Repetition notes Flashcards
Can commercial regulation be contracted out of
No, regulation is mandatory
Explain the principle of flexibility in commercial law
That commercial law should be slow to declare a practice impossible if legal consistency is not threatened
The international supply chain contracts are protected by the unfair contract act 1977
No, only commercial transactions
What is the officious bystander test
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
Does civil law recognize the right of undisclosed principles to intervene in contracts made by an agent not known to have them as principle
No
Unidrot 1983 convention focuses on…
external relations and the authority of agents
If someone does an action in their own name but then want the action to relate to another can that person ratify that action
No, a principle can only ratify actions taken in their name
Estoppel is the basis of apparent authority
True
Name two contracts of carriage
Bill of lading and sea way bill
In CIF the seller pays for shipping and is responsible for the goods on board
No, the shipper is responsible for the goods, the seller however has to pay for insurance
How does the B/L reach the buyer of goods
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.
What is the relation between shipper and seller in buy ship sell
Charter-party and bill of lading before its transferred to the buyer or the bank
What is the relation between seller and buyer in buy ship sell
A sales contract
What is the relation between the buyers bank and the seller in buy ship sell assisted by credit
A promise to pay
What is the relation between the seller and their bank in the credit assisted buys ship sell
notify credit
what is the relation between shipper and buyer in buy ship sell
B/L
The Hague rules only apply if they are in a contract clause
True
The Hague rules apply even if there is no intent to send a bill of lading in a contracting state
False, there has to be at least intention to send it
Explain the ping pong match between the shipper and the carrier if there is a faulty delivery
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.
If the ship is not seaworthy but the carrier exercised due diligence they may keep their immunities
Yes, if not negligent
Due dilligence requires personal examination of the competence of the crew, not just certificates
True
B/L is issued even if shipper does not demand it
No, shipper must demand it
What is written on the B/L
At least leading marks (how to find them), quantity and condition of the goods
The shippers liabilities can be contracted out of
No, they cannot be lessened, only increased
Perils of the sea need to be unforeseeable to give immunities
No
What is the maximum liability if the value of the goods is unknown in the B/L
666 currency per package or 2 currency per kg
Give two examples of INCOTERMS regarding shipping
CIF and FOB
Does governments like FOB
Yes for some reason
When is a letter of credit perferred in buy ship pay
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
What three determinations need to be made before imposing custom duties
The goods classification, its value and its origin
Is GATT concerned with export duties
no
Import duty discrimination is allowed in GATT
No
The WTO needs to be notified of a country’s is to impose quantitative restrictions
true
What is the WTO’s opinion on quantitative restriction
Generally does not allow it, especially if they are discriminatory although there are exceptions f.ex during a quarantine it is allowed
How shall the licences to export a quantitatively restricted good be distributed
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)
What is MFN obligation
most favored nation obligation which obligates nations not to palce different tariffs on different countries
Is the term “like products” defined by GATT
No
What is a mixed duty
When the tariff to pay is either ad valorem or specific, whichever is higher
What are the requirements of non automatic licenses
They shall be non-discriminatory, give reasons if declined, give ther right of apparel/review and have a time limit on procedures
what is PPM
process and production method, a way to classify “like products”
What are the three tiers of the national treatment test
- 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
What are the exceptions allowed under GATT to discriminate & tariff
for public morals, for life & health, against prison/slave labor, to safeguard national treasures, exhaustible resources & secrets and lastly to prevent war
There is a trend of national laws becoming less soft suggestions and more hard laws
Yes
What is the CSDDD
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
What is trade facilitation
To simplify and harmonize trade standards
What is a single window
To have one place to send documents relating to trade with a nation
What is ISWE
Interoperability between nations single windows
What does BEPS pillar 2 do
It implements a 15% minimal corporate tax rate for OECD countries
What are the TFEU and TEU
The primary laws of the European union,
What are the secondary laws of the European union
The EU regulations and directives
What are the difference between EU regulations and directives
Regulations are to be put in member states laws while member-states are free to decide how to comply with the directives
What are the Globe rules
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)
Who do the Globe rules apply for
Large multinationals and domestic firms with a turnover greater than 750M€
Is double taxation a legual issue
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
Insolvency proceedings can serve as liquidity provider
Yes
What are involuntary insolvency proceedings
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
What is an out out of court informal debt restructuring called
A workout
Name and explain tree formal debt restructuring methods
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
What is a hybrid debt restructuring method
When courts are minimally involved and things are usuually resolved by majority rule
Rescue financing is normally not allowed by insolvency courts
True, if they are approved they may however gain priority
What is an enhanced workout
A workout with by standards set by an authority like the central bank
insolvency in automatically an excuse to void contracts
No
A seller can decline sending goods if the buyer is insolvent
True
What is a country court administration and wo may use it
It can only be used if debt is under 5000€ and it creates a moratorium and oversight of the case by the court IP
What is an IVA in insolvency
individual voluntary arrangement, DIP SIP with moratorium
What is DRO in insolvency
Debt relief order, if they have less than 1000€ assets and 50€ income and less than 20000€ in debt they may be forgiven
When you are personally bankrupt what can you not do
take a loan or be in charge of a company
In an administratin the IP becomes the liquidator if the company is a lost cause
true
What are recivers tasks
They are debt collectors and security providers
What are clawbacks in insolvency
That trasactions made in the twilight period shall be void to pervent opertunistic behaviour
When is DIP a bad idea
When there is an involved large shareholder who may pressure the debtor
What is an insurance tower
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
What defenses can an underwriter raise against third parties who rely on the payment and are the reason for the contract
The same as against the assured except non-disclosure, misrepresentation or pay2bpayed warranty breaches
Are there international laws regarding insurance
no global ones
What are the historical origins of arbitration
Lawyers were seen as inexperienced in industry needs and practice
What can you do in a pre-trial
Argue that the defendant has no defense and thus quicken the trial if the court is convinced as well as gain injunctions
What is another name for Mareva injunctions
Freezing assets
What must the claimant do before assets can be frozen
To prove there is a real risk of meddling with, or fleeing with the contested assets
What must the claimant do before gaining an Anton pillar order
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
How shall an Anton pillar order be conducted
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.
Arbitration is consentual
Yes, both parties must agree to arbitration at least in contract for it to take place
What is an adjudication
The decision of the arbitration panel
Arbitration is a more international option than litigation
Yes, it is seen as such
Sometimes arbitration procedures and powers are poorly defined
True
Which is the most popular arbitration body
The court of arbitration in the international chamber of commerce
The english arbitration act is a complete codification of law
False
England is in line with UNCITRALs model law of arbitration
no
Why is EAA and UNCITRAL not used to codify arbitration law in England
As case law is more flexible
Historically courts were suspicious of arbitration as they focused on what was good and fair and not the letter of the law
True
before 1996 there was no distinction between international arbitration law and domestic
No, the distinction was only removed after 1996
EAA only applies for written agreements which include all types of recordings
True
What is the separability doctrine
That a void contract does not void the arbitration clause and that the law of the contract may be different from the arbitration law
Arbitrations rulings have legual power and courts may only overrule them in special circumstances
True according to EAA section 30
Arbitration may rely on conventions not yet in force
Yes, resolution method shall be stated in the contract and be followed no matter the domestic law.
Explain Ex aequo at
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.
Procedures may be choosen freely but they must be fair and let both parties talk
True, failure will lead to the court forcing a retake or overruling the case
Courts may assist in arbitration trials of everyone agrees it is necessary
true
How does time effect the courts ability to overrule an abritration
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.
What is procedural error in arbitration
When the procedure is not as decided or unfair
The error in law may be minor or unrelated for the case to be sent to the court from an arbitration
No, it must be a relevant major breach
What is the 1958 new york convention
When 160 countries agreed to enforce world wide arbitration rulings, harmonization
US uses UNCITRALs model laws for arbitration
True
Name and explain some alternative dispute resolutions
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
