BBA 2112 INTERNATIONAL BUSINESSTUTORIAL (23rd June 2014)

-ANSWER SCHEME-

QUESTION 1: Briefly explain the following terms:-

a) Common lawCommon 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 precedentsIn 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) Extraterritoriality1. 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) CopyrightCopyright 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intellectual works, both published and unpublished.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) PatentA 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) TrademarkA 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