United Kingdom Promotes and Harmonises International Trade sample essay

Hypothesis:

UK Commercial Law provides for the needs of the international business community by facilitating international trade. The U.K. promotes and harmonises international trade through its effective system of international commercial arbitration.

Plan:

Introduction

1. International Arbitration

2. The U.K. contribution to international commercial arbitration

3. The role of the U.K. in the harmonisation of international commercial legislation

4. The U.K. - the venue for dispute resolution

5. Ratification of international code of practice, conduct, conventions and legislations relating to arbitration

6. The U.K. contribution to settlements, arbitrary awards, recognition and enforcement

Conclusion



Introduction

The United Kingdom is the state that has a long history of commercial thought. Many leading economics theorists were from England and the country has always encouraged trade and respected law. Today the trade is often international. The businessmen need reliable commercial laws and effective legal procedures acceptable internationally. Moreover, the businessmen need unbiased, uncorrupted and flexible legal framework to solve international commercial disputes. International commercial arbitrage is the answer to all the needs listed above.

The United Kingdom is one of the world centres of international commercial arbitrage due to its effective arbitrage regulating framework, and the effective balance with the national system of courts and legislation. As the proof of its popularity as a venue for commercial disputes resolutions, about 40% of international arbitration cases resolved in the UK are such where both parties are foreign. English arbitrary mechanism has earned a high respect and popularity in the world and is being followed by other countries through the acts and law models that the U.K. uses in its arbitrage.

The U.K. is considered to be highly devoted to legal norms and fair international trade, providing appropriate structure and atmosphere for dispute settlement among foreign traders. Actually, the U.K. was the first country that created the effective legal norms of arbitration (Crookes, 2002).

This is the honourable mission and contribution of the country to the matter of international business. By providing solid legal grounds and the haven to disputing parties, the United Kingdom facilitates trade between different countries, improves international commercial environment and international affairs on certain level.

Further I will describe in deeper details how the U.K. international arbitration operates and what it is based on and why it has the leading role among the other countries in international arbitration.

International Arbitration

We live in a fast globalising world with ever increasing international trade. Along with the transnational trade grows the need for internationally acceptable commercial laws, legislation procedures and institutions, resolutions of which would be internationally accepted. Over the past few decades the transnational commercial law was created and certain success was reached in settling international organisations that can provide dispute resolution awards for parties from different countries on such terms that the both sides would acknowledge as fair.

Under the term transnational commercial law we understand certain principles and regulations that are commonly accepted by a number of legal systems (Goode, 2001).

Under arbitration we understand a legal resolution of a dispute outside of the traditional courts. The award given by the arbitrator or the arbitral tribunal can be further enforced in accordance to the national enforcement system. Speaking of the legally value of the arbitral award, it has the same force as a court decision (Arbitration Resources, 2005).

Advantages of arbitration lie in confidentiality, informality and flexibility (the initial agreement between the parties provides for certain procedure-tailoring, e.g. there can be the requirement to have at least one arbitrator, who is an expert in the area of the business of the parties), higher speed (in comparison to ordinary courts that are usually overwhelmed and where there is always the chance to prolong the case by applying to higher instances), lower costs of the procedures, equal attitude to both parties, and final decisions that can be enforced by the courts.

Speaking of credible organisations that are able to resolve commercial disputes between parties from different countries I referred to international commerce arbitration institutions.

By this time the U.K. has earned the reputation of the country that plays the leading role in both, the transnational law creation and the international commercial arbitration.

Advantages of international arbitration are the same as mentioned above plus to unbiased and disinterested judgment, equal situation of both parties under the laws used, in respect to the award rendered in case if the arbitrary institution is internationally acknowledged and settled in the country that is not condemned for corruption.

Arbitration is considered international under such conditions:

- The case takes place in an English court but involves parties from different countries,

- The case is carried out in a different country

- The case is carried out in the U.K. but uses a chosen foreign law (Arbitration, 2005).

Arbitration, including international one, became the possible way of resolving commercial disputes when it was allowed and acknowledged by national laws. Many countries, especially those possessing developed economies, have their arbitration laws that allow arbitration of commercial disputes between companies, provided the companies either:

1. have agreed to arbitration in a contract, before a dispute arose, or

2. have agreed to arbitration in an ad-hoc agreement, after the dispute arose (Hill, 1995).

It is up to either the parties or the chosen arbitration institution to specify a venue for the arbitration. The laws of the venue are then used during the procedures, which of course can significantly affect the proceedings and the final award. The case is that some states do not allow arbitrating certain cases but may allow interference of national courts, all states have somehow different requirements to arbitration agreements (Arbitration Bodies, 2005; Hill, 1995).

For a number of reasons, which will be examined further, the most popular venues for international arbitrations are Paris, France; London, UK; and Geneva, Switzerland. Not leading but still frequently used are Stockholm, Sweden; The Hague, Netherlands; and Vienna, Austria (Hill, 1995). The U.K. in particular did have some problems with national courts’ interference to arbitrage proceedings, but this has changed after the 1996 Arbitration Act, which set effective norms of its operation (Hunter, 2002).

The U.K. contribution to international commercial arbitration

The U.K. arbitration is valued for the accurate, transparent and fair rules that it follows. These rules specify all the details of the arbitrary process.

Thus the procedure of arbitrators’ appointments is based on 1998 ICC Rules art.8, UNCITRAL Rules art.5, UNCITRAL Model Law art.10(2), UK Arbitration Act 1996, ss. 15-16, 17. According to lex arbitri arbitrators are required to possess certain qualifications (International Dispute Settlement, 2004; UK Arbitration Laws, 2005).

Arbitrators appointing procedure is also carefully regulated. If the parties cannot make a decision on appointment of arbitrators, there are certain default procedures that are followed and which do not get questioned by either of the sides. Here are some of the related regulations: UNCITRAL Rules arts. 6,7; Abu Dhabi Gas Liquefaction Co. Ltd. v. Eastern Bechtel Corp. (ADGAS), 21 ILM 1057 (1982); [1982] 2 Lloyds' Rep. 425 (UK Arbitration Act 1950 s.10); Turriff Ltd. v. Sudan (1966), 2 Ned. Tid. Int. R. 202 (1970), the UK Arbitration Act 1996, ss. 17, 18, 19 (International Dispute Settlement, 2004).

The proceeding of the court is monitored by the national courts and the decisions can be sat aside or remitted. This subject will be addressed in more detail later on.

As the greatest contribution of the U.K. to international commercial arbitration I would name the Arbitration Act of 1996. Before this act was introduced the arbitration had little structure and all that was known to the parties ahead of time was the fact that if the parties agree the disputes will be settled by arbitration conducted in accordance to the rules of the ICC or any other body agreed upon. All the further details of the proceeding were expected to be settled after the precedent arises. The 1996 Act changed this and set up a more clear structure of the arbitration proceeding, cleared up its authority and connections with the national courts and the power of their awards, which all has increased the quality of arbitration and trust to the proceedings (Crookes, 2002).

As it was already mentioned the U.K. arbitrary is often carried out by the International Chamber of Commerce, the organisation, which is run by businesspeople from 130 member countries.

The ICC designed standard terms to be used for international shipping contracts, INCOTERMS (Irvine, 2001). As long as those are used, the parties involved can protect their rights, if a dispute occurs, by applying to internationally acknowledged standards. The direct authors of the INCOTERMS are both lawyers and businessmen. The terms are kept update in accordance to fast changing business environment and international affairs. By this time INCOTERMS are so widely used that they are included to contract texts by default (Irvine, 2001).

The importance and benefits of such internationally adopted terms are very high. Although parties involved in international commercial agreement are allowed a wide amount of freedom to settle their own terms of co-operation, there are still strong advantages in using internationally adopted norms and terms, such as the INCOTERMS is in shipping agreements.

First of all, such widely accepted terms would make the negotiations easier, faster and misunderstandings-free since the parties would negotiate on the terms that both are acquainted with. They would be able to study the terms ahead of time, nothing would be lost in individual translation (Goode, 2001) and the negotiators would be able to apply other companies’ experience of how such or the other terms work under certain conditions if those companies operated under the same rules.

And secondly, these terms would make the dispute resolution process faster and easier both for the parties involved and for the arbitrators if a precedent arises.

Thus, summarizing the information given, the contribution of the U.K. to international commercial arbitration includes first of all Arbitrary Act 1996 and the INCOTERMS designed by the ICC, both of which improved the quality of the arbitral proceeding, set solid grounds to the arbitral courts and increased the value of their operation and the awards given. This improved the quality of the arbitration not only in the U.K. but also challenged other countries to improve their level of the arbitrage service and gave the businessmen involved in international commerce the place to find justice.

The role of the U.K. in the harmonisation of international commercial legislation

Since many businessmen are involved in international trade they need legal regulations on international level. In order to achieve such regulations, commercial legislation of many countries has to be brought into harmony. Of course it is doubtful that legal systems of countries as different as Islamic Republic of Iran and France can be harmonised. Moreover, I would even doubt that it should be done. Thus, we do not speak of total international standardisation of commercial legislation, but of finding some terms and frameworks that would be acceptable to majority.

The U.K. actively participates and actually plays a leading part in some initiatives directed at creating a better international legislation environment. Among the proofs is its participation in the European Directive and Hague Conference private international law convention on the subject (Goode, 2001) and many other transnational specialised conferences, seminars, conventions, which is aimed at working out common legalisation base or at least such that would be grounded on the same values.

Effective international trade legal support needs such law practices that are flexible enough to adjust to specific cases and to consider some specific details for better effectiveness. The problem is that although justice needs to be solid and flexible it is far from being so in most countries. The jurisdiction in certain countries is rather questionable and the willingness of governmental institutions to adjust to foreign requirements and co-operate may be even smaller. Thus it became clear that this problem could be solved only through the initiative of businessmen (Irvine, 2001). International arbitrary was the solution and the United Kingdom is among the leaders in dedication to effective arbitrary courts.

It is obvious that domestic legislation of individual countries cannot be the ground for international relations, since each country has its own laws and regulations, which are likely to be different even if they share the same principals. Thus the aim of transnational commercial law and international arbitration is to put up the legislation scheme, which would unite the common principles and adopt procedures, which are agreed on during international conventions and conferences. This way international disputes would be resolved based on commonly shared principles.

During the revision of international cases the tribunal may apply to some domestic legislation provided it is valuable to the transnational commercial law, and if it was used as a model for laws by other countries, especially those involved in the case. This second aspect of international arbitration may be referred to as legislative parallelism (Goode, 2001). This aspect is highly important as it gives the possibility to apply to some norms that are also acknowledged in the countries-origins of the parties and it may also play an important role in gradual improvement of transnational commercial law and creation of transnational legal scheme and procedures.

Thus, this legislative parallelism is also the contribution to harmonisation of the international trade legislative relations. Speaking of parallelism, many countries take Arbitrary Act 1996 and other documents used by the U.K. institutions as models.

The Act 1996 was the first that set the arbitration on the grounds that it presently operates in. The act listed the most important constructive common law details, took away some anomalies that arbitration has previously suffered from, and emphasized that the U.K. law had followed international trends and was determined to continue doing so. Another positive contribution of the 1996 Act is in proclaiming and emphasizing the autonomy status of arbitration and freedom of the parties involved (Hunter, 2002). The Act also encouraged the development of new arbitration rules by the London Court of International Arbitration, the City Disputes Panel, the AIDA Reinsurance and Insurance Arbitration Society ARIAS (UK) and the Chartered Institute of Arbitrators (International Dispute Resolution, 2004). Therefore, we see that the Act did not only proclaim the new rules and framework of the arbitration but has also prompted the related institutions to review their settings and improve their situation following the model of the Act.

The 1996 Act has forced or demonstrated a new, more respective and serious attitude of national courts to arbitration, nevertheless, this attitude was and still is rather careful. The following two court decisions are presented in order to illustrate how the English Court of Appeal demonstrates the balance between respecting and enforcing the disputes resolution through arbitration and giving a careful consideration to the arbitration awards in order to avoid abuse of process (Hunter, 2002).

The Capital Trust Investment Ltd v Radio Design AB and others [2002] EWCA Civ 135 case demonstrated the growing credit of the arbitral courts along with same very careful attitude to the arbitral awards by national courts, in this case the Court of Appeal, and their precise control of the accurate order in the jurisdiction procedures. The defendant needed the decision in favour, and after the application for a stay to the Court of Appeal was unsuccessful (The Court of Appeal explained its refusal by inaccurate order the proceedings), the defendant applied to the High Court Master, this time successfully. Eventually, the defendant did not express a willingness to apply to the national court instead of an arbitral tribunal (Hunter, 2002), which demonstrates the growing influence of the arbitral tribunals.

In another case, Downing v Al Tameer Establishment and another [2002] EWCA Civ 721, the defendant refused the fact of having signed a contract between him and the claimant. When the claimant started the court proceeding, the defendant demanded the case to be taken to an arbitration on the basis of the fact that the contract included an arbitration agreement. The most interesting is that the case was raised by the fact that the defendant has consistently refused that there was such a contract. The Court of Appeal recognised the power of the arbitration agreement within the contract, existence of which was claimed by the claimant, thus the case was to be taken to the arbitration (Hunter, 2002).

Thus, we see that after the 1996 Arbitrary Act was enforced in the U.K., the power and influence of the British arbitration grew and came to a state of productive balance between the national and the arbitral courts. Benefits of such balance both to the U.K. arbitration and to the international trade and legal matters harmonisation will be discussed later on.

The U.K. - the venue for dispute resolution

When disputes between partners from different countries occur, both of the sides refuse to resolve the issue in the courts of either one of the involved countries, thus they prefer to seek justice in a third country, which would approach and solve the problem using some mutually acceptable legislation.

The United Kingdom often becomes the venue where such disputes get resolved. Of course there are certain reasons for it. The main of them are:

Firstly, the UK has a strong worldwide popular commercial legislation, which pays special attention to international arbitration.

The U.K. arbitration used to suffer from some problems that are solved at the moment, although there are some that are still there. The Arbitration Act 1996 brought in a lot of positive to the work of arbitrators in the U.K. Although the Act has not brought any drastic changes to English arbitration law, it has balanced the law and made it more democratic and more reliable for parties (Hunter, 2002).

Secondly, arbitration costs in countries other than the UK are often rather high (Irvine, 2001).

And finally, the UK has a good reputation in providing objective and fair arbitration. The very principles of commercial environment in the U.K. rest on such main points as: free incorporation, limited liability and minimum external interference (Irvine, 2001). The climate in the U.K. is most entrepreneurship friendly, as we can see, and encourages self-regulation between businesses. At the same time the legislation in the U.K. is rather solid and government tries to monitor arbitration proceedings, so that they do not step the line between the unofficial environment and abuse of justice and the very process (Hunter, 2002).

The U.K. commercial arbitration system is particularly interesting to international businessmen, who seek both reliable and flexible organisation outside their countries to solve their disputes.

Such arbitration institutions as the London Court of International Arbitration (LCIA) and the International Chamber of Commerce – International Court of Arbitration (ICC) are the ones that are most popular to consider the international disputes. The United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules often make up the legislation base used in such cases (Arbitration, 2005).

Ratification of international code of practice, conduct, conventions and legislations relating to arbitration

Since, in this paper I am analysing the way the United Kingdom contributes to the harmonisation through legislation, it is essential to point out that the U.K. international commercial arbitration adds value to its awards by adopting internationally acknowledged resolutions, international conventions, codes of practice, and model laws.

Currently the U.K. arbitration is based on the following documents: Hague Rules 1921, Foreign Judgments Act 1933, UN Convention on Contracts for the International Sale of Goods 1980, Sale of Goods Act,; New York Convention on the Enforcement of Arbitral Awards 1958, European Insolvency Proceedings Convention, UNIDROIT Mobile Equipment Convention, Vienna Sales Convention,; Arbitration Act 1996, Bills of Exchange Act 1882, Factors Act 1889, and Sale of Goods Act 1893 (Goode, 2001).

The references to international conventions are highly important for acknowledgement of the international commercial arbitration courts awards. Since the type of arbitration analysed is the international legislation act, it should be carried out in accordance to the current needs of global markets and international relations. It should rely on values, regulations and procedures that experts from many countries acknowledge as fair and effective.

As for the use of model laws, these are especially designed to be used by governments as the models for their laws upon the willingness of a state to do so. It is the matter of every government whether they what to use the model laws and how much they what to chose its norms if they decide to adjust it to their national requirements.

An example of such a model law in the field we are interested in would be the UNCITRAL Model Law on International Commercial Arbitration. At first the U.K. considered the model inferior to the laws it already had at that moment, but six years later the situation changed and the model was taken into account, which resulted in Arbitration Act 1996, drafted by Mr. Geoffrey Sellers.

Unfortunately, not everything is perfect in the field of commercial legislation in the U.K. Thus state commercial laws are often old and need changes. For example the Bills of Sale Acts date back to 1878-1891, the Bills of Exchange Act - 1882, the Factors Act - 1889, and the Sale of Goods Act - 1979 is only a slightly changed version of the Sale of Goods Act 1893 (Goode, 2001). Therefore, there is surely some updating work to be done. We cannot try to improve our alternative legislation procedures and international laws if our national laws are neglected to such an extent.

Apart from being old, the U.K. legislation also has some other problems. Thus, the laws that regulate cross-border trade are condemned to be confusing. Goode suggests that this comes from the complex, inconsistent and impractical international trade laws of the EU. Certainly this influences the U.K., therefore, it would be good to work on mutually agreeable clear cross-border trade law.

Goode believes that partially the problem is in our parliament, which is more competent in politics than in the needs of modern commerce, and claims that the U.K. legislation is still considered to be so effective only due to high quality of our judges and their sensitivity to the needs of businesses and willingness to be flexible (Goode, 2001).

Thus considering the problems the U.K. has on the path to a better international commercial legislation, it urgently needs a modern commercial law, which would include such aspects as cross-border trade in the present state of international affairs and also aspects related to new types of international co-operation: investment securities, electronic funds transfers, etc (Goode, 2001).

Another thing to be mentioned in regards to international commercial legislation of the U.K. is the international code of practice.

First of all, I would like to point out that a code is in a number of ways better than an ordinary legislation. It can be compared to a summarizing document of main principles and rules in a certain field – international trade legislation in our case. The act is designed by experts in this specific field or at least through consultations with them. The content of the acts is also better in quality, because its authors, the experts are better acquainted with real situation, are free from parliamental pressure, and thus can take their time for consultations, studying somebody’s experience and jurisdictions and finally produce a readable text with real meaning.

An example of an act in our field is the Arbitration Act 1996. The Act is very popular for its clarity and focus on principles and rules that are most important for arbitration (Goode, 2001).

As it was previously said, clarity and unofficial style is one of the advantages of arbitrary courts. The same concerns the legal framework that the arbitrators use, where the act plays a very important role.

All participants of the 2000 Department of Trade and Industry seminar supported the idea of a commercial code and said they wanted it to finally bring “clear consensus in favour of legislation, not merely a kind of Highway Code” (Goode, 2001).

The conclusion from this section is that the U.K. international commercial legislation framework and procedures are highly respected in the world even though the experts know that the very legislation of the U.K. needs some updates to the contemporary trading situation and should provide better basis for co-operation with other legislation systems.



The U.K. contribution to settlements, arbitrary awards, recognition and enforcement

The contribution of the U.K. to the matter of fair and convenient arbitrage lies in being the leading supplier of such service and setting the example for others. The U.K. arbitration system is created and constantly being improved to be fair, convenient, and effective for the parties involved.

I believe the critical approach to the quality of their arbitration system is one of the biggest advantages of the U.K. in this sphere, as it allows it to be the most popular venue even though there are some problems with national commercial legislation, which were mentioned above.

Listing the U.K. contribution in this sphere I would emphasize the balance in the co-operation between the arbitral and national courts. This is one of the positive changes brought by the 1996 Arbitrary Act. The Act granted the arbitration certain autonomy and put its relation with the national court system into balanced controlled co-operation and provided for the two important aspects characteristic to the U.K. arbitrage: unbiased flexible judgment and close control of the quality of the process. The national courts of the U.K. are authorised to acknowledge and enforce arbitration agreements, to appoint arbitral tribunal members if this could not be done by the parties themselves, to compel the production of documentary and witness evidence, and finally to enforce the award (Crookes, 2002; Hunter, 2002).

It is very difficult indeed. The U.K. national courts are authorized to set aside or remit an award given by the arbitral court if an excess of jurisdiction or a lack of due process occurred. The can also sometimes appeal against the arbitrator's decision if the decision goes against the English law (Hunter, 2002).

Thus the national court representatives have to consider their decision very carefully, because if they do notice a serious violation of a due process and remit the award, it may have very serious consequences. The confidentiality of the parties under the arbitral proceeding will be lost, the respect to further decisions of arbitrators will be decreased, and the reputation of the U.K. both as the best venue for international commercial arbitration and as one of the world's leading trading states will be damaged (Hunter, 2002). Similar consequences would take place if the national court ignores the violations and acknowledges the unlawful award. Thus this balance of control and autonomy is the best way to facilitate fair and accurate judgment, because all the sides involved in decision making here will be forced to be most competent and fair under such a pressure of control and possible consequences to their failure.

Many countries still struggle finding their balance between the authority of national and arbitral courts. I think that the U.K. is closer to the ideal than any other country, thus this balance scheme can be taken as a model for considering somebody’s experience on the way to designing their own effective framework.

Speaking of the service that the arbitrage system of the U.K. provides to the parties, I cannot avoid mentioning the level of service taken for standard in the U.K. For example, one of the leading English arbitrary institutions, the LCIA, provides the international commerce arbitrage with high level of convenience for the parties – they can easily find out about their opportunities from the organizational web-site (http://www.lcia-arbitration.com/arb/uk.htm) and choose the number of arbitrators, the venue and language of arbitral proceeding, and the national legislation of which country/-ies will be considered (Arbitration; Rules, Clauses and Costs, 2005). The organization provides detailed information on what the claimant should do in order to initiate the proceeding. Further instructions to both parties are also given on the web-site.

The arbitrators are approved by the arbitrary institution based on their resume and their agreement to their rights and duties. The appointments to the tribunals are also carefully considered, so to avoid any prejudice or such a suspicion (Arbitration; Rules, Clauses and Costs, 2005).

If one needs to hear the numbers, I would like to say that every year London carries out up to 4,000 international disputes, specialization of which vary from distribution agreements to employment, intellectual property, international boundary disputes, joint ventures, professional negligence and technology transfer, etc. About 90% of disputes carried out by international arbitral organizations in London have at least one party not placed in the U.K. (International Dispute Resolution, 2004) and over 40% of such cases handled in the U.K. have both foreign parties. This demonstrates how popular England is among the businesspeople seeking justice to their foreign trade related disputes.

Thus, the contribution of the United Kingdom’s to the international commerce arbitration standards can be shortly summarized in an effective balance between the control of the national courts and autonomy of the arbitral, the service provided by the latter and the dedication of the U.K. institutions to constantly question the quality of their legislation and gradually improve. Now it is the term to update the numerous national laws, which we have mentioned as one of the U.K. legislation system failures.

Conclusion

English laws have always been sensitive to commercial needs. The jurisprudence system in the U.K. did not only create a transparent and solid scheme for legal procedures, but also encouraged a self-regulation in business environment. When the self-regulation cannot solve a problem there are always institutions that are trusted to judge. Arbitrage plays a particularly important role for businesses, both English and foreign. Due to its effective legislation and practices, international respect and acknowledgement the U.K. became so popular among businesses operation internationally and seeking justice in their commercial disputes.

Particular documents from legal base that the U.K. arbitration refers to in its work, among which the Act 1996 is the best example of progressive thought and devotion to a better jurisprudence system, are often taken as model by other countries in order to develop their own successful structure.

The U.K. is currently the most popular venue for international commercial arbitration because this state provides the most effective climate for fair arbitration. The formula of the current success lies in the pressure of control and responsibility, wise level of courts intervention, the effective legislation based on law models, conventions and acts related to the subject, references done to internationally accepted business contract terms, excellent reputation of the U.K. international arbitration, the authority of the large organisations that operate here and, finally, the high arbitration service provided.

Bibliography

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