1. Introduction to International Private Law
Introduction to International Private Law
International law can be divided into International Public Law and International Private Law.
International Public Law is concerned with such issues as the set-up of international
institutions, human rights and the extradition of nationals from another country tot heir
home country
The aim of International Private Law is to solve problems in international legal relationships
which arise from different legal systems. International Private Law provides a set of rules
either to decide the matter, or to refer the litigating parties to a national legal system where
the answer lies.
The rules of international Private Law provide ansers to such cases by focussing on aspects
such as the place of residence of defendant, the place where the employee usually works, or
the place of business of the seller and (sometimes) the nationality of one of the parties.
Introduction to European Law
European Law (EU Law) is also International Law. One of the main differences is the fact that
all EU law is based on one Treaty, the Treaty on the Functioning of the European Union
(TFEU).
Undertakings operating within one Member State of the EU, or within several EU countries,
have to be aware of the rules of EU Law. They have to operate within the legal bounds set by
the Treaty on the Functioning of the European Union (TFEU). The European Commission
investigates and decides whether or not conduct of such an untertaking is.
The main objective of the EU is to achieve economic integration through the use of a
common market where goods, persons, capital and services can circulate freely. A very
important condition to make it works is that Member States should give up their sovereignty
in those areas governed by the EU Treaty. As a result of this the EU becomes a so-called
supranational organisation, a ‘State above the Member States’, which has the authority to
make rules that bind the Member States of the EU, without their specific and prior consent.
EU Law takes precendence over national law and is thus applied uniformly throughout the
EU. In EU Law we can distinguish between directly applicable EU law and directly effective
EU law.
Member states have no control over what EU law is directly applicable – The Treaty on the
Functioning of the EU (TFEU) determines what EU law is to be directly applicable. Article 288
TFEU states that Regulations of the EU are always directly applicable and that a Regulation
shall have general application.
The provisions of directly effective EU law give rights to nationals of the EU who can rely on
them in a court in their own country in a lawsuit against another person or their own
national government. Any provision, such as, for example, a Treaty Article, only has a direct
effect if the ECJ has said it does. Only the ECJ can decide if EU law has direct effect.
The ECJ listed the requirements a Treaty Article must meet in order to have a direct effect:
, The provision must be clear and unambiguous (depending on the interpretation of
the text of the provision
The provision must be unconditional (there are no additional national measures
necessary in order fort he provision to be effective)
The provision must take effect without further acts of the EU or Member states.
From this moment, therefore, Art. 12 came directly into effect in all Member States of the
EU. Other examples of Articles of the TFEU which the ECJ has decided to have a direct effect
include:
Free movement of persons (Article 45 TFEU)
Free movement of goods (Articles 34, 35, 36 TFEU)
Right to equal pay for men and women (Article 157 TFEU)
Competition law (Articles 101, 102 TFEU)
The institutions of the EU
EU institutions are unique. They do not correspond to any other institutions at either
national or international level nor do they have any connection with Treaties other than the
Treaty on the Functioning of the European Union (TFEU). The institutions of the EU are:
European Parliament (Articles 223 – 234 TFEU)
Council of the EU (Articles 235, 236 TFEU)
Council of Ministers (Articles 237 – 243 TFEU)
European Commission (Articles 244 – 250 TFEU)
European Court of Justice (Articles 251 – 281 TFEU)
The European Parliament
Members of the European Parliament (EP) are directly elected by European citizens. The
number of representatives from each country varies according to the country. The elected
members take part in Parliamentary Committees dealing with specific aspects of EU policy
such as agriculture, international trade and transport.
The European Council of the EU
The moment the TFEU came into effect, the European Council became a new institution of
the EU. The European council supervises certain aspects of the legislative procedures of
Member States, such as criminal procedures (Articles 48, 68, 82, 83, 86 and 140 TFEU)
Council of Ministers
The Council of Ministers is also referred to as the Council of the European Union and has a
rotating membership of representatives at ministerial level. Each representative is
authorised to speak and act for his own government. Membership of the Council therefore
depends on the issue under discussion.
The functions of the Council are:
Making EU policy in all areas
Making decisions, based on proposals from the Commision
,The European Commission
The European Commission currently has 28 Members appointed by the agreement of the
governments of the Member States. The commission operates independently of any
government, body or person. Every commissioner has his or her own portfolio, such as cartel
issues, defence, international trade, agriculture.
The European Court of Justice
The European Court of Justice of the EU jurisdiction in only those cases specifically
prescribed by a provision in the TFEU. If the conditions of a Treaty Article dealing with
matters of jurisdiction are met, then the European Court of Justice has jurisdiction. As
verdicts of the European Court of Justice are very important, it is necessary to know which
Articles give jurisdiction tot he European Court of Justice most often.
Apart from the TFEU, there are several other types of legislation: Regulations, Directives and
Decisions.
Regulations are general rules that apply uniformly throughout the EU, and no further acts of
Member States are necessary. A Member State can change neither the effect of a Regulation
nor the way it applies in its own territory or to its nationals.
Directives require each Member State to implement the legislation in a Directive within a
certain period of time. They grant Member States discretionary powers as tot he means of
implementation. Note that a Member State can be penalized i fit does no implement the
Directive within the prescribed Period.
Decsions are individual acts, binding on a Member State or an individual or a group of
individuals. An example of this is the fine imposed by the Commission in a cartel case
According to Art. 267 (1) TFEU the ECJ shall have the legal right to give preliminary rulings
concerning: (a) the interpretation of this Treaty; and (b) the calidity and interpretation of
acts of the institutions of the Community. Art. 267 enables the European Court of Justice to
add new law to already existing EU law.
2. Negotiations
Reaching an agreement
This stage of negotiations os henceforth referred to as the preliminary stage, this being the
stage prior tot he final agreement between the two parties. This chapter will provide
answers to questions on the rights and obligations of the negotiating parties during this
preliminary stage.
An agreement between two parties is reached when one party accepts the offer of the
other. An agreement therefore consist of an offer and the acceptance of that offer. Before
an agreement is reached parties negotiate – often for weeks, months or even years - over
the content of their final agreement. In reaching agreement, the parties have to go through
several distinct procedures.
, An offer (or business proposal) is a legal offer, when three things occur:
1. An object is descirbed
2. A price is determined
3. The number of object is stated
When one or two elements are missing, a so-called invitation to enter into negotiations is
given to the other party.
An offer is a valid offer when it has reached the other party. This is often referred to as the
‘reception theory’. It does not matter when the offeree actually reads the offer.
If no period of time is mentioned and the offer is a verbal one then it has to be accepted
immediately or else it would no longe rexist in a legal sense. If the offer is in writing then it is
valid for a reasonable periode of time. How long this period will be depends on the object
mentioned in the offer and also on the persons involved.
Revoking an offer in this case would require that he is no longer interested in selling goods
and that he therefore withdraws his valid offer. In certain circumstances it is not possible to
revoke an offer, for example:
1. When the offer has already been accepted by the other party
2. When it can be deduced from the tekst of the offer itself that the offer is irrevocable.
It is also possible that any given circumstances of a case might make an offer
irrevocable.
Legal aspects of negotiations
What is the legal status of negotiations? A letter of intents is often used to establish the
current status of negotiations between the parties involved. It is also intended to be a draft
version of the final agreement. Parties have to be accurate about the way the content of the
letter of intent is drawn up.
What exactly does ‘taking the other party’s interests into consideration’ mean? It means
both parties have to give each other accurate information, and not mislead each other
during negotiations.
One should bear in mind that the use of terms such as ‘letter of intent’ or ‘gentlemen’s
agreement’ cannot prevent an actual legal agreement from arising from negotiations. It is
possible – even though parties have used phrases such as ‘letter of intent’ – that they have
in fact agreed on the essentials of a contract.
To ‘be held responsible’ could in fact mean that one party could be liable fort he other’s
costs and loss of profit mentioned earlier on. The name of the document is not the only issue
to determine whether or not there is an agreement. One needs to examine the
circumstances of the case.
Breaking off negotiations: breach of contract or tort?
In order to determine whether any legal problem could arise from breaking off negotiations
one needs to take a close look tot he fact and how the negotiations stood at the moment
they were broken off. As in the introductory case study, bear in mind that the name of the
document ‘letter of intent’, in itself is not important. That which is essential to an agreement
are agreements on the elements of price and object.
Introduction to International Private Law
International law can be divided into International Public Law and International Private Law.
International Public Law is concerned with such issues as the set-up of international
institutions, human rights and the extradition of nationals from another country tot heir
home country
The aim of International Private Law is to solve problems in international legal relationships
which arise from different legal systems. International Private Law provides a set of rules
either to decide the matter, or to refer the litigating parties to a national legal system where
the answer lies.
The rules of international Private Law provide ansers to such cases by focussing on aspects
such as the place of residence of defendant, the place where the employee usually works, or
the place of business of the seller and (sometimes) the nationality of one of the parties.
Introduction to European Law
European Law (EU Law) is also International Law. One of the main differences is the fact that
all EU law is based on one Treaty, the Treaty on the Functioning of the European Union
(TFEU).
Undertakings operating within one Member State of the EU, or within several EU countries,
have to be aware of the rules of EU Law. They have to operate within the legal bounds set by
the Treaty on the Functioning of the European Union (TFEU). The European Commission
investigates and decides whether or not conduct of such an untertaking is.
The main objective of the EU is to achieve economic integration through the use of a
common market where goods, persons, capital and services can circulate freely. A very
important condition to make it works is that Member States should give up their sovereignty
in those areas governed by the EU Treaty. As a result of this the EU becomes a so-called
supranational organisation, a ‘State above the Member States’, which has the authority to
make rules that bind the Member States of the EU, without their specific and prior consent.
EU Law takes precendence over national law and is thus applied uniformly throughout the
EU. In EU Law we can distinguish between directly applicable EU law and directly effective
EU law.
Member states have no control over what EU law is directly applicable – The Treaty on the
Functioning of the EU (TFEU) determines what EU law is to be directly applicable. Article 288
TFEU states that Regulations of the EU are always directly applicable and that a Regulation
shall have general application.
The provisions of directly effective EU law give rights to nationals of the EU who can rely on
them in a court in their own country in a lawsuit against another person or their own
national government. Any provision, such as, for example, a Treaty Article, only has a direct
effect if the ECJ has said it does. Only the ECJ can decide if EU law has direct effect.
The ECJ listed the requirements a Treaty Article must meet in order to have a direct effect:
, The provision must be clear and unambiguous (depending on the interpretation of
the text of the provision
The provision must be unconditional (there are no additional national measures
necessary in order fort he provision to be effective)
The provision must take effect without further acts of the EU or Member states.
From this moment, therefore, Art. 12 came directly into effect in all Member States of the
EU. Other examples of Articles of the TFEU which the ECJ has decided to have a direct effect
include:
Free movement of persons (Article 45 TFEU)
Free movement of goods (Articles 34, 35, 36 TFEU)
Right to equal pay for men and women (Article 157 TFEU)
Competition law (Articles 101, 102 TFEU)
The institutions of the EU
EU institutions are unique. They do not correspond to any other institutions at either
national or international level nor do they have any connection with Treaties other than the
Treaty on the Functioning of the European Union (TFEU). The institutions of the EU are:
European Parliament (Articles 223 – 234 TFEU)
Council of the EU (Articles 235, 236 TFEU)
Council of Ministers (Articles 237 – 243 TFEU)
European Commission (Articles 244 – 250 TFEU)
European Court of Justice (Articles 251 – 281 TFEU)
The European Parliament
Members of the European Parliament (EP) are directly elected by European citizens. The
number of representatives from each country varies according to the country. The elected
members take part in Parliamentary Committees dealing with specific aspects of EU policy
such as agriculture, international trade and transport.
The European Council of the EU
The moment the TFEU came into effect, the European Council became a new institution of
the EU. The European council supervises certain aspects of the legislative procedures of
Member States, such as criminal procedures (Articles 48, 68, 82, 83, 86 and 140 TFEU)
Council of Ministers
The Council of Ministers is also referred to as the Council of the European Union and has a
rotating membership of representatives at ministerial level. Each representative is
authorised to speak and act for his own government. Membership of the Council therefore
depends on the issue under discussion.
The functions of the Council are:
Making EU policy in all areas
Making decisions, based on proposals from the Commision
,The European Commission
The European Commission currently has 28 Members appointed by the agreement of the
governments of the Member States. The commission operates independently of any
government, body or person. Every commissioner has his or her own portfolio, such as cartel
issues, defence, international trade, agriculture.
The European Court of Justice
The European Court of Justice of the EU jurisdiction in only those cases specifically
prescribed by a provision in the TFEU. If the conditions of a Treaty Article dealing with
matters of jurisdiction are met, then the European Court of Justice has jurisdiction. As
verdicts of the European Court of Justice are very important, it is necessary to know which
Articles give jurisdiction tot he European Court of Justice most often.
Apart from the TFEU, there are several other types of legislation: Regulations, Directives and
Decisions.
Regulations are general rules that apply uniformly throughout the EU, and no further acts of
Member States are necessary. A Member State can change neither the effect of a Regulation
nor the way it applies in its own territory or to its nationals.
Directives require each Member State to implement the legislation in a Directive within a
certain period of time. They grant Member States discretionary powers as tot he means of
implementation. Note that a Member State can be penalized i fit does no implement the
Directive within the prescribed Period.
Decsions are individual acts, binding on a Member State or an individual or a group of
individuals. An example of this is the fine imposed by the Commission in a cartel case
According to Art. 267 (1) TFEU the ECJ shall have the legal right to give preliminary rulings
concerning: (a) the interpretation of this Treaty; and (b) the calidity and interpretation of
acts of the institutions of the Community. Art. 267 enables the European Court of Justice to
add new law to already existing EU law.
2. Negotiations
Reaching an agreement
This stage of negotiations os henceforth referred to as the preliminary stage, this being the
stage prior tot he final agreement between the two parties. This chapter will provide
answers to questions on the rights and obligations of the negotiating parties during this
preliminary stage.
An agreement between two parties is reached when one party accepts the offer of the
other. An agreement therefore consist of an offer and the acceptance of that offer. Before
an agreement is reached parties negotiate – often for weeks, months or even years - over
the content of their final agreement. In reaching agreement, the parties have to go through
several distinct procedures.
, An offer (or business proposal) is a legal offer, when three things occur:
1. An object is descirbed
2. A price is determined
3. The number of object is stated
When one or two elements are missing, a so-called invitation to enter into negotiations is
given to the other party.
An offer is a valid offer when it has reached the other party. This is often referred to as the
‘reception theory’. It does not matter when the offeree actually reads the offer.
If no period of time is mentioned and the offer is a verbal one then it has to be accepted
immediately or else it would no longe rexist in a legal sense. If the offer is in writing then it is
valid for a reasonable periode of time. How long this period will be depends on the object
mentioned in the offer and also on the persons involved.
Revoking an offer in this case would require that he is no longer interested in selling goods
and that he therefore withdraws his valid offer. In certain circumstances it is not possible to
revoke an offer, for example:
1. When the offer has already been accepted by the other party
2. When it can be deduced from the tekst of the offer itself that the offer is irrevocable.
It is also possible that any given circumstances of a case might make an offer
irrevocable.
Legal aspects of negotiations
What is the legal status of negotiations? A letter of intents is often used to establish the
current status of negotiations between the parties involved. It is also intended to be a draft
version of the final agreement. Parties have to be accurate about the way the content of the
letter of intent is drawn up.
What exactly does ‘taking the other party’s interests into consideration’ mean? It means
both parties have to give each other accurate information, and not mislead each other
during negotiations.
One should bear in mind that the use of terms such as ‘letter of intent’ or ‘gentlemen’s
agreement’ cannot prevent an actual legal agreement from arising from negotiations. It is
possible – even though parties have used phrases such as ‘letter of intent’ – that they have
in fact agreed on the essentials of a contract.
To ‘be held responsible’ could in fact mean that one party could be liable fort he other’s
costs and loss of profit mentioned earlier on. The name of the document is not the only issue
to determine whether or not there is an agreement. One needs to examine the
circumstances of the case.
Breaking off negotiations: breach of contract or tort?
In order to determine whether any legal problem could arise from breaking off negotiations
one needs to take a close look tot he fact and how the negotiations stood at the moment
they were broken off. As in the introductory case study, bear in mind that the name of the
document ‘letter of intent’, in itself is not important. That which is essential to an agreement
are agreements on the elements of price and object.
