LLM in International Commercial Law

Permanent URI for this collectionhttps://dspace.griffith.ie/handle/123456789/447

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Customs Valuation Appraisement Methodology: a Comparative Analysis of European and United States Governing Legislation
(Griffith College, 2015) Aheme, Andy
This research sets out to identify the customs duty appraisement methodology best suited to modem international trade. The research identified the most effective method from the position of reducing operational barriers to trade. The operational review identified that the use of an appraisement methodology could be detrimental to trade overall, acting as a barrier to trade facilitation and fueling internal competition. The research also identified why traditional protectionist measures do more harm than good to the domestic activity of the trade nation employing such measures. Research methods employed as part of this study included a mix of qualitative and quantitative research through industry research surveys focused on EU and US industry professionals. Legislative analysis and practical observations from industry experience were also considered within the research. The major findings of this research were that the US has clearly founded legislation driving the use of a specific method of appraisement aimed at ensuring equity and fairness amongst its member states. In contrast, the European method creates internal competition through lack of appropriate legislation, demographics and misalignment across tax law. Therefore, allowing individual member states to implement programmes to promote locations as a point of import, thus creating internal competition amongst member states. The main finding was that alignment of legislation and practise between the two trade blocks would be advantageous to trade facilitation overall. This is a significant consideration, given that the centre of this research focused on trade facilitation measures of the two largest trade nations in the world, as they look to embark upon a trade facilitation agreement. There is no evidence available in the public domain to show that this misalignment between processes and practices has been considered, or how it will ultimately lead to disparity in trade practices. The limitations of this research were that, because of its unique nature, very little information was available on the financial impact of alignment. For this reason, further study is needed in this area of duty appraisement alignment, together with any financial impact that this may have on either trade block.
Comparison of International Conventions with Turkish Law Related to the Carrier's Liability for Loss, Damage and Delay under the Contract of Carriage by Sea
(Griffith College, 2020) Elif Germen, Zeynep
In this dissertation, the evolution of the law applicable to the carriage of goods by sea is analysed and also the main differences and similarities of international conventions on the carriage of the goods by sea and Turkish Law related to the carrier's liability for loss of or damage to the goods and delay in delivery under the contract of carriage by sea were examined. Provisions regulating the carrier's liability under Turkish Commercial Code and The Hague Rules, The Hague-Visby Rules, the Hamburg Rules and the Rotterdam Rules were compared. It was shown that the balance between cargo interest and ship interest is the main subject of the maritime law and due to the technological developments and current needs of the parties of the carriage contract of goods by sea, the carrier's liability regimes have been changed by international conventions. After the definition of the carrier and the scope of international conventions and Turkish Law are explained, provisions under international conventions related to the duties of the carrier, carrier's liability for loss, damage and delay, carrier's period of liability, exemption from liability, limitation of liability, carrier's liability for the act of other parties, burden of proof, notice requirement and time for suit were compared with Turkish Law in order to determine whether Turkish Law is in conformity with these international conventions. This research was conducted by doctrinal and comparative methodology as well as historical legal research to understand the evolution of international maritime law. As a result of this research, it was deduced that Turkish Commercial Code was drafted by considering related provisions of The Hague Rules because of that Turkey is a contracting state, as well as the Hague-Visby Rules and the Hamburg Rules. It was shown that the reason why Turkish Law adopts some provisions of the Hamburg Rules is that the Hague Rules do not cover the carrier's liability for delay in delivery. However, it is found that Turkish Law does not refer to the Rotterdam Rules.
Public Policy Issues in International Commercial Arbitration. A Comparative Analysis Between Ireland, Singapore, India and the United States of America
(Griffith College, 2020) Vesselova, Kelly
In this dissertation, it was proven that there are issues that exist in international commercial arbitration under the ground of public policy which may be used to set aside or refuse enforcement of an arbitral award. Throughout analysing the differences of contracting States to either the UNCITRAL Model Law or the New York Convention it has been demonstrated that discrepancies between national and international legislation on the public policy ground can be detrimental to the independence of the arbitral tribunal and finality of the arbitral award. As Conventions aimed to harmonise and provide a uniform text that can be applied to both national and international Legislation on arbitration, the public policy ground remains subjective and inconsistent in areas such as the threshold and scope applied. It is clear that court intervention is disadvantageous to arbitration and the need for limitations is evident. Used as a means to allow court involvement in Countries with a weaker judicial system with regards to arbitration, public policy is used excessively to set aside or refuse enforcement of an arbitral award and in some cases decide on the merits. It will be shown that to successfully apply the New York Convention and the Model Law to arbitration, the grounds of public policy and arbitrability should be narrowly construed in accordance with the aim to harmonise and unify international commercial arbitration. By deviating from this aim, this dissertation demonstrated the issues that arise from this by way of broad interpretations and uncertain outcomes of awards.
Mandatory Mediation: One Giant Leap for Commercial Disputes in Ireland
(Griffith College, 2022) Sherry, Katie
In this dissertation, this author analysed the effectiveness of mandatory mediation as a system to combat rising pressure on the commercial court system, increasing costs and time for the parties involved in the dispute, and failing trust in the judicial system. This analysis was conducted by reviewing international jurisdictions that have successfully implemented a mandatory mediation system as well as the current commercial dispute resolution system in Ireland. It sought to develop a proposal for a system that could be applied to Ireland. This author proposed that the introduction of a system into Ireland would not be contrary to any existing legislation and could adapt the current framework to meet the needs of mandatory mediation.
Towards Effective International Banking Regulation and Supervision: The Position of Africa and Case for Global Financial Inclusion
(Griffith College, 2022) Agbagha Kalu, Nge
This dissertation explores the position and roles of developing countries especially, African countries, in the International Standard Setting Bodies (SSBs) such as the Basel Committee. It interrogates the fairness, efficacy and propriety of the standards set by these bodies especially the Basel Committee in stabilising the global banking and financial industry. It highlights the continuous core domination in these bodies and the relegation of the countries in the peripheries to the position of rule takers. It examines the context specificity of the African banking and financial environments and highlights the need to take those contexts into consideration in formulating global banking and financial standards. To succeed in its aims, the research employs an evolutive model of legal research embedded with other legal research approaches such as historical, doctrinal, comparative, and critical legal theory. The research shows that the international SSBs do not take into consideration the peculiarity of the African banking, financial and regulatory environments when formulating the global banking and financial regulatory and supervisory standards and this neglect led to African countries implementing global banking standards that are not calibrated to their banking and financial environment. The research reveals that implementing those standards impacted adversely on the continent’s banking and economic system and have put the continent at a competitive disadvantage in terms of development. It contends that the present global banking regulatory architecture and standards are inadequate to meet the needs of most African countries and are not also capable of stabilising the global banking and financial industry and need to be reformed. The dissertation thus recommends among others increased representation and roles of developing countries in the global SSBs. It is suggested that the global SSBs take cognisance of the differentiated standards and build proportionality to their regulatory standards to make it easier for them to be adapted in many jurisdictions. It also recommends that the possible trade-offs be considered before adopting and implementing global banking standards, especially as regards African countries. It calls for the regulation of other institutions like those engaged in shadow banking activities and fintech that posed a systemic risk to the global banking and financial industry.
Blockchain: A European Perspective on the compatibility in regards with General Data Protection Regulation
(Griffith College, 2022) Raghuram Iyer, Radhika
The purpose of this dissertation is to investigate the compatibility between Blockchain technology with the General Data Protection regulation (GDPR). The GDPR was adopted in May 2018 across all the European Union member nations with the intention of harmonising the data protection regulations throughout Europe. The GDPR established numerous basic rights and privileges for individuals in terms of protecting their personal data. That alone implies that the relevant stakeholders who process personal data undertake specific duties. The legislation, although is predicated on the assumption that data is maintained and processed in a centralised architecture. This creates a problem for distributed networks, the core technology of blockchain. The blockchain technology is utilised to safeguard and maintain the integrity of the personal data in a potentially dangerous technological world. Typically, the peer-to-peer (P2P) networks, also known as shared networks, have confronted the challenge of assuring data integrity. This dissertation explores whether the GDPR is relevant to a decentralised architecture and if the essential rights and principles of the regulation can be preserved, which is to say whether the involved authorities can perform their regulatory tasks.
Critical Analysis of the Most-Favoured-Nation Principle: Myth or Path to Trade Liberalisation
(Griffith College, 2022) Olajuwon Shitt, Lawal
In this dissertation, the principle of the Most Favoured Nation treatment and some of the key issues that arise in its negotiation was examined extensively by the author. This principle of universal equal treatment underpins the World trade Organization. It is a non discriminatory trade policy that obligates members of the world trade organization to extend the same treatment to all members. The controversy that exists at the heart of this study was whether the Most Favoured Nation principle has been successful in achieving the lofty goals of equality and non-discrimination. It examined the growing irrelevance of the Most Favoured Nation principle in international trade due to an increase in the formation of free trade areas. The analysis then progressed to cut across the multiple facets of international trade. It evaluates the effects of the Most Favoured Nation Principle in the liberalisation of trade in goods, services and intellectual property rights. The author then recommends that the key functions of the Most Favoured Nation Principle should be reinforced through the establishment of a more efficient enforcement mechanism.
Comparative Analysis Between Ireland and the US: Corporation Tax and The Digitalisation of the Economy
(Griffith College, 2022) Borges Cho, Yeda
This dissertation demonstrated a comparative analysis between the corporation tax from Ireland and the United States. The comparison has as a background the digitalisation of the economy indicating a need for changes in the international corporation taxation of multinational groups that no longer need a physical presence to have customers and generate income. This study focused on corporation tax, the BEPS project, the two-pillar solution from OECD/G20, and the global minimum corporation tax rate. The author discussed the view of the OECD concerning tax havens and explained the tax inversion tax planning scheme of American companies in Ireland. This dissertation also indicates how the Double Irish tax avoidance schemes with a Dutch Sandwich and Green Jersey work. The conclusion drawn was that Ireland is not a tax haven, has a better corporation tax system than the United States, and that both countries should embrace de Pillar 1 and 2 solutions proposed by the OECD to tackle the challenges of the digitalisation of the economy.
The European Right to be Forgotten in the Context of Search Engines
(Griffith College, 2022) Morais Da Silva, Alanna
In this dissertation, the implementation of the right to be forgotten in the context of search engines throughout Europe was analysed, notably considering the CJEU case-law. The whole examination examined the balancing test which must be present when controllers of personal data deal with removal requests. In such an assessment, the contrasting rights and interests of data subjects and the general public must be weighed up in order for search engine operators, data protection authorities or judicial authorities to reach a decision regarding the suppression of information from the Internet. The CJEU recognition of search engine operators as controllers of personal data in Google Spain gave rise to some criticism regarding the public role such private companies would be playing, as opposed to what the neutrality principle proposes. Nevertheless, theses private entities possess more financial resources and availability of staff to handle such cases, which renders the Court’s decision comprehensible. Following this judgment, the right to be forgotten was codified in the General Data Protection Regulation, although some points remained undiscussed. In this sense, GC and Others addressed the general prohibition of processing sensitive data, in which the Court decided that search engine operators must act only after receiving a de-referencing request involving such types of data, not in a systematic manner. Additionally, Google v CNIL highlighted the debate concerning the extraterritorial application of EU data protection laws worldwide. In a cautious approach, the Court decided that the erasure of personal data must take place inside the European Union, however it still recognised the rare possibility of requiring a global de-indexation, although it cannot be easily foreseeable once such requirement would create endangering and unnecessary tensions between the Union and third states. Despite the impossibility of completely removing content from the digital space, some measures may suffice to prevent the access of information. In this sense, some solutions were proposed to make the application of the erasure of personal data on the Internet more effective. Accordingly, it includes expiration dates, segmentation, pseudonymisation and public-private partnerships, which, in essence, would help to minimise the current administrative burden of search engine operators, while providing more protection of personal data for Internet users as well as greater public oversight of the measures taken by private entities in implementing such right.

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