EU membership of the WTO: international trade disputes and judicial protection of individuals by EU Courts

The European Union (EU) is embedded in a pluralistic legal context because of the EU and its Member States’ treaty memberships and domestic laws. Where EU conduct has implications for both the EU’s international trade relations and the legal position of individual traders, it possibly affects EU and its Member States’ obligations under the law of the World Trade Organization (WTO law) as well as the Union’s own multi-layered constitutional legal order. The present paper analyses the way in which the European Court of Justice (ECJ) accommodates WTO and EU law in the context of international trade disputes triggered by the EU. Given the ECJ’s denial of direct effect of WTO law in principle, the paper focuses on the protection of rights and remedies conferred by EU law. It assesses the implications of the WTO Dispute Settlement Understanding (DSU) – which tolerates the acceptance of retaliatory measures constraining traders’ activities in sectors different from those subject to the original trade dispute (Bananas and Hormones cases) – for the protection of ‘retaliation victims’. The paper concludes that governmental discretion conferred by WTO law has not affected the applicability of EU constitutional law but possibly shapes the actual scope of EU rights and remedies where such discretion is exercised in the EU’s general interest.

Economic evidence in regulatory disputes: revisiting the court-regulatory agency relationship in the US and the UK

This article examines the issue of the appropriate scope of review of economic evidence enshrined in the discretionary assessments of utility regulators in the US and the UK. It advances a balance of institutional competencies approach to the question of the degree of deference owed to the regulatory agency’s economic assessments. In doing so, it revisits the doctrinal positions advanced in the US and UK for the substantive review of administrative discretion, so as to become attuned to the challenges posed by economic evidence. Drawing on insights from political science and economics, the suggested approach illuminates the institutional disadvantages of the courts that may warrant a high degree of deference. At the same time, however, it remains sensitive to the polycentric elements of regulatory disputes as well as to a number of institutional realties that may attenuate the weight of such comparative institutional disadvantages.

Achieving satisfactory contractual terms for the engineer's role

An international survey of clients, consultants and contractors produced wide-ranging data on the views of users of the FIDIC form of contract. The purpose of the survey was to elicit views on a range of issues, prior to revising the model form, to ensure that the contract drafters produce a form that is satisfactory for its users. Those questions that focus upon the role of the engineer have been subjected to detailed statistical analysis. The analysis shows that, contrary to popular belief, the views of contract users from common law jurisdictions do not differ from those in civil code jurisdictions. The engineer’s role is not generally perceived as neutral in the contractual relationships between clients and contractors. Contractors would prefer someone other than the engineer to be the first-line settler of disputes in contracts.

Construction contracts: law and management (3rd edition)

This book is aimed primarily at students for whom the study of building or civil engineering contracts forms part of a construction-based course. We have had in mind the syllabus requirements for first degrees in Building, Civil Engineering, Architecture, Quantity Surveying and Building Surveying, as well as those of postgraduate courses in Construction Management and Project Management. We have also assumed that such students will already have been introduced to the general principles of English law, especially those relating to contract and tort. As a result, while aspects of those subjects that are of particular relevance to construction are dealt with here, the reader must look elsewhere for the general legal background. In producing this third edition, we have again been greatly assisted by the many helpful comments made by reviewers and users of its predecessor. Nonetheless, our basic aim is identical to that which underpinned the first edition: to provide an explanation of the fundamental principles of construction contract law, rather than a clause-by-clause analysis of any particular standard-form contract. As a result, while we draw most frequently upon JCT 98 for our illustrations of particular points, this merely reflects the pre-eminent position occupied by that particular form of contract in the UK construction industry. We conclude by repeating our previous warning as to the dangers inherent in a little learning. Neither this book, nor the courses for which it is intended, seek to produce construction lawyers. The objective is rather to enable those who are not lawyers to resolve simple construction disputes before they become litigious, and to recognize when matters require professional legal advice. It should be the aim of every construction student to understand the legal framework sufficiently that they can instruct and brief specialist lawyers, and this book is designed to help them towards that understanding.

Mining, grievance and conflict in rural Tanzania

This paper provides an extended analysis of the tensions that have surfaced between large-scale mine operators and artisanal miners in gold-rich areas of rural Tanzania. The literature on grievance is used to contextualise, these disputes, the underlying cause of which is artisanal miners' mounting frustration over not being able to secure viable concessions to work. Newly implemented legislation has, for the most part, empowered foreign large-scale mine operators, while simultaneously disempowering indigenous small-scale miners. In many cases, the former have addressed mounting security and community problems on their own. Until the country's major mine operators extend assistance to marginalised small-scale mining groups, the likelihood of violent conflict unfolding between these parties will increase.

Comparative advantage in demand: Experimental evidence of preferences for genetically modified food in the United States and European Union

The United States (US) exports more than US$6 billion in agricultural commodities to the European Union (EU) each year, but one issue carries the potential to diminish this trade: use of biotechnology in food production. The EU has adopted more stringent policies towards biotechnology than the US. Understanding differences in European and American policies towards genetically modified (GM) foods requires a greater understanding of consumers' attitudes and preferences. This paper reports results from the first large-scale, cross-Atlantic study to analyse consumer demand for genetically modified food in a non-hypothetical market environment. We strongly reject the frequent if convenient assumption in trade theory that consumer preferences are identical across countries: the median level of compensation demanded by English and French consumers to consume a GM food is found to be more than twice that in any of the US locations. Results have important implications for trade theory, which typically focusses on differences in specialization, comparative advantage and factor endowments across countries, and for on-going trade disputes at the World Trade Organization.

The engineer under FDIC's conditions of contract for construction

FIDIC has over the years produced standard forms of contracts for the international procurement of projects. A source of continuing criticism of its Red Book concerns the duality in the traditional role of the engineer as the employer's agent and as an independent third party holding the balance fairly between the employer and the contractor. In response to this and other criticisms FIDIC produced a replacement for it in 1999. The role of the engineer under the new Red Book is critically examined in the light of relevant case law, expert commentaries and feedback from two multidisciplinary workshops with international participation. The examination identified three major changes: (1) a duty to act impartially has been replaced by a duty to make fair determination of certain matters; (2) it is open to parties to allow greater control of the engineer by the employer by stating in the appropriate part of the contract powers the engineer must not exercise without the employer's approval; (3) there is provision for a Dispute Adjudication Board (DAB) to which disputes may be referred. Although the duality has not been eliminated completely, the contract is structured flexibly enough to support those who wish to contract on the basis of the engineer acting solely as the agent of the employer.

Quality of tender documents: case studies from the UK

Tendering is one of the stages in construction procurement that requires extensive information and documents exchange. However, tender documents are not always clear in practice. The aim of this study was to ascertain the clarity and adequacy of tender documents used in practice. Access was negotiated into two UK construction firms and the whole tender process for two projects was shadowed for 6-7 weeks in each firm using an ethnographic approach. A significant amount of tender queries, amendments and addenda were recorded. This showed that quality of tender documentation is still a problem in construction despite the existence of standards like Co-ordinated Project Information (1987) and British Standard 1192 (1984 and 1990) that are meant to help in producing clear and consistent project information. Poor quality tender documents are a source of inaccurate estimates, claims and disputes on contracts. Six recommendations are presented to help in improving the quality of tender documentation. Further research is needed into the recommendations to help improve the quality of tender documents, perhaps in conjunction with an industry-wide investigation into the level of incorporation of CPI principles in practice.

Marriage value and scarcity in agricultural rents: a discussion of the findings in Childers v Ankers

Formal statutory guidance to arbitrators involved in settling disputes over rents for agricultural holdings is contained in the Agricultural Holdings Act 1986. The particular features of the agricultural letting market raise valuation problems which the Act itself has failed to satisfactorily address, most notably the degree to which marriage value and scarcity should be taken into account. The 1995 Court of Appeal case of Childers v Anker addresses several of the key issues. This paper seeks to explore the findings and practical implications of the case for rental valuers and arbitrators. It argues that sitting tenants may be seriously disadvantaged by the court's judgements, not least by having to pay rents on review which reflect elements of marriage value and possibly scarcity value.

Inheritance, access to resources and poverty in Serer families in Senegal

This research explores the relationship between inheritance, access to resources and the intergenerational transmission of poverty among the Serer ethnic group in rural and urban environments in Senegal. In many Sub-Saharan African countries, customary law excludes women from owning and inheriting assets, such as land and property. Yet, assets controlled by women often result in increased investments in the next generation's health, nutrition and schooling and reduce the intergenerational transmission of poverty. Qualitative research with 60 participants in Senegal reveals the important role that land, housing and financial assets may play in building resilience to household shocks and interrupting the intergenerational transmission of poverty. However, the protection afforded by these assets was often dependent on other factors, including human, social and environmental capital. The death of a spouse or parent had major emotional and material impacts on many Serer families. The inheritance and control of assets and resources was strongly differentiated among family members along lines of gender, age and generation. Younger widows and their children were particularly vulnerable to chronic poverty. Although inheritance disputes were rare, the research suggests they are more likely between co-wives in polygamous unions and their children, particularly in urban areas. In addition to experiencing economic and health-related shocks, many interviewees were exposed to a range of climate-related risks and environmental pressures which increased their vulnerability. Family members coped with these shocks and risks by diversifying livelihoods, migrating to urban areas and other regions for work, participating in women's co-operatives and associations and developing supportive social networks with extended family and community members. Policies and practices that may help to alleviate poverty, safeguard women's and young people's inheritance and build resilience to financial, health-related and environmental shocks and risks include: - Social protection measures targeted towards poor widows and orphaned children, such as social and cash transfers to pay for basic needs including food, healthcare and children's schooling. - Micro-finance initiatives and credit and savings schemes, alongside training and capacity-building targeted to women and young people to develop income-generation activities and skills. - Free legal advice, support and advocacy for women and young people to pursue inheritance claims through the legal system. - Raising awareness about women's and children's legal rights and working with government and community and religious leaders to tackle discriminatory inheritance practices and contradictions caused by legal pluralism. - Increasing women's control of land and access to inputs, enhancing their business, organisational, and leadership skills and promoting civic participation in local, regional and national decision-making processes. - Improving access to basic services in rural areas, particularly healthcare, building the quality of education and promoting girls' access to education - Enhancing agricultural production and providing more employment opportunities, apprenticeships and vocational training for young people, particularly in rural areas.