International Business Transactions Outline

 
 
International Business Transactions – Fall 2014 – Professor Patricia Hansen
 
 
 
Globalization & Transnational Lawyering
Ø  Trade & Globalization
§   Reduction of trade barriers &
§   Cap, goods, serv, labor, K->cross boundaries
§   Increasing integration of economies & world
Ø  How global is globalization?
v  Arguments:
Ø  IMF Staff (positive) (Integration, Growth, and Efficiency)
§   Globalization = historical; Reducing barriers to trade; Increasing share of capital, technologies, and development; Growth of specialization, division of labor, efficiency; Access, cheaper imports, larger export markets; Trend of growth, Factors:
·          Value of trade (G&S) as % of world GDP; FDI as % of world GDP; Stock of int’l claims (bank loans, mostly) as % of world GDP; # of min of c-b tele, per capita; # of foreign workers;
§   Need work 2gether: Dev/Dev-ing
Ø  Thomas Friedman (Equalizing Forces):
§   Global comp playing field –> being leveled; Possible for more people (at different levels) to compete; Increased collaboration; Ten flatteners: fall of BW, WWW, technology, outsourcing, uploading
Ø  David Westbrook (Global Cosmopolitan Polity):
§   Globalization = uneven historical current (conflicts w/ Friedman),
§   Globalization is less than term implies, premature to speak of
§   Global, cosmopolitan polity –> markets not countries, have become dominant mode of governance
·          Historical processes brought us to current SoA, new form of political life
·          Supranational capital markets aren't as broad/deep as we'd like, and won't soon be
§   Basis:
·          1. Capital markets –> only where you want to be (~poor countries)
¨         Emerging markets v. developing nations (still ~flat)
·          2. Many parts of world are unconscious of finance
¨         Concerns of rich = not concerns of whole world
·          3. Judging by capital alone is ~sufficient to understand modern societies organizing of public/private realm, dominance = ~everything
Ø  Pankaj Ghemawat (Global reality check):
§   True state today is semi-globalized; Semi = partial, ~50%, (10/25%); Exaggerations, cross-border integration =”Globaloney”; Check flows of certain activities that can occur locally or across borders; Figure out int’l component as % of total
v  Joseph Stiglitz, Globalization & its Discontents (Supports Criticism of West)
Ø  Good things:
§   Access to knowledge, Reduction of Isolation; Rapid growth / Higher-Standard of Living; Longer Lifespans; Int’l landmines treaty, signed by 121 countries, 1997; Anti-globalization protests –> contrarily helped globalization; Debts forgiven of some poor countries; Public pressure; Increased foreign aid
Ø  Discontents
§   Hurt state-owned entities; Hurt local businesses; Developing countries must accept it; Big divide between haves/have nots; Actual # of people in poverty increased by 100 mill; Africa has not achieved things since ind; Lack of stability in developing countries; Connected collapses
§   Russia v. China: Russia relied on int. econ inst., China relied on itself;
§   Western country hypocrisy; Request developing countries to reduce barriers, keep own barriers; Disproportionate share of benefits; Capital flows (erratic), IP protection (medicine); Failed projects; Environmental damage, corruption, massive unemployment; Vehement reaction to policies that drive globalization is new; Trade unionists, students, environmentalists marching in streets who put the need for reform on the agenda; Policymaker v. Protestor views; In’tl inter-governmental institutions: UN, ILO (“decent work”), WHO,
v  Most aspects of globalization welcomed
Ø  Higher standard of living, etc.
v  The more narrowly defined economic aspects that have been the subject of controversy
Ø  Int’l inst have written the rules
§   Mandate or push liberalization of capital market
·          (elim rules/regs in DC that were designed to stabilize flows of volatile money into/out of the country)
v  Economist perspec (Bradford, Grieco, Hufbauer) Payoff to US from Global Integration
Ø  Past integration, policy liber, tech, –> boon to US economy (gains = +)
Ø  Globalization debate –(about)-> labor, environ, identity, and money
Ø  Offshore manu. –> synchronize w/ globalization
Ø  Anti-globalization mvmt developed in response
Ø  Displaced workers in developed countries
Ø  Workers in the developing countries
v  WTO, IMF, WB –> rocked by protests from 1999
Ø  Debate not clear
Ø  Low wages v. no wages
§   But more than this, about extent to which multilateral agmts should allow/promote manu in developing countries, include provisions to improve wages/working conditions in factories
Ø  Exploitation v. providing opportunity, p. 147
Ø  Protect local industry v. open markets to cheaper products
Ø  McDonald-a-lization effect on cultural identity
Ø  Environmental standards: Race to the Bottom?
v  CB: Int’l legal environments, p 1-21
Ø  Globalization
§   Increased incidence of transnational issues
v  Transnational Lawyering (8/28/2014)
Ø  Professional prerequisites & limitations
§   Persons seeking initial authorization to practice law
·          (in the US & elsewhere)
§   Persons authorized to practice law in other states
·          (1) In Roel approach, p. 3
¨         Prohib unlicensed prac of law is ~limited to NY law & includes giving advice on any law in NY.
·           (2) ABA Model Rule 5.05 & new TX Rules XIII-XIV, p. 9
·          Admission, Sys and contin presence, Member of bar
·          Employees exempt from local admission, Provide advise under local counsel, Have competence in home jx
·          (3) Already auth’d to practice elsewhere
·          Some states allow limited prac, advise on foreign law, Texas Rules
·          (4) Fourth approach
·          Can prac in EU member country
·          Rule 1.1: Competence govs when lawyer undertakes to give advice or draft legal doc about a foreign sys
·          EU rules; GATS negotiations
Ø  Ethical Obligations
§   Confidentiality rules (Nat’l rules v. AM&S), p. 15
·          Reg. No. 17 protects confid of written com b/t lawyer/client if:
¨         Such coms = for purp & in interests of client’s rights of def
¨         Coms emanate from ind lawyers (~emp r/s)
§   Resolving conflicts (ABA Model Rule 8.05, TX Rule 8.5), p. 19
v  International Litigation (9/4/2014)
Ø  Forum Selection & Choice of Law Clauses in IBTs
Ø  Negotiating a Forum Selection Clause (Bremen), p. 24
§   Convenience, neutrality, expertise, expense & delay
§   Applicable Substantive Law
§   Enforcement of forum selection clauses
·          In non-selected forums
·          In the selected forum
·          Hague Choice of Court Convention
Ø  International enforcement of judgments
§   German ZPO, p. 34 [Reciprocity and consistency w/ German law)
§   Uniform Foreign Country Money Judgment Act, p. 35
§   Hilton v. Guyot, p. 35
§   Hague Choice of Court Convention, p. 32 [only 1 country acceded, Mex] Ø  Litigation procedures
§   Service process & the Hague Service Convention
§   Attorneys Fees & Juries
§   Taking of evidence
·          Hague Evidence Convention
·          Aerospatiale: US Ct – use FRCP – compel discovery from foreign parties & from non-parties abroad if LPR or US, p. 38
·          Interhandel, p. 39, ~provide ev from abroad (inab), can interp neg
·          28 USC § 1782
v  International Arbitration (9/10/2014)
Ø  Pros & Cons
Ø  The New York Convention, p. 42
§   Scope (covered agreements)
§   Enf of Arbitral Clauses (Art. II; Mitsubishi), p. 44
·          Validity of the arbitration clause
·          Arbitrability of the dispute
§   Enforcement of arbitral awards (Art. V; Toys R Us), p. 53
¨         Enf State’s Nat’l Law –> read into Art V(1)(e)
¨         Seat & set aside: get +express/implied grounds for relief
·          Validity of arb k; suff of notice (enf issues); Scope of the submission; Tribunal composition and procedures; Award has been set aside in place of arbitration; Arbitrability; Consistency with Public Policy.
Intro to Transnat’l Law
v  Int’l Law in the US Legal System (9/12/2014)
Ø  Intro to Int’l law
§   Int’l law v. Transnat’l
·          Transnat’l Law: “to include all law which regulates actions or events that transcend nat’l frontiers”
¨         Involves good deal of dom law—law of K to antitrust law
¨         Includes domestic rules for mediating among nat’l systems
¨         Includes rules of “public int’