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Sample Essay on International Dispute Resolution

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Sample Essay on International Dispute Resolution

Introduction

            This study is discussing the confusion, which has been created with the European Union court of justice.  The confusion is brought about by differences between the national and the European Union contractual and non-contractual rules. This study will use case studies to review the confusion that has so far existed, especially among the member states. The study highlights the applicable laws, the merits and demerits and effects of the laws discussed. The study also contains the applications of these laws and the background information concerning European Union and the conflicting laws.

Keywords: European Union Private International Laws-EU PIL, EU- European Union,

Background

            European private international laws are also referred to as the conflict of laws (Born, 34). These laws are made up of legal standards, which resolve three main forms of issues: there is the element of court having jurisdiction over private issues on cross border connotations, conditions under which a foreigner’s decisions may be identified and enacted and the forms of states laws that are applicable on the private matters. The main source of these laws is Europe while the European Union remains the main applicants. The EU community is based on the rule of law. The court of justice functions as a constitutional court. IT arbitrates issues over the national court. It has the jurisdiction to manage the legality, with regard to the Charter. It is the only judicial authority, which can resolve conflicts of command among the EU institutions. The association between the Court of Justice and national constitutional courts is described as teamwork. It is true that EU law takes pleasure in dominance over national law. Most of the times, the laws are directly applicable in Member the States’ legal orders. However, the national supreme courts and the constitutional courts are not institutionally minor to the European Court of Justice.
            The problems in the application of these laws happen, as there are differences in the substantive rules that control some issues in various legal jurisdictions (Caron, 87). These disparities are affecting even the EU member states. In contractual and non-contractual issues, the differences arise in the national laws of the member states. They result in problems in business bodies, as they are confusing on the law to be enacted and implemented. The confusion further results in challenges in the usual function of the internal market. The main solution to this challenge is to work on the predictability of the result of the litigation. The member states should be sure of the law to apply in given situations and to allow free movement of the judgments. This can only be attained if the conflict of law in the members is designated in a similar manner as the national law. This should be irrespective of the region where the court is situated.

            These provisions were previously adopted in the 1980 Rome international convention (Briggsa , 61). The Rome I represent the contractual laws while the Rome II represents the non-contractual laws. Presently both forms are being adopted in various areas. There is the (EC) No 864/2007, which was adopted, in the European parliament. The contractual laws took the place of the Roman Convention. This was after several amendments were made. For instance, there is the Amsterdam treaty of 1990 (Briggsa, 104.).

            The main purpose of having EU laws is to guide the member states and protect the members without jeopardizing their freedom. The PIL does not require reciprocity as a way of identifying the foreign judgments. Therefore, any court can determine any foreign judgment. What is still unclear is whether these judgments can be recognized in all circumstances and given the required attention especially in the disputes of two countries. Some of the questions the members countries have asking is whether the domestic laws can override the EU laws in situations where the EU laws are contradicting with affecting a nation. The EU laws however emphasize that judgment stated in foreign nations can be recognized. The question of recognition remains largely unanswered.  In situations where a criminal is to be charged the EU PIL is does not allow the defendant to answer to charges in the initial stages. This is allowed only during the last stages of any case. This is however affecting many nations, which are member states. Most of these nations prefer to have the defendant answer to the charges at the beginning of the criminal cases. This is deemed as a rule against the rights of the defendant. In execution, there is no foreign decision made. There is need to determine foreign judgments in private international laws for consistency. This will only be possible in situations where the rules are single set.

Case studies

            The EU court of justice has the mandate of interpreting the EU laws. It is also charged with the role of ensuring that the laws are equally applied among the member states(). This is however not the case as most of the states have been complaining over unfair judgment by the EU laws. The Court of justice ensures that every member adheres to the set EU laws. This role also falls on the national courts. In cases where the member states fail to adhere to the rules, either the national court or the court of justice gives the ruling. In most circumstances if it has to face the law, the member states prefer the national court to the Union’s court. The ruling in most cases favors the members even where the law was broken. This goes contrary to the need to guarantee the effectiveness and continuous application of the union legislation (Briggsb, 102). It is also against the need to prevent divergent interpretations. This issue is difficult to maintain especially in cases where the laws are contrary to the national laws.

            The EU court of justice employs gender as a factor of establishing premiums for the insurance products. This is unlike the national laws where gender does not feature when determining insurance premiums. Especially British conservatives do not take this kindly. This has also been viewed as misinterpretation of the EU laws by the court of justice. Former Germany president Roman Herzog questioned this moved and warned the ECJ for overstepping its powers. The move is perceived as deliberate and systematic. It ignores the elementary principles of the western interpretation of the law. This decision is based on sloppy argumentation as it disregards the legislator’s will (Hill, 40). It is viewed as contradicting the legislator’s will and creates legal principles as base for future judgments. Moreover, women have been favored in the European courts over men in various issues. The case of Marshall 1986 is an example of the ECJ is ruling. According to the country where the company had its headquarters, Marshall was to retire early from her career. This was against the late retirement of the men counterparts in the same organization and under the same work level. The lady saw this as discriminatory as she was to retire five years earlier than her male counterparts did. The court’s ruling was that if the defendant was part of the state’s organ, then she was bound by the rules. If she was not part of the state then the laws could not bind her.

There is the Mangol judgment, which ruled against the German law, which was in favor of the old workers. The insurance issue has not been taken lightly. The president in charge of Belgium’s constitutional court sees this move as a misuse of power. The president asserts that the court is creating serious risks as rulings are fabricated without the member’s rulings. The judges of the EU court fail to understand the effects of these moves (Hill & Ching, 78). The financial consequences thereby fall on the member government. The laws contradict the national rules, as the judges are all foreign.

The stated budget in the EU is at times surpassed by the court of Justice. The amount becomes too high, higher than the individual courts can manage. The high budget has also created a series of conflicts as the European Court of Justice is viewed as too overgenerous. The high cost has further brought queries as to how the court is being run. This has been the issue on the building of the 2009 Luxemburg courthouse. This was around €500 million. The conflict arose as each of the 28 judges had a chauffeured car. This included the Advocates General.

The members understanding of the conventions’ reach differs from the court’s understanding of the same. The court has been criticized repeatedly over the same issue. A former judge of Cyprus criticized the court as being too reluctant in examining the violations of sensitive matters, which affect the members’ interests. The British law lord on the other hand criticized the court of being reluctant on the margin of appreciation. The court was viewed as limited in the ability to defy the temptation to exaggerate its control and impress the uniform rules on the members (Merrills, 67). The court considered itself as equal to the US Supreme Court in making the foundations of the federal law of Europe. This is perceived as an interference of exercising the national laws. The British warlord was against this presumption of the European court of justice. Therefore, he asserted that the ability of the court of justice to interfere with the national law should be limited. The Belgian president of the constitutional court also emphasized this in 2010 (Park, 210).

In connection to the interference of the national laws, the court of justice has been condemned for acting as the judicial activist. This stand was felt by the member states when it expanded the pledge of the Treaty to issues. This was clearly not part of the Treaty. It was never part of the decisions of the stakeholders of the treaty (Poudret & Besson, 59). This condemnation was strong as the court surpassed its jurisdiction and handled the asylum cases. This criticism is based on the Treaty’s article 3 and article 6.

Other members outside Europe are seen to have been sidelined by the European court. Most of the time, the European states have been favored at the expense of other members. Such complaints have been aired by countries such as Russia. Russia’s national laws have mostly been in violation of the convention by the court. Thus, the European Court of justice in many instances has warned the nation. The Russian judge responded to the continuous dissenting opinions by affirming he was in disregard of the European’s court evaluation of the non-European values as reactionary. This is concerning the Refax vs. Turkey case and the Marking vs. Russia. According to the Russian Constitutional court, the nation has the right to come up with a mechanism to protect itself from the court’s decisions (Spencer & Brogan, 96). This is with regard to the nation’s independence and the primary constitutional principles.

In respect to the structure of the courts, the structure of the European’s court is contrary to the laid court structure. The European court had introduced its Rules a Bureau, thereby creating a different collective organ. This had little connection according to the prevailing Convention court structures. As the organs increased, so is the cost of running the court. Hence, the challenge of maintaining the court is felt by the member countries.

Applicable law

            There are member states whose national laws are contradicting the EUPIL, for instance, the Serbian laws (Spencer & Brogan, 1O2). The element of habitual residence is significant in the chapters concerning persons, succession, and the family law. In as much as many countries apply this theory, only a handful has a legal definition of the meaning of habitual residence. The cause of disagreement is that habitual residence implies many case groups (Briggs, 96). For instance, there are the family members, the singles, adults, and children. An individual may be in a given place as the permanent residence. This same individual may be cut off from all ties and move to a different place. Another instance is the situation where a person acquires a scholarship abroad, stays there for sometime, but still maintains family relations while at home. Children can be abducted; a family can maintain their family home while at the same timework in a different region.

            Habitual residence fails to acquire legal definition as it is still under development (Born, 64). This makes it difficult to provide solutions for justice at every case group. Countries like Germany often rely on the court practice and the legal discipline to interpret habitual residence. The nation of Serbia has decided to define habitual residence under the legal jurisdiction. This change has assumed the common changes currently taking place in that country. Other countries are also facing the same challenge especially in relation to the individual nationality to habitual residence. In 2010, the then Yugoslav Republic introduced a legal definition of the term in their PIL code. However, this is not recommended as the concept largely differs with most of the countries’ definition. Belgium, Romania, and Bulgaria have assumed these new definitions of the term.

            Areas where the legal definition is differing with that of the nationals include the Article 5 of the definitions of the natural persons. This needs further analysis to be in line with the EU law. The first paragraph concentrates on the longer period of residence. This is however risky as in a personal form the residency may be shorter, depending on the situations. It is also risky to define that the residency may be independent of the intention. This is contradicting EU’s definitions and the Court of Justice. These two sections need to be omitted to be similar to the European Union’s definition.             Current PIL codes incorporate legal definitions of the term. The Belgian states that habitual residence is the place where a natural person has identified as the main residence even when the establishment permit is missing. The Bulgarian and the Montenegrin is similar (Park, 64).

Among the contractual laws is the definition of the natural persons. The law clearly outlines the condition necessary for the choice of the personal name. The law leaves freedom for personal independence. There is however no general law governing the name. The four factors relating a natural person are nationality of the parents and the child, the habitual residence of the parents and the national law in the individual country. This applies alternatively in any case. It is however necessary for the law to have a common principle and leave for the parents to choose either of the alternatives.

One of the laws, which are so far similar to that of the EU, is the law declaring a person is missing, dead or shows that he is dead. On the issue of marriage, individuals are free to marry based on the nationality of desire. There is need change this clause to indicate that it is individuals who get married and not the state. Indications need to be stated in the laws on the age of the person to get married. In some countries like Serbia, children at 14 are expected to be married. The PIL addresses only common effects of marriage and not the comprehensive treatment like the matrimonial and financial property. The EUPIL also fails to specify the results of the daily management of the property held by a couple. This is especially so in situations where one of the couples die or when they are separated.

Merits and demerits of the laws discussed

            The European Union laws have played a significant role in the arbitration of many disputes among member states. This has been felt even in countries, which have an organized court system. There is increased transnational litigation as member states are working towards harmonizing the Union’s laws. This will result to application of the national laws without any debates or conflicts. The main reason for instituting European Union was to have a neutral ground where parties can solve their issues. This role has been significantly important at parties have a choice of where to resolve any upcoming matters. Rules on Rome II are slightly shaped in relation to their structure and order (Meryll, 98). This has become more complicated as the rules are rather methodical and difficult to entangle. In applicable law, the common rules start with the condition of the selection of the law in Article 158. Nevertheless, Rome II identifies first the applicable law. It then goes back to the selection of the applicable law. Therefore, the possibility of independence of a party is reduced. This creates the difference in the contractual role where independence of a given body is significant.

A court’s decision in one of the member states can oppose another court’s decision in another state (Plant, 70). This results to uncertainty when the states desire to exercise enforcement of the decisions in a third state. As multinational companies encourage their clients to settle disputes, they are expected to settle theirs without any confrontation. This is however not possible especially when the company is involved in conflicting laws. The multinationals fail to carry out their duties as expected due to these laws. This is due to the substantive demands, coordination of disputes and logistical administration, varying procedural standards and global calendars. For instance, the global cartel affecting the five continents realized as by the competing establishment. The affected multinationals end up demanding for cover for the damages in their home areas. Such cases expose the members to many lawsuits in different countries.  

Conclusion

This study has highlighted some of the cases where the court of justice brings confusion. The ability of the European court of controlling the national courts has been vehemently condemned by nations out of Europe such as Russia. The structure of the EU court is different from other court structures in the member states. This is highlighted especially with the rising among the contractual laws is the definition of the natural persons, marriage, and habitual residence. The European Union acts in the arbitration of disputes among member states. This has been felt, as it is a neutral ground for dispute settlement. However, a court’s decision in one state can oppose another court’s decision. This leads to uncertainty.

 

 

 

Works Cited

Born, Gary. International arbitration: law and practice. UK: Hart Publishing. 2012. Print

Briggs, Adrian. Civil jurisdiction and judgments. Oxford Oxford University Press. 2009. Print

Briggs, Adrian. Private International Law in English Courts. Oxford Oxford University Press.  2014. Print

Caron, D. David., Caplan, Lee & Pellonpää, Matti. The Uncitral Arbitration Rules: A Commentary. Oxford: Oxford University Press. 2006. Print

Hill, Jonathan & Ching, Adeline. International Commercial Disputes. (4th Ed). UK: Hart Publishing. 2010. Print

Hill, Jonathan & Clarkson, CMV. The Conflict of Laws. (4th Ed). OUP. ForthComing. 2011. Print

Merrills, J. G. International Dispute Settlement. Colombia university of Colombia 2011.

Park, William. Arbitration of International Business Disputes: Studies in Law and Practice. UK: Hart Publishing.2012.

 

            Plant, Charles. Blackstone’s civil practice. NJ: Blackstone Press, Limited.  2008.

Poudret, Jean-Francois, & Besson, Sebastein. Comparative Law of International Arbitration. US: Sweet& Maxwell. 2007. Print

Spencer, David & Brogan, Michael. Mediation law and practice. Sydney university of Sydney. 2006. Print

 

 

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