How Do Courts Rely on Policy Considerations When Determining International Trade Cases - Essay Example

? International trade cases affiliation International trade cases International trade cases have been solved using different strategies over the centuries. Trade bodies and organizations have tried formulating common set of rules and regulations from which international cases should be solved. However, many emerging issues and trends have rendered this practice almost insignificant as complexity of these cases has increased. Many nations have also formulated their own trade rules and regulation. From these laws they argue that any offenders from their country should be tried in regard to the laws of the land. This aspect has been the most significant hindrance to solving international trade cases. However, with globalization being on the increased, this notion can be easily changed. Major international bodies have come up with common policies, rules and regulation that create equality in the international market. According to Economist1 (2008) equality in the international market can only be achieved through creation of common international trade policies. This move has gone a long way in ensuring even small countries get the maximum market exposure as the market heavyweights. International market policies did not favor such countries. As much as these policies have been formulated, the courts and the judicial systems have the obligation of ensuring that these policies are adhered to. Just like any other court or justice system, the law governing international trade cases has an extent that a court may alter when need be. This has been a source of debate from many analysts who argue that international trade policies should not be altered regardless of the situation in question. Should there be an extent at which a court should adhere to international trade policies? What conditions should a case have in order to have the international laws stretched? What are the positive and negative effects of stretching the international trade polices? . According to Ahn, Fukao & Ito2 (2005) the reliance of the courts to international policies has enabled justice to prevail in the international market. The extent of the court reliance on the international policies is stipulated by the law. These laws are formulated in regards to the norms of the international market. These laws are a formulated by the joint opinion of major financial regions. This enables the laws formulated to be efficient and considerate to all requirements of these zones. After these laws are formulated the courts are given the responsibility of ensuring that the laws are practiced in full force. Major laws and policies involved in the international market are based on licensing and legality. In licensing the courts only require to adhere to the requirements of the international law. In the international market, licensing involves legalizing business enterprises to export and import goods and services across the globe. Legalizing of business enterprises is based on their mode of operation and organization structure. The operations an organization carries out should be in line with the legal and international market requirements. For instance, the trade of illegal goods is strictly prohibited in all market regions across the globe. In ruling on a case involving the trade of illegal goods, the courts need to pass judgment regarding the requirements of the international policies. However, in this scenario there may exceptions which are due to different policies in different nations. For instance, with the legalization of the marijuana in a state in the United States, international law prohibiting the trade of marijuana should not govern this particular state. In this case, the court is forced to consider the law governing the trade of a particular product in a particular region. It is in such a scenario that the court needs to alter the international trade policies. From this scenario, one could argue that the court may alter the international trade policies to a certain extent. For instance, if two countries in different zones of the globe legalizing the use and trade of marijuana in the specific countries, this would mean that they may have the need to trade between themselves. In this case, the court may consider the fact the two nations have legalized the product and trading between the two countries may not be against the law. However, analysts argue that the compactness of international trading policies should be adjusted in order to keep nations in line with the policies. According to Engman (2005)3 if the international corporate world wants to remain relevant it should provide the courts with more compact guidelines to rule on international trade cases. The author further argues that this will maintain the credibility of the trade across the globe. This is because the courts will be in a position to come with its own judgment regarding international trade issues. In the current stipulation of international trade policies, the courts have very minimal power influence on the outcomes of the cases. In support of the current arrangement, Economist (2008)4 argues that this is important since courts can be easily be influenced by power and personal interests. The same sentiments are shared by many analysts who argue that if the courts are given the power to stretch international trade policies, personal interests would be easily achieved. An example of the court dependency on policies is the enacting of the GATT (General Agreement on Trade and Tariffs). It was initiated to ensure that the number of tariffs and trade barriers are decreased from the international market. The agreement was signed by more than 100 countries which were actively members of the international market. One of the most significant results of GATT was when the courts approved the creation of the WTO (World Trade Organization) under the provisions of the treaty. The WTO was provided with the mandate of ensuring that international trade disputes are solved under the provisions of the GATT. To ensure the policies provisions are adhered to, the WTO has more than 100 countries, and 147 observer countries. With these features, the courts do not have the freedom to make decisions under their own consent. In 1994, the Mercado Comun del Cono Sur was signed in the America trading zone. This treaty was also aimed at reducing the trade barriers in the region. In this particular region, they formulated the Protocol of Ouro Preto which acts as an administrative structure for the Mercado Comun del Cono Sur. The protocol is used to solve trade disputes in the region and it was provided procedures on how to do it. These provisions have hindered courts from making rulings regarding the trading region without consideration of the bylaws dictating this particular trading region. Trade cases in the Mercado Comun del Cono Sur region are rarely divided by the provisions of the court. The NAFTA (North America Free Trade Agreement) was also developed to create a free trading zone between America, Canada and Mexico. Bound to the agreement the three states had created policies that were able to solve the trade issues in the region. In this regard, the courts also considered the provisions of the NAFTA before providing the ruling on cases involving the three nations. UK companies with BRICS Businesses reaction to foreign corporation rules. In this case, the courts were to determine the effects of international rules on UK companies. Some companies had come forward to challenge the implementation of these laws claiming that they had a negative impact on the UK companies. The ruling on this case would be based on the fact that international trade laws should be adhered to. According to the iLaw website (2012) the laws that dictated the mode of trade in the market were in favor of the United States than the European Union. However, the ruling of the court was based on the provisions of the international policies which dictated that all nations had to adhere to the policies of trade. With the case being heard on many occasions the court ruling were still based on the fact that the international trade policies provided equality in the market and stretching the policies to suit one nation would be unfair to other market components. Boeing Vs Airbus In the United Kingdom, one international trade case has been on the radar. The case on whether or not the Airbus should be allowed to acquire loans and launch aid for the A350. This case was launched by the United States who claims that it is not a good move to allow the company to acquire funds. In their argument, Airbus is a large company that is capable of raising funds to finance their own exports and projects. They also argue that international trade rules do not allow subsidies for export. Such subsidies distort the market which may be unfair to other competitors. In providing a ruling on this case, the courts should be able to consider all the provisions of the law under export subsidies. Additionally, the financial abilities of Airbus should be considered to know whether the firm has the ability to comfortable fund its own projects. Also involved in this suit is Airbus’s biggest competitors who are involved directly in the suit. In an argument by the WTO, Boeing also receives funding from the United States yet it has the capability of funding its own project. This is a fact that the United States has denied. The European Union has vowed to continue funding and providing subsidies for Airbus until a court order is provided to stop the operation. According to Engman (2005)5 when determining international trade cases the decision of the court should be overruled by the stipulation of the international trading law. In order for nations to respect the international trade rules, there should be a common ground in which all practices are scrutinized. In formulating international trade laws, all nations across the globe with the will of globalization converge to formulate this constitution. Trade representatives with the required expertise in this field ensure that all laws in this constitution are favorable to their trading ventures. It is for this reason that the laws become of great importance when solving international trading cases. The results of this dependency on the international trade laws have been significant to the delivery of quality trading relationships across the globe. Prior to this, freedom of judgment of international trade cases, many nations and enterprises found it difficult to penetrate the international market. At the moment, strong international forces especially from the Middle East and Asia have made the market more competitive. This has also increased the economic growth in these countries as many counties have grown significantly over the years. The same scenario is visible in Africa where the courts have been dictated the international trading laws and has made enterprises grow without fear of being sabotaged by greater forces. In word by Economist (2008)6 the decision of the courts to over rely on the international trade laws has made it possible for globalization to be more effective. The growth of globalization in the rate we see is evidence that courts have become dependent of the international trade laws. This is a positive sign that the international market will be a place where equality in trade will be offered regardless of the zone an enterprise is located. From the above analysis, it is evident that the extent at which courts are dependable on international trading policies when ruling on trading cases in the international market is significant. The reliance of these laws by the courts in the modern century cannot be compared in the past centuries back where courts had to rule at their own will on the international trade cases. Even with many people against the powerless position of the courts, the positive side of this move cannot be overlooked. This is because the rate which globalization is growing can be mainly attributed to the fact that courts have become more respectful of the law. Reference Ahn, S. Fukao , K. & Ito, K. (2008), “Outsourcing in East Asia and its impact on the Japanese and Korean Labour Markets”, OECD Trade Policy Working Papers, No. 65, OECD Publishing Economist, The (2008), “Bold Strokes”, The Economist, The 16 October. Engman, M. (2005), “The Economic Impact of Trade Facilitation”, OECD Trade Policy Working Papers, No. 21, OECD Publishing iLaw website, Tax report 2012. Web. 20th, Dec, 2012. Web Read More