International Business Transactions - the Australian Government - Essay Example

Heading: International Business Transactions Your name: Course name: Professors’ name: Date Introduction The Australian Government has controls for imports and exports of certain goods, and the controls are either total prohibition or restriction. International business success is achievable through the compliance with the domestic and global laws, and requirements of the international conventions, treaties, and agreements. Australia has controls that guide the importation and exportation in the country. Therefore, this paper seeks to explore export and import controls, function of Appellate Body in addressing public morals, rationale for domestic and international laws’ import controls, as well as ways in which Australian export controls system influence trading firm’s imports in the country. What legal and procedural considerations need to be taken into account when making a decision to import goods in Australia? Just like any other country, Australia has its own procedures, laws, and custom laws to guide the cross-border transactions. The Acts providing for the administrative procedure and structure regarding importation include Customs Administration Act,1 Custom Act,2 Custom Tariffs Act,3 Customs Undertakings (Penalties) Act,4 Commerce (Imports) Regulations,5 Commerce (Trade Descriptions) Act,6 and Customs (Securities) Act.7 To start with, Australian importers should consider the provisions of the Customs Act,8 which guides on what importer should and should not do. this acts details the conditions for the entry of products to the country, warehouse of products, duty payment, sampling of products, importation guidelines for shipping, cargo, and aircraft, anti-dumping duties, tariff concession orders, penalties and prosecution, customs officers’ power, remissions, rebates, deposits and refunds for securities, and good valuation. All importers in the country should be familiar with the above conditions before the actual importation. Lack of this vital information can lead to delays to the cargo clearance, especially if they fail to present the necessary documents.9 Secondly, they should consider that labeling and packaging of their products is crucial as per the Commerce (Trade Descriptions) Act.10 The constitution does not allow those imports that do not conform to the Act. The country also has stringent packaging and labeling requirements on most of the imports, and these differ depending on the kind of product.11 Thirdly, the country has Anti-dumping Act,12 which relieves industry from injury resulting from subsidized or dumped goods.13 Dumping happens due to less export-selling price than that paid in the local market of the exporting nation. On the other hand, subsidization is due to selling or production of exported goods with the advantage of subsidy or any other monetary aid from the exporting country’s government.14 Importers should also consider prohibited imports, which list commodities that are illegal; prohibited unless permitted by authorities or ministers; prohibited unless they meet some requirements concerning packing for sale; and prohibited from some countries unless approved power grants permission.15 Furthermore, the importers in Australia should consider tariffs as per the Customs Tariff Act16 relating to details and duties amongst others issues like classifying goods rules, places and countries concerning to which exclusive rates apply, duty rates on imported goods, and concessions for certain goods’ imports by some authorities, departments, or persons. Lastly, importers should provide notifications to quarantine or customs officer. In the notice, the addresses and names of owner, supplier, and importer of the goods; the goods’ descriptions including place of origin; identifying and packaging; import arrival details; and other pertinent details.17 How are international treaties enforced in Australia? Australia does not automatically integrate international treaties into its law. This means that there are some exemptions, such as, treaties, which end a State of hostilities. In case where the Australian Executive arm enters into global treaties and obligations without referring to the parliament, the law offers the Commonwealth Parliament the exceptional power to formulate legislation. The parliament has a responsibility to pass the Act of Parliament in order to implement the country’s treaty duties in domestic law.18 The country can ratify a treaty, and under global law, with lack of constitution to enforce the treaty provisions, they will not provide binding rights to, or compel responsibilities on the Australian community members. This is the same as the United Kingdom, and other common law nations in the world. Nevertheless, it is different from the USA’s, which differentiates between non-self-executing and self-executing treaties.19 The country can implement treaties in various ways, for instance, through legislative statement; scheduling or annexing a treaty copy to the Act of Parliament; and rewriting of the treaty terms in form of an Act of Parliament. Moreover, the parliament has a legal authority to enforce the treaties. This is per the Commonwealth Constitution, section 51, as well as the external affairs’ section 51 (xxix).20 The external affairs power has a High Court interpretation to imply the authority to legislate regarding laws that affect treaties and other global duties, and laws concerning issues physically external to the country. For example, the law that facilitates prosecution for criminal offence that occurred in Europe during the World War II was legitimate.21 Moreover, the High Court interprets it to mean laws that address the matters of global concern. For instance, an issue that has a potential to influence Australia’s links to other countries, and this can be enough for legislation to pass by means of external affairs authority. 22 Identify the fundamental rationales recognized by domestic and international laws for import controls Import regulations by international and domestic laws are due to certain reasons. First, domestic, and global laws regulate imports in order to promote food security in the destination countries. Secondly, global and domestic laws control imports in order to ensure that countries are safe from terrorist and criminal attacks. This is possible by restricting the importation of Weapons of Mass Destruction and other military weapons.23 Thirdly, international and local laws prohibit and restrict imports, as they want to safeguard the community, which includes consumer protection, safety, and health. Fourthly, international and local legislation controls imports because they want to guard the environment of the destination countries from destructive products. Fifthly, the need to meet obligations by the international conventions, treaties, and agreements, motivates the international and domestic laws import controls.24 To what extent do you think the Australian regulatory approach to import’ may (or may not) influence the trading nations to export in Australia? To achieve effective exporting and importing, there is a need for a complete understanding of certain customs regulations applicable to global shipments. In Australia, there no requirement for holding an import license by an individual or a company.25 Nevertheless, the nature of the goods determines the needs obtaining permission to clear goods by the customs department. To start with, the Australian import regulation can influence imports by countries or companies without the proper documentation. Here, the minimum requirement by the customs import entries include bill of lading or air-way bill, invoices, insurance documents, and packing lists among others. It also requires that the importers comply with the import entry costs for goods imported by sea, post, or air above $1, 000 per delivery.26 There is also valuation of the imported goods, as well as compliance with rules of origin. This implies that the Australian import controls allow imports to companies that conform to the aforementioned regulations.27 Australian import controls may also deny imports in the country if the importers do not pay the duty rates, and indirect taxes imposed on imported goods. Indirect taxes consist of service and goods taxes, the luxury car taxes, and wine equalization taxes. Moreover, the country has certain commerce descriptions that importers ought to consider. This implies that the importers should mark their goods before entering the country’s commerce. The description marks should be in English, in readable and outstanding characters, on brand or principal label attached to goods in an outstanding position in a lasting and practicable manner.28 In the case of the animal products, animals, plant, and food imports, the country can restrict importers actions in various ways. According to the imports controls of Australian, importers of the aforementioned products should conform to the quarantine requirements, plant and animal disease control, where applicable, as well as with Imported Food Program for issues regarding food safety.29 Imported food should comply with pertinent Food Standards Code provisions. Furthermore, the country also prohibits importation of goods including certain drugs or goods containing drugs, firearms, motor vehicles labeling of goods, currency, intellectual property, woolpacks, chemicals, protected cultural items, local police authorities, and protected wildlife. Therefore, Australian import controls may limit or prohibit other trading countries from venturing in Australia unless they comply with the requirements.30 Provide a critical analysis of the role of the Appellate Body in dealing with public morals’ in the US-Gambling DS285 under the WTO dispute settlement system. Does this decision provide adequate incentives for the Member States to invoke the system? Support your argument by relying on scholarly resources. The appellate body plays a crucial role in the WTO disputes regarding public morals, specifically the US-Gambling DS285. This is evident in the earlier case by Antigua and Barbuda, which took place in October 2004. Antigua and Barbuda filed a company against the US with allegations that some of the US state and federal laws consisted of a prohibition on the international provision of the online gambling services. In response, the US cited the public morals clause regarding the general Agreement on Trade in Services (GATS). This clause, similar to the General Agreement on Tariffs and Trade (GATT), is among the numerous general exemptions to the WTO trade liberalization standard. Notably, other standards here are applicable to the measures that protect animal, human, and plant health and life, and non-renewable natural resources. These provisions facilitate states’ enactment of trade-restrictive regulatory standards to serve legal public policy aims, in spite of the general trade liberalization responsibilities under the WTO.31 Even though gambling is the initial WTO dispute to demonstrate public moral clause, the appearance of a logical policy of governing trade-morality disagreements could have considerable consequences on the international and WTO law more commonly.32 According to certain commentators, public morals clause is a means to the integration of women rights, women rights, and taskforce standards into the WTO, and provision of practical influence to the standards via WTO’s economic permission. Nevertheless, wide public morals exemption can possibly function as a buffer zone for protectionism, vitiating the comparatively strong policies that present oversee human and environmental health laws and undermining the WTO’s considerable progress to trade liberalization.33 The gambling case resulted in two novel policy questions, which differentiate trade-morality disputes from preceding WTO jurisprudence that involve human or environmental health norms. the first question concerns how global tribunal evaluate a country’s claim that a matter is legally an issue of ‘public morals’, as these interests are probable to strongly hold, have geographical location, and is different across political borders. Secondly, presuming a certain regulation has a legal relation to public morality, on the basis upon which global tribunal balances interest in the regulation of public morality against other member states’ rights in trade liberalization. Imperatively, gambling holdings mere had partial solutions to the above questions. On the former question, II was clear that gambling comprised of legal concern of public morality whose primary basis is on the proof that several countries alongside US held the same opinion. On the second question, the invoking of the multifactor that balances test from the current WTO jurisprudence was to weigh the US interest in regulating internet-gambling services against the other WTO member states’ interest in the trade liberalization.34 According to the Note, gambling precedent is excessively restrictive of the WTO member states sovereignty, and that an optional approach, which gives a better stability between trade liberalization and regulatory autonomy. Here, the basic argument is that defining public morals founded on the proof external to the country whose control is the mechanism absolutely assumed in gambling, improperly compels a moral majority entry on the exception of the public morals. In the case of the doctrinal, normative, and policy reasons, WTO members ought to have a leeway to identify moral public morals founded exclusively on the local circumstances. Nonetheless, exaggerated leeway would enable WTO member states to identify public morality unilaterally; hence, risking protectionist violence, and possibly enabling the exception to absorb the rule. The note also asserts that a wider explanation of public morals cabined through application of scrutiny in two present doctrinal approaches: trade-restrictive standards should be the least trade-restrictive way of obtaining their stated end, and that their design and application is in a non-discriminatory manner.35 In the GATS and GATT, the invoking of common exceptions clauses as a defense by a member state’s respondent upon prima facie demonstrating by a complaining country that the responding state breached a trade regulation. In that case, the Appellate Body describes the general exemptions clause as balance between the member states right to control in the listed areas, and the responsibility not to disrupt with free flow of services and goods.36 Many trends recommend that public morals exemption will play an increasingly vital role in global trade links in and outside the WTO. The improved WTO heterogeneity, combined with the developing economic international trade to WTO member states, might boost the foreign trade frequency of trade-morality conflicts. Public morals principles can also have impacts outside of the WTO because of these clauses in the bilateral and regional trade consents. Out of the 250 bilateral and regional free trade consents, registered under WTO, nearly 100 of them have public morals exemptions identical and similar to Article XIV (a) of GATS. Since most of these consents clearly assume the language and structure of GATT, as well as WTO agreements, the rise of sufficient public morals principle in WTO is probable to affect practice under bilateral and regional agreements.37 Regarding the complaint by Barbuda and Antigua in March 2003, the Panel found includes Travel Act, federal Wire Act, Illegal Gambling Act, and the state gambling constitution in Louisiana, Colorado, New Jersey, Minnesota, South Dakota, Massachusetts, and Utah. To respond to, the US offered many reasons for federal and state laws, if found to breach GATS regulations, its justification could come from public mor8als clause, Article XIV. Firstly, the US said that the distant gambling services supply is specifically susceptible to exploitation by arranged crime because of low set-up costs, geographic flexibility, and provision ease.38 Moreover, protection of American community from the destructive forces of arranged crime on property and people as a public morality concern. Secondly, the US states that the internet can initiate gambling into unsuitable environments like schools and homes, where it would not involve conventional, in-person regulations. Besides, internet gambling would not enable gambling children and have adverse influences on obsessive gamblers by permitting anonymous, 24-hour access.39 According to the panel, public morals are measures of right and wrong behavior of the community or nation. In order to establish whether gambling was within the explanation, he panel examined various global practices including the local regulations of other countries, regional practice, and historical proof of wide global agreement concerning morality and gambling at League of Nations. Depending on the proof, the panel concluded that gambling was a matter of public morality, which falls under the public moral clause of GATS. The panel then established whether certain US standards were appropriate to protect public morals. This panel focused on the federal wire Act’s legal history, and the Illegal Gambling Business Act, evidence by the US attorney General concerning the enforcement of the Travel Act, and US federal courts’ decisions, eventually concluding that the US standards primary aim was to protect public morals as per Article XIV (a) of GATS.40 It also sought to establish whether the US standards were essential in the protection of public morals as per the GATS Article XIV (a). The panel used a multi-factor that balances the assessment developed before GATT jurisprudence, which advocates for the safeguarding of vitality of interests, the degree to which the standard supports the stated aim, and the standard’s general influence on trade. Nonetheless, the exact approaches in the balancing test are somehow unclear. The Panel recognized that the US interests, aimed at preserving regulation of arranged crime, children’s protection, and irrational gamblers, were vital, and that the standards made a considerable contribution to the stated aim. WTO Appellate Body changed the Panel’s decision that the US principles were unessential, but untimely judged against the US on grounds the US laws do not differentiate against international service providers of gambling. The Interstate Horseracing Act possibly exempted US firms that supply distant gambling services, such as, pari-mutuel betting, and off-track betting, from the laws involved. Therefore, Appellate Body confirmed that the Panel’s decision that the US standards are within the limits of XIV (a). Besides, the Appellate Body and the Panel have similar opinions regarding public morals. In what ways might Australian export controls limit or otherwise affect companies’ ability to export? Australia restricts all its dual-use and military exports by use of an integrated licensing system. Apart from the military goods, the country can regulate exports under various circumstances. First, Australia denies permit to export if the destination countries show actions or policies that are unfavorable to Australia.41 Secondly, Australia can refute export if the strategic and foreign policy interests overshadow export benefits. It can also deny exports if the exports may favor human rights abuse in the destination country. Moreover, denial of exports by Australia may arise if Australian embargoes or United Nations Security Council Sanctions are available for destination countries.42 Furthermore, the country can prevent any exports if the export would have an adverse effect on the country’s military competence.43 Additionally, the Australian export regulates exports under certain provisions in order to protect community, protect its environment, and meet obligations as per international conventions, treaties, and agreements to which it is a signatory.44 One way in which it controls exports is through the Customs and Border Protection, which consists of many Acts.45 Some of the Acts include Australian Horticultural Corporation Act 198746 that regulates exportation of certain horticultural products like apples, pears, oranges, and dried grapes. The Wine Australian Corporation Act 198047 and Wine Corporation Regulations 198148 regulate exportation of the country’s grape products. There is also a commerce Act 1905 also known as Trade Descriptions, which hinder any false application of trade descriptions to export goods.49 What advice would you give an exporter of defense and dual-use goods’ to make sure that it complies with the applicable regulation? Australia is powerful supporter of global efforts to safeguard the proliferation of items of ability of causing important destruction and several casualties. The country’s export controls are useful to dual-use and defense good, such as, components and parts and related equipment, materials, and technologies transported to an outside nation or territory, regardless of the working condition or state of the products. The export controls cover goods for the purpose supplying or selling to foreign entities; returning to owners or manufacturer; repairing; loaning or demonstrating on a short-term basis; and sending samples or items for research exchange. According to the Defence and Strategic Goods List, there is a full list of goods regulated for export according to the Customs Act 1901.50 To start with, there are defense and related goods, which include technologies and goods adapted and designated for utilize by armed forces, or lethal goods for military use, as well as non-military lethal items.51 Secondly, the lists consists of dual-use technologies and goods, which refer to intangible and tangible goods created to satisfy commercial needs, although which can be useful in military mechanisms, or in the production or development of Weapons of Mass Destruction (WMD), or military systems. These entail equipment; components and assemblies; test, production, and inspection equipment; technologies, and software.52 In terms of the administration of the export controls, it is imperative to know that Defence Export Control Office in the Department of Defence has authority by Minister of Defence. Besides, the Defence Control Office operates closely with the Australian Customs Service, as well as other government bodies, which ensure that people export goods as per the legislation. Exporters should ensure that they obtain permission from the Defence Export Control Office before engaging in the exportation of controlled technologies and goods. Authorization is in form of either a license or a permit provided to cover a variety of export purposes like ongoing transactions, one-off exports, and short-term exports that cover repairs, loans, or demonstrations. Exporters can also get permission for approval-in-principle where they are seeking to create foreign markets, and are uncertain about the possibility of getting endorsement to export.53 Permission to export can be subject to requirements, and exporters should be sure to meet these conditions to remain legal. Notably, all licenses and permits’ issuance is free-of-charge.54 Exporters should get permission by filing an Export Application Form that is in the Defence Export Office website, or can obtain it after requesting for it. The application processing takes at most 15 working days for the unserious applications, and 90 days for the serious ones. It is worth noting that applicants know the importance of providing all information to evaluate an application, especially complete details of end-users and consignees’ addresses and names; detailed values and descriptions of goods for export; proposed destination; and end-use of the export products. Failure to give complete and full information may lead to processing delays.55 The assessment of applications for export controlled technologies and goods to consideration of a range of foreign policy, strategic, and economic factors, and human right matters and industry effect. Some technologies and items are more serious from a strategic angle than others, as some export targets. The Standing Interdepartmental Committee on Defence Exports (SIDCDE) assesses the sensitive applications, together with other Governmental groups. The Minister for Defence is the only one that can reject an export application, or cancel an existing license or permit.56 Conclusion To realize effective international business transactions, countries apply both international and domestic legislation to control exports and imports. In Australia, importers should consider the available procedures and legal provisions in order to succeed in international business. Some of the basic reasons for import controls by domestic and worldwide laws include protection of community, environment, and complying with provisions of the international conventions, treaties, and agreements. The Australian export control controls exports through the Customs and Border Protection provisions. Under WTO, the Appellate Body plays a great role in handling public morals. Additionally, the Australian export controls can affect or limit firms’ capacity to export depending on their compliance of the set regulations. Finally, for the individuals or countries interested in exportation of dual-use and defense goods, they should comply with the regulations in order to succeed in their business. References Books and Articles Australian Government Department of Defence, Ensuring Australian Exports responsibly, (Australian Government Department of Defence, 2007). http://www.dfat.gov.au/cwco/publications/cd/ZIPS/links/links/Export%20Controls.pdf Australian Government Australian, Customs and Border Protection Service (export control, 2012). http://www.customs.gov.au/webdata/resources/files/acsmanual_vol12.pdf Amrita Narlikar, Amrita Daunton Martin, and Stern Robert M, The Oxford Handbook on the World Trade Organization (Oxford University Press, 2012). Bertsch Gary K, Cupitt Richard T, and Elliott-Gower Steven, International cooperation on nonproliferation export controls: prospects for the 1990s and beyond (University of Michigan Press, 1994). Blay, Sam, Piotrowicz R and Tsamenyi B M, Public International Law: An Australian Perspective (Oxford University Press, 2005). Brassil Belinda and Brassil Dimity, Excel preliminary legal studies (Pascal Press, 2000). Hopkins Paul, International enforcement of foreign judgments (Yorkhill Law Publishing, 2006). Joseph Sarah, Blame It on the WTO? A Human Rights Critique (Oxford University Press, 2011). Martin Belva M., Export Controls: Observations on Selected Countries' Systems and Proposed Treaties (DIANE Publishing, 2010). United Nations, The United Nations Disarmament Yearbook 2007 (United Nations Publications 2008). The Canadian Trade Commissioner Service, Import Regulations (Australia, 2012) http://www.tradecommissioner.gc.ca/eng/document.jsp?did=10460&cid=511&oid=296 The Chamber of Commerce Industry of Western Australia, Import regulations (CCI, 2012). http://www.customs.gov.au/webdata/resources/files/FS_ExportControls.pdf World Trade Organization, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (World Trade Organization, 2007) http://www.worldtradelaw.net/rr/ds285-22-rr.pdf Legislation Customs Act 1901 (No.6) CA Customs Administration Act (1985) CA Customs Securities (Penalties) Act 1981 (CA) Customs Undertakings (Penalties) Act 1981 (CA) Customs Tariffs Act 1995 (CA) Commerce (Trade Descriptions) Act 1905(CA) Commerce (Imports) Regulations1940 (CA) Anti-dumping Act1975 (CA) Australian Horticultural Corporation Act 1987(CA) Wine Australian Corporation Act 1980 (CA) Wine Corporation Regulations 1981(CA) Read More