Case 2-5 the M/V Saiga Case Brief
Saint Vincent and the Grenadines V Guinea
Facts of the Case
Tabona shipping firm held possession of Saiga tanker at the time of its capture on October 28th, 1997. On March 12th, 1997, the oil tanker was temporarily listed in Saint Vincent and the Grenadines in March 1997. The crew members were Ukrainian citizens. Among the crew members, there were three Senegalese watercolorists. The Saiga sold gas oil and water for fishing purposes. Addax BV owned the gas oil load that was on the ship.
On January 13th, 1998 Saint Vincent’s representative and the Grenadine initiated an interim measures recommendation according to article 290 of the United Nations Agreement on sea regulations (Evans et al., 2007). This came after the seizure and confinement of M/V Saiga. The application was followed with a notice duplicate sent to Guinea hence commencing arbitral events based on AnnexVII to the agreement concerning the Saiga dispute. A certified duplicate request was also given to the Guinea Tribunal registrar.
In January 1998, the registrar received a notification on Mr. Bozo's nomination. On January 20th, 1998, the registrar also received a notification on the appointment of Mr. Hartmut as the attorney of Hamburg (Al-Abdulkarim et al., 2016). According to Tribunal statute’s article 24, the convention’s state parties were all alerted on the provisional measures recommendation through voice notes from the registrar. The registrar also notified the secretary-general.
Issues of the Case
One of the main issues, in this case, was the fact that Guineas refuted the claims that there was a valid connection between Saiga and Saint Vincent and the Grenadines. Guinea claimed that failure to establish a connection between Saint Vincent and Grenadines and Saiga, only proved that navigation rights were not violated at all. Hence, the vessel was not permissible before the tribunal because Guinea was not obliged to recognize the Vincentian race. The establishment of the ship and the company was one of the preconditions of the case. According to article 21 of the United Nations Convention on sea regulations, there ought to be a reliable connection between a national and a ship. Additionally, two questions needed to brought to light during the establishment of the association. First, if the absence of a connection gives another nation the right to refuse the association (Cabrelli, & Siems, 2015). Secondly, confirming if there existed a connection between the Saiga and Saint Vincent and Grenadines during the occurrence period. All these aspects end up shaping the evidence of the case. Considering all the above sentiments, the tribunal ruled that there were no legitimate grounds for Guinea's claims. In terms of the second question, the tribunal saw it fit in this case to claim that Guinea did not present enough evidence to substantiate its claims and concerns. Thus, the court ruled in favor of a connection between Saiga and Saint Vincent and the Grenadines.
Decisions and Reasoning
The tribunal relied on the convention during the entire case. The convention content held comprehensive requirements on the flag state obligations (Wyner et al., 2010). Article 94 and 217 specifically, outlined the duties of the standard flag state which may be discharged exclusively via exercising suitable legal and regulation over basic and juridical individuals (Maryns, 2013). After analyzing evidence tabled in front of the tribunal, the tribunal ruled that when a state causes damaged to another, then reparations are in order. Reparation must contain and eliminate all the negative impacts incurred due to the damages. Reparations may come in different forms: repayment and assurances.
Case 3-4
Shell V RW Sturge Ltd.
Facts of the Case
In November 1993, petitioners initiated this legal case in Hamilton claiming that the perpetrators sold unlisted and ratable securities hence breaking Ohio security regulations (Maryns, 2013). The Common Pleas discharged provisional restrictive order instructing perpetrators not to present any credit bank mails which the petitioners had effected while supporting their contract with the defendants. The Common pleas gave a fourteen-day postponement of the trial.
Issues
On December 10th, 1993, the sitting judge ordered a report and approval advising that the perpetrators’ motion to be thrown out to give room for the proper venue (Nievelstein et al., 2013). The judge also advised on giving the applicant’s motion a primary injunction. Hence, the case was in court under the title of the report and recommendation.
Decisions
After an informed evaluation of the accuser’s arguments, the judge resolved that the defender’s motion to terminate ought to be accepted due to the parties’ contract which had the subsequent implementable forum assortment clauses: each party was to agree with England court on matters pertaining private jurisdiction in order to decide on controversial matters emerging from the membership.
Reasoning, Analysis, and Discussion of the Case
The reasoning behind the case influenced by both parties and the judge's analysis additionally was consistent with two past cases which entailed enforceable forum assortment clauses within worldwide business dealings comparable to this particular case (Wyner, 2008). The court of appeal decided that the complainant’s essential privileges may be justified in England via the mitigation English constitution offered.
Case 6-7
Libyan Arab Foreign Bank V Bankers’ Trust Company
Facts of the Case
An English court of law concluded that Bankers Trust Corporation should compensate Libyan Arab Bank (Wyner, 2008). Part of the compensation was frozen by the then-president Reagan in 1986. The court order put the Bankers Trust Corporation in a challenging situation due to the simple fact that as it obeys the court directive, it will be breaking a presidential command in the USA. Bankers Trust corporation had only two alternatives: it can either first seek permission from the USA administration before paying the money or it appeals to the court ruling in England.
Issues
USA treasury spokesperson claimed that the Reagan administration was not aware of the Britain court order hence not commendable to comment on the matter. The compensation was to be paid in two chunks. The first chunk comprised of $131 million deposited in the bank's London division. The remainder $ 161 million deposited in the USA branch (Wyner, 2008). Thus, after all, is said and done, the main question would be, does one nation, in this USA, has the authority to hinder bank subdivisions’ assets in a foreign nation that has not recognized the freeze.
Decisions and Rationality
At the end of it all, Bankers’ Trust had no option but to obey the court order and compensated the Libyan bank. The compensation was no illegal in England hence the Bankers Trust paid accordingly while adhering to terms and conditions of the contract. Additionally, the repayment never facilitated any illegality forum. This decision deterred any other nation considering freezing assets from Eurodollar accounts in the foreseeable future (Nievelstein et al., 2013). Besides, a bank has to obey the rules of the host nation where the account is hosted. This way, in case the USA freezes accounts in the future, it will have to invoke IMF defense if the host nation, supports a general version of article VIII part 2b.
Case 7-2
Japan Taxation on Alcoholic Drinks
Facts of the Case
Canadian administration, the European Union, and the USA raised complaints on the low taxation Japan imposed on Shoshu Company as compared to other international alcoholic companies. Taxing international companies more than the local ones went against Article III, paragraph two. The panel handling the case took note of the Japan tax policies and how their taxation went against the GATT article III (Evans et al., 2007). This article barred the host nation from directly or indirectly imposing taxes on goods and services belonging to any contracting party.
The panel established that the word ‘like product’ makes an appearance on numerous GATT sections. On further analysis and inquiry, the panel realized that the terms could be interpreted differently. This way, the panel took note of the provisions of different articles found in GATT. Hence, the panel made use of the term interpretation before coming up with a solid conclusion to the case (Evans et al., 2007). These are the underlying reasons why the conclusion of the case was tied to the interpretation of the terms used in the GATT article.
Issues of the Case
Also, the panel made use of the previous panel's agreements on the term 'like product'. Previous panels claimed that the term should be perceived based on the particulars of the case hence no standard application of the law in terms of interpretation (Evans et al., 2007). For the sake of finding similarities, previous panels made use of various term evaluation mechanisms to build likenesses such as item characteristics, quality, and even target market.
Decisions and Discussion of the Case
The appellate institution sustained the panel’s findings that stated that the taxation imposed on vodka was higher than that of the local Shoshu. Thus, Japan violated article III. By upholding the panel decision, the appellate showed that it had accepted the panel’s interpretation of the terms. Also, the appellate accepted that the article’s first sentence needed assessment to ensure conformity with internal taxation interventions by defining two aspects: the similarities between local and imported goods and whether imported goods needed to be taxed similarly as the domestic goods. Besides, the appellate court endorsed the panel’s conclusion that domestic alcoholic drinks were taxed less so as to safeguard local productions from the unfair competition even though it was broke Article III content (Maryns, 2013). Moreover, changing part of the panel's rationale judgment would mean that the Appellate entity needed to clarify three isolated matters that must first be brought to light before ensuring the conclusions of the case are consistent with the standard regulations. Thus the decisions of the appellate court were reliant on the interpretation of the GATT article. The appellate entity settled that the first part of article III contained general principles that informed other sections of article III and further clarified that due to the contextual differences found in the two sentences.
Case 9-4
Experience Hendrix LLC V Hammerton
Facts of the Case
Experience Hendrix, the petitioner, is an organization situated in Washington. The defendant, Hammerton, and the complainant share the same domain name hence bringing about a dispute. The domain name is Jimi Hendrix. The plaintiff has the rights to the brand Jimi Hendrix hence common regulations permit the owner to sue anyone with the same name. It is vital to note that the complainant registered other Jimi Hendrix names such as jimihendrix.org. A simple google search outcomes would reveal where the bone of contention lies in this particular case (Maryns, 2013). According to the database, the domain name was listed on April 5th, 1996, and belonged to the 'Jimi Hendrix Club' with Hammerton defendant as the executive contact. The following year on April 30th, 1997 the respondent generated a web site www.jimihendrix.com which provided on Jimi Hendrix related email addresses.
Issues of the Case
The complainant states that sharing a domain name is confusing and waters down the credibility of his brand. Also, the complainant argues that the accused has no right to use the brand name. Hence, when the respondent makes use of the name, it's illegal and misappropriates (Maryns, 2013). Moreover, the complainant has never given the defendant permission to use the domain name in any way thus the defendant has no right whatsoever to use the name Jimi Hendrix under any forum.
Decisions and Discussion
Mr. Hammerton defended his case by claiming that domain names are sold for profit and there is no legitimate underlying reason barring him from purchasing a domain name he finds appealing for his brand. However, the complainant had used the domain name for material and commercial gain hence his argument was not valid (Maryns, 2013). The case relied on three elements: the policies of the domain name registration especially while solving a conflict. The findings established that sharing a domain name was confusing and diluted the impact of the complainant's brand which in turn affected the consumer feedback.
References
Al-Abdulkarim, L., Atkinson, K., & Bench-Capon, T. (2016). A methodology for designing systems to reason with legal cases using abstract dialectical frameworks. Artificial Intelligence and Law, 24(1), 1-49.
Cabrelli, D., & Siems, M. (2015). Convergence, legal origins, and transplants in comparative corporate law: a case-based and quantitative analysis. The American Journal of Comparative Law, 63(1), 109-154.
Evans, M., McIntosh, W., Lin, J., & Cates, C. (2007). Recounting the courts? Applying automated content analysis to enhance empirical legal research. Journal of Empirical Legal Studies, 4(4), 1007-1039.
Maryns, K. (2013). ‘Theatricks’ in the courtroom: the intertextual construction of legal cases. InLegal-Lay Communication: Textual Travels in the Law, edited by Chris Heffer, Frances Rock, and John Conley, 107-125.
Nievelstein, F., Van Gog, T., Van Dijck, G., & Boshuizen, H. P. (2013). The worked example and expertise reversal effect in less structured tasks: Learning to reason about legal cases. Contemporary Educational Psychology, 38(2), 118-125.
Wyner, A. (2008). An ontology in OWL for legal case-based reasoning. Artificial Intelligence and Law, 16(4), 361.
Wyner, A., Mochales-Palau, R., Moens, M. F., & Milward, D. (2010). Approaches to text mining arguments from legal cases. In Semantic processing of legal texts (pp. 60-79). Springer, Berlin, Heidelberg.
