Day 8 – Q 5.What are the forums available to address various trade related disputes? Is the regulatory environment robust enough to ensure that such disputes don’t arise? Critically analyse.
5. What are the forums available to address various trade related disputes? Is the regulatory environment robust enough to ensure that such disputes don’t arise? Critically analyse.
विभिन्न व्यापार संबंधी विवादों को हल करने के लिए कौन से फोरम उपलब्ध हैं? क्या यह सुनिश्चित करने के लिए नियामक वातावरण काफी मजबूत है कि इस तरह के विवाद उत्पन्न न हों? समालोचनात्मक विश्लेषण करें।
The dispute arises when a member/government believes another member/government is violating an agreement related to trade and commerce. Due to increased Cross border trade, investment, e-commerce there is a sheer necessary for dispute resolution mechanism.
Various forums to address trade related disputes:
- World trade organization (WTO): The main objective is to help producers of goods and services, exporters and importers conduct their business.
- United Nations commission on international trade law (UNCITRAL): To promote modernization and harmonization of international trade law.
- United Nations conference on trade and development (UNCTAD): It is dealing with trade, investment, and developmental issues. It formulates policies related to all aspects of trade, aid, transport, finance and technology.
- International chamber of commerce (ICC): ICC has three main activities; rule setting, dispute resolution, and policy advocacy.
- International center for settlement of investment disputes (ICSID): International arbitration institution established for legal dispute resolution and conciliation between the international investors.
- Permanent court of arbitration (PCA): This has jurisdiction of disputes based on PCA founding documents or based on bilateral and multilateral treaties.
- Regional organizations: such as G20, ASEAN, BIMSTEC, OPEC, APEC, OECD, NAFTA have protocols related to resolving trade disputes.
- Commercial courts in India: Commercial Courts Act provides for constitution of commercial courts, commercial division and commercial appellate division in high courts for adjudicating commercial/trade related disputes.
- Alternate Disputes Mechanism: ADR has been given preference to solve commercial and trade related disputes in India over the years and has also been given legislative backing. Example: Under section 442 of the Companies Act, 2013 etc.
The regulatory environment is not robust enough to ensure the disputes do not arise:
- If a country fails to respond to forums’ plaintiff, then country can take measure to offset any harm, such as blocking imports through tariff and non-tariff barriers.
- All countries debate on their vested interests to guard their resources and welfare of their own people.
- Chance of non-consensus of multilateral agreements by member countries, this lead to prolonging of the issue.
- Lack of technical expertise to resolve the disputes especially in India’s case leading to biased/unsatisfactory outcomes.
- Legal routes: The order made by these dispute forums can be challenged in judicial courts in member countries which damages the credibility of these forums in the longer run. Ex: Antrix corporation and Devas media case.
- Non-Binding: Majority of these forums’ verdicts are non-binding and also these do not have any authority to implement their decisions there by eroding their significance.
- Conflicting provisions: International /regional trade agreements and member countries trade regulations/laws have conflicting provisions there by creating various complications/disputes.
- Uniformity: There is a lack of uniformity among various forums and no uniform acts to guide them. It is based on arbitration and party with better arbitrator wins.
The regulatory environment is robust to deal with trade related disputes:
- Can establish credibility and transparency in the market.
- Increased growth and development of the countries with mutual cooperation and trust.
- The framework goes on the principle of equitable, fast, effective and mutually acceptable decisions.
- For instance, World trade organization has membership of 164 countries, i.e. all leading countries involved in international trade. So any disputes with regards to trade can be resolved through the arbitration process under Article 25 DSU. Likewise, majority of regional and international trade forums have their own dispute resolution mechanism to deal with such cases.
Note: The question does not specify any particular regional or nation specific forums and it is open ended. So include few India related issues and forums along with global ones.
There are no framework that-one size fits all. Alternative dispute resolution such as arbitration, mediation, conciliation, negotiation and collaborative law can offer a means of settling disputes without resorting to commercial litigation, aiming to resolve disputes in a way that is less expensive, faster and more predictable than the adversarial litigation process.