Advantages and Disadvantages for Business and Commerce - Essay Example

Key Rules and Judicial Precedents and their Advantages and Disadvantages for Business and Commerce Name of Student Student Number Institution Course Code Instructor Date of Submission Introduction This essay looks into the key rules and judicial precedents in the Australian business and commerce, as well as their advantages and disadvantages. Judicial precedents also termed as common law, have been developed by judges through decisions of courts, as well as similar tribunals that make decisions pertaining to individual cases.1 This is opposed to the statutes that are adopted following the legislative process or regulations that have been issued by any executive order. The system that supports judicial precedents adds greater weight to the existing laws as well as offering extensive substantiation on given items. The judicial precedents contribute greatly as major source of law by following the doctrine of ‘Stare Decisis’.2 The essence of the rule of law has been the subject to and restrained by the existing legal statutes and acts. However, the existing legal systems and structures have evolved from the growth and development of nationhood that is presented pertaining to the sovereignty, as well as the source of the basic law in the Australian context with effective changes like the High Court’s ruling in Sue v Hill.3 Key judicial precedents in the business and commerce sector in Australia span the Contractual Law, the Consumer Protection Law and the Law of Tort. These precedents have come up from various decisions made pertaining to the issues and circumstances arising in the business operations within and beyond the Australian borders. The precedents set out legal compliance in the Australian which is designed to help individuals and organizations in the creation and conducting of business operations as per the set out legal parameters.4 Commercial and business precedents are binding rules also regarded as mandatory authority that are standard, and ought to be followed by the lower courts under the common legal structures. The doctrine of precedent is termed as the cornerstone of the development of common law in the Australian legal system. It is evident that businesses, both small and large that having operations in multiple Australian states or territories are affected by state-to-state variations of the contractual laws including divergent interpretations of the law by the various state superior courts which remains unresolved by the National High Court.5 However, the existing judicial precedents are critical in ensuring a legal framework that looks into more effective processes of resolving arising issues or circumstances in the business operations. Subsequently, the resolution of stalled and critical interpretation of the laws calls for the High Court to be extra vibrant in addressing the issues at hand and provide lasting solutions. Due to the rapid economic growth, various rules and judicial precedents have come up in the commerce and business sector. The consumer protection law covers the rights and privileges’ of a consumer from other players in the commerce and business sector. Critical review of the legal provisions by Turner, Trone and Gamble indicates that laws pertaining to consumers involve the “unfair contract terms”, as well as the remedies provisions of the Consumer and Consumer Act (Cth).6 Further legal backings in this context involve the extensions and consolidation of other consumer protection provisions within the new ACL.7 The rule of law established by the common law ensures that various economic and financial reforms are streamlined and effectively makes the business transactions. The Australian legal system is a form of infrastructure whereby it is indispensable to economic growth just like transport or energy networks. The has been notable changes in the consumer law in the past years favouring the curbing of unfair contract terms; July 2010 and this was followed by the implementation of the Australian Consumer Law on January 1st, 2011 a law that covered major changes which also incorporated the rules pertaining to consumer guarantees.8 These rules have been effective from 2012 with the Australian government establishing a range of guides necessary in assisting the business people to comprehend the emergent consumer laws. There exist national, state and territorial consumer protection agencies which have set up guidelines to aid in the legal practitioners and consumer advocates to recognise any unfair terms of contracts. The Australian contract law forms on of the most crucial elements in the legal framework. It is basically the bedrock of modern economies, as well as the basis of majority of daily transactions in the business and commerce industry.9 The Australian contract law aims at maximizing the simplicity, efficiency and utility of market interactions for the benefit of all Australians. It is based upon the English common law and developed by the Australian courts. The consumer protection within Victoria state finds a remedy under the FTA’s application of the Australian Consumer Law (ACL) due to the fact that the Victorian Civil and Administrative Tribunal (VCAT).10 VCAT is where Victorian consumer disputes are generally heard and resolved, and is a less formal venue than a court and legal representation is normally permitted for consumer and trader disputes which relates to amounts below ten thousand dollars. The Australian legal framework contains a national statutory framework that ensures the trading is fair for business and consumers. The framework is administered and enforced by the Australian Competition and Consumer Commission (ACCC).11 Further, there exists the consumer protection on top of the National Legislation, State and Territorial laws. In the eventual ensuring of effective service, a fair trading office in each state or territory is established to provide advice on business rights and obligations. The existence of Australian Consumer Law ensures the provision of regulations that provide on the unfair contract terms, consumer rights guarantee, unsolicited consumer agreements, product safety laws and penalties as well as other relevant areas.12 The consumers in the Australian jurisprudence are also protected by the product liability regulation which ensures regulation of product safety and information standards.13 The manufacturers and business persons have the obligations to follow the standards designed and set to ensure that no harmful products are introduced into the market or exposed to the consumers in the precincts of Australia. The Australian Competition and Consumer Commission (ACCC) is the body mandated to enforce the standards to the latter.14 Judicial precedents are crucial in the sense that they bring about convenience of following the set decisions rather than degenerating into mere mechanical exercise performed without any given thought. Judicial precedents introduces citations of authority in the courts which ought to be kept within reasonable bounds due to the fact that it can be costly in regards to time and money. The presence of judicial precedents within the business and commerce is of great advantage in the sense that it helps the judges make informed decisions, thus preventing the eventuality of mistakes which could have arose from making decisions without any given guidance.15 In context, judicial precedents set standards of legal basis to argue a case and come to substantive closure of the issue at hand. The presence of key rules and judicial precedents not only makes the legal process more effective, but also ensures no conflicts arises later from lack of proper substantiation of the legal status on the issues or circumstance being addressed. Judicial mistakes arising are resolved by having a flexible and certain legal system which embraces compatible features of judge-made law.16 The presence of a judicial system that is truly flexible cannot at the same time be certain due to the fact that no one given person can predict when and how legal development will take place. Nevertheless, the advantage of certainty is lost where there exists too many cases or where confusion is high. The relevance of key rules and judicial precedents pertains to the fact that they end up preventing injustices due to the fact that the doctrine of precedent may serve the interests of justice.17 With a set precedent, it would be unjust to reach a divergent decision in a subsequent case. Contrary, overruling of an earlier case may result to injustice pertaining to individuals who have ordered their affairs in reliance to the judicial ruling. Generally, a precedent may bring about justice in a given individual case, but result to injustice in the generality of cases. It would be undesirable to treat various claimants unjustly based upon one binding case that had laid down an unjust rule. Case rulings calls for impartiality through the interests of justice in order to perpetuate transparency in the legal system.18 The existence of binding judicial precedents ensures this by following it to the latter in the resolution of a stalemate of issue at hand. The presence of case laws or common laws presents a practicality in legal character and is mainly based upon the experience of actual cases which have been introduced before the courts rather than on logic or theory.19 The prior stated doctrine of “stare decisis” is a limiting factor in the progression of judge-made law. Practice law emanates from experience but the scope for further experience of restricted in the previous case is binding.20 In regards to growth and development of legal structures, case laws provide opportunities which could not have been provided by the parliament. Judicial systems are more effective and can act quickly in laying down new principles or extend old ones to meet certain novel circumstances. Reference List Andy Gibson and Douglas Fraser, Business Law, (Pearson Australia, 2014). Australian Consumer Law (ACL), Avoiding Unfair Business Practices: A Guide for Businesses and Legal Practitioners. (Commonwealth of Australia, 2010) Australian Trade Commission, Australia business and environmental laws. (Australian Government, 2014, 1(1-4)) http://www.austrade.gov.au/Invest/Doing-business-in- Australia/Investor-Guide/Running-a-business/Understanding-Australian-business- regulation/Australian-business-and-environment-laws. Clive Turner, John Trone and Roger Gamble, Concise Australian Commercial Law, 2nd ed. (Prymont, N.S.W.: Thompson Reuters, 2013). Read More