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BUS706 International Business Law And Ethics

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BUS706 International Business Law And Ethics

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Course Code: BUS706
University: University Of The Sunshine Coast

MyAssignmentHelp.com is not sponsored or endorsed by this college or university

Country: Australia

Questions:

Part I 
Read United States 29 August 2000 Federal District Court [Pennsylvania] (Viva Vino Import v. Farnese Vini) at and answer the following questions by researching course material, the Internet and the sources provided in the document; you can ignore all the parts of the decision as it is related to tort or tortious actions:

Which court decided this case and when was is decided?
What type of court is deciding the case and is it an international court?
Which countries do the litigants come from?
What is an exclusive distribution agreement, define it!
Explain in your words what this sentence means: The issue before the Court was what law governed the issues set out in plaintiff’s complaint.
Explain in your words what this sentence means: When two foreign nations are signatories to the CISG, that Treaty governs contracts for the sale of goods between parties whose places of business are in such nations unless the contract contains a choice of law provision to the contrary.
Why is the CISG not applicable to this case?
What law does the plaintiff want to have apply to the dispute and what law does the defendant want to govern the contract? And why?
What are Pennsylvania’s choice of lawrules ?
Why is the judgement referring to Pennsylvanian law and not United States’ law?
What do Pennsylvania’s rules say about which law is applicable to this dispute?
How are the following connecting factors evaluated by the court to determine the applicable law:

(1) the place of contracting;
(2) the place of negotiation of the contract;
(3) the place of performance;
(4) the location of the subject matter of the contract; and
(5) the domicile, residence, nationality, place of incorporation, and place of business of the parties. and how would a civil law court treat the same factors and come to a decision as to what is the applicable law?

Why do courts often come to the conclusion that it is their own law that is applicable and not a foreign law? Discuss whether it would be better to simplify international private law and always apply the law of the forum to transnational disputes.

Part II 
Read the article by the Council on Hemispheric Affairs entitled Understanding the Petrobras Scandal at the Internet and the sources provided in the document:

What is the Council on Hemispheric Affairs (COHA) and what does it do?
Why has it produced this article?
What type of business actors were involved in this scandal?
What legalties does Petrobras, a multinational company, have with the Brazilian government?
If Petrobras makes a contract with Exxon Mobile, would this contract be governed by public or by private international law?
What are the two legal/ethical issues in this scandal, what are they and how do they interact?
Why is the issue of free competition so important from an economic and ethical point of view with regards to this scandal?
How are ordinary Brazilians affected by this scandal?
What is the link between corrupt directors of Petrobras and the Brazilian government officials?
What was the role of offshore companies in this scandal; what are offshore companies?
Why is this scandal international?
Explain why, looking at this scandal, it is so important for the judiciary (courts) to be independent from the executive (government) power.
Looking at this scandal, explain why many countries have laws punishing their own business community when they give bribes to officials in other countries?

Answers:

Part 1
Viva Vino Import Corporation v Farnese Vini S.r.l.
Q1 Answer: The United States District Court, Eastern District Of Pennsylvania decided this case. The captioned case has been decided on 29th August of 2000 (Viva Vino Import Corporation v Farnese Vini S.r.l CIV.A. 99-6384).
Q2 Answer: The court deciding the case is a Federal District Court of United States. The court is not an international court as it applies the law of the United States to decide the cases (Viva Vino Import Corporation v Farnese Vini S.r.l CIV.A. 99-6384).
Q3 Answer: The plaintiff is from the Country United States of America and the defendant is from the states of Italy (Viva Vino Import Corporation v Farnese Vini S.r.l CIV.A. 99-6384).
Q4 Answer: The supplier of a product appoints a distributor in a particular market place as the only distributer in such area. The supplier enters into an agreement with the distributor not to engage any other distributor or third party to distribute the product in that particular market area. The exclusive distribution agreement is also called as sole distribution agreement. Such agreement is subject to competition law and any other law may prescribe restraints of trade in such jurisdictions as from time to time (Viva Vino Import Corporation v Farnese Vini S.r.l CIV.A. 99-6384).
Q5 Answer: The sentence “the issue before the court was what law governed the issues set out in plaintiff’s case” means that what law or which law will be applied to resolve the issue raised by the plaintiff in the captioned case. The statement means the law, which the court will consider to decide the case (Viva Vino Import Corporation v Farnese Vini S.r.l CIV.A. 99-6384).
Q6 Answer: The sentence means that the treaty of CISG governs the contract of sale of goods between two or more parties who are signatories to the treaty. The treaty governs the dispute that arose between two contracting parties and helps to resolve the dispute unless there is an express provision in the contract about the application of the law of the country agreed upon by the parties (Viva Vino Import Corporation v Farnese Vini S.r.l CIV.A. 99-6384).
Q7 Answer: The CISG will not be applicable in this case because the CISG does not apply to the distributorship agreement. Moreover, the agreement did not state the sale of a specified quantity of goods at a particular price (Viva Vino Import Corporation v Farnese Vini S.r.l CIV.A. 99-6384).
Q8 Answer: The plaintiff is argued that to resolve the issues contended by the plaintiff. The court should apply the United Nations Convention on the Contracts for the International Sale of Goods or the Pennsylvania Law where as the defendant argued that the dispute shall be resolved applying the Italian law (Viva Vino Import Corporation v Farnese Vini S.r.l CIV.A. 99-6384).
Q9 Answer: Under the Pennsylvanian Choice of law rules the court determines the existence of the subject matter of the dispute between the parties. In determining such question, if the court find that the dispute that exist is false then the question of choice of law does not arise but if the matter of fact of the dispute is true then the court will determine the jurisdiction, which has a greater interest in the application of law to resolve the dispute. In determining the jurisdiction, the court should consider certain factors. The place the contract is made, the place where the contract has been negotiated, the place of performance of the contract, the located as mentioned in the subject matter of the contract as well as the residence, nationality and place of business of the parties to the contract are determined in choosing the correct application of the law (Schroeter 2013).
Q10 Answer: The application of the Pennsylvanian law instead of law of the United States is that United States is a federal state and the powers are divided among the states to deal with laws. Moreover, the place of contract and performance of the contract has been done in the district of Pennsylvania. Therefore, the law of Pennsylvania shall be applied in the case rather than the law of the United States (Viva Vino Import Corporation v Farnese Vini S.r.l CIV.A. 99-6384).
Q11 Answer:  Pennsylvanian law say that the court shall determine the existence of the subject matter of the dispute and if it finds the subject matter to be true then only it would determine which law would be applied. In determining the jurisdiction of the dispute, the court shall determine certain factors into consideration. The place of contract or the place of performance and the subject matter of contract are the factors, which the court shall determine (Viva Vino Import Corporation v Farnese Vini S.r.l CIV.A. 99-6384).
Q12 Answer: The court applied the factors to determine the jurisdiction of the subject matter of the dispute. The Court evaluated each factors to determine the jurisdiction. The court says that the place of contracting, negotiation, and the performance has been done in Pennsylvania. The Civil law court will treat the same factors into consideration and will arrive at the same decision that the law of the Pennsylvania will be applied.

The place of Contracting: As per the fact of the case the place of Contracting is in Pennsylvania (Schwenzer, 2013).
The Place of Negotiation of the Contract: The pace of negotiation of the contract is Pennsylvania (Schwenzer, 2013).
The place of performance: The place of performance of the contract id Pennsylvania (Schwenzer, 2013).
The location of the subject matter of the contract: Location of the contract is Pennsylvania (Schwenzer, 2013).
The domicile, residence, nationality, place of incorporation and place of business of the parties: The domicile and residence of the parties are Pennsylvania and Italy but all other factors are in Pennsylvania (Schwenzer, 2013).

Q13 Answer: The court determines the place of the contract and the place of the performance of the contract to conclude which law shall be applied. In determining such factors the court often come to the conclusion that it is their own law that it is to be applied rather the foreign law (Viva Vino Import Corporation v Farnese Vini S.r.l CIV.A. 99-6384).
In dispute between the parties to the contract, if there is an absence of provision as to the forum or applicable law which shall be applied to resolve the dispute, it is better to apply private international law to determine the forum in case of such transnational dispute.
Part II
Council on Hemispheric Affairs
Q1 Answer: The Council on Hemispheric Affairs is an non-governmental organization establish to promote the interest of the American Hemisphere and to enhance the inter-American relationship by taking the issues into concern and to reinforce the relationship. COHA is a democratic and non-political organization (Burges, 2013).
Q2 Answer: The council has produced the article to aware other countries of the same community to stay away from such scandals as well as to show the active participation of COHA in the scandal (Burges, 2013).
Q3 Answer: The business actors involved in the scandal is from the business of petrol and oil business.
Q4 Answer: The Brazilian government holds sixty-five percent shares of the company Petrobras. These legal ties the company has with the Brazilian Government (Burges, 2013).
Q5 Answer: The contract between Petrobras and Exxon Mobil shall be governed by the private international law (Burges, 2013).
Q6 Answer: The Two legal or ethical issues involved in the Petrobras scandal was illegal cartel and money laundering. Cartel means a group of producers or manufacturers aim to increase their profits by involving in price fixing and other restrictive trade practices whereas the money laundering is the concealment of the origin of the illegally earned money by transferring from foreign banks or business. The official of the company and other government officials were involved in illegal cartel and money laundering which gave rise to the scandal (Burges, 2013).
Q7 Answer: The issue of free competition is important from the view point of this scandal because both from economic and ethical view point it benefits the efficient use of resources in the market. In the free competition market, the suppliers invest their resources in the most profitable market and this motivates the business enterprise to use their resources in an efficient way. The consumers will also be able to satisfy their needs within their given budget (Marcuzzo 2017).
Q8 Answer: Due to this scandal, life of many ordinary people became miserable. Many people were left out of their job as many big projects of the business enterprise involved in the scandal (Burges, 2013).
Q9 Answer: The corrupt officials of the Petrobras have bribed the government officials to form the illegal cartel (Burges, 2013).
Q10 Answer: The offshore companies have entered into cartel with Petrobras and the Brazilian Government to get high profits (Burges, 2013).
Q11 Answer: There is an involvement of foreign officials of other offshore companies and foreign companies in the scandal, which made it an international scandal (Burges, 2013).
Q12 Answer: Judiciary should always be independent from the executive to provide fair and equal justice (Burges, 2013).
Q13 Answer: The countries should punish officials who bribe foreign officials because it will help in nations to indulge in such scandals and lost its reputation in the international market (Burges, 2013).
Reference:
Burges, S., 2013. Post-Chávez test for Brazil leadership Senior Research fellow at the council on hemispheric affairs as well as an assistant professor in international relations at the Australian National University. Recuperado de: https://www. coha. org/post-chavez-test-forbrazil-leadership.
Marcuzzo do Canto Cavalheiro, C., 2017. Assessing the Brazilian-Chilean bilateral relations: public diplomacy, nation branding and presidential diplomacy (Doctoral dissertation).
Schroeter, U.G., 2013. SPECIAL TOPICS UNDER THE CISG: DEFINING THE BORDERS OF UNIFORM INTERNATIONAL CONTRACT LAW: THE CISG AND REMEDIES FOR INNOCENT, NEGLIGENT, OR FRAUDULENT MISREPRESENTATION. Vill. L. Rev., 58, pp.553-869. 
Schwenzer, I., 2013. Commentary on the UN Convention on the International Sale of Goods (CISG). Oxford University Press.

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