Businesses should relish the opportunity to play a role in the societal and cultural shifts in our country, according to Cascade Engineering Chairman Fred Keller. Keller was on hand at a recent Rotary Club of Grand Rapids meeting to discuss business-inspired community change, an ideology rooted in the critical role of businesses to take active interest in improving the communities they serve. In his presentation, Keller used real-world examples from companies successfully practicing business-inspired community change, including Cascade Engineering. Keller began by running through a brief history of how the United States measures poverty.
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Read more. The elimination of economic borders between two economies at least is a fact of our times, leading to various modes of integration.
Integration is understood as an economic and social process intended to facilitate relations between the businesses, institutions and States of one or several countries. The decision to integrate a regional economic bloc is no doubt revealing as to the degree of competitiveness of a nation or territory having a certain level of autonomy, and by that very fact as to its ability to converge, in terms of knowledge, with countries whose level of development is superior to its own. An economic integration process is always based on the development of trade on an international scale and aims at securing a series of advantages.
Whatever the stage of the process, the purpose is to provide the entities joining it with mutual benefits and advantages superior to those they might expect by acting alone in relation to outside countries or groups of countries. Such benefits and advantages are applicable not only to economic integration processes, but also to processes of political, social or legal integration, or even to any initiative aiming at a higher level of cohesion. Economic interdependence and the globalisation of the economy have led most governments to set up programmes for the gradual liberalisation of the economy and to accelerate the process of creation of free trade zones.
This phenomenon is concomitant with the gradual abandonment of a traditional reticence and mistrust towards international trade, in which multinational corporations play an important role. In addition to this, debates have lately begun with a view to preparing a geographical map depicting the integration processes taking place within the region. Those debates are conducted, not without difficulty, with a view to overcoming reticence concerning a more pragmatic approach to the role played by States in international trade - reticence arising from the incomprehensible notion of sovereignty.
In order to reinforce the effectiveness of regional agreements, it is advisable not only to move towards common macroeconomic policies, but also to contemplate a process of substantive legal harmonisation. The aim of establishing liberalisation requires a distinction between two situations that are not necessarily complementary: on the one hand, economic integration; on the other hand, trade integration.
But integration is not solely an economic, commercial or social phenomenon. It includes other facets of the evolution of the operators involved.
First of all, it implies the intention of safeguarding peace through collective cooperation and security beyond national borders, of establishing the rule of law and of opening up development to the outside. Secondly, it requires certain initiatives in the design of the private law institutions thus induced. Traditionally, the development of cooperation policies between States in civil and commercial matters is a response to a weakness and is based on friendship and goodwill between them, and always on the principle of reciprocity.
However, as a logical sequel of the integration process, cooperation has come to be considered not as an end in itself, but, in a majority of cases, as a condition, since cross-border disputes or disputes involving an element of foreign status are increasingly frequent and numerous. The process leading, among other things, to harmonisation between norms and legislations does not imply prima facie the creation of common norms for a regional bloc, as this would entail the risk of uselessly giving rise to conflicts between rules and of leading, outside that context, to rivalry between the national rules in force.
On the contrary, the harmonisation between the legal rules relating to trade and to the exchange of goods and services such as the rules protecting free competition 5 and sanctioning unfair competition, those protecting consumers or intellectual property has or should have as its main objective the suppression of distortions between the domestic law of States, especially when those distortions asymmetrically benefit the operators of one member State to the detriment of the others 6.
In that context, and although its place has been considered to be secondary, 7 private international law plays an important role in legal regulation and proves indispensible for the harmonisation of the legislations of the States that are part of an integration process. The proper operation of any integrated market, whose starting point is diversity between legislations, rests on the contributions of a private international law that is uniform and whose substance is well defined.
This leads one to state that the development of such policies has become the means of ensuring the right to justice for citizens within the integrated supranational area 9. Hence also the idea that the regional sphere allows better integration based on overall economic democratisation, through compatibility between currencies, through free trade, through the establishment of common rules, and especially through a common will to set the rules of the game so as to respect the interests of the entire region.
It also allows convergence between interests and often between more general values in other areas, such as investment, competition, labour law or environmental rules. Integration, which we have just referred to, is a deep and intense process which arises and gains strength at the economic level, but diffuses widely between States in other areas v.
Cooperation assumes that the parties adapt their conduct and prefer it to others. It results from an interaction based on principles and is encouraged by objectives. Finally, consultation is a mechanism through which governments act together within the framework of their sovereignty, usually at the diplomatic level and for mainly political ends, in relation to other individual or collective operators v.
Trade relations in the Caribbean depend largely on the possibilities offered by the processes described above, and more particularly by the first one. Such experiences have led, as a common denominator and principally, to the liberalisation of trade in goods and services, to greater protection for foreign investment flows and to increased transparency of domestic rules, for instance as regards government procurement.
However, some areas, such as freedom of movement and travel, have remained outside the scope of integration, although they are vital to any advanced integration process. In other terms, any action aiming at integration, but also at the formation of a more or less complete common market, underlies a multitude of extra-economic considerations. One of them consists in requiring that the member States and their governments embrace a political regime that respects freedoms - political, economic and social - and is endowed with sound and totally independent public institutions.
Another consideration consists in proceeding to unify or at least to harmonise private law, or even private international law, as was done in the European Union The difficult establishment of gradual regional integration, with all the legal precision required, reflects a complex reality. This must be studied on a case-by-case basis, in a multidisciplinary perspective It may be observed that such processes do not always take place, especially in the OHADAC territory, within a community-type integrationist framework, but that they consist rather in setting up cooperation of an intergovernmental nature.
The general theory of international organisations indicates that in a majority of cases we are dealing with institutions having to do with mere cooperation, not integration. Obviously, each moment and each stage of integration require very different processes of transfer of powers on the part of the member States of the organisation.
Whereas in free trade zones the liberalisation of trade can take place without requiring an actual transfer of powers pertaining to the sovereignty of the States to common institutions, customs unions consist in giving up some powers of the member States for the benefit of the new organisation and, in this case, a common strategy in relation to third parties and a specific institutional structure are set up.
Provided that this model takes on the form of a common market, this transfer of powers, just like the creation of an institutional structure, becomes substantively more extensive and is supplemented by the adoption of a common trade policy. From a legal viewpoint, integration triggers a series of public law mechanisms agreements, treaties, codes and regulations But starting from those basic mechanisms, a body of norms develops; it is aimed directly at the States concerned, and primarily at their economic and later at their social operators, depending on the stage to which integration has progressed.
Ultimately, the final targets of the integration process are individuals and entities that are affected at the economic or financial level as well as at the personal and family level. Integration consists in multiple intercommunication and is positively complex. It requires changes in the domestic legal framework, as well as an awareness of the disparity existing between national bodies of law.
While the latter continue to be necessary at the domestic level, as well as at the level of identity, they may fail in the face of the increase in international situations implied by any integration process. But such a legal system does not always prove necessary in order to intensify certain very basic forms of integration. Legislative harmonisation and unification can play an important role in that regard.
Provided that they ensure a high level of legal security for legal operators and allow predictability in the field of law, harmonisation and unification prove to be the best guarantees for the safeguarding of legal relationships in supranational areas. The uniformity of cross-border private law relationships offers contract parties greater legal security. In order to achieve this, the applicable rules must have been developed according to fair and objective criteria.
The unification and creation of law at the transnational level is no more than the expression of a reality at a given moment within the framework of international exchanges of a private nature In an economy open to the laws and rules of a market based on free competition between products and services, whether domestic or foreign, demand, just like supply, adjusts to the extended market. Moreover, it offers better conditions of competitiveness to production, both industrial and commercial, and to services.
Such openness implies the elimination or reduction of obstacles, whether or not customs-related, to the free circulation of goods and services on the extended market. It likewise implies openness to the free movement of persons and capital inside a geopolitical and socio-economic area. Freedom of movement, whose variability depends on the extent and depth of openness and integration, affects subjects, that is, individuals or entities, who supply companies and demand consumers those goods and services, which are potentially located in different countries.
Integration is inconceivable without such freedom, but the latter results in multiple advantages while generating possible conflicts. Such conflicts are identical to those confronting persons in a strictly domestic context, but they present additional complexity because they arise within an international framework. We are dealing, for instance, with contracts made between parties domiciled in different countries, with companies incorporated in one State and wishing to transfer their registered offices to another country, with workers who enjoy better work opportunities outside their own country and who migrate with their entire families in order to settle in a foreign country, etc.
All of those situations may lead to legal problems, and their solution involves the rules of private international law; one must determine who has jurisdiction, or what is the applicable law, or in what situation a decision handed down in one State can produce its effects in another. At the present time, the answers to those questions are still to be found in each State's legal organisation; consequently, they depend on the specificities and differences of each of them, which adds additional hindrances to integration.
At present, private international law, rather than looking for the rules required in order to cause national courts to comply with foreign law, rather attempts to unify the legal criteria and legislations applicable in some parts of the world, such as inside the Caribbean area.
During the last decades, in the absence of a system liable to be generally accepted, a strong movement has arisen in favour of harmonisation of the norms of private international law between States. Such unification aims at facilitating international transactions, ensuring that the acquired rights of persons are respected and doing away with forum shopping.
In order to allow companies pertaining to States with similar political systems - which, in turn, recognise similar systems of economic organisation - to engage in trade, they must be able to rely on homogeneous rules in a good number of cases.
The legal relationships that emerge from this sort of trade require a legal organisation that oversteps the national framework. In order to deal with specific legal relationships set up in an international context, whose interests and requirements differ, a compatible legal mechanism is required, one that will be as homogeneous as possible between all the member States of the integration.
There is no doubt that a substantive unification process could solve such problems. However, on the one hand, history demonstrates that the themes concerned by such unification are few in number the example of the international sale of goods is unparalleled , which would lead to major legal zones being left on the sidelines of the unification in question. On the other hand, the substantive unification achieved by means of ad hoc international agreements remains partial, since all States do not adhere to such instruments of international codification, nor do they accept them simultaneously, nor do they even enforce them in the same way.
A legal system, and a fortiori a system sensitive to the regulation of private international transactions, cannot allow itself to be limited by normative provisions issued solely by domestic lawmakers. Indeed, the latter are inadequate and cut off from legal reality, even in the context of very basic economic integration. It is necessary, on the contrary, to adjust to the reality of the international community, for in order to ensure international trade, doing away with legal barriers of governmental origin is not enough.
If the lawmaker wishes to guarantee the fluidity of international trade, he must eliminate legal obstacles of both private and public origin, that is, those resulting from the legal fractioning of the various States' legislations In other words, national normative development or internal codification must take place simultaneously with international codification and in coordination with it.
Likewise, international codification must admit that it cannot develop on the fringes of legal unification. All of this doubtless suffers from a certain rigidity, of which internal codification is devoid.
This initiative in the area of unification of private international law is in full harmony with regional integration taking place in that geographical zone. It can constitute a useful tool to mitigate drawbacks due to an inadequate domestic legal framework, which act as a check on international commercial transactions.
At this time, such conduct would be thoughtless. Thus, with more realism and prudence, the Model Law does not rule out the maintenance of a certain normative diversity in order to safeguard, for as long as may be necessary, the identity of the national legal orders concerned. However, while such an option cannot be ruled out, such fragmentation is not recommended, for it would give rise to the risk of placing private international law under the tutelage of domestic law substantive private law and of giving rise to diverging interpretations liable to jeopardise the very consistency of the normative whole involved.
This unifying initiative thus aims at offering a complete system of rules of private international law which will adapt specifically to the requirements of the practice generated by private international transactions. This Model Law, considered as such, may serve as a reference for judges and arbitrators, be interpreted or supplemented by other instruments governing private international law relationships, or also serve as a model for national lawmakers, which is, however, its main objective.
The integration of the economies of Latin America and the Caribbean is an aspiration that became apparent during the fifties of the past century and was implemented during the sixties. The basic postulate is as follows: integration is a way of settling economic problems which serves to reinforce a sole bargaining power within the framework of international trade, characterised by the existence of countries that are more developed than others.
This can be explained by the fact that, from the start, integration was never conceived as a political process, that is, as a reality fully included in each country's national development policies. In the south of the American hemisphere, the integration process had three different results for regionalism.
There is still a great distance between what is said and what is actually done. Governments express strong interest in reinforcing relations between States, but their trade practices go in the opposite direction. Until the mid-eighties of the past century, there was a very distinct difference between the economic area formed, on the one hand, by the countries of Latin America and the Caribbean and, on the other hand, by the developed countries of the continent USA and Canada.
The principle was that integration was a process intended to support the developing economies of the region in order to reinforce the progress and their presence on international markets.
Thus, the region's developed countries intervened on those markets through multilateral mechanisms and not via preferential agreements. The creation of the North American Free Trade Agreement NAFTA , which dates back to the same period as the WTO, changed that picture by meeting the challenges of increasing globalisation and responding to the difficulties encountered by developing national economies in finding their place in the international economic scene.
The upsurge of regional integration in Latin America and the Caribbean then took place as a movement arising on a global scale.
ISBN 13: 9789502110165
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Kaller de Orchansky, Berta