Intro, law/jurisdiction and settlement & enforcement (1,2,3) Flashcards
(35 cards)
What are the functions of legal systems
Prevention of undesirable behavior and used to settle disputes
What are the elements needed in a legal system
Rules
Authority to make rules
Enforcement mechanism to enforce the rules
Who are the actors in legal systems
- States:
- State run companies
- Administrative coordination groups?
- Supranational organizations
- International organizations
- State Groups
- NGO
- Private entities
What are “States” when talking actors in legal systems
Political organizations with the power to impose and enforce rules within a territory.
They determine national laws, administration and judiciary.
Can also act directly as contractual party.
What is state immunity
States are sovereign, but only in sovereign activities.
War is a sovereign activity so here the country would be sovereign.
But if the country acts like a actor on the market they are not protected by state immunity.
What is distortion of competition
When countries give advantages to domestic companies which distorts competition
What are state run companies
Companies organized under private law with independent status but are controlled by a state.
Problems:
Distortion of competition and sometimes state immunity is broad up
What are supranational orgnazitions
Formed by state.
They are formed by tranforming power to them.
They have some sort of sovereign power to act without support of states.
Example:
EU
what are International organizations?
Formed by states
They don’t have sovereign power and if member countries doesn’t agree with what is decided they can withdraw form the organization
Example:
UN
WTO
What are state groups
Usually are economically focused.
Not formal cooperation, but loose coordination between heads of state.
Example:
G7
What are administrative coordination groups?
Not formal cooperation, but loose coordination between heads of state or administrative key personell
what is a NGO
Non-governmental organization
International entities based on private corporate membership
Don’t have any binding power over any of the other actors, but can have huge power over the public opinion
Example:
ICC
What is a private entity
Privately organized and not state related.
Subject to national regulations
What is the norm hierachy
Hierachy of whihc laws are superior to others.
- Public international law
Contains general principles of law recognized by civil nations, international customs and international conventions. - International agreements
Concluded by states and only aplly for the countries party to the respective agreement - EU law
- National law
- State law, federal laws, constitutions
What are transnational law?
Set of legal rules, non-binding
Not bound to any state and can be used everywhere
Regulation of entire area of law (e.g. commercial law) or parts of it (e.g. INCOTERMS)
Typically Developed by public or private International Organizations (e.g. ICC)
What is governing law?
Laws and legal systems applicable to the contract
What is a jurisdiction?
legal entity granted the right to enact justice (e.g. court)
What are dispositive and mandatory law?
Dispositive laws are laws that you can change in the contract if you like laws from another legal system better.
e.g. commercial law, jurisdiction
Mandatory laws are law that cannot be changed even if the chosen legal system says something else.
e.g. constitutional law, criminal law, tax law
What happens if choice of law and jurisdiction is not put into the contract
Countries from EU:
Rome 1 decides which law to use and Brussels 1A decides which court to use.
Countries in EFTA:
Rome convention decides which law to use and Lugano convention decides which court to use.
Other countries:
Must use national law
If not then you need to rely on national law
What happens if you work with a country who is not part of any of the harmonized instruments (lugano convention, brussel 1A, hauge convention) in terms of courts honoring choice of jurisdiction.
You must check what the national law says.
In the U.S. their national law doesn’t necessarily honor the choice of jurisdiction which is important to know
What options do you have when choosing jurisdiction?
You can choose:
- State jurisdiction or arbitration (private court).
- Location of court (state, region, city)
- Level of court
- Function (general or specialized courts)
- Scope (Should all disputes be solved by the same court or should they be split up in different courts)
Where do you find a jurisdiction clause
can be found both in the documents pre-contract or in the actual contract
What should you consider when choosing jurisdiction?
your party’s interest (which jurisdiction is most favorable for you)
Look at the location of you own and counterparties assets.
Look at where the counterparties branches are located
What are the costs at the different jurisdiction
Convenience (ensure it is easy to get there)
Align jurisdiction and governing law
What is litigation
State system of dispute settlement
Uses state court and jurisdiction based on state material and procedural law
This would give form to the title or measure you are applying to.
Then there are state enforcement laws for enforcement
