Export and Import Taxation (WTO)
In reference to Article VI of GATT 1994, there are relevant implementation of the article identifies normal value and export price. Normal value determines the weighted average basis compared to the prices of export transactions in terms of patterns of export prices among different regions. The normal value determines the difference between the transaction-to-transaction comparisons. According to Article VI, a product relates to the introduction into commerce of an importing country at lower than normal value, when the price of the product is exported from different countries. The normal values determine the context of the imported merchandise before the duty is applied. This relates to the orginalisation of the goods and prices that offered relevant transactions. The export price implies the stabilization domestic prices that are independent on the results on the domestic markets. The movement of export prices compares with prices charged on commodity to other buyers.
The export price is determined by the process of selling of commodities for export for higher prices compared to the domestic markets. The export prices relate to the effective regulation of products that trigger exports. Since, the export prices changes affect in implications of the prices charged on exports. The information on export prices considers the appropriate rules on the goods obtained from different countries. The export prices are appropriate when reselling the products to an independent buyer. The prices also consider the implications of dumped imports to demonstrate relevant factors on the various articles. Export price is expressed as a percentage in term on the margin of dumping. The dumping margin and the volume of the exports affect the price of the exports. Thus, the definition of export price and normal value must involve the following rules and procedures on products exported.
Article 17 is relevant when settling any disputes that arise as it outlines the rules and procedures that govern any such disputes. In light of Article 1, preferential treatment after the importation is provided for in the territories. This is related to the subjects to certain mater, conditions and qualifications. Next, Article 2 provides for relevant procedural actions on formal investigation. On the purpose of the agreement, the products can be dumped to enhance ordinary aspects of trade. While, article 3 provides for the protection and measures that relates to restrictions and taxations of domestic goods. The application of protectionism applies internal tax and other relevant regulatory measures.
Article VI on the consultation and implementation is relevant in light to article 17 that determines the rules and procedures governing the settlement of disputes. Moreover, Article VI discusses on the anti-dumping and countervailing duties among the different contracts. In accordance to the procedures, the provisions determine the objectives of dumping on prices to determine positive evidence. The relevance of article 5 insists on the initiation and subsequent investigation of the domestic industry this relates to the final legal assessment and collection of duty. Article 6 is relevant to article 17 as it assists in providing adequate evidence on the anti-dumping investigations. While article 7 identifies the provisional measures applied on the interested parties and during affirmative determinations. Article 8 is relevant in evaluating the price undertakings to impose relevant provisional measures.
The article 9 recognizes the imposition and collection of antidumping duties. Article 10 determines the provisional measures and duties that apply to certain products for consumption after a certain period. In addition, Article 11 relates to Article 17 by exemplifying ordinary customs duties. This occurs in excess from the date of duties and charged imposed in various aspects. Article 11 is relevant in enhancing transparency on legal rights and obligations. This relates to the schedules of tariff aspects in recording the legal characters. The named articles are relevant in applicability of article 17 among the export and import transactions. The initiation of the agreements under Based on the procedures on Article 17, the aspects of rules and procedures provides for relevant controls to enhance legal and operational excise to restraint any disputes. The application of the Article 17 provides that linkage between the evidence is crucial in determining the alleged injury in promoting the application of the settlement rules.
Import and Export Tax
The Functions of a ‘Panel’
During disagreements between states, a panel is normally constituted when a party to a particular disagreement case makes a request in writing. The panel requests normally include details of whether there were consultations held before, between the party in disagreement or not, the exact measures in question and a short summary of the legal base of the grievance, which should be adequate to present the crisis in a clear manner. The panel is first of all charged with the responsibility of confirming the aforementioned details. A panel is normally made up of 3, or under the request of the complainants a total of 5, properly-qualified government or non-government personalities, who serve at their individual capacities and not representatives of organisations or governments.
The function of the panel is to help the DSB in carrying out its tasks in line with the Understanding and enclosed or covered accords or agreements. For that reason, a panel is supposed to do an intentional or purposeful assessment of the issue that is brought before it, as well as an objective evaluation of the particulars, proof or facts of the complaint and the relevance of the case, in addition to its compliance with the pertinent covered accords or agreements. While carrying out these responsibilities, the panel should find out any other relevant issues that will help the DSB come up with appropriate recommendations or give appropriate rulings that are allowed within the limits of the enclosed agreements. The panel members should only ensure that the party which is invited on the panel attend it and similarly keep all the documents that are presented before it confidential. After the panelists have assessed the case at hand, they should submit a written report to the DSB within a period of six months from the time it was set. The report submitted to the DSB should outline the findings in regard to the facts surrounding the case, the pragmatism of relevant conditions, and the fundamental underlying principles behind or supporting any of their results and/ or findings.
The Roles of the ‘Appellate Body’
An Appellate body is normally formed when any one party or members who filed the complaint with the panel makes a request seeking to appeal from the decision that is made by the panel. The Appellate body, first of all, has the responsibility of ensuring that the appeal that is made by the discontented party is limited to or is within the enclosure of the legal issues or legal framework that was initially covered or included in the panel report and the legal interpretations that were developed by the panel. This implies that one party can appeal a decision made by the panel based on a question of fact. If the appellate body determines that the measure that is raised by the appealing party is inconsistent with the covered agreement, then it will recommend that the appellant ensures that the measure conforms to the agreement before it is accepted for review.
The appellate body basically writes its reports in the absence of the complaining party and the reports are normally made based on the information that was initially provided by the party, in addition to their statements. The appellate body, basically made of seven individuals, normally expresses opinions that are supposed to remain anonymous. In the report, the appellate body may modify, reverse, or uphold the legal findings and conclusions that were made by the panel. This report should be submitted to the DSB not later than nine months from the time the panel was formed. The report from the Appellate body will be adopted by the DSB and similarly be unconditionally accepted by the parties that are having the dispute. This may not be the case if the DSB makes a decision via a consensus not to adopt the report from the Appellate Body, and this should take place within thirty days following the circulation of the report amongst the members.
International Import and Export
On the 12th of July 2007, Panama asked for consultations with Colombia concerning Indicative prices applied to particular goods and the restrictions importation of certain products. Panama’s request that concerned the indicative prices is related to a number of resolutions that were promulgated in June 2007 that led to the establishment of a system of indicative prices. In particular, Colombia was suspected by Panama to necessitate that importers of certain goods, pay custom duties together with other duties or are charged and taxed according to the indicative prices instead of on the valuation methods included in Article VII of the GATT 1994 as well as the agreement on customs valuation. Furthermore, Panama claimed that the tax base for Colombia’s sales tax on products that are imported, is based on the indicative price while the tax base for sales tax on the goods that are considered domestic is based on the value of a business deal.
According to Panama this disparity in tax bases leads to the imposition of sales tax burden on the goods that are imported. This imposition leads to probable inconsistencies with Article 1 to 7 and 13 of the Agreement on Customs Valuation and Article VII, II:1(a) and (b), as well as Article III:2 (OR III:4) of the GATT 1994. Panama also claimed that Colombia had not made available the technique for the creation of the indicative prices. According to Panama, this was not in agreement with the Colombia’s obligations as indicated in Article X:1 (a) of the GATT 1994. Lastly, Colombia management of its customary laws and the indicative prices was supposed to have been carried out in a way that was considered inconsistent with Colombia’s obligations as indicated in Article X:3 (a) of the GATT 1994.
The outcome of the WTO dispute Resolution Panel’s decision
The panel noted that the customs valuation Agreement did not define custom valuation; however the definitions of customs value were included in the Article 15 of the customs Valuation Agreement as the value of products for the purpose of levying. Based on this definition, and the understanding of the meaning of customs valuation, and after assessing how the indicative price regime operated in Columbia, the panel concluded that Colombia utilization of the indicative prices constituted customs valuation within the Custom valuation Agreement since the payments that were made by the importers were considered as payments strictu sentu and not as guarantees in the form of cash deposits. According to the panel, the measures applied in establishing the indicative prices, through the authorization of their use of custom valuation process, were not consistent with the obligation included in the Articles 1,2,3,5 as well as 6 of the Agreement. The Colombia v Panama case concerned numerous dealings that were associated with local anti-smuggling guiding principles including other limitations on ports of entry and their impacts on Panama which is the neighboring state. Thus the panel found that those limitations were prejudiced and therefore were breaching the WTO laws, moreover, the panel had doubts over the efficiency of those restrictions in general. It is significant to demonstrate efficiency in order to ensure that one complies with the WTO laws. According to the panel, the prohibition of importation certain goods from Panama, by Colombia was an outlawed restriction on importation as indicated in Article XI: 1.
Doctrine of Inevitable Disclosures
I agree with the provisions stated in the principles of inevitable disclosures that allows a trade secret holder not to hire a former employee working for a close competitor. Although the secret’s bearer cannot offer the threats behind the misuse of trade secrets, a former employee should not be allowed to work for a close competitor. These points seek to provide arguments for the inevitable disclosure doctrine.
- Firstly, this assists in the protection of the company’s confidential and sensitive information. Based on this doctrine, employees can reveal the confidential information to the competitors. This is based on the non-compete agreement that allows states to restrain the former employees. However, if there are no competitions between the companies, the litigation does not apply.
- In the case of hiring a competitor’s executive, it violates the provisions of the doctrine due to the intent of the executives to utilize the confidential information. The executives are required to record their intentions and interests in order to prove their credibility and responsibilities on the basis of the doctrine.
- Litigation arguments provide that pursing inevitable doctrine highlight the need to enhance transparency on former employees and executives. This assists to show the inevitability of revealing private information in a manner that could harm employees. However, the companies should understand the agreements between employees and the companies. Therefore, the doctrine requires employees to acknowledge that trade secrets and private information can be stored in their memories and it is difficult to erase such information. This admission helps in proving the need to place this legal doctrine in workplaces.
Proposed Amendment in the Texas Legislature
The Texas legislature, just like all other Legislative bodies, encounters heavy task load of democracy representation in the context of society’s interests, conflict reconciliations, law-making processes and oversight. Legislatures under these conditions should be provided for with adequate meeting time by the law to accomplish these numerous responsibilities. The Texas constitution is however designed in a manner that provisions part-time meeting time by legislatures of relatively short 140 days every other year. The citizen legislators therefore encounter a tremendous challenge of a limited meeting time year round to handle numerous increasingly multifaceted bills. This limits the ability of the legislatures to fulfill their representational responsibilities fully.
Texas Constitution Article 3, Section 5 titled Meetings; Order Of Business, provides for when the legislature meet. Subsection (a) states that “the legislature shall meet every 2 years as provided by the law and when convened by the Governor”. Subsection (b) provides for the order of business during this meeting time. It subdivides the 140 days as follows; first 30 days devoted to the bill’s introduction and resolutions, and acting on any emergency appropriations and other emergency matters as may the Governor may submit in special messages. The next 30 days are set apart for the various legislative committees of the House to hold meetings, hear and consider the pending bills and resolutions as well as the emergency matters. The remainder of the 140 session is set apart for the legislature to act upon the pending bills and resolutions and other emergency matters that the Governor may submit. In my opinion, Texas Constitution Article 3, Section 5 subsection (a) and (b) should be amended to provide for more time for the Texas Legislature to meet in regular session year round.
TO: John Hillman, Lawyer; Hillman Advocates.
FROM: Stephen Lewis, Manager; Ravers Night Club.
DATE: March 3, 2014.
SUBJECT: Request for Legal Opinion.
Rebecca Jones, a regular customer to our night club recently got injured in our premises during one of her visits. Her injury was caused when she accidentally stepped on a rubber ball left on the floor by other customers who were playing bocce ball with them. She fell and broke her ankle as a result. The customers usually get careless with these small rubber balls and leave them scattered over the floor especially after getting intoxicated. Due to the seriousness of her injury, I have been informed by her lawyer that she intend to press charges against our club soon therefore I ask for your legal opinion on any defenses available to us against this suit.
From legal research I have conducted, I have learnt that legally, an owner of business premises is under legal duty to keep his premises safe for invitees, licensees and even trespassers. According to Shubert (427), invitees are those with implied permission to enter the business premises. They come into the premises for the purposes for which they were built. Licensees are those that come into the premises by either implied or express permission of the owner such as suppliers and sales people and trespassers are those that enter premises with no permission at all. Based on this, Miss Jones can be categorized as a business invitee for she came into the club as a customer as she has always been doing. A business owner is expected to practice the best duty of care to business invitees, a category in which Miss Jones belongs. The owner must inspect the business building and ensure that it is free of all risks including those that are obvious and those that could be hidden. In those sections of the premises that are likely to pose a risk to business invitees such as slippery surfaces, he the owner of the business must display warning signs that alert the visitors of possible dangers (Cohen & Abele, 152).
However, Miss Jones is a regular visitor to our premises thus she was obviously aware that there is a tradition of playing bocce ball in the club therefore she ought to have been more careful while walking across the floor to avoid stepping on misplaced balls. Rationally, we do expect our customer to exercise some duty of care to ensure that their properties and themselves are safe while within the club. This reasoning is consistent with section 3(b) of the Occupiers Liability Act of 1957 which provides that the owner or occupier of a premise may expect that a visitor while within the premises for the purposes for which he or she is, to appreciate and practice due care against special risks that may be there and she or he is aware of as long as the owner puts him or her under free will to do that. Thus Miss Jones being aware that balls are often left lying around the floor had a duty to appreciate the imminent risk being posed by their presence and she was under free will to avoid stepping on them and could even behave more responsibly by picking them up and placing them in the right place.
In a similar case published on Louisiana’s Legal Journal, a woman has sued Wal-Mart Stores for injuries sustained when she slipped on a fluid left on the floor and fell while she was shopping at a store owned by the company (Barnet). In her suit she claims that the defendant failed to supervise and maintain common areas and gangways in a safe condition and in effect failed to comply with state laws. Miss Jones could possibly press similar charges against our business. However, our premises are always maintained to the highest safety standards. The balls being on the floor was as a result of intoxicated customers’ carelessness and thus clearly not our fault. Intoxicated persons are known of their inability to act responsibly and reasonable persons ought to practice extra care while around them.
In conclusion, according to e-lawresources.co.uk, several defenses are available under Occupiers Liability Act. Under Volenti non fit injuria defense, the accused can claim that the plaintiff willingly accepted the risk like in this case, Miss Jones possibly knew that balls were left on that area of the floor yet she walked through it any anyway or under contributory negligence principle, the extent of our contribution towards the injury could be reduced because Miss Jones failed to practice reasonable care for her safety thus she contributed to her own injury. Kindly assist with your legal opinion on this matter. I am aware that we are under legal obligation to keep the night club safe for our customers yet due to circumstances beyond our control we cannot keep it absolutely safe. Please advise if we can use any of the defenses stated above against Miss Jones’ lawsuit.
Barnet, Kyle “Woman who lost job allegedly due to injuries suffered at Wal-Mart sues” Louisiana’s Legal Journal 21 February 2014. Web. 3 March 2014.
Cohen, Harvey H., Abele Jon R. Slips, Trips, Missteps, and Their Consequences Tucson, AZ:
Lawyers & Judges Publishing Inc. 2007. 152. Web. 3 March 2014,
Occupiers’ Liability Act 1957 legislation.gov.uk n.d. Web. 3 March 2014.
Occupiers Liability e-lawresources.co.uk n.d. Web 3 March 2014.
Schubert, Frank Introduction to Law and Legal System Stanford, CT: Cengage Learning. 2014. 427. Web. 3 March 2014.
Case Analysis: Native Women’s Association of Canada v. Canada
Based on the Native Women’s Association of Canada v, Canada case, the court ruled that section 2 (b) did not impose on the government a positive duty to consult particular groups or offer funds to these groups for the purpose of enabling them to participate in formal discussions. The government funded for Aboriginal groups to enable them to represent the aboriginal individuals in responding to the government’s 1991 constitutional proposals; consequently, the Native Women’s Association of Canada (NWAC) that was representing native women sought an order in the federal court asking for equivalent funds and consultation from the government. The NWAC claimed that by offering only the male dominated group’s funds and denying them equal funds, the state was violating their liberty of expression and the right to fairness. However, their application was dismissed by the trial division court refused to give an order of prohibition. The administrative law principles and issues that arise in this case include, the principle of equality and non-discrimination. The core issue in this case is the demise of positive liberty (NWAC v. Canada case, 1994).
Generally the government is not responsible to sponsor or provide a particular platform of expression to a specific person or a group and intentionally leaving out other similar groups. However, there are particular situations that the government may be required to engage in positive actions for the purpose of making freedom of expression meaningful. In circumstance where the government provide such platform, it is required not to do so in a discriminatory manner. According to Sopinka J, inefficiencies and cost may arise if the state assumes positive obligations under section 2(b) of the charter. He declared that it is not reasonable that the when the government of Canada decides to give fundings or consult a particular group, thereby providing a platform for the purpose of conveying particular views, it is required also to give fundings to a group purporting to represent the opposite point of view. If this is the main objective of section 2 (b) of the charter, then the government spending would certainly be extended (The demise of positive liberty? NWAC v. Canada, 2011).
The government acting positively could be inefficient for the reason that it would probably result in a flood of inefficient obligations upon the state. The government should be free to decide when and how to act positively towards the general public. The state should be free to consult whomever it pleases. Because the government decides to offer fundings to a particular group, it does not imply that it is also necessary that it gives funding to a group purporting to represent the opposite point of view (Journal of National Association of Administrative law Judiciary). Sopinka J.’s majority opinion in NWAC tend to negate the claim that, the state has a weak positive obligation to promote freedom of expression under section 2 (b) of the charter. By emphasizing that “it will be unusual that the provision of a platform or funding to a particular group or several groups will have the effect of suppressing another’s freedom of expression,” Sopinka retreats from the claims made in Haig v Canada case. Referring to Haig v. Canada case, there is no judicial claim whereby a positive right to freedom of expression is considered as restricting the democratic function of the government (Haig v Canada case).
Generally a state that chooses to consult or fund one group does not essentially violate the freedom of another group to express an opposite opinion. The Native Women Association of Canada in this case was free to voice its opinion. However, this claim is inefficient because it pays no attention to the unequal effect the state actions may have on the other groups. By strengthening the right of expression of a particular group and ignoring the other group, the state treats the group unequally and potentially violates the right of the ignored group to express itself. The guarantee of freedom consists of protection from indirect forms of authority that the government may exert in favor of specific groups. The indirect favor is normally obvious when a state chooses to assist some groups express their views and ignoring others.
There may be still a weak conception of positive liberty that may exist under the section 2 of the charter which may be premised upon three interrelated concerns: the social conditions that precede the state’s grant of benefit to a deprived group and how the other groups are affected, the social effect of the funding to the group. Referring to the Native women, the state is at liberty to benefit the native organization that represents the native groups in general. However, the government is not allowed to do so when the effect is to worsen the disadvantage of the native groups (The demise of positive liberty? NWAC v. Canada, 2011).
If I were the judge I would rule based on the efficiency and inefficiency of the state actions. According to the NWAC v. Canada case, the federal court is not supposed to oblige the government to embark upon inefficient action. The government has the capability of deciding when its actions are efficient or inefficient. In assessing selective government funding I would assert on the fairness of the government actions and not displacing the idea of efficiency. Fair allocation of funding does not essentially imply equal funding. Fair allocation of funds is a question of facts and not judicial jurisdiction. What should be put into consideration is whether organizations such as the Native Women Association of Canada represents a voice of difference, that the group being denied funds is a subject to discrimination. It is important to balance positive liberty against administrative efficiency in considering the rights of the government against its obligations within a disparate society (The demise of positive liberty? NWAC v. Canada, 2011).
Based on the analysis of the case regarding the Native Women’s Association of Canada v. Canada, the Native Women’s Association of Canada were granted an opportunity to express themselves as the national organizations represented both the men and women. This way the government acted effectively as it ensured that the women were also heard. They were persuaded by the Minister who deals with the constitutional Affairs to work within the Aboriginal communities to make sure their opinions are heard and considered too. Appropriate guiding principles were followed and the charter privileges of aboriginal women represented by the organization were not offended (Fairness and efficiency in governmental decision making). There was no clear evidence that the government acted in a way that violated the freedom of the NWAC to express their views, however, it can be said that it acted inefficient by ignoring the unequal effect the state actions may have upon the Native Women’s Association group; not granted funds. For this reason, the NWAC remained fearful that they may not succeed in expressing their pro-charter view, despite the fact that they were able to contribute in the parallel process that was established by the four national Aboriginal organizations that received funds from the government (NWAC v. Canada case, 1994).
Solomon, D. Fundamental Fairness, Judicial Efficiency and Uniformity: Revisiting the Administrative Procedure Act. Retrieved from http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1545&context=naalj
Trakman, L. (2011). The Demise of Positive Liberty? Native Women’s Association of Canada v. Canada. Retrieved from https://ejournals.library.ualberta.ca/index.php/constitutional_forum/article/view/12022/9222
Native Women’s Association of Canada v. Canada. (1994). Retrieved from file:///C:/Documents%20and%20Settings/maurine/My%20Documents/Downloads/16340693_Native_Womens_Assn._of_Canada_v._Canada_1994_3_S.C.R._627_2%20(3).pdf
From a legal viewpoint, a bank loan is different from a current account financing in form of a bank overdraft though the two may be similar in one way or the other. On one hand, a bank overdraft though it extends credit to customers, it is usually on short term basis. This means that the customers that acquire credit through this system should settle it as soon as possible after they acquire the credit. The period for settling such a credit may be in few weeks or in a month’s time. For the bank overdraft, the bank should not allow its customers to overdraw their accounts unless the bank has a contract with those customers to do so. At the same time, when the customer overdraws his/her account without the bank’s consent, the bank may charge the customer in question higher interest and add other bank charges. On the other hand, a bank loan is usually on a long term basis meaning that once the customers acquire credit through this system, they have considerable time to repay the credit. In this case, the customers may have a fixed number of months or years to repay the credit.
In terms of differences, a bank overdraft usually exists as a pre-conditional contract between the bank and a customer whereby the customer agrees to certain terms and conditions upon opening a current account with the bank. By agreeing to pre-conditional terms and conditions, the bank allows the customer to draw a certain amount of money from the current account the customer holds with the bank. This means that for a customer to obtain an overdraft facility from the bank, the customer should have a current account with the bank in question. For the bank loan, this may not always be the case especially for the salaried people and other secured bank loans because the collaterals or the pay slips may secure the bank loan. Given that an overdraft facility requires the customer to agree to certain pre-conditional terms and conditions, the customer acquires this facility without making any prior arrangements. On the contrary, for a customer to acquire a bank loan, the customer should make prior arrangements for the same.
Another difference between a bank overdraft and a bank loan is that while the interest for the bank overdraft is calculated on daily balances the interest of a bank loan is calculated either on monthly balances or annual balances as the contract may state. At the same time, while the contract for a bank overdraft facility has a maximum amount of credit that a customer can obtain at any given time, a bank loan does not have a maximum amount of credit that a customer can obtain at any given time. Instead, the maximum amount of the bank loan that a customer may obtain at any given time depends on the customer’s financial capacity to repay the loan.
In spite of the differences between the two systems of credit, a bank overdraft and a bank loan are similar in the sense that the two systems avail money to customers in form of credit. Furthermore, the two systems of credit charge interests and some bank fees on the money they avail to their customers.
In most cases, banks extend overdrafts to businesses as opposed to private customers. For this reason, for a private customer to acquire a bank overdraft facility that person should have a registered business. On the contrary, a bank loan is available to both private customers and businesses. This means that there are no differences to the elements discussed above whether the customer is a private one or a business entity.
Bates, Bronwynne. Business management: fresh perspectives. Cape Town, South Africa: Pearson Education, 2005.
Campbell, Dennis and Christian Campbell. Legal aspects of doing business in Europe. Huntington, NY: Jurist Publication, 2011.
Ellinger, E., Eva Z. Lomnicka, Hare and E. P. Ellinger. Ellinger’s modern banking law. Oxford: Oxford University Press, 2009.
Hong Kong Institute of Bankers. Bank lending. Singapore: John Wiley & Sons Singapore Pte. Ltd, 2012.
Industrial systems research. The business finance market: a survey. Manchester: Industrial systems research, 2013.
Nieman, Gideon and Marius Pretorius. Managing growth: a guide for entrepreneurs. Cape Town: Juta Academic, 2004.
Owens, Keith and Keith Owens. Law for non-law students. London: Cavendish, 2001.
Reynolds, Wal, Alan J. Williams, and Warwick Savage. Your own business: a practical guide to success. South Melbourne: Nelson Thomson Learning, 2000.
Shihata, Ibrahim. The World Bank legal papers. The Hague: Nijhoff, 2000.
Nico. Starting or buying your own business or a franchise. Lansdowne,
South Africa: Juta, 2002.
 Campbell, Dennis and Christian Campbell. Legal aspects of doing business in Europe. (Huntington, NY: Jurist Publication, 2011), 11.
 Industrial systems research. The business finance market: a survey. (Manchester: Industrial systems research, 2013), 185.
 Ellinger, E., Eva Z. Lomnicka, Hare and E. P. Ellinger. Ellinger’s modern banking law. (Oxford: Oxford University Press, 2009), 753.
 Owens, Keith and Keith Owens. Law for non-law students. (London: Cavendish, 2001), 506.
 Hong Kong Institute of Bankers. Bank lending. (Singapore: John Wiley & Sons Singapore Pte. Ltd, 2012). 164.
 Bates, Bronwynne. Business management: fresh perspectives. (Cape Town, South Africa: Pearson Education, 2005), 176.
 Ellinger, E., Eva Z. Lomnicka, Hare and E. P. Ellinger. Ellinger’s modern banking law. (Oxford: Oxford University Press, 2009), 753.
 Nieman, Gideon and Marius Pretorius. Managing growth: a guide for entrepreneurs. (Cape Town: Juta Academic, 2004), 178.
 Shihata, Ibrahim. The World Bank legal papers. (The Hague: Nijhoff, 2000), 133.
 Swart, Nico. Starting or buying your own business or a franchise. (Lansdowne, South Africa: Juta, 2002), 16.
 Reynolds, Wal, Alan J. Williams, and Warwick Savage. Your own business: a practical guide to success. (South Melbourne: Nelson Thomson Learning, 2000), 212.
Racial Discrimination: EMS Law
Racial discrimination can be based on color, gender, religion, background and social class. It can be experienced in learning institutions, workplaces, social gatherings and the health care industry. Several lawsuit cases have been brought forward for receiving poor quality emergency medical services. Most are brought forward from the black community and Muslim group of persons. For example, some persons from the black community living in particular neighborhoods claim it takes longer to access EMS ambulance services. These sentiments are also recorded among persons from the Muslim community. The amount of time an ambulance takes to arrive and attend to a white person is relatively shorter. This compared to the amount of time the ambulance will take to attend to either a black or Muslim person. It was discovered black community especially from lower social classes hardly access EMS services. This is attributed to stereotypes such as high crime rates in the neighborhoods, Thus, EMS services mainly accessibility to ambulances hardly cater to racially discriminated persons. This paper focuses on various levels of racial discrimination in the healthcare sector. It also discusses various policies and regulations passed under EMS Law to reduce and eliminate racial discrimination within various departments of health and emergency medical services.
Racial Discrimination: EMS Law
Black individuals have always been regarded as well informed sources of information with regards to racial discrimination. Conversely, their counterparts from the white community are believed to judge and prejudice against them. Social referencing targets persons from the minority communities in assessing racial discrimination. Although the Civil Rights Act Title VII was passed in 1964, racial discrimination continues to persist. This paper will however discuss racial discrimination with regards to Emergency Medical Services (EMS) Law (Apfelbaum, Sommers & Norton, 2008).
Types of Racial Discrimination
Racial discrimination can be witnessed in different and diverse forms. It is highly influenced by opinions from members of a particular community racially discriminating persons from minor groups. For example, some colleges admit more persons from the white community than the black group of persons. Perceptions also play a vital role in fueling racial discrimination. Persons from the white community avoid using some references and terms perceived to originate from the black community. They perceive them as identifying terms utilized among the black community. Persons from the Muslim community are associated with terror attacks. Thus, credibility levels with regards to persons from the Muslim and black community are highly reduced. This has affected delivery of emergence medical services to the Muslim and Black community (Jennifer & Benoit, 2013).
The EMS law was passed as an act in 2008. However, effectiveness and efficiency was first witnessed in March 2009. The EMS Act tasked the department of health to upgrade and update medical and health care regulations. The law published new EMS principles and policies aimed at reducing racial discrimination in health care sector. The Civil Rights Act Title VII was passed to protect persons from discrimination based on their race, color, gender and religion before acquiring employment. It also aimed at prohibiting making decisions based on stereo types, assumptions, traits and racially grouping people with regards to performance rates. Consequently, the EMS Act 2008 was passed to guide oversights of emergency medical service across health care facilities (EMSDDH, 2010).
The EMS Act consists of policies procedural in nature. They aim at helping and clarifying health care regulations passed since the Act was passed. The new policies passed and conducted are several. Firstly, an EMS Organization Quality Assurance and Improvement Plan was developed. EMS provider certification extensions were also issued and procedures with regards to lapsed certifications developed and implemented. It also discussed transportation of patients across various health care facilities. Ambulances were required to ensure they establish interior climate standards suitable in transporting patients. The department of health also issued forms aimed at helping the process of EMS services. The forms complied with mandates, policies, principles and regulations within the department of health. Based on the listed polices and regulations, the EMS Lawful Act aimed at achieving equality and fairness across races and genders to reduce and eliminate racial discrimination. Due to the EMS Law, health care facilities and services are accessible to patients from different races, genders, social classes and religion (EMSDDH, 2010).
racial discrimination is a high-stake effort. There are people who strive to
appear like they are not discriminating. Others aim at highlighting presence
and effects of racial discrimination among modern day societies. However,
people should acknowledge racial discrimination affects lives and health
conditions among targeted group of persons. Accepting existence of racial
discrimination is vital to fight and eliminate it from communities and
globally. Thus, the EMS Law is applicable in reducing and eliminating racial
discrimination from health care sector and other global industries.
Apfelbaum, E. P., Sommers, S. R., & Norton, M. I. (2008). Seeing Race and Seeming Racist? Evaluating Strategic Colorblindness in Social Interaction. Journal of Personality and Social Psychology, 95(1): 918–932.
Emergency Medical Services Division of the Department of Health (EMSDDH). (2010). EMS Laws, Regulations and Policies, Department of Health Report.
Jennifer, R. C., & Benoit, M. (2013). How the Opinions of Racial Minorities Influence Judgments of Discrimination, Basic and Applied Social Psychology Journal, 35(1): 334–345.
Law Research Paper on Federal versus State Management of Intrastate and Interstate Renewable Energy Development
Federal versus State Management of Intrastate and Interstate Renewable Energy Development
Regulation of renewable energy development in the United States varies from state to state, because there is no federal policy or federal renewable portfolio standard. Renewable Portfolio Standards have been adopted in 30 of the 50 U.S. states, and the District of Columbia.There is little or no uniformity across the United States regarding these Renewable Portfolio Standard’s. Renewable energy development has been dealt with differently in each State because every state is different and has different goals for the diversification of their energy portfolios. Most States and investor-owned utilities are opposed to a Federal RPS. Some of their reasons include that a Federal RPS would conflict with and preempt existing RPS programs passed in many states. Also, they fear that it wouldn’t adequately consider the uneven distribution of renewable resources across the country, and it could create inequities among states and utility customers.In this paper I will focus on two basic questions that need to be answered to resolve this debate. First,which Government entity is best suited to regulate intrastate renewable energy development? Second, is the best option feasible to implement?
Indeed, the federal government has been involved in the development of renewable energy sources in various ways. For example, through the American Recovery and Reinvestment Act of 2009 (ARRA), which was passed as a response to the global recession, the government allocated $4.5 Billion towards the modernization of the national transmission grid, particularly to build a smart grid. The congress has also since then provided considerable funding to support extensive multiregional planning efforts that extend beyond individual systems operators and individual utilities. And more recently, the Obama Administration established the Interagency Rapid Response Team for Transmission (RRTT), which would “better coordinate the siting of interstate transmission lines to increase grid reliability, integrate new renewable energy into the grid”. Already, in October 2011, the RRTT announced its plans to expedite the construction of seven transmission line projects through 12 states: Wisconsin, Colorado, Arizona, Oregon, Nevada, New Mexico, Idaho, Minnesota, Utah, Wisconsin, Pennsylvania and Wyoming. This would involve a close coordination of state and federal review processes.
In more specific terms, there are statutes through which the federal government governs electricity transmission siting. For example, the federal Power Act of 1935 (FPA) lays the statutory base for regulating the transmission and sale of electricity across state lines. These roles have since been transferred to the Federal Energy Regulatory Commission (FERC).
In recent years, however, there have been increased calls from scholars for greater federal involvement in the renewable energy development, especially in relation to the regional siting authorities. Heeding this call, the US Congress has continued debating the need for a federal RPS that would require utilities to buy a percentage of or generate their electricity from renewable sources. Currently, the main federal policy on renewable energy sources is the Volumetric Ethanol Excise Tax Credit (VEETC), which accounts for 41.6 percent of federal subsidies for all renewables in 2006.
This paper will explore the possibility of the federal governments involvement in the renewable energy development and what role (interstate versus intrastate regulations) the federal and state governments should have in the process.
- Why America Needs Renewable Energy Development
In the 1970s and 1980s, the United States experienced major oil shocks that spurred a national wave to decrease dependence on petroleum by developing other sources of energy. However, around the same time, the production of oil and gas in Texas peaked. Although the role was relatively small, the industry still played an important role in the economy of Texas. Afterward, the energy price fell and naturally the national interest in renewable energy sources died. However, in recent years, the world has experienced dramatic rises in oil prices, as well as increased environmental concerns. These have led to “heightened interest in renewable sources of energy, such as solar and wind energy, biomass, hydropower and geothermal power”. These are relatively clean and virtually inexhaustible.
The development of renewable energy sources will provide a number of benefits to the US: it will be good for the economy and facilitate US’s energy independence (which curbs the potential long-term consequences of US’s dependence on foreign countries for energy and oil, especially in the face of continued rise in oil prices).
- Good for the Economy
Although the US holds a meager 3 percent of the world’s oil reserves, its economy consumes 25 percent of global oil production. In other words, the US imports over half of its oil consumption. This great imbalance is costing the country about $1 Billion per day. By investing in renewable energy development, energy efficiency, as well as other clean energy technologies (such as electric vehicles), the US would cut its oil imports and, consequently, save hundreds of billions annually. Secondly, it would also stabilize the country’s trade balance. According to statistics of the US Department of Energy, “every $1 Billion of trade deficit costs America 27,000 jobs”. The US’s oil imports represent over half of its trade deficit, which is a major contributor to unemployment. For example, if the US invests in buildings’ energy efficiency upgrades, it “could create 625,000 sustained jobs over the next decade”.
Developing renewable energy would mean that much of the money the US spends on importing oil would stay home. This would create jobs in millions, spur innovation, as well as help safeguard the US’s national environmental and economic security.
- Environmental Benefits
Conventional (non-renewable) sources of energy used in energy-intensive industries and transportation cause major pollutions and greenhouse gas emissions. The exploration of fossil fuel and uranium, production and extraction has had major impacts on water and land resources.
On the other hand, renewable energy sources produce few or zero gas emissions during the manufacturing of fuels and/or equipment or when they are used. They also produce few water and air pollutants, as well as wastes and land disruption. Careful location of renewable energy equipment (such as locating biofuel crops on marginal land or solar collectors on building) would cause fewer land use conflicts.
- US Energy Independence
By maximizing renewable energy and energy efficiency on both regional and national levels will reduce the US’s dependence on imported fuels.
This can be of great benefit to domestic energy security, such as by reducing energy price volatility. In other words, renewable energy can help stabilize energy pricing. Mostly, the cost of renewable energy is related to the repayment of invested capital. Equally, such costs do not depend on “the fluctuating and increasing cost of an international resource such as oil or uranium”. Developing renewables, which have low environmental and health effects, eliminates future financial liabilities. This is important with respect to the volatile prices of crude oil, as well as the instability of prices in the deregulated electricity and natural gas markets. It is, therefore, important for governments and businesses to increase the fraction the energy they buy from renewable sources. This is a socially responsible gesture, but can also act as a cushion against high prices of energy.
One way in which this can happen is through providing a degree of local control, security and reliability for renewable energy produced and used locally. As it were, the systems for generating distributed power and flexible local grids can be owned and controlled by communities (which can decide to link with other grids when necessary). “Biofuels can be produced from local agricultural crop, forest products or wastes”. On the contrary, conventional energy production from non-renewables will always need large distribution and centralized management infrastructures, which are overwhelmingly owned and/or controlled by a few corporations and countries. They are, therefore, more prone to security threats and impacts of system disruptions and/or breakdowns are greater.
- State Versus Federal Renewable Portfolio Standards
- State Rps
Historically, only a small proportion of electricity produced in the US comes from renewable energy sources. Between 1989 and 2004, non-hydro renewable energy accounted for only 2 to 2.5 percent of electricity produced. Most of this energy was generated from municipal solid waste, biomass combustion and geothermal energy. Wind and solar comprised only a smaller fraction. After 2004, the development of renewable energy sources has increased, albeit only to a small extent. For example, wind power (which has experienced the highest growth) has increased at the rate of over 12 percent every year. By 2007, therefore, non-hydropower renewable energy represented 3 percent of all electricity nationally and more than 10 percent in several states.
The increased national concerns about US’s energy portfolio, energy reliability, and environmental hazards (among other factors) related to current electricity generation technologies prompted the belief by many that a policy change would be necessary to increase reliance on renewable energy. In this respect, government policies have been used to encourage the development, as well as deployment of renewable energy sources.
Even then, a comprehensive federal policy to promote the development of renewable energy and ensure the reduction of greenhouse gas emission has been lacking. Consequently, states have taken the initiative to develop their own policies to promote the development of renewable energy sources.
Several US states, in this respect, have set ambitious targets for the use of renewable energy. Consequently, they have provided various production and investment incentives that have spurred renewable energyindustry growth. They have done this through the Renewable PortfolioStandards (RPS).
“An RPS is a statutory requirement to achieve a renewable energy goal by a certain date”.Essentially, RPSs have provided regulators with the authority to create necessary structures for administration assign requirements and ensure the compliance of the states. The RPSs have taken many forms including “some percentage of retail electricity consumption, or a specified amount of nameplate capacity”. The many state RPSs that exists have responded to different policy drivers and incorporated various features. A vast majority of RPSs were developed through a ballot initiative or legislation. This reflected a broad political support for them. Several states have already adopted RPSs. Only Iowa had RPS just 20 years ago. Today, according to, a total of 39 states have adopted RPSs, voluntary goals or alternative energy portfolios to enhance additional renewable energy development.
Policies and Accomplishments of State RPSs
Evidence shows that RPSs have achieved a number of accomplishments in the states that have adopted them:
- Considerable Renewable Energy Generation
Current RPSs requires the addition of 3-5 gigawatts (GW) of RE capacity to the nation’s electricity supply annually between 2013 and 2010. Furthermore, according to Leon, “67% of the 69 GW of non-hydro renewable additions from 1998-2012 (46 GW) occurred in states with active/impending RPS compliance obligations”. Admittedly, this statistic is an imperfect criterion for measuring the impact of RPSs as some of the RE projects may not be directly be attributed to RPSs. Nonetheless, since most RPSs permit RE generators outside state borders to qualify for an RPS, it cannot be ignored that additional- if not most- projects have become possible because of state RPS policies. For example, the wind farms in Wyoming (which is a non-RPS state) participate in the Oregon RPS. Other examples are North Dakota (another non-RPS state) whose wind farms participate in the Minnesota RPS and Vermont (also non-RPS) whose landfill gas facilities participate in the Massachusetts RPS.
In other words, while it is impossible to quantify with precision the exact contribution of RPS policies to the growth of RE capacity in the US, there is no doubt the contribution has been significant. 15 out of 23 RPS program administrators in the states with RPS policies agreed that RPS was the most important policy, with the rest thinking it was “one of the most important policies”. Moreover, 7 out of 23 state representatives believed RPS was “the most important policy advancing the installation of distributed generation”
- Changes and Altered Decision-making and Operations of Energy Industry, Electricity Regulators, Utilities and Other stakeholders
The RPS has catalyzed wide range changes in several states. The institution of RPS’s requirements, such as the requirement that 10 percent of state electricity supply come from designated clean energy sources, it alters the mind and behavior of various players who participate in the process of supplying and overseeing state’s electricity. For example, towards meeting the RPS requirements, businesses, organizations and individuals adopt a number of initiatives. These may include changes in how electricity suppliers and utilities contract for electricity, how project developersprioritizeprojects and public utility commissions plan for new capacities of transmission. Consequently, RPS has led to the creation of new systems aimed at tracking the production and sale of electricity from renewable sources, as well as modifying the existing systems.
- Laying Foundation for National Market for Renewable Energy
Third, RPSs have prompted market players to consider RE development in contexts that transcend state boundaries. For example, today, almost all states use RE certificates (RECs) to ensure compliance with RPS. The RECs are created “every time a qualifying renewable energy facility generates one megawatt-hour of electricity”.Tracking RECs helps to verify that states have generated correct RE quantities to satisfy RPS. They have a common mechanism for measuring RE generation. They, therefore, act as building block for the national RE market.
Moreover, since most RPSs permit beyond-state-border RE generation, a state must be concerned about the RECs produced outside its borders. Tracking systems used also facilitate regional trading of RECs.Some of tracking systems are sufficiently compatible with each other so that expanded inter-regional trading would be relatively easy. North Carolina and Missouri, for example, allows projects in any part to qualify for their RPS policies. As a result, APX, a firm that administers the tracking systems in the regions involved have since developed procedures by which to transfer RECs across the regions.
State RPSs, through their beyond-state-borders compliance feature, encourages state energy policymakers to consider projects beyond the state borders and potential RE resources throughout the region.
If a federal government should decide to establish a national RPS or even broader clean energy standard, such a standard can borrow from the experience with state RPSs. There is infrastructure already in place (used by state RPSs) that makes it easier for such a national standard to work.
- Job Creation and Contribution to Local Economic Development
It is obviously difficult to ascertain the exact number of jobs that have been created because of RPSs. Still, many jobs can be attributed to the policy. For example, in relation to solar, RPS provisions and solar carve-outs have resulted in a rapid increase in the number of solar installers in the states with RPSs. Arizona, California, Massachusetts and New Jersey are the top four solar states. All these state have RPSs and have played a key role in incentivizing solar. High share of solar jobs in these states are in project development and installation.
A report released by the Union of Concerned Scientists cites the various ways in which the development of RE has been consistent with job growth, including case studies of some states. The report, for example, makes a link between the Colorado Renewable Energy Standard (RES) and instate jobs, the report notes:
Wind power is currently the largest contributor to Colorado’s annual RES requirements, with more than 2,300 MW of installed capacity providing enough electricity to power some 500,000 homes. In 2011, Colorado’s wind industry supported 4,000 to 5,000 jobs, made property tax payments totaling more than $10 million, and paid about $5.4 million in land lease payments
It is important to note that states have had full freedom in how they operate their RPSs without any notable or very little- if any-influence from the federal government. In other words, it is the states that set renewable energy policy throughout the country, except for the PTC and the present government’s policy on federal lands. Furthermore, a big proportion of permitting and siting authority for transmission lines remains with the states. Therefore, unless and until the Congress takes a more active role in renewable energy policy, the states virtually govern renewable energy development including interstate transmission. “state public utility commissions have authority to consider, evaluate, approve, and site intrastate and interstate transmission lines”.
However, many find this situation problematic. “Resting so much authority with the states for the siting and operation of what is a regional and national transmission system poses unique federalism challenges”.
- Federal RPS: Why it is Needed
There are a number of strong reasons that support the need for federal RPS. Generally, a federal RPS would ensure uniformity of goals and activities for all states. Currently, state RPSs often recommend that a certain percentage of generation capacity (in MW) or electricity sales (in MWh) come from renewable sources of electricity. In this respect, typically, states require that by rather 2020 and 2030, 15 to 30 percent of electricity sold in each state is produced by a source of renewable energy. However, there remain wide variations from state to state in the renewable technologies allowed, as well the electric utilities allowed to participate in the programs. For example, while some (12) states include only investor owned utilities (IOUs) as part of their RPS programs, others only include municipal utilities or rural electric co-operatives, and others (such as Michigan and Oregon) make exclusions based on sales capacity and/or size. According to scholars, RPSs cover an average of 86 percent of electricity sales. However, in some states RPS covers much less. In Illinois, for example, RPS covers only 30 percent of electricity sales.The resources eligible to be included under RPS also vary. In some states, renewable resources are included. In other states, only new facilities are included and other states only include large hydro facilities. Equally, some technologies (such as tidal energy, wind power and geothermal power) are only available in some geographical locations and not in others.
While some states allow utilities to buy RECs to meet their statutory obligations, as well as meet their RPS requirements from other states, others require that renewable generation remains in-state. RECs make it possible for utilities to meet their statutory obligations, probably at lower cost, “by purchasing the “environmental benefit” of renewable energy out of state. RECs are tradable certificates that create a separate market for the “environmental benefit” of renewable energy”. RECs can be sold in various forms. They can be bundled (sold with electricity) or unbundled (sold independently). 21 of the states with RPS allow the use of RECs.Since nearby or neighboring states may have lower costs in the development of renewable energy sources, RECs purchased by utilities can have significant impact on the deployment of renewable energy in neighboring states. This can, for example, drive the need to more regional transmission projects. This cases shows that stats are not renewable energy and/or policy islands. In other words, what a state does can have significant impact on other states. Therefore, a regional approach to the development of renewable and planning of transmission can be important for the widespread development of renewable energy sources.
A federal RPS can have numerous potential benefits. For instance, a large proportion of electricity generation in the US (88 percent) comes from natural gas, coal and nuclear power. Although these sources are needed to meet the electricity needs of the US, there has been too much reliance on them. In the past several years, there has been dramatic rise in natural gas prices. A federal RPS, some argue, would increase diversification of the sources of electricity generation, which will then decrease the demand for natural gas thereby avoiding the cost fluctuations associated with this high demand.
Some also believe that a federal RPS can provide many environmental benefits, especially the decrease of Carbon Dioxide emissions as “the renewable plants added to meet the RPS would displace plantsfueled with natural gas and, to a less extent, coal that would have been added withoutthe RPS”. In comparison to the reference case, a 10 percent RPS would lead to a 7 percent in CO2 emissions and 20 percent RPS would lead to 18 percent drop. In other words, a federal RPS is expected to result in a net benefit for air quality.
Indeed, several states are already implementing RPSs. However, this is not sufficient to develop and promote renewable energy nationally. Current policies that govern renewable energy (such as tax credits and government money for research and development) have indeed provided a number of benefits. Still, these too have not done enough to ensure competitiveness in renewable energy. Even the “green power” programs for customer choices, while getting some support, are not enough to fully lower or remove the cost gaps between renewables sources and other energy sources. Besides, despite poll numbers indicating otherwise, “only a small percentage of consumers are willing to pay for the higher costs of green power”. It is unlikely that green marketing programs will attract many customers unless the costs of renewables become comparable to the costs of conventional energy. “There is a market failure happening in which the market on its own, or even the market coupled with current policies for encouraging renewable energy, is not providing the proper impetus to encourage renewables”.
Best Option: Federal RPS Managing Interstate RED and State RPS Managing Intrastate RED
This paper holds that states should not have as much mandate as they have now. Still, they should retain their autonomy: know their interests best (citizens, renewable resources and businesses) and 10th Amendment Concerns (that is, federal governments cannot/should not tell states how to regulate renewable energy development). In other words, states should be allowed to regulate their intrastate renewable energy development processes.
However, states currently have too much authority. The federal government should, therefore, regulate the development of renewable energy sources across states (that is interstate RED).
- States Rps Governing Intrastate Red And Federal Government Regulating Interstate Red: Feasibility
State RPSs have proved successful in many ways. Besides, states have managed to cooperate and integrate their interstate renewable energy goals. However, such ambitions have had their shortfalls, which is why there have been increased calls for a federal RPS. This section, therefore, focuses on the feasibility of a federal regulation of interstate renewable energy development. This is based on 5 key factors: proper implementation; interaction with state RPSs; cost; technological ability; and economic development.
- Interaction with State RPSs
The federal government in its new role cannot assume the states. Therefore, if the federal (interstate) renewable energy policies are to achieve maximum interoperability, some states would have to change their RPS policies- albeit slightly. It would take careful coordination to transit from a case where there are only state RPS policies to a case where both state and federal policies operate. Preparing for the potential conflicts that are likely to arise from the interaction between the two categories of policies would require time. No doubt, there are likely to be problems: “State RPS policies enacted after a federal policy could, of course, be designed to fit within a federal RPS and would likely face fewer difficulties compared to a pre-federal state RPS policy”.
Passing a federal RPS can either facilitate or hinder the states’ ability to enact and/or enforce their own RPS. The very basic question here is whether the federal RPS would work in conjunction with state RPSs of override them. In relation to the latter, the federal RPS would be written using a ‘savings clause’ which would establish the federal RPS as the foundation upon which states may build. In this case, the federal RPS would be an obstacle to renewable development. Most proposals, however, have emphasized the need for the federal RPS to be a backstop that only applies “to a state’s retail electric suppliers if that state does not meet the minimum national RPS requirements”. In this case, the Congress would give the states the authority to establish their own criteria for renewable energy generation, and whether it has to be done in-state so it counts towards a supplier’s credits. Such a congressional authorization means that states could not violate the dormant Commerce Clause (limiting the ability of the state to regulate interstate commerce).
Credit trading would also need careful consideration. When state and federal credits have shared eligibility, a state can possibly produce surplus credits and sell them to utilities in other state to meet their state/federal RPS requirements. It is important to be careful to prevent double counting.
Another issue that has surrounded the implementation of a federal RPS is cost. There are, for instance, questions regarding what implications this policy will have on the prices of electricity. Those opposed to the policy generally believe it will costs consumers and/or utilities more money. In fact, several analysts point out higher costs as a high possibility under this policy. For example, according to the Energy Information Administration (EIA), a 20 percent RPS by 2020 “would raise the average electricity price by 3.3% in 2010 and 4.3% in 2020. However, the 10% RPS would raise the price by only 0.5% in2010 and slide down to 0.2% in 2020”. On the other hand, a 10 percent by 2020 RPS projects that slightly higher residential electricity costs, with lower natural gas prices due to reduced demand, will result in costs that are 0.1% higher in 2025.
Most of these analyses are based on the assumption that a federal production tax Credit (PTC) is likely to be passed at the same time as a federal RPS legislation. This would considerably lower prices for utilities and dramatically affect the analysis since a PTC offers a cents/kWh credit (1.8 most recently) for the businesses that generate electricity from renewable sources. In all this variability of analyses, the underlying point is that a federal RPS will lead to a decrease in the demand for natural gas and, consequently, either decrease or increase slightly the overall prices of electricity.
Assuming electricity price will go up, a federal RPS will obviously make consumers even more aware of the environmental issues associated with power generation. This may result in more conservation, thereby countering- to an extent- the aspects of cost cited.
Others have also questioned whether research and development- not or more than a government mandate such as an RPS- can drive down the costs of renewable energy. The implication here is that giving extra money for research and development of renewable energy sources may in the future result in cost reduction, which will also reduce or eliminate the cost gaps between traditional fuels and renewable energy sources. True, research and development have led to a number of benefits. Still, a number of reasons support the need to implement an RPS.
For example, a federal RPS will lead to large-scale renewable energy development, as well as nationwide standards would leader to cost reductions (such as installation and general product costs) owing to the advantages of the economies of scale). The economies of scale spoken of will result from the differences in the funding given towards the development of renewable energy and what is spent (investment) in fulfilling an RPS. Second, renewable energy boom and bust cycles (that is inconsistent government funding) that may not be conducive to the process of developing a strong renewable energy sector can be avoided. Finally, it can facilitate research and development funding that may go a long way in helping companies find more cost-effective methods of meeting federal mandate.
- Environmental Benefits
Environmental benefit (especially Carbon Dioxide emission) is another factor that has been associated with renewable energy. Since the 1970s, environmental costs have been taken into consideration. For example, firms that use fossil fuel have since had to pay extra to compensate for the full price of use.
The question, however, remains as to whether the rice that would need to be paid meet federal RPS would be consistent with the incremental net benefits expected to arise from reduced pollution. Some argue that it costs more renewables costs more than traditional fuels (such as fossil fuels) so that externality considerations hardly- if ever- overcome the difference. While it is hard to substantiate this argument from an economic point of view, there is some validity to it. Indeed, it is necessary to remember the goals of the federal RPS program. The goal is to reduce pollution, as well as subsidize the renewable energy industry with the intention of ensuring that large-scale implementation will draw overall costs into more competitive context.
- Economic Development
A major obstacle to the development of a federal RPS has to do with the fact that not all states have the same capacity for the generation of renewable energy. Under a federal RPS, first, the country’s best energy sites will be used as they have the most money and economic benefits. In other words, money will flow from the states that have best potential. In such a case, the energy sites for absolute lowest cost would be pointed out and developed and there would be credit trading between states. Second, states will use their own RPSs to control the sites for the generation of renewables. This would lead to economic development throughout the country. In other words, the renewable-poor states would still benefit from a federal RPS as the materials and production use to make renewable generators could be done in any state.
The implication here is that a federal RPS would address the potential inequities that may arise between renewables-rich and renewables –poor states. This can be done through, among other strategies, using tax breaks to encourage manufacture of equipment in some states to meet RPS in other states.
The US has been successful at managing national goals at both the federal and state levels. The only difference could be that, while in other areas state laws have built on federal policy, here federal policy will be building on state policy (RPSs). The federal government, therefore, has a hard task convincing individual states to answer to a common authority that seemingly takes away some of their autonomy. Still, as already stated, no state is independent of another. Yet, no state can state with certainty that it will act more in favor of interstate than intrastate goals. As it were, cross-border activities are still driven by intrastate ambitions. It is only the federal body that can surely act for the benefit of all states. Even then, like in many other cases, states must be allowed to retain their intrastate autonomy. The federal government should only be involved in cases where a state’s actions can have notable impact on other states. There will be several challenges (cited). Ultimately, though, this arrangement is feasible as long as the federal authority does not lose sight of its primary focus (that is, it does not take too much task, which would be running both interstate and intrastate renewable energy development).
In conclusion, this paper has emphasized (either explicitly or implicitly) the need to distinguish the responsibilities of the federal government and state in renewable energy development. In this respect, this has asserted that the federal government should only concern itself with the interstate renewable energy development while intrastate renewable energy development. In this respect, there should be a federal RPS works in conjunction with state RPS- the latter based on state autonomy.
RPS dictates the type and amount of renewable energy that should be produced,
who must comply, as well as the timeframe for meeting these standards. The RPS
has wide flexibility in relation to compliance mechanisms, coordination, and
enforcement of other policies, as well as administrative duties. A federal RPS
can be implemented successfully by recognizing the unique needs and interest of
states, as well as the resources they have to help meet the uniqueneeds.
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 Database of State Incentives for Renewable Energy, June 17, 2004,
Economic Disputes Resolution
Economic dispute resolution is an important component of economic integration. Countries forming an economic block have differences that emerge and must be resolved amicably for the sake of economic integration. Countries have different economic policies and some of them are usually reluctant to adopt the agreed policies of the economic block (Aidt & Tzannatos, 2002). This implies that disputes arise as some of the member countries of the economic block dispute the mode of doing business of the other member. As a result of this, economic blocks have dispute resolutions procedures enshrined in their constitution that they use to solve economic disputes (Schwartz & Sykes, 2002).
A dispute resolution mechanism is designed with its scope, jurisdiction, and enforcement mechanism clearly outlined to empower it and make it effective. Most common issues that the law designed to deal with economic disputes addresses are investment disputes, labor and environment disputes, and custom duty disputes (Aidt & Tzannatos, 2002. The law is then designed to solve disputes that may arise from any of the above or any other form of dispute that may arise between member states. Countries lodge their complaints to the body authorized to resolve economic disputes and the accused countries are allowed to defend their actions. The body then makes a judgment based on the provisions in the constitution. The body also follows up to ensure that the accused rectifies her behaviors to conform to the stipulations in the constitutions (Schwartz & Sykes, 2002).
Therefore, countries under economic integration must empower the economic disputes resolution body so that it is able to carry out its mandate. A poorly empowered body fails because most of the member countries carry out their operations contrary to the agreed conduct. This is because the body can only carry out judgment but is unable to enforce the law. All functional economic integrations in the world have very powerful economic resolutions bodies.
Aidt, T., & Tzannatos, Z. (2002). Unions and collective bargaining: economic effects in a global environment. Washington, DC: World Bank.
Schwartz, W. F., & Sykes, A. O. (2002). Economic Structure of Renegotiation and Dispute Resolution in the World Trade Organization, The. J. Legal Stud. S179, 31.
The legal directions the various involved parties could have adopted
The parties could have engaged in law binding international contracts, in which case the parties could have offered and accepted the underlying agreements and supported the agreement by considerations with no exceptions. They could also have voluntarily entered into the agreement with no duress and made the agreement with outstanding capacity to contract (Jewels 248). Similarly, the legal framework provides that the parties could have identified the complexities associated with the contract, and therefore elevated unusual provisions that would in return ensure effective implementation of the contract. The legal directions provide for factors such as distance between the negotiating parties, substance and performance, language, currencies, countries’ legal systems, and business customs that could have contributed to the failure of the contract since there is a possibility of these factors’ influence on the nature and the way the contract is written. For example, we realize that even though the Australian vendor had assumed that the contract with the Taiwan client was binding per se, the Taiwan Client seemed to have interpreted the contract as merely the initial stage in negotiations, and which could be altered at any point of the development without focus on the interest of the other party (Jewels 248).
Before engaging in any contract, it was necessary to analyze each party’s attitude towards the relationship. It is true that the cultural expectations of the transacting parties was that the relationship was to be long term, and as a result, negotiations could have provided a platform for the parties to know each other before signing the contract (Jewels 250). In other words, the established relationship according to international contracts could have offered a base for dispute resolution as contained in the contract itself.
The actions might have been taken towards the two external contractors
Both ethics and law have impact on business transactions and contract needs since they help to identify and define the conditions upon which the parties must operate for the process to be counted as valid. Where there are possibilities of fallout or unfulfilled promises, the ethical and legal principles provide for the actions to be taken to fulfil the project or contract needs (Jewels 253). Some of the actions within the defined context would have included debarment of external contractors from the perspectives of eligibility and compliance, charging the contractors for the crimes committed by their employees, and finally applying the sentencing laws on the contracting parties.
The actions taken through debarment can be considered appropriate remedies similar to criminal or civil penalties that intend to deter future misconduct. The external contractors in this case must comply with the legal requirements by improving their ethical cultures in order to eliminate the risks associated with contract fraud, failure to which an amount of penalty, including denial of future contracts, will be wagged. This means that the law enforcement body could have improved the actions of the parties by ensuring complete compliance with the contract laws (Jewels 255). Debarment falls among the most feared actions taken by the law enforcement bodies since it involves listing the names of the external contractors on a public internet and effectively prohibiting an award of any new contract. Through the debarment actions, the external contractors will be compelled to always operate with the objectives of meeting the contract requirements for future consideration.
The charging could be based on understanding that the act was intended to benefit or benefited the external contractors. Before charging external contractors on the bases mentioned, there is need to determine whether the contractors had effective compliance programs at the time the contract was failing. The intention here is to detect and eliminate wrongdoing and ensure that each of the parties is managing their enforcement programs for maximum effectiveness (Jewels 256). This would mean that every time the external contractors fail to meet their obligations as far as the contract is concerned, the legal environment would provide for equivalent penalties to compensate other parties for the loses.
Broad legal issues contained within the case study
The broad legal issues discussed in the course and contained within the case include a contractual agreement, staged payments, inexistence of performance specification, and inexistence of contract negotiations. Others are lack of direct contact between the clients and DB, insufficient description of the contract and performance requirement, inefficient time for adjustment, and lack of confidentiality between DB and the external contractors (Jewels 256). The project would have been fruitful in case the parties were able to consider the contract elements as highly binding and only executable if there is willingness and equal participation.
As part of the contract, there was an agreement to supply an automated storage and retrieval system facility to SCT. The supply agreement was to be fulfilled by DB and its four clients following a provision for staged payment. These were the terms of agreement, which the parties were to follow for the purposes of meeting the objectives of contract. It is however noted that the agreement lacked credibility at its first stage since there were limited platforms for direct contact between the parties, and also inflexibility in time, while the terms of operation made it hard for the teams to meet each party’s expectations.
Legal steps that could have been undertaken by SCT to avoid the project failure
Even though language is not considered a barrier to international contracts and business negotiations, SCT could have operated on clearly defined contract terms and in a language that can be understood by the transacting parties and legal teams. In case the parties were not conversant with the contract language, SCT could have employed interpreters to facilitate the negotiation (Jewels 257). The fact that the parties could communicate and understand the terms of the contract, its nature, and implementation stages could have helped to prevent unexpected project failures.
Other than the language of communication, the parties could have clearly defined the methods of payment since the transaction was based on international currencies with varying exchange rates. With the fluctuations in prices of foreign currencies, the need to understand the causes of price volatility of currencies could have triggered additional measures like hedging in order to avoid losses resulting from currency fluctuations.
The contract also requires the parties to use letter of credit since the time taken before the goods are delivered was longer than expected. Through the letter of credit, it could have been possible for the parties to determine the validity of the contract since the letter provides an assurance from the bank of the buyer to pay certain amounts of money to the seller once the shipment documents are received and contractual obligations met (Jewels 257). This means that the parties could have demanded for the transactional documents like certificate of origin, export licences, certificate of inspection, sales invoices and insurance policy before accepting to engage in the contract.
Jewels, Tony J. “The Dag-Brücken ASRS Case Study.” Journal of Information Systems Education 14.3 (2003): 247-257.
Tax research case
Morris, Inc., is an Indiana-based business operating as ‘Morris’. The company sells groceries and other related products in most parts of Midwest and was founded by John Morris. Having been in the company for a considerable duration, and having dedicated his time and resources in the establishment, Morris is entitled to a great share of the Company’s assets. Under the Management and stewardship of Morris, the Company grew tremendously from a profit of $60 million in 2001 to $318 million in 2013. The Company’s shareholders equity also grew outdoing its closest competitors.
Being the largest shareholder with approximately 55% shares, Morris owns all the voting rights in the company with other stakeholders being non-voting shareholders. Morris holds a senior position in the company and is paid a relatively modest salary as other administrators. However, Morris still contribute in other profit-sharing plans such as bonuses and other related incentives.
The company’s board of directors, for instance, introduced a 5% bonus program that was to be applicable to all stakeholders in the establishment. However, some members of the board suggested that Morris, given his role in the management of the company, should be given his own bonus plan. The plan was voted and passed but after sometimes most of the shareholders departed from the company leaving the board with Morris, his family members and the treasurer. The Internal Revenue Service, however, declared the 5 % bonus an extreme administrative compensation.
Any government globally will have viable and authoritative legislations that explicitly regulate the levying and collection of taxes. A taxing authority, for instance, is limited to very particular jurisdictions in a company or an establishment. Any issue that relates to the initiation of tax rates must be through the approval of the appropriate laws and decisions of board of governors. Bonuses in numerous cases are issued when the company is not in a position to pay cash dividends despite the massive profits realized. Bonuses, as a result, are relatively powerful alternatives in a company.
Rule of law
The IRS Code and Committee reports explicitly stipulate the rights to owning property with the right of administrative prowess precisely stated. The IRS takes into account of all the receivable in a company by looking at the financial records and other assets in the company. Morris, Inc. Company is vehemently subjected to IRS and committee regulations and must operate within the stipulated legislations. The committee carefully estimates the company’s financial stand and estimate the amount of tax to levy on the company.
The issue of Bonus Shares to the parity owner like Mr. Morris cannot be subjected to taxation, as it is not considered as a dividend. However, in a situation where the ideal shares are issued as Bonus Shares, they are arguably taxed as dividend. Given that, the Company with Morris as the major shareholder and who is treated to any capital gain in the company is chargeable to Tax levies according to the IRS and Committee Reports. Correspondingly, if Morris decides to relinquish his share bonuses, he will be liable to pay tax from the accrued capital gain on the bonuses sold.
Mr. Morris’ accrued bonuses under the recommendation of the Committee and the IRS is liable to taxation. Despite being a major shareholder in the company and having exclusive rights in the company, the legal authorities have the prerogative to tax Morris.
The case defined by the UK’s Court of law had been appealed by the HM Company and its customers over some schemes developed to avoid any potential levying of taxes on accrued bonus.
Berman, Daniel Marvin, and Victoria J.. Haneman. Making Tax Law. Carolina Academic Press, 2014.
Reda, James F., Stewart Reifler, and Michael L. Stevens. “Appendix D: Sample Compensation Committee Charters.” The Compensation Committee Handbook, Fourth Edition (2014): 527-545.
Salbador, Debra, et al. “ATA Tax Policy Subcommittee Report on Book-Tax Differences.” Journal of Legal Tax Research (2015).
Custom in International Law
This paper discusses custom in international law. Custom in the international laws are developed from local customary laws. The United Nations, its member states, international jurists as well as the International Court of Justice directly express customs as the primary sources of international law. This is consistent with the existing principles of treaties and law. As at now, so many world’s governments are now using the principles of customary international laws. This essay investigates and discusses some of these issues.
Custom in International Law
Ideally, a customary international law should contain various proponents like principles, rules, and norms that can apply to any state. The principles as well as the norms should not be limited to only a particular state of an exclusive group. For instance, rules that relates to the airspace, outer space, warfare, immunities, and samongst others, should apply equally to all states that are concerned with these issues. Similar principles, norms, and rules should be used to all the participating countries. The results of several cases suggest the exclusive application of general customs in global laws. For instance, there are cases concerning the overall principles of international laws, the collision of ship from different countries on the high seas, as well as the construction of treaties, all suggesting the exclusive application of customs in international law.
Conversely, there are special customs international laws. These traditional customs specifically deal with non-generalized topics. For example, the rights to a particular section of the world. For instance, cases involving acquisitive prescription, boundary disputes,as well as global servitudes may form part of the special custom international law. Most of these cases deal with rules and principles that are expressly limited to some countries or regions. However, such customs are unable to expressly determinate different classes of people. A good example is the Latin American’s asylum laws. In essence, it is a thin line that separates general custom from the special custom in international law.
According to Malcolm (2008), customs are not particular to any department or area of public international law. Instead, it is international law. Customs in law is defined as the established pattern of behavior that is both objectively and verified within a particular social setting. This issue surfaces wherever there are arguments of the International Court of Justice and other international organizations that claim the imprimatur of international custom while others not only question the principles but their alleged status as customary. There are several issues affecting the custom in international law.
Recognizing Custom in International Law
There are two general conditions that determines the existence of customs in international laws. They include (1) the special legal practicesthat are maintained by some countries, and (2) the special legal practice that other relevant actors consider as law. The latter is expressly known as opinio juris. Several customary laws are established to manage the long established standards of the community in a given locale. In the global perspective, the term is applied to specific elements of legal standards of practice, as expressed in the international law, have been universally accepted as the correct basis for action. For example, laws against slavery and piracy are universally accepted as the correct basis for action. In many cases, customary laws are supported by previous supportive court rulings and relevant cases. This is done to give it more weight and demonstrate the trajectory of the evolution as well as the interpretation of the law.
According to the definition given by International Court of Justice Statute in Article 38(1) (b), customary international law is evidence of general practices that are accepted as laws. This is determined by two important factors. These factors include the general practice of the country and the countries that have accepted the practice as law. Different states now accept and recognize different types of custom in international law. There is no absolute uniformity in the recognition and acceptance of customs in international law. It is essential to note that some customs in international law rise to become jus cogens while a small group of countries simply follows others. In the former scenario, the customs may develop into jus cogens level. This is basically due to open acceptance as non-derogable rights by the international community.
Jus cogens is a principle in the customary laws. It is followed in the acceptance of custom sin international law. The international society accepts this principle as the basic legal norms through which people cannot permit any form of derogation. The jus cogens norms particularly is derived from the principles of natural laws. Any law that contradicts or conflicts the norms and principles of jus cogens is, therefore, considered null and void in the international perspective. For example, any country that allows slavery, genocide, torture, the aggression war or any form of crime that is against the principle of humanity is considered violating the custom in international law. States are bound to adopt and follow customary international law regardless of whether or not they have codified.
The Elements of Custom
It has been said that the standard of conduct which follows from a settled practice becomes custom when it is accepted as a rule of legal nature. Article 38, paragraph 1(b), of the Court’s Statute, requires that the practice be “accepted as law”, and the problem of acceptance brings to the fore the problem consent in the making of custom, and particularly in the emergence of the opinion juris. This can be defined as the ‘subjective’ mental element, which makes ‘objective’ usage a norm of international law.
To establish whether custom exists on a certain legal matter, certain conditions must be fulfilled. For example, the primary concern of the acts should to attain the settled practice. Besides, they must be performed in a manner that provides evidence of the practice is rendering obligatory. The attitude might take several diferent forms according to the merits of the specific situation. They may simply tolerate the practice without consenting to it expressly or tacitly.
The attitude of mere toleration is sufficient when the claims put forward by the participants do not impose any duties on the non-participants. Thus, consent is necessary to the formative period of a customary rule. Many dualist theorists argue that usus (regulations of behavior) consists of all relevant constituents on the spectrum from a pure deed to pure word. On the contrary, opinio juris (legally required) becomes a mental or subjective element. In this case, it is typically assumed based on the usus.
Several elements might constitute the custom laws especially in the localized restriction. However, the elements might vary when it comes to the international law. When it comes to custom laws, the theorists of international laws are overlyinterestedin understanding what makes up the custom law. They also want to know if and how the discursive normative practice account fit into the concept of custom law in the international perspective. It is also essential to note that the qualities of a norm as a significantly normative custom is its integration into a discursive, deed-based system of norms.
Thus, what qualifies a given custom as legally significant in some legal system is whether that custom is incorporated into the larger set of norms of that legal system, or whether it is integrated into a custom regime that in turn is incorporated into the legal system. Normative practice is, therefore, those who follow customs in the mode of their participation in the practice.
The Normativity of Custom
Over the last half a century, many rules of customary international law have been thought to bind universally irrespective of whether the party subject to them has signed. To make the customary laws are universally binding. They certainly impose an obligation omnium. Despite this push for the use of customary laws universally, some leeway has been directly given to the “persistent objectors.” This has subsequently reduced the impacts as well as applicability of customs as applied in the international laws. But, of course, the problem of scope gets worse once the principles of humanitarian, human rights, and environmental law are considered.
New problems arise when the principles of human rights, humanitarian, as well as the environmental laws are considered the basic pillars of customary international laws. This is because these principles, although good, just hold the intersection between discrete parties or states. Instead, they form part of the erga omnes. By this virtue, they simply bind and entail all rights that are held by various states. They undertake all types of duties and functions such as the state’s role in the protection of the right-holders. This happens regardless of the specific relations that exist between the state and the right-holders. In the words of the International Court of Justice case, these explicitly express the obligations of a State towards the requirements of the international community as a whole.
Customs are practiced in communities in which they have been prescribed to. They are the practiced norms of that particular community. These are more than mere rules that are followed by individuals out of fear. In addition they are not mere rules followed as a matter of personal policy. These rules, as much as they apply to that particular community, do not necessary apply to the rest of the other social organizations. Several communities widely follow the norms of independent conviction because this convergence of behavior of members allows them believe that it is their moral responsibility to abide by the same. For instance, customs dictate that it is important to be neighborly and to deal honestly with others. This happens regardless of whether communities are doing eth same thing. They may be wrong about it, but then, this only serves to prove that morality is closely entwined with customs, more than it is acknowledged.
The Statute of the International Court of Justice described a customary international law as a general practice of law. In a 2003 decision of the United States Court of Appeals (Flores vs. Southern Peru Copper Corporation), described customary international law. According to this decision, no distinction is evident between this concept and the widely-held definition of international law. This is also referred to as the law of nations. According to this definition, customary international law is those rules, standards or customs (a) affecting the relationship between states or between an individual and a foreign state and (b) used by those states for their common good and/or in dealings inter se.
The customary internationallawsare meant to deal only with the wrongs that are of mutual concern. On the contrary, it does not address wrongs that are merely of several concerns. Those who participate in a custom’s practice undertake several different commitments. They include commitments (a) to judge certain performances as appropriate or inappropriate; (b) to act when the occasion arises in accord with these judgments; (c) to challenge conduct that falls short of these judgments; and (d) to recognize appeals to the judgments as vindications of their actions or valid criticisms of them. As a rule, the customary international law is design and created through the uniform and constant practice of states. This also includes other communities or states that are subjects of the international law. Applied this way, customs directly expresses the legitimate expectation in the future of similar situation.
In the international law perspective, the customary laws might imply the Law of Nations. Alternatively, it might refer to the legal norms that have developed in the country through the exchange of custom over a long period of time. These customary exchanges might extend between states. The developed of customary laws may be based on either aggression or diplomacy. In essence, legal obligations may arise especially between states as a way of carrying out their affairs in accordance with their past acceptable practices. There are chances that these customs can alter over a given period of time. States that use particular acts might base the change on either the acceptance or the rejection. These might cause come differences in the application of customs in the international law.
Some of the principle, rules, and norms of customary laws have successfully achieved the force of peremptory norms in the international perspective. It is not right to alter or violate the peremptory norms. However, alteration and violation of the peremptory norms is only accepted through the application of a norm of comparable strength. This is done to help strengthens the force of costmary international laws. However, not all principles, norms, and rules of customary laws have achieved the status of peremptory norms. The significance of peremptory norms is that they gain significant strength especially from their universal acceptance. Good examples of peremptory norms are prohibitions against slavery and genocide. The international customary laws are not similar to international treaties. Unlike customary internal laws, treaties consist of explicit agreements between states that allow them to assume obligations. However, many treaties attempt to codify the existing customary laws in the international context.
Customary Law in Contemporary Legal Systems
The majority of the modern legal systems recognize the customary law. In particular, it is recognized as a significant sources of law within many contemporary jurisdictions especially those relating to the civil law traditions. In this case, customary laws may be subordinate to both the required regulations and statutes of the state. However, the importance of custom as the primary source of law in civil tradition is slight and decreasing. Nonetheless, in many countries, many types of customary laws exist alongside the nation’s official laws. This condition is referred to as legal pluralism. Some of the countries using legal pluralism include Denmark, Uganda, Norway, and Sweden among others.
The principle of customary laws is widely adopted in the contemporary principles of property laws. The principle of property laws recognizes and gives legal right to continue something that has been practice for long instead of objecting it. This applies in areas such as occupying or using the land to which a person has no title. It is practiced in contemporary laws that something, which has been practiced from the beginning by a particular community or locality, may rise to the legal status in the form of local law. There are precise legal criteria that define the custom. The legal precedent defines ‘time immemorial’ as a period of 12 years.
Customary ancient laws form the constitution foundations in countries such as Canada. This has made customary laws to have broadening influence within and outside Canada. In addition, customary laws continue to exist in Scandinavian countries where they have a significant influence on the constitutional foundation of the country. Not forgetting, customary laws are widely used in most third world countries especially in Africa and Asia continents. In particular, customary laws are used alongside civil. They might also be used alongside common laws in third world countries. A good example is Ethiopia where there are more than 60 systems of customary laws used alongside the countries legal codes. Some of these customary laws operate independent of the established formal legal system employed by the state.
Custom in the Global Environment
Custom in the international law has functions in the social environment. The primary agents involved are nation-states. Several international law theorists argue that nation-states being the primary agents limits to a great extent the force, nature, as well as the scope of the customs within its domain. In addition, this limits largely the types of norms that can arise within this domain. However, controversial instance of custom in international law usually arise due to constant interaction, tolerances, and claims as to the ability of the sovereign state. In such case, the custom may generate rights and obligations that are bilateral. These are correlative duties and rights. Furthermore, such customs may run only between individual sovereign states. This strictly reduce the level of bilateral interaction. This typical strict bilateral interaction between states is essential to and intrinsic to the type of state practices that eventually leads to the formation for customary international laws.
The process of custom in international laws is triggered only situations in which countries interacts with each other. Without this interaction, custom might not be applied in the international law. The interaction also ensures the custom laws continue to work in the international perspective. This argument, even though it sees sound, possesses serious challenges to human rights as well as other humanitarian principles. This argument also seems to challenge the principles of normative practice. The international dynamics of the global order differs significantly in kind from one country to another. Also, some people are skeptical about the custom in international law because it has direct impact on the human rights and humanitarian principles. In particular, they are skeptical about the use of customs to defend the principles of human rights and humanitarian. Customs does not provide a more secure and universal doctrine of defending the human rights and humanitarian principles.
Shaw, M. (2008). International Law (Sixth edition), New York, Cambridge University Press, pp. 72-93.
English Legal Principal
The United Kingdom is governed by a series of laws that outlines the relationships between different entities in the state. This paper discusses an in-depth analysis legislations and law applicable in the UK. Particularly, on how they are enacted and its operation, further analyses the use of Case Laws. Moreover, discussion is made on Britain, as a state party of the European Union, a review of how the different regulations under the Union affect them shall also be done. Towards the end of this discussion, a classification of the various types of laws shall be done.
Legislation refers to a piece of laws and an act that has been passed by a governing body such as the Parliament, can also be a government regulation, or queen Council. Although the United Kingdom derives its laws from multiple governing sources, the Westminster Parliament constitutes the supreme organ where such promulgations are done. Thus, it holds supremacy over other political entities in Great Britain. Another important source of legislations in common law jurisdictions is the case laws, where a superior court renders a decision which binds subordinate courts, normally cures a lacuna in legislations(Felli, L and Anderllini, L 2008, 2). It is imperative to deduce that the goal of these pieces of law includes; regulation, authorizations, provision of funds, proscription, restriction, grant, sanction, or even declaration. Several variations of legislations exist in the English legal system (McDonald 31).
Classifications of legislations
Legislations are classified as on one hand as either primary or secondary legislations and otherwise as delegated and subordinate legislation.
- Primary legislations
Consist of Acts of Parliament and other statutes emanating from the same institution. The Westminster Parliament enacts such laws. Primary legislations are further sub-divided into two namely; the Public General Acts, and the Local and Personal Acts. In the United Kingdom, an average of between 25-50 new Public Acts enacted annually. As from the 1999, Explanatory Notes must accompany such Acts. The latter assist in the explanation of the Act in clear English to the general population. The Local and Personal Acts have an effect on a given locale, an individual, or even an organization. Newer pieces of such legislations are less prevalent on an annual basis as compared to the Public General Acts (Currier and Thomas 33).
Primary legislations are advantageous in that the Parliament takes time to scurinize a legislations before it comes into effect, additionally, the representatives of the people can match needs and wants of the people and come with legislations that match them.
Major challenge of primary legislations, is that the majority in the Parliament always have their way and can shoot down unpopular bills.
- Secondary legislations
This refers to any other laws enacted in the United Kingdom but not necessarily emanating from Westminster Parliament. They are promulgated by the executive arm of the government, through powers conferred unto them by a relevant Act of Parliament. In such a case, any such change must be in line with the provisions that the legislature outlines. Secondary laws are sub-divided into two namely; delegated and prerogative legislations.
Delegated legislations entail pieces of laws that are authorized by an Act of Parliament. In such a case, an individual authority is vested in the executive to come up with laws on mainly defined subjects. On the other hand, the Crown, who is not dependent on the Parliament, makes prerogative legislations. However, it is crucial to note that these privilege rules are subordinate to the United Kingdom Parliament. This aspect is vested in the fact that the Westminster Parliament is the supreme lawmaker of the country.
Subordinate Legislations are laws made by government departments and statutory authorities by the power provided by the primary legislations. An example is the Welsh Assembly that was empowered by the Wales Act 1998 to make subordinate pieces of legislations. The main reason as to why Parliament confers such powers to other bodies is due to the time factor of enacting detailed pieces of legislations, which could be detrimental to the enacting of other equally important rules (Currier and Thomas 9). It must be noted that delegated legislation as a form of secondary legislation saves Parliament time, gives government prerogative to amend a law without needing a new one, and works perfectly in emergency situations. Although, in limited circumstances the government may abuse its powers by enacting or delegating unconstitutional laws.
- Case Law
Case law also known as judicial precedents refer to authority established by a Superior court and bind all subordinate courts. These pieces of legislation entail laws established due to previous judicial decisions made in prior cases. Case law constitutes one of the multiple sources of legislations in the United Kingdom. Since the English legal system is a common law regime, a presiding judge is supposed to look at the events of the previous cases that have a similarity to the current one. Some of the aspects that he/she must deduce are the legal principles that were applied to arrive at such a decision. It is crucial to note that the rulings of the higher courts are given more priority where similar facts are deduced.
Judicial precedents are important in that it creates certainty, assure farness and consistency, save courts time and helps in analyzing details in a case. On the other hand, antagonists of judicial precedents have expressed reservations as to its rigidity, complexity, and its failing to evolve with time.
During court judgments, barristers and solicitors present in the ceremony write down law reports. All the arguments and the sentences meted to the accused are noted down. Once a final draft is realized, the report is submitted to judges and the counsel so that the accuracy and authority of the same are verified prior to publication. These law reports constitute the most authoritative binding and authoritative pieces of case legislations realized.
In the UK, the Supreme Court of the United Kingdom is the highest appeal court in the land. Any decision that is arrived at in this institution is binding on all lower courts. In such a case, all previous court rulings made by the Supreme Court constitute a Case Law that should be applied by the presiding judge of a lower court when arriving at a decision. From the most powerful downwards, the Courts arrangement is as follows: House of Lords, Court of Appeal, High Court, County Courts/Crown Courts, and Magistrates’ Courts. The House of Lords tackles appeals from High and Appeal courts, while the Court of Appeal tackles those from High and County Courts and Tribunals. The High Court comprises Family Chancery, and Queen’s Bench Divisions, each with Divisional Courts. County Courts handle civil litigation cases, based on the nature of claim, while Crown Courts tackle indictable offenses and referrals/appeals from Magistrates’ Courts. Magistrates’ Courts comprise youth, and family proceedings’ courts, and they handle summary offences and Crown Court committals.
This doctrine of reviewing past cases to determine the fate of current cases is based on the stare decisis legally meaning as things stand (Great Britain 11). In this provision, where a particular segment of a law has been decided in a given court ruling, such legislation must be utilized in all the future cases. The only factor needed here is that the case at hand has similar material facts with the one being referred to in the end. The doctrine of judicial precedent has worked due to the reasons that judges give when arriving at a ruling, an aspect known as ratio decidendi. It constitutes the legal principle that is a binding precedent. In other cases, persuasive precedents may be used although they are not legally binding. Known, as the obiter dicta are not taken to account for the formulation of Case Laws. This aspect is because they are simply illustrations or thoughts of the presiding judge or magistrate and do not necessarily fall within the law (Great Britain 7).
A good example of how this case law or judicial precedent is used is best described by the case of Donoghue v Stevenson of 1932. In the ruling made by the House Lords, the manufacturer was found responsible to care for the consumer of their products. This particular case became a binding precedent when it came to the determination of court cases that had similar setups in tortuous cases. As captured in the court rulings in Grant v Australian Knitting Mills of 1936 AC 85, and the Knuller v DPP of 1973 AC 435.
The court emphasized the application of stare decisis, in Young v Bristol Aeroplane Company that a court is bound by its prior decisions. Moreover, in future bound and qualified by various exceptions (Scragg, R 2003, 2).
4.0 Classification of Law
4.1 Public Law
In Britain, this law is a part of legislation that governs the manner in which persons interact with their government. Other aspects that are also dictated by this provision are relationships existing between people and the general population. Some of the legislations that comprise of public laws include the Constitution, tax laws, procedural laws, administrative laws, and criminal laws. The government is however allowed from time to time to come up with decisions on the rights of persons as long as they fall within the provisions of the law.
4.2 Constitutional Law
This law is made up of a group of pieces of legislations that define the organization, distribution, and regulation of state power. The interactions between the judiciary, parliament, and the executive are also outlined. In the United Kingdom, the constitutional law is “unwritten.” This aspect, therefore, means that no single piece of legal documents exists where all the fundamental laws of how the operations of the state work are outlined. The British constitutional law is made up of a series of conventions, treaties, statutes, and judicial decisions.
4.3 Administrative Law
This piece of legislation is involved in the making of public bodies that administer public policies. Other roles undertaken by this law in the United Kingdom include the creation of procedures and powers, rights, liabilities, and duties. An administrator is required by the administrative law to act in a manner that is fair and reasonable as outlined by the law. The Constitution of the United Kingdom is one of the administrative rules available. This legislation falls under the public laws (Great Britain 27).
4.4 Criminal Law
This law is a body of legislations that deal with issues that are considered as crimes, and prescribing their consequences. The UK criminal law falls under the jurisdiction of England and Wales. Britain as a state considers criminal acts as offenses committed against the general population. Several public installations exist under this law to ensure that justice is served. They include the police department, the courts, and the prisons. In criminal proceedings, the fundamental concepts of actus reus and mens rea are reviewed. A conviction of an individual under this law requires the ascertaining of these two basic concepts.
4.5 Private Law
In the British legal system, this law is pieces of legislation that govern the relationships existing between individuals. These laws seek to control the interactions in place between private citizens. Some of the areas covered by the British private laws include; family laws, testamentary laws, labor laws, competition laws, commercial laws, property laws, civil law, and the law of torts among others (Hyatt and Bruce 3).
5.0 European Law
5.1 European Union
The European Union founded in 1957 is now composed of a total of 27 member states. The United Kingdom is a member of the European Union, meaning that it is also a source of legislations for the country. The laws of the Union are mostly enacted in the form of treaties. The Treaty of Rome signed on in 1957 by six European states was the first piece of law ever realized for the coalition. The second one where the United Kingdom joined was undertaken in 1972 and was signed as the Treaty of Rome. It is critical to note that the principal documents that considered under the European law includes the Treaty of Rome 1957, 1997 draft Treaty of Amsterdam, Single European Act 1986, and the Treaty on European Union 1992. These agreements take effect as laws in the member nations (Hyatt and Bruce 13). These legislations comprise of directives, regulations, the Court of Justice’s decisions, as well as opinions and recommendations.
Since joining the EU in 1973, the UK Parliament has bound itself to incorporate EU law into national law. While the UK remains a member of the EU, EU law takes precedence over national law. This means that the UK Parliament is no longer the supreme lawmaker and, for the time being at least, it has limited its sovereignty.
5.2 European Union Convention on Human Rights
This initiative was enacted in Rome on the directions of the Council of Europe in 1950. A system of international protection of human rights was realized as a result. Persons could now turn to the courts to ensure that their rights were enforced. The convention was drafted into three distinct parts. The first section comprises of main rights and freedoms, whereas part two sets up the requisite institutions. The final third chapter provides the concluding part of the convention. Each section is made up of articles that outline the provisions in finer details. Examples of the articles include Article 2 that guarantees the right to life for an individual, and Article 4 that prohibits slavery. Under this convention, several supervisory bodies based in Strasbourg were born including; European Court of Human Rights, Committee of Ministers of the Council of Europe, and a commission that examines applications by a state or private entities.
5.3 European Court of Justice
This institution handles enforcing the European Union law and is the highest judicial body of the Union. It thus outranks the supreme courts of all the nations who are member states of the EU. When it comes to judgments, the rulings can impact on an individual or even a state. The court was set up by the Treaty of Paris in 1951. The Maastricht Treaty of 1982 gave the court the jurisdiction to cover the EU.
Each member nation of the EU is represented by one judge in the Court who serves for a term of six years. The most prevalent type of cases executed before this institution includes direct actions, actions for failure to fulfill an obligation, action of failure to act, requests for a preliminary ruling, or actions for annulment. All cases before the court undergo two phases namely; the written and the oral stage.
Article 249 of the Treaty of Rome makes the effect of Regulations legally binding in every respect in each Member State without that Member State having also to implement the law. Citizens may rely on them both against the state and against private individuals or bodies.
The United Kingdom sources its legislations from multiple
sources. However, the Westminster Parliament is supreme over any laws made by
other entities subject to direct and vertical and horizontal application of the
EU laws. Because the British constitution is an “unwritten” one, prior court
rulings by higher judicial courts are adopted to become part of the law. This
issue is due to an aspect known as legal precedents. The Supreme Court of the
UK is the topmost court of appeal available. Britain has a membership in the
European Union. Therefore, all the laws that are enacted by this group become
part of their legislation. Such legislations come about mostly in the form of
treaties. The European Union Convention on Human Rights is one such provision
that is currently a part of the British law. The European Court of Justice enforces
treaties in the event that disputes arise between the member states. The UK law
can be sub-divided into private, public, criminal, administrative, and
constitutional laws. Each serves different and distinct groups at a time.
Currier, Katherine A, and Thomas E. Eimermann. The Study of Law: A Critical Thinking Approach. , 2013. Print.
Felli, L and Anderllini, L 2008. Statute Law or Case Law. print
Great Britain. Statutes of the Realm: Volume 3. Burlington, Ont: TannerRitchie Pub. in collaboration with the Library and Information Services of the University of St. Andrews, 2007. Internet resource.
Hyatt, Thomas K, and Bruce R. Hopkins. The Law of Tax-Exempt Healthcare Organizations. , 2013. Print.
McDonald, Andrew. Reinventing Britain: Constitutional Change Under New Labour. Berkeley: University of California Press, 2007. Internet resource.
Scragg, R 2003. The New Zealand Court of Appeal and the Doctrine of Stare decisis. http://ir.canterbury.ac.nz/bitstream/10092/4102/1/12598424_2003_13_Scragg.pdf
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