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Tension And Reconciliation In Canadian Contract Law Casebooks, David Sandomierski
Tension And Reconciliation In Canadian Contract Law Casebooks, David Sandomierski
Osgoode Hall Law Journal
Canadian common law contract law casebooks are beset with a tension. On the one hand, they all reveal a sustained commitment to the “wholesale assault on the jurisprudence of forms, concepts, and rules” that typifies American Legal Realism and its intellectual descendants. Concern with underlying values, functional reasoning, social realities, and policy thinking pervades the explicit messages of Canadian contract law casebooks and their editors’ related writings. On the other hand, the two casebooks most frequently assigned embody an allegiance to rules and courts that has a close kinship with the classical attitudes purportedly rejected. They convey a monolithic image …
Sovereign Debt As A Commodity: A Contract Law Perspective, Dania Thomas
Sovereign Debt As A Commodity: A Contract Law Perspective, Dania Thomas
Osgoode Hall Law Journal
The ad hoc institutional configurations that facilitated the resolution of sovereign insolvency for over thirty years are fragmenting. Recent court decisions interpreting the pari passu clause in sovereign debt contracts reveal the dangers of pressuring common law courts to enforce contracts and mediate structural flaws in the market. The courts have dismantled sovereign protections in international law and common law checks and balances. They have gone beyond precedent to innovate remedies justified by interpreting a clause whose meaning and function were not clearly understood by the contracting parties themselves. They have also opened up a possible inter-creditor obligation that circumvents …