Customary international law and multilateral trade treaty enforcement

¶ … International

Law And Its Enforcement

ABBRIEVIATIONS

CIL:

Customary International Law (Kontorovich 2006, ¶ 1).

CISG:

Contracts for International Sale of Goods (Cuniberti 2006, ¶ 1).

FDI:

Foreign Direct Investment (Thomas 2006, ¶ 1).

GATT:

General Agreement on Tariffs and Trade (Reed 2006, ¶ 1).

IL:

International law (Kontorovich 2006, Introduction section, ¶ 2).

U.N.:

United Nations (Cuniberti 2006, Introduction section, ¶ 1).

WTO: World Trade Organization (Reed 2006, ¶ 1).

THE PROBLEM of INTERNATIONAL LAW and ITS ENFORCEMENT

"There are more than 50,000 international treaties,

600 of which cover multilateral trade issues"

(Bourque & de Sousa 2005, ¶ 1)

INTRODUCTION

International Law Considerations

Along with multilateral trade treaties and model laws, harmonized trade rules help ensure goods and services successfully flow from one country to another. The hundreds of such multilateral treaties, albeit, with many more coming into existence, constitute critical challenges that businesses, countries and numerous organizations have to routinely deal with. In the article, "Making sense of trade treaties: As world trade grows more complex, the rules for international business are also growing in number and intricacy…," Jean-Francois Bourque and Prema de Sousa (2005) relate numerous concerns and considerations related to international law. Historically, international organizations focused on developing trade rules, not actually considering concerns regarding the rule's applications in diver countries.

As this paper considers concerns relating to international law, the researcher discusses a number of practical business issues an organization engaged in international trade faces. This paper also relates information regarding international law and contracts, CISG, relationships between domestic and international law, transport of goods, WTO, and business structure for foreign investment.

Nations. (4lawschools, as quoted in International Law 2009)

the states and substate actors in the international system and the institutions and norms that regulate their interaction; implies that these actors communicate, sharing common interests and a common identity; identified with British school of political theory. (Norton, as quoted in International Law

2009)

The system of law regulating the interrelationship of sovereign states and their rights and duties vis-is one another. ... (UNaids, as quoted in International

Customary international law (CIL) may not improve the welfare of nations. Nevertheless, the purpose of customs is not to improve welfare or attain any other normative goal. Instead, CIL emerge from a system of interactions within a group (Kontorovich 2006).

CISG

Gilles Cuniberti (2006), Associate Professor of Law, Paris Val-de-Marne University, France, examines Contracts for International Sale of Goods (CISG) in the journal publication, "Is the CISG Benefiting Anybody?" Cuniberti reports that surveying 181 court decisions and arbitral awards applying the CISG reveals that despite the value potentially lost, most international buyers and sellers do not address the issue of the law that governs their contracts. Due to the dearth of concern regarding the legal regime governing the contracts, increasing legal does not benefit them ex-ante. In addition, "they do not incur the transaction costs that a harmonization of the law of sales could save" (Cuniberti 2006, ¶ 1). Even though a few parties do provide for the applicable law and appear more sophisticated, due to the limited scope of the CISG, even these parties do not plainly benefit from the international harmonization.

To a significant extent, according to Cuniberti (2006), during 2006, the United Nations (U.N.) Convention on Contracts for International Sale of Goods harmonized international sales law. "This uniform law is applicable in sixty-six states, which include most of the major trading nations" (Cuniberti 2006, Introduction section, ¶ 1). CISG governs numerous areas of sale law, particularly the recital of the contract. The process of harmonization has secured support for approximately 100 years. This fact, along with numerous countries adopting the CISG, has contributed to increasingly difficult challenges regarding the enterprises usefulness. Although no scholars have disputed the usefulness of the CISG process, some scholars have challenged the CISG's usefulness; arguing that the poor quality of harmonization achieved challenges it benefits to commercial parties. (Cuniberti 2006, Introduction section). Domestic and International Law

Jacob Barron (2008), feature writer for Business Credit, asserts in the article, "Do your homework: Cultivating an effective international business relationship takes time, dedication and preparation, but almost always pays out in the long run," concerns challenging international credit managers include the legal differences between countries. The U.S. legal system consists of domestic and international laws that provide protection and rules. In some other countries, however, even when they have passed domestic and international laws, at times those laws may not be enforced or require such an extended period of time that the laws become ineffective. Transport of Goods

In the journal publication, "International transport," Peter M. Walker (2007), author of the guide, Consumer Law, stresses that when shipping products globally, reading the fine print and insuring packages proves critical. If a parcel gets lost, for instance, this may affect credit management, particularly when the would-be recipient refuses to pay the invoice. Walker relates one example of complications occurring when three packages of Pentium IV computer processors disappeared during transport. The consignment, worth approximately $378,000 (U.S.), had been transported by land and air from the UK to Amsterdam, where it was lost. Difficulties from the terms of the contract with the Carrier quickly arose. "The Carrier's duties included the collection, transportation, and delivery of the goods. The contract furthermore stipulated the maximum weight and dimensions of each parcel, of which the value was not to exceed U.S.$50,000. The consignment was worth much more" (Walker 2007, ¶ 3). If the parcels failed to comply with those restrictions, the terms of the contract stipulated, the Carrier would not accept liability for any losses. The Carrier asserted that it would only be liable if the Carrier did not act with "reasonable care and skill," if either of the Conventions did not apply, would the Carrier be liable. The Consignor demanded compensation totaling $1.5m (U.S.), but the airline, the contractor, claimed that as a result of the Convention, its liability was limited. The airline's conditions noted in the airway bill allowed more generous compensation, subject to limitations, because the flight ended in Paris (Walker 2007). Becoming familiar with the domestic and international laws of the company a business ships to, Walker explains, as well as those of the company it ships from, proves vital.

The judges of the Court of Appeal consequently ruled that this Convention applied to the transportation between Paris and Dublin. This overrode the airline's terms and conditions including those limiting its liability. Appeal Courts can review findings of fact, but more importantly business people responsible for shipments must understand their contracts and the implications of the various Conventions. This must be backed up by appropriate goods-in-transit insurance. The result is more administration and paperwork by keeping records of consignments and their values. If goods go missing, so that customers rightly refuse to pay their invoices, businesses must have sufficient compensation to put matters right (Walker 2007, Conclusion section, ¶ 1-2).

Hans Lehmann (2006), Victoria University of Wellington, New Zealand, explains that the traditional freight forwarder's market consists of managing the door to door transportation of goods which measure larger than parcels, yet smaller than bulk. The forwarder's market resells transport capacity purchased wholesale. In the journal publication, "European international freight forwarders: Information as a strategic product," Lehmann (2006), contends that European companies, primarily German-speaking origin, appear to dominate the global market. Due to general reliance of European business on trade across country borders, along with the centuries of experience appear to have given European firms a distinctive advantage in the global market. As the markets for forwarding considerably grown, a myriad of profitable opportunities have evolved which involve worldwide information technology.

Dr. Patrick C. Reed (2006), Columbia University School of Law, investigates recent developments in the relationship between World Trade Organization (WTO) obligations and U.S. international trade law. In the journal publication, "Relationship of WTO obligations to U.S. international trade law: Internationalist vision meets domestic reality," Reed reports that even prior to the U.S. approval of the WTO agreements, the effect of international trade agreements had emerged as an issue in U.S. trade litigation in the context of pre-WTO General Agreement on Tariffs and Trade (GATT) agreements. In 2006, more than eleven years after Congress approved the WTO agreements, the issue remained controversial, however (Reed 2006).

Reed (2006) Reed contends, that in regard to agreements, GATT suggests reinstating the treatment of WTO agreements and decisions in domestic U.S. law.

1. If the domestic statute proves unambiguous, the consistency question with WTO obligations proves irrelevant.

2. Where the domestic statute proves to be ambiguous and it becomes "abundantly clear" that the agency explanation of the statute is not consistent with the WTO agreement language, the courts can be expected to overrule the agency's interpretation by utilizing the WTO agreement as secondary legislative history.

3. Where the domestic statute proves to be ambiguous and a WTO agreement or decision supports the agency's interpretation, the WTO consistency endorses the end that the agency's explanation is permissible.

4. Where the statute proves ambiguous and the agency's interpretation is not consistent "with a WTO panel or Appellate Body interpretation of the corresponding WTO agreement, the courts give the WTO decision "respectful consideration" under the Federal Circuit's July 2006 decision in Cummins, but in practice sustain the agency's interpretation" (Reed 2006, Conclusion section, ¶ 1).

5. Where a WTO panel or Appellate Body rules a U.S. regulation or practice is not consistent with WTO obligations, "the courts have left it to the Executive Branch to determine whether or not to implement the adverse decision and, if implemented, the extent of implementation" (Reed 2006, Conclusion section, ¶ 1).

From a wider perspective, Reed (2006) concludes, the U.S. treatment of WTO agreements and dispute settlement decisions may be perceived as an abbreviated case study. The case study reveals "the dichotomy in international relations theory between liberal internationalism and realism. Liberal internationalism posits that states have or should have a 'harmony of interests' in such matters as an open integrated international trade regime and compliance with international law" (Reed 2006, Conclusion section, ¶ 2). At its threshold, realism, begins with the empirical observation that often, states do not possess the alleged "harmony of interests." Liberal internationalism purports the strong deduction that a conflict between U.S. actions and international law or international agreements should not exist. Realism, on the other hand, maintains that this presumption may not always be maintained.

Sol Picciotto (2007), Professor of Law, School of Law, Lancaster University, UK, asserts that individuals do want global rules. "If the WTO did not exist," Picciotto stresses, people would demand a forum be made available for governments to negotiate rules. Rules, ratified by national parliaments, promote freer trade and proffer a transparent and predictable business framework. People want a mechanism to help governments avoid engaging in blows over trade disputes. WTO does not "lay down the law," according to Picciotto, but upholds the rule of law. Not having this law would likely contribute to some reverting back to the law of the jungle.

The WTO acts in several ways as a global governance node. It constitutes an introduction point of intersection of diverse regulatory networks. In the journal publication, "The WTO as a node of global governance: Economic regulation and human rights discourses," Picciott (2007) asserts that the interaction of WTO rules with human rights norms serves as an example of normative interactions. It also stimulates more basic questions regarding "the relationship of the discourses and practices of economic regulation and those of human rights" (Picciotto 2007, ¶ 1). Picciotto concludes that although frequently misunderstood, the WTO proves to depict a powerful force for good throughout the world. Those in business do not constitute a world government. Governments decide at the WTO - not individuals

Business Structure for Foreign Investment

Rob Thomas (2006), principal lecturer in business environment at the University of Portsmouth, explains in the journal publication, "Foreign direct investment: An activity to assess country risk," that foreign direct investment (FDI) depicts globalization in its most potent form. The primary concerns of companies involved in FDI mirror those of companies investing in their native country. The uncertainties of setting up abroad, nevertheless, particularly in the legal realm, may prove more challenging due to less information and frequently less familiarity with the non-resident country.

In the article, "Critical questions in foreign investment," Irfan Shahzad (2006), feature writer for Economic Review, asserts it is vital to consider which sectors need the FDI the most, as well as how to best prepare these sectors for the same. In soliciting capital from abroad, after accurately identifying sources, efforts need to be made to channel the inflow of funds to priority sectors. Even though big FDI investments may proffer a sense of satisfaction to the policy makers, "the actual requirements of the economy and its masses remain far from fulfilled" (Shahzad 2006, ¶ 15). To remain in compliance with and/or contending with a number of the more than 50,000 currently existing international treaties, of which more than 600 cover multilateral trade issues (Bourque & de Sousa 2005), the business needs to implement a comprehensive, well thought-out strategy. To benefit optimally, strategies in international law need to be formulated in consultation/consideration with stakeholders in each business sector and involved country.

The following list Bourque and de Sousa (2005) suggest the following in regard to creating a treaty, the researcher asserts relates to contemporary problems in international law:

Does the treaty actually address the needs of a broad range of countries.

Are a wide array of actors, including business, academia, numerous countries, representatives of different ministries, etc. taking part to help shape the rules?

Will international organizations promote ratification by plainly explaining the benefits of the treaty?

Are international treaties simple and coherent? Do they avoid duplication and encourage rationalization?

Are regional bodies involved in the negotiations as multilateral conventions frequently inspire regional laws?

Examining international laws and treaties, growing in number and intricacy, the researcher asserts, from the time prior to some of them being drafted to how they and others are implemented, reflects new responsibilities. These responsibilities present challenges for the organizations managing trade treaties; for governments; for legal practitioners: academia; for the business sector engaging in international trade.