Law

The treatment of discrimination cases based in racial classifications has been subjected to the most rigorous type of judicvial review, known as strict scrutiny, and this strict scrutiny standard is comprised of three main elements. (Richmond v. J. A. Croson Co., 1989, pp. 469-470)  First, the law must serve what is defined as a competing state interest.  This element is distinguished from other standards of review in that a compelling state interest means that the law is necessary as opposed to be substantially related or a rational basis for ensuring the satisfaction of that interest.  Second, there is a requirement that the law at issue must be drafted or tailored in a manner that is very specifically designed to accomplish the aforementioned compelling state interest.  This allows the Supreme Court, in racial discrimination cases, to examine the scope of the challenged laws that is not allowed to the same extant in other discrimination cases with different standards of review.  Finally, there is a least restrictive element of the strict scrutiny tests that requires no other available or lesser restrictive legal means for achieving the same compelling state interests.  The strict scrutiny test, as a consequence, is the highest standard for examining discrimination cases pursuant to the Equal protection Clause because of the tremendous burden it places on states desiring to legislate racial classifications.

The treatment of discrimination cases based on gender classifications has employed a judicial test ranging from what has become known as intermediate scrutiny to what has more recently been strengthened to a test, as enunciated by Justice Ginsburg in United States v Virginia, that more closely resembles a strict scrutiny type of threshold although the majority in that case did not use the strict scrutiny terminology.  Prior to this Supreme Court decision in 1996, the government had the burden of proof to establish that its law functioned in pursuit of a state interest that was important and that the law substantially sought to pursue that important state interest.  However, in the 1996 case, Justice Ginsburg wrote in response to a gender classification that Parties who seek to defend gender based government action must demonstrate an exceedingly persuasive justification for that action before restating the intermediate scrutiny test that To meet the burden of justification, a State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives (United States v. Virginia, 1996, p. 515).  It would appear, as Justice Scalias dissent asserted, that the Supreme Court in this decision strengthened the intermediate scrutiny test in gender cases that made it more similar to strict scrutiny cases than rational basis standards.

Although the United States Supreme Court has consistently refused to treat discrimination cases predicated on sexual orientation as rising to the level of a specially protected suspect class as is the case in discrimination cases predicated on race, it has finally issued an opinion holding that sexual orientation can in certain cases be used a basis for alleging and proving a violation of the Equal protection Clause via the Fourteenth Amendment.  The constitutional standard of review, however, is quite deferential and it does not demand as much scrutiny as other classes alleging and  seeking to demonstrate constitutional violations. In Romer v. Evans, for example, the United States Supreme Court held that A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense (1996, p. 622).

In the instant case, the people of Colorado has voted in favor of a state constitutional amendment that was designed to prevent all branches of the government from passing laws banning discrimination on the basis of a persons sexual orientation.  Justice Kennedy, writing for the six-member majority, did not apply a strict scrutiny or an intermediate scrutiny test instead he articulated and applied  a rational basis test in which the state of Colorado was vested with the burden to establish that this law had a rational basis upon which to serve a proper legislative purpose.  This being the most deferential standard of review in discrimination cases, the burden of proof appeared to have been relatively easy to satisfy.  Colorados law, in order to withstand constitutional challenge, need to serve a proper legislative purpose and this legislative purpose needed to be rationally designed in fact.  Specifically, this test demanded at the very least that Colorado articulate a factual basis to support the legislative purpose of the law.  Colorado, in the Supreme Courts opinion, did not satisfy this burden of proof even with respect to the extraordinarily deferential rational basis analysis.  The Court found the states proffered factual basis irrational and too attenuated from a proper legislative purpose to withstand constitutional challenge.  More particularly, Justice Kennedy concluded that We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. (Romer v. Evans, 1996, p. 624)  What emerges from this case, with respect to discrimination cases based on sexual orientation, is a standard of review known as rational basis and linked to a legitimate legislative purpose.

Although it is the most deferential standard, this case demonstrates that constitutional challenges will be sustained when people are discriminated against without any factual basis or legitimate purpose.
Confrontation Clause and the Sixth Amendment

In the instant case, and given the facts provided, defense counsel would be well-advised to argue that the witness statement is inadmissible because there is a violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution.  In Crawford v. Washington, for example, the United States Supreme Court stated that TheSixth Amendments Confrontation Clause provides that, in all criminal prosecutions, the accused shall enjoy the right  to be confronted with the witnesses against him. We have held that this bedrock procedural guarantee applies to both federal and state prosecutions. (2004, p. 39)  The public policy represented by the Sixth Amendment is that all criminal defendants should be able to challenge witness statements and cross-examine the witness in the interests of justice and fairness.  Although there are some exceptions when a witness is unavailable for a particular reason such as death, the facts in the instant case do not establish any legally recognized reason for the witness absence from the criminal proceedings the day after the statement was made.  A witness against a criminal is broadly defined and includes witness testimony or statements made in an extrajudicial setting similar to the setting provided in the instant case.  In addition, the witness statement functioned as testimony within the Confrontation Clause standards because it was solely on the basis of these facts or evidence that the defendant was convicted in a criminal trial and sentenced to a quarter century in prison.  Finally, the United States Supreme Court has also stated That interrogators are police officers rather than magistrates does not change the picture either.

Justices of the peace conducting examinations under the Marian statutes were not magistrates as we understand that office today, but had an essentially investigative and prosecutorial function and that even if theSixth Amendmentis not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class. (Crawford v. Washington, 2004, p. 49)  In sum, defense counsel will have a strong argument that the admission of the witness statement was a violation of the Sixth Amendments Confrontation Clause.

The Worcester Cold Storage case occurred in the Commonwealth of Massachusetts.  In the aftermath of the horrible fire, the public demanded that justice be served for the six firefighters who lost their lives.  The Prosecutors for the Commonwealth answered this call by charging the defendants with manslaughter, but these charges were dismissed due to lack of evidence.  Would a conviction have been more plausible if the charge had been arson  Would the issues have been the same.
     
The crimes of manslaughter and arson are both felony offenses.  The defendants in the Worcester Cold Storage case would have been convicted if the charge had been arson instead of manslaughter.  According to the General Laws of Massachusetts, the crime of arson states that one who, causes to be burned, or whoever aids, counsels or procures the burning of a building which has been erected for public use, or a banking house, warehouse  and whether occupied, unoccupied or vacant, shall be punished by imprisonment in the state prison for not more than ten years, or by imprisonment in a jail or house of correction for not more than two and one half years .   (Crimes Against Property, 2009)  The fact that the defendants were living in the vacant building raises the issues of criminal trespassing.   The voluntary act was established when the defendants chose to leave the building and not report the fire.  The mental state of the defendants was established easily since the physical altercation that created the fire was reckless.
     
A charge of arson would have guaranteed a conviction against the defendants, but a conviction would have been more impersonal to the fallen firefighters. The sentence would only have carried a ten year jail term.  A conviction of manslaughter would have allowed vindication for the firefighters and their families.  The issues would have been very much the same, but the outcome would have been more satisfactory in reference to the public outcry for justice.

Annotation of the Bibliographies

Lawrence Salinger (2004) Encyclopedia of White Collar and Corporate Crime Sage Publishers.

Author Lawrence Salinger, has written the book Encyclopedia of White Collar and Corporate Crime for the use by college and high schools students. It contains 974 comprehensive pages. The language that has been used is simple and the author has ensured that he has included examples of precedents that relate to the white collar crime, as a means of projection of the idea. It also includes simple definitions that enlighten the student and enhances hisher understanding throughout the study. Each topic in the book has been written down with sophistication with summations and references being included to give way to further research and perception by the student.

The book covers all the aspects of white collar crime, putting into consideration the diversity of the topics that surround it. The cases that have been highlighted are those that include the different companies, individuals and Acts. The book is an excellent choice for the study of the topic since it covers the commercial, the legislative, the managerial, the economical and the political crimes. This being the main areas in which White Collar Crime is becoming rampant ensures that the reader has a wide coverage of the concept.

Ellen Podgar, Jerold Israel and Paul Borman (2003) White Collar Crimes Law and Practice Thomson West.

The White Collar Crime is a crime that has frequently not been discovered and in many cases is just let to slide away, due to the ignorance and unawareness that surrounds the concept. The book by Ellen Podgar et al brings out the laws and the cases that have been dealt with so far in the area in an attempt to spread the knowledge of White Collar crimes to its readers. The authors of the book have incorporated all the concepts of law and directed them towards this particular crime. The procedures, both substantive and administrative have been explained clearly in regard to the white collar crimes.

With this book, students are able to appreciate the different procedures that are followed in the identification all through to the prosecution of the corporate and the white collar crimes. The authors of the book were also able to project both the traditional and the modern statutes and cases that govern the crimes giving illustrations where necessary. The book contains 895 pages.

Girish Mishra and Braj Kumar Pandey (1998) White Collar Crimes Gyan Books Publishers.

The book by the Indian authors has been categorized under History. This is because it takes us back to the period before the industrial revolution where there were no crimes rated under white collar. The book clearly brings out the modernity of the crime and its relation with the rich and famous. It has a total of 426 pages. The authors have captured a wide area where the crimes have taken place, laying an emphasis on the business world, the religions, the media houses and the political arena.

 The book then further sheds a light on the concept of mafias which are groups of people who are aimed at destroying each other by defrauding and swindling off finances with an aim of making themselves financially capable, and has also indicated the scams that come up as a result of that. The book narrows its study to the occurrences in India making it very understandable and very easy for the reader to relate the concepts to the happenings of a particular country. The book has been written for explorers, governments, reporters and any other interested readers.

Sutherland, Edwin Hardin (1985) White Collar Crime The Uncut Version Yale University Press.

Sutherland explained the concept of white collar crimes with a lime light on the happening of the United States business arena. The book flamboyantly illustrates the precedents that have been witnessed so far in American courts with a thorough inclusion of the different types of white collar crimes. The book illustrates the lengths at which individuals and a corporate can go to in order to swindle some money for their own financial benefits. The authors have made the book very readable and due to this it can be used by any kind of readers interested in the laws and the prosecutions behind white collar crimes.

Larry J. Siege (2008) Criminology 10th Edition Cengage Learning Publishers.

Siege, the author of the book criminology begins the book with an in depth analysis of the general concept of criminology. The theories and the criminal justice system are well introduced in this part of the book. The different types of crime are then explained one and one and later in the book on page 370, chapter 13, under the topic White Collar and Organized Crimes, the concept of white collar crime is covered. The book is aimed at equipping students with the required skill and knowledge of the concepts with additional end-of-chapter evaluations, synopsis and abstracts represented on tables and instances and cases. The examples are very essential since they ensure that whatever is studied in the book is applied side by side with what is happening in the real world. This therefore, makes it very easy for the student to analyze the concept and be able to detect a corporate or a white collar crime in the future when they are in the working environment.

In consideration of the given circumstances, the legal advice to be given to Lucky with regards to his cases against Whizzkid and Pota as claimant or plaintiff, as well as defendant against Minnie, Prodnose, Sam, Beryl and Julius are as follows

Relevant Legal Principles
The case with regards to Lucky Bstard, Whizzkid and Hari Potta and Luckys liability in respect of Minnie, Prodnose, Sam, Beryl and Julius all refer to the law of tort. The law of tort concerns civil matters of negligence considered wrong and civil action is undertaken by one citizen against another (Rogers, 2002). The word tort is derived from the Medieval Latin word tortum meaning injury.  Here, there are elements of negligence that may be applicable duty of care, breach of that duty, breach that caused harm(s) in fact, and the proximity of the consequences of the breach.

In the case of Heaven v Pender, the tort of negligence and reasonable acts of care in order not to injure or harm the neighbour are laid out Who, then, in law is my neighbour The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question, (Lord Atkin, 1932).

With regards to a contract or binding agreement between Lucky Bstard and Whizzkid and Harry Pota, there is binding principle between them as Bstard being a client or customer. The duty of care is thus applicable.  Lord Esher provided an understanding of the duty of care as, ...under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another that, if due care was not taken, damage might be done by the one to the other, (Block and Hostettler, 2002, p 68).

Negligence is a term used in legal systems applicable to tort cases that require monetary compensation for physical or mental injuries (Rogers, 2006). The injured persons Minnie, Prodnose, Sam, Beryl and Julius may recover damages to compensate for the harm done on them as caused by the event which Lucky promoted. The case, if proven legitimate, entitles the plaintiff for compensation on any harm to their body and mental well-being, financial status or even intimate relationships. Resulting damages, however, are necessarily proven in order to recover compensation (Rogers, 2006). In common law, the elements that need to be proven for negligence include duty, breach, causation and damages. Actual cause and proximate cause may also be required.

In the breach of duty, all applicable to Bstard with Whizzkid and Pota, as well as Bstard to Minnie, Prodnose, Sam, Beryl and Julius, it must be established that the defendants (for case of Bstard as plaintiff) must be aware of exposing Bstard to risk of losing his investment or money. As for Minnie, Prodnose, Sam, Beryl and Julius against Bstard, it should be proven that breach of duty on the ascent of Dan - Dans death being the central focus of the causation - has been committed by Bstard.

In the case of Bolton and Others v Stone (1951), Lord Thankerton declared, Bourhill v. Young 1943 A.C. 92 at p. 98, the duty is to exercise  such reasonable care as will avoid the risk of injury  to such persons as he can reasonably foresee might be injured by failure  to exercise such reasonable care , and Lord Macmillan used words to the like effect at p. 104. So, also, Lord Wright in Glasgow Corporation v. Muir 1943 A.C. 448 at p. 460, quoted the well-known words of Lord Atkin in Donoghue v. Stevenson 1932 A.C. 562 at p. 580 You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, (P 14).

In the case HELEN PALSGRAF, Respondent, v. The LONG ISLAND RAILROAD COMPANY, Appellant, the act of negligence was dismissed as the court noted that, Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right, and the conduct of the defendants guards, if a wrong in relation to the holder of the package, was not a wrong in its relation to the plaintiff standing many feet away, (The Historical Society of the Courts of New York, 2010, P 1). The defendants did not act nor omitted duty to cause harm on the appellant.

Appropriateness of legal authorities
Legal action and judges imposition is needed in the case of Lucky Bstard against Whizzkid and Harry Pota. Bstard is a victim of negligence by the financial advisors. Such can be drawn from the case Johnson v. John Hancock Funds, No. M2005-00356-COA-R3-CV (Tenn. Ct. App., M.S., June 30, 2006) which the court of appeals stated, Securities are goods for the purposes of the Tennessee Consumer Protection Act, and investment counselling and advice is likewise a service. Accordingly, offering securities for sale and providing investment counselling are consumer transactions. The Act explicitly proscribes unfair or deceptive acts or practices in connection with consumer transactions (Tenn. Code Ann. 47-18-104(a), (b)(27). Following the Tennessee Supreme Courts reasoning in Myint v. Allstate Ins. Co., we have determined that acts or practices in connection with the marketing or sale of securities are covered by the Tennessee Consumer Protection Act. Therefore, the trial court erred by granting Signator Investors motion to dismiss. (Day, 2010, P 4).

In the said case, complainant Linda Johnson claimed that she received poor advice from financial advisor which consequently led to Johnsons loss of money.

Rogers (2006) cited the case of Caparo Industries plc v Dickman in 1990 of which duty of care was applied. As service providers, both Whizzkid and  Pota should have carefully studied the financial markets prior to providing an advice to Lucky Bstard about possible investment. Thus, a reasonably foreseeable result of their conduct was established. The second of the 3-fold test is the relationship between Lucky Bstard with Whizzkid and Harry Pota. As financial advisors, there is a relationship established between Bstard and Whizzkid, and another relationship between Bstard and Pota.

Lucky Bstards liability in respect of Minnie, Prodnose, Sam, Beryl and Julius, lies on the death of Dan Dangerous and the consequences of this death. Several consequences that harmed Minnie, Prodnose, Sam, Beryl and Julius are answerable by the same law of tort. This is another case of unintentional tort and may fall under negligence. There was negligence on the part of Lucky Bstard for allowing Dan Dangerous to take on the task of ascending into the air attached only to helium-filled toy balloons. The first thing that Lucky should have done is undertake a contract or a signed agreement with Dan freeing Lucky of obligation on some matters with regards to accident incurred during the event. Lawful obligation should have been stated on the contract such as how much compensation from Lucky is Dan allowed, third-party insurance for any possible accident, and other circumstantial possibilities such as possible fame for Dan, of which Lucky will not be part of.

Another obligation of Lucky prior to holding the charity event is in distributing tickets with agreement written on it against ticket buyers or spectators of the free ascension of Dan. A public announcement should also have been provided through television, radio and other forms of billboards that warn audience about the possible consequences of watching such a dangerous undertaking freeing the event organiser Lucky of any obligation should the watchers proceed to witness the event. The third obligation for Lucky should have been to sign a contract with all personnel involved in the event including Sam, the fireman, that all personnel are physically and mentally fit to witness such event. The contract should also have specified the limited obligation of Lucky that includes compensation for the day work.

Application of the law to the facts
Three stages of test to determine the duty of care applicable on the case of Bstard with regards to Whizzkid and Harry Poa as indicated in the Caparo Industries v Dickman (1990) are as follows

If consequences of the defendants act were foreseeable as in the case of Kent v Griffins in 2000. It can be said that Whizzkid could have first checked the viability of an online company investment prior to giving advice to Bstard. The same can be said of Pota. Both advisors could have prevented the loss of Luckys invested money have they tried to consider the stability of financial securities.

If there is an established relationship or proximity between the parties whether it be legal or physical closeness such as the 1970 case of Home Office v Dorset Yacht Club. The proximity or relationship between Lucky and Whizzkid as well as Lucky and Pota are as client and service providers. Paid or not, the acceptance of the job as financial advisors make Pota and Whizzkid accept a relationship with Lucky.
The circumstances dictate justice and fairness attainable only through lawful imposition of duty such as the 1997 case of Capital v Hampshire County Council. Just and fair acts may be imposed on Pota and Whizzkid on Lucky Bstard as their client. The court of law is the only resort for this being a legal case of tort.

The case of Lucky Bstard against financial advisor Whizzkid and Harry Pota is that both financial advisors were likened to manufacturers selling good who should have the duty of care to ensure that the goods being sold - that is securities investment - should have been carefully checked and double-checked so as not to harm the buyer which in this instance is Lucky.

When it comes to the case of Lucky against Minnie, Prodnose, Sam, Beryl and Julius, duty of care and relationship or proximity must be established. Where there is a possibility of a contract between Lucky and Dan Dangerous indemnifying possible liabilities of Lucky with regards to the ascent as Dans wilful acceptance of the task or participation in the and not as a paid work or obligation, there is a high probability that Lucky will be spared of any damages. As in the case of Bolton v Stone 1951 AC 850, 1951 1 All ER 1078, defendant was seen to have not any reasonably foreseeable consequence of his conduct by hitting a cricket ball. By promoting the ascent, Lucky may have been contracted by the event organisers to promote the ascent and that Lucky may not directly be involved in the process.

Careful consideration of the processes prior to the accident should be examined. The questions that need t be answered include
Was there any contract between Lucky and the organisers of the event or ascent of Dan Dangerous What are the specifications
Was there a contract between Dan and the organizers
In consideration of any contract as mentioned above, was it established that Lucky Bstard and Dan Dangerous are directly linked

Clarity and cogency of argument
The argument of Lucky Bstard against his financial advisors Whizzkid and Harry Pota will encompass the declaration of Lord Esher that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another that, if due care was not taken, damage might be done by the one to the other.

Financial loss are the damages done to Lucky by the negligence of Whizzkid and Harry Pota in providing financial advice to Lucky. As advisors, both are burdened with the duty of care, being in proximity or relations as client to service provider. The advisors, too are burdened with the duty to check reasonably foreseeable consequences or harm.

As for Luckys probable defence against Minnie, Prodnose, Sam, Beryl and Julius, he must establish his being a promoter as a professional with contracts to all his partners or associates including Dan Dangerous. In the case where accident insurance was not acquired for Dan for the said event, there is lack of contract or that the contract failed to specify the limitation of Luckys obligation, he will be liable for possible damages for Dan or Dans family. Here, a particular act or omission such as the failure of Lucky to check whether the site of the extravaganza was on any flight path is applicable. Hence he was imposed to pay the estate of Dan.

Insufficient warning or agreement, too, may lead to additional compensation against Lucky in the defence against Minnie, Prodnose, and Sam. While Lucky may argue for the applicability of reasonably foreseeable consequences or harm, it is likely that lack of warning and written agreement will have the case turned against Lucky. The presence of Minnie as audience, Sam as fireman, and Beryl as Dans mother are considered relationships and applicable in the case of negligence and breach of the duty of care. Prodnose, however, as a distant viewer, may not necessarily be directly linked, thereby losing proximity with the defendant Lucky. It was not clear, too, what the role of Dans father Julius identifying the corpse of Dan would be since Lucky accepted to compensate the estate of Dan. It was not clear how Julius had been harmed in the process of identifying the dead body of his son, except as Dans close relative and heir to Dans estate.

Conclusion
Lucky Bstard has acted properly by compensating the estate of Dan Dangerous. He may file a case of tort against Whizzkid and Harry Pota for breach of duty of care as financial advisors that caused him loss of a lump sum of monies. As for Minnie, Prodnose, Sam, and Beryl, a case may be filed against Bstard by the said individuals in consideration of breach of duty of care on the part of Lucky. Lucky may use in the argument the elements of reasonably unforeseeable harm done as well as lack of proximity or relationship between Lucky and the said individuals or probable appellants. As members of the audience who may have bought a ticket with written warnings or agreements, it is highly probable that sufficient information were provided to the audience and workers with regards to the event as heat-stopping, it being extravagant and adventurous in nature. In addition, being a former fianc does not impose any relationship between Minnie and Dan as the question of proximity is in the present.

Sufficient contracts and publicised warnings may add up on the defence of Lucky if these are present. Court examination and decision, however, my not ensure that Lucky Bstard is fortunate enough as elements and details need to be properly considered and legal basis interpreted.

In a typical case an exemption clause can be validly included in a contract provided reasonable steps are taken to ensure that it is brought to the attention of the party against whom it is applied.  Such a position is quite different from the previous approach which required that the exclusion clause be brought to the other partys attention in the most explicit way.  This turn around by the ruling in the Regus (UK) Ltd. v Epcot Solution Ltd 2008 which only requires that reasonable steps be taken to bring the exclusion clause to the other partys attention seems to suggest that a lower standard will suffice.  This paper will examine the law with respect to the validity and application of exclusion clauses and will argue that while Regus has lowered the standard, it is not entirely true that it may now be possible for all exclusion clauses to be rendered valid, although it may now be possible for more exclusion clauses to be held valid.  Ultimately, the standard of reasonableness as exemplified in the Regus case is essentially not really a departure from the previously established standard for upholding or denying exclusion from liability clauses in commercial contracts.

Exclusion Clauses
An exclusion clause is a clause that is included in a contract for the purpose of limiting, if not excluding liability for negligence in the performance of obligations or failing to carry out obligations under a contract.  The actual clause may be included into the contract in variety of ways.  For instance it may be prominently displayed in business places so that parties intending to engage in a commercial contract will have prior notice of the implications should they incur losses and damages pursuant to the contract.

The Law Regulating the Validity of Exclusion Clause Prior to Regus (UK) Ltd. v Epcot Solution Ltd 2008
The courts have generally taken the position that exclusion clause are not automatically valid. If an exclusion clause is not signed by the party against whom it is intended to apply it will be no real significance unless reasonable steps are taken to bring it to the other partys attention.  If an exclusion clause is incorporated into a written contract, if the contract is signed by all of the contracting parties, it will usually form a part of the terms and conditions of a contract. Ultimately, whether or not an exclusion clause is signed or not will not be the determining factor with respect to its binding effect.

Whether or not an exclusion clause is binding will generally depend on whether or not  reasonable steps were taken to ensure that the party against whom it is intended to be used, was aware of it prior to entering into a binding contract. Obviously, it is reasonable to assume that once an exclusion clause is incorporated into a contract and that contract is signed by each of the parties that the party against whom the exclusion clause is intended had reasonable notice of the existence of the clause.  It is a general rule of commercial contracts that once the exclusion clause is contained in  a contract signed by each of the parties, the parties are bound by all terms in the contract which invariable includes exclusion clause and it is of no consequence whether  the contract was read or not.

In essence, an exclusion clause is required to be effectively incorporated into the contract.   If this basic requirement fails the clause will have no real consequences for the commercial contract regardless of how much trouble goes into drafting the clause.  In a typical case the exemption from liability is displayed on the premises where the contract is made.  The exclusion may also be displayed on a document exchanged betweent he parties or referred to in a document.  A typical case is that of a ticket or a receipt.

The case of Thornton v Shoe Lane Parking Ltd. (1971) 1 All ER 686 provides a leading authority for the exceptions to the effectiveness and validity of an exclusion clause.  In this case the plaintiff entered  the defendants parking lot where signs were displayed warning that persons who use the car park would be doing so at their own risk.  A ticket was issued upon entering the car park from an automatic dispenser and the plaintiff  therefore received his ticket upon entering the parking garage.

An exclusion from liability clause appeared on the reverse side of the ticket stating that the defendant would not be liable for any injuries incurred as a result of  using the car park.  The plaintiff however, incurred injuries and initiated legal action to recover damages for those injuries.  The defendant attempted to rely on the validity and application of the exclusion from liability clause that appeared on the reverse side of the ticket.

Lord Denning stressed that such an exclusion clause is required to be brought to the plaintiffs attention.  To this end, Lord Denning stated with respect to  exclusion clauses

All I say is that it is so wide and so destructive of rights that the court should not hold any man bound by it unless it is drawn to his attention in the most explicit way.

In a latter case, White v Blackmore 1972 3 All ER 158, Lord Denning also noted that the court is required to be satisfied that any document that is relied on to prove the existence of the exclusion clause is an integral part of the contract.  Ultimately, this means that the documents displaying an exclusion from liability must be intended to be a part of the actual contract and not merely evidence of a receipt which is typically regarded as no more than a confirmation of the existence of a contract.

The difference was exemplified by Melish L.J. in Parker v South Eastern Railway 1977 2 C.P.D. 416 as follows

There may be cases in which a paper containing writing is delivered by one party to another in the course of a business transaction, where it would be quite reasonable that the party receiving it should assume that the writing contained in it no condition, and should put it in his pocket unread.  For instance, if a person driving through a turnpike gate received a ticket upon paying the toll, he might reasonably assume that the object of the ticket was that by producing it he might be free from paying toll at some other turnpike gate, and might put it in his pocket unread.

This line of reasoning was followed in the case of Chapelton v Barry UDC (1940) 1 KB 532 which explains how exceptions in terms of the effectiveness and application of an exclusion clause on a ticket or receipt apply.  The plaintiff who was on a beach resort notices some chairs which contained a notice reading that, hire of chares 2d per session of 3 hours  Public requested to obtain ticker from attendant.The plaintiff proceeded to avail himself of a chair and the attendant ticket which contained a notice that read the council will not be liable for any accident or damage arising from hire of the chair. On appeal it was ruled that the exclusion from liability clause was not on the actual notice to obtain a ticket, which could not have been obtained at the same time the chair was rented and could therefore not operate to alter the terms of the contract.  Essentially the question was one of reasonable notice prior to becoming bound by the terms and conditions of the contract.

The courts will also look to the particulars of the specific case and will take into account whether or not the exclusion from liability forms a part of the typical course of dealings between the parties.  Ultimately the court seeks to assess whether or not the exclusion clause is fair iin the circumstances of the case before it.  For example  Lord Dunedin maintained in the case of  Hood v. Anchor Line Ltd. (1918  that
Accordingly it is in each case a question of circumstance whether the sort of restriction that is expressed in any writing (which, of course, includes printed matter) is a thing that is usual, and whether, being usual, it has been fairly brought before the notice of the accepting party.

It therefore follows that the court can come to the conclusion that in  a particular case a consumer has adequate notice of an exclusion clause as a result of the fact that heshe is a regular patron of the business in question.

However the ruling in Baldry v Marshall (1925) 1 KB 260 places another restriction on the application and validity of the exclusion clause.  In this case the court cautioned that the exclusion clause is required to be clear and precise and it will be very strict in this regard, particularly in cases where such a clause seeks to restrict or exclude damages in respect of personal injuries.

Moreover, Section 2(1)  the Unfair Contract Terms Act 1977 will operate to impose liability for personal injuries regardless of an exemption from liability clause.  By virtue of Section 2(1) of the 1977 it is not possible to exclude liability for damages resulting from personal injuries as a result of negligence in performing obligations uner a contract.   Under S2(1) no one acting in the course of a business can exclude or restrict liability in negligence for death or personal injury by virtue of a term in a contract or by way of notice.  Section 2(2) of the Unfair Contract Terms Act 1977 makes provision for enforcement of exemption clauses in respect of other types of damages including loss of property.

Section 4 of the 1977 Act also provides that an exclusion clause is not generally enforceable when one of the parties to the contract is a consumer, unless the clause is reasonable.  This section is founded on principles of inequality of bargaining position.The good faith doctrine is primarily reliant upon the strength of the respective bargaining position of the parties and determines whether or not it is fair and reasonable in the circumstances to validate the exclusion clause.

In general the law has developed to such an extent that it is fair to conclude that in order for an exclusion from liability clause to bind the parties, the party against whom the clause is intended to be use should have the benefit of sufficient notice of the clause either before or simultaneous to entering  into the contract. Whether the exclusion is read or not is of no real consequence. The courts have also demonstrated a tendency to rely on what can be characterized as the main purpose rule. Under the scope and range of the  main purpose rule, in circumstances where the exclusion clause is inconsistent with the contracts main purpose, the exclusion clause can be refused on the grounds that it undermines the uselessness of  the contracts purpose.  The House of Lords essentially took this approach in  the case of Suisse Atlantique Societe dArmement Maritime SA v NV Rotterdamsche Kolen Centrale 1967 1 AC 361.

As a result of the House of Lords approach to  the main purpose rule in the Suisse Atlantique case Section 3 of the Unfair Contract Terms Act 1977 was implemented.  Section 3 provides that in cases where one of the contracting parties is a consumer or the other party attempts to rely on standard business terms
As against that party, the other cannot by reference to any contract term
When himself in breach of contract, exclude or restrict any liability or his in respect of the breach or
Claim to be entitled-
To render a contractual performance substantially different from that which was reasonably expected of him
In respect of the whole or any part of his contractual obligation, to render no performance at all.

There is an important exception and that is the requirement that any attempt to limit or exclude liability under any contract should be reasonable in all of the circumstances of the particular case. It is obvious that Section 3 of the 1977 Act  is aimed at offering sufficient insurance that any party purchasing an article pursuant to contract for the sale of goods should be able to anticipate that goods purchased are fit for the purposes for which they are purchased.  It therefore follows that any exclusion clause that functions to defeat this kind of contractual purpose will not be capable of standing up against the purchaser.  This is the rule of thumb whether or not the exclusion clause is clear and contained in a contract signed by the parties.

If there is any doubt about the intent of Section 3 with respect to the main purpose of a sale of goods contract, Section 14 removes all doubt.  Section 14 of the Sale of Goods Act 1979 also applies to exceptions against the validity of the exclusion clause.  The result is that any term forming a part of the terms and conditions of a contract for the sale of goods must be interpreted by reference to Section 14.  Section 14 essentially protects the purchaser of goods to the extent that any person who purchases goods from a business is entitled to assume from the start that the goods are of merchantable quality.

The Ruling in Regus (UK) Ltd v Epcot Solutions Ltd
The ruling in Regus must be considered by reference to Section 11 of the Unfair Contract Terms Act 1977 which provides that contractual term is deemed unreasonable unless in the circumstances
the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.

From the discussion thus far it has been established that the courts have taken account of a number of factors when ascertaining whether or not an exclusion from liability clause is reasonable.  These factors include
The parties bargaining position.
The parties participation in negotiating the terms of the clause.
The steps taken to bring the exclusion clause to the other partys attention.

The case of Regus essentially examines the test set forth for reasonableness in the construction of an exemption clause by reference to Section 11(1) of the Unfair Contract Terms Act 1977.  Essentially the Court of Appeal took into account a number of scenarios that should be focused on in determining whether or not an exclusion clause would be unreasonable between two businesses in a commercial contract.  While the question of reasonableness will be markedly different between two businesses in a commercial contract it will not alter the position between a business and a consumer under a commercial contract.  This is because the test for what is reasonable as it relates to an exclusion clause, will take into account the relative bargaining positions of the parties so that what may be reasonable between two businesses will not be reasonable between a business and a relatively weaker party.

In the Regus case, Regus provided office services and entered into a contract with Epcot who provide IT training and occupied one of Regus offices at Heathrow.  At some stage, Regus closed down its offices at Heathrow with the result that Epcot had to relocate.  The issues included the fact that Epcot incurred damages as a result of having to relocate, including the fact that the air conditioning at the new premises did not work properly so that employees were becoming sick.  Regus did not attempt to have the air conditioning unit repaired and the relationship between the parties eventually soured and Regus claimed fees had not been paid by Epcot and the latter counterclaimed that Regus had breached the contract which included a claim for loss of profits.  Regus in turn argued that there was a valid exclusion clause excluding liability for loss of profits and in any event, Epcot had the responsibility of taking out an insurance against such losses.

The High Court ruled that the exemption clause was unreasonable because it left Epcot with no real remedy in the event of a breach of contract.  The Court of Appeal disagreed on the grounds that the clause was not unreasonable in that Epcots CEO was essentially an intelligent and experienced businessman who was quite current with the standard terms of Reguss business operations and Epcot had a corresponding term in its own business contract.  Moreover, Epcots CEO had fully participated in negotiating the terms of the contract, including the exclusion from liability.   The Court of Appeal also ruled that although Regus was bigger in terms of business size than Epcot was, there was no inequality of bargaining position because there were a number of business alternatives to Regus that Epcot could have turned to.  Moreover, Epcot was at liberty to take out an insurance policy against such losses.  Therefore, in all the circumstances, the clause exempting liability was not unreasonable.

Conclusion
The test of reasonableness as used in the Regus case is not a departure from the established authorities which essentially ruled that what is reasonable is entirely dependent upon the facts of the specific case.  Although Regus might mean a different standard for business to business commercial contracts it cannot stand as a precedent for the standard to be applied in the consumer to business commercial contract.  This is because there is generally a presumption that the consumer is a weaker party to the business, therefore the emphasis on equality of bargaining position in the Regus case will only apply to business to business commercial contracts.  Moreover, statutory provisions such as those found under the Unfair Contract Terms Act 1977 and discussed in this paper will offer protection of the consumer in the event of an exclusion clause.

Another fact of note that distinguishes Regus from the previously decided cases and those discussed in this case is the fact that the parties freely negotiated the terms of the contract.  This is not often the case in the consumer to business commercial contract.  In the latter type of commercial contract, the consumer is typically presented with the standard terms of the contract on a take or leave basis and cannot be said to have freely negotiated the terms of the contract.  When all is said and done, the Regus case is not a dangerous precedent in that it will render virtually all exemption clauses reasonable.  What is reasonable is subject to the same conditions as before.  In other words all of the facts and the circumstances of the case will be taken into account.  The best that can be discerned is that, Regus merely adds to the growing list of case laws in terms of what factors can be taken into account when determining what is reasonable.  In this regard, it only takes a narrower approach to what is reasonable when two businesses of equal strength and intelligence come together and negotiate the terms of a contract.

The Australian legal system has a fundamental foundation of the rule of law, the independence of the judiciary and justice (Henry 2004). This means the law treats all people, the Australians and the foreigners, equally ensuring that everyone is safeguarded from unfair treatment by the government or its officials.  The main principles of the Australian legal system are the following the procedural fairness, the judicial precedence and the separation of powers. The Australian law system follows the one of the United Kingdom, though it is distinct from most laws that operate in countries of Europe, South America and Japan. It is referred to as the common law system, and countries like the US, New Zealand and Malaysia use different variations of the law (Neil 2009).

The Australian constitution established a system of government called the federal system and the constitution distributes powers between the states and the federal government. The constitution distinguishes two kinds of power, namely, the exclusive power that entails the power of the government to make laws concerning national matters, such as trade, taxation, commerce, external issues, national defense, matters of citizenship and immigration (Terence, 2004). The other power that the federal government has been given by the constitution is called the concurrent power where the two governmental tiers are able to ensure the enactment of laws. The territories and the states have legislative powers that are independent in the matters that are not particularly addressed by the federal government. If there is an inconsistency or controversy between the state territorial laws and the federal ones, the federal laws prevail, because they are applied to the whole territory of Australia. The country has nine legal units, namely, the eight territorial and the overall federal unit. The day to day lives of the Australians are regulated by the territorial laws. Each of the federal and state units incorporates various separate branches of the governance system, namely, the legislative, executive and judiciary power. The legislature is responsible for making laws the executive administers them, while the judiciary interprets them and ensures that they are properly applied. The Australian high court makes an interpretation of the Australian laws and makes decisions concerning the cases of federal significance including   the validity of the law constitutionally. The high court is headed by the chief justice who is assisted by six other senior judges (Whitmore 2009). There are other courts, such as the federal court of Australia, the family court of Australia and the federal magistrates court, which was established by the federal legislature in 1999, and has a wide jurisdiction. The Australian territorial courts have jurisdiction of all matters that are brought under the state or the territorial laws. The courts of the self-governing territories in the North and Capital Part, which are subject to the Commonwealths general legislature, have plenary constitutional powers to make laws that would maintain order and peace in the states or the territories that they are made in (Whitmeore 2009). Each state and territorial system of courts is independent and some of the laws vary in nature.

The government of Australia understands that people should have an access to the legal representation in order to ensure common justice. This means that the government can provide the legal representation to individuals who may not have the wherewithal to hire their own representative. Australia does not maintain a strict separation between the legislative and executive branches of power the government ministers are required to be members of parliament. The Federal system of government in Australia presupposes that the legislative powers are divided between the states and the Commonwealth. This is popularly referred to as the federal division of powers, and the named powers are usually exercised by the Commonwealth, as the courts have expanded the scope of the legal decisions, which the Commonwealth can make. The Northern and Capital territories are usually subjected to the authority of the Commonwealth in exercising the full plenary powers, especially, if the territorial laws are not concomitant with the federal laws. However, the constitution states that there shall not arise a controversy in the interpretation of the federal and the state laws, because if such a discrepancy arises, the federal law shall be always superior in relation to different laws of each state.

The states including the  self-governing territories in the North and  Capital Part, which are subject to the Commonwealths overriding have plenary constitutional powers to make laws that would maintain order and peace in the states or the territories they are made in. This means that most the laws in section 51 are concurrent while those in the next section are very exclusive to the Commonwealth. This further explains that the states can issue legislative acts in the aforementioned areas, as long as there is inconsistency with the federal law, which also falls under the division of powers. However, a situation where the high court has been largely involved in the interpretation of the constitutional provisions has led to a marked increase in the Commonwealths powers, thus, the executive at the expense of the territorial and statutory powers (Whitmore 2009). The Australian parliament is the arm of the government that makes laws and supervises all the other arms of the federal government and can make changes to the laws, if this is deemed appropriate. The parliament is bi-cameral, which implies that it consists of the queen, the senate that has seventy six members and the house of representative members, who are 150 in numbers. There are two types of senators in the parliament, namely, the state and the territory senators, the latter being elected using the preferential voting, which means that their term in the office is not fixed. The territory senators are more influential in the national decision-making, because they represent a larger number of citizens than the state senators.

Contract of sale
 A contract of sale is an agreement that is signed in the case of the exchange of goods, property or services conducted by the vendor to the purchaser for the value that is agreed upon. This type of contracts is, without doubt, both the most common and the most important of all commercial contracts. It is an ancient exchange practice recognized by the common laws, but the Australian statutory law has recognized it only recently. The Sale of Goods Act of 1896 was designed to ensure that the transactions between merchants are straightforward (Salanie 2003). The most basic application of the contracts of sale is the simple transfer of property, goods or services based on the monetary consideration, which may involve the part- or the full owner. This means that there are two levels of a contract of sale, namely, absolute and conditional.

A sale contract is signed when the property is transferred from a vendor to a purchaser while an agreement to sell occurs when the contract of sale is not signed immediately, but is given a future consideration. This means that an agreement to sell becomes a sale procedure after the time span indicated in the agreement elapses. In every transaction that involves the transfer of goods, property and services based on the monetary consideration, the contract of sale must be involved whether consciously or subconsciously and this capacity to make purchase or conduct sales is usually regulated by the general Australian law under the Sales Act of 1896. There are even laws that regulate contracts of sales made by people who are incapacitated, like the drunks, mentally challenged people or even minors, who may not have the mental capacity to understand the details of the contract.  The most common contracts of sale today are usually done in writing and the writing can be with or without a seal.

There are other types, albeit in few cases that are made by word of mouth or a combination of the two methods. The rules are, however, different when it comes to contracts of sale made by corporations (Fitzgerald 2006). The goods that are involved in the contract of sale may be already inexistent or manufactured or processed later after the contract is signed, and in reality, this is usually referred as future goods. There may be a contract of sale of goods where the sale depends on the contingency, and this may not materialize meaning that in case a contract of sale is purported to effect a present sale of a good that is not already in existence the contract is not yet a contract of sale, but an agreement to sell which means that there are chances that it may never be signed after all. The contract becomes null and void, if the goods which the seller and the buyer are transacting have perished without the knowledge of the seller prior to the making of the contract. However, if they perish after the agreement to sell is made, the risk is usually passed to the buyer according to the law. One of the most important factors in a contract of sale is pricing the price may be fixed by the contract or the space for it may be left blank to be decided by the vendor and the buyer depending on circumstantial considerations in the course of dealership between the two transacting parties (Terry 2003). Another famous instance in the modern days, still, under a contract of sale is the agreement to sell goods using terms where the price will be fixed by the third party-evaluation, and if that the third party cannot make an evaluation, the agreement is usually avoided. If the third party is prohibited from making the evaluation because of the fault of the vendor or the purchaser, the third party usually may seek damages from the two parties at fault. According to the Australian laws, a contract of sale is always subject to a condition that must be fulfilled by the seller and the buyer may decide to waive the condition or even treat that condition as a breach of contract depending on how the seller behaves especially if it is an agreement to sell.

 The law in the case of a breach of a contract of sale is the condition that gives repudiations or warranties and any party can claim for damages arising form the breach, but this depends on the construction of the contract and the stipulations that were laid down when the contract was being made. This means that the contact is not severable and the buyer has to accept the goods once the contract is signed and any illogical grounds for rejecting it may lead to the treating of the contract as repudiated (Salanie 2003). The implied terms in a contract of sale is that the goods are free and they remain free until a time shall come when the property passes to the buyer and the buyer is entitled to enjoy the quiet possession of the good, unless he or she is intercepted by the seller or any other party related to the contract.

One of the most common contracts of sale is the hire purchase contract (Cossa 2008). Hire purchase is a close ended leasing and occurs in the cases where the buyer cannot afford to pay the price that the seller has quoted at one go or in a lump sum, but can afford to pay a fraction of the price as a deposit followed monthly rent figures called installments. In this case, the buyer gains possession of the property before he or she settles the full amount but the seller gets a percentage higher of the original price when the full amount is paid after the agreed period because the hire purchase price is always higher than the ordinary cash price. In most circles, hire purchase is referred to as installment plans or rent to own. In case the buyer does not honor the payment as agreed in the contract, the seller is allowed by the terms in the contract to repossess the property without refunding the deposit and the installments already paid. This is because the contract is even recognized by the law and the action the seller will take will be in accordance with the law.

Ethics
Business ethics is also known as corporate ethics and is applied to examine the principles of ethics that arise in the business atmosphere concerning every aspect of how a certain business conducts itself. The conduct of individuals in a business is very relevant in the analysis of business ethics in a certain entity. Ethicism is the focus on ethical processes of business, especially, in the conscience focused 21st century business environment where pressure is being loaded upon businesses to improve the way they conduct themselves ethically. The reason for this is that the gains that are made when a business acts in an unethical manner are short term, but the long term effects can be highly detrimental. Most businesses act ethically for a variety of reasons, especially, avoidance of fines and litigations, improving the reputation in the public realm, protecting the investments of the share holders, and to also protect the market share of the business. An ethical business has a competitive advantage over unethical ones, especially, because internal corruption is not condoned in such a business.

Unethical Practices at Boeing
One of the companies that have been riddled by a myriad of unethical practices in the recent past is the leading plane maker, Boeing of the United States (NY Times 2003). These unethical practices range from illegal business deals, accounting malpractices and illicit sexual liaisons involving top executives. The latest blemish on the waning reputation of the aero maker is the sentencing of the chief financial officer at Boeing, Mr. Mike Sears, to four years of imprisonment for secretly negotiating with a procurement officer at the US air force to lease about 100 planes to be modified, so that they can become tankers.

The investigations of this illicit deal have cost the government more than 2.5 million dollars. This is one of the most high profile corruption cases that would have cost the government and the taxpayers at large billions of dollars, had the secret deal gone though. The public outcry towards the revelations was sharp and acerbic because it exposed the underbelly of Boeing which in the past has had a clean record shying away from various controversies that have tainted a variety of companies in the United States of America.

In 2003, Phillip Condit was forced to resign because of the widespread criticism against Boeing due to the unethical business practices in a series of ethical lapses that has hit the worlds leading aero maker. The resignation was as a result of a lawsuit filed by its competitor, Lockheed, that resulted in pentagon canceling contracts of more than 1 billion that were supposed to be awarded to Boeing and the company was also disqualified from making bids for defense projects for two years. This is because it was found out that the company had been spying on the competitor in a manner that was likely to affect the market presence of the latter.

These revelations also brought under scrutiny the tanker project that Boeing had a deal with the US air force. The pressure from the media forced the Pentagon to review the deal actually at the negotiation stage. Two top executives had been sacked prior to the resignation of Condit. These top executives had been involved in human resource malpractices where underhand methods were used to hire some top accounting personnel in order to conceal some unethical accounting malpractices that would have seen the government lose billions in revenue from the multi billion dollar aero company. A few months later, the CEO who took over from Condit was also forced to resign after an illicit sexual liaison with a junior female member of staff that brought the reputation of the company down. Harry Stonecipher did not even make a year at the helm of the embattled air craft manufacturer before he was forced out due to an improper relationship with the female officer. Though the relationship did not have an impact on any business of the company, the revelation of the relationship with the executive young enough to be his daughter is enough to dent the image of the company already grappling with bad publicity due to an upsurge of unethical behaviors.

A CEO is supposed to be the one leading in upholding any ethic that is laid out by the company and the conduct of Mr. Stonecipher, did not reflect that of someone who is supposed to lead the way in ensuring that high levels of corporate ethics are followed in the company. It is also a bad example to the young members of the public who are looking up to influential figures like Mr. Stonecipher for motivation and inspiration. The public expects a person holding the position like that to be of unquestionable integrity and ethics and morality which means that Mr. Stonecipher has terribly failed the test and as such cannot be entrusted to hold such a position of public importance. These ethical lapses have brought down the credibility of this are manufacturer and there has been considerable media and public scrutiny on the corporate governance of the company. This is because Boeing is a blue chip company which is a trendsetter in the aviation industry and one of the historical industrial masterpieces in the United States. This means that this is the pride of the nation and any bit of negative development is bound to raise the public dissatisfaction.

There is the accepted code of ethics that the CEOs and the top executives of the company were supposed to adhere to that they did not. Starting with the cancelled deal with the US air force, the CEO was supposed to handle the deal in a manner that does not betray the corporate image of the company. However, the CEO decided to use underhand methods of spying onto the operations of its main competitor, thus, compromising it is the companys image that is supposed to be without blemish (NY Times 2003). There is no problem, if the US air force decided to split the tender and award it to the two rival company but sending officers on an espionage mission to the rival firm in order to scrutinize all their business deals was a contravention of the fair play policy and raised questions about the credibility of Condit as a CEO who was supposed to lead Boeing out of the woods.

The move was cheap and tainted the image of the company in the public eye. The public who the company serves also expects the leadership of the company to be responsible and act in a way that would not have a detrimental impact on one of the biggest national symbols. A tainted image of a national symbol taints the whole nation and that is why high quality business practices and ethics are supposed to be upheld (Terry 2009). The case involving illegal recruitment of accounting executives was a move that was supposed to hide the underhand and unethical accounting principles of the company that were geared towards tax avoidance and other forms of defrauding the government (NY Times 2003). Once again, corruption, whether in hiring or in accounting is a very unethical practice that the public does not expect from a company of Boeing stature. It is expected that the company should submit clean accounts to the public, but the revelations that illegal hiring were made in order to adulterate the accounts in bid to defraud the government is a stain on the company and that is why the top executives had to be sacked. At the time when the American public has become increasingly conscious of the gradually growing corruption cases in the country corporate and public realms, such revelations coming from a symbolic multinational are just too grave to contemplate (NY Times 2003). As a result of the string of ethical scandals that have hit the company in the recent years, the public confidence in one of Americas biggest exporters of technology has dipped to an all time low and this loss of confidence in the corporate governance can also affect the market share of the company, because people will now start questioning the products of the company.

The public expects an all-around perfection in any company that is in business, because if the way the company is being administered is questionable, then even the process of making the goods or providing some services will be in doubt (Garland 2009). In the mind of the public are a myriad of unanswered questions, because what has been unearthed about Boeing may be just a fraction of the rot that is in the company and this decay may compromise the companys efficiency in providing the world class technology that is famed for. This will subsequently dent the competitive advantage that Boeing has been having internationally and giving its competitors space to catch up and even take its market share. The effect of this unethical behavior can be evidenced by the gradual dip of the share prices of the Boeing Company at the local stock market (NY Times 2003).

The European Union, although one of the most recently formed unions in the world, has been really asserting itself as a sovereign and unique regional grouping not only in matters of trade and politics but also in legal affairs. Over time, the European union has worked relentlessly in seeking to achieve this state where it could assert itself as a dominant force that was capable of governing itself and conducting most other affairs on its own. It has been in the quest for such prowess that the EU has been able to come up with its own constitution which now acts as the supreme authority over all matters of the bloc, and a guide in legal affairs. Matters of great concern and those arising out of failure to deal with emerging issues for whatever reasons there may be,  as long as it is a legal one, are usually referred to European court of justice which is charged with the responsibility of arbitrating over conflicts.

The court has the overall supreme authority in the EU jurisdiction to overrule any previous or earlier rulings in lower jurisdictions within the EU. Different aspects of the law have been dealt with in the new constitution as would be expected of any constitution, but critics have been highlighting different areas or aspects within the main law which they claim have been more or less reiterated and overemphasized. For instance, the renown law scholars Craig and De Burca (2007) in their book EU Law Text, Cases, and Materials assert that, the consistent theme in the ECJs jurisprudence is that once the property right owner has placed the goods on the EC market itself or has consented to such marketing, the goods can move freely throughout the EC. They cannot be opposed by the right of holder. This paper reviews this assertion and critically discuses it with respect to the rest of the EU law.

The EU Market Rules
The EU has been known to be  trading block whose laws are consistent throughout all member states and which have as far as possible emphasized the need to have the free flow of goods throughout the union without any undue restriction. To do that they have succeed very well. However, it is the issue of the right of holders ability or power to recall what has already been placed on the market for whatever reason in relation to the legal requirements of the EU law regarding such goods that is under scrutiny. If indeed this is a most reiterated theme as Craig asserts, then it means that trade in the EU has been given a great deal of importance. This is true when matters of an EU internal market are concerned. This market is expected under law to allow for the free movement of goods within member states and a failure will lead to legal confrontations.

Although it is clearly understandable that  the right of holder  the person to whom the rights to manage or own the property under question belongs are vested  ought to decide what is the eventual state of the goods, the EU law has in one way or another trampled on that aspect of the  law and instead given preeminence the section requiring that as long as consent has been given, in which case the goods are lawfully within the market, then that is the end of the powers of the rights of holder of the goods. All the rest is determined by EC market laws. The ideals of a single market have sought to exalt the EU over individual states desire or attempts to have measures that favor or discriminate imports. As will be found in Acts 90, 91, 92, and 93 of the EU trade Treaty, any country that attempts to use a tax system which discriminates against imports is liable to charges of contravening the Act. Although such law is likely to raise a lot of controversy as the court is required to rule on difficult matters, and a differential tax regime is such as matter that is deemed difficult, it is always unclear whether a country is therefore on the offense by having such taxes or not.

The Italy Case
As the EU is a market for nations and states as opposed to individuals per se, the cases often revolve around countries. A vivid case about this state of affairs involved the government of Italy. In a bid to preserve its unique and rich historical and cultural system most of which is centered on its past conquest of the world, the government of Italy taxed its exports of archeological, historical, and artistic goods and items. Citing article 169, the commission alleged that this was a breach of the law which required that all forms of duties and charges on exports be done away with. On her part, Italy held the argument that the purpose for which the said items were sold in the first place was not to raise any form of revenue or for any kind of monetary gain and as such they could not be regarded as goods. It instead argued that the items were only taxed in order to have the countrys rich cultural and artistic value systems protected. All these arguments were thrown out of the court as baseless.

The clear bone of contention here was the real meaning of the term goods. The complication was in the fact that under the Italian law, there was a clear demarcation between what constituted goods and what were not to be considered goods. As such, anything of national heritage, whether it was a commodity or any other asset was not a good in Italy. On the converse, according to the EU law, specifically Article 9 which the court quoted repeatedly during the case, the customs union covered all kinds of goods and these goods included all items or products which could be transacted commercially. This was a clear illustration that indeed the ECJ reiterates the need for free movement of goods within the market, and by addition, the need to have individual governments adhering to the EUs trading requirements more than its own. In a way, EU law is superior to country law.

Frances banning of British Beef 
This was another case which called for firm action on the part of the court, and like the others, proved that assertion that the ECJ lives by the doctrine that once goods pass from the right of holder, they cannot be opposed again but ought to move freely. In this case, France had banned the British imports even though they were well labeled. France cited logistical issues such as poor testing equipment to ensure quality and the failure for the exact date for lifting of the ban to be clearly communicated as some of its reasons for failing to let in the beef stocks. The court ruled that as the actions of France were illegal, it was to foot part of the losses incurred by the UK government while the commission, for failing to accurately communicate the matters of great importance well to France, was to foot the remaining costs.

Waste Disposal 
The other point that supports the assertion that the ECJ is so much filled with issues requiring free movement of goods, and that the powers of the right of holder are usurped by the court once the goods pass on to the market is that involving waste disposal. In an endeavor to have a cleaner environment, every country is trying its best to clean up and dispose of its waste in the safest manner. As a result, every country in the EU has in place laws that govern waste disposal. However, the EU Treaty requires that its own laws be followed when such waste has passed from the right of holder into the market. A case in question has been that of one country having to dispose of waste into another, legally. The law, in a nutshell, requires that the disposer of the waste can never expect the laws applying in the country of origin to apply even in the destination country.

In the Disclaimer Chrysler AG v. Land Baden, there was the dispute regarding one side incurring a lot of losses because of added costs owing to the fact that the waste had to be transported to another country over a very long distance just because only there could be found the right equipment for its disposal. One side, the defendant, argued that the costs could never be reimbursed because the law provided for the transportation under such circumstances, while the plaintiffs maintained that it was not right and that the defendant acted wrongly to have the waste transported over such a long distance. In its ruling, the court maintained that although there might be national laws that provide for local disposal of such waste, it was imperative that Community procedure was given preeminence over any other of the available national laws over which most of the plaintiffs arguments were based.

The Doctrine of Similar Effect
The ECJ has recognized, wisely so, that there is a great risk of having some countries or member states adhering to the customs union but possibly exploiting a loophole in the legislation and resorting to implementing a system where charges are identical or have a similar effect. To overcome this, there are provisions in the 25th article forbidding any such charges. Again, Italy became a victim of this provision when it imposed a charge on the goods bound for other states within the EU. This time around, it was for the purpose of having statistical material that the country needed in order to collect information regarding the order and pattern of trade in the region.

In the case, the court, just as it was expected, ruled that first and foremost its mandate included upholding the EU constitution whose laws required that customs union be upheld by all member  states, then added that the charging for anything was illegal regardless of the purpose for the levy and the likely beneficiary of the proceeds from such charges. As such, the court faulted Italy for hiding under the guise of gathering information to trample on the laws of the land. This case sparked off other concerns about how the court actually interpreted the law with respect to the doctrine of precedence. There has been a seeking to understand whether the individual countries ought not to repeal their own national laws as entrenched in their constitutions so that they would only use EU law, or if it makes any sense that one has a right of exercising control over what one has.

Conclusion
It has been noted that the application of the law in the EU has so much been skewed to favor those statutes that emphasize the need to have a common market system with a customs union where there is no form of restriction, tax, or charge. The ECJ has been noted for working hard to resolve conflicts to this effect and in most of its ruling, it has indeed reiterated the fact that once goods pass from one country, the one that has the right over the goods, then that country has no further say in how the goods will move throughout the region. As such, there is no way such free movement can be affected or opposed by the right of holder. Cases to that effect have involved Italy, France, and Germany, all which have had different encounters in the ECJ either with the European Commission or with other opponents. To this end, EU law has managed to override national laws. The result has been a total adherence to the EU constitution.

For a legal system to be fully developed, it must have its own procedural testing mechanism as well as the legalities of measures that are adopted by any of its institutions.  When the European community was faced with the duty of designing such a self checking mechanism, it came up with the rule defined in the article 230(4) of the constitution for annulment that is central to the act of regulation.  This law originates from the legal systems of the member states, that counters illegal acts of administration.

The European Union Judicial protection system is designed to act under three stratified levels which include the institutional, member state and the individual level. The provision of judicial protection of a certain level means that every particular level is enabled towards the protection of its rights against any other level and that each particular sub section of the level must be able to provide for its rights against any other subsection of the level which is all within the same law (Lenearts, 2004, p.319).  However, the law does not apply without the provision for remedy in the European Court law.
 
The article 230 of the European Court treaty is defined as the action for annulment which stipulates the acts against the exiting  and the binding acts of law in which case it is mandatory for the applicant to identify the act and also mention it. This section also gives quotations on the annulment reasons valid for the law. These are mentioned as the power misuse, incompetence at the level of practice, treaty infringement, and if an essential procedure is infringed in. The law in this particular act dictates on which type of applicants to the annulment act for example, the individuals who can only object to the decisions directly affecting them and addressed to them directly and are of individual concern.

The other kind of applicant is the member state, the council and the commission, while the third level of applicants are the Auditors court, the European parliament, and the Central Bank of Europe. The law stipulates the defendants, who in this case are the community bodies and the institutions. The institutions include the member state and the individuals.

The controversial issue in this act originates from the restriction mentioned and imposed on the individual applicant who is only restricted in laying claims to judicial injustices that are only direct to himherself and not that are of different concerns. If a relative or another person wishes to ask for justice in annulment article 230 (4), it is further stated that this applicant must prove beyond any reasonable doubts that he is a directly linked to the group in which he wants the annulment effected (Dougan, 2007, p.942).

The forth section of article 230 EC, is worth a challenge from the non privileged applicant. This locks out the freedom of an individual to participate in the judicial review process without first meeting the preset conditions.  The access to the open judicial review process is limited to the legal persons while the same upholds the privilege to the member states and institutions of the community.  This is highly criticized by the scholars and people of sound mind in the European Unions.

The law in this article contradicts the already existing clauses on the community based constitution, the human rights conventions and the fundamental right charter of the European Union.  One of the most contradicting features of the Article 230 (4) is that it does not define the possibility of an individual challenging its directives while this doesnt give the reasons as to why this could not be done. The law however defines further that an individual can challenge any decision directed to other parties, if he is directly linked to the party or is individually affected by the decision.  This only allows the community rules to be more applicable in decision making rather than a persons own identity.

There is no uniformity of judgment under this Article. For example, Plaumann, a Germany who took part in import market, came up with the idea that was discussed by Germany commission, denying the reduction of the import duty to clementines. Also,   The closed category approach of defining the individual concerned parties is used in areas of the past for instance. The approach was applied in solving the case of group of fruit importers called the International Fruit Company as reviewed by the BV commission, who applied for an fruit import license in which he considered a group of individual decisions because it was said to have been effected the previous week by the relevant authorities of the Union that were then concerned with the license processing.

On the other hand, the court used the abstract terminology test whenever an organization stated that it was under closed category and that it could be defined so for a certain duration of time, for example one year. For instance, the Williams pears producers wished to annul a production regulation to be applicable in the new form for a years duration unlike the former that was used for three years (Craig, De Burca, 2002, p.274).

The restrictions of the locus standi of private applicant as elaborated in the European act the article 230 (4) EC as pertains individual applicants is criticized for compromising the protection judicial rights to the citizens and attributed to the failure of the state to offer effective justice (Alter, 1998, p.138). The judicial review access to community courts of the Europeans has been denied through a number of limiting factors that have been put in place. This is applicable to the applicants who are denied the access, standing for individual applicants found to be extremely difficult due to the preset conditions for both individuals and those that need direct access.
 
For one to gain access to the judicial services under restriction, the individual applicant must clearly show that the measure under question is directly linked to them as stated under the article 230 (4) EC. The court stipulation in the article 230 (4) EC is that direct concern can only exist if a complete set of rules which are sufficient in themselves and require no implementing provisions, while in reality, this restriction needs the establishment of direct casual connection between the applicants legal position.  The required conditions for locus standi which was developed in the 1960s continues to be applied even up to date to asses admissibility of individual applicants, while this is just the most dreaded condition by the community (Wecicke, 2007, p.389). For one to gain the accesses to individual concerns, then heshe must pass the Plaumann closed class test, that is proving that heshe was a member of a group which cant swell after the enforcement of the community act.

The nature of the European Union economy is such that the operation is on the free market style that is guarded by the supply and demand rules instead of the sector regulations.  This therefore affects the groups operation s in terms of expansion thus limiting admission to such groups for an individual. Secondly, the applicants that are non-privileged can seek the review of the judicial regulations.  It would only be allowed in the cases where the community measure proven by the party that it wasnt a regulation but more of the individual concerns regulation (Shapiro, 1999, p.326).  The Calpak test or the abstract terminology test which is a strict requirement is said to have been created for the good of the individual applicant. The court is said to have foreseen it to safeguard the legislators resistance against confrontation through the draft form of regulation which was drafted under pressure from the court foreshadowing the claims posed by the individuals that would befall the commission on a later date.
 
The regulation form could not only be disputed before its enactment, but more to it when it was passed as a law. It was found to have some weakness in the way it described the admission of restricted applicants. The structure of measure was not only a problem but rather the implications of the regulation to the individual applicants on locus standi assessment.  The loophole was that one could not easily distinguish between the true regulation and decision made in it  for there was further requirement for the applicant to further issue a prove statement  to testify the personal concern which was as per the stipulations of the Plaumann formula in its pure state (Craig, De Burca, 2007, p.3410

In other occasions for example, some applicants were subjected to a standing, when they wanted to dispute the court decision in allowing France restriction to importation of cotton yarn.  The importation restriction was to affect Greece, the exporter of the cotton yarn to the France.  Nonetheless, the standing served under the capacity of Accession Act of Greece that was to be put into account before the application of the restriction (Harlow, 1999, p.268).  This was due to the protection of the Greece by the act that worked on matters of contract and such related multinational agreements.  Although this was applied to this particular group, the act was not covered under the accession act of the EU. So, there is a weakness in the way these different cases are manipulated to suit the current situation rather than having a rigid law that is not subject to the relationships of the participants. The law should be impersonal.

This particular case has been put into practice in solving several other claims to annulment just because the importation of any commodity is an issue of concern to any person of group that may practice any sort of importation or exportation in the country. So the import duty was dropped from 13 to 10. The problem with this kind of rule is that it defines that each individual should belong to a closed cluster of parties that have very limited access to entry and exit (Haffernan, 2003, p.907).  This is not easy to attain though.
 In other occasion, The French Green Party was subjected to a standing when although the applicants were sure to have had a valid case that deserved some merits and with no apparent substitute route to the imposition of the equality principle according to the organizations of the parliamentary business (Timmermanns, 2004, p.399).  The political party was searching for the annulment of parliamentary act on the expenses compensation consequential from political parties that took part in the elections of 1984.

The parties argument towards this was that the court jurisdiction to this was an unfair treatment as far as justice is concerned.  In return, the parliament pressed for a different idea altogether stating that, there was a need for the court to appraise several other acts of different institutions.  The court only made up by agreeing with the political parties to amend the nature of the existing system defining the judicial review and treatys importance.  The emphasis was lain on the definition of economic community of the European Union as bound by the law that clearly established that there is no one of the member state of the European Union may ignore a review of a question regardless of the mode of adoption and its conformity to the basic constitution (Davis, 2006, p.71).
 
Further interpretation from the different individuals is keen to challenge not only the implication of the statement but even the wording (Lenearts, Corthaut, 2006, p.302). For example, one may think that these kinds of limitations are only affecting the regulations that are decisions already.  This in effect means that the individual applicant will need to initially prove that the general measure is as a result of a group of measures that are of individual origin.

The law according to the treaty article 230 did not allow the parliament to adopt any measures that would be used for any legal proceedings and this in effect paralyzed the annulment measures by the European parliament.

Generally, from a scholars point of view, there is a likely indicator that the courts decision has been greatly influenced by the treaty authors attitude and intentions, the perception of the article among the people, hence the impact of its disapproval in the community which is expected of a superior system of monitoring or testing the legalities of procedures in the article (Allot, 2000, p.538).  The communitys perception to this system has already set an alarm to the signatories thus arising numerous debate sessions in both public and the private sector.

There is also another overriding feeling that the treaty authors were probably destined for a crucial goal of the supremacy of the appellate court which then resulted in the strict rules and regulations covered in the article 230 of the law.  Even though, this was the likely intention of the court to generate a well formed and elaborated system of the communitys judiciary, it can not be easily accepted and not convincing to the individuals that this is the likely reason.  It was however unlikely that the court would have only liked to limit the number of individual applicants hence the state members would like to know for whatever reason this could be so, thus the conflict.

The overall question to the treaty is the need for a community based judicial system in which case the citizens are fighting for the integrity of decision making as a community.  The State members need to be allowed to freely and fairly participate in the decision making process (Tridimas, 2001, p.326).  There is need for a review of this particular article in order to favor both individuals and groups.

The general feeling is that the system doesnt encompass the individualistic nature that the citizens would require. The court has tried to make numerous claims on the interpretation of the law such like negating the notion and the perception of the law as it appears in the eyes of the public.  This further protects the court other than the individuals thought. The European community is said to realize a double judicial protection by the law through the member states and institutions (Hartley, 1996, p.347).  There has been a continual promise on reformations to this article but all has been in vein. Therefore, the restrictive approach of the European Court of Justice to locus standi under Article 230 (4) EC is unjustified in many occasions regardless the courts continued emphasis on the superiority and the interpretational nature of the law in question.

Therefore, the restrictive nature of the art.230 (4) is rather disputable especially if we are to approach this section from the point of view of any affected individual in the community.  Its interpretation has made many citizens criticize the restriction or conditions imposed to the on the annulment act. The treaty is criticized for challenging the community for the restrictions that are said to be a sign of denial to justice for the individual parties especially because ii is against the effective judicial principle of protection. The best set of regulations would have to be more flexible after all.

Terrorism has always remained a controversial subject instigating fierce debates, passion and national interests. It is often times very difficult to produce an unbiased and objective review of what most of us perceive as terrorist activities. In fact, writing on terrorism is considered a risky as well as expansive preposition in countries like UK where actual convicts have sometimes successfully sued for defamation in the press. Therefore, writers need to be careful in naming a suspect without providing substantial evidence as weak claims are bound to increase controversy. Actually, these controversies are not without merit because any writing on this subject will always have harsh critics. The word Terrorism itself sparks other contentious issues such as the concept of freedom fighters or terrorists, human right laws and difference of opinion in the international communities. This paper strives to provide a broader view on terrorism as conceived by different groups in the World thus building on a debate on the response of international community in controlling terrorist activities. After reading the views discussed in this paper, it is expected that readers will be able to better understand why international responses to terrorism have been hampered by the adage one mans terrorist is another mans freedom fighter

Terrorism Defined
Members of the United Nations differ on the definition of Terrorism. Despite such universal disagreement, most of us may agree to a good extent that terrorism is a systematic act of violence against innocent and non-combatants to incite fear. Moreover, there is considerable argument on whether the term can be applied to wartime acts or even if it is an altogether different concept from crime. To spread their own propaganda, often times Governments have also deliberately used the term terrorist to degrade their political opponents, right and left wing political parties. Without any clear definition, many countries have now resorted to the legal definition of terrorists in order to distinguish between a terrorist and acts of terrorism. According to experts, a broader globally recognized definition will not only assist in recognizing terrorists but increase cooperation between law enforcement personnel in different countries. In view of these considerations, the law enforcements authorities in UK also take their guidance from the definition of terrorism, which is found in Section 1 of the Terrorism Act 2000. Under this definition of terrorism, UK authorities can take action on publications which indirectly encourage acts of terrorism or arrest a person reasonably suspected of being a terrorist without a search warrant, among other measures. Similarly, other nations have also endeavored to produce a single definition of terrorism. For example in India, this definition is very broad allowing authorities, in certain areas, to identify someone as terrorist if they carry a firearm. In United States, this definition allows law enforcement to enjoy wide executive powers including access to confidential information of citizens while in Iceland disrupting traffic safety by causing fear can be regarded as an act of terrorism. The purpose of relating these examples is to offer an insight on how Nations may manipulate the definition to help them identify a terrorist or to assist in their objectives for dealing with those who they define as terrorists.

Terrorists or Freedom Fighters
The most controversial aspect of this definition is revealed when it is unable to distinguish between legitimate resistance movements and freedom fighters. Since early human history there has not been a single law of war which can dictate as to when it is justifiable to engage in acts of physical aggression Still, it is agreed that after World War II, the treaty of Geneva Convention is the most authoritative documentation that offers actionable set of rules on when to declare War against an oppressor. In 1977, the proposed amendment to the original ruling of Geneva Convention specifically provided a ruling on the protection of the victims of international armed conflicts. The Article 1, Paragraph 4 of this ruling states that resistance movements are those in which people are fighting against colonial domination, alien occupation and racist regimes. Almost all principal nations in the World have ratified this treaty but it will not be an oversimplification to suggest that the controversial definition has sparked another debate on exactly which is a resistance movement and who is a terrorist Adding to this dilemma is the concept of freedom fighter that may loosely be defined as someone engaged in a struggle to achieve political freedom or making an attempt to free others from the shackles of a colonial domination, alien occupation and racist regimes.

Consider the IRA in Northern Ireland and Umkhonto we Sizwe in South Africa which were both regarded as terrorist groups by the governments but attracted a loyal following from supporter during their hey days. It is also noteworthy that some larger than life figures have been accused of terrorist acts. Consider three Israeli Prime Ministers Menachem Begin, Yitzhak Shamir and Ariel Sharon who have been criticized heavily for undertaking operations where civilians seem to be the primary target. Their opponent, Yasir Arafat is the leader of PLO whose weapon of choice is terror. Even Nelson Mandela was charged with plotting terror. If this seems controversial than what about the only Nation to drop atomic weapons on innocent civilians who were already at the brink of a loss.

According to a recent survey by University of Liverpool on Kashmir conflict between India and Pakistan, it is interesting to note that 60 of the overall respondents see plebiscite acceptable but 66 of Buddhist living in the area perceive it as totally unacceptable. It can be argued that Buddhist are against the plebiscite not that they dont believe in a neutral plebiscite but the fact that migrating Buddhists have long enjoyed protection by Indian authorities from repression in their homeland, Tibet. They may fear that a plebiscite in favor of Pakistan may endanger their peaceful existence in Kashmir valley due to Pakistans deeply rooted ties with Chinese authorities. In light of this issue, it will be interesting to conduct a study which asks the Buddhists population on their views on the ongoing armed struggle by Kashmiri separatist groups. As Buddhists are themselves striving for freedom in Tibet, it is assumed that they will be in a state of limbo as if to call the combatants of armed resistance freedom fighters or terrorists. Amid these ambiguous definitions and the difficulty in referring anyone as good or bad, freedom fighters have historically been labeled as assassins, insurgents and terrorists. It can reasonably be concluded that it all depends on ones point of view, the ideology of the user and the context of its use.

Who is a Terrorist
Despite a loose definition of terrorism, fortunately there is a growing uniformity in the consequences of general public that there are indeed groups which can be labeled as terrorists without much ambiguity. These groups include organizations that have consistently shown patterns of attacks on public places including assassinations and kidnapping, without any official statement of remorse. Another distinguishing characteristics of these fighting units is their involvement in organized crimes for the purpose of extortion and drug trafficking. Kurdistan Workers Party, Lashkar-e-Taiba operating in Indo-Pak subcontinent, Tamil Tigers and Islamic Jihad Movement in Palestine have frequently been cited in public press to carry out militant activities that bear hallmarks of a typical terrorist activities. As discussed, the definition of terrorism is broad therefore some groups that are considered to form a terror group may not be viewed in similar category by other Nations. In this regard, the UK government does not list some well known armed groups as terrorist which includes several key Palestinian separatist organizations including Al-Asqa Martyr Brigade, Asbat-al-Ansar, Hamas, Hezbollah, Palestinian Liberation Front and Popular Front for the Liberation of Palestine. Likewise, it is also reluctant to include Revolutionary Armed Forces of Columbia, United Self Defense Forces of Columbia and Shinning Path of Peru, even though these organizations have been labeled as terrorists by EU, USA and Canada. These differences in opinions clearly suggest that there is no universal definition of Terrorism whereby Nations are always flexible in interpreting according to their own agenda.

Terror  the Struggle for Peace
Before discussing the involvement of multiple nations to counter terrorism as it happened on 911 and 711 attacks, it is useful to highlight that despite controversies and blame games, there have been very successful peace process that can act as a model for international community. One of the most talked about is definitely the Northern Ireland peace process. After decades of armed resistance from IRA and other groups, the 1994 ceasefire was the first major step in promoting peace efforts as talks between members of Northern Ireland nationalist parties, SDLP as well as Sinn Fein along with Irish and British governments ended in a success. These talks were being carried out since 1980s which concluded with British government declaring that it will abide by the decision of Northern Ireland to decide between Ireland and UK. Accordingly, the Irish government agreed that it would do everything to persuade Unionists to consent to the idea of a United Ireland. Every party involved also agreed that such a peace process can only be sustained by ending a paramilitary campaign. In April, 2005 a landmark was achieved when Garry Adams, then head of the IRA, called its members to lay down arms and use exclusively peaceful means to achieve goals.

In 1996, when Irish peace treaty was developing, another important breakthrough took place in Guatemala where the 36 years old Civil War was ultimately brought to an end by the declaration of Unidad Revolucionaria Nacional Guatemalteca to lay down arms and subsequently become a recognized legal party two years later. It is estimated that over 200,000 civilians were killed during the conflict. This is a sizeable portion of the countrys population which dwells only 13.2 million inhabitants. Just four years earlier, across the continent in Africa, Mozambique Civil War came to an end in 1992 when South African backed Mozambique Resistance Movement laid down arms. Almost 900,000 lives were claimed in this 15 year old brutal conflict. The two year transition period overseen by UN forces paved way for democracy when conflicting parties took part in general elections. Examples of these peace accords confirm that there always exists a suitable solution to humanitys problems. In addition, terrorists, freedom fighters, dictatorships and governments can iron out issues by committing to dialogues.

The Case of International Terror Networks
While these conflicts involved groups that are easier to discern by identifying them by their objective, geographical location and method of operation but there are international networks that seldom fit this profile. These types of global terror network were hardly ever present a century earlier due to limitation in communication, technology and transport. Nowadays, Al Qaeda is the leading example of a terror network that spans multiple continents. Laws pertaining to domestic terrorism sometimes seem obsolete in elaborating on this type of network which operate in different countries and may constitute different groups operating in the same territory. It is logical to assume that international community is already facing difficulty in implementing universal laws due to the fact that every other country has its own definition of terrorism.

Fight on terror is further compounded by human rights issues when Nations differ on who is a terrorist and how to deal with those terrorists Consider Guantanamo bay detention camp where hundreds of prisoners are thought to be detained against the International law. In confronting international terror networks Law of War and International Humanitarian Law play an important role.

Terror Networks in UK
Understanding the implications of these two international laws is important because international terrorism is the number one threat to the stability of UK. According to MI5 security services there are more than 2000 British residents and foreign born residents, 200 terrorist networks and 30 active plots against the Queens empire. The nature of this threat state that these people are involved in supporting overseas terror organizations, acquiring false documents to use in terror activities and spreading extremist ideologies. A number of British citizens have also traveled to Iraq and Afghanistan to train and involve in terror activities upon their return. According to the same source, the threat has developed overtime as terrorists promote their views over the internet and distributing free disks. Since UK has long standing commercial, political and military links in Muslim World, these home based terrorists work on Al Qaedas agenda to retaliate. As of March 2007, 1,165 people were arrested under the Terrorism Act and another 114 were awaiting trial.
As UK authorities plan to counter international terrorist organizations and other extremist elements on home soil, international laws and human rights issues are taking a center stage. Per the most significant Law of War, Geneva Convention, the Article 4.1.2 affirms that if a country is being confronted with someone who is conducting its operations in accordance with laws and customs of war then that someone falls under the protection of third or fourth Geneva Convention treaty relative to treatment of prisoner of War and Civilians, respectively.

Definition Revisited
Accordingly, UK government has to face harsh criticism from human rights group who maintain that UK is wrongly supporting American cause knowing that America has disregarded the definitions of Geneva Convention by self endorsing a new category called unlawful combatants. Although the International Tribunal for the Former Yugoslavia have already challenged this new category by quoting the fourth Geneva Convention that there is no intermediate status but US authorities continue to put several UK citizens on trial. There have been nine UK citizens detained in the infamous Guantanamo detention camp under the definition of unlawful combatants. All of them have been released including five without any charges. The release of these prisoners comes as no surprise as most of those in custody may not fall under the definition of terrorists. A detailed report on the profile of 517 detainees was prepared by Mark Denbeaux who acted as a counsel to two detainees. According too this interim report 55 of the detainees are determined not to have committed a hostile act against USA or its allies. Among these, only 8 detainees can be categorized as Al Qaeda fighters and 60 are there because they are affiliated with groups that the Government, where they were apprehended, classifies as terrorist organizations. One of the UK detainees was Feroz Abbasi whose excerpts with the Tribunal president at the Guantanamo Bay revealed that Mr. Abbasi was consistently reminded that international laws does not apply in his case and that the Tribunal does not care about the International law. Another well known British prisoner, Moazzam Begg was charged as an enemy combatant by the US authorities. While Moazzam Begg was denied legal assistance throughout his two and half years detention, the Combatant Status Review Tribunal determined that Mr. Begg had links with Al Qaeda therefore he cannot be provided the status of POW under the guidelines of Geneva Convention.

The Legality of Self Administered Courts of Law
Critics of Combatant Status Review Tribunal insist that the nature of CSRT is inherently flawed. They further argue that this flawed nature is visible by proceedings in the cases of Feroz Abbasi and Moazzam Begg, among others. Moreover, experts point out to the fact that mere existence of such tribunals is not only questioned by international community but US courts, too. Reasons cites for illegal status of these tribunals include carrying out rudimentary proceedings without providing detainees any legal protection and without counsel. In addition Guantanamo detainees had no right to present witness or cross examine government witness and their chargesheet for enemy combatant status was always kept confidential. On June 12, 2008 US Supreme Court ruled 5-4 that Guantanamo Bay captives had right to access the US justice system. Noteworthy is the fact that Chief Justice John Roberts, who opposed the decision, wrote in minority report that these are the most generous set of procedural protections ever afforded to aliens detained by this country as enemy combatants even though the status of classifying someone as enemy combatant was itself overseen by a controversial system a system whose neutrally was the primary objection in the case.

Sovereign States
Perhaps the reluctance of United States to address international concerns pertaining to US Guantanamo Bay detainees can reasonably be explained by the definition of Sovereign State when countries are at War. A good example in this regard would be the military occupation of Iraq by United States and by its main ally, UK. The laws of occupation, as it concerns to Iraq, are explicitly stated in three prominent treaties on International Law of War. These three treaties are 1907 Hague regulations, the 1949 IVth Geneva Convention and the 1977 1st Additional Protocol. The regulations of these treaties are derived from customary international laws that have prevailed for over a century. According to these classical regulations, an occupied territory is a Sovereign territory that is under the military occupation of another State at the time when the State of War exists between them. As Iraq is under the military occupation of USA and UK, Iraq at present, is considered a Sovereign territory which in under military occupation of allied nations.

International laws requires that if such a condition exist then the occupier must set up military government in order to control the affairs of that occupied sovereign territory according to the International Law of War. These International laws also contain provisions regarding humanitarian laws. UK and USA are both bound by the International Law as customary International law forms part of the law of land in both of these countries. In an ideal situation, the allied nations should follow the guidelines of the three treaties in resolving issues in Iraq but in reality, it may not be the case.

In contrast, very few Nations may have applied the protocols of Geneva Convention due to problems in defining Sovereign territory. In WWII, the laws of occupation were never applied in Germany because allied powers concluded that after the demise of the Reich, there existed no Soverign power in Germany therefore, to some extent, the rulings of Hague Convention become void. The case of Iraq can be related to the German Reich where Saddam Hussein acted as the dictator of oppressive regime corresponding Hitler therefore Iraq may not be considered a Sovereign territory under the clause of Geneva Convention.
Consequently, a number of treaties of International Law cease to exist. These intentions of UK and USA are manifested by their joint letter to the UN Security Council on May 2003 in which they have formally refrained from stating that they will be applying regulations of Geneva Convention. Instead, the coalition declared that the States participating in the Coalition will strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the people of Iraq. In an online University of Pittsburg Law forum, prominent commentator Dr. Robbie Sabel at Hebrew University Faculty of Law in Jerusalem has provided a lucid commentary on this controversy where he further explained that UN in responding to the letter did not use the word occupying powers. Reviewing the response letter UN Doc.SRES1483, it becomes apparent that UN only referred to the international resolutions after the Gulf War and avoided discussing specific resolutions of the Geneva Convention or Hague, for that matter. One can argue that the hybrid nature of the International Law regarding the definition of Sovereign State and other relevant laws needs to be clarified because occupying Nations, intentionally or inadvertently, may present the occupied territory as an exception to Sovereign State. Seeking the benefit of such loop holes, USA, UK and their allies are able to setup camps like Guantanamo Bay where detainees may not be covered under the provisions of law of occupation.

Investigating Loop Holes in the Law
It is not only Nations but individuals who are greatly affected by the controversies surrounding the implementation of international laws. Just as the Law of War, the international humanitarian law holds utmost importance to human right organizations. The four Geneva conventions of 1949, their two additional Protocols of 1977 and Protocol III of 2005 are the principle instrumentation of humanitarian law. These are collectively known as treaty law. Amid gross human right violations, one of the primary roles of United Nations is to assure that countries abide by this treaty law, when in state of War. Unfortunately the plight of human suffering is increased when governments try to find loopholes in international humanitarian treaty law. According to the latest edition of the Yearbook of International Humanitarian Law there exist substantive loopholes in the law of neutrality because there hasnt been any development in the law since the Hague Convention in 1907. Had there effective guidelines been in place, mass civilian causalities by Allied forces could have been prevented in Iraq and Kosovo. Other important rules such as issues involving air warfare and belligerent occupation also needs reevaluation.

Human Rights
It is particularly worth discussing how Nations have developed means to interrogate alleged terrorists away from home soil. While Guantanamo Bay is a stark example of human rights violations, UK authorities have also been involved in carrying out intense interrogations outside their home soil. The infamous Bagram interrogation center and the recent revelation of using law enforcement agencies of other allies have raised eye brows against United Kingdoms violation of human right issues. It is usually believed that foreign interrogation centers such as Guantanamo Bay and Bagram, inter alia, are utilized in order to use questioning techniques that may face severe legalities in developed countries. The case of British resident, Omar Deghayes, is a prominent example of extracting evidence by violating international treaties. Omar Deghayes spent more than six years in Guantanamo Bay where he faced brutal torture resulting in a lost eye, broken nose and other minor deformities. The only evidence against him was a video of his look alike, who was later identified to be a dead Chechnyan rebel, in the terrorist training camp in Russia. Like many others, Omar was released without charge on the intervention of UK authorities. Before Guantanamo, Omar was detained at Bagram where his British investigators forced him to confess under duress.

Outsourcing Torture
In July 2009, Guardian revealed how UK intelligence agencies had outsourced torture of British Citizens to Pakistani authorities. The report corroborated earlier findings by another US based NGO which accused MI5 to detain accused in a Jail in Rawalpindi where Pakistani intelligence agencies would torture suspects on the guidelines provided by UK authorities. A British officer, who was involved in the torture of Rashid Rauf, was quoted as saying that the suspect of 2006 airline bombing was unlikely to be tried in British courts because of brutal torture carried out by Pakistani officials on the whim of British. Several Pakistani officials claimed that British intelligence officers would request them to carry out inhumane activities and be grateful to them for this. A member of Intelligence Bureau from Pakistan summarized the whole affair by confirming that I do not know if the British knew we had given him a good thrashing and the treatment. But they know perfectly well we do not garland terrorism suspects nor honour them. We do what we do and its not pretty. And with them breathing down our necks for information from Runnymede the British Deputy High Commission in Karachi is known as Runnymede Estate and the ISI eager to take over our turf and our suspect, we would naturally be keen to produce results. Results are not produced by having chats with the suspect. During a cross examination of one MI5 officials in British high court, the existence of an interrogation policy involving high level British officials was exposed. Further investigation led human right committees to an extended link between Pakistani officials, UK and United States. A terror suspect was first interrogated by Pakistani authorities then handed down to UK who would make a decision to hand over UK citizens and residents to United States. The UK high court did not disclose the 42 undisclosed documents to Public as it can damage the UK-USA relationships. UK officials even confirmed that US authorities warned UK that it would stop information sharing if those documents were released.

The War on Terror and its Impact
Decline in civil liberties becomes more obvious considering that only 340 of 1,471 terror suspects were ever charged in UK between 2001 and 2008. Only 7 of these were found guilty under terrorism legislation. These figures rise to overall conviction rate of 14 when terrorism related charges are countedAlthough British Home Office statement regarding these figures stated that the total charged or convicted is comparable to other indictable crimes but gross human rights violations faced by these terror suspects remain a major concern. For anyone indicted in terror charges, just the stories of torture are enough to send shivers down the spine. Amid this controversy, the legislation of Terrorism Act 2006 came in spotlight which would allow UK authorities to detain a terror suspect without charges for up to 90 days. Even though the bill was revoked but the detention period was doubled from the previous 14 days to 28 days.

International response to terrorism has been hampered by such critical issues and the support on the alleged War on Terror may actually be decreasing. According to the Pew Global Attitude Project, the largest percentage drop in support of this War was observed in industrialized countries who are allies with America. After September 11, public opinion in Britain, Germany, France, Spain, China and Japan decreased considerably. Another survey by a prominent American think tank tells a similar story by pointing out that only 4 Americans believe that they are winning the War on Terror. Whatever the case but it is becoming obvious that Nations need to clarify their position before engaging in conflicts or develop Universal rules otherwise the World will have to confront increasingly complex phenomenon such as Talibization Hence, making it nearly impossible to tackle the newly emerging legal complexities.