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Essay: Scope and purpose of international business law?

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  • Published: 15 October 2019*
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What is the scope and purpose of international business law? By the use of one area of international business law explain how it has achieved any of its purposes.
Task 1
The question is concerned with the definition of business, international business and international business law. The question generally asks the scope and purpose of international business law. Specifically, it asks how it has achieved any of international business law’s purpose by using area of intellectual property rights of international business law. It will require knowledge of intellectual property such as trademark, patent, trade secrets, copyright, geographical indications, industrial designs, the World Trade Organisation (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (1994). (hereafter the TRIPS Agreement)
The essay plan would include:
• An introduction of business, international business and international business law;
• An examination of the scope and purpose of international business law;
• An examination on method for getting into a business in a foreign country such as franchising and licensing;
• A definition of intellectual property and explanation of trademarks, patents, copyright and trade secrets as well as geographical indications and industrial designs;
• An examination of the presumptive issues in domestic law when a company is willing to enter foreign markets;
• An examination on how the World Trade Organisation helps to achieve the purpose of international business law with the TRIPS Agreement in the area of intellectual property rights;
• A conclusion which generally illustrates benefits of the TRIPS Agreement in international business law.
My main aims and objectives are:
• To define business, international business and international business law
• To categorise different type of operation methods which are trade, investment, transfer of intellectual property in business
• To explain the concept of intellectual property and the analysis of types of intellectual property rights such as trademark, copyright, patent, trade secrets alongside geographical indications and industrial designs
• To identify and explain possible deficiencies in protection of intellectual property rights in domestic law such as lack of a legal protection of trade secrets
• To explore which type of intellectual property rights was covered by the TRIPS Agreement such as trademark, copyright and patent
• To examine the enforcement and the dispute settlement of the TRIPS Agreement
• To examine the benefits of the TRIPS Agreement after the adoption into the domestic law and how the TRIPS Agreement serves the purpose of international business law
• To draw conclusions regarding the efficacy of the TRIPS Agreement in achieving the above goals
Task 2
Non-empirical methods will be leading my research. Primary and secondary sources, which are related to the title, will be both used in this essay. Firstly, I began my research with a secondary source which is textbooks because most of the textbooks are beneficial resources for the definition of business, international business and international business law. Textbooks will also help me for the explanation of international business law’s scope and purpose and the TRIPS Agreement’s features. The Lanchester Library will be the main library for collecting the data related to my research, both physical and online books. For instance, to find a definition of business, international business and international business law, (Schaffer, R Agusti, F and Earle, B 2009, Chapter 1), (DiMatteo, A. L 2003, Part 1) and (Bradgate, R and White, F 2008, Part IV) are helpful for my essay. All these books also have a chapter about the TRIPS Agreement and intellectual property rights. Additionally, (Goode, R Kronke, H and McKendrick, E 2007, Chapter 1,2,3) will specifically help me to understand the history of business law and the necessity of international business law. Following textbooks is useful to understand the scope, the purpose and features of the TRIPS Agreement; (Gervais, J. D 2008) and (Correa, M. C 2000, Chapter II and V). Furthermore, European Commission’s official publications and United Nations’ publications are unique sources related to the TRIPS Agreement.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) known as the TRIPS Agreement is the most important primary source for my research because the essay is directly related to the treaty.
Important articles will be explained in the treaty with the help of journal articles. As a student of Coventry University, I have a legitimate right to use several types of legal databases such as HeinOnline, Lawtel, Westlaw, LexisNexis, Academic Search Complete and Business Source Complete. To understand the purpose of international business law and the TRIPS Agreement’s features, I will use the journal article by Holwick, S (2000). One of the features of the TRIPS Agreement is the dispute settlement which can be found in Article 64 in that treaty. The journal article by Naigen, Z (2003) will help me to explain this features. The function which is technical cooperation can be found in Article 67 of TRIPS. To understand this article better, the journal article by Koepsel, K. M (2004) is important. When investigating the effect of TRIPS on intellectual property rights on countries, I will use the journal article by Cardwell, R and Ghazalian, L. P (2012) and Schmidt, J (1998). I intend to use these journals as support to the research because they will help to understand the scope and purpose of international business law.
Lastly, the case of (Comite Interprofessional du Vin de Champagne v. Wineworths Group, Ltd.) is substantial to understand intellectual property rights in business. Another case that I will mention is the case of (Indonesia v Australia) to examine the dispute settlement function which is related to intellectual property rights of the WTO.
Task 3
A business produces goods or provides services by any organisation in return for money. Goods are physical items such as phones, cars but services are non-physical items such as cleaning services or security services. Business’ history dates back to ancient times, even the Code of Hammurabi, which is Babylonian law code, contained some rules about business in back to 1900 BC in Mesopotamia. According to Companies House, there has been an increase in the number of businesses last year when compared to the numbers in 2012 with 484,224 and 2013 with 526,447. This statistic from Companies House shows that how the business significantly develops in the UK. Another character of business is international business which contains two or more countries, moreover, ‘International business is claimed to be as old as the history of mankind itself’. As Harrison, et al define international business as ‘any business activity organized and carried out across national borders by business firms in pursuit of their stated aims and objectives’. A company, which is willing to enter a foreign market, has some options to do business in that country. So, it is possible to divide international business into three categories which are trade, investment (e.g. direct or indirect) and intellectual licensing of technology and intellectual property (e.g. patents, trademarks, and copyrights).
Related to business and international business, the law has a purpose of ruling trusty standards so that the companies can pursue in their domestic or international transactions. That being said aiding to perform the international business is the duty of international business law. There are various kinds of sources of international business law. The article of 38(1) (a) of the Statue of the International Court of Justice (1945) illustrates the source of international law as ‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting states’. Treaties or conventions help international business for setting up principal business’ standards in all around the world. Treaties mean international agreements with more importance in international relations such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (1994). (hereafter the TRIPS Agreement)
The TRIPS Agreement constitutes minimum standards for the protection of intellectual property rights such as copyright, trademarks, geographical indications, patent and industrial design, integrated circuit layout design and undisclosed information. In other words, the TRIPS Agreement serves to standardisation of intellectual property rights. David Nimmer described the TRIPS Agreement as ‘the highest expression to date of binding intellectual property law in the international area’. Additionally, the TRIPS Agreement serve to minimise the risk in international business transaction with the purpose of standardisation because every international business transaction may carry some risks such as differences between legislations. By reason of the differences between legislations, ratification of the TRIPS Agreement has a significant role for standardisation in intellectual property rights in developing or less developed countries. In addition, even ratifying the TRIPS Agreement is essential for international peace. Closely related to this point, one of the important functions of the TRIPS Agreement is to provide technical cooperation between developed and developing or less developed countries which are regulated in Article 67. Another important feature of the TRIPS Agreement is the dispute settlement which serves the standardisation of international business as well. When the dispute arises, it is a chance to check the harmony between the TRIPS Agreement and a member’s domestic intellectual property law. By this way, developing countries will realise their deficiency in domestic law. According to statistics from the WTO, sixteen countries have applied for the dispute settlement which is related to intellectual property rights so far and the countries who have applied with the highest numbers are Australia with eight disputes, European Communities with seven disputes and the USA with six disputes, although, only Pakistan, India and Indonesia applied for the dispute settlement as less developed countries. Surprisingly, disputes have appeared between developed countries most. This essay will critically examine the scope and purpose of international business law, and in this respect it hopes to explain how international business law achieved its purpose with the TRIPS Agreement related to intellectual property rights.
Task 4
Primary Sources:
International Treaties and Conventions
Statue of the International Court of Justice (1945)
The Agreement on Trade-Related Aspects of Intellectual Property Rights (1994)
Cases
Comite Interprofessional du Vin de Champagne v. Wineworths Group, Ltd. 2 N.Z.L.R 432 (1991)
Australia – Tobacco Plain Packaging (Indonesia) (2013), Dispute Number: DS467, Available at <https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds467_e.htm> (last accessed 24.11.2015)
Secondary Sources:
Textbooks
Correa, M. C Intellectual Property Rights, the WTO and developing countries: the TRIPS Agreement and Policy Options (Zed 2000)
DiMatteo, A. L The Law of International Business Transactions (South-Western Pub 2003)
Gervais, J. D The TRIPS Agreement: Drafting History and Analysis 3rd ed (Sweet & Maxwell 2008)
Goode, R Kronke, H and McKendrick, E Transnational Commercial Law (OUP 2007)
Harrison, A Dalkiran, E and Elsey, E International Business (OUP 2000)
Saha, R. T Business Organisation and Management (Tata McGraw-Hill 2009)
Schaffer, R Agusti, F and Earle, B International Business Law and Its Environment 7th ed (South-Western 2009)
Vaghefi, M. R Paulson, K. S and Tomlinson, H. W International Business 2nd ed (Taylor & Francis 1991)
Journal Articles
Cardwell, R and Ghazalian, L. P ‘The Effects of the TRIPS Agreement on International Protection of Intellectual Property Rights’ (2012) 26 (1) ITJ 19
Koepsel, K. M ‘How Do Developed Countries Meet Their Obligations under Article 67 of the Trips Agreement’ (2004) 44 (2) TJLT 167
Naigen, Z ‘Dispute Settlement under the Trips Agreement from the Perspective of Treaty Interpretation’ (2003) 17 (1) TICLJ 199
Nimmer, D ‘The end of Copyright’ (1995) 48 (5) VLR 1385
Schmidt, J ‘The International Protection of Trademarks After the TRIPS Agreement’ (1998) 9 (1) DJCL 189
Websites
‘Map of disputes between WTO Members’, Available at <https://www.wto.org/english/tratop_e/dispu_e/dispu_maps_e.htm> (last accessed 25.11.2015)
‘New figures reveal record breaking year for startups’, Available at <http://www.startupbritain.org/what-s-new/?option=com_sub&view=onenews&id=14> (last accessed 23.11.2015)
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