Law Commons^™

The Perils Of Foreign Contracating In China, Debra J. Reed

Debra J Reed

QUESTION PRESENTED

Whether a business contract executed between a foreign party and a Chinese party is enforceable in the courts of the People’s Republic of China?

BRIEF ANSWER

Probably not. Foreign party reliance on Chinese courts to enforce their contracts is premature because China is not yet a rule of law country. Chinese courts do not exercise judicial independence. Political domination by the Chinese Communist Party, CCP, over the courts, and Chinese local protectionism both influence the outcome of cases. Moreover, the Chinese legal system is wrought with corruption. Because inexperienced judges adopt new laws at varying speeds and apply …

Electronic Contracting In China, Debra J. Reed

Debra J Reed

QUESTION PRESENTED

Whether an electronically signed business contract between a Chinese and foreign party is legally valid under the 2005 Electronic Signature Law of the People’s Republic of China and is enforceable in China’s courts?

BRIEF ANSWER

An electronically signed business contract between a Chinese and foreign party is legally valid under the 2005 Electronic Signature Law of the People’s Republic of China, PRC. Statutorily, Chinese law enables electronic contracting by giving the same legal force to electronic signatures and data messages, as to traditional ink signatures and paper documents. Lack of payment systems, high costs to businesses of adopting …

Restitutionary Disgorgement As A Moral Compass For Breach Of Contract, Caprice L. Roberts

Caprice L. Roberts

A quiet revolution is underway. A new rule proposed in the forthcoming Restatement (Third) of Restitution seeks to deter conscious wrongdoers from retaining profits from “opportunistic” breaches of contract. The proposed disgorgement remedy for defendant’s opportunistic breach of contract will have fundamental consequences for contract theory and practice. This contractual remedy is gain-based rather than compensatory. Restitutionary disgorgement, rooted in unjust enrichment, may shift the conventional paradigm of contract law. This article examines whether a restitutionary disgorgement remedy for certain breaches of contract is compatible with traditional contract principles such as Justice Holmes’s choice principle. Recall his oft-repeated declaration, “The …

An Economic Perspective On The Doctrine Of Unilateral Mistatke: An Remedy-Based Approach, Qi Zhou

qi zhou

: The key economic issues in implementing the law of unilateral mistake are twofold. First, it should avoid misallocation of resources; second, it ought to create a sufficient incentive for acquisition of information. However, the rule of unilateral mistake in English contract law does not serve these economic goals satisfactorily. The existing law and economics literature deals extensively with how to achieve these ends by designing the legal standards for a unilateral mistake which can nullify the contract, with little discussion of the function of legal remedy. This paper offers a remedy-based approach and argues that it has economic advantages …

Chapter 12: Torts, Crimes, Sanctions. Witchcraft And Related Issues (The Anthropology Of Compensatory Or Retributive Justice), Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. Chapter 12 on torts and other wrongdoings will treat, along with the traditionally well researched basic concepts of this field of legtal anthropology (to which only brief attention will be given) a recently again debated alleged contrast between shame and guilt societies, the phenomenon of knowledge as witchcraft, and a short report on the growth and institutionalization of international criminal law. Early cultures do not distinguish between torts and crimes. They speak of wrongdoings. A designation of the person who commits the the tort or crime, is a “perpetrator” who is the defendant in civil and …

Arbitration Law's Separability Doctrine After Buckeye Check Cashing, Inc. V. Cardegna, Stephen Ware

Stephen Ware

The recent case of Buckeye Check Cashing, Inc. v. Cardegna, is only the second Supreme Court decision applying the separability doctrine and it comes nearly forty years after the Court's first separability decision, Prima Paint Corp. v. Flood & Conklin Manufacturing Co. Arbitration's tremendous growth during those forty years - and the arrival of Buckeye - make this an opportune time to assess the current state of the separability doctrine. In doing that, this article will analyze Prima Paint and Buckeye and discuss the separability issues they leave unresolved. Finally, this article will critique the separability doctrine and call for …