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5520 results in Corporate Law

Page 134 of 276

  • 10 - Exporting Through an Overseas Business Presence

  • Justin Malbon, Monash University, Victoria, Bernard Bishop, Griffith University, Queensland
  • Book:
    Australian Export
    Published online:
    06 August 2018
    Print publication:
    30 October 2014, pp 282-311

  • Summary

    Key Concepts

  • Five main ways in which a company can establish a new or ‘greenfield’ overseas presence are through a liaison or representative office, a branch, a joint venture, a subsidiary or a strategic alliance. Each of these has a different legal structure and has different consequences for the liability of the entity establishing it, and is likely to have differing regulations imposed by the government in the overseas country.

  • An Australian business could acquire or merge with an established overseas entity.

  • Political and economic risk assessment refers to the process in which the Australian entity assesses the political, economic and security risks of undertaking business in the overseas country. This also involves assessing the effectiveness of the overseas government, the nature and extent of any corruption, foreign exchange policies and the general quality of the legal system and the rule of law.

  • Approval processes refer to the specific requirements of foreign companies intending to operate in the country. These requirements are distinct from the various licences and other requirements of both foreign and local companies alike.

  • Establishment processes refer to the legal and administrative requirements for establishing a foreign company. It also refers to any legal and administrative requirements for establishing an agency or distribution arrangement.

    • What is Covered in this Chapter

    This chapter deals with:

  • The rationale for an overseas presence to assist in overseas expansion of a business

  • Various types of entity that can be formed, and the advantages of each

  • The significance of political and economic risk assessments

  • Approval and establishment procedures

  • Operational regulations that will affect operations in the overseas country.

  • 3 - Incoterms

  • Justin Malbon, Monash University, Victoria, Bernard Bishop, Griffith University, Queensland
  • Book:
    Australian Export
    Published online:
    06 August 2018
    Print publication:
    30 October 2014, pp 64-77

  • Summary

    Key Concepts

    Incoterms (a shortening of international commercial terms) are internationally recognised and accepted, standard-form contract terms that parties to international commercial contracts can incorporate by reference in their sales contracts.

    The International Chamber of Commerce (ICC), based in Paris, usually publishes a new set of ICC incoterms each decade. The most recently published are the 2010 ICC incoterms.

    The ICC incoterms set out the obligations of the seller and the buyer regarding issues including:

  • The buyer’s obligation to pay for the goods

  • The seller’s obligation to ensure the goods conform with the contract

  • Possibly the obligation to obtain insurance regarding the carriage of goods

  • The point in time when the risk of loss or damage to the goods passes from the seller to the buyer.

    • What is Covered in this Chapter

    This chapter deals with:

  • The range of obligations regarding delivery of the goods under a sales contract that each of the incoterms seeks to address

  • How these obligations are shared differently between seller and buyer for each of the 11 ICC incoterms

  • When it is appropriate to use each incoterm.

    • Introduction

    In a contract for the sale of goods, perhaps the most significant obligation on the seller is to arrange the delivery of goods it sells. In return, the buyer has the obligation to pay the agreed price. International sales of goods pose special problems for the seller in fulfilling its delivery obligations. These include problems that might arise regarding the transportation of the goods; clearing goods through customs in both the exporting and importing countries; the associated costs; and the point at which the risk of loss or damage to the goods passes from seller to buyer, with consequent implications for insurance. A moment’s reflection reveals that these various subparts of the delivery obligations can be combined in numerous ways, thereby making the drafting of a delivery clause in an international contract of sale a rather complex task which, if not performed well, could lead to many misunderstandings and potential disputes.

  • 7 - Customs and Anti-dumping

  • Justin Malbon, Monash University, Victoria, Bernard Bishop, Griffith University, Queensland
  • Book:
    Australian Export
    Published online:
    06 August 2018
    Print publication:
    30 October 2014, pp 191-227

  • Summary

    Key Concepts

  • The Australian Customs and Border Protection Service is a Federal Government department responsible for the implementation and enforcement of laws regarding the import to and export of goods from Australia. The laws are designed to protect Australia from the importation of dangerous and illegal goods. They are also designed to prevent the exporting of certain goods, including goods that are important to Australia’s national heritage; goods Australia has agreed with other nations not to export because of trade sanctions; dangerous goods; and protected wildlife.

  • Australia is a member of the World Trade Organization (WTO) and is a party to the General Agreement on Trade and Tariffs (GATT). As a consequence, Australia has certain obligations regarding the imposition of import tariffs (customs duties). These include most-favoured-nation and national treatment obligations, which prohibit certain discriminatory treatment in the imposition of customs tariffs against the importation of goods from other WTO member nations.

  • Australian laws are consistent with the WTO and GATT obligations. Consequently, the Australian system for imposing customs duties on imported goods are broadly consistent with those imposed by other WTO members regarding the importation of goods into their countries.

  • WTO members, including Australia, may impose duties on certain imported goods if they are entering Australia at ‘dumped’ prices that harm Australian industry.

  • Preface

  • Justin Malbon, Monash University, Victoria, Bernard Bishop, Griffith University, Queensland
  • Book:
    Australian Export
    Published online:
    06 August 2018
    Print publication:
    30 October 2014, pp xi-xi

  • Summary

    We have written this book for those who want to gain an understanding of the procedural matters involved in international business transactions and their underlying legal basis. We envisage that the book will be of use to students of international business as well as Australian businesspersons who are contemplating export or import transactions. This second edition has been updated and expanded to include the many important changes that have occurred over the past eight years.

    The book commences with an introductory chapter that provides an overview of the legal and procedural matters involved in the direct export of goods and services. The following six chapters deal with the important matters of international sales law, standard terms for delivery, payment, transportation, insurance and customs. Many exporters utilise either an intermediary or an overseas presence to assist the export side of their business, and we have included chapters on the legal and procedural issues in these cases. The book also contains a chapter on licensing and franchising transactions, to reflect the rapid expansion of Australian businesses into overseas markets using these methods. The final two chapters deal with dispute resolution in international transactions. The first of these deals with matters relating to the resolution of disputes between private parties through litigation and arbitration. The final chapter discusses the resolution of disputes at the government-to-government level through the World Trade Organization from the point of view of Australian exporters and importers.

  • 2 - Contracts for the International Sale of Goods

  • Justin Malbon, Monash University, Victoria, Bernard Bishop, Griffith University, Queensland
  • Book:
    Australian Export
    Published online:
    06 August 2018
    Print publication:
    30 October 2014, pp 18-63

  • Summary

    Key Concepts

  • The buyer and the seller in an international transaction for the sale of goods or services are invariably located in different legal jurisdictions. Consequently, the sales contract will likely be governed by the law of either the buyer’s or the seller’s jurisdiction. This can lead to transactional inefficiencies and uncertainties, as one party may be unfamiliar with the laws and legal requirements of the other jurisdiction, which governs the sales contract.

  • There have been moves internationally to bring a degree of consistency to the laws of various jurisdictions that apply to international sales contracts. One significant development is the Convention on the International Sale of Goods (CISG).

  • The CISG has been given effect in about 80 countries. This means that the laws governing the international sale of goods contracts are the same in member countries – at least to the extent set out in the CISG.

    • What is Covered in this Chapter

    This chapter:

    • Outlines the history and implementation of the CISG.

    • Explains the underlying objectives of the CISG.

    • Sets out:

    • When the CISG applies as the law of an international sale of goods contract

    • How to interpret the CISG

    • If the CISG applies –

  • how to work out whether and when a contract has been formed

  • the obligations of the buyer and the seller under the CISG

  • when and how the contract can be terminated

  • the remedies available for a harmed party.

  • 11 - Dispute Settlement

  • Justin Malbon, Monash University, Victoria, Bernard Bishop, Griffith University, Queensland
  • Book:
    Australian Export
    Published online:
    06 August 2018
    Print publication:
    30 October 2014, pp 312-338

  • Summary

    Key Concepts

  • Parties to international trade agreements generally try very hard to keep their business relationships on cooperative and friendly terms. Sometimes, though, disagreements do arise. These may occur because the parties have different views about what they had each agreed to do under the contract. Sometimes one of the parties is facing financial difficulties or difficulties in fulfilling its contractual obligations and therefore seeks to avoid the contract payment or other obligations. On some occasions the other party is just plain dishonest and disreputable.

  • In general, parties attempt to resolve their differences informally by discussing their differences and reaching compromises. Sometimes third-party assistance through mediation may be appropriate. However, particularly if the monetary stakes are high, the parties may resort to litigation or international arbitration of their dispute.

  • Litigation has some advantages and disadvantages, as does international arbitration. The cross-border nature of these disputes, resolving them and enforcing any decisions of a court or tribunal tends to be more complex and expensive than undertaking litigation or arbitration in cases in which both parties are in the same jurisdiction.

  • 1 - An Introduction to the Export and Import of Goods and Services

  • Justin Malbon, Monash University, Victoria, Bernard Bishop, Griffith University, Queensland
  • Book:
    Australian Export
    Published online:
    06 August 2018
    Print publication:
    30 October 2014, pp 1-17

  • Summary

    Key Concepts

  • Exporters selling goods and services will usually agree with the buyer on terms and conditions for the sale. Some of the terms may be in writing. Often, the written terms are little more than a sales order and email correspondences. If there is a dispute between the parties, a court or tribunal will usually be required to work out what the parties intended, using both written terms and ‘implied’ terms. These may be divined from communications and past conduct between the parties, and usual business practices in the relevant industry. There may also be terms that are implied by law in the absence of contrary express and implied agreements between the parties.

  • Parties to international contracts for sale of goods may incorporate standard terms into their sales contracts, known as ‘incoterms’.

  • Export documents refer to the range of documents that an exporter must prepare to enable goods to leave the country, be accepted into the country of the importer and, frequently, to enable payment to be made through the international banking system.

  • The procedure for international sales of goods transactions refers to the steps that need to be taken predominantly by the exporter so that the goods arrive in the importer’s country at the time and by the method of transport agreed between the parties.

  • Exports of services differ from sales of goods in that the terms of agreements and the procedure adopted by exporters and importers tend to be less standardised and depend upon negotiation between the parties.

  • […]

  • 8 - Exporting Through an Overseas Representative

  • Justin Malbon, Monash University, Victoria, Bernard Bishop, Griffith University, Queensland
  • Book:
    Australian Export
    Published online:
    06 August 2018
    Print publication:
    30 October 2014, pp 228-248

  • Summary

    Key Concepts

  • A principal is the person or company that appoints an overseas representative. For the purposes of this chapter this is the Australian exporter.

  • If the overseas representative is appointed by the Australian principal as an ‘agent’, the agent’s role is usually to find customers for the principal’s products and refer the customers to the principal so that a contract for sale can be entered into by the principal and the customer.

  • If the overseas representative appointed by the principal is a distributor, the principal will sell its product to the distributor, who will on-sell them to customers in the overseas country.

  • The terms and conditions of an agency agreement or a distribution agreement refer to the document that sets out the respective rights and obligations of the principal and the agent in an agency agreement and the principal and the distributor in a distribution agreement.

  • Laws of an overseas country that commonly affect agency and distribution arrangements are laws that affect the rights of customers regarding the agent and the principal, laws that affect the termination of any agency and distribution agreements and competition laws.

  • Competition laws are laws that seek to preserve competition in the market.

    • What is Covered in this Chapter

    This chapter deals with:

  • The differences between an agency arrangement and a distribution arrangement and reasons an exporter might select one over the other

  • The factors an exporter needs to consider when appointing agents or distributors

  • The important terms and conditions of agency and distribution agreements, and the reasons for their significance

  • Laws dealing with principal and agent relations with third parties, termination of the relationship, and competition to the extent they affect the relationship between principal and agent or principal and distributor.

  • 5 - Transport of Exported Goods

  • Justin Malbon, Monash University, Victoria, Bernard Bishop, Griffith University, Queensland
  • Book:
    Australian Export
    Published online:
    06 August 2018
    Print publication:
    30 October 2014, pp 128-155

  • Summary

    Key Concepts

  • An important document for the carriage of goods by sea is the bill of lading, or other form of sea carriage document. The air waybill is an important document for the carriage of goods by air. These documents provide evidence of the terms of the contract of carriage; act as a receipt for the goods; and entitle the holder of the document to collect the goods when they arrive at the place of destination. They are therefore important documents for determining the rights and liabilities of the parties.

  • If exported goods are damaged or lost during carriage, questions may arise as to who is liable for the loss and the extent of that liability. Broadly speaking, the monetary losses for the lost or damaged goods are borne by the exporter, importer or carrier, or the monetary losses are shared by some or all of them.

  • Historically, carriers, particularly British carriers, were included in the contract of carriage clauses that exempted them from all liability for loss or damage to the cargo, including for negligence. US courts and other courts often refused to uphold these clauses. The differing approaches to these clauses caused considerable confusion and complexity, leading to international pressure to bring about some uniformity in domestic laws regarding carrier liability.

  • International conventions for the carriage of goods by sea and by air were first introduced during the early 20th century, which were adopted by many countries. These conventions, among other things, set mandatory minimum monetary liabilities for carriers for loss or damage to cargo. Some of these conventions have been adopted under Australian law.

  • Reconciling European Conflicts and Insolvency Law

  • Gerard McCormack
  • Journal:
    European Business Organization Law Review (EBOR) / Volume 15 / Issue 3 / September 2014
    Published online by Cambridge University Press:
    04 November 2014, pp. 309-336
    Print publication:
    September 2014

  • This paper focuses critically on European conflicts and insolvency law – examining and evaluating the relationship between the Jurisdiction and Judgments Regulation and the Insolvency Regulation. The Regulations are founded on the notion of judicial cooperation in civil matters linked to maintaining and developing an area of freedom, security and justice. The paper asks whether these high-minded ideals have been achieved in practice. It also asks whether the recent recasting of the Jurisdiction and Judgments Regulation, and the proposals for revision of the Insolvency Regulation will improve the situation. The paper concludes that the ideals have not quite been achieved and the reform proposals provide only a partial solution.

  • Nordic Company Law Regulation and Why Harmonisation Through Competition Is Necessary

  • Fredrik Westman
  • Journal:
    European Business Organization Law Review (EBOR) / Volume 15 / Issue 3 / September 2014
    Published online by Cambridge University Press:
    04 November 2014, pp. 357-386
    Print publication:
    September 2014

  • The Nordic countries have traditionally cooperated in different legislative areas, although lately to a lesser extent. The experience with Nordic company law development illustrates particularly well the problems related to harmonisation. Although the difficulties were alleviated by the fact that the harmonisation programme took place on a small scale, with few countries involved and with large similarities in the cultural, social and political environment, many goals could not be achieved. The EU, with its current 28 Member States and their differences, in similar respects, has faced and will continue to face far greater problems. The Nordic countries, and knowledge of their history in this respect, can provide some guidelines for possible solutions regarding harmonisation.

    Despite the cooperation in company law, the Scandinavian countries have adopted different regulatory strategies because of political and other factors. Significant differences can be seen in the extent and type of regulation used, but also between countries that use one law for regulating companies and those that use, or have used, separate laws for the regulation of private and public companies. Small company regulation is a highly topical issue in view of the Commission proposal for the SPE.

    In conclusion, knowledge of the Nordic countries and their history in harmonisation and small company regulation can provide valuable information for possible solutions.

  • Breaking up Is Hard to Do: Dutch Unbundling Legislation and the Free Movement of Capital

  • Anne Looijestijn-Clearie
  • Journal:
    European Business Organization Law Review (EBOR) / Volume 15 / Issue 3 / September 2014
    Published online by Cambridge University Press:
    04 November 2014, pp. 337-355
    Print publication:
    September 2014

  • This paper seeks to analyse the ruling (hereinafter: the Essent ruling) handed down by the Grand Chamber of the Court of Justice of the European Union (hereinafter: CJEU) on 22 October 2013 on the compatibility with EU law of Dutch legislation concerning ownership unbundling in the electricity and natural gas sectors. The ruling concerns the interpretation of Article 63 TFEU (free movement of capital) and Article 345 TFEU.

    The paper starts by briefly outlining the developments in the EU energy market since the 1990s and the contents of the Dutch legislation at issue. This is followed by a short description of the factual background to the cases and the preliminary questions. The analysis then shifts to three important legal issues. The first is the interaction between Article 345 TFEU and the free movement rules. The second is the dividing line between purely economic interests and overriding reasons in the general interest. A final issue to be touched upon is that of so-called ‘gold plating’, i.e., the situation in which the requirements laid down in the implementing legislation of a Member State go further than those set out in relevant EU directives.

  • The Rule of Law in a Market Economy: Globalisation of Competition Law in Korea

  • Yo Sop Choi
  • Journal:
    European Business Organization Law Review (EBOR) / Volume 15 / Issue 3 / September 2014
    Published online by Cambridge University Press:
    04 November 2014, pp. 419-437
    Print publication:
    September 2014

  • Globalisation requires a competition law regime since this is an important element of the overall state economic policy. For countries in the developing world that are facing globalisation, a sound framework of competition law is crucial for solving the problems of private restraints on trade, such as boycotts against foreign firms, and of economic concentration. In particular, competition law plays a prominent role in ensuring that the rule of law is followed in a competitive market in modern society. This article discusses the issues arising in the development of the Korean economy and competition law, as an example of success in the progress of competition policy, and suggests proposals for further development.

  • Report: Workshop ‘Collective Redress in South-East Europe’, University of Sarajevo, 28 June 2014

  • Dušan Popović
  • Journal:
    European Business Organization Law Review (EBOR) / Volume 15 / Issue 3 / September 2014
    Published online by Cambridge University Press:
    04 November 2014, pp. 439-442
    Print publication:
    September 2014

  • On 28 June 2014, the Faculty of Law of the University of Sarajevo hosted a workshop entitled ‘Collective Redress in South-East Europe’, organised by the Law Faculties of the Universities of Sarajevo and Zagreb with the financial support of the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). The workshop gathered law professors from Bosnia-Herzegovina, Serbia, Croatia, Macedonia, Albania and Montenegro. The guest of honour was Ms Diana Wallis, President of the European Law Institute (ELI). Collective redress is a relatively new topic among lawyers in South-East Europe. While certain countries of the region have horizontal legislation on collective redress, legislators in other countries still hesitate to introduce this mechanism, ‘replacing’ it with different forms of organisational claims. Even in countries that introduced a collective redress mechanism, decisional practice is quite scarce. The novelty of the collective redress mechanism in the region of South-East Europe, as well as its relevance in the European Union, especially given the recent initiatives of the European Commission, incited the organisers to arrange this exchange of views between researchers from South-East Europe and the European Union.

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