bad idea

A

When there is an involved large shareholder who may pressure the debtor

72
Q

What is an insurance tower

A

The teirs scheem when lower teirs take all responsibility up to a point whereafter the rest is payed by upper teirs who thus are further removed form risk

73
Q

What defenses can an underwriter raise against third parties who rely on the payment and are the reason for the contract

A

The same as against the assured except non-disclosure, misrepresentation or pay2bpayed warranty breaches

74
Q

Are there international laws regarding insurance

A

no global ones

75
Q

What are the historical origins of arbitration

A

Lawyers were seen as inexperienced in industry needs and practice

76
Q

What can you do in a pre-trial

A

Argue that the defendant has no defense and thus quicken the trial if the court is convinced as well as gain injunctions

77
Q

What is another name for Mareva injunctions

A

Freezing assets

78
Q

What must the claimant do before assets can be frozen

A

To prove there is a real risk of meddling with, or fleeing with the contested assets

79
Q

What must the claimant do before gaining an Anton pillar order

A

Have good prima facie case and prove defendant poses real harm to the claimants interests and is in possession of evidence that may be meddled with

80
Q

How shall an Anton pillar order be conducted

A

The claimants associates gains rights to enter the premises of the defendant and retrieve evidence that shall only be used for litigation, is often copied and original is returned. If it is obtained properly there may be damages and the case may be set aside.

81
Q

Arbitration is consentual

A

Yes, both parties must agree to arbitration at least in contract for it to take place

82
Q

What is an adjudication

A

The decision of the arbitration panel

83
Q

Arbitration is a more international option than litigation

A

Yes, it is seen as such

84
Q

Sometimes arbitration procedures and powers are poorly defined

A

True

85
Q

Which is the most popular arbitration body

A

The court of arbitration in the international chamber of commerce

86
Q

The english arbitration act is a complete codification of law

A

False

87
Q

England is in line with UNCITRALs model law of arbitration

A

no

88
Q

Why is EAA and UNCITRAL not used to codify arbitration law in England

A

As case law is more flexible

89
Q

Historically courts were suspicious of arbitration as they focused on what was good and fair and not the letter of the law

A

True

90
Q

before 1996 there was no distinction between international arbitration law and domestic

A

No, the distinction was only removed after 1996

91
Q

EAA only applies for written agreements which include all types of recordings

A

True

92
Q

What is the separability doctrine

A

That a void contract does not void the arbitration clause and that the law of the contract may be different from the arbitration law

93
Q

Arbitrations rulings have legual power and courts may only overrule them in special circumstances

A

True according to EAA section 30

94
Q

Arbitration may rely on conventions not yet in force

A

Yes, resolution method shall be stated in the contract and be followed no matter the domestic law.

95
Q

Explain Ex aequo at

A

That arbitration strives for what is fair and good and not the letter of the law which judges did not like so EAA section 46 compromises through a free selection of laws in contracts error in which may be overruled by court.

96
Q

Procedures may be choosen freely but they must be fair and let both parties talk

A

True, failure will lead to the court forcing a retake or overruling the case

97
Q

Courts may assist in arbitration trials of everyone agrees it is necessary

A

true

98
Q

How does time effect the courts ability to overrule an abritration

A

Challenges to jurisdiction must be made in the beginning of the trial and challenges to legal error and procedure must be made no more than 28 days after the proceedings.

99
Q

What is procedural error in arbitration

A

When the procedure is not as decided or unfair

100
Q

The error in law may be minor or unrelated for the case to be sent to the court from an arbitration

A

No, it must be a relevant major breach

101
Q

What is the 1958 new york convention

A

When 160 countries agreed to enforce world wide arbitration rulings, harmonization

102
Q

US uses UNCITRALs model laws for arbitration

A

True

103
Q

Name and explain some alternative dispute resolutions

A

Mediation and consolidation, where the parties talk to eachother with non binding intermediaries and may exit from discussions at any time. UNCITRAL has a model for this

EKR112 Commercial Law 2 (17 decks)

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