Contracts Commons^™

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Right To Cure Under The Unidroit Principles Article 7.1.4: A Historical Analysis, Gakuro Himeno

Gakuro HIMENO

Riht to cure under Unidroit 7.1.4 has three sources: a) Nachtrag, b) mise en demeure and Nachfrist and c) right to cure under Uniform Commercial Code 2-508. When the UCC Committee, Section of Business law, the ABA reviewed what will become the Unidroit Principles, they found a counterpart to their own right to cure in it: Nachfrist. Then drafting a new provision upon cure was commissioned to Richard Hyland, a US professor. While this provision, rare case where Unidroit and PECL disagrees (8. 104), has long been under criticism especially by the European drafters, met with a DCFR provision that …

Future Strategies For Improving Consent In Electronic Contracting, Ran Bi

Ran Bi

China's economy has been running deep into an exciting phrase called “Internet +”. In North America, most businesses have online presence and conduct numerous transactions online. Unprecedentedly, electronic contracts have been governing more Individuals and corporations’ legal relationships in a growing proportion of businesses and everyday life.

E-contracts, usually with no physical architecture, are easy to “sign”—people just click one or two icons on a computer / smartphone screen after “reading” (scroll down) the contents. However, e-contracts are standard form contracts which are provided by vendors . Users are easy to become victims of exploitative terms, because their consent has …

Future Strategies For Improving Consent In Electronic Contracting, Ran Bi

Ran Bi

China's economy has been running deep into an exciting phrase called “Internet +”. In North America, most businesses have online presence and conduct numerous transactions online. Unprecedentedly, electronic contracts have been governing more Individuals and corporations’ legal relationships in a growing proportion of businesses and everyday life.

E-contracts, usually with no physical architecture, are easy to “sign”—people just click one or two icons on a computer / smartphone screen after “reading” (scroll down) the contents. However, e-contracts are standard form contracts which are provided by vendors1. Users2 are easy to become victims of exploitative terms, because their consent has been …

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Avenues To Foreign Investment In China’S Shipping Industry—Have Lease Financing Arrangements And The Free Trade Zones Opened Markets For Foreign Non-Bank Investment?, Rick Beaumont

Rick Beaumont

No abstract provided.

Breves Reflexiones Sobre La Cientificidad Del Contrato, Julio Santiago Solis Gozar

Julio Santiago Solis Gozar

El objetivo principal de este trabajo es demostrar que el contrato —instrumento jurídico indispensable para nuestra existencia—, como institución del Derecho Civil, goza de todos los presupuestos para ser considerado un acto científico con base en las características que posee, su importancia en la sociedad, y la evolución sistemática y metódica que precede a numerosos estudios que llevan a determinar principios y teorías sustentadas objetivamente. Para demostrar la propuesta, se necesita el soporte de la epistemología, la filosofía, la historia, la antropología, la sociología y el Derecho comparado a fin de obtener una modesta construcción teórica de su cientificidad.

Regulatory Institutions Of The Global South: Why Are They Different And What Can Be Done About It?, Yugank Goyal

Yugank Goyal

Developing countries suffer from underperforming regulatory agencies compared to those in the developed world. The paper attempts to theorize general reasons behind such divergence. It argues that the differences lie in developing countries’ (a) higher priorities for redistribution, (b) structurally different institutional endowments, especially at informal level, and (c) limited informational channels. The paper proposes that a multi-stakeholder (with increased emphasis on judiciary and civil society) approach has potential to address the shortcomings. It tests these claims through studying cases of telecom and electricity regulation in India.

Contract Resurrected! Contract Formation: Common Law ~ Ucc ~ Cisg, Sarah H. Jenkins

Sarah H Jenkins

Contract Resurrected!

After the promulgation of the Restatement (Second) of the Law of Contracts with its expanded theory of Section 90, quasi-contract and promissory estoppel were hailed as the only theories needed for recovery. Contract was dead! This was the dominant prospective regarding the continued efficacy of contract and contract law. The contract theorists were wrong. The mushrooming global interdependency among nations demands legal rules and principles to govern exchanges between businesses and reaffirms the value of contract as a juridical tool. The United Nations Convention on Contracts for the International Sale of Goods as a recent promulgation reaffirms the …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Sources Of Law And Pluri-Lingualism (In Greek), Nikitas E. Hatzimihail

Nikitas E Hatzimihail

This study (which replaces an earlier article published at the law journal Χρονικά Ιδιωτικού Δικαίου - Chronicles of Private Law, vol. 12 (2012)) examines issues arising from the translation of authoritative legal texts (constituting sources of law in the legal system under consideration), with an emphasis on legislation.

The first part of the article examines instances where authoritative texts of the same legal instrument co-exist in two or several languages, notably in the case of international uniform law instruments, such as the Vienna Convention on the International Sale of Goods (CISG).

The second part addresses instances of an instrument being …

The Cisg In Israel, Dr. Yehuda Adar

Yehuda Adar Dr.

This article reviews the status of the CISG in the Israeli legal system. The survey reveals that the attitude of the Israeli courts toward international sales laws has in the past been rather ambivalent. The author argues that while some decisions of the Supreme Court have ignored the international context without a sufficiently clear reason, most of the cases where the convention was actually applied reflect a sympathetic approach toward the idea of a uniform international law of sales. Furthermore, on the last occasion in which the CISG was heavily relied upon by the Supreme Court, the Court’s analysis reflected …

Book Review: The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea J. Boyack

Andrea J Boyack

This review situates Gulati & Scott’s findings with respect to sovereign debt instruments and the contracting process in the context of a legal profession on the brink of change. Gulati and Scott’s book addresses the inexplicable failure of lawyers to respond to a sovereign debt litigation outcome by clarifying a boilerplate provision after an adverse judicial interpretation. Their fascinating study of boilerplate in sophisticated transactional legal practice is timely and compelling both in terms of the specific story it tells, namely the persistence of the pari passu clause in sovereign debt instruments, as well as its broader implications: Structural flaws …

Arbitration, Women Arbitrators And Sharia, Mohamed Raffa Dr.

Mohamed Raffa Dr.

So, can the Arbitrator be a woman? Omar, the third Khalipha in Islam after Prophet Muhammad, actually appointed a female judge. Today, across the various Muslim countries, there are female judges in almost every Muslim country except in Saudi Arabia. There are about 70 female Iraqi judges, 10 female judges in the UAE, 20 in Egypt female judges and Arbitrators, Nigeria recently appointed the first female Chief Justice in Africa as well as it has one of the largest National Associations of Women Judges; with more in other Muslim Countries including Indonesia and Malaysia.

Amiable Composition And Ex Aequo Et Bono Arbitration, Mohamed Raffa, Mohamed Raffa

Mohamed Raffa Dr.

Amiable Composition and arbitration ex aequo et bono are variations of commercial arbitration in which the parties expressly agree that the Arbitrator is not bound by strict rules of law and is free to give effect to general considerations of equity and fair-play on an award decided upon being equitable and bona fide.

A Case Study On Burying Alive Of Two Women In Balochistan, Sohail Ahmed Ansari Advocate

Sohail Ahmed Ansari Advocate

Violence against women is present in a variety of forms in Pakistan. From domestic abuse & sexual harassment to child marriages and honour killing; a range of anti-women atrocities are carried out. Pakistani women face systematic discrimination from the day they are born. The patriarchal mindset of society refuses to recognize them as human beings deserving of equality, human rights and justice. Unfortunately in some parts of Balochistan a brutal custom of justice prevails; where the women are treated as trading objects. They are being tried without hearing their cause. They are not allowed to plea their case. They are …

Négociations Et Accords Précontractuels: Incartades À L'Unité Des Acteurs, Du Lieu Et De L'Action, Nicolas Pierre Marie Kuonen

Nicolas Kuonen

No abstract provided.

Judicial Review Of Administrative Action/ Decision As The Primary Vehicle For Constitutionalism: Law And Procedures In Tanzania, Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

This paper examines the discretionary powers of the High Court of Tanzania to review decisions and actions of other public bodies as a means to uphold the spirit of the Constitution on checks and balances between the three organs of the state. The writer examines the procedures for judicial review, the legal and procedural requirements and the remedies available under the laws of Tanzania, however, the writer further examines experiences from other countries particularly from case laws.

The Alternative Forms Of Dispute Settlement And The Essential Difference Between These And Arbitration, Michael Diathesopoulos

Michael Diathesopoulos

The paper examines the characteristics of some common alternative forms of dispute settlement and their key differences from arbitration regarding their nature and scope. Its purpose is to explore each mechanism's suitability for specific types of disputes.

La Noción De Consumidor En El Código De Protección Y Defensa Del Consumidor, David García

David García

This work contains a legal analysis of the notion of consumer in the Peruvian law

Case Note On Supreme Court Of Cyprus (2008), Aresti V. Loel Ltd (2008) 1 Α.Α.Δ. 1305 [In Greek] Λυσίας (Lysias) 3 (2010): 47-50, Nikitas E. Hatzimihail

Nikitas E Hatzimihail

This case note discusses an appellate case dealing with offer/acceptance issues. Questions of translating common-law terms into Greek are discussed, with regard to Cyprus contract law.

La Prospettiva Dei Rimedi Nel Diritto Privato Europeo (Remedies As An Emerging Concept In The European Private Law), Dr. Yehuda Adar, Prof. Pietro Sirena

Yehuda Adar Dr.

No abstract provided.

Historia, Maendeleo Na Mabadiliko Ya Katiba Tanzania Tangu Uhuru Hadi Miaka Hamsini Ya Uhuru 9 Desemba 2011., Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

Jamhuri ya Muungano wa Tanzania ni nchi iliyotokana na nchi mbili za Tanganyika na Zanzibari mwaka 1964, tangu uhuru wa Tanganyika 1961 na uhuru wa Zanzibari 1963 pamekuwapo na maendeleo ya kikatiba kwa upande wa Muungano na kwa Zanzibari ambayo hatuna budi kuyatazama kwa mapana yake hasa juu ya ushirikishwaji wa watu katika kuzipata katiba hizi.

La Voluntad En Los Contratos De Adhesión: Sociología Y Crítica Jurídica, Con Énfasis En El Análisis Económico Del Derecho / The Consent Theory Critique And Standard Form Contracts In Civil Law (With Special Reference To Law And Economics), Andres Palacios Lleras

Andrés Palacios Lleras

El presente artículo tiene como propósito sugerir los elementos básicos para (re)construir una doctrina diferente sobre la interpretación de los contratos de adhesión en Colombia, basada en las ideas de Josserand y en literatura contemporánea sobre análisis económico del derecho. La tesis que se argumenta sugiere que dichos contratos deben interpretarse teniendo en mente tanto las característias cognitivas de los adherentes, como el desequilirio de poder negocial que subyace su relación con los oferentes, y sugiere que las normas potestativas sólo puedan ser cambiadas a favor de la parte adherente.

The purpose of this paper is to explore the connections …

Electronic Contracts In Tanzania: An Appraisal Of The Legal Framework, Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

The concern of our study was to examine the legal basis for electronic contracts in Tanzania. The major problems that were being examined are; the ascertainment of e-contract terms and the other party in the contract with the focus to consent i.e. consensus ad idem requirements and capacity to contract. With the first problem, e-commerce involves e-contracts and the business community in Tanzania enters into contractual arrangements with external world via websites or email in which case the electronic environment is not suitable in Tanzania in terms of the laws and the technology. Messages sent via internet may be garbled …

Ownership Unbundling In European Energy Market & Legal Problems Under Eu Law, Michael Diathesopoulos

Michael Diathesopoulos

In this paper we will examine the issue of ownership unbundling and forced divestiture remedies imposed in a series of recent competition law cases of the energy market - examined in other papers - in relation to the possible existence of a series of legal obstacles. These energy market decisions belong to a group of antitrust cases in which a structural divestiture remedy has been imposed under the provisions of Article 9 of Regulation 1/2003. This divestiture refers to transmission networks and to generation capacity and is meant to lead to severe structural changes, which are compatible with the findings …

De La Admiración A La Recepción Crítica: El Apagado Eco De La Codificación Del Derecho Privado Europeo En América Latina, Leysser L. Leon

Leysser L. León

En este artículo se esboza el nuevo posicionamiento de los ordenamientos jurídica de América Latina frente a los proyectos de armonización de las codificaciones civiles europeas. La tesis del Autor es que de una etapa dilatada de importación normativa masiva se ha pasado (y se necesita pasar) a una recepción crítica: con el auxilio de la comparación jurídica, se debe discriminar el material legislativo extranjero, conociéndolo en su origen e informándose sobre su problemática, a fin de evitar la migración de modelos inadecuados para fructificar fuera de su contexto de producción.