OUTLINE

NOTES

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Concept of Int. Trade & Business Law

Commerce/trade/business

Commercial activities: broad & diverse concepts depending on domestic/int. legal documents

• UNCITRAL Model Law on Int. Commercial Arbitration 2006

  • Trade: transaction for the supply/exchange of goods/services
  • Investment:

  → Same objectives: earning benefits

• UNCITRAL Model Law on Int. Commercial Mediation 2018: all relationships or a commercial nature, whether contractual or not

• VN’s Commercial Law 2005: activities for the purpose of generating profits

International/foreign element

• Vienna Convention 1980: between parties whose places of business are in different States
• VN’s Commercial Law 2005: export, import, temporary import for re-export, temporary export for re-import & transfer through border-gates → cross-border movement of the goods
• VN’s Civil Code 2015
  • In terms of actors: different nationality/have different places of business
  • In terms of subject matter of relationship: property situated abroad, cross-border movement
  • In terms of legal events: events leading to formation, modification, termination of legal relationship happen abroad

Relative division between Int. Trade & Int. Business/Commerce

• Int. Trade involves mainly State & public entities

  • Why do States trade: economic, political reasons
    • Absolute & Comparative advantage doctrine → QHKTQT
  • Why do States restrict trade: different policy reasons (maintain independence, protect public health - non-trade concerns…), protect domestic production, counter-measures, reactions towards wrongful acts
  • What is int. trade law: legal instruments that govern int. trade flows

  → Public Law

• Int. Business Transactions involve mainly traders (individuals & businesses)

  • Why do business expand abroad: economic reasons
  • What are int. business transactions: int. sales, transfer of IPRs, FDI, int. transport…
  • What is int. business law: legal instruments that govern specific int. business transactions

→ A set of different terms used worldwide

Concept

• Int. Trade & Business Law deals with
  • States’ foreign trade policy
  • Conducts by actors in the int. business transactions
• Should be viewed as the totality of the legal response to the needs & practiced of trade relations between States among the business community
• Falls into the overlap between int. law & domestic law

Actors in Int. Trade & Business Law

States

• Participate in int. trade in 2 main ways
  1. Signing treaties on trade
  2. Involving in int. business transactions with other actors (foreign traders), as a special actor (in terms of choice of law & sovereign immunity)
     • Traders/businesses might not want to contract with States (entities with immunities) → higher risks
     • Choice of law: domestic law of the State
     • Jurisdictional immunity: the judges of 1 State may not pass judgment against a foreign State without the consent of the latter (due to the equality of the State’s sovereignty) → to what extent States or their agencies or SOEs may be sued in civil courts of other States?
       • Absolute immunity doctrine
       • Restrictive immunity doctrine