Essay: Problem of International Law and Its Enforcement

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¶ … International

Law And Its Enforcement

ABBRIEVIATIONS

CIL:

Customary International Law (Kontorovich 2006, ¶ 1).

CISG:

Contracts for International Sale of Goods (Cuniberti 2006, ¶ 1).

FDI:

Foreign Direct Investment (Thomas 2006, ¶ 1).

GATT:

General Agreement on Tariffs and Trade (Reed 2006, ¶ 1).

IL:

International law (Kontorovich 2006, Introduction section, ¶ 2).

U.N.:

United Nations (Cuniberti 2006, Introduction section, ¶ 1).

WTO: World Trade Organization (Reed 2006, ¶ 1).

THE PROBLEM of INTERNATIONAL LAW and ITS ENFORCEMENT

"There are more than 50,000 international treaties,

600 of which cover multilateral trade issues"

(Bourque & de Sousa 2005, ¶ 1)

INTRODUCTION

International Law Considerations

Along with multilateral trade treaties and model laws, harmonized trade rules help ensure goods and services successfully flow from one country to another. The hundreds of such multilateral treaties, albeit, with many more coming into existence, constitute critical challenges that businesses, countries and numerous organizations have to routinely deal with. In the article, "Making sense of trade treaties: As world trade grows more complex, the rules for international business are also growing in number and intricacy…," Jean-Francois Bourque and Prema de Sousa (2005) relate numerous concerns and considerations related to international law. Historically, international organizations focused on developing trade rules, not actually considering concerns regarding the rule's applications in diver countries.

As this paper considers concerns relating to international law, the researcher discusses a number of practical business issues an organization engaged in international trade faces. This paper also relates information regarding international law and contracts, CISG, relationships between domestic and international law, transport of goods, WTO, and business structure for foreign investment.

International Law and Contracts

In the journal publication, "Inefficient Customs in International Law," Eugene Kontorovich (2006), Visiting Professor, University of Chicago Law School; Assistant Professor, George Mason University School of Law, explores the efficiency of customary international law (CIL). In particular circumstance, customary rules are frequently perceived to be desirable as they support the welfare of the group which proposes them. Kontorovich explains that in domestic and international law, the Article assumes its fundamental surveillance to be the divergent treatment of custom. "In international law, if a customary behavior of states can be identified, it is automatically elevated to the status of legal obligation without any independent examination of whether the custom is a good one" (Kontorovich 2006, ¶ 2). In international law, the reification of custom markedly contrasts the treatment of custom in private law.

Kontorovich (2006) contends that disagreements have historically plagued each aspect of Customs' definition, with the process facilitating the emergence of customs remaining unexplained. In addition, significant confusion exists regarding what types of acts add up to be "practice." Considerations include "whether omissions count; for how long the practice must continue; how many nations must participate in the practice for it to be general; how easily contrary practice defeats the requirement of "consistency"; and whether state practice is required at all" (Kontorovich, Defining CIL section, ¶ 2). Custom constitutes one of the two sources of international law. In a number of areas, it depicts the only source of international norms.

According to Kontorovich (2006), little reason exists to expect that international customs will improve states' joint welfare. Even though most legal systems operate against a backdrop of custom, nevertheless they do not concur in the respect they show to it. Numerous legal systems do not defer to customary norms, with some seeking to challenge them. The common law adopts the middle ground; acknowledging custom yet frequently superseding it. International law, however, depicts other extreme as it reifies custom. "International law (IL) automatically transforms customary norms into binding legal obligations" (Kontorovich 2006, Introduction section, ¶ 2). The standard definition for customary international law, which arises from a traditional routine practice states follow from a sense of legal obligation has two elements: state practice, and sense of legal obligation (opinio juris neccesitatas). State practice, an objective element, consists of observable acts or omissions. Legal obligation, however, as a subjective component depicts a "mental" state, frequently traditionally proven through diplomatic declarations and statements.

Additional definitions of international law include, but may not be limited to:

The body of laws governing relations between nations. (Princeton, as quoted in International Law 2009)

A combination of treaties and customs which regulates the conduct of states amongst themselves. The highest judicial authority of international law is the International Court of Justice and the administrative authority is the United

Nations. (4lawschools, as quoted in International Law 2009)

the states and substate actors in the international system and the institutions and norms that regulate their interaction; implies that these actors communicate, sharing common interests and a common identity; identified with British school of political theory. (Norton, as quoted in International Law

2009)

The system of law regulating the interrelationship of sovereign states and their rights and duties vis-is one another. ... (UNaids, as quoted in International

Customary international law (CIL) may not improve the welfare of nations. Nevertheless, the purpose of customs is not to improve welfare or attain any other normative goal. Instead, CIL emerge from a system of interactions within a group (Kontorovich 2006).

CISG

Gilles Cuniberti (2006), Associate Professor of Law, Paris Val-de-Marne University, France, examines Contracts for International Sale of Goods (CISG) in the journal publication, "Is the CISG Benefiting Anybody?" Cuniberti reports that surveying 181 court decisions and arbitral awards applying the CISG reveals that despite the value potentially lost, most international buyers and sellers do not address the issue of the law that governs their contracts. Due to the dearth of concern regarding the legal regime governing the contracts, increasing legal does not benefit them ex-ante. In addition, "they do not incur the transaction costs that a harmonization of the law of sales could save" (Cuniberti 2006, ¶ 1). Even though a few parties do provide for the applicable law and appear more sophisticated, due to the limited scope of the CISG, even these parties do not plainly benefit from the international harmonization.

To a significant extent, according to Cuniberti (2006), during 2006, the United Nations (U.N.) Convention on Contracts for International Sale of Goods harmonized international sales law. "This uniform law is applicable in sixty-six states, which include most of the major trading nations" (Cuniberti 2006, Introduction section, ¶ 1). CISG governs numerous areas of sale law, particularly the recital of the contract. The process of harmonization has secured support for approximately 100 years. This fact, along with numerous countries adopting the CISG, has contributed to increasingly difficult challenges regarding the enterprises usefulness. Although no scholars have disputed the usefulness of the CISG process, some scholars have challenged the CISG's usefulness; arguing that the poor quality of harmonization achieved challenges it benefits to commercial parties. (Cuniberti 2006, Introduction section). Domestic and International Law

Jacob Barron (2008), feature writer for Business Credit, asserts in the article, "Do your homework: Cultivating an effective international business relationship takes time, dedication and preparation, but almost always pays out in the long run," concerns challenging international credit managers include the legal differences between countries. The U.S. legal system consists of domestic and international laws that provide protection and rules. In some other countries, however, even when they have passed domestic and international laws, at times those laws may not be enforced or require such an extended period of time that the laws become ineffective. Transport of Goods

In the journal publication, "International transport," Peter M. Walker (2007), author of the guide, Consumer Law, stresses that when shipping products globally, reading the fine print and insuring packages proves critical. If a parcel gets lost, for instance, this may affect credit management, particularly when the would-be recipient refuses to pay the invoice. Walker relates one example of complications occurring when three packages of Pentium IV computer processors disappeared during transport. The consignment, worth approximately $378,000 (U.S.), had been transported by land and air from the UK to Amsterdam, where it was lost. Difficulties from the terms of the contract with the Carrier quickly arose. "The Carrier's duties included the collection, transportation, and delivery of the goods. The contract furthermore stipulated the maximum weight and dimensions of each parcel, of which the value was not to exceed U.S.$50,000. The consignment was worth much more" (Walker 2007, ¶ 3). If the parcels failed to comply with those restrictions, the terms of the contract stipulated, the Carrier would not accept liability for any losses. The Carrier asserted that it would only be liable if the Carrier did not act with "reasonable care and skill," if either of the Conventions did not apply, would the Carrier be liable. The Consignor demanded compensation totaling $1.5m (U.S.), but the airline, the contractor, claimed that as a result of the Convention, its liability was limited. The airline's conditions noted in the airway bill allowed more generous compensation, subject to limitations, because the flight ended in Paris (Walker 2007). Becoming familiar with the domestic and international laws of the company a business ships to, Walker explains, as well as those of the company it… [END OF PREVIEW]

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