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MOOT SCENARIO 3 - International Gay and Lesbian Alliance Co. Ltd.
The County Council of Bigotshire, an English county, owns and manages Little Bigot Heath, an area of open land which is often used for meetings and gatherings of various kinds. A large majority of the county councillors hold far-right 'moral majority' views, and one of their principal manifesto commitments was the withdrawal of all forms of council support for gay and lesbian groups. Judging from newspaper reports and public opinion surveys, it is clear that there is widespread approval of this policy throughout the county.
The council recently turned down an application by the International Gay and Lesbian Alliance Co. Ltd. to hold a week-long festival of cultural and social events on Little Bigot Heath, stating as its reason that 'given the clearly expressed feelings of disgust that many people in the county have towards homosexual activities it would not be for the benefit of the county or its people that a festival of this kind should be permitted on publicly-owned land'.
The International Gay and Lesbian Alliance Co. Ltd. sought judicial review of the council's decision. Shallow J. held, with regret, that the council's decision was lawful. He gave the following reasons for his decision:
He felt bound to follow, albeit to a different conclusion, the reasoning of Sir Thomas Bingham M.R. in R. v. Somerset County Council ex parte Fewings [1995] 3 All ER 20 (CA) that the land had been acquired under, and therefore had to be managed by reference to, section 120 (1) (b) of the Local Government Act 1972, and that since the council had clearly considered the question of whether the ban was for local benefit, it could not be said that the ban was ultra vires.
He also held that since the statute was unambiguous, following R. v. Secretary of State for the Home Department ex part Brind [1991] 1 AC 696 (HL), he could see no basis on which the International Gay and Lesbian Alliance Co. Ltd. could seek to argue that their legally recognised fundamental human rights had been violated; as such he could find no violation of human rights.
The International Gay and Lesbian Alliance Co. Ltd. now appeal to the Court of Appeal on the following grounds:
That the judge misunderstood the impact of ex parte Fewings; that there was an unreasonable exercise of discretion by the council, and that the judge therefore erred in holding that the ban was not ultra vires; and
That the judge was in error in holding the ex parte Brind prevented consideration of the applicant’s rights under the European Convention on Human Rights and that their legally recognised fundamental rights, as expressed in the Convention, had not been violated.
What is the purpose of international trade law? By the use of one area of international trade law explains how it has achieved any of its purposes.
Solution
Statement
The question deals with the international law for the trading of goods, services, etc., dealing with the purpose of implementing of international trade law. It further discusses the appropriate rules and the customs present in order to handle trade between two economies efficiently and the importance of international trade law during the legal writings in the trade occurring between the private sectors. The question divulges on the varying cultures in business and trade, legal environments as well as the different languages and the risk of confusion that increase on trading on an international scale. The international trade law helps to define a general rule of law during that trading. Due to globalization and international trade growth, the body of law has become very complex and ever-expanding. The main focus of this paper is to understand the purpose of the international trade in the ever-changing globalized world and how the trade law presents itself as a guide on during trade in various countries.
Further, the need for examining the statistics growth along with import export business of the country with various other data for making sound decisions in trading has been further discussing. The paper deals with the primary sources like treaties and international agreements along with the national legislation like the unilateral measure, and the case laws that deal with the resolutions of inter-state trade disputes. Further, the trade agreement can be bilateral or plurilateral and multilateral were trade is made within two states, limited states within the same geographic areas and multiple states respectively.
The essay initiates the international trade law and its importance in the trading organizations. It depicts an overview as so why the international trade law is different from the international economic law. The essay further puts into picture the importance of General Agreement on Tariffs and Trade GATT and WTO or World Trade Organization. The GATT is responsible for defining various rules a complete trading system that includes the mechanisms of protection, tariffs, and all the trading terms. These rules are efficient in making it easier for determining the grounds on which the disputes are going to be settled. ("WTO | Understanding the WTO - A unique contribution", 2016)
The aim of the essay is to study international trade and how it has achieved its sole purpose of better trading using one of the critical areas. The selected area of international trade law chosen for this field of study is the dispute settlements and the dispute settlements laws. The essay aims to describe the main purpose of the international trade law and its achievements.
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Summary
Since 1950, the world economy has encountered massive liberalization in the world trade. It started under the auspices of GATT or the General Agreement on Tariffs and Trade. Now it rests under the auspices of the WTO or World Trade Organization when WTO replaced GATT in 1993. Prasad in his study stated that the continuous growth of trade and investment simultaneously has made various economies be dependent on each other but has also increased the probability of the conflicts between the trading economies. This resulted in the various reforms in the international trade law. (Prasad, n.d.)
Westlaw was surveyed and examined for studying various legal issues and the international trade law itself along with the areas under it. It focused on the importance of international trade due to diversities in cultures, tradition, and legal environments as these factors are highly risky and lead to conflicts in the economies. Further, the use of Academic Search Complete was done for surveying the settlements of various dispute issues owing to the international trade laws. These dispute issues enlighten towards the need of a clear contract and involvement in the international trade law.
Further the ("Import-export services: Advice and guidance - Detailed guidance - GOV.UK", 2012) was used for surveying the legal issues for the international trade in the services and various factors. Further it gives details on GATT and how it defines various rules that are set for complete trading system. This trading system involves tariffs, and various trading terms. Various enterprises in China were directed to the international market, in China by applying all the international trade laws. (Sun, 2010)
Further, for studying the dispute settlements and how this area of concern helped to achieve the purpose of international trade law many journal articles were studied. International Commercial Law and Arbitration Conference (2013), a government publication was used as a primary source for dispute settlements. (International Commercial Law and Arbitration Conference, 2013) Further, a chapter on international trade law and dispute settlements on the international economic centre was used a viable source for working on this essay. ("Chapter 2: The Dispute Resolution Mechanism", n.d.). This chapter basically dealt with the procedure of dispute settlements being taken up by World Trade Organization or WTO. A brief on improvements in dispute settlements in WTO as compared to GATT, where the procedures used for settling of disputes were not effective and were time-consuming. With the emergence of WTO a mechanism where the organization could easily sort out the fine line between prerogatives of nations and the unacceptable restrictions on trade.
Further various WTO reports have been used as the secondary sources for this essay where the Uruguay Round and its implications for the developing countries have been mentioned in the essay. Consequently, introduction of better discipline for an extent of time any case would be taken to be settled along with deadlines that were set in various stages of the procedure were defined. (Blouin, 2012)
Introduction:
With the increase in trade of goods and services, the attention has been focussed on the responsibilities dealing with the deliveries. These practices, therefore, imposed a compulsion of adoption into law via common usage the repeatedly superseding the general rule of law into the trade.
The trading is basically of two types that occur between two economies. The first one where the receiving country itself is neither able to produce the goods nor provide the services that are in question or the case of insufficiency can also be included. Secondly, the case where the country has the capability of manufacturing the goods or providing the services, but they still import them. Hence a need for devising an international trade law was felt.
International Trade Law can be regarded as a cumulative of all the legal rules that are included in the international legislation along with the new lex mercatoria that is responsible for regulating relations in the international trade. The International legislation is the international treaties and acts of international intergovernmental organizations that regulate the relations in the international trade whereas the lex mercatoria is defined as the law for merchants on land.
A prominent development in the study of International trade law refers to the World Trade Organization and its establishment. World Trade Organization is a formal international organization that was established in 1995. ("The WTO and international trade regulation", 1999)
The whole structure and purpose of this organization were governed by the agreement that was with the agreement of establishment of World Trade Organization i.e. Marrakesh Agreement.
The basic principles of WTO include ("Basic Principles of the WTO and the Role of Competition Policy", 2002):
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Non-Discrimination
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Reducing the tariff and non-tariffs barriers for trading or market access
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Correct balance of trade liberalization with other societal interests
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Harmony of various national regulation like the TRIPS agreement etc.
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Whereas the scope of WTO is as mentioned below
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WTO has provided a framework for administration along with implementation of various agreements
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In the case of further negotiations, World Trade Organization acts as a forum as well.
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Acts as a mechanism in case of trade policy review
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Promotes better coherence amid the members’ economics policies.
In the case of the International Trade Law for the goods, GATT and WTO have proved to be the backbone of the International Trade Law. The GATT and WTO contain various rules and regulations regarding the unfair and mean trading practice which include dumping, subsidies, etc. (Nakatom, 2013)
GATT or General Agreement on Trade and Tariffs (GATT) was enacted for reducing the number of tariffs and trade barriers. Further, it was established for promoting various International trade immediately after the World War II.
The settling of disputes has been regarded as the central pillar of the multilateral trading system by the World Trade Organization (WTO). It is also regarded as a unique contributory factor providing stability to the global market. A dispute basically arises due to the adoption of some trading policy measures that the fellow member of WTO considers as breaking of the agreement of WTO. The third group of countries is free to declare their interests in either case and enjoy some rights. The economies that become part of WTO abide to multilateral systems for settling disputes and, therefore, entail abiding by the Dispute Settlement Understanding i.e. the agreed procedure. The Dispute Settlement Body (DSB) is an organ of WTO responsible for adjudicating the disputes. The DSB is often regarded as the most dynamic international adjudicative mechanism present globally. The dispute settlement system of WTO or the DSB has resolved up to 350 cases, where around one-fourth of the care reached to an amicable solution.
Due to the establishment of WTO, the trade disputes are not handled carefully in a healthier manner according to the rules agreed internationally. Therefore, it has been claimed that the increase in the number of disputes has expanded the world trade and with more cases being reported to WTO reflects the faith the economies put into the system. ("WTO | Understanding the WTO - A unique contribution", 2016)
The innovative WTO system is much stronger, more automatic, and more credible than GATT. It can be explained using the diversity of economies participating. For example, the total number of complaints that were filed under the Dispute Settlement Understanding (DSU) of WTO in 2000, since the beginning of the WTO was found to be 200. This indicated a continuous use of the dispute settlement procedures being used by the WTO members. While only 300 cases were brought, during its life span, before the GATT.
Hence it can be said that the Uruguay Round of trade negotiations contributed significantly towards lowering of the global barriers for merchandising trade on the two fronts: improving market access, by reducing the tariffs and restrictions on a number of goods; and by extending multilateral disciplines to sectors that were previously excluded, particularly agriculture, and textiles and clothing. ("Chapter 2: The Dispute Resolution Mechanism", n.d.)
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Blouin, C. (2012). http://www.nsi-ins.ca/wp-content/uploads/2012/10/2002-The-Reality-of-Trade-the-Uruguay-Round-and-Developing-Countries.pdf (1st ed., p. 9). Retrieved from http://www.nsi-ins.ca/wp-content/uploads/2012/10/2002-The-Reality-of-Trade-the-Uruguay-Round-and-Developing-Countries.pdf
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Chapter 2: The Dispute Resolution Mechanism. Internationalecon.com. Retrieved 22 March 2016, from http://internationalecon.com/wto/ch2.php
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International Commercial Law and Arbitration Conference,. (2013). http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj22aug13.pdf (p. 5).
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Nakatom, M. (2013). Plurilateral Agreements: A Viable Alternative to the World Trade Organization? (1st ed., p. 5). Tokyo: Asian Development Bank Institute. Retrieved from http://www.adb.org/sites/default/files/publication/156294/adbi-wp439.pdf
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Prasad, R. Literature Review (1st ed.). Retrieved from http://nccur.lib.nccu.edu.tw/bitstream/140.119/33958/6/305006.pdf
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Westlaw UK - Online legal research from Sweet & Maxwell. Westlaw UK. Retrieved 22 March 2016, from http://legalresearch.westlaw.co.uk/
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WTO | Understanding the WTO - A unique contribution. (2016). Wto.org. Retrieved 22 March 2016, from https://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm
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Academic Search Complete | Full-Text for Academic Research | EBSCO. (2016). Ebscohost.com. Retrieved 22 March 2016, from https://www.ebscohost.com/academic/academic-search-complete
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The WTO and international trade regulation. (1999). Computer Law & Security Review, 15(2), 105. http://dx.doi.org/10.1016/s0267-3649(99)80021-1
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Basic Principles of the WTO and the Role of Competition Policy. (2002). The Journal Of World Investment & Trade, 3(4), vii-584. http://dx.doi.org/10.1163/221190002x00382
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