Common La and Trade Block

8/16/2019 Common La and Trade Block

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Common Law and judicialstructureRegional treaties

Dr. Anurag Agnihotri


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What do you think the term ‘law’means?

• A very imortant legal skill is !einga!le to de"ne concets and toics.

•Draw u a list o# di$erent e%amlesor tyes o# law and then re&ect onthat list and see i# you can come uwith a de"nition o# ‘law’.


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‘Law’ and its synonyms

• Law imlies imosition !y a sovereign authorityand the o!ligation o# o!edience on the art o# allsu!ject to that authority.

• Regulation imlies rescrition !y authority in

order to control an organi'ation or system.• Precept commonly suggests something advisoryand not o!ligatory communicated tyicallythrough teaching.

• Statute imlies a law enacted !y a legislative

!ody.• (rdinance alies to an order governing somedetail o# rocedure or conduct en#orced !y alimited authority such as a municiality.

• Canon suggests in nonreligious use a rincile or

rule o# !ehavior or rocedure commonly accetedas a valid guide.


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)he ‘Law’ in *ndia

• )he system o# authoritative materials#or grounding or guiding judicial andadministrative action recognised oresta!lished in a olitically organisedsociety.

+,ec -!/0 ,cheduled Areas

Assimilation o# Laws/ Act 12 o#1345/ and Art 155/a/0 Constitution


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• ‘Law’ includes any ordinance0 order0!ye6law0 rule0 regulation0 noti"cation0custom or usage having in theterritory o# *ndia the #orce o# law.+Constitution o# *ndia Art 155/a/


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• ‘Law’ is a rule rescri!ed !y society #or thegovernment o# human conduct7 a rule o#action or o# civil conduct rescri!ed !y

cometent authority0 !y the law makingower o# the state0 !y the roer law6makingauthority0 !y the sureme authority #or thegovernment o# human action0 !y thesovereign ower0 an esta!lished or

ermanent rule0 esta!lished !y the suremeower or the ower having the legislativecontrol o# the articular su!ject7 an act0enactment0 ordinance0 or statute rescri!ed!y the legislative ower7 the declared will o#

the legislature7 a rule ordained and madeknown !y the legislature0 #or the governmento# the eole in the state0 which they are!ound to o!ey.


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• Circulars issued !y the 8nion o# *ndiarelating to ayment o# service chargesto local !odies in resect o# Central

9overnment roerties are not mereadministrative instructions !ut aree%ecutive orders having the #orce o# law.

+:ood Cororation o# *ndia v;s Allely

10-44.

+Constitution o# *ndia Article @5 a/


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• An agreement o# the Ruler e%ressed in the shaeo# a contract cannot !e regarded as a law. A lawmust #ollow the customary #orms o# laws makingand must !e e%ressed as a !inding rule o#

conduct. *t is not every indication o# the will o# theRuler0 however e%ressed0 which amounts to a law.An indication o# the will meant to !ind as a rule o#conduct and enacted with some #ormality eithertraditionally or secially devised #or the occasion0

results in a law !ut not an agreement to whichthere are two arties0 one o# which is the Ruler.

+engal Bagur Cotton ,C 0 31


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• *# the word ‘law’ includes not onlyenacted statute !ut also commonlaw0 it would also include industrial

law as it has !een evolved !yindustrial decisions.

+rovincial )ransort ,ervices v;s ,tate

*ndustrial Court0 A*R 1325 ,C 11>011@


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• A law generally is a !ody o# rules whichhave !een laid down #or determininglegal rights and legal o!ligations which

are recognised !y Courts. Law in the caseo# an a!solute monarch is his commandwhich has to !e o!eyed !y the citi'enswhether they agree with or not.

+Raj =umar Bursing rata ,ingh Deo v;s,tate o# (rissa0 A*R 132> ,C 1@350 1@3@


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• )he word ‘law’ is used in thee%ression ‘eEuality !e#ore law’ in ageneric sense F a hilosohical sense6

whereas in the e%ressions ‘the eEualrotection o# laws’ it is used denotingseci"c laws in #orce.

+,ri ,rinivasa )heatre v;s 9overnment o# )amil Badu0 A*R 133-0 ,C 3330 1GG>.

+Constitution o# *ndia0 Article 1>


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• )he term ‘law’ is not limited tolegislative enactments. All #orms o#

delegated legislation and conditionallegislation amount to law. All ordersand noti"cation made and issued

under statutory owers and whichare legislative in nature amount o#law.

+,tate o#


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)he term ‘law’ thus is very diIcult tode"ne !ecause it is used to meandi$erent things in di$erent conte%ts.

A comrehensive de"nition isthere#ore hard to rovide as it wouldhave to !e very wide.


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• )he majority o# eole use the term‘law’ to descri!e criminal law. )hismay !e !ecause o# the media

coverage given to crimes0 such asassault0 murder0 riot etc.

• ,ome eole use the word ‘law’ to

descri!e the institutions o# the legalsystem0 such as the courts0 theolice0 the risons and so on.


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Rules of recognition

• We have identi"ed a num!er o#searate !ranches o# lawa!ove7 crime0 tort0 contract0

succession0 matrimonial0comany F each individual !odyo# rules must have a character

allowing it to !e distinguished#rom any other !ody o# rules.


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Rules of change

• We have recognised the need a!ove#or arliament to change the law to!e relevant !ut there must0there#ore0 !e suerior systems o#

conduct which will authorisealteration o# the rules toaccommodate social and economic

changes in society !ut whichthemselves oerate according tolaw.


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Rules of adjudication

• )he courts are identi"ed as thelace where disutes areheard !ut they also must have

rules regulating the methods!y which those disutes areresolved0 otherwise the law

would !e administered in anar!itrary way and may !e seenas un#air.


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*# a rimary or secondary rulesatis"es the criteria which arerovided !y the ultimate rule

o# recognition0 then that rule islegally valid.


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• )here are two minimumreEuirements which must !esatis"ed in order #or a legalsystem to e%istJ

1/rivate citi'ens must generallyo!ey the rimary rules o#o!ligation0 and

-/u!lic oIcials must accet thesecondary rules o# recognition0change0 and adjudication asstandards o# oIcial conduct.


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*# !oth o# these reEuirements arenot satis"ed0 then rimary

rules may only !e suIcient toesta!lish a re6legal #orm o#

government.


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•


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The various classications oflaw

• *n order to study the law inmore detail you need to !ea!le to areciate how it can

!e !roken u into a num!ero# di$erent comonent arts.(ne method o# dividing the

law into di$erent categoriesis to classi#y it as su!stantivelaw or as adjectival law.

S b t ti l


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Substantive law

• ,u!stantive law is the termwhich is used to re#er to therules which govern our rights

and duties under the law0 #ore%amle0 the cases and statuteswhich create criminal o$ences0

or the cases and statutes whichde"ne contractual o!ligations.


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Adjectival law

• Adjectival law rescri!es howthose su!stantive rules can !e

used within the legal system0#or e%amles the rules o#evidence0 rocedure and costs

which are to !e o!servedwhen !ringing a case to court.


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• An alternative way o#

classi#ying the law is !yre#erence to its su!jectmatter. :rom the oint o# viewo# lawyers and those involvedin the legal system0 this is the

most use#ul way o# dividingthe law into categories.


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)he !roadest distinctionwhich can !e drawn is

!etween international lawand domestic law.


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• *nternational law is concerned

with the e%ternalrelationshis !etweendi$erent ,tates and is !ased

on treaties and conventions.A good e%amle here is the )reaty on Huroean 8nionalso known as the


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• Domestic law comrises thelaws o# a articular ,tate0 that

is the cases or statute lawwhich govern relationshiswithin that country and can

!e divided into public lawand private law.


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• u!lic law cases are those cases inwhich one o# the arties to thedisute is the 9overnment o# *ndia

or the ,tate 9overnments0 usuallyacting through a governmentdeartment. u!lic law can !e

#urther su!6divided !roadly into theareas o# criminal law and civil law.

PUBLIC LAWPUBLIC LAW


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• u!lic law is that !ody o#

laws which deals with therelations !etween rivateindividuals and the9overnment7 the lawsa$ecting the general

u!lic.


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Criminal Law

• Criminal Law is that art o# u!licLaw which deals with the de"nition0and unishment o# crime and with

the rocedure #or the trial o# ersonssusected or accused o# crime7 that!ranch or division o# law which

de"nes crimes0 treats o# their nature0and rovides #or their unishment.


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• Criminal law is concerned withconduct o# which society disarovesso strongly that the ,tate must unishthe wrongdoer7 #or e%amle0 murder0

the#t and driving o$ences.

)he major o!jective o# criminal

roceedings is to unish theeretrator o# the crime0 not to

comensate the victim.


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• )he term criminal lawM is suIcientlycomrehensive to cover all o# that

!ranch o# jurisrudence which deals inany way with crimes and unishments.

• )he u!lic rosecutor0 acting on !ehal#

o# the 9overnment0 rosecutes theaccused0 who will !e #ound guilty o#the o$ence charged i# the rosecutorcan convince the court !eyondreasona!le dou!t that the accused didcommit that o$ence.


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Civil Law

• u!lic civil law cases0 !y contrast0 areconcerned with ro!lems inconstitutional and administrative law.:or e%amle0 these cases maychallenge the legality o# actions carriedout !y central or local government0 ormay !ring test cases on individual

#reedoms which have !een in#ringed !ythe government0 such as telehonetaing.


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rivate Law

• )his involves civil law and isconcerned with the rights andduties which rivate individuals

have in relation to each other. )here are many di$erentcategories o# civil law0 #or e%amle

the law o# contract0 the law o# tortswrongs such as negligence orslander/ and the law o# roerty.


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• )he major o!jective o# an action whichinvolves rivate civil law is to

comensate the erson who hassu$ered the wrong0 usually !yayment o# money damages/.

• A civil action is commenced !y thevictim0 that is0 the claimant0 who suesthe de#endant in order to o!tain aremedy. )he claimant must rove his

or her case on a !alance o#ro!a!ilities0 in other words it must !emore likely than not that the de#endantharmed the claimant in the manner

alleged.


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,8,)AB)*NH LAW,8,)AB)*NH LAW ADOHC)*NAL LAWADOHC)*NAL LAW

)his term re#ers to )his term re#ers tothe actual areas o#the actual areas o#law and reresentslaw and reresents

di$erent grous o#di$erent grous o#

rights and o!ligationsrights and o!ligationsas we have seenas we have seena!ove F so it coulda!ove F so it could

re#er to contract law0re#er to contract law0

tort0 matrimonial law0tort0 matrimonial law0succession0 comanysuccession0 comany

law0 roerty law etclaw0 roerty law etc

)his term re#ers to )his term re#ers tothe rules o# evidencethe rules o# evidenceand rocedure Fand rocedure F

these determine howthese determine how

the case is conductedthe case is conductedF in Hnglish law theyF in Hnglish law theyoriginated #rom theoriginated #rom the

medieval writemedieval write

system !ut havesystem !ut haveundergone manyundergone many

changeschanges

8L*C LAW8L*C LAW R*NA)H LAWR*NA)H LAW


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8L*C LAW8L*C LAW R*NA)H LAWR*NA)H LAW

)his term re#ers to )his term re#ers to

the law governing thethe law governing therelationshi !etweenrelationshi !etweenindividuals and theindividuals and the

,tate F usually two,tate F usually twotyes o# law aretyes o# law are

included in thisincluded in this

de"nitionJ criminalde"nitionJ criminal

law and constitutionallaw and constitutional

and administrativeand administrativelawlaw

)his term re#ers to )his term re#ers to

the law governing thethe law governing therelationshi !etweenrelationshi !etweenindividuals andindividuals and

includes many o# theincludes many o# theareas alreadyareas already

identi"ed underidenti"ed under

su!stantive lawsu!stantive law


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CR*


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)he last two0 criminal law andcivil law0 need to !edistinguished !ecause thereare many

di$erences in the way that thelaw is administered and evenin the language used when

either tyeis in Euestion. )he main

distinctions are classi"ed thusJ


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CR*


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CR*


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Common Law

• (ne term that you are !ound to hear usedreeatedly #rom very early on in your course0 andthat you will certainly see many times in te%t!ooks0 is the hrase ‘common law’.

• )his can !e a very con#using term #or you !ecauselawyers use the term in so many di$erent conte%tsand #or Euite di$erent meanings. *t is imortantthen #or you to have an areciation o# thedi$erent meanings right #rom the start so that you

can #ollow e%actly what is !eing re#erred to.• 8sually the recise meaning is taken #rom the

conte%t in which the hrase is !eing used and #romwhat it is !eing contrasted with.


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*n this way the hrase ‘commonlaw’ can !e used in the #ollowing

waysJ


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• Re#erring to the law that is commonto the whole country F in contrast tothe local laws and customs that

e%isted !e#ore the eleventh century0a #ew o# which survive in one #orm oranother today0 eg a !yelaw

introduced !y local councils mayimose a "ne #or your dog #ouling the#ootath.


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• Re#erring to remedies in articular themajor one !eing comensation in the#orm o# damages/ in contrast with

eEuita!le remedies such as theinjunction an order reventing someone#rom doing something/ or seci"cer#ormance an order #or a contract to

!e carried out F usually the trans#er o#land that has !een urchased/.


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• Re#erring to rinciles o# lawdeveloed in the judgments o#decided cases F in contrast with

statute law0 created in an Act o#arliament some law is mainly to !e#ound in cases such as tort F while

some areas are mainly statutory0such as crime/.


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• Re#erring to the tye o# system itsel#one that has develoedincrementally over centuries through

case law as well as other sources/ Fin contrast with civil law systemssuch as that in :rance where the law

originates in a code.


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Hncycloedia o# the Laws o# Hngland

• Constitutional Law is a !ranch o# u!liclaw containing so much o# the oliticalconstitution as is laid down in ositivelegal rules0 and as including suchsu!jects as the #ormation0 owers andrivileges o# the legislature0 thee%ecutive #unctions and owers o# thehead o# the e%ecutive0 the e%istence andcomosition o# the judicial esta!lishmentand the machinery o# local government.

Constitutional LawConstitutional Law


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• *n the generally acceted use o# theterm Constitutional Law means therules which regulate the structure o#

the rincial organs o# governmentand their relationshi to each other0and determine their rincial

#unctions.• *n other words0 it would !e e%ected

to contain only the !asic #ramework.


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Administrative Law

• Administrative Law is a !ranch o#u!lic Law which deals with the variousorgans o# the ,overeign ower. *t

relates to the organisation0 owers andduties o# administrative authorities andconsists o# !ody o# rules governing thedetailed e%ercise o# e%ecutive#unctions !y the oIcers or the u!licauthorities. *t is judge made law.


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Customary Law

• A custom0 that !y continuanceacEuires the #orce o# law0 is calledCustomary Law.


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,tatute or ,tatutory Law

• A ,tatute signi"es an act o# the legislature. *tis a written law as distinguished #rom acustomary law or law o# use and wont7 a tyeo# su!ordinate legislation alied generally to!e #ramed !y university.

• ,tatute Law is #reEuently usedinterchangea!ly with statute0 !ut the term is

!roader in its meaning0 and includes not onlystatutes !ut also the judicial interretationand alication o# such statutes.


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Oudicial ,tructure

• ,ureme court

• Kigh court

• District courts•


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)rade Begotiations

• retton Woods Con#erence 13>>/

– *nternational ank #or Restructuring andDeveloment *RD0 later to !ecome the

World ank/0 *nternational


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World )rade (rgani'ation

• 9A)) !ecomes W)( 1334/

1. Acts as a #orum #or tradenegotiations

-. Administers trade agreements

1. ,ettles trade disutes

-. Reviews national trade olicies

5. Assists develoing countries technicalassistance and training rogrammes/

>. Cooerates with other internationalorgani'ations


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:eatures o# 9A));W)( 1/

• :i%ed6rule system – unam!iguous rules are reEuired to move

away #rom a su!otimal Bash eEuili!rium

•


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:eatures o# 9A));W)( -/

• Disute settlement – 9A)) had e%ert anels without authority to

en#orce its recommendations – W)( has a Disute ,ettlement ody that can

levy "nes on countries• )ransarency

– )ari$s rather than Euotas – W)(’s trade6olicy6review mechanism

• 8nresolved issues – agriculture0 te%tiles0 shiing0 anti6duming

duties0 su!sidies0 :D*0 intellectual roertyrightsQ


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,tructure o# the W)(

• Ministerial Conference at least once everytwo years/

• General Council am!assadors0 several times ayear/

– meets also as the Trade Policy Review odyand the !ispute Settle"ent ody

• (therJ – 9oods Council0 ,ervices Council and

*ntellectual roerty )R*,/ Council

– ,eciali'ed committees0 working grous andworking arties

– ,ecretariat #technical suort7 no decision6makingrole/


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What’s Be%t?

• )he


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)yes o# Hconomic *ntegration1/

• $ree trade area #$T%&

– no tari's between the "e"bers

– each mem!ers sets its own tari$s to

outside mem!ers outside countries will use atransshiment strategy i# no rules o# origin e%ist – e.g. H:)A0 BA:)A

• Custo"s (nion

– #ree trade area S – co""on e)ternal trade policy – e.g. enelu%

)yes o# Hconomic *ntegration


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)yes o# Hconomic *ntegration-/

• Co""on Mar*et

– customs union S

– free factor "ove"ents

– e.g. Huroean Community• Monetary + ,cono"ic (nion

– common markets S

– co""on currency- co""on

institutions and coordination ofecono"ic policy

– e.g. Huroean


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,tatic H$ects o# Hconomic*ntegration

Oaco! Niner 134G/J The Customs Union Issue. CarnegieHndowment #or *nternational eace0 Bew Tork.

• )wo kinds o# imacts due to integration – Trade creationJ shi#t #rom high6cost/

domestic roduction to low6cost/ amem!er roduction

– Trade diversionJ shi#t #rom low6cost/nonmem!er roduction to high6cost/

mem!er roduction. The welfare i"pact of econo"ic

integration is a"biguous

:actors A$ecting the Bet Wel#are


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:actors A$ecting the Bet Wel#are*mact o# )rade Diversion

• Trade diversion is li*ely to have lessadverse i"pact on welfare

/0 the closer the "e"ber country1s productioncost is to the non2"e"ber1s

30 the higher the initial tari' 40 the "ore elastic supply and de"and

50 the "ore participating countries in integration

• 6ther possible static e'ects ofintegration

/0 savings in ad"inistrative costs

30 possibility to i"prove the collective ter"s2of2trade

40 greater bargaining power in tradenegotiations

Dynamic H$ects o# Hconomic


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y*ntegration*ntegration may result di$erent evolution o#

mem!er countries’ economies than wouldotherwise have occurred

1. more cometition less monoolyower/

-. access to larger markets reali'ation o#economies o# scale

5. greater investment less restrictions #or

mem!ers S e.g. non6mem!ers are moremotivated to get !ehind the tari$ wallMdue to larger market availa!le/

>. greater la!our mo!ility


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)rade !locks• Why regionalism?

• De"nition o# regional economic integration

• :ive levels o# regional economic integration

– industrial #ree trade area7 #ull #ree trade

area7 customs union7 common market7economic union

• )rade e$ects o# regional integration

•Regional grousJ H80 BA:)A0 A:)A0


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Regional econo"icintegration

• Agreements among countries in ageographic region to reduce0 andultimately remove0 tari$ and non6tari$

!arriers to the #ree &ow o# goods0services and #actors o# roductionamong each other.

• *t is estimated that currently there area!out --G regional trade arrangementsU

Regional trade


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Regional tradearrange"ents

• H%cetion to


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gintegration

$ree Trade %rea #$T%&• Bo tari$s and Euotas among

mem!ers

• Bational tari$s against non6mem!ers

• artial industrial/ :)A and #ull :)A

• Australia’s !ilateral :)As with BewVealand0 ,ingaore0 8,A0 )hailand

• luri6lateral :)AJ H:)A0 BA:)A0 A:)A

Free Trade

Area

Regional econo"icintegration


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gintegration

custo"s unionBo tari$s and Euotas among mem!ers.

Common tari$s oerate against non6mem!ers.

H%amlesJ Huroean Community HC 132/


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Regional econo"ic integrationco""on "ar*et

A!olition o# restrictions on #actor movements

H%amleJ )he Huroean

‘,ingle


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econo"ic union

Customs Union

Free Trade

Area

Common Market

Economic UnionCharacterised by• harmonisation

and unification of

economic policies• common

currency

Eample!

European Union

Trade e'ects of


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integration

• )rade creationF trade u through lower6cost goods

and services e.g. Huroean 8nionJ

industrial sector/• )rade diversion

F less eIcient roducers inside thearea relace more eIcient e%ternal

roducers e.g. H8J commonagricultural olicy/

,uropean econo"ic


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pintegration

134@ Huroean Communities 2/J :rance0 Western9ermany0 *taly0 elgium0 Lu%em!urg0 Betherlands

132 Customs union

13@5 8=0 *reland0 Denmark0 9reece 131/0 ,ain and

ortugal 132/133- Huroean single market

1332 Austria0 :inland0 ,weden

-GG- Huroean 1G new mem!ersJ Cyrus0 C'ech Reu!lic0 Hstonia0Kungary0 Latvia0 Lithuania0


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7orth %"erican $ree Trade%gree"ent #7%$T%&

8,0 Canada0 • (ver 14 year eriod

F tari$s reduced 33 o# goods traded/

F non6tari$ !arriers reducedF investment oortunities increased• rotects intellectual roerty• )hree6side agreements

F environmental rotocols

F la!our rotocolsF sna6!ack rovision

• ,ecial treatment #or many industries

M,RC6S(R #Southern


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M,RC6S(R #SouthernCo""on Mar*et&

• (riginated in 13 as a #ree tradeact !etween ra'il and Argentina

• H%anded in


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The $ree Trade %rea of the%"ericas #$T%%&

• (ld lan o# e%68, resident 9eorge ush0 ursuednow !y his son.

• :)AA X 5> nations including BA:)A and6country ,ummit o#


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%S,%7 #/8&• A:)A X A,HAB :ree )rade Area7 launched in 133-

•


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9hy the push for ,ast%sian integration:

• Hast Asian "nancial crisis

• :ailures o# W)( and AHC to makeheadway on trade li!eralisation

• ositive insiration rovided !y Huroeanintegration esecially the euro/

• road disEuiet with !ehaviour o# !oth

the 8, and H8

Documents

Common La and Trade Block