International Trade & Business Law Annual Vol VII

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This project is designed to serve as a transmission belt between the development of major economies of scale and processes of legal reform within the Caribbean integration zone. In order to establish trade relations with other countries, it is necessary to finance actions and strategies that will stimulate the economic development of the countries in the region, starting from the chances and strengths offered by those economies.

These are the mechanisms which must be used so as to peremptorily overcome the unfavourable approaches to international cooperation characteristic of that geographic zone. In that context, taking into account the rules of private international law is of special interest for the countries and territories integrating that institution and has led to the presentation of this Draft Model Law. Indeed, the complementary phenomena constituted by globalisation and integration have seriously disrupted the traditional image of private international law, based on notions of sharing, position, territory and State sovereignty.

In the globalised market economy which the States of the Caribbean zone wish to integrate, relations with the rest of the world are much more than a mere diplomatic fact. That economy is characterised by the suppression of national barriers to the free movement of goods, services and capital. Such actions are proving increasingly urgent at all economic and social levels for the movement of wealth between States. This is why the countries of the Caribbean must seek for ways of dealing with all, or at least with a majority of situations involving several States.

This task must be carried out through a complete and efficient set of rules making it possible to find the proper substantive norm governing a definite private law situation, as well as the judicial organ responsible for settling any disputes liable to result from it.

What is INTERNATIONAL TRADE LAW? What does INTERNATIONAL TRADE LAW mean?

The instruments of integration are not solely economic v. The organisms taking part in such a process are predestined to undergo internationalisation on the basis of specific parameters, while safeguarding their sovereignty or their link with their national territory and nationality Concretely, in the context of legal and judicial cooperation, this tendency is materialised by negotiation, the development of legal tools and a gradual increase in the number of those tools and of the agents intervening in cooperation strategies.

COMMERCE vii. In the Pahlavi and post-Pahlavi periods

The final objective of civil and commercial judicial cooperation is to set up very close collaboration between the authorities of the various States in order to eliminate any and all obstacles resulting from the incompatibility of the various judicial and administrative systems mutual recognition and enforcement of decisions, access to justice and harmonisation of national legislations.

In order to rise to the various challenges existing in legal and judicial matters, one of the tools liable to be successfully developed in the OHADAC zone concerns the assistance that governments can mutually lend one another. It could take the form of new legal mechanisms suited to the objective of cooperation pursued.

The purpose is to build a true Caribbean judicial area inside which both individuals and companies will be able to exercise their rights freely and fully. As already indicated previously, the starting point, that is, the diversity between States and the possible and necessary respect for certain national specificities results in the fact that the strategy of private international law is among the most effective, since it renders diversity compatible and provides predictable and uniform solutions.

In a certain way, next to the rules settling questions of applicable law, the rules governing international judicial cooperation international jurisdiction, international judicial assistance, recognition and enforcement of judicial decisions are called upon to be part of this special procedural law inside a broad field of international situations. Any initiative aiming at integration requires a combination of normative and institutional efforts in order to simplify the cooperation procedures and specify them clearly.

Hence the value of unifying legislations and reducing the number of operators acting within the framework of cooperation, so as to set up simpler and more efficient procedures. Depending on the experiences and needs expressed by the States, such actions may be reinforced and broadened to include other legal and judiciary fields.

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One of the activities related to legal and judicial cooperation which it would be beneficial to develop concerns the means to be implemented for a more fluid dialogue between legal and judicial authorities, for the sharing of experiences and for horizontal cooperation activities making it possible to perfect the organisation and functioning of democratic institutions. The countries of the OHADAC zone may set up cooperation mechanisms for the legislative development of domestic legal tools.

As the negotiations aimed at consolidating free trade in the zone progress, it will appear increasingly necessary for the countries to harmonise and integrate their domestic law in areas where dialogue and negotiations allow a consensus to emerge. The revision of national legislations and their harmonisation with the international treaties entered into, or their mere coming into effect, is a difficult task in itself. It proves especially complex in countries with a lesser degree of economic and democratic development.

This renders assistance particularly necessary. It may take the form of comparative law tools and studies of the most successful laws, regulations and administrative practices. Such work may be planned according to a schedule set for the countries of the zone concerned and be devoted to the various themes relating to the administration of justice. In this area, private international law plays an essential role. The commercial opening of the Caribbean has considerably strengthened the numerous links at all levels, whether multilateral, regional or bilateral, and has been reinforced by the signing of trade agreements between the countries of the area.

The strengthening of relationships has highlighted the serious impediments to the integration process v. In any case, the multiplication of international organisations around the Caribbean may be both an advantage and an inconvenience. Several countries belong to regional organisations which transcend the frontiers of the Caribbean, but which can work towards similar goals in the area of legal harmonisation or economic integration such as: LAIA, ALBA, OAS, Commonwealth This plurality of international organisations is similar to the situation affecting the OHADA States on the African continent, 29 and this has not prevented this specific organisation from successfully implementing harmonised commercial law In any event, it is necessary to rely on this plurality of international organisations and rely on them to give OHADAC special responsibility geared towards the legal harmonisation in commercial matters, with maybe with a more technical than political profile, where a greater role is given to private institutions Chambers of Commerce and Arbitration that than to the States, at least initially.

This also determines the strategy for harmonisation, which is not the sole preserve of Sub-Saharan Africa Disregarding a long tradition of integration in Central America, for obvious historical reasons, it should be remembered that during the nineteenth century and the first half of the twentieth century Central American trade and production was dominated by traditional agricultural activities, some of which have led to a great integration in the external market, as is the case of coffee, bananas and cocoa.

This process has been much more intense for Guatemala, El Salvador and Costa Rica, and has existed to a lesser extent in Nicaragua and Honduras.

Among other aspects, the aim was to promote the growth of industrial activities that permit the substitution of imports and at the same time diversify the production offered by Central America. As for Panama, from the beginning, it has opted for the service economy related to the canal and the financial sector , in a different dynamic to the process of industrialisation through substitution.

Founded in the early sixties of the last century, the Central American Common Market is the oldest of the region's integration groups.

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In the late seventies and during the eighties, this market was affected by political instability in several member States, which has influenced its subsequent development and its own crisis. However, the companies of the isthmus have played an important role in the growth of exports, and their initiatives are significant in terms of competitive products and services capable of meeting the challenges of international competition. In , the countries of the sub-region committed themselves to the goal of setting a common external tariff, which was to be adopted at a different pace and was to fluctuate between one and fifteen per cent.

In , the agreement on common external tariffs for the first time included the agricultural products sector. This system, for its part, has four integration subsystems in the economic, social, cultural and political fields. Inevitably, the first of these is the most important and establishes the basic principle of the Protocol to the General Treaty of Central American Economic Integration, signed in Guatemala, of 29 October The economic and trade objectives are expressed in relatively generic terms. Specifically, the SICA aims to achieve well-being and economic and social justice for all Central American peoples, to allow an economic union and enliven the Central American financial system.

It also aims to strengthen the region in order to turn it into an economic bloc capable of successful integration into the global economy. Following a sluggish period, integration in the Central American region has permitted significant progress in the six presidential summits of the region. The agreement comprises seven Titles and thirty articles. Its application will occur gradually and progressively. It does not have a term of validity, is thus for an indefinite period and open for signature by any member country of the SICA; the acceding country must deposit the instrument of accession with the SICA General Secretariat.

It entered into force on 1 August The Bahamas became the 13th member State of the Community on 4 July On 4 July , Suriname became the 14th member State of the Community. These countries have a total of 6 million inhabitants.

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The Community is currently implementing the second phase of its Common External Tariff, which aims to set tariffs between five and twenty per cent for It brings together twenty-five countries and twelve territories in the Caribbean basin. The ACS' priority areas for action concern tourism and both intraregional as well as interregional transport.

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Before World War I those items were primarily destined for Russia and constituted the bulk of Persian exports. Mann, Munich , at et seq. Coquillette, Daniel R. Baden-Baden, Germany: Nomos Verlag. When oil exports are included, however, total exports reveal a substantially different geographical pattern.

In a way, the ACS is a reaction against integration processes and globalisation processes. The creation of the Caribbean Single Market and Economy was the result of a year effort to fulfil the hope of regional integration, which was established by the creation of the British West Indies Federation in In the economic sphere, the Region has maintained the same status for years and, during this period, free trade had not yet been established between the member States.

The Lesser Antilles Federation was completed in , which in many aspects should be considered as the true beginning of what is now the Caribbean Community. The conclusion of the Federation signalled the start of more serious efforts by the political leaders of the Caribbean to strengthen ties between the islands and the mainland, in arranging for the continuation and strengthening of the areas of cooperation that existed during the Federation.

Reference should be made to the Caribbean Basin Initiative CBI , which was adopted in , establishing a unilateral advantage granted by the United States regarding preferential access for exports either free from any customs charges or taxed less than the exports of other countries from the countries of Central America and the Caribbean to the United States.

Originally, textiles were excluded from preferential access to the CBI. Central America's aim was to sign a free trade treaty with the United States, due to the precariousness of the CBI and the disadvantages that it would face in comparison with other countries such as Mexico and Canada In September , the governments of the Central American countries and the United States agreed to initiate an exploratory phase for the official launch of negotiations to reach a free trade agreement.

From , a series of technical workshops were held in different cities of Central America and United States and resulted in the exchange of information on various business topics, which facilitated the subsequent definition of a framework for future negotiations. On the basis of this process, the countries agreed to commence negotiations on a free trade treaty, which was launched on 8 January The negotiations were complex and took place through several successive round-table meetings. Due to the integration system that existed in Central America at the time, the Central American States had to conduct coordination meetings in order to adopt a common position around the negotiating table.

The Central American countries succeeded in their negotiations in December During the negotiation process, the Dominican Republic expressed its interest in joining the free trade treaty between Central America and the United States, and this was received positively by the six other countries. Thus, following negotiations between Central America and the United States, the Dominican Republic accepted the areas previously negotiated by these six countries and signed agreements with the United States and Central America on access for their products to these markets and vice versa It has created a trade liberalisation based on the assumptions and inserts provisions laid down in the Central American integration, and the majority of which apply on a multilateral basis.

Enforcing International Law

In this instrument, the legislative changes that the Central American countries must effect for the treaty's entry into force are identified. These changes focus mainly on services, telecommunications and intellectual property. It is hoped that the increased opening of the region and improvement of the regulations induced by the signing of the DR-CAFTA will provide greater opportunities for investment, trade and employment between the signatory countries. As a condition for entry into force, the negotiating countries had to establish a complex legislative reform process in order to adapt their respective regulations to the latest international commercial standards.

The provisions of the Agreement were the consequence of the evolution of international trade legislation.

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Also, from the start, the reform work was done in a coordinated manner, and in a second phase, the work was done on a bilateral basis between each country and the United States. The emergence of regional economic and political integration projects has been one of the realities that have rapidly highlighted the need to go beyond the national reference for formulating the subject of private international law Taking into account the classification proposed by S.

The implementation of an integration process means that the role of the law and, in particular, of private international law, is one of great significance 40 : integration, as a functional objective, uses this order to be effective in promoting the cultural identity of individuals through respect for legal diversity, even as it harmonises solutions by making them more predictable.

At the same time, any regional integration phenomenon has substantial repercussions on the regulation of the legal situations concerning more than one national legal order and situations of so-called private international relations but the intensity of the impact bears a direct relationship with the level of the objectives achieved. Starting from a very basic, but valid functional classification in the context of our demonstration, a distinction can be made between the free trade area, customs union, common market, economic union and global integration.

Of course, each of these categories is the result of the qualitative sum of the following elements: removal of customs duties, common external tariff, common trade policies, common economic policies and the common global policies defence, foreign relations, industry, currency. Needless to say, the role of private international law is very different at each of these levels and it appears particularly important from the stage of the common market - on the fringes of a kind of harmonisation of legislations produced by the process - and that it becomes an indispensable element in the final phase of the process Thus, in some basic models of integration, the assignment will have repercussions directly in the economic administrative law of the member States, but as and when the phenomenon of integration increases, these rules will have decisive repercussions on private law and in particular on the law of property.

Finally, the transition from economic integration to political integration leads to effects in all sectors of the legal order, including the rights of persons. If private international law is understood as a legal order regulating private international situations, in connection with a recognised and concrete national system, it appears undeniable that any integration process can presume a substantial transformation of its traditional goal.