Description
Description
You will create this assignment following the Assignment Detail instructions below.
Review the tutorial How to Submit an Individual Project.
For Part 5 of Operation Competitor, you will present the Operation Competitor report to the board of directors containing the research done on the legal climate for the laptop launch.
Assignment Details
Your report will include the following
Summary analysis of the company’s competitor
Summary of your proposed plans for arbitration and negotiating for your company
Summary of expected processes and regulations for storefronts for your company
Discussion of the role of unions in the labor market
Summary of trade agreements that regulate business transactions and the appropriate processes for resolving international business disputes
Analysis of federal and state laws that protect employees against employment discrimination
Explanation about the laws that impact salary, leave, compensation, and other benefits for employees
Deliverable Requirements
Your final report should be a minimum of 25 pages (5 pages/unit = 25 total) on the final assessment of Operation Competitor as an accumulation of all the pages from previous units. Be sure to cite sources using APA properly; include references and in-text citations. The Title page and Reference page do not count as part of the 25 pages.
Submitting your assignment in APA format means, at a minimum, you will need the following:
Title page: Remember the running head. The title should be in all capitals.
Length: 25 pages minimum
Body: This begins on the page following the title page and must be double-spaced (be careful not to triple- or quadruple-space between paragraphs). The typeface should be 12-pt. Times Roman or 12-pt. Courier in regular black type. Do not use color, bold type, or italics, except as required for APA-level headings and references. The deliverable length of the body of your paper for this assignment is 25 pages. In-body academic citations to support your decisions and analysis are required. A variety of academic sources is encouraged.
Reference page: References that align with your in-body academic sources are listed on the final page of your paper. The references must be in APA format using appropriate spacing, hanging indent, italics, and uppercase and lowercase usage as appropriate for the type of resource used. Remember, the Reference page is not a bibliography but a further listing of the abbreviated in-body citations used in the paper. Every referenced item must have a corresponding in-body citation.
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Grading Rubric: Maximum 140 Points
Grading Criteria Points
Deliverable requirements addressed; understanding of material and presenter’s message and intent are clear 60 points Followed assignment guidelines and criteria 30 pts Yes/Complete Mostly Not at all
Overall quality 30 pts Excellent Satisfactory Needs Improvement
Scholarly research that supports the writer’s position is properly acknowledged and cited, and direct quotations do not exceed 10% of the word count of the body of the assignment deliverable 30 points Title page, table of contents, tables, exhibits, appendices or reference page included 15 pts Yes Partially Not at all
Content is original with less than 35% match 15 pts Yes 36–50% 51% or over
Critical thinking: Position is well-justified; logical flow; examples 15 points Position is justified with examples 7.5 pts Excellent Satisfactory Needs Improvement
Presentation flows logically 7.5 pts Excellent Satisfactory Needs Improvement
Structure: Includes introduction and conclusion, proper paragraph formatting, and reads as a polished academic paper or professional presentation, as appropriate for the required assignment deliverable 15 points Includes introduction and conclusion 5 pts Excellent Satisfactory Needs Improvement
Paragraphs are formatted properly 5 pts Excellent Satisfactory Needs Improvement
Reads as polished academic paper or presentation 5 pts Excellent Satisfactory Needs Improvement
Mechanical: No spelling, grammatical, or punctuation errors 10 points Spelling and grammar are accurate 5 pts Yes Partially Not at all
Punctuation is accurate 5 pts Yes Partially Not at all
APA: Deliverable is cited properly according to the APA Publication Manual 10 points References are cited in accordance with APA formatting 5 pts Yes Partially Not at all
Reference page is included 5 pts Yes Partially Not at all
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1
Legal Aspects of Business Decisions
Jami Britton
American InterContinental University
Professor: Jacob Carroll
Course: MGT525-2305B-02
Date: 12/2/2023
Legal Aspects of Business Decisions
Introduction
While operating in the global business environment and particularly in terms of laptop
manufacturing, it is impossible to escape the competition posed by the Apple MacBook since
these products have become synonymous with premium quality, innovative design, and cuttingedge technology. These laptops are the perfect blend of style, performance, and user-friendly
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features. The laptops also come with macOS which integrates seamlessly into the MacBook
allowing for a smooth user experience. Hence with the goal of carving a niche in the market, the
company may have to grapple with Apple Inc. which is a formidable challenge since the
company has already established dominance. This paper hence investigates Apple’s policies and
procedures regarding liability and highlights a legal issue the company has faced recently as well
as the role played by copyright, trademarks, patents, and trade secrets in shaping the competitive
landscape.
Policies and Procedures Regarding Liability
Operating in the global business environment comes with its share of risks, Apple has
however displayed dedication to risk management and compliance with the different laws and
regulations. Apple, first, prides itself on conducting business ethically which means that the
company prioritizes honesty, respect, confidentiality, and compliance. Apple also has the same
expectations for its suppliers, contractors, consultants as well as business partners (Apple Inc.,
2022).
The company has also formulated a business conduct policy as a guide for employee
conduct to ensure that they promote fair, sincere, and transparent business practices since the
employees are representatives of the company and must hence embody the company’s values.
Employees are also expected to take part in an annual business conduct training to ensure that
they have a thorough understanding of the company’s business conduct policy. This hence
demonstrates the company’s commitment to ethical conduct. Additional courses are also
available including one on respect and anti-corruption and the need to take this training depends
on employees’ responsibilities. Employees are also expected to abide by the policy to the letter
since these stipulations are in the spirit of Apple’s business conduct. Additionally, they are
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expected to speak up when they see any violations as well as exercise good judgment while
carrying out their duties (Apple Inc., 2022).
When it comes to reporting concerns, there are helplines available that help employees as
well as outside parties to report irregularities or concerns all while maintaining anonymity. This
information is then shared on a need-to-know basis to address questions, and concerns, or
enforce the policy. This is an effort to ensure prompt enforcement and if necessary, disciplinary
action. The Business Conduct Policy is overseen by the Business Conduct organization, which is
headed by the Chief Compliance Officer who is required to provide updates to the Audit and
Finance Committee of the Board of Directors (Apple Inc., 2022). This hence creates as well as a
system of checks and balances. The company also takes whistleblower protection and is against
retaliation of employees who come forward to report unethical behavior. This is meant to ensure
that employees feel safe coming forward to report irregularities to ensure that these problems do
not fester and end up being the downfall of the organization, if employees learn to turn a blind
eye, the corporate culture can quickly be corrupted and the system in place to protect the
integrity of the company would crumble.
To create a conducive work environment, the company makes it clear that it is against the
use of drugs and alcohol since these substances impair judgment and job performance. The
company also highlights a commitment to protecting the environment, health, and safety of
employees, customers, and global communities. It also strives to create a workplace that is
diverse, inclusive, and supportive, there is hence zero tolerance for harassment, discrimination,
and any form of violence (Apple Inc., 2022).
The company also requires employees to protect Apple’s private information including
its intellectual property, confidential business plans, and unannounced product plans, among
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other proprietary information. Employees are hence advised to be cautious and not to discuss
company information recklessly. They are also cautioned against discussing trade secrets,
confidential, operational, financial, or any other business information since this allows the
company to maintain an edge in the global business environment. Exposing a company’s secret
information can sometimes be the kiss of death and Apple hence values its privacy and requires
employees to err on the side of caution. Employees are hence made to sign non-disclosure
agreements and as such the failure to protect and maintain the confidentiality of business
information can have legal consequences for the responsible party (Apple Inc., 2022).
The company also has a zero-tolerance policy regarding fraud and hence conducts
systematic fraud risk scenario assessments, inspections, and guidance for improvement. When
cases of fraud are found, the company takes the issue very seriously and implements an
investigation to get to the root cause, and disciplinary action is then taken against employees who
happen to be in violation. Accurate and honest records are crucial for meeting legal, financial,
and management obligations and employees are hence instructed not to misstate facts, omit
critical information, or manipulate records, as intentional manipulation of Apple records is
considered a form of fraud (Apple Inc., 2022).
The company also shows respect to third-party intellectual property and requires its
employees not to use the intellectual property of third parties without permission or legal right.
Employees are also prohibited from using copyrighted content for business purposes without
legal permission. Employees are also prohibited from speaking on Apple’s behalf without
permission since they may end up misrepresenting the company’s interests (Apple Inc., 2022).
Liability in Tort and Criminal Liabilities
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Despite these policies, the company has not been exempting from legal issues, in 2022
the company just settled a class action lawsuit and had to pay $50 million following customers’
complaints of the MacBook keyboard being prone to failure. These MacBooks had sticky and
unresponsive keys and a small amount of dust or debris could render it ineffective. The
customers would seek replacement keyboards which would have similar issues. A class action
lawsuit was hence brought against the company which ended in a settlement (Labib, 2023).
Importance of Copyright, Patent, Trademark, and Trade secrets
Apple is known for its branding; an Apple product is easily distinguishable from every
other item in the market. It is hence a source of competitive advantage, the Apple name, logo,
product names, taglines, and service all form the collective Apple identity. The company also
boasts of a robust patent program which is meant to protect its innovative products and services.
Companies invest a lot of money in creating unique products that separate them from the
competition, their intellectual property is hence key to their success, and companies like Apple
are likely to invest in aggressive litigation to protect their property. Apple has hence protected its
unique product design through the registration of several patents, and this effectively ensures that
its unique approach to doing business is protected (Yang, 2014). These patents even include the
minimalist elements of the company’s stores. The United States Patent and Trademark Office
(USPTO) would initially refuse to grant the company a patent based on its store design claiming
it was merely decorating, the company would however reapply two years later and armed with
evidence that their retail stores were easily identifiable by customers and hence could be
considered trade dress. Apple highlighted the uniformity of its stores as well as consumer
testimony and surveys that affirmed this and the USPTO would hence end up agreeing that these
stores were a form of acquired distinctiveness (Yang, 2014). This trade dress is hence crucial to
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the company’s identity and there was the need to stop competitors from copying this store
design. The Apple store is defined by its black, white, and sky-blue color scheme as well as its
minimalist approach. The company has also sued companies like Psystar which had infringed on
its copyright by sealing the copyrighted Mac OS software on a non-apple device and won.
Through such measures, the company ensures a seamless user experience across its products
which generates customer loyalty and builds a cult-like following (Yang, 2014).
Trade secrets are also key to the company’s success; the company maintains a lot of
secrecy about the upcoming products it is working on. Through this, it is possible to build
anticipation and the products hence fly off the shelves once announced. Apple hence likes to
maintain a lot of secrecy even regarding the most basic information since this allows the
company to generate buzz before the release of a new product (Yang, 2014).
Conclusion
Going up against a company like Apple will be an uphill battle since the company will
have to navigate the intricate web of intellectual property protection and ensure that it does not
step on Apple’s toes since it is likely to face lawsuits. The company also must create internal
controls within the company that will ensure that the company adheres to laws and regulations
and hence does not face any legal liability. Apple’s case also highlights the need to be vigilant
with trademarks, copyrights, patents, and trade secrets since they are a source of competitive
advantage and hence key to success in the global market landscape.
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References
Apple Inc. (2022). Business Conduct: The way we do business. Retrieved from:
https://www.apple.com/compliance/pdfs/Business-Conduct-Policy.pdf
Labib, J. (2023). The Apple Doesn’t Fall Far from the Tree: An Apple Inc. Right to Repair Case
Study.
Yang, F. (2014). China’s ‘fake’Apple store: Branded space, intellectual property and the global
culture industry. Theory, Culture & Society, 31(4), 71-96.
1
Apple’s History of Resolving Disputes
Jami Britton
American InterContinental University
Professor: Jacob Carroll
Course: MGT525-2305B-02
Date: 12/11/2023
Apple’s History of Resolving Disputes
Apple is known for being litigious especially when it comes to patent infringement. The
company has been at the forefront of groundbreaking technology and as such other companies
have attempted to copy its formula to keep up. The company has hence been forced to take legal
action against other companies in the global business environment to protect its competitive
advantage. This paper will hence highlight two of the most relevant intellectual property disputes
that Apple has been involved in, one is with Microsoft, and the other one with Samsung. This is
meant to inform the dispute resolution framework for the laptop company against a potential
competitor Apple.
Apple V. Microsoft and Samsung
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The first major conflict Apple faced was with Microsoft between the 80s and 90s. Apple
sued Microsoft for copyright infringement in 1988 following the release of Windows 2.0 which
was an improvement from the first version. Apple however held that this improvement was a
result of copying the Macintosh visual displays and this occurred without proper licensing which
hence constituted copyright infringement. Microsoft had been allowed to see the Macintosh
prototype before its release since it was charged with the responsibility of creating the
productivity software (Myers, 1995). Bill Gates was very impressed with the Mac OS and urged
Apple to license this software to an outside manufacturer so that it could become the standard in
computing. Apple would however turn him down, when Windows 1.0 was unveiled in 1985
Apple noted several design elements that copied the Macintosh and hence threatened to sue. The
two companies had however established a close enough relationship that Apple agreed to license
these design elements to Microsoft so that they could be used in Windows (Myers, 1995). The
Apple legal team however failed to notice that in making this licensing deal they were also
agreeing to the use of Apple features in all future Microsoft software programs. The release of
Windows 2.0 with copied design elements from the Macintosh hence came as a shock to Apple
and they hence decided to pursue legal action. On July 25, 1989, the judge would however rule
in favor of Windows pointing out that the graphic user interface was covered under the existing
licensing deal. The GUIs were a game changer since they marked the shift from text-based
interfaces to include visual elements like windows, icons, buttons, and audio indicators for user
interaction. GUIs would introduce graphical icons and audio cues that would make computers
more user-friendly. This technology was developed by Apple but would be coopted and
improved upon by Microsoft who would make them a standard in modern computing (Myers,
1995). Apple hence felt wronged and would repeatedly appeal the ruling, but the judgement was
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ultimately in Microsoft’s favor since there was a contract in place and the accusation of copying
the look and feel of a Macintosh constituted an idea that could not be copyrighted. This case
hence highlights the importance of paying attention to the precise language used in legal
agreements, especially in intellectual property matters. This case would also set a precedent that
copyright protection extends to an expression and not an idea and while distinct elements of a
system can be copyrighted, the overall system cannot since it consists of an idea or a functional
principle. The final appeal was in 1994, however the lingering infringement would not be
resolved until 1997 when the two companies engaged in direct negotiations.
While Apple V. Microsoft was a major conflict, Apple V. Samsung has been labeled as
the patent trial of the century. This was an issue of major interest since Apple and Samsung are
serious competitors in the global business environment and hence are always trying to outdo
each other in sales and technological innovations. These companies also target the same
consumers and are hence likely to engage in litigation to protect their competitive advantage
(Albasoos & Al Musallami, 2020). These companies have filed lawsuits against each other not
only in the US but in other parts of the world based on patent rights infringement. This conflict
would begin in 2011 following the release of the Samsung Galaxy 11 which Apple claimed had
features similar to the iPhone and iPad which was an infringement of its intellectual property
(Albasoos & Al Musallami, 2020). Apple accused Samsung of copying several design elements
that were unique to the iPhone and the iPad. These features include the rectangular shape with
rounded corners, the grid of icons for apps, and the bounce-back or rubber-banding effect when
scrolling. Samsung would be found guilty and would be ordered to pay $1.05 billion (Albasoos
& Al Musallami, 2020). This amount would however be reduced following appeals. Samsung
would also countersue claiming that Apple had infringed upon its wireless communication
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technologies and the number of patent issues under contention would continue rising. The
outcomes varied in various countries with Apple winning some and Samsung winning others.
The issue is made more interesting by the fact that Samsung is one of Apple’s biggest suppliers
and there is hence an incentive for Apple to maintain this business relationship. The two parties
hence made efforts to negotiate but these negotiations would end in an impasse and would force
these parties back to court since both parties were unwilling to budge. The two companies would
however reach a settlement in 2018, the terms of the settlement were however not disclosed
publicly but both parties agreed to drop ongoing litigation (Albasoos & Al Musallami, 2020).
Proposed Dispute Resolution Framework
Litigation can be very expensive and time-consuming and as demonstrated by the case
between Apple and Samsung it has become an issue regarding market share since a lot of the
issues between the two companies a lot of the issues were not serious infractions and were used
as retaliation tactics. The two companies were essentially sizing each up as a show of strength
and to increase their market share. In 2011 for instance Apple spent more on patent lawsuits and
building a patent portfolio than it did on research and development (Benton & Koch, 2014).
While in competition with Apple, the company is hence dedicated to avoiding unnecessary
litigation by using alternative dispute resolution systems namely negotiations, mediation, and
arbitration since going against this corporate giant would be a sure way of being pushed out of
the market. Alternative dispute resolution systems will hence be pursued first before these issues
are escalated and litigation is pursued.
Negotiation
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The company will ensure that the communication channels are open with Apple as well
as other competitors in the global business environment. This is an effort to ensure that direct
discussions are held at the earliest possible point if any issues were to emerge. Through this, it is
possible to ensure a win-win resolution is reached that is of benefit to both parties. Apple tends
to engage in negotiations following a long, tedious legal battle. The company however seeks to
negotiate first and seek the legal process only if both parties are unable to come to terms. This
approach seeks to maximize value for both parties involved as well as foster long-term
relationships based on trust and goodwill. The negotiation strategy that will be employed will be
based on appealing to shared interests that will benefit both companies. This can hence lay the
foundation for more collaboration in the future and hence the establishment of a possibly
mutually beneficial relationship (Lande & Benner, 2016).
Mediation
If the issue escalates, the two companies can consider mediation whereby a neutral third
party with knowledge of technology and intellectual property will be used to handle the dispute.
This process will be confidential to allow both parties the freedom to discuss things openly
without fear that this information will be made public. Through this process, it will be possible
for both parties to get an understanding of the true risk of litigation as well as evaluate each
other’s claims. In most cases, this will likely lead to a settlement. If negotiations fall through,
both parties will hence engage in non-binding mediation using a mutually agreed upon mediator.
The process will remain confidential, and the settlement reached will be non-binding unless
otherwise agreed upon by both parties (Lande & Benner, 2016).
Arbitration
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If mediation is unsuccessful, the company will hence pursue arbitration since it is easier,
faster, and less complicated when compared to an actual trial. An established arbitrational body
with a background in technological issues will hence be selected. A legally binding decision is
hence made by the arbitrator who is agreed upon by both parties and it is hence possible to obtain
a private resolution instead of having to go to court. If either party opts out of mediation the case
will hence be presented to an arbitration body and the decision that will be made by the
arbitrators will be final, binding, and enforceable in any court of competent jurisdiction (Lande &
Benner, 2016).
Conclusion
When operating in the global business environment and dealing with a company as
litigious as Apple it is hence best to avoid trial. The company should ensure not to step on any
toes when it comes to intellectual property since patents are being weaponized as instruments to
push each other out of the market and hence gain a greater market share. This hence calls for
establishing a robust and collaborative approach to dealing with any potential conflict with
Apple. This alternative dispute resolution system should begin with negotiations and end with
arbitration to ensure fair and timely resolutions as well as preserve key business relationships. In
business, conflicts are likely to arise, and the proposed framework hence represents a proactive
measure against expected disputes and is meant to ensure the long-term success of the company.
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References
Albasoos, H., & Al Musallami, N. (2020). The conflict between Apple and Samsung over patents
and copyrights. Bussecon Review of Social Sciences (2687-2285), 2(3), 1-17.
Lande, J., & Benner, P. W. (2016). Why and How Businesses Use Planned Early Dispute
Resolution. U. St. Thomas LJ, 13, 248.
Benton, G. L., & Koch, R. (2014). 18 The Android Wars: International Technology Arbitration
in an Alternate Universe A Case Study of Apple v. Samsung. In Contemporary Issues in
International Arbitration and Mediation: The Fordham Papers (2013) (pp. 335-376). Brill
Nijhoff.
Myers, J. (1995). Apple v. microsoft: Virtual identity in the gui wars. Richmond Journal of Law
& Technology, 1(1), 5.
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Business Interest Comparison
Jami Britton
American InterContinental University
Professor: Jacob Carroll
Course: MGT525-2305B-02
Date: 12/17/2023
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Business Interest Comparison
The US and Canada are neighbors; it is, hence, logical that they would be the first
countries that would be used to launch the wireless laptops before attempting to reach a broader
global market. When discussing contract laws in the US and Canada, real distinctions are often
not made due to an overemphasis on shared characteristics and values between the two countries
that take away from their unique characteristics. Businesses can hence remain blind to the nature
of business practices in the two countries based on the assumption of similarities, and in the end,
this can lead to businesses being involved in complicated legal situations (Malone, 2021). While
the end result may be similar, the methods of enforcement and the procedural elements can vary.
This does not necessarily affect the substance of the agreements but should inform the practical
aspects of compliance, dispute resolution, and overall contractual relationships.
Enforceable Contracts in the US and Canada
In both the US and Canada, the letter of intent happens to be a valuable but potentially
risky tool in the negotiation of commercial agreements. Typically, commercial agreements are
based on a “one-shot” sale-of-goods contract, and as such, the seller and the buyer are assumed
to have had no prior or future contractual engagements. This, however does not capture the true
nature of complex business relationships since businesses tend to engage in multiple transactions
over time since there are repeat customers and the use of the same suppliers. As such, when
sellers and buyers engage in repeated transactions beyond the initial one, any issues regarding
the formation and enforcement of the contractual relationship are typically treated as if each
transaction is a distinct sale-of-goods contract (Porter, 1986). This understanding exists in
contrast to the relational contract, where parties establish an ongoing contract over time. The
relational contract is hence marked by mutual dependence and trust that does not need to be
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explicitly stated. Examples of relational contracts include partnership agreements, distributorship
agreements, franchise agreements, or license agreements. There is, hence a long-term association
that makes a foundation of trust a critical and even necessary component. When forming
contracts in both the US and Canada, there is, hence, the need to distinguish between
transactional and relational contracts when sending letters of intent to ensure that both parties are
on the same page. In relational contracts especially, the letter of intent may signal a commitment
to a more enduring relationship, requiring careful consideration of the potential consequences
and obligations that extend beyond a single transaction. There is, hence the need for clarity on
this specific issue (Porter, 1986).
The global business environment has reported a shift in the adoption of relational
contracts since transactional contracts have evolved into more complex, relational agreements.
This is based on the fact that sellers recognize the need for centralized product distribution from
the importing country. As a result, transactions that would traditionally have been
straightforward sales now often entail parallel and offsetting commitments. They could, hence,
involve additional agreements such as for assembly, investment, or other collaborative ventures
in an effort to streamline logistics, optimize efficiency, and enhance overall market reach.
Furthermore, due to the need for reliability in the supply chain, buyers are even insisting on
making equity investments in the seller’s business to ensure that they have a level of control over
critical sources of supply (Porter, 1986). Through this, buyers can protect themselves against
potential disruptions by having a vested relationship in the success and stability of the supplier.
A strategic partnership is hence formed. Due to the broader nature of a relational contract, the
negotiation process can last longer, and parties involved may also seek evidence that the
proposed transaction will indeed move forward. A letter of intent is the preliminary document
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that serves this purpose and demonstrates good faith and the intention to proceed with the
contract. It can convince third-party financiers to make a loan commitment or even convince
government agencies that both parties are committed to the proposed transaction (Porter, 1986).
As such, failure to follow through can have legal and financial implications. Letters of intent
should hence only be sent after a business has made all due considerations and should be
characterized by clear language and well-defined scope to avoid the likelihood of
misunderstandings, especially considering the fact that a dispute could develop over a basic term.
Canadian courts are known to find parties liable for damage and expenses over language used in
the letter of intent.
In the US, the Uniform Commercial Code (UCC) contains provisions regarding letters of
credit (Article 5) and personal property security (Article 9), which are effective measures for
securing transactions. In Canada, however, there are no federal or provincial legislation
specifically addressing letters of credit; several provinces have, however, adopted or
contemplated adopting a UCC-type measure. In the absence of this measure, Canadian letters of
credit are governed by Uniform Customs and Practice for Documentary Credits (UCP) of the
International Chamber of Commerce (ICC (Porter, 1986)). These are, however, international
standards meant to govern global trade transactions but lack inherent legal force in Canada.
When dealing with letters of credit in transactions involving the US and Canada, there is the
need to consider the specific circumstances due to overlapping and non-statutory provisions. If
enforceability in the US is not an issue, it may just be easier to draft the letter in accordance with
UCP standards to ensure uniformity in interpretation. Based on the knowledge that disputes are
often centered on payment rather than document creation, it may be appropriate to select the law
of the paying bank’s forum. The use of letters of credit hence calls for the evaluation of document
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relevance, governance structures, enforceability, choice of law, and the laws of the forum
(Porter, 1986).
An issue of concern is based on Article 4 of the UCP in regard to the autonomy of the
underlying transaction, which states that “all parties concerned deal in documents, and not goods,
services, and/or other performances to which the documents may relate.” In practice, fraud is
often considered an exception when it comes to recognizing this principle. Canadian courts have,
however, shown hesitancy in exercising the fraud exception, which allows courts to set aside the
autonomy of the letter of credit when fraud is detected and hence provide an avenue for legal
intervention in cases of deceit (Porter, 1986). The failure to acknowledge the fraud exception is
hence of concern since it may affect the fairness and legality of transactions. Furthermore,
authority over secured transactions is at the provincial level, with federal laws covering banking,
bankruptcy, and insolvency (Porter, 1986). The lack of uniformity and the differences in the
provinces can hence cause confusion, and federal-provincial conflicts that run rampant can
present a legal landscape that is difficult to navigate.
In Canada, a lot of power lies in the provinces. The Canadian provinces are much more
powerful than the US states, and hence, when making cross-border transactions, a US-based
company will have to navigate a multiplicity of provincial laws and regulations, while in the US,
these transactions would be mostly based on federal laws. Furthermore, while procedures are
generally the same between the two countries, the legal system is based on common law.
Commercial law outside of Quebec (civil law applies in Quebec) is hence less codified compared
to the US (Porter, 1986). In Canada, there is also no uniform sale of good laws across the
provinces. In its place, there is a collection of sale-of-goods statutes in the common law
provinces based on the English Statute of 1893, which apply to goods and consumer protection.
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Commercial sales transactions, however, remain largely unregulated. The courts, hence play a
significant role in addressing perceived unfairness pertaining to clauses that limit or exclude
liability. The concept of fundamental breach has also come up in Canadian courts, which
suggests that exemption clauses should be interpreted strictly against the party who drafted them
(Porter, 1986). There has been an ongoing debate as to whether this is a rule of law or a rule of
construction. If it is a rule, it operates regardless of the parties’ intention, and if it is a rule of
construction, the entire contract has to be analyzed to determine the parties’ intentions.
Alternative dispute resolution is also valued in both the US and Canada; during business
contracts, there is, hence, the need for an arbitration clause that stipulates that arbitration will be
pursued before seeking legal recourse. There is also the need to agree on the arbitration process,
including the process of selecting the arbitrator and the institutional rules that will govern the
process (Malone, 2021).
Applicable Bilateral or Multilateral Treaties Regarding Trade.
The most relevant agreement between the two countries is the United States-MexicoCanada Agreement (USMCA), which in July 2020 replaced the North American Free Trade
Agreement (NAFTA). This agreement creates balanced reciprocal trade among the three
countries and enhances labor rights to bring about fair working conditions and labor practices
that ultimately support the growth of the North American economy. This agreement also includes
intellectual property protections that are in alignment with 21st-century standards and create
opportunities for trade among the three nations (Villarreal & Fergusson, 2020). There are also
provisions that govern digital trade, anticorruption, and regulatory practices. The USMCA
addresses digital trade by prohibiting custom duties on electronically transmitted content and
hence facilitating the free flow of data across borders. The two countries are also members of the
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World Trade Agreement (WTO) and hence grant each other Most Favored Nation status, which
ensures favorable trade terms between the two countries as well as dispute resolution
mechanisms through consultation and dispute resolution channels.
Contractual Duties
Contractual Duties in the US
•
The US company agrees to deliver quality goods within the specified time frame as
outlined in the contract.
•
The parties agree to pricing based on the US dollar, and any changes to the currency
exchange rate will not impact initially agreed-upon prices.
•
The parties agree to comply with applicable US laws that govern the production, sale, and
transportation of goods.
Consequences of Breach in the US
Failure
