Authored By: Thatego Phala
University of Johannesburg
INTODUCTION
This article will evaluate how the international trade laws shape the world commerce. International law refers to the collection of laws that are accepted between countries as the laws that will govern the activities that they engage in with one another.1International laws are established to deal strictly with issues that would concern countries as a whole, rather than focusing on the rights of the individual citizens that live in those countries. The international laws ensure smooth operation of the trade throughout the world, enhancing the global economic growth by promoting trade agreements , opportunities and reducing disputes however this raised the critics of unfair treatment between developed and less developed countries, being against national sovereignty, and promoting corporate entities more than human rights. Even though international trade law has enhanced the global economy and trade, it should also align economy needs with human rights to ensure smooth cooperation between humanity and corporate entities. This issue is important in the current legal era because it is the core of tension in global commerce. The objective of this article is to explore the influence of international trade law on the global economy.
Legal provision
The International trade law has played an influential role in the World Trade Organization (WTO) agreements , General Agreement on tariffs and trade (GATT) eliminating the tariffs and the trade barriers , enhancing Trade related aspects of intellectual property rights (TRIPS), Dispute settlement understanding ( DSU) which assist in eliminating the disputes between trading countries, promoting fairness by introduction of Most Favored Nation (MFN) which ensures that all countries have trade advantage promoting equality, it also promoted communication so that countries can communicate any trade changes they make to promote predictability.
These organizations assist the world economy by creating competitive markets and flow of money throughout the world by connecting countries and governing their powers to ensure fair operation in the trade market. As a result, jobs are created in developed and less developed countries and allowing businesses to enter into international markets and expand their operations; however international trade laws are deemed to favor rich countries because of benefiting those countries more, for example World Trade Organization received critics for disadvantaging poor countries by encouraging developed countries to preserve and protect their agriculture whilst putting pressure on less developed countries to open and spread their agricultural products to developed countries , therefore critics was that this would result in food insecurity in developing countries because of more food being shipped out.
International trade laws on Trade Related Aspects of Intellectual Property Rights (TRIPS) received criticism for unfairness because some laws do not allow developing countries to produce some medications that are made in developed countries which result in lack of medications in poor countries due to strict patent protections and high cost of purchasing and importing therefore scholars advocate for the reforming of the international trading laws on trading and address the issues and challenges that are faced in the modern commerce era.
Case law
in the case of International Trade administration commission v Scaw south Africa (pty) LTD.2 it involved the anti- dumping duties which were charged on steel wires products from the UK Bridon international Ltd so that scaw south Africa (Pty) Ltd could be protected as a local manufacturer so that it does not experience harm. Anti-dumping duties are the tariffs charged on foreign businesses so that their selling prices does not be below market values which can impact domestic companies bad and result in loss of profit.
Parliament ratified South Africa’s membership of the WTO on 2 December 1994 and approved the Anti-Dumping Agreement on 6 April 1995. In Progress Office Machines,22 the Supreme Court of Appeal correctly concluded that the Anti Dumping Agreement is binding on the Republic in international law, even though it has not been specifically enacted into municipal law. In order to give effect to the Anti-Dumping Agreement, Parliament has enacted legislation and, in turn, the Minister has prescribed Anti-Dumping Regulations.23
Applicable law
WTO rules on anti -dumping [26] International rules on anti-dumping duties are contained in the Anti-Dumping Agreement. product is to be considered as being dumped when it is “introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product destined for consumption in the exporting countries .
Issues
This case raises three primary issues. They are: (a) whether it is in the interests of justice to entertain an appeal against a temporary restraining order granted by the High Court; and if it is, 9 (b) whether it was appropriate for the High Court to grant the restraining order; and (c) what relief, if any, should be granted.
Final judgment
Order [115] The following order is made: (a) The application for leave to appeal is granted. (c) The appeal succeeds. (d) (e) (f) (g) The interdict granted by the North Gauteng High Court, Pretoria on 5 January 2009 is set aside. In place of the order of the High Court the following is substituted: “The application is dismissed with costs including costs of two counsel.” The International Trade Administration Commission is ordered to pay the wasted costs of SCAW South Africa (Pty) Ltd occasioned by the abortive application for the amendment of its Notice of Motion. The costs shall include costs of two counsel. SCAW South Africa (Pty) Ltd is ordered to pay the costs of the application for leave to appeal and of the appeal of the International Trade Administration Commission and of Bridon International Limited which shall include costs of two counsel.
Impacts
This order impacted south Africa scaw indirectly for example national trade laws are usually used by the domestic markets however when it comes to international trade laws it limit local municipalities to extend their trade market internationally
Example
Nandos it is south African food company and it is limited to enter the international markets and trade laws can impact their company of rising funds and getting investors which means that the only option to have funds and enter international markets it is through crowdfunding’s in which it is very hard to get and the only way to get that fund can be through credit facilities and bank loans. Bank loans offer both short-term and long-term options with fair and reasonable repayment terms. Long-term loans typically extend over four to ten years and are commonly used for larger investments and expansion projects. Nando’s can utilize this type of loan to secure capital to enter new international markets. The benefits of bank loans and credit facilities are that they are accessible whenever a company has strong financials3. Another viable financing method is export credit financing. Nando’s can use this to manage the financial risks associated with investment and international trade, this financing method includes government-backed guarantees, which reduce the risk to lenders and offer more favourable repayment terms. Furthermore, due to government involvement, export credit financing typically comes with lower interest rates. This financing method is designed specifically for businesses like Nando’s that are engaged in international operations. Both financing strategies would provide Nando’s with the necessary capital to expand globally while mitigating financial risks
DTIC’S exports\Investment assistance
DTIC’s offers investment promotion support which offers market access support, which can help Nando’s to identify opportunities and create relationships with their foreign customers and provides guidance and funding support for South African companies seeking to establish operations abroad, facilitating smoother market entry and reducing financial risk. Nando’s can participate in trade exhibition shows to market their products with the financial support of DTIC in order to gain insights into international or new markets. The African Continental Free Trade Area framework includes trade and investment support programs for businesses expanding within Africa, Nando’s can use this opportunity to expand in African markets with lower costs. Export Credit Insurance Scheme could help Nandos reduce risks associated with exporting products, This protects Nandos against non-payment risks from international customers and business partners. It ensures financial security when dealing with foreign markets. It could also promote the export business and generate more money to fund its expansion plan Grants and incentives assist businesses financially which are offered by the DTIC exports, the South African Department of Trade, Industry and Competition offers financial incentives to support businesses expanding into foreign markets. Nando’s can leverage these programs to offset expansion costs and to reduce its tax liability, providing access to affordable financing for its international trade activities. This helps Nando’s expand its global footprint while managing its cash flow.
Crowdfunding is a method of raising capital by means of online platforms to fund the expansion and development of businesses potentially into global markets. Crowdfunding has been popularized as an effective method for raising capital to fund the businesses’ intention to expand into global markets. It utilizes online platforms to connect the business to potential investors. It can be greatly useful for Nando’s as they have a large following with their numerous outlets present in South Africa, Australia and the UK. Nando’s could use equity crowdfunding and reward-based crowdfunding among other forms of crowdfunding. Equity crowdfunding is a form of crowdfunding that offers businesses the opportunity to obtain funding and raise capital by offering equity or portions of the company to investors by means of online platforms. These online platforms connect the business to potential investors. In the case of Nando’s, this could mean opening up a portion of the business to global investors and in return Nando’s receives funding to support the expansion of franchises, helping them tap into the global market and open outlets in different locations around the world.
Analysis
International laws mechanisms its very limited and the neutral authorities which can enact rules is very different from the national authorities and can be impacted by the political reasons. Moreover the conflict occurs due to national sovereignty and international norm because states likes to be ruled by their national laws, resulting in dissatisfaction from the international laws and there is rising of inconsistency in the international laws , the customary laws with the modern laws often create tension leading to the legal uncertainty. States that are superpowers can choose their own laws over the international laws if they believe that they conflict with their beliefs and the laws made by international laws, many scholars are of opinion that these laws benefit the powerful countries that have power and influential in the world economy resulting in the unfairness, hindering the justice.
The jurisdiction of international court can be seen as limited because these courts usually get the permission and approval from the states to act, this can result in many organizations getting away of their cases and not be held accountable for their damages and breaking the rules however this can be influenced by many factors such as low finance allocatiom and resource to operate their functions , for example to conduct investigations , hold cases and prosecute and other relevant fees that needs financial power, these lead to international laws not having the modern technology to influence trade In a good way by operating functions in cybersecurity and AI to solve and protect the world commerce because the modern world revolve about the digital spaces.
Way forward
The way forward of eliminating the challenges faced by the international law it would be to strengthen the judiciary system at the international level and promote equality with reference to economy laws, by not favouring the superpower economy and hinder the economy of developing countries and They should uplift the organizations such as world trade organization so that it can have many resource to promote healthy trading between the organizations, as the world revolve around technology, the law should also be improved in the aspects areas of the cyber security and AI ethics and other organizations must be allowed to form part of treaty negotiations to create diversity of thoughts in the negotiation to eliminate favourism and hold organizations accountability in the the corporate and finance however the decision that should be taken must promote the human rights by aligning human rights with corporate rights within countries
Conclusion
This Article has explained how the international trade law is influential in the commerce globally, considering the world trade organizations which assisted manuy countries to trade internationally and improve their economies and reducing disputes with efficient communications, but also this article exposed the challenges brought by the International trade laws on developing countries which Iimit the developing countries businesses from entering in the international Markets, The majority of decisions in the international trade laws are influenced by the political powers which hinder developing countries with less power. The issue that must be addressed to create a better environment in international trade laws is inequality , favourism, and alignment of economic values with the human rights to create fairness environment.
Biblography
Journal article
- 1.Kennedy, Matthew, ‘The Sources of International Trade Law’, in Daniel Bethlehem, and others (eds), The Oxford Handbook of International Trade Law (2e), 2nd edn, Oxford Handbooks (2022; online edn, Oxford Academic, (19 Dec. 2022)
- Brent Dilley , South Africa Has a New Incentivised Crowdfunding Platform to Make a Change, (Jan. 30, 2018)
CASE LAW
- 1.SCAW South Africa (Pty) Ltd v The International Trade Administration Commission and Others, North Gauteng High Court, Pretoria, Case No 48829/2008, 5 January 2009, unreported,(South Africa)
1 Kennedy, Matthew, ‘The Sources of International Trade Law’, in Daniel Bethlehem, and others (eds), The Oxford Handbook of International Trade Law (2e), 2nd edn, Oxford Handbooks (2022; online edn, Oxford Academic, (19 Dec. 2022)
2 SCAW South Africa (Pty) Ltd v The International Trade Administration Commission and Others, North Gauteng High Court, Pretoria, Case No 48829/2008, 5 January 2009, unreported,(South Africa)
3 Brent Dilley , South Africa Has a New Incentivised Crowdfunding Platform to Make a Change, (Jan. 30, 2018)
