Business Law I - BE671 - Summary of all content

Principle of mutual recognition

Established in Cassis De Dijon ruling. Union. It means that if a product is legally sold in one EU member state, it should generally be accepted in others, unless there are valid reasons for restrictions.

Controversies (ATCA)

Extraterritoriality: the scope of ATCA's application to violations occurring outside the United States remains a subject of debate. Corporate Liability: question of whether corporations can be held accountable under ATCA for human rights abuses is a matter of ongoing controversy. Statute of Limitations: the absence of a specific statute of limitations raises questions about when historical cases can be brought to court.

Planning for your dispute resolution

First, you need to decide whether you want to have court litigation or arbitration—either/or—you can't have both (EITHER forum selection clause OR arbitration clause) Secondly, which courts should have jurisdiction over your disputes? Or, if you want arbitration, where should be the seat of arbitration? (Forum selection clause: exclusive jurisdiction clause? Enforcement of judgments/arbitral awards: where are the assets of the other party? Are they easily movable?) Thirdly, what should be the applicable law?

Swedish constitutional law

Four fundamental laws (grundlagar) which together make up the Constitution: • the Instrument of Government (regeringsformen, RF, 1974) • the Act of Succession (successionsordningen 1810) • the Freedom of the Press Act (tryckfrihetsförordningen, TF, 1949) • the Fundamental Law on Freedom of Expression (yttrandefrihetsgrundlagen, YGL, 1991)

French Code Civil (1804)

Fundamental legal code established in 1804 rooted in Roman law principles. Influential globally in codification.

Doctrine of Precedent — Stare Decisis

Fundamental principle in the common law legal system. It establishes that judges are bound by the precedents set by their superiors and predecessors, creating a system of legal consistency and predictability.

Due dilligence

Företagsbesiktning

Bürgerliches Gesetzbuch (1900)

German Civil Code enacted in 1900. Major codification of German private law. Influenced legal systems worldwide.

The special role of precedent (prejudikat) in Swedish law

In Sweden, precedent is used to guide judicial decision-making, but it is not binding in the same way that it is in some jurisdictions. Instead, Swedish courts are expected to consider precedent as persuasive authority, and to give it the weight it deserves based on the specific facts and circumstances of the case at hand.

Supremacy of EU law

In case of a conflict between (directly effective) EU and national law, EU law prevails.

Elements of arbitration

Creature of contract—gives the parties great deal of flexibility • Selection of arbitrator(s) • Neutral forum • Exclusion of state courts—parties waive the right to go to court(s) • Final and binding award—enforceable through the New York Convention • Confidential—if that's what the parties agreed

Exclusive (or "mandatory") forum selection clause

Disputes covered by the clause can only be resolved in the specified forum (court), and nowhere else

Arbitration

Is a procedure in which a dispute (tvist) is submitted, by agreement of the parties, to one or more arbitrators (skiljemän) who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.

Vad är jurisdiktion?

Jurisdiktion, domvärjo eller rättsbefogenhet är befogenheten att utöva rättskipning och att döma.

Ius Commune (common law)

Jus commune or ius commune is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" in English law.

What is the rationale for the hierarchy of norms? (B)

Law" is made up of a set of rules of unequal weight. The force of law of these rules follows the principle that a hierarchy of norms exists. Therefore, in applying a law, one must make sure that a given rule does not contradict a principle of law that is superior to it.

Mandatory rules

Laws that purport to apply irrespective of the law chosen by the parties to govern their contractual relations.

Which treaty is the Treaty on European Union (TEU) also known as?

Maastricht Treaty (1992). Outlines the structure of the EU's institutions, including the European Council, the European Parliament, the European Commission, the Court of Justice of the European Union (CJEU), and the Council of the European Union. Outlines the overall objectives and principles of the EU.

Supply Chain Liabillity

Refers to the legal responsibility of a company for the actions of its suppliers or subcontractors. In other words, a company may be held liable for the harm caused by the products or services it purchases from its suppliers, even if the company itself did not directly cause the harm. Example: Ali Enterprises and KiK.

Why contracts?

Risk mitigator Efficiency enhancer Incentivizer

How is criminal and private law correlated?

Same facts can trigger liability for breach of private and criminal law

What are the main courts in Europe? What is the "Strasbourg court" and the "Luxemburg court"?

Some of the main courts in Europe are the "Luxenmburg court", The European Court of Justice (ECJ), which is the highest court of EU, responsible for interpreting and applying EU law. Also the "Strasbourg court", The European Court of Human Rights (ECHR), which has jurisdiction over cases involving alleged violation of the human rights protected by the Convention. Others are The Supreme Court in UK, the highest court in the UK, and The Constitutional Court of Germany (Bundesverfassungsgericht), the highest court in Germany for matters of constitutional law.

What is the principle/purpose of Rome I?

The broad principle of Rome I was not only to harmonise choice of law rules in contract but, subject to certain safeguards, maximise the freedom of the parties to choose the law governing their contractual relations.

What is the dualistic model?

The dualistic model in law refers to a system where international law and domestic law are considered separate and distinct legal systems. In

ECJ (the European Court of Justice)

The highest court in the European Union (EU) and plays a crucial role in interpreting and ensuring the uniform application of EU law. The ECJ has jurisdiction over matters related to EU law and interprets and applies the treaties that form the legal basis of the EU.

Unified law of England (Equity and common law)

The history of common law in Britain is characterized by the development of a unified legal system and the emergence of equity as a complement to common law. medieval England, the Curia Regis served as the central court and council of the monarchy. To apply a unified set of rules, three permanent royal courts were established at Westminster. King's judges, traveling throughout England, ensured a consistent application of the law, making decisions that became binding and formed the basis of a unified legal framework.

What are the main features of any constitution?

The main features of any constitution typically include provisions establishing the structure and powers of the government, the rights and duties of citizens, and the procedures for amending the constitution.

Effects of separability

• Arbitration agreement can be valid even though underlying contract is invalid • Finding that the contract is invalid would deprive arbitrators of their jurisdiction—the very basis of the finding of invalidity • Overcomes this jurisdictional problem: arbitrators can find that the contract is invalid without losing the power to make that finding • Law governing the arbitration clause may be different from that governing the underlying contract • Arbitration clause can survive the termination of the underlying contract

Rationale of separability

• Autonomy principle facilitates arbitration process and corresponds with the parties' likely intent • Arbitration would not work without

New York Convention ("NYC")

• Entered into force in 1958 • Most important instrument on international commercial arbitration. • Signed by the great majority of states • Arbitration agreements presumptively valid • Provides for recognition and enforcement of • arbitration agreements, • arbitral awards.

What do you need if you want arbitration? What obligations are imposed on the parties in that case?

• If you want arbitration, you need an arbitration agreement with the other party/parties • Arbitration agreement: • obliges the parties to arbitrate (positive obligation) and • parties waive their right to go to court (negative obligation) • in the US parties waive their constitutional right to a jury trial in civil matters:

• Breach of a contractual obligation can occur in three ways:

• No performance • Late performance • Defective performance

Direct effect of EU law

Provisions of Union law may, if appropriately framed, confer rights and impose obligations on individuals which national courts are bound to recognize and enforce

Steps when you receive a draft contract

Read first the proposed dispute resolution clause • Courts or arbitration? • Where—which courts/ where is the seat of arbitration? • What is the applicable law?

NYC: most important provisions

Article III: Each member shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure in the territory where the award is relied upon. • Article V: Provides limited grounds on which a forum can refuse recognition and enforcement of an award.

What is a contract?

A promise made to somebody else, typically establishing rights and obligations on both parties.◦ One-sides obligations are sometimes viewed as another type of legal instrument, e.g. a deed.• Both parties will be held accountable for their respective promise ◦ ultimately with a little help from the state, whereof the nature of assistance varies between jurisdictions.

Rome I Regulation

A regulation which governs the choice of law in the European Union. EU Member State courts will apply Rome I even if this leads to the application of a non-EU law (eg New York law) Rome I will also be applied even if some or all of the parties appearing before an EU Member State court are non-European

lex posterior derogat legi priori

"A later law repeals an earlier (law)"

lex specialis derogat legi generali

"A specific law prevails a general (law)"

lex superior derogat legi inferiori

"A superior law repeals an inferior (law)"

What is meant by "precedence for guidance"? To what extent does this concept differ from precedents in the common law?

"Precedent for guidance" refers to a judicial decision that is not binding on lower courts, but that can be used as a persuasive authority in future cases. This concept differs from precedents in the common law system, which are binding on lower courts and must be followed in future cases. E.g. Swedish use of precedents. Not binding, but used as guidance in cases. In common law systems, legal precedents are decisions made by higher courts that set a standard or rule for similar cases in the future. Lower courts are generally bound to follow these precedents, creating a system of stare decisis, which means "to stand by things decided."

ratio decidendi

"rationale for the decision". The term refers to a key factual point or chainof reasoning in a case that drives the final judgment

obiter dictum

"something said in passing". A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation.

Rule of Law

- Limitation of State Power - Basic legal rights - Access to Independent Judiciary

Enforceable (verkställbar) in the national courts

A right conferred (tilldelad) under EU law can be enforced in the national court, an obligation imposed by EU law can be enforced in the national court. The ECJ does not have its own enforcement mechanism. Instead, it relies on national courts and authorities to enforce its decisions. National courts are obligated to follow the ECJ's interpretations of EU law.

Kompetenz-Kompetenz

Arbitrators have the authority to determine their own jurisdiction • They can rule on whether a dispute falls within the scope of the arbitration agreement (eg, is the arbitration contract valid?) • Arbitrators have power to decide on their jurisdiction—subject to court review • In other words, arbitrators have the power to initially determine whether they have the power to decide the underlying dispute • Their determinations are not absolute but remain subject to review by courts

Liqudiated damages

A liquidated damages clause specifies a predetermined amount of money that must be paid as damages for failure to perform under a contract. The amount of the liquidated damages is supposed to be the parties' best estimate at the time they sign the contract of the damages that would be caused by a breach.

What is the equivalent (party autonomy) of Art 3(1) Rome I Reg in the Brussels I Recast?

Article 25 Brussels I Regulation Recast

Sources of guidance to the arbitrator

1. Arbitration agreement 2. Arbitral institutions 3 . National arbitration legislation 4. International arbitration conventions

Summary lecture 5

1. Assume that other party will breach their contractual obligations 2. Prepare for those breaches at the time of negotiating the deal 3. Decide whether you want court litigation (where?) or arbitration (where?)—arbitration always requires an arbitration agreement 4. Include also a choice of law clause: what law should govern the contract (eg Swedish, German, English, French, NY law)

Penalty clause

A penalty clause is a contractual clause that imposes liquidated damages that are unreasonably high and represent a punishment for breach, rather than a reasonable forecast of damages for the harm that is caused by the breach, are referred to as penalty clauses.

How does an arbitration proceed?

1. In most cases parties conclude the arbitration agreement at the time they make the entire deal (contract) 2. Arbitration agreement: institutional/ ad hoc arbitration; seat of arbitration (where); choice of law 3. Dispute arises: one party submits dispute to arbitration 4. Legal proceedings before arbitral tribunal 5. Tribunal decides the case—renders the award (decision) 6. Annulment: while an arbitration award cannot be appealed it is possible to seek annulment of the award-- usually the courts at the seat of arbitration have jurisdiction over the annulment action 7. Enforcement: if the award debtor does not voluntarily comply with the award, the award creditor will have to enforce it—in the national court(s) where the award debtor has assets

Article 3(1) Rome I

A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract. However, for a non-EU court's decision to be recognized and enforced within the EU, certain conditions must be met, and the chosen court's decision must align with the public policy of the relevant member state. This ensures a degree of harmonization and predictability in cross-border dispute resolution within the EU framework.

Forum selection clause

A contractual agreement that designates the court and location where the parties would like to have their legal dispute decided is commonly known as a "forum selection clause."

Alien Tort Claims Act 1789 (US)

ATCA or Alien Tort Statute, is a U.S. federal law that allows aliens (foreign nationals, non-U.S. citizens) to bring civil lawsuits in US federal courts for certain torts (i.e., civil wrongs) that have occurred in violation of international law outside the United States. - No specific statute of limitations, making it possible to bring cases for historical human rights abuses.

Non-exclusive (or "permissive") forum selection clause

Allows—but does not require— parties to litigate their disputes before the contractually stipulated court

Key elements of Stare Decisis

Binding Nature: Judges are obligated to follow the decisions of higher courts and those from their own past decisions, forming a hierarchical structure of legal authority. • Precedent Components: • Ratio Decidendi: The essential and necessary legal part of a decision that forms the precedent. It is the reasoning behind the decision and has binding authority in future cases. • (Not Obiter Dicta: Other statements made by judges that are not crucial to the decision and serve as illustrative or explanatory. Obiter dicta do not have binding authority.) • Hierarchy of Courts: The court must adhere to the ratio of an earlier relevant decision from a court that is superior in the hierarchy. This ensures consistency and respect for the decisions of higher-ranking courts.

Law

Body of rules created by the state binding within its jurisdiction and enforced with the authority of the state through the use of sanctions.

Civil Law

Civil law originates from Roman law ius civile and is a legal system that relies on comprehensive written laws and codes to determine the outcome of legal disputes. Civil law systems often involve judges applying and interpreting statutes created by legislatures rather than relying on precedent. The system can be described as "law of professors", formed by a strong tradition of legal scholarship, where "the judge is the mouth of the law", le juge, bouche de la loi (Montesquieu). Civil law systems are commonly found in continental Europe, Latin America, Asia, and parts of Africa. Some countries, such as Germany and France, have a pure civil law tradition, while others, like Japan and South Korea, have incorporated civil law elements into their legal systems.

Key characteristics of civil law

Codification: Civil law systems are characterized by the existence of comprehensive legal codes that cover various areas of law, such as contracts, property, family, and torts. These codeshare systematic and starts with the general principles. • Statutory Basis: Decisions in legal disputes are determined by statutes and regulations. • Inquisitorial Approach (inquisitoriellt förfarande): Judges play an active role in investigating and determining facts in legal proceedings, as opposed to the adversarial system common in many common law countries. • Limited Role of Precedent: While precedent is not entirely absent in civil law systems, it holds less weight and are not binding to the same extent, and judges have more flexibility to interpret and apply statutes. • Legal Scholars and Commentary: Civil law systems may place a greater emphasis on legal scholars and commentary as sources of guidance in interpreting statutes and developing legal principles. • Specialization of Judges: Judges in civil law systems often specialize in specific areas of law, and cases are assigned to judges based on their expertise.

Common law

Common law is a legal system where laws develop through judicial decisions and precedent rather than statutes. Originating in medieval England, it spread to former British colonies and is commonly found in continental Europe, Latin America, Asia, and parts of Africa. Decisions by judges in previous cases set binding precedents for similar future cases, forming the basis of legal principles.

German Supply Chain Due Diligence Act

Companies operating in Germany with a certain number of employees must implement diligence procedures (aktsamhetsprocedurer) to assess compliance with certain fundamental human rights and environmental standards in supply chains.

Consideration

Concept in ENGLISH Common law. Anything of value promised by one party to the other when making a contract can be treated as "consideration": for example, if A contracts to buy a car from B for $5,000, A's consideration is the promise of $5,000, and B's consideration is the promise of the car.

What are the main differences between Constitutional acts and ordinary acts?

Constitutional acts/constitutional laws/constitutional amendments, are laws that modify or add to the provisions of a constitution. Ordinary acts, on the other hand, are laws that are passed by a legislative body and that do not modify the provisions of the constitution. Constitutional acts are typically subject to a higher level of critical observation and additional requirements for passage.

Corpus Iuris Civilis

Corpus juris civilis (ungefär: "samling av civilrättsliga lagar", latin) var ett viktigt juridiskt arbete som publicerades åren 529-534 på uppdrag av den bysantinske kejsaren Justinianus.

quid pro quo

Något för något. Fundament in consideration.

What assumption should always be made in contracts?

Other party will breach contract

Arbitration versus litigation

Perceived advantages of arbitration • Enforcement of arbitration awards (New York Convention) • Neutrality • Party-appointed arbitrators • Confidentiality, if agreed ' • Expert knowledge Disadvantages of arbitration • Need to plan ahead • Limited provisional remedies • More litigation? • Home court advantage lost • Specific performance • Multi-party situation

Arbitral institutions

Provide a set of detailed rules • Required: reference in the arbitration agreement • For example: • London Court of International Arbitration (LCIA), • International Chamber of Commerce, Paris (ICC), • Arbitration Institute of the Stockholm Chamber of Commerce (SCC)

Some countries, eg Germany, , Austria, Spain, Portugal and Italy, have specialized courts of constitutional review (constituional courts/tribunals). Why does Sweden not have a constitutional court?

Sweden does not have a constitutional court because the Swedish Constitution does not provide for such a body. Instead, the Swedish legal system relies on the Supreme Court to interpret and apply the provisions of the Constitution, and to ensure that the laws passed by the Riksdag are consistent with the Constitution. The Supreme Court also has the authority to review the constitutionality of laws and government actions, and to declare them invalid if they are found to be in conflict with the Constitution.

What follows from the Constitution being part of "public law"?

That it is a legally binding document that establishes the fundamental principles and laws of a government, and that it has supremacy over other laws and regulations within the jurisdiction of that government.

Article 267 TFEU, Preliminary reference procedure

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings (förhandlingsavgöranden) concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts (rättsakter) of the institutions, bodies, offices or agencies of the Union;

What is the status of the European Convention for the Protection of Human Rights and Fundamental Freedoms in Sweden?

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is an international treaty that protects the human rights of individuals within the jurisdiction of the member states of the Council of Europe. Sweden is a member state of the Council of Europe and has ratified the ECHR, so it is bound by the provisions of the ECHR and must ensure that its domestic laws and practices are in compliance with the ECHR. The ECHR can be enforced in Sweden through the European Court of Human Rights

The special features of the Swedish court system:

The Swedish court system is divided into several levels, including district courts (tingsrätter), courts of appeal (hovrätter), and the Supreme Court (Högsta domstolen). The Swedish court system is known for its emphasis on reconciliation (förlikning) and alternative dispute resolution methods, such as mediation (medling) and arbitration (skiljeförfarande). Swedish courts also place a strong emphasis on the principles of transparency and public access to information, and proceedings are generally open to the public.

Internal market of EU

The TFEU promotes the four fundamental freedoms within the internal market: • The free movement of Goods, • The free movement of People • Freedom of Services • Freedom of movement of Capital

What is the relationship between the national courts and the Court of Justice of the European Union? What are the key features of this relationship?

The national courts of the member states of the EU are responsible for ensuring that EU law is upheld within their respective countries. They have a duty to apply EU law and to refer cases to the CJEU if they need guidance on the interpretation of EU law or if there is a dispute over the validity of EU law. This system of referral is known as the "preliminary reference procedure," and it allows the CJEU to provide clarity on the application of EU law and to ensure that it is uniformly applied across the EU. Key features: Supremacy of EU law: EU law takes precedence over the national laws of the member states. If there is a conflict between an EU law and a national law, the EU law must be applied. Obligation to apply EU law: National courts have a duty to apply EU law, even if it conflicts with their own national laws. Right to make preliminary references: National courts have the right to make preliminary references to the CJEU for clarification on the interpretation or validity of EU law. Role of national courts in enforcing EU law

Offeror

The party that makes the offer

Offeree

The party to whom the offer is made.

What is the difference between primary and secondary EU law?

The primary sources of EU primary law are the treaties (fördrag) establishing the European Union (TEU, TFEU, Treaty of Rome) Secondary law includes regulations, directives, decisions, and recommendations. Secondary law serves to detail and operationalize the principles laid out in primary law.

Principle of conferral

The principle of conferral is foundational to the EU's legal framework, ensuring that the EU acts within the boundaries established by its member states. It safeguards the sovereignty of member states while allowing for effective cooperation in areas where joint action is necessary for the common good. This principle contributes to the overall balance of powers within the EU.

Party autonomy

The principle of party autonomy allows the parties choose applicable law to substance and arbitration, to conduct the arbitration process such as appointment of arbitrator, arrangement of timetable, choice of place and language of arbitration.

What is the rationale for the hierarchy of courts? (A)

The rationale for the hierarchy of courts in Sweden is to ensure that there is a clear and orderly system for resolving legal disputes and interpreting the law. The hierarchy of courts consists of the Supreme Court, the courts of appeal, and the district courts. Cases generally progress through the hierarchy of courts, with the possibility of appeal at each level. This ensures that decisions made by lower courts can be reviewed by higher courts, which helps to ensure fairness and consistency in the application of the law.

Legal rules regarding consideration:

There are a number of common issues as to whether consideration exists in a contract. Under English law: - Part payment is not good consideration. - Consideration must move from the promisee but need not flow to the promisor. - Consideration must be sufficient but need not be adequate. - Consideration cannot be illusory. - Consideration must not be past. Past consideration is not good consideration. - Moral consideration is not sufficient (except for contracts by deed, where "love and affection" is often cited as the [unnecessary] consideration). -Performance of existing duties is not good consideration (Think Myrick-case)

What are Ordinances and statutory instruments in Swedish law?

Types of secondary legislation issued by the government or other agencies with the power to do so. Ordinances are issued by the government and are generally more important and have a broader scope than statutory instruments. Statutory instruments are issued by agencies or other authorities and usually concern more specific or technical matters.

Separability doctrine

Validity of the arbitration clause must be determined separately from that of the contract as a whole, even though the arbitration clause is merely a part of the contract This is an exception to the ordinary rule that a contractual clause shares the fate of the contract in which it is contained.

Why is the seat of arbitration important?

You can usually annul the award at the seat of the arbitration. Thus the seat is important, since you often have to try and annul it there.

ne bis in idem

not twice in the same. A criminal law principle under which a person cannot be punished and be subject to several procedures twice for the same facts. In simple terms, the principle pursues to avoid double prosecutions and double punishments.

Forum selection clauses

parties choose place where disputes will be decided

Choice of law clauses

parties choose the law

Litigation

the act, process, or practice of settling a dispute in a court of law

le juge, bouche de la loi

the judge is only the mouthpiece of the law

Key features of common law:

• Precedent (prejudikat): Judges are bound to follow the decisions of higher courts in similar cases. This creates a consistent and predictable legal framework. • Case-by-Case Development: Common law evolves through the resolution of individual cases. Judges make decisions based on the facts of each case, and these decisions contribute to the development of legal principles. • Flexibility: Common law is adaptable to changing circumstances. Judges can interpret and apply existing legal principles to new situations. • Judicial Discretion (rättslig bedömning): Judges have the authority to interpret statutes and make decisions based on their understanding of legal principles. • Emphasis on Individual Cases: Each case is considered on its own merits, and decisions are often based on the specific facts and circumstances of the case.