Identify the following terms
Prepare a case summary of Sei Fujii vs. State of California
Prepare a case summary of Gibbons vs. Ogden which may be found online
Write a 1-2 page essay about the CISG? When and how does it apply and when does it not apply?
Go to the Texas Secretary of State website and obtain the form necessary to create a new Texas Corporation. Fill out the form with the appropriate information for a fictional corporation and attach hereto.
Write a 1 to 1 1/2 page paper explaining the advantages of a Texas LLC? How would it benefit a new business?
International law can be referred as the set of rules that are generally accepted and regarded as binding in the relations between the nations and between the states. The international law provides the framework for the organised international relations and the stable practice within the nations or states. It can be said that the legal system of the state can differ from the international law. The governance of international law is basically consent-based and others are obligatory (Allen, 2013).
Public international law is concerned with the conduct and the structure of the sovereign states. The public international law governs the relationship between the international entities and the states. There are several legal fields that are included in the law such as international humanitarian law or the laws of war, international criminal law, law of sea, treaty law, and the international human rights law (Wallace & Martin-Ortega, 2013).
Private international law can be referred as the legal framework that is composed of case law, uniform documents, legal guides, model laws, protocols, conventions, practice and customs as well as instruments and documents that can regulate the relationships between the individuals in the international context (Shaw, 2003). It is also referred as the conflict of laws and it is concerned with the relations across various legal jurisdictions between corporate entities or individuals.
A multilateral treaty can be referred as the treaty among three or more sovereign state parties. There are certain obligations that are maintained by each sovereign state party. Some of the examples of the multilateral treaties are Rome Statute of the International Criminal Court, the Geneva Convention, and United Nations Convention on the Law of the Sea etc (Wallace & Martin-Ortega, 2013).
A bilateral treaty can be referred as the treaty that is conducted strictly between two state parties. The two parties can be two international organisations, to states or one international organisation and one state. It is also referred as the contractual treaty (Wallace & Martin-Ortega, 2013). A bilateral treaty can become a multilateral treaty if new parties are added in the treaty.
The convention can be referred as the formal meeting of the political parties, delegates, representatives and the professionals. It is the formal assembly of the delegates and various representatives for discussing a specific issue or matter that is a common concern matter.
State is basically referred as the organised community that lives under the same government and under certain rules and regulations. Some of the states have sovereignty and these states are members of federal union. There can also be secular branches of government within the states like the civilian institutes and the churches (Shaw, 2003). The states govern the human societies and various rules and regulations are also implemented in order maintain the law within the state. In recent years, the nation-state framework is predominant in the society.
Recognition can be referred as the process where various facts gain the legal status after being accepted by the law. Acquisition of a territory and sovereignty over the region, statehood etc can be considered under the function of recognition (Encyclopedia Britannica, 2014). Conforming to the statehood criteria is a political one and after recognition, the acknowledgement of sovereignty is also made. In case of statehood, the international recognition is also very important according to the declaratory theory of recognition. In case of recognition, an already existing situation or fact is accepted or conformed (Fabry, 2013).
Here the case summary of SeiFujii vs. State of California can be presented. The case was held in an intermediate appellate court where it was stated that the violation of the alien land law occurred in terms of the human rights provisions of the United Nation’s Charter and thus the decision was reversed (Justia Law, 2015). In the State Supreme Court, the State of California appealed regarding the ownership of the land. The racial discrimination was prohibited in the 14th Amendment of the US constitution and thus the invalidity of the California alien law was established.
In 1948, Mr. Fuji purchased a real estate property in California. Under the US naturalisation law, Mr. Fuji was ineligible for citizenship in the USA. Mr. Fuji bought the land, under the California alien land law and thus he appealed to the court stating if the US constitution is violated by the California law (Justia Law, 2015). In such circumstances, the United Nations Charter will be applicable automatically. So the main issue was regarding the validity of the alien land law of California. The provisions of the preamble states in Article 1, that there is conflict between the alien land law and the UN Charter. Whether the treaty is self-executing or not, it is determined by applying the rules. It is also evident that the standing alone can be enforced in the court but the treaties cannot supersede the local laws unless they are self-executing. It is requested by the UN Charter that observance of human rights are promoted with fundamental freedom and they should be consistent with the laws. According to the 14th amendment of the US Constitution it is accepted that the there is violation in the law (Scocal.stanford.edu, 2015). It was also contended that if the alien residents possess the land then there is no indication of any form of dangerous to the interests of the state. It was also contended that there was no indication of the wrongful use of the land in terms injuring the welfare, safety or the morals of the public. The designing and the administration of the California law is done as an instrument that can resolve the cases of racial discrimination.
Here the case summary of the Gibbons vs. Ogden can be provided. It was one of the famous cases where landmark decision was made where the power was held by the United States’ Supreme Court for regulating interstate commerce. The power was granted by the United States Constitution’s Commerce Clause and it encompassed the navigation power. Some of the United State’s most capable and admired attorneys argued the case.
Robert Fulton and Robert R. Livingston were granted the exclusive rights by the New York for the steam boat navigation on the waters of New York State. They also petitioned territorial and states legislature for the same monopolies in the line of steamboats. However the petition was accepted by only Orleans Territory (Lawnix.com, 2015). Ogden was assigned the rights by Livingston to navigate between various ports of New Jersey and New York. Three years later the partnership collapsed.
Aaron Ogden filed a complaint in the New York court for restraining Thomas Gibbons from navigating on those waters. It was contended by the lawyer of Ogden that some laws were passed by the states on the interstate issues and a concurrent power should be fully owned by the state on such matters for executing the right decisions. Daniel Webster, the lawyer of Gibbons argued that according to Article 1, Section 8 of the Constitution, Congress had the exclusive national power over the interstate commerce and there can be contradictions and confusions in the local regulation policies if argued otherwise (Lawnix.com, 2015). The Court of Errors of New York and the Court of Chancery of New York found in favour of the Ogden. An injunction for the restriction of Gibbons was issued in terms of operating the boats.
Afterwards, Gibbons applied in the Supreme Court and he presented the same arguments contending the fact of conflicts between the federal law and the monopoly. The case was delayed for some period and afterwards the meaning of the commerce clause was discussed in 1824 and at that time the issue had become of a greater and wider interest. The U.S. Supreme Court made his decision in the favour of Gibbons. The main argument of the power of the Congress was in terms of the Commerce Clause. But it was also held in court that commerce can be more than mere traffic. Here a broader definition included the navigation as well. The case was very important as the case marked the start of a 40-year period of history where the ability of the federal government was limited by the Supreme Court. Under the Commerce Clause, the Supreme Court changed the federal authority clause. Thus the case was significant due to such reasons.
Worldwide Volkswagen Corp vs. Woodson was a United States Supreme Court case involving various considerations and procedural issues and strict product liability. The case brief can be given here. Kay and Harry Robinson bought a new Audi 100 LS in 1976 from Seaway Volkswagen from New York. The following year the Audi was struck y a drunk driver from the rear the following year when Kay Robinson passed through Oklahoma to Arizona. The collision did not injure any of the Robinsons but the door of the Audi jammed due to the crash and thus it was shut and it also resulted in a gas tank puncture (Lawnix.com, 2015). Due to the gas leak, Kay Robinson and her two children Sam and Eva were severely burned and trapped in the car.
The Robinson family did not sued the drunk driver as he had no asset or insurance but they sued the manufacturers of the car, stating that the product was defective and that is the main reason for the injuries of the family especially the location of the gas tank that was just below the trunk and it increased the chances of puncture and gas leak. The Robinson family sued the Audi manufacturer and also Volkswagen (importer) along with Worldwide Volkswagen Corp. (regional distributor) and Seaway Volkswagen (retailer dealer). The lawsuit was filed in the Creek County, Oklahoma. When the defendants of the case were brought they stated that limitations on states’ jurisdiction will be offended if Oklahoma exercise personal jurisdiction over them according to the Constitution of the United States. So they asked to be removed from the lawsuit (Lawnix.com, 2015). The constitutional claim of Seaway and Worldwide was rejected by the district court whereas the Supreme Court reversed the decision and stated the Oklahoma did not have the jurisdiction over Worldwide and Seaway.
The rule of strict liability is the standard for incurring liability either in the civil or criminal context. According to this rule, any person should be made liable for any damage caused by such acts of the person regardless of the fact that any negligence or fault on the part of such person. In the tort law, the imposition of strict liability depends on the evidence of the occurrence of tort given by the claimant that makes the defendant liable. This rule of strict liability was established by the House of Lords in the case of Rylands v Fletcher (Rylands v Fletcher, 1868).
Negligence on the other hand, refers to the failure of any person to exercise due care which any other reasonable man under similar circumstances would have exercised. The law of negligence was illustrated in the case of Donoghue v. Stevenson (Donoghue v. Stevenson, 1932) , where the House of Lords stated that reasonable foreseeable harm needs to be compensated.
According to the rule of strict liability, the plaintiff only is required to prove that the damage has occurred due to the defendant. It is not necessary for the plaintiff to prove that the defendant did not take due care to avoid the act. Even if the defendant had taken proper care, he would be liable for the damage under this rule (gmu, n.d.). However, in the case of negligence, there are three steps to prove the defendant was liable. Firstly the plaintiff has to prove that damage has occurred. Secondly, he has to prove that the defendant had a duty to care under the given circumstances and finally it is to be proved that the damage was caused due to the negligent act of the defendant. Also the standard to contributory negligence is also taken into account when the plaintiff has contributed to the negligent act of the defendant. Hence the defenses available for a defendant are more under the rule of negligence than under the rule o strict liability.
The term CISG refers to the United Nations Convention on Contracts for the International Sale of Goods. The primary objective of the CISG is to give new, consistent and just regime for the contracts in the sphere of international sale of goods. Hence this convention makes significant contribution to the introduction of certainty in the commercial exchanges and also decreases transaction costs (Ferrari, 2012).
The contract of sale is an extremely essential part of international trade in most countries regardless of the level of tradition or economic development. For this reason the CISG is considered as the core conventions of international trade law and it is desired that all countries adopt this convention. This convention was the consequence of the legislative efforts which began during the twentieth century. The text of the convention was such that it balanced the interests of the buyers and sellers and further reformed the contract laws at the national level.
The United Nations Convention on Contracts for the International Sale of Goods generally applies to the contracts for international sale of goods when the private international law rules apply to the laws of the contracting state or when the contractual parties opt for these regulations not considering their nationality or place of business. In the last situation, the CISG would assist by providing a neutral body of rules which can be easily accepted due to the transnational nature and the available interpretative materials.
The contracts for international sales of goods between private businesses are governed by the CSIG. However, the sales relating to customers or the sale of services or sale of some specific kind of goods are excluded in this regard. The convention does apply to contracts of sale between parties whose place of business is in different contracting countries. Further the Convention applies by virtue of the choice of the parties. The validity of the contract or the effects of the contract on the property in the sold goods which are essential factors in relation to the international sale of goods are not included in the scope of the Convention. The CISG also deals with the formation of the contract and the conditions of offer and acceptance.
Another essential part of the Convention deals with the obligations of the parties to the contract. Among the duties of the sellers the duty to deliver goods in accordance with the quality and quantity is incorporated. It also includes the transfer of property in the goods and other required documents. The duties of the buyer comprises of payment of the price, taking the delivery etc. Additionally, this portion of the Convention also includes common rules relating to the remedies in case of any breach. The party which has suffered damage might claim damages, performance, part performance or avoidance of the contract. Further rules include the passing of risk, damages, exemption from the performance of the contract or anticipatory breach of contract. The CISG further permits the freedom for the form of the contract.
The application of the United Nations Convention on Contracts for the International Sale of Goods extends to the international transactions only. It does not include within itself the recourse to the rules of private international law for those contracts that fall within its ambit. The international contracts or contracts with valid choice of other law that are not included in the CISG application will not be in any way affected by the Convention. Further the domestic contracts are also not affected by the Convention.
The limited liability company (LLC) law has been adopted by Texas like every other state in the U.S. Thus the business unit that will operate in Texas will also have the choice of operating under LLC with other traditional choices like corporation, partnership and sole proprietorship. For many small business units LLS can be very attractive choice as it can offer various benefits to the corporation (Residual-rewards.com, 2015). Here it can be said that the limited liability corporations have much more flexibility and they also enjoy the same protection from the creditors and there is also flow-through tax treatment in case of partnership. But the flexibility of the Texas LLC is the most effective quality of the operation. The public support is also given by the state of Texas to the Texas LLC. Here the benefits of the Texas LLC can be provided.
Name Protection: In the state of Texas, when a company is registered as a limited liability company, protection is provided to the name chosen of the company as no other company can select the name in the state. The protection of the name can ensure the protection of the image of the brand along with the reputation of the company.
Tax Advantages: The business also receives tax benefits after forming an LLC in Texas. The business expenses and the operating cost can be deduced from the business’s gross revenue in a Texas LLC. In the LLC of Texas, the depreciation can also be deduced from the assets of the company
Protection of Personal Assets: The business structure of the limited liability company in Texas meets the regulations of the state but the owners and the members of the company also receives the protection. If a lawsuit is filed against the Texas LLC then there is benefit of the protection of the assets of the LLC Company.
Secretary of State Support: When a business is registered in the Texas LLC then the business also registers with the state and the company receives the support system of the state. The protection is provided under the set provisions of the Texas Miscellaneous Corporation Laws Act (TMCLA) and the Texas Business Corporation Act (TBCA).
Flexibility in the Choices of Profit: It is known that the Federal law sets the business structure of the limited liability company. The state of Texas adopts the same law, allowing the businesses for choosing the business structure of the LLC. Thus there is flexibility of choice as the company can decide on the structure of a partnership or a corporation (Companiesinc.com, 2015).
No Requirement of Record keeping: There is no need for the limited liability company in Texas to keep the copious and minute records.
Thus these are the main benefits of the Texas LLC. Thus it can be said that if a new business unit tries to open a new business as a Texas LLC then various benefits can be received by the new business unit especially if the business unit intends to add partners in the company. The company can be protected from the lawsuits and debts. The members get the protection from the liability and a multi-tiered ownership is also allowed in the company. The protection of name can establish the brand image of the company in the market which can be very beneficial for the new organisation (Companiesinc.com, 2015).
Allen, S. (2013). International law. Harlow, Essex, England: Pearson Education.
Companiesinc.com,. (2015). Texas LLC - Incorporate a Texas Limited Liability Company or LLC. Retrieved 31 January 2015, from https://www.companiesinc.com/llc/texas.asp
Encyclopedia Britannica,. (2014). international law :: Recognition. Retrieved 30 January 2015, from https://www.britannica.com/EBchecked/topic/291011/international-law/233507/Recognition
Fabry, M. (2013). Theorizing state recognition. Int. Theory, 5(01), 165-170. doi:10.1017/s1752971913000080
Justia Law,. (2015). Sei Fujii v. State of California. Retrieved 30 January 2015, from https://law.justia.com/cases/california/supreme-court/2d/38/718.html
Lawnix.com,. (2015). Gibbons v. Ogden – Case Brief Summary. Retrieved 30 January 2015, from https://www.lawnix.com/cases/gibbons-ogden.html
Lawnix.com,. (2015). World-Wide Volkswagen Corp. v. Woodson – Case Brief Summary. Retrieved 31 January 2015, from https://www.lawnix.com/cases/world-wide-volkswagen-woodson.html
Residual-rewards.com,. (2015). Texas LLC advantages and disadvantages. Retrieved 31 January 2015, from https://www.residual-rewards.com/texas-llc.html
Scocal.stanford.edu,. (2015). Sei Fujii v. State of California - 38 Cal.2d 718 - Thu, 04/17/1952 | California Supreme Court Resources. Retrieved 30 January 2015, from https://scocal.stanford.edu/opinion/sei-fujii-v-state-california-26246
Shaw, M. (2003). International law. Cambridge, U.K.: Cambridge University Press.
Wallace, R., & Martin-Ortega, O. (2013). International law. London: Sweet & Maxwell.
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