2 Law
Uploaded by
Anamika T Anil2 Law
Uploaded by
Anamika T Anil2: international trade,
legal regulation and
conflict of laws
1.Public and private international law
International law is the system regulating the interrelationship of the
sovereign states and their rights and duties with regard to one another.
Public International law: consists of rules and principles which apply
in general to the conduct of sovereign states and international
organisations and the relationships between them. (Eg:- War nadakkumbo)
Private International law: regulates cases which involve the national
laws of two or more states where a different result will ensue
depending on which state’s law is applied. (2 countries thammil trade nadakkumbo
eth country de law edukkanam or engane aa case deal cheyyanam)
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2. Conflict of laws and the need for international regulation
Conflict of laws will arise where the law of two different countries
produces different outcomes, making it difficult for parties in those
countries to trade with one another.
2.1 barriers to free international trade
Barriers to free trade exist to protect markets from outside
competition. They include tariffs or customs duties, import quotas,
hidden subsidies for exporters, embargoes, import restrictions as well as
the barriers created by difference of laws.
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2.1.1 tariffs or custom duties
Tariffs or custom duties are taxes on imported goods. The effect of a
tariff is to raise the price paid for the imported goods by the domestic
consumers , while leaving the price paid to foreign producers the same, or
even lower. The difference is transferred to the government sector.
2.1.2 import quotas
Import quotas are the restrictions on the quantity of a product that is allowed
to be imported into the country.
2.1.3 embargo
An embargo on imports from one particular country is a total ban, is
effectively a zero quota. (oru particular country il ninnulla ella imports um totally ban
cheyyuka) 4
Deterrents - Restrict
2.1.4 hidden export subsidies and import restrictions
There is a range of government subsidies and assistance for exports
and deterrents against imports.
For exports- export credit guarantees(insurance against bad debts
for overseas sales), financial help ( such as government grants to the
aircraft or ship building industry) and general assistance
For imports- complex import regulations and documentation, or
special safety standards demanded from imported goods and so on.
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3. Role of international organizations in trade
3.1 THE UNITED NATIONS
The purpose of UN are to:
Maintain peace and security
Develop friendly relations among nations
Co-operate in solving economic, social, cultural, humanitarian problems
Promote respect for human rights and international freedoms
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3.2 un commission on international trade law (uncitral)
UNCITRAL is the legal body of the UN which has largely harmonized and unified
public international law. It was established in 1966 when the General Assembly
recognized that disparities in national laws governing international trade created
obstacles to the flow of trade. UNCITRAL was given the task of harmonizing and
unifying the law of International trade by:
Co-ordinating and Co-orperation
Promoting wider participation and wider acceptance
Preparing new international conventions
Ensuring a uniform interpretation and application of international laws
Collecting and disseminating(spread) information on national legislation
Maintaining liaison(relationship) with other UN organs and other agencies
Taking any other action it may deem useful to fulfil its functions
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3.3 international chamber of commerce ( icc)
The ICC is an organization created by business leaders from various
countries which aims to ‘ serve world business community by promoting
trade and investment, open markets for goods and services, and the
free flow of capital’.
The ICC makes representations to governments on issues related to
international trade.
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3.4 WORLD TRADE ORGANISATION (WTO)
The WTO is an organization which provides rules for the system of
international trade. The organization seeks to promote the free flow
of trade by removing obstacles to trade and to make sure that
individuals, companies and governments know what these rules are.
The WTO :
Administers trade agreements
Is a forum for trade agreements
Settles trade disputes
Reviews national trade policies
Assists developing countries in trade policy issues
Co-operates with other international organisations.
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The structure of the WTO is:
A Secretariat based in Geneva, which supplies technical support for
councils and committees.
The Ministerial Conference, which is the top decision making body and
meets at least once every two years.
The General Council, comprising ambassador based in Geneva, but
sometimes officials are sent from member countries which meets several
times a year in Geneva
Sub-councils, such as the Goods Council or the Services Council, which
report to the general council
Specialised committees and working groups.
Decisions of the WTO are taken:
By consensus generally (although a majority vote is permitted)
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By the entire membership
The General Council is also known as the Dispute Settlement Body (DSB)
when relevant. It has the authority to:
Establish a panel of three or up to five experts from different countries
to hear a case
Accept or reject the panel's findings
Accept or reject (by consensus) an appeal on a point of law within 30
days
Monitor the implementation of rulings and recommendations.
Appeals are heard by 3 members of the Appellate Body which:
Is a permanent body
Is made up of seven members who have to be individuals with
recognized standing in the field of law and international trade and not
affiliated with any government
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Can uphold, modify or reverse the original panel's findings
3.5 organisation for economic co-operation and development(oecd)
The OECD is a group of countries whose modern aim is to be a forum for
discussing, developing and refining economic and social policies.
The OECD:
Has 30 member countries from most continents
Has relationships with a further 70 countries
Was historically an organization set up to administer US and Canadian
aid to Europe after World war II
Creates legally binding agreements and non binding guidelines for
countries
Invites non-member countries and member countries to subscribe its
agreement 12
Provides guidance, e.g.:- on corporate governance
3.6 international institute for the unification of private law(unidroit)
UNIDROIT is an independent, inter-governmental organization.
UNIDROIT:
Studies needs and methods of harmonizing private commercial law (Modifying)
Has 63 member states from 5 continents with a variety of different legal, economic
and political system
Is financed by contributions from member states
Draws up international conventions which are designed to have the force of law in
priority to existing domestic law where adopted
Draws up model laws for states to take into consideration when drafting their own
private law
Draws up general principles addressed to judges or arbitrators who are free to
decide whether to implement them or not.
Has a three tiered structure, with a Secretariat, a Governing Council and13 a General
Assembly.
UNCITRAL is the core legal body of the UN. It is responsible for a number of
model laws such as the UNCITRAL Model Law on International Commercial
Arbitration. ICC is the International Chamber of Commerce and the WTO is
the World Trade Organisation. Both organizations operate in the field of
international trade but do not create Model Laws.
The World Trade Organisation (WTO) seeks to promote the free flow of
international trade and its agreements are based on principles of free trade.
The other organisations are international bodies concerned with trade but do
not have the free flow of trade as a goal.
UN Model Laws may be adopted by nations into their own national laws, but
this is optional. Conventions and treaties are binding on nations that sign up
to them.
UN Model Laws (such as the Model Law on International Commercial
Arbitration), may be adopted by nations to help businesses avoid the
problems of conflict of laws. The other options are automatically binding on
nations that sign up to them.
The International Institute for the Unification of Private Law (UNIDROIT) is
an intergovernmental organisation who rules are in the form of international
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conventions.
