Task 1
The question is concerned with the definition of business, international business and international business law. The question generally asks the scope and the 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 of international business law and 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. (TRIPS Agreement)
The essay plan would include:
• An introduction of business, international business and international business law, with an explanation of the foreign operation methods.
• An examination of the scope and the purpose of international business law.
• An examination on method for getting into a business in a foreign country.
• An examination of presumptive issue in domestic laws when a company is willing to enter a business in a foreign country.
• A definition of intellectual property and explanation of trademarks, patents, copyright and trade secrets as well as geographical indications and industrial designs.
• An examination on how the World Trade Organisation helps to achieve purpose of international business law with the TRIPS Agreement in intellectual property area.
• A conclusion which generally illustrates benefits of the TRIPS Agreement in international business law.
My main aims and objectives are:
• 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 such as trademark, copyright, patent, trade secrets alongside geographical indications and industrial designs
• To investigate the necessity of international regulation in business such as reasons for harmonisation and standardisation in worldwide
• To identify and explain possible deficiencies in protection of intellectual property in domestic laws such as lack of protection of trade secrets
• To explore which type of intellectual property was regulated under the TRIPS Agreement by the World Trade Organisation such as trademark and copyright
• To analyse how the TRIPS Agreement serves the purpose of international business law
• 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 laws
• To draw conclusions regarding the efficacy of the TRIPS Agreement in achieving the above goals
Task 2
I seek to use non-empirical methods in my research. I am planning to use both primary and secondary sources which are related to the title. First of all, I began my research with secondary source such as textbooks because mostly textbooks are beneficial source for definition of business, international business and international business law. Also textbook will help me for explanation of international business law’s scope and purpose and the TRIPS Agreement’s features. I will go to the Lanchester Library for collecting related textbooks and online books on the Internet. For instance, to find a definition of business, international business and international business law, I will use textbooks such as (Schaffer, R Agusti, F and Earle, B 2009), (DiMatteo, L A 2003) and (Bradgate, R and White, F 2008). In addition to, all these books have a chapter related to the TRIPS Agreement and intellectual property. Also (Goode, R Kronke, H and McKendrick, E 2007) will specifically help me to understand business law and its history. I intend to use following textbooks to understand the scope, the purpose and the features of the TRIPS Agreement; (Gervais, J D 2008) and (Correa, M C 2000).
(Welch, L S Benito, G R G and Petersen, B 2007) will help me to explain entering a foreign market with franchising and licensing which are related to intellectual property.
The Agreement on Trade-Related Aspects of Intellectual Property Rights as known the TRIPS Agreement is the most important primary source for my research because the question is directly related to the treaty.
I will explain important articles in the treaty with journal articles. As a student of Coventry University, I have a legitimate right to use several types of databases such as HeinOnline, Westlaw, LexisNexis, Academic Search Complete and Business Source Complete. To understand the purpose of international business law and the TRIPS Agreement, I will use a journal article by Holwick, S (2000).
The one of the function of the TRIPS Agreement is the dispute settlement which can be found in Article 64 in that treaty and a journal articles by Naigen, Z (2003) will help me to explain this feature. Another function in Article 67 of TRIPS is important because this article lays some duties to developed countries such as technical cooperation, to better understand this, I will use a journal article by Koepsel, K M (2004). When I am investigating the effect of TRIPS on intellectual property rights on countries, I will use a journal article by Cardwell, R and Ghazalian, P L (2012) and Schmidt, J (1998). I intent to use these article journals because they will help to understand the scope and the purpose of international business law.
Lastly, I have to mention the case of (Carell v. The Shubert Organisation, Inc.) for clarifying the importance of International treaties. Another case that I will mention is case of (Australia v Indonesia) to examine dispute settlement are related to intellectual property in the WTO.
Task 3
"International business is claimed to be as old as the history of mankind itself”. Even Code of Hammurabi, which is Babylonian law code, contained some rules which were related to business in back to 1754 BC in Mesopotamia. A business produces goods or provides services by any organisation in return for money. Goods are physical products such as phones, cars but services are non-physical products such as cleaning services or security services. 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 crosses international borders. Daniels and Radebaugh have expressed “all business transactions that involve two or more countries”. Also Robock and Simmonds have described international business as "a field of management training that deals with the special features of business activities that cross national boundaries". A company, which is willing to enter a business in a foreign country, has some options for doing 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. trademarks, patents, and copyrights).
Aiding to perform the international business is the duty of international business law. There are various kinds of sources of international business law. Article of 38 of the Statue of the International Court of Justice (1945) illustrates the sources of international law;
“a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”
Associated with business and international business, the law has a purpose of ruling trusty standards so that the companies pursue in their domestic or international transactions. It being said one of the aims of international business law is to set up fundamental business practices’ standards by treaties in all around the world. Treaties mean international agreements with more importance in international relations. Like the Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) known as the TRIPS Agreement.
The TRIPS Agreement constitutes minimum standards for the protection of intellectual 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. David Nimmer described the TRIPS as “the highest expression to date of binding intellectual property law in the international area”. Additionally, these kinds of treaties also serve to minimize the risk in international business transaction with the purpose of harmonisation because every international business transaction may carry some risks such as differences between legislations of countries. Especially these risks might occur in less developed countries and the TRIPS Agreement creates a balance between developed countries and developing or less develop countries. Because of the differences between legislation, ratification of the TRIPS Agreement has a significant role in intellectual property rights’ reforms in developing countries or less developed countries. In addition to, even ratifying the TRIPS Agreement is essential for international peace. Closely related to this point, one of the important aim of the Agreement is to provide technical cooperation between developed and developing countries which are regulated in Article 67. Article 67 is not only important article of the TRIPS, another important article of the TRIPS Agreement is the dispute settlement which serves the standardisation of international business as well. Because when the dispute arises, it is a chance to check to stability between the TRIPS Agreement and a member’s domestic intellectual property rights. By this way, developing countries will realise their deficiency in domestic law. Sixteen countries applied for the dispute settlement which is related to intellectual property, so far and the most countries who applied 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, according to statistics from the WTO, it is possible to say that disputes mostly appeared between developed countries. This essay will widely examine the scope and the purpose of the international business law, and in this respect it is hoped to explain how international business law achieved its purpose with the TRIPS Agreement is related to intellectual property.
Task 4
Primary Sources:
International Conventions
The Agreement on Trade-Related Aspects of Intellectual Property Rights (1994)
Statue of the International Court of Justice (1945)
Cases
Carell v. The Shubert Organisation, Inc. 104 F. Supp. 2d 236 U.S. Dist. LEXIS 8807 (S.D.N.Y 2000)
Indonesia v Australia (2014) DS467 (Available on https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds467_e.htm)
Secondary Sources:
Textbooks
Correa, M C Intellectual Property Rights, the WTO and developing countries: the TRIPS Agreement and Policy Options 2nd ed (Zed 2000)
DiMatteo, L A The law of International Business Transactions 1st ed (Thomson Learning 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 1st ed (OUP 2007)
Harrison, A Dalkiran, E and Elsey, E International Business 1st ed (OUP 2000)
Hotchkiss, C International Law for Business 1st ed (Mc Graw Hill Publishers 1994)
Moens, G and Gillies, P International Trade and Business: Law, Policy and Ethics 2nd ed (Routledge 2006)
Robock, S H and Simmonds, K International Business and Multinational Enterprises 1st ed (Richard D. Irwin 1989)
Schaffer, R Agusti, F and Earle, B International Business Law and Its Environment 7th ed (South-Western 2009)
Welch, L S Benito, G R G and Petersen, B Foreign Operation Methods 1st ed (Cheltenham 2007)
Journal Articles
Cardwell, R and Ghazalian, P L ‘The Effects of the TRIPS Agreement on International Protection of Intellectual Property Rights’ [2012] 26 ITJ 19
Holwick, S ‘Developing Nations and the Agreement on Trade-Related Aspects of Intellectual Property Rights’ [2000] 11 CJIELP 49
Koepsel, K M ‘How Do Developed Countries Meet Their Obligations under Article 67 of the Trips Agreement’ [2004] 44 TJLT 167
Naigen, Z ‘Dispute Settlement under the Trips Agreement from the Perspective of Treaty Interpretation’ [2003] 17 TICLJ 199
Nimmer, D ‘The end of Copyright’ [1995] 48 VLR 1385
Schmidt, J ‘The International Protection of Trademarks After the TRIPS Agreement’ [1998] DJCL 189
Websites
‘New figures reveal record breaking year for startups’ available on <http://www.startupbritain.org/what-s-new/?option=com_sub&view=onenews&id=14> (last accessed on 27.11.2015)
Map of disputes between WTO Members available on <https://www.wto.org/english/tratop_e/dispu_e/dispu_maps_e.htm> (last accessed on 25.11.2015)