Particular Qualities of Business Law for the Example of Duress by Threats and Network Industries - Case Study Example

Business Law Ratio Decidendi in Attorney-General v. Whelan [1934] I.R. 518 The case of Attorney General v. Whelan is a case of Duress by threats. Thegeneral principle of duress is that the defendant must have been forced to commit a crime of breaking law. He should have been threatened that he (defendant) would either be harmed or else he would not have committed the crime. According to Mumaghan J. Duress is a defence as “threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal” (in AG v. Whealan, 1934). The trial judge in the case posed a query “In receiving the money did Peter Whelan act under threats of immediate death or serious personal violence?” The answer of the jury was in the affirmative. The trial judge actually ruled that even though the defendant was forced to accept the stolen money that is he was under duress, but still this cannot be a defence. It only acted as moderation. The court of criminal appeal noted that if a defendant acts under duress then an acquittal will be rare. Thus because of this the case was decided on the general principle of duress ([1934] IR 518, 524). But the Court mentioned that the application of the general principle will have to be limited to certain extent. In this case the Court stated that “where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats”.1 Thus, the common range of the protection of duress, as sketched in Whelan, is that; “the will of the defendant must have been overborne by the threats, the duress must be operating when the offence is committed and if there is an opportunity for the individual will to reassert itself and it is not taken, a plea of duress will fail” (in AG v. Whealan, 1934). Thus in this case the Court of Criminal Appeal held that the appellant’s belief cannot be taken into consideration and directed a judgment of acquittal to be pronounced. In Attorney General v. Whelan, it was found that the defendant was in menaces and this was acknowledged to “death or serious violence”. In this case even though no real threats were faced by the defendant, but it was found that the existence of the person threatening was armed. It was also noted that the person so armed was such a person who will not hesitate even to use the pistol, was adequate to amount to a risk of “death or serious violence”.2 Ratio Decidendi in Donogue v Stevenson 1932 AC 562 The ratio decidendi in the case was based on the principle of "neighbour" even though it was not the actual ratio. Lord Atkin based his “neighbour” principle on the basis of the Christian principle of loving your neighbour in Luke 10: He stated thus: “There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyers question: Who is my neighbour?”3 The ratio of the case was based on the principle of manufacturer’s liability. The decision ended with the imposition of liability on the manufacturers under certain conditions. In the words of Lord Atkin: “a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumers life or property, owes a duty to the consumer to take that reasonable care” (Lord Atkin 1932 AC 562, 599). The meaning of “my neighbour” is still the most controversial aspect of Lord Atkin’s decision. The definition has a range of persons to be borne in mind as neighbours and thus the sort of acts or failures to act and the forms of damages for which one might be held liable if anyone is injured as a consequence of an action4 (Donogue v Stevenson 1932 AC 562, 580). Thus the ratio decidendi of the case was decided on the manufacturers’ liability of duty to care his customers as his neighbours. Lisbon Treaty Benefits to business I. Benefits from Europes single market Because of EU membership Irish businesses have access to a market place of over 500 million potential customers. The membership of the EU brought with it the access to Europes single market. This has helped in bringing in a dramatic increase of exports into Europe. Access to a base of more than 500 million people is a crucial ingredient to the success of Ireland. The American Chamber of Commerce in Ireland stated that Ireland’s membership of the EU supports over 300,000 jobs within US multinationals. “This removes the uncertainty created by the No vote last July, we now have direction and the opportunity to address the concerns of the electorate which resulted in the rejection of the Lisbon Treaty” (Joanne Richardson, 2008). The Lisbon treaty has the possibility to bring in and open-up many several new opportunities for Irish business. Ireland can now aim to increase its trade to the EU and even beyond so that jobs and investment can be protected and this is possible because of the Lisbon treaty. "At a time of increasing economic challenges Ireland must aim to boost trade to the EU and beyond to safeguard jobs and investment. As one of the most open economies in the world, our dependence on exports far exceeds that of larger countries. In fact we export over 85% of everything we produce” (Joanne Richardson, 2008) Joanne Richardson, (2008), further remarked that the present financial turmoil that the world has been facing has had its impact on Ireland as well. Ireland can be still stronger in its financial conditions as it is situated at the heart of the Europe and the Lisbon treaty brings in all the benefits for export under one market. The foreign direct investment in Ireland because of the Lisbon treaty has the following facts (http://www.finfacts.ie/irishfinancenews/article_1015514.shtml (Retrieved on 14 March 2010) : Seven out of 10 of the world’s best ICT companies and 9 out of 10 of the worlds best pharmaceutical companies have a foundation in Ireland The total value of FDI today is €131billion. There are at present 994 foreign companies in Ireland rendering 140,000 direct jobs and approximately 300,000 jobs by sub suppliers and bore on services These companies have helped about 85% of Ireland’s manufacturing exports. These companies spend €16 billion in Ireland’s economy yearly which is about 50% of the country’s corporation tax. There are 570 US companies with a total investment by the US in Ireland being greater than the aggregated US investment in Russia, Brazil, China and India. The investment is $146bn (US Bureau Economic Analysis – 2008 stock of US investment abroad). According to Brendan Butler, (2009) "The Treaty will reform how decisions are made in the EU so that Europe can remain an engine for economic growth and prosperity. It will enable the EU to respond faster to the challenges ahead, such as energy security, global health threats, the rise of India and China as economic forces, and climate change. This is vital for the success of business in Ireland." The Lisbon treaty has given importance to the creation of an information society. This would help the businesses in Ireland to have access to a low-cost but world-class communications infrastructure and a broad array of services. These information and services will be provided by a regulative framework which would allow for the electronic commerce and the Internet to expand. Governments would be taking real efforts and would exploit new technologies to make possible the required information accessible by business men in Ireland. II. Constructing Network Industries in Telecommunications, Utilities and Transportation This would help the business in Ireland to a very large extent. In reality the four freedoms care for the free progress of goods, services, capital and labour in the internal market of the European Union. In the EU, four freedoms define the common market: the free movement of goods; the free movement of services and freedom of establishment; the free movement of persons; and the free movement of capital. It is important to set these out, because they inform the development of European law. They will be referred to in discussing specific topics below. It is important to note that none of these freedoms apply to situations which are wholly within a Member State; there must be some effect on trade between Member States before the freedoms can be invoked.5 The free movement of goods entails that national requirement forbidding goods from being moved and sold all through the Union are unacceptable unless warranted by the Member State in question. The treaty has in general forbidden any type of direct obstruction to the movement of goods be it tariff, quota or fee. Also national packaging necessities entailing repackaging costs for importers6 are also not allowed now but will be allowed in exceptional cases. The free movement of services also like the free movement of goods follows the same kind of pattern. The treaty states that services can be provided across the borders of the member states unless otherwise found that there has to be some limitation. In measuring the justification extended by Member State, steps taken by the service providers home state has to be taken into account when the issue is addressed.7 The free movement of persons means the free movement of the workers. This means that if a person has to work freely in one country then he has to be treated as the citizen of that state. This gave the workers the right to take his family and also the right to get social benefits for the worker and his family. The basic principle is that each and every citizen of the member state has a right to live and work anywhere limited only to certain compound qualifications.8 The free movement of capital is rather self-illustrative. This free movement of capital has explicit prohibitions and allows free movement of capital and payments to and between member states including the third countires. This actually brought to light quite a number of cases which explicitly prohibits restrictions on the movement of capital and payments between Member States and third countries as well. It had a quite far-reaching affect – for instance, it supported a series of cases in which “golden share” strategies used to preserve power over private utilities were annulled.9 Reference 1) Attorney-General v. Whelan [1934] I.R. 518 2) Brendan Butler, IBEC Director of EU and International Affairs, 2009. 3) Donogue v Stevenson 1932 AC 562 4) Joanne Richardson, Chief Executive of the American Chamber of Commerce in Ireland. 5) http://www.finfacts.ie/irishfinancenews/article_1015514.shtml (Retrieved on 14 March 2010) 6) The Lisbon Review 2008 7) US Bureau Economic Analysis – 2008 stock of US investment abroad Read More