Chat with us, powered by LiveChat You will aid Vice President Dodger of Colossal Corporation by analyzing complicated issues that have arisen in different subsidiaries of the company. These situations require the | Wridemy

You will aid Vice President Dodger of Colossal Corporation by analyzing complicated issues that have arisen in different subsidiaries of the company. These situations require the

You will aid Vice President Dodger of Colossal Corporation by analyzing complicated issues that have arisen in different subsidiaries of the company. These situations require the

 You will aid Vice President Dodger of Colossal Corporation by analyzing complicated issues that have arisen in different subsidiaries of the company. These situations require the company to make legal and ethical decisions. You will be presented with a number of readings to familiarize yourself with relevant laws and with resources that guide you in making ethical decisions. You will produce a report for the VP that includes specific recommendations based on what you have found in the readings  

 Review the competencies below:

 

  • Organize document or presentation clearly in a manner that promotes understanding and meets the requirements of the assignment.
  • Provide sufficient, correctly cited support that substantiates the writer's ideas.
  • Follow conventions of Standard Written English.
  • Create neat and professional looking documents appropriate for the project or presentation.
  • Identify and clearly explain the issue, question, or problem under critical consideration.
  • Locate and access sufficient information to investigate the issue or problem.
  • Evaluate the information in a logical and organized manner to determine its value and relevance to the problem.
  • Consider and analyze information in context to the issue or problem.
  • Develop well-reasoned ideas, conclusions or decisions, checking them against relevant criteria and benchmarks.
  • Develop constructive resolutions for ethical dilemmas based on application of ethical theories, principles and models.
  • Assess the implications of legal, ethical and cultural (national) standards on an organization's operations in global markets and make recommendations for appropriate actions.
  • Resolve workplace conflicts using the optimal approaches and techniques for the situation and involved parties.
  • Analyze the implications of contract law and make recommendations to support business decisions.
  • Analyze the implications of civil or criminal wrongs and of product or service liability laws, and make recommendations to support business decisions.
  • Analyze the impact of international and foreign laws on US organizations acting domestically and abroad.
  • Analyze the utility of various forms of dispute resolution and make recommendations to support business decisions.
  • Apply the principles of employment law for ethical practices and risk mitigation.

The Turnip Plaza Hotel

Corporate Logo of Colossal Corporation

Notice: Contains Confidential Information

  Mark Piper was employed for several years as a tour guide at the Turnip Plaza Hotel in Port Austin, Michigan. Turnip Plaza is one of Colossal Corporation's luxury hotel holdings, strategically located near Lake Huron's famous Turnip Rock. Over the years, Mark developed a reputation as one of the most skillful tour guides in Michigan. He would guide tourists through extreme kayaking, hiking, and camping adventures in and around the Great Lakes. He was often requested by name by tourists visiting the hotel and was featured on extreme sports television. His high adventure kayaking tours brought in significant revenue for the hotel.

One month ago, Mark was approached by Stacey Nguyen, the manager of the Huron Overnight Inn—a rival company of Turnip Plaza. Stacey offered Mark a substantial salary increase to leave Turnip Plaza and come to work for her. Mark agreed to think about this offer and get back to Stacey in 48 hours. When he returned to Turnip Plaza, he asked several of his colleagues what they thought about the offer. One of them immediately went to Turnip Plaza's manager, Edward Griffin, and told him the details of Stacey's offer to Mark.

Upon hearing of the offer, Edward called Mark into his office and said: "If you stay with Turnip Plaza, I promise that next month you will receive a promotion with a 50 percent raise and a guaranteed contract for a two-year term." This sounded good to Mark, and he turned down the offer from Stacey to stay with Turnip Plaza. However, last week, shortly before Mark was to receive his new contract, he was dismissed from Turnip Plaza because of corporate restructuring due to concerns about the increased liability risks of managing high adventure tours through Colossal's hotels. Although Mark has not taken any formal action at this point, the vice president is concerned that Mark might try to hold Turnip Plaza to Edward's promise.

Your task is to research the legal and ethical issues associated with this situation and write a report to the vice president answering the following questions:

1. What legal theories might Mark use to try to legally enforce Edward's promise? Explain the elements of these theories and how they apply to the facts of this scenario.

2. If Mark were to file a lawsuit and win, what sort of damages or other remedies might he be entitled to? Include your reasoning and any evidence that led you to your conclusions.

3. Finally, regardless of the legal implications, the vice president would like your view on the ethical issues. Does Turnip Plaza have an ethical obligation to fulfill the promise made by Edward to Mark? Is it right to lay off Mark under these circumstances? What should Turnip Plaza do from an ethical perspective? Use ethical theory and principles to analyze these questions.

image1.png

,

International Law

by Robert C. Goodwin

Introduction to Law

There are many definitions of law, each of which focuses on a different aspect of the subject.  Black’s Law Dictionary (n.d), for example, defines law in a way that emphasizes it as applicable to people as well as physical phenomena: “That which is laid down, ordained, or established. A rule or method according to which phenomena or actions coexist or follow one another.”

Webster’s Third New International Dictionary (1961) is less broad, focuses on people, adds the enforcement concept, and emphasizes the notion of law as an expression of the customs of the people: “A binding custom or practice of a community. A rule or mode of conduct or action that is prescribed or formally recognized as binding by a supreme controlling authority or is made obligatory by a sanction made, recognized, or enforced by the controlling authority.”

An even more specific definition is, law consists of the entire body of principles that govern conduct, the observance of which can be enforced in courts.

Man-made law is necessary to provide not only rules of conduct but also the machinery and procedures for enforcing right conduct, for punishing wrongful acts, and for settling disputes that arise even when both parties are motivated by good intentions. In its broadest sense, the purpose of law is to provide order, stability, and justice. It is often said that procedure is the heart of the law. There are many instances where the substantive words of the law appear to give someone a right but they are unable to exercise that right for procedural reasons. Something as simple as failing to file a lawsuit within the time limits set by the local court rules can prevent someone from receiving the remedy they thought they had. We should always keep this distinction between right and remedy in mind as we review the various materials in this course.

The Legal System

Each nation has its own legal system. Thus, the institutions that create the laws (such as bureaucracies, courts, legislatures, a king) can differ significantly from country to country. So also will the scope of the substantive rules enacted by these institutions, which define the rights and responsibilities of the citizens of the nation. The rules relating to what constitutes criminal conduct, when a contract is considered to be formed, what activities of private parties are subject to government control, and myriad other substantive regulations of human conduct all differ from country to country. A final aspect of a nation’s legal system consists of the procedural rules that govern enforcement of the substantive ones. As noted, one doesn’t truly have a right without a remedy, and it is the remedy that is defined by procedural law. These rules encompass everything from the rules of evidence to the right to be represented by a lawyer and are a critical component of a legal system.

While it is a fact that each nation has its own legal system, it is also true that legal systems can be grouped into major categories, with the individual nations within a category having similar structures to their legal systems. The two major legal systems in the world are the common law legal system and the civil law legal system.

Civil Law and Common Law

A civil law country is one whose legal system reflects, however remotely, the principles of classical Roman law as codified by the emperor Justinian I in the sixth century. While modern countries that are part of the civil law system have substantive laws that differ greatly from the law at the time of the Romans, the structure of the system and its approach to legal problem solving date from the sixth century. We may be more familiar with the Napoleonic Code of 1804, which often is considered the father of civil law codes, but it too was a direct descendant of Roman law.

Common law, on the other hand, owes its origins to the slow development of royal courts after the Norman Conquest of England in 1066. Gradually, the expansion of royal power at the expense of the local barons resulted in the ascendancy of royal institutions and particularly the royal courts, where citizens perceived the likelihood of justice at the hand of the King’s judges as greater than that of the purely local tribunals, which had existed before the conquest. The term common law owes its origins to the fact that it was the law applied by royal or national courts and hence "common" to the entire country as opposed to the customary law of the local courts.

More important for us than the origins of these two major legal systems are the questions: which countries are influenced by which system, how do the two systems differ, and what do the differences mean for international business, if anything?

Common law is applied in Great Britain and almost all of the countries where Great Britain had a significant influence. Thus, the United States, Canada, Australia, India, and most other former British colonies use the common law system. The civil law system is centered in continental Europe and prevalent in South America and much of Asia, including Japan.

While in recent years the differences between the two major legal systems have narrowed somewhat, with countries identified as common law or civil law borrowing legal approaches from each other and being influenced by the same social movements and cultural changes, there nevertheless are significant differences that should be highlighted. The most fundamental difference rests in the very nature of how law is made.

In the civil law tradition, law is conceived as a rule of conduct expressed in written codes. Nothing is law unless it is written down in such a code. The expression of the law is stated in broad general terms, and a judge, when deciding a case, must find a basis for the decision in the principles expressed in the code. While the judge may refer readily to legal scholars for assistance in doing so, reference to other similar cases handled by other judges would ordinarily not be part of the process. Rather, the civil law judge would apply deductive reasoning—solving the case by deduction from a principle expressed in the code.

Common law focuses heavily on cases. While common law countries have codes (any statute enacted by a legislative body would fit this definition) the law inferred by prior cases (i.e., judicial precedents) is equally as important as the statute. Common law lawyers and judges reason by analogy to prior cases, and if a prior case decided by a higher court is essentially the same in its factual pattern then the case will control the outcome under the principle of  stare decisis (i.e., that past decisions are generally binding for the resolution of factually similar cases). Thus, the role of judges is critical, and the common law is often referred to as "judge-made law." One of the facets of common law which often surprises those familiar with the civil law tradition is that there are many areas of the common law where there is no written statute at all—only prior cases. In order to know the state of the law, one has to study the cases first. A good summary of these fundamental differences might be, a common law lawyer looks for a case, a civil law lawyer looks for the principle involved.

In addition to the fundamental difference noted above, there are a number of less general but equally important practical differences. For example, there are no juries in noncriminal cases in civil law countries. In a court case in a civil law country, the judge assumes a far more activist role, and attorneys for each side have an obligation to assist the judge in finding the facts. In contrast, in litigation in a common law country, the judge is a neutral referee, ruling on motions made by the advocates but not generally initiating his own inquiries.

The US Legal System

In order to understand the context of international law, it is important to have a basic understanding of the US legal system. This system is somewhat complex because each state within the United States has its own legislative body, executive branch, and court system. And, of course, the federal government has this structure as well. How these systems overlap and interact with each other is an important issue.

One of the most important aspects of the US federal system is the acceptance by courts in one state of the judicial decisions made in another state. The Constitution itself requires that each state give "full faith and credit" to the judicial determinations of its sister states. Thus, for example, if I bring a successful lawsuit in Maryland against a party who moves to California, I can take that Maryland judgment to the courts of California and ask that the California court convert that judgment into a California judgment, which can then be enforced in that state. Importantly, there is no comparable situation among countries. If I obtain a favorable court ruling from the courts of France against a person who then moves to Brazil before the judgment can be enforced it will be doubtful that I could convince a Brazilian court to adopt the French judgment. There is no international "full faith and credit" clause, although negotiations on an international agreement, which would do just that, are already underway.

One interesting aspect of the differences between federal laws and state laws is that those laws that are of principal interest to us (i.e., those laws that deal with commercial matters) are virtually all state laws. There is no federal law of contracts and no federal law of sales. That does not mean, however, that federal courts are never involved in hearing a case involving a contract dispute. But if and when they do hear such a case they apply state law. Assume, for example, that you have a contract dispute that arises over a contract that was signed in New York and was to be performed in New York. One party brings an action in the federal court sitting in the state of Maryland (we’ll explain how this happens shortly). The federal court in the state of Maryland would apply New York law to the case because (1) it has to apply state law since there is no federal law on contracts, and (2) the jurisdiction with the closest connection with the case is New York and hence, New York law should apply.

We all are familiar with the Supreme Court and its role as the final decision-making body on matters of legal interpretation. The Supreme Court is the highest court in the federal system. Immediately below the Supreme Court are thirteen circuit courts of appeal, which hear appeals from the district courts, the trial-level courts in the federal system. Twelve of these circuit courts of appeal cover geographic areas—the sixth circuit, for example, covers Michigan, Ohio, Kentucky, and Tennessee. The courts have as many as twenty judges and they hear cases in panels of three. The circuit courts do not conduct trials—they only hear appeals and, in the common law system, appeals can only be made as to matters of law as opposed to facts. The trial court and the jury have complete responsibility for determining the facts, and the appellate courts can only hear appeals relating to matters of law.

Federal courts at the trial level (the district courts) and at the appellate level (the circuit courts of appeal) have their basic power, or jurisdiction, defined by the Constitution. Under Article III of the Constitution, specific powers are outlined for the federal courts. Federal courts have jurisdiction with respect to the following:

1. constitutional issues

2. laws and treaties of the United States

3. admiralty

4. ambassadors

5. where the United States government is a party

6. controversies between a state and citizens of another state

7. controversies between citizens of different states (called "diversity jurisdiction")

8. controversies between a citizen of a state and a foreign citizen

Plus, a $75,000 minimum applies to suits involving numbers 7 and 8 above.

Number 8 above is most significant for our purposes. The concept of "diversity jurisdiction" was adopted by the framers of the Constitution in order to provide an alternative to the home field advantage that might otherwise apply if lawsuits involving parties from different states could be heard only in the state courts of one of the parties. The federal courts were seen as providing a more neutral forum for such situations. Thus, because of this provision of the Constitution, a party can either bring a case in a federal court (as a plaintiff) or ask to have it removed to a federal court (as a defendant) so long as the diversity criteria are met. And, as already noted, the federal court would apply state law in its consideration of the case, unless it is a case involving federal law or one of the other categories set forth above.

International Legal Issues

Before considering the issues related to the application of legal rules to international businesses, we should understand the scope of the power of nations to make such rules. In other words, what are the limits of a nation’s law-making authority and where do such limits come from? Can the Parliament in Great Britain issue edicts regulating businesses in Switzerland? What are the principles involved?

We start with the consideration of public international law—that is, the category of international law that defines the relationships between and among nations. It differs from what is usually termed  private international law, which really is simply another way of describing the rules that apply to private businesses in an international setting. But our concern now is to analyze public international law and to understand the reach of a nation’s power over its subjects and over the subjects of other nations. Hereafter we’ll drop the word  public and simply refer to public international law as  international law.

The term  international law is used to describe the rules that regulate the conduct of nations. International law differs from the laws of the various nations of the world in two major respects. First, many areas of international law are not definitive—that is, nations (or states) differ as to what the actual rule in question is (although there are many areas where the rules are clear, either by virtue of an international agreement or long usage). Second, for the most part there is no enforcement mechanism associated with international law, so that a nation that ignores the rules, while subject to possible ostracism, is not otherwise at risk of being enjoined, fined, or arrested as would a private citizen or business that violated the law of a nation.

International law is based on the principles of (1) sovereignty and (2) the consent of states. The concept of sovereignty is that a nation is master in its own territory. The International Court of Justice (ICJ) (1948) has defined sovereignty as "the whole body of rights and attributes which a State possesses in its territory, to the exclusion of all other States, and also in its relations with other States. Sovereignty confers rights upon States and imposes obligations on them."

Thus, sovereignty is that concept which allows a state to make rules that are applicable throughout its territory and that govern all people within the state. The concept of sovereignty also conveys the notion that each state is equal to all other states, and the sovereign rights of any particular state are limited by the sovereign rights of other states.

The acceptance of the concept of sovereignty dates from the middle of the seventeenth century at the conclusion of the Thirty Years War, which marked the separation of the powers of the church and the state. As time has passed, nations have begun to recognize specific principles that further define the concept of sovereignty and the notions of territorial integrity and political independence as being inviolable. Since each state is sovereign in its own territory, international law recognizes the basic principle that no state has the right to impose its will on the territory of another state.

Courts in the United States often use the term  comity to refer to the deference or respect that is due to the decisions and actions of another country in order to minimize the conflicts that could arise through the assertion of conflicting jurisdiction by different countries.

There are a number of sources of international law. First, there is customary international law, which derives from the practice of nations over a period of time; in other words,something that over time is recognized by states as international law, whether from a sense of obligation or other reason. Second, international conventions and treaties establish rules, which are accepted by the nations that sign them, such as the Law of the Sea Convention. Third, general principles of law recognized by civilized nations can serve as a source for international law. Finally, judicial decisions by international courts such as the ICJ in the Hague, as well as the opinions of legal scholars, can assist in determining the rules of international law.

While international law seems from one perspective to be academic and theoretical, it actually has considerable practical impact in the real world. Consider, for example, if a US citizen were involved in a dispute in Mexico with citizens of Brazil and a Brazilian court ordered him or her to return to Brazil for a trial. Instead, the US citizen heads to Houston, where a representative of Brazil appears in a Houston court and asks the judge to assist in enforcing the Brazilian court order. The first thing the US judge will consider is international law and whether Brazilian courts have the power to order a noncitizen outside their country to return to appear in their courts.

The Permanent Court of International Justice, or the World Court, was created as an international court long before the founding of the United Nations after the Second World War. When the United Nations was created, the court was named the International Court of Justice, and was incorporated as one of the organs of the UN. Article 34 of the UN Statute defining the jurisdiction of the court makes it clear that the court can only hear disputes that arise between nations, not disputes that arise between private parties or between a nation and a private party. And, the court only decides issues which are presented to it by the countries on a voluntary basis. As a general rule, both nations involved in a dispute must agree to have the ICJ hear the dispute in order for the court to have jurisdiction.

In general, international law recognizes, to one extent or another, five bases for the exercise of a nation’s powers to cases involving foreign persons, property, or events. (Voluntary agreement of the parties would be a sixth basis.) The support for and legitimacy of these theories of jurisdiction differ, and they are outlined here in the order of acceptance:

· territorial principle—This concept is universally accepted and is the fundamental attribute of sovereignty—that a nation can control events and people within its territory. Each nation is responsible for the conduct of law and the maintenance of good order within its borders, and this principle is an expression of that right and responsibility.

· nationality principle—The person committing the offense is a citizen who can be presumed to know his country’s laws wherever he is. By virtue of nationality, a citizen becomes entitled to certain rights and protections from his country (such as a passport, right to vote, etc.) and also has certain obligations. Under this theory of jurisdiction, a nation can exercise its control over its nationals wherever they may be.

· protective principle—Jurisdiction can be exercised because of conduct that was injurious to a fundamental national interest.

· universality principle—Nations have jurisdiction to try cases where the offense is one that is regarded as a crime by the entire international community. The two most common situations are piracy and war crimes.

· passive personality principle—Crimes against citizens (i.e., a nation claiming jurisdiction to try a person for offenses committed abroad that affect nationals of the country), such as crimes against ambassadors and diplomats.

· “effects” principle—The "effects" principle refers to the situation where a state assumes jurisdiction on the grounds that the behavior of a party is producing "effects" within its territory. This is the case even though all the conduct complained of takes place in another state. The use of the "effects" test has arisen most often in situations which are described as the exercise of "extraterritorial" jurisdiction by a country. The United States, for example, has been subject to considerable criticism for purporting to control events and exercise jurisdiction over activities that occur outside of its borders, particularly in the antitrust area and in the area of export controls.

Determining the Applicable Law and Forum

We already discussed the jurisdiction of countries and their power to prescribe rules, and we evaluated the various bases upon which such power could be exercised. When we talk of jurisdiction, whether of courts or nations, think of the word as synonymous with the concept of power. What we have learned so far is that there are various standards under international law for determining the reach of the power of nations to assert their authority over people. We observed the territorial principle, the nationality principle, and the effects test as being three of the important ones.

Now we will consider a different aspect of jurisdiction—the jurisdiction of courts— starting with an analysis of the situation in the United States. The concept of jurisdiction is central to the legal system. If you are sued in California, can a California court proceed with the case even though you live in Maryland? The answer depends upon the limits on the jurisdiction of US courts and how those limits are determined. In fact, in every lawsuit, the first criterion that a plaintiff has to include in his pleadings is a presentation of the legal basis as to why the court has jurisdiction over the subject matter of the case and over the defendant.

After considering the concept of jurisdiction we will touch upon what is called "choice of law." Once a court has decided that it has jurisdiction, what law does it apply? The law of the state where the court is located, the law of the state where the plaintiff or defendant resides, or some other law? Like most areas of the law, the legal principles in this area are still developing and, although it is easy enough to state the generally accepted principles, we must always be aware that there are many gray areas in the law.

Finally, we will address the ability of parties to choose their own law and forum (i.e., in which court the matter will be decided).

The Jurisdiction of Courts

Subject Matter Jurisdiction

Before we can determine if a court can exercise power over an individual or a corporation (i.e., exercise personal jurisdiction) we need to know that the court is authorized to deal with the subject matter of the dispute. This is generally not a significant issue because most state courts are courts of general jurisdiction and are empowered by statute to hear all controversies arising under the laws of a particular jurisdiction. The federal courts have more limited subject matter jurisdiction, as we discussed previously, where we reviewed the constitutional provision that delineated the power of federal courts. And, there are a number of "specialized" courts where the issue of subject matter jurisdiction is indeed significant. Take, for example, the bankruptcy courts, which were created to deal exclusively with bankruptcy. If you were to try to bring another type of case in a bankruptcy court, you would not be able to do so, because the court would determine that it did not have subject matter jurisdiction. But, for the most part, determining whether a court has subject matter jurisdiction is not a difficult issue. The same is not true with respect to the issue of personal jurisdiction.

Personal Jurisdiction

By far the more significant jurisdictional issue from our point of view is that of personal jurisdiction—whether a court has the ability to exercise power over a particular individual or corporation. Keep in mind that the answer to this question could be quite important. If a Maryland resident is sued in California and the court there determines that it has personal jurisdiction over him then the defendant must undergo the trouble and expense of defending himself in a court far from home. The principles that we discuss now will be helpful when we evaluate the same problem in the international context.

Statutory Basis

In order for a US court to have jurisdiction over a person, there must first be a specific law that purports to set forth the power of the court over persons. These laws are called long-arm statutes, and every state has its own version of such a law. Generally, these laws grant the courts far-reaching powers. For example, the statute may give the state jurisdiction over persons who commit acts outside the state but which have an effect within the state.

Constitutional Basis

The principal limitation on the exercise of personal jurisdiction by courts in the United States comes not from the state long-arm statutes but rather from the limitations of the Constitution as expressed by the Supreme Court in a series of cases over the years. The Constitutional provision is the due process clause, that is, the portion of the Fourteenth Amendment to the Constitution, which says that no person shall be deprived of life, freedom, or property without due process of law. In American jurisprudence, this clause has come to serve many purposes. Another term for due process might be  fundamental fairness, and the essential notion the the Supreme Court has been dealing with in these cases is that the Constitution requires the application of this fundamental fairness.

General Jurisdiction

The analysis of the legal sufficiency of personal jurisdiction is divided into two general categories: general jurisdiction and specific jurisdiction. General jurisdiction is jurisdiction over the person not related to the particular cause of action. In other words, the person’s connection with the particular venue is so significant that she is subject to being sued in that place regardless of whether the particular lawsuit has anything to do with the place of venue. For example, a corporation is always subject to general jurisdiction in the state where it is incorporated. Thus, a Maryland corporation is always subject to being sued in Maryland&#xA

Our website has a team of professional writers who can help you write any of your homework. They will write your papers from scratch. We also have a team of editors just to make sure all papers are of HIGH QUALITY & PLAGIARISM FREE. To make an Order you only need to click Ask A Question and we will direct you to our Order Page at WriteDemy. Then fill Our Order Form with all your assignment instructions. Select your deadline and pay for your paper. You will get it few hours before your set deadline.

About Wridemy

We are a professional paper writing website. If you have searched a question and bumped into our website just know you are in the right place to get help in your coursework. We offer HIGH QUALITY & PLAGIARISM FREE Papers.

How It Works

To make an Order you only need to click on “Order Now” and we will direct you to our Order Page. Fill Our Order Form with all your assignment instructions. Select your deadline and pay for your paper. You will get it few hours before your set deadline.

Are there Discounts?

All new clients are eligible for 20% off in their first Order. Our payment method is safe and secure.

Hire a tutor today CLICK HERE to make your first order

Related Tags

Academic APA Writing College Course Discussion Management English Finance General Graduate History Information Justify Literature MLA