COMMERCIAL LAWS ARE NOT EFFECTIVELY ENFORCED IN THE EU
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Introduction
Generally, commercial law can be defined as the law that governed the purchase and selling of goods and services during the exchange of those goods and services commonly referred to as a trade[1]. Other scholars such as Clarke, Hooley, Munday, Sealy, Tettenborn, & Turner (2017) have defied commercial law simply as the laws that regulate commerce[2]. Commercial laws are considered as one of the essential rules of law. This is because commercial disputes, also known as disputes that arise during the exchange of goods and services, have been said to arise frequently not only in the UK but also in other parts of the world. Commercial laws protect the parties involved from any manipulation or unfairness. These laws in the UK are enforced through various bodies.
It is worth noting that the term enforcement encompasses the discovery, the deterrence, or punishing individuals who violate the stipulated laws governing the community or rehabilitation of the subjects in order to reinforce either positive or deter traits that go against the stipulated laws[3]. Enforcement has also been defined as the act of compelling the subject to comply with the stipulated laws by introducing harsh repercussions.[4] Commercial law in the UK is enforced under the sales of goods Act of 1979 and the unfair contract term Act of 1977. The sales of goods Act cover the property law. Other law enforcement bodies that govern commercial law include the competition law and the European Union law, which regulates business transaction that involves two or more nations under the European Union.
The history of commercial law in the UK can be derived from the various form of trade that took place during the pre and colonial periods. For instance, laws such as Lex Mercatorian, also known as the law of merchant was a commercial law used across European nations during the pre-colonial trade[5]. From the pre-colonial laws to date, the UK commercial law has evolved to govern the growth and development in the country’s economic sphere. However, different scholars have had a different opinion that enforcement of UK commercial law has not been as dynamic in meeting changing needs as expected and as discussed in this paper.
The main research questions being reviewed in this paper include:
- Is the enforcement of commercial law in the UK ineffective?
Chapert2: Historical Development of Commercial Law in the UK
The historical development of commercial law can be viewed from the development of the merchant law and the rise of consumerism as analysed below
Lex Mercatorian (The merchant Law)
It is worth noting that the modern merchant law in the UK has its origin in the merchant law that was famously used during the trade in the middle ages[6]. The merchants were known to travel with their goods around the European nations to look for markets. When disputes arise during the course of trading, their differences were settled by special courts given that mandate. One characteristic of the courts included the fact that the judge and the jury were also merchants. The merchant courts had the skills of deciding cases amicably and applying evidence. The legal set up of ruling of trade cases led to the development of other components of the legal courses to protect the rights of various parties such as the Bill of exchange among other elements of the ruling that were developed during this era[7]. The law was applied equally by the merchants through the application of wisdom to reach a ruling that left both parties happy.
However, despite the fact that the merchants showed great skill in organizations and jurisdiction, the English legal system has been accused of having failed to create a substance legal framework that could have governed trade during this significant trade era in history. History records that the transition of Merchant law to codified commercial law is an era that has been documented to have massive flows in the way the law was enforced[8]. The codification of merchant law from to commercial has been described by scholars to have led to a complex system of reinforcement with some aspects of conflicts with other legal laws[9]. However, scholars have also documented the positive aspects of codification of the merchant laws to have resulted to important constituents of commercial claw such as the Bill exchange Act of 1882, and Sales of Goods Acts of 1893[10].
An example of a negative aspect of codification of the merchant law into international entails the Uniform law for international sales. The uniform international sales law has received various backlash due to the retrogressive nature of the international legal system. The adoption of law made it harder for the law to be enforced because every international body or country expects its jurisdiction to be adopted while conducting any transaction within its jurisdiction. Uniform international meant that the English law was considered to be superior to other laws[11]. The assumption of the superiority of the English law over other laws has been coded to be the greatest obstacle to the reinforcement of commercial law during this era and even the eras that followed
Chapter 3: Effectiveness of the enforcement of Commercial Law
Competition of Law
One of the statics aspects that have bee criticised by legal scholars entails the aspect of competition law. Competition law refers to the laws and regulation that have been put in place to regulate the market in order to bar practices that can promote monopoly[12]. It is worth noting that the codification of the merchant law into the commercial law saw the competition law being enacted and enforced as trade practices law. The law generally is meant to protect the small fish players in the market from practices done by the big fish players, which can make the small companies being wiped out. Hence, to avoid monopoly, competition law reinforces fair market practices in order to level the ground for both the big and small companies. Currently, in the UK, competition law is reinforced by both private and public bodies. Historically, the competition law was instituted after it was established that some big market wins were devising practices that can help them remain as the main players in the market[13].
This was not only witnessed during the merchant’s trade but also in later years. The business practices done by market players, the government, and the guild encountered great scrutiny in order to bar any shenanigans that could lead to a few players dominating the market. The competition law in the UK is meant to regulate the UK market and protects it’s from foreign dominance[14]. The competition law also houses the governing regulations such as Tariffs and Trade Acts. One of the major Scrutiny of competition law by scholars entails the shortcoming of the law that has been linked to the law favouring the minority. The law has been accused of curtailing competitive markets and hence interferes with the concept of the invisible hand of the market. The term invisible hand of the market was coined by Adam Smith in his attempt to champion free markets[15]. For instance, competition Act of 1998 generally restrict practices by corporate organisations that operate within the UK jurisdictions to act in a manner that might lead to market domination[16]. These can include colluding to form cartels.
References
Bradgate, R. and White, F., 2001. Commercial Law Legal Practice Course Guide.
Bradgate, R. & White, F. (2011) Commercial Law. 1ST edn. Oxford: Oxford University Press
Clarke, M. A., Hooley, R. J., Munday, R. J., Sealy, L. S., Tettenborn, A. M., & Turner, P. G. (2017). Commercial law: Text, cases, and materials. Oxford University Press
Calliess, G. P. (2017). Lex mercatoria. In Encyclopedia of Private International Law (pp. 1120-1129). Edward Elgar Publishing Limited.
Carter, D. L. (2004). Law enforcement intelligence: A guide for state, local, and tribal law enforcement agencies (pp. 136-37). Washington, DC: US Department of Justice, Office of Community Oriented Policing Services, p.18
Goode, R. (2010) Commercial Law. 4th edn. London: Butterworths
Kai-jian, Y.A.O., 2008. On Adam Smith’s” The Invisible Hand”[J]. Journal of Renmin University of China, 4.
New Law Journal – Volume 123, Part 1 – Page 358, 1974
Sealy, LS & Hooley, RJA (2009) Commercial Law Texts Cases and Materials. 4th edn. Oxford: Oxford University Press,
[1] Goode, R. (2010) Commercial Law. 4th edn. London: Butterworths, p. 8
[2] Clarke, M. A., Hooley, R. J., Munday, R. J., Sealy, L. S., Tettenborn, A. M., & Turner, P. G. (2017). Commercial law: Text, cases, and materials. Oxford University Press, p.36
[3] Sealy, LS & Hooley, RJA (2009) Commercial Law Texts Cases and Materials. 4th edn. Oxford: Oxford University Press, p. 3
[4] Carter, D. L. (2004). Law enforcement intelligence: A guide for state, local, and tribal law enforcement agencies (pp. 136-37). Washington, DC: US Department of Justice, Office of Community Oriented Policing Services, p.18
[5] Calliess, G. P. (2017). Lex mercatoria. In Encyclopedia of Private International Law (pp. 1120-1129). Edward Elgar Publishing Limited
[6] Sealy, LS & Hooley, RJA (2009),p.15
[7] Sealy, LS & Hooley, RJA (2009),p16
[8] Bradgate, R. and White, F., 2001. Commercial Law Legal Practice Course Guide.,p.44
[9] New Law Journal – Volume 123, Part 1 – Page 358, 1974
[10] New Law Journal – Volume, p.358
[11] Sealy, LS & Hooley, RJA (2009),p.19
[12] New Law Journal – Volume, p.356
[13] Bradgate, R. & White, F. (2011) Commercial Law. 1ST edn. Oxford: Oxford University Press, p.405-430
[14] New Law Journal – Volume, p.357
[15] Kai-jian, Y.A.O., 2008. On Adam Smith’s” The Invisible Hand”[J]. Journal of Renmin University of China, p.4.
[16] Bradgate, R. & White, F. (2011), p.423