BBA 2112 INTERNATIONAL BUSINESS

TUTORIAL (23
rd
June 2014)
-ANSWER SCHEME-

QUESTION 1: Briefly explain the following terms:-
a) Common law
Common law is the foundation of the legal systems in the United Kingdom and its
former colonies, including the United States, Canada, Australia, India, New Zealand,
Barbados, Saint Kitts and Nevis, and Malaysia.
Common law is based on the cumulative wisdom of judges decisions on individual
cases through history. Common law has evolved differently in each common law
country. In addition to differences in case law, statutory laws, which are laws enacted
by legislative action, vary among common law countries.

b) Legal precedents
In common law legal systems, a precedent or authority is a legal case establishing a
principle or rule that a court or other judicial body adopts when deciding later cases
with similar issues or facts.

c) Extraterritoriality
1. Countries may also attempt to regulate business activities that are conducted
outside their borders.. Antiboycott provisions in U.S. trade law have extraterritorial
reach. The Helms-Burton Act is the most controversial application of
extraterritoriality affecting international business today. This act is directed against
international firms that traffic in the assets of U.S. companies that were confiscated
by the Cuban government when Castro assumed control in 1959. The act authorizes
the U.S. government and the former U.S. owners of the confiscated assets to take
action against new foreign owners.

2. Extraterritoriality is the state of being exempted from the jurisdiction of local law,
usually as the result of diplomatic negotiations. It can also be applied to physical
places, such as foreign embassies, military bases of foreign countries, or offices of the
United Nations. The three most common cases recognized today internationally relate
to the persons and belongings of foreign heads of state, the persons and belongings of
ambassadors and other diplomats, and ships in foreign waters.

d) Copyright
Copyright is a form of protection provided to the authors of "original works of
authorship" including literary, dramatic, musical, artistic, and certain other
intellectual works, both published and unpublished. The 1976 Copyright Act
generally gives the owner of copyright the exclusive right to reproduce the
copyrighted work, to prepare derivative works, to distribute copies or phonorecords
of the copyrighted work, to perform the copyrighted work publicly, or to display the
copyrighted work publicly.

The copyright protects the form of expression rather than the subject matter of the
writing. For example, a description of a machine could be copyrighted, but this would
only prevent others from copying the description; it would not prevent others from
writing a description of their own or from making and using the machine. Copyrights
are registered by the Copyright Office of the Library of Congress.

e) Patent
A patent for an invention is the grant of a property right to the inventor, issued by the
Patent and Trademark Office. The term of a new patent is 20 years from the date on
which the application for the patent was filed in the United States or, in special cases,
from the date an earlier related application was filed, subject to the payment of
maintenance fees. US patent grants are effective only within the US, US territories,
and US possessions.

The right conferred by the patent grant is, in the language of the statute and of the
grant itself, "the right to exclude others from making, using, offering for sale, or
selling" the invention in the United States or "importing" the invention into the
United States. What is granted is not the right to make, use, offer for sale, sell or
import, but the right to exclude others from making, using, offering for sale, selling or
importing the invention.

f) Trademark
A trademark is a word, name, symbol or device which is used in trade with goods to
indicate the source of the goods and to distinguish them from the goods of others. A
servicemark is the same as a trademark except that it identifies and distinguishes the
source of a service rather than a product. The terms "trademark" and "mark" are
commonly used to refer to both trademarks and servicemarks.

Trademark rights may be used to prevent others from using a confusingly similar
mark, but not to prevent others from making the same goods or from selling the same
goods or services under a clearly different mark. Trademarks which are used in
interstate or foreign commerce may be registered with the Patent and Trademark
Office. The registration procedure for trademarks and general information concerning
trademarks is described in a separate pamphlet entitled "Basic Facts about
Trademarks"
QUESTION 2: State and define methods that firms may use to resolve business disputes.
Negotiation
Negotiation is one of the most common processes in the world. It is a process whereby parties to
a dispute attempt to settle that dispute on their own and without the assistance or intervention of
a third party. Parties may either be represented by professional negotiators or conduct the
negotiation themselves.
There is no set process for this method of dispute resolution (although obviously some methods
work better than others!) and parties approach can range from extremely combative to
extremely facilitative depending on them and on the nature of the dispute.

Where no third party is involved there is no agreement or decision reached unless the parties
reach it themselves.

Mediation
Mediation is a process whereby parties are assisted in their negotiations by a neutral third party
(mediator) to identify the issues in dispute, generate options around these issues, consider
alternatives and to attempt to reach agreement that will meet the underlying needs and interests
of both or all parties to the dispute.
Mediators do not make decisions about who is right or wrong or what the best outcome should
be. A key advantage to mediation is that the parties have significant control over the end result.
Decision-making power stays in the parties' hands, and is not passed on to a judge or arbitrator.
Instead, a mediator helps bring the parties together by establishing a framework for the
negotiation within which all parties agree to participate.
The mediator has no determinative power (i.e cannot make a decision for the parties) and most
commonly, mediators do not offer substantive advice during the mediation. The mediator
however controls the process of the mediation, that is the steps and stages of the meeting, and the
parties themselves reach any agreement that is made.
Mediation is not an appropriate method of dispute resolution in all cases. This is particularly so
in cases of ongoing domestic violence, child abuse, or in certain other relationships of a serious
and complex nature.


Conciliation
Conciliation is a term often used interchangeably with mediation. Many statutory or judicial
bodies use conciliation conferences in an attempt to settle matters before their tribunal or court.
For example the Family Court conducts Conciliation Conferences chaired by a Registrar of the
Family Court as part of the court process. These conferences are very often described by the
court as being mediations.
Conciliators are usually recognized experts in the field of the dispute and are empowered to
suggest or give advice on likely settlement terms. It is not uncommon for the third party
conciliator to be very persuasive and to recommend strongly certain outcomes that they believe
are suitable.
Conciliators have no determinative powers.
Expert appraisal
Expert appraisal is a process where the parties nominate a mutually agreed third party, an expert
in the field of their dispute, and request that person give his or her opinion of the probable
outcome if the matter were to proceed to court.
The Expert has no determinative powers, but his or her opinion is often very persuasive as both
or all parties have already acknowledged the expert's status in the subject area.
Arbitration
Arbitration is a process in which the parties to a dispute present the facts of their case to a neutral
third party to make a determination on that dispute. The third party arbitrator is ordinarily a
recognized expert in the specific field of the dispute.

Arbitration is a process very close to judicial determination and parties adopt an adversarial (A
vs B) stance. The main differences between arbitration and litigation are that arbitration
proceedings and decisions are private, and the arbitrator is a third party expert specifically
chosen by the parties. Arbitral decisions (also known as awards) may be registered at a court to
give them the effect of a court order for the purposes of enforcement.

Litigation
Litigation is the most common form of dispute resolution in Australia. Surprisingly however,
most disputes are not settled by the court; indeed approximately 95% of civil cases commenced
in court are settled out of court prior to trial. Very often the methods of settling cases before trial
may involve negotiation, mediation or conciliation, expert appraisal, or a combination of these.
In the litigation process, parties submit their dispute to the relevant court and either a Magistrate
or a Judge decides the outcome of the dispute on their behalf. It is often a very time consuming
and costly process. For many people the process is confusing even with the assistance of
lawyers.
The judicial officer (the Magistrate or the Judge) acts as an impartial "umpire" throughout the
proceedings and ultimately makes a decision based on the facts and evidence placed before them.
Their decision forms an order of the court and is enforceable in the event any of the parties
breaches that order