International Law and Business: A Global Introduction (Routledge-Noordhoff International Editions)

391 Pages·2021·6.165 MB·English

by  Bart Wernaart

© Noordhoff Uitgevers bv
International Law
and Business
A global introduction
Bart Wernaart
First edition
Noordhoff Uitgevers Groningen | Houten
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© Noordhoff Uitgevers bv
Cover design: G2K (Groningen-Amsterdam)
Cover illustration: Stocksy
Cartoons: Sandor Paulus, Son en Breugel (the Netherlands)
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ISBN 978-1-032-04988-5 (hbk)
ISBN 978-90-01-87157-4 (pbk)
ISBN 978-1-003-19547-4 (ebk)
NUR 820
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© Noordhoff Uitgevers bv
Contents
Foreword 7
PART 1
Introduction and methods 9
1 What is law and where can we find it? 11
1.1 The organization of just behaviour 11
1.2 The meaning of just behaviour 19
1.3 The origin of law 23
1.4 Legal sources 26
Summary 42
Practice questions 44
2 Comparative law and legal systems 49
2.1 The purpose of comparative law 49
2.2 Macro comparison: legal families 54
2.3 Micro comparison: a functional method 67
Summary 72
Practice questions 74
PART 2
International public law 77
3 Constitutional law 79
3.1 Trias politica and the struggle for power 79
3.2 The language of constitutional law 83
Summary 89
Practice questions 91
4 International cooperation: the United Nations 95
4.1 The United Nations and Bretton Woods 95
4.2 The institutions of the UN 98
Summary 109
Practice questions 111
5 International Cooperation: The Bretton Woods Institutions 115
5.1 The International Monetary Fund 115
5.2 The World Bank 124
5.3 The World Trade Organization 129
5.4 Alternatives 142
Summary 143
Practice questions 146
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6 Regional economic integration 151
6.1 Regional economic integration 151
6.2 The free trade zone: NAFTA 155
6.3 The customs union: the SACU 162
6.4 The common market: MERCOSUR 166
Summary 170
Practice questions 172
7 The European Union 175
7.1 Economic integration in Europe 175
7.2 Free trade under the EU 177
7.3 The organizational structure of the EU 199
7.4 Dispute settlement 201
Summary 203
Practice questions 206
PART 3
Business law 209
8 Contract law 211
8.1 The forming of a contract 211
8.2 The content and interpretation of a contract 221
8.3 The form of a contract 223
8.4 Factors affecting the validity of a contract 224
8.5 Performance of the contract 231
8.6 International contract law 232
Summary 234
Practice questions 236
9 Liability law 239
9.1 Contractual liability 239
9.2 Non-contractual liability 246
Summary 262
Practice questions 264
10 Labour law 267
10.1 The industrial revolution and the emergence of labour law 267
10.2 International labour law 270
10.3 Proper labour conditions 270
Summary 285
Practice questions 287
11 Company law 291
11.1 The legal form of a company 291
11.2 Regulatory competition 304
11.3 Foreign companies 306
Summary 307
Practice questions 309
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12 The right to privacy and data processing 313
12.1 Privacy: a clash of rights 313
12.2 Privacy laws around the world 317
12.3 Jurisdiction challenges 333
Summary 334
Practice questions 336
13 Intellectual property 339
13.1 The forms of intellectual property 339
13.2 Jurisdiction challenges 356
Summary 359
Practice questions 362
14 Private international law 365
14.1 International legal disputes 365
14.2 The free choice principle 367
14.3 Substantive private international rules 369
14.4 Objective private international rules 372
Summary 377
Practice questions 378
Index 381
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© Noordhoff Uitgevers bv
Foreword
The idea to write this book evolved during the years in which I was
simultaneously conducting my Phd research and lecturing my IBMS
students. What I’ve noticed is that there are many books entitled
‘introduction to international law’ or ‘international business law’. However,
none of the existing titles were eagerly read by my students. I missed
several elements that I tried to include in this book.
The first thing is a chapter about methods. This is quite unheard of in law,
especially in the international context. However, I do believe that
comparative methods can and should be used by business students when
they take decisions in the sphere of export and international contracts. In
fact, such methods seem to linger somewhere in academic circles and are
quite endlessly debated. Instead, I think such methods deserve to be used
in practice, and applied by business students all around the world.
Second, many books introduce law on a global level, and do not go any
further than discussing international organizations that harmonize
international law, such as the UN, the Bretton Woods Institutions, and the
EU. What is missing, is a broader perspective in which there is not only
room for other forms of economic integration next to the EU, but also a rich
and colourful reference to national concepts of law. After all, the origin of
most legal concepts can be found in national law, not in international law.
Third, I wanted to shift the European/American focus to a truly worldwide
focus. There is more than just U.S., French, German and UK law, which are
the usual countries that are discussed in the context of business law. It is
true that these are the countries that have set the example in many was in
developing legal solutions to problems. However, it would not do justice to
the particularities of other legal systems, including Islamic, Asian, African,
Latin-American and Australian law. There is much to learn there as well.
So, what I’ve tried to do is to give some real insight in how law works
around the globe in the context of international business. I did so by
discussing different solutions in law using examples from many different
regions and countries, using colourful, funny, and I hope inspiring examples.
Furthermore, I tried to do this in using understandable, clear language that
can be read by business students who do not necessarily have a legal
background. The book is set up rather broadly, so that it can be used by
teachers through their entire curriculum.
Each chapter ends with a clear summary, and practice questions. I used
three different kinds of questions, to make sure the student applies
different aspects of his skills: open questions, essay questions and multiple
choice questions. On the website www.internationallawandbusiness.
noordhoff.nl the author will frequently post blogs, vlogs and other materials
to keep this book as up to date as possible. Furthermore, extensive case
studies that would be too voluminous to include in the main text are
published on this site (and referred to in this book).
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Please accept that each time when I use ‘he’, it might as well be a ‘she’.
However, it would make the book less readable if I would use both.
Writing is a lonely occupation, but I am lucky with so many great and warm
people around me. First of all, I would like to thank all my wonderful
students. They ‘sharpen my knives’ every day when we engage in fruitful
and inspiring discussions about international business law. Without them,
this book would not exist.
Next to that, I would like to thank my colleague Therese van Oosterhout, my
‘partner in crime’ at our department. She read my draft chapters, gave here
comments and gave me very useful feedback during the process.
Also, I would like to thank the management of Fontys IBMS (department
Marketing and Management) and the Lectorate for facilitating my writing
career in terms of time and genuine interest. A special thank you goes to
Anthony Murphy, my team leader, for strongly supporting my writing career.
On a more personal note I would like to thank my parents and brothers for
their ongoing support. And last, and most of all, a warm thank you to my
beautiful wife, who is a shining star in my life and who gave birth to the
most beautiful son in the world during the period this book was written. If
you really want to know, our son was born halfway chapter 7, right before
the section about the free movement of services.
Therefore, I would like to dedicate this book to our son Vik, who sat on my
lap during the other half of the writing process. I hope you will become a
man with a nuanced and respectful sense of justice. The world may be dark
sometimes, but when one tries to understand one another, it is the most
powerful key to justice and peace.
Bart Wernaart
Valkenswaard (the Netherlands), November 2016
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© Noordhoff Uitgevers bv 9
PART 1
Introduction
and methods
In this part, we will introduce international law as well as comparative
methods in law in an international business context.
In chapter one, we will introduce the main characteristics of law and explain
the main features of legal terminology. Also, we will portray the origin and
sources of law.
In chapter two, we will explore comparative methods which can be used to
compare different legal systems. This is done on a macro level, in which the
legal families of the world are discussed, and on a micro level, in which
particular phenomenon in law are compared.
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