The Experts below are selected from a list of 87297 Experts worldwide ranked by ideXlab platform
Maren Heidemann - One of the best experts on this subject based on the ideXlab platform.
-
object and purpose as interpretation tool in international Commercial Law conventions how to make the top down approach work
2018Co-Authors: Maren HeidemannAbstract:By creating unworkable rules based on misaligned object, content and purpose states fail to achieve their public policy goals by exceeding the limits of their remit and are responsible for the continued necessity for a spontaneous, non-state informal private legal order in cross border trade, the so-called bottom up approach to self-regulation. This in turn appears to prompt a need for state regulation in order to safeguard the very public policy goals. Only a reflection on the relationship between object and purpose can be a basis for successful modern treaty Law in the area of international private Commercial Law. This chapter examines the role of object and purpose as recognized by Art. 31 of the 1969 Vienna Convention on the Law of Treaties, VCLT. The author looks at object and purpose separately and explains the meaning of each of these two terms with regard to selected international conventions regulating private Commercial Law including tax treaties. In combination with interpretation rules contained in the Commercial Law conventions themselves, an expanded meaning and use of object and purpose of a treaty can be discerned and used to form a reinforced comprehensive autonomous interpretation method. While the purpose of any convention is discernible by recourse to the texts and materials of a treaty, the object plays a decisive role in successful drafting, application and interpretation of a Commercial Law treaty. The author argues that it is exclusively the international character of the object that requires the creation of transnational substantive uniform Law and other types of international Commercial Law.
-
international Commercial harmonisation and national resistance the development and reform of transnational Commercial Law and its application within national legal culture
European Business Law Review, 2009Co-Authors: Maren HeidemannAbstract:International contract and Commercial Law has recently been subject to reform through the process of judicial and Commercial co-operation within the EU. A number of EU directives and regulations in the area of private and Commercial Law have been adopted or are being drafted and in the process of formal adoption. The complementary element to this growing effort of harmonisation and uniformisation in order to advance the internal market cross-border trade is of course the application of substantive legal norms forming part of international and transnational Law. Without a culture of applying international and transnational legal rules, the process of harmonisation remains a 'top-down' process which might not achieve its ultimate objectives. In the area of private and Commercial Law, three elements of applying Law to cross-border situations can be identified and illustrated here: (1) the skill, of applying substantive norms of transnational contract Law, (2) the willingness to acknowledge foreign legal concepts and draft legislation with a view to international instruments, (3) the appropriate consideration of foreign legal positions or even precedence in domestic proceedings in international matters. This paper examines these elements by way of reference to recent case Law and Law reform projects in two jurisdictions.
James Goudkamp - One of the best experts on this subject based on the ideXlab platform.
-
the contributory negligence doctrine four Commercial Law problems
Social Science Research Network, 2017Co-Authors: James GoudkampAbstract:The Law of contributory negligence is often treated as an afterthought by academics. This tendency is particularly pronounced in the Commercial Law sphere, apparently on the assumption that the contributory negligence doctrine is for the most part confined to “accident cases”. As a result, learning regarding the Law of contributory negligence in the Commercial Law setting is particularly underdeveloped. The goal of this article is simple. It draws attention to the fact that the contributory negligence doctrine has profound implications for Commercial Law litigation. It seeks to advance learning with respect to it by engaging with four issues that arise in the Commercial Law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v. Butcher has been implicitly overruled by recent decisions of high authority with the result that apportionment for contributory negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the Law of contributory negligence.
-
the contributory negligence doctrine four Commercial Law problems
Lloyd's Maritime and Commercial Law Quarterly, 2017Co-Authors: James GoudkampAbstract:The Law of contributory negligence is often treated as an afterthought by academics. This tendency is particularly pronounced in the sphere of Commercial Law, apparently on the assumption that the contributory negligence doctrine is for the most part confined to “accident cases”. As a result, learning regarding the Law of contributory negligence in the Commercial Law setting is particularly underdeveloped. The goal of this article is to advance learning with respect to the contributory negligence doctrine by engaging with four issues that arise in relation to it in the Commercial Law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v Butcher has been implicitly overruled by recent decisions of high authority, with the result that apportionment for contributory negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the Law of contributory negligence. I. INTRODUCTION The Law of contributory negligence, while often treated cursorily in textbooks and university courses, is of immense practical significance. As WVH Rogers put it, “[c]ontributory negligence is a core element in tort Law in England … [It] is of considerable, day to day importance”. 1 Paradoxically, the impact of this area of the Law has increased considerably since the abrogation of the common Law all-or-nothing
-
introduction contract in Commercial Law
Social Science Research Network, 2016Co-Authors: James Edelman, James Goudkamp, Simone DegelingAbstract:Some time ago, a conference of extraordinary jurists and scholars was held in order to discuss issues concerning contracts. Those issues included termination, the duties of buyers and sellers, formalities and good faith. There was vigorous debate. A book was written that addressed these issues at a high level of principle. That book was not the present volume. It was Justinian’s Institutes. However, a millennia and a half later, many of the same deep, structural issues concerning contract Law remain. The chapters in this volume, which derive from a conference held in 2015, therefore reflect significant thought on foundational issues that have been debated for hundreds of years.Although the Roman jurists debated and considered many issues of contract Law that remain difficult today, they did not take the most significant step in rationalising the Law of contract as a unitary body. Roman Law had a Law of contracts with different principles applying to different categories of contract. Thus, Justinian’s Institutes provides that contracts “fall into four species, for contract is concluded either by delivery, by a form of words, by writing or by consent …” Towards the end of the Empire, the Romans came close to developing a unified Law of contract. But the goal was never quite realised. In England, the goal was achieved in the 19th century. One significant step was the reforming legislation which curtailed, and then abolished, the forms of action.Another was the decisions by judges to remove important contract issues from juries, which allowed the Law of contract to be specified by legal rules to a greater extent than was previously the case. The emergence of a unified Law of contract was not solely the product of legislative and judicial reforms. The judicial development of the Law was heavily influenced by jurists, although often without attribution. These jurists were not just the English writers such as Addison, Anson, Chitty, Mayne, and Pollock. There was also a strong influence from Continental writers, particularly Pothier whose work had been translated in 1806 by Evans, and United States authors such as Benjamin, Story and Kent.The structure of this book remains true to the existence of a Law of contract, not contracts. The concern is with principles and rules that inform contract as a whole. But there are pressures on this unitary understanding. Some of those pressures come from the increasing specialisation of the practising profession. Legal scholars are increasingly writing texts on particular contracts such as insurance contracts, contracts for the sale of goods, and consumer contracts. Even Chitty’s great work on contract has a second volume entitled “Specific Contracts”. The pressure on the common Law also comes from statute. Legislation increasingly deals with contract Law in silos such as consumer contracts and contracts for financial services, where the contractual terms are often in standard form and largely mandated by legislation. Contracts and statutes, like all language, generally require context to be understood. The particular area or silo can supply important context for a contract. But if the Law is to remain coherent the context cannot govern the underlying principles.It is these principles which provide the road map through the difficult issues that recur across different contexts. They are the focus of this book. For a time in English legal history, there was an apparent sharp separation between the writing of judges and the works of scholars whom the judges would often read but would rarely cite. Happily, that time has largely faded from memory. As Lord Neuberger said in Patel v Mirza, “judges can look to legal academics not only to identify what they think are judicial inconsistencies and errors, but also to develop and modify their analyses of legal principles when we consider it necessary to change, develop or clarify the Law”. Consistently with this approach, Contract in Commercial Law, like the other books in this series,10 deliberately straddles professional boundaries. It also adopts a transjurisdictional outlook. Many of the contributors are drawn from a range of overseas jurisdictions indicating our view as editors that the search for answers to the most persistent problems in the Law of contract should not be confined by national borders. Developments in other jurisdictions may constitute models for reform. They may also constitute retrograde steps and serve as warnings ofthe danger of setting the Law down a given path.
Jenifer Varzaly - One of the best experts on this subject based on the ideXlab platform.
-
towards a unified approach to economic assessment in international Commercial Law reform
Social Science Research Network, 2019Co-Authors: Jenifer VarzalyAbstract:Economic assessment is critical to international Commercial Law reform in order to ensure Law reform efforts are evidence-based and result in economic benefit. Yet, such assessment is seldom undertaken and, when done so, is not uniform in its scope or methodology, nor is it subject to systematic review. This article proposes a set of guidelines in order to address this challenge. While there are both political and technical challenges to Law reform efforts and the implementation of a clear framework for assessment, this article aims to provide a first step forward towards creating a unified approach. It does so by proposing a series of guidelines which traverse five key components of any economic assessment undertaking, drawing on international and within country data regarding assessment processes. There is a particular focus on quantitative analysis, replicability, transparency, and continuous improvement, in relation to unifying private international Law within the Commercial sphere.
Lisa E Bernstein - One of the best experts on this subject based on the ideXlab platform.
-
private Commercial Law in the cotton industry creating cooperation through rules norms and institutions
2001Co-Authors: Lisa E BernsteinAbstract:The cotton industry has almost entirely opted out of the public legal system, replacing it with one of the oldest and most complex systems of private Commercial Law. Most contracts for the purchase and sale of domestic cotton, between merchants or between merchants and mills, are neither consummated under the Uniform Commercial Code nor interpreted and enforced in court when disputes arise. Rather, most such contracts are concluded under one of several privately drafted sets of contract default rules and are subject to arbitration in one of several merchant tribunals. Similarly, most international sales of cotton are governed neither by state-supplied legal rules, nor by the Convention on the International Sale of Goods, but rather by the rules of the Liverpool Cotton Association. This Article draws on a detailed case study of contractual relations in the cotton industry to examine the ways that the rules, norms and institutions that constitute the industry's private legal system ("PLS") create value for transactors. It begins by describing the formal operation of the PLS and discussing the ways that its substantive rules, adjudicative approaches and arbitral procedures improve on those provided by the Uniform Commercial Code and the public legal system. It then describes the many steps taken by cotton industry institutions to strengthen the social and informational infrastructures of trade and analyzes how these efforts combine to make reputation-based nonlegal sanctions a powerful force in the industry. The paper then draws on this discussion to suggest that the availability of such sanctions may enable transactors to create value-enhancing contract governance structures that might be either unavailable or prohibitively expensive if their transactions were governed by the public legal system. The paper also discusses in great detail how the industry's efforts to support the legal and extralegal aspects of contracting relationships, together with certain other features of cotton institutions, have succeeded in creating conditions that are conducive to the creation, maintenance and restoration of cooperative contracting relationships. It concludes by suggesting that understanding how the cotton industry's institutions create value for transactors may help identify other industries and other contexts in which private institutions can play a positive role in supporting trade.
-
private Commercial Law in the cotton industry creating cooperation through rules norms and institutions
Michigan Law Review, 2001Co-Authors: Lisa E BernsteinAbstract:The cotton industry has almost entirely opted out of the public legal system, replacing it with one of the oldest and most complex systems of private Commercial Law.1 Most contracts for the purchase and sale of domestic cotton, between merchants or between merchants and mills, are neither consummated under the Uniform Commercial Code ("Code") nor interpreted and enforced in court when disputes arise. Rather, most such contracts are concluded under one of several privately drafted sets of contract default rules and are subject to arbitration in one of several merchant tribunals. Similarly, most international sales of cotton are governed neither by state-supplied legal rules nor
Insa Stephanie Jarass - One of the best experts on this subject based on the ideXlab platform.
-
Private Uniform Law and Global Legal Pluralism
The Oxford Handbook of Global Legal Pluralism, 2020Co-Authors: Gralf-peter Calliess, Insa Stephanie JarassAbstract:Global legal pluralism comes in many forms and carries various implications. This chapter traces the phenomena of legal pluralism in the field of Commercial Law. It is commonly held that legal certainty is of paramount importance to merchants. Therefore, efforts to harmonize Commercial Law on the international level are pertinent, albeit with limited success. As states proved unwilling or unable to create uniform Commercial Law, various private initiatives were established to achieve this end, the most prominent examples being the International Commercial Terms (Incoterms) and the Uniform Customs and Practice for Documentary Credits (UCP), both promulgated by the International Chamber of Commerce. From the perspective of global legal pluralism, such privately created uniform Commercial Law is an instance of legal pluralism. Interestingly, in this case it is not state Law as the universal rule, which encounters conflicting normative claims of a substate social field, but it is a privately created normative regime that claims universal authority over the fragmented domestic Commercial Law regimes. According to conventional legal theory, such claim is simply ridiculous and it seems to be impossible for private uniform Law to operate successfully. However, an analysis of English and German case Law reveals that the Incoterms and the UCP in fact are effectively operating as uniform Law and thus as a privately created functional equivalent to international instruments such as the Convention on the International Sale of Goods. This chapter, therefore, argues that beyond theoretical discussions in textbooks, judges do practice what global legal pluralism suggests.
-
private uniform Law global legal pluralism the case of icc s incoterms and ucp
2018Co-Authors: Gralf-peter Calliess, Insa Stephanie JarassAbstract:Global legal pluralism comes in many forms and carries various implications. In this paper we shall trace the phenomena of legal pluralism in the field of Commercial Law. It is commonly held, that legal certainty is of paramount importance to merchants. Therefore, efforts to harmonize Commercial Law on the international level are pertinent, albeit with limited success. As states proved unwilling or unable to create uniform Commercial Law, a variety of private initiatives were established to achieve this end, the most prominent examples being the International Commercial Terms (Incoterms) and the Uniform Customs and Practice for Documentary Credits (UCP), both promulgated by the International Chamber of Commerce (ICC). From the perspective of global legal pluralism, such private-made uniform Commercial Law is an instance of legal pluralism. Interestingly, in this case it is not state Law as the universal rule, which encounters conflicting normative claims of a sub-state social field, but it is a privately created normative regime, that claims universal authority over the fragmented domestic Commercial Law regimes. According to conventional legal theory, such claim is simply ridiculous, as it seems to be impossible for private uniform Law to operate successfully. However, an analysis of English and German case Law reveals, that the Incoterms and the UCP in fact are effectively operating as uniform Law, and thus as a privately made functional equivalent to international instruments such as the Convention on the International Sale of Goods (CISG). This paper, therefore, argues that beyond theoretical discussions in textbooks, judges do practice what global legal pluralism suggests.
