Contracts Commons^™

Efficient Contracting Between Foreign Investors And Host States: Evidence From Stabilization Clauses, Sam Halabi

Articles, Chapters in Books and Other Contributions to Scholarly Works

Bilateral investment treaties are agreements between sovereign states that give broad protections to investors and investments made within the jurisdiction of the other state. The prevailing view in the academy and practice is that developing countries sign bilateral investment treaties in order to reassure investors from developed states that their investments will be safe from changes in domestic law. Without these "credible commitments," investors would be deterred from making investments, depriving developing countries of foreign capital. This Article disputes that view by demonstrating that foreign investors and host states effectively contract around the risk of changes in the law. This …

Traynor (Drennan) Versus Hand (Baird): Much Ado About (Almost) Nothing, Victor P. Goldberg

Faculty Scholarship

Most Contracts casebooks feature either Baird v. Gimbel or Drennan v. Star Paving to illustrate the limits on revocability of an offer. In this article an analysis of the case law yields three major conclusions. First, as is generally known, in the contractor-subcontractor cases Drennan has prevailed. However, both it and its spawn, Restatement 2d E 87(2), have had almost no impact outside that narrow area. Moreover, almost all the cases involve public construction projects – private projects account for only about ten percent of the cases. This suggests that private parties have managed to resolve the problem contractually. Public …

Contract Is Not Promise; Contract Is Consent, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In the 1980s, Charles Fried was right to focus on what was missing from both the “death of contract” and “law and economics” approaches to contract law: the internal morality of contract. But he focused on the wrong morality. Rather than embodying the morality of promise-keeping, the enforcement of contracts can best be explained and justified as a product of the parties’ consent to be legally bound. In this essay, I observe that, in Contract as Promise, Fried himself admits that the “promise principle” cannot explain or justify two features that are at the core of contract law: the objective …

"Competence-Competence And Separability-American Style", Published As Chapter 8 In International Arbitration And International Commercial Law: Synergy, Convergence And Evolution, Jack M. Graves, Yelena Davydan

Scholarly Works

No abstract provided.

Some Technological Implications For Ascertaining The Contents Of Contracts In Web-Based Transactions, Eliza Mik

Research Collection Yong Pung How School Of Law

This paper points out some unexpected relationships between specific aspects of contract law and specific Internet-related technologies. The discussion is not about the interplay between “Law” and “Technology,” or the “Law” and the “Internet.” The aim is modest: to identify some theoretical chokepoints created by the technologies involved in web-based commerce and to point out the legal uncertainties persisting in this area. The analysis is confined to the process of contract formation, not to matters of substantive law. It is during this process that parties assume their contractual obligations and the contents of a contract crystallize.

Drafting A Model Collective Action Clause For Eurozone Sovereign Bonds, Mitu Gulati, Lee C. Buchheit

Faculty Scholarship

In the wake of the Eurozone sovereign debt crisis, the European financial authorities announced last November that all Eurozone sovereign bonds issued after mid-2013 must contain an identical collective action clause (CAC) in order, if necessary, to facilitate a restructuring of those
instruments.

CACs in sovereign bonds have been the subject of considerable attention over the last ten years. They were introduced into sovereign bonds governed by U.S. law only in early 2003. Yet a surprising number of versions of the clause can be found in modern sovereign bonds.

The history of the research and development of this contractual provision …

Introductory Note To The International Centre For Settlement Of Investment Disputes: Aes Summit Generation Ltd. V. Republic Of Hungary, Charles O. Verrill Jr.

Faculty Scholarship

No abstract provided.

Global Procurement Law In Times Of Crisis: New Buy American Policies And Options In The Wto Legal System, John Linarelli

Scholarly Works

This is a draft chapter, Sue Arrowsmith & Robert D. Anderson (eds.), The WTO Regime on Government Procurement: Challenge and Reform (Cambridge University Press, 2011). What should governments do to protect their citizens in a global economic crisis? National economies are interdependent and economic risk is systemic on a global scale, but economic policy remains pervasively national in scope. Fiscal policy has not been the subject of much in the way of collective action at the global level, and if it has, states accomplish it in ad hoc political (as opposed to legal) arrangements in response to particular crises. States …

Cisg Article 6 And Issues Of Formation: The Problem Of Circularity, Jack M. Graves

Scholarly Works

CISG Article 6 broadly allows parties to exclude the application of the CISG or derogate from its provisions. The application of Article 6 is relatively straightforward when addressing the rights and obligations of the parties, but encounters a challenge of circularity when addressing issues of contract formation. How can the parties agree to exclude or derogate from the application of the CISG if it is not yet clear whether they have agreed to anything at all? This article explores this narrow, but important question. Can the parties effectively exclude the application of the CISG or derogate from its provisions (i.e., …

Market Realities Do Not Embody Necessary Economic Theory: Why Defendants Deserve A Safe Harbor Under Section 2 Of The Sherman Act For Exclusive Dealing, Danielle N. Paschal

Georgia Law Review

Exclusive dealing agreements are a form of vertical
restraint. They are often procompetitive and treated as
presumptively legal. Although claims against
anticompetitive agreements may be pursued under
numerous antitrust laws, claims have been brought more
recently under section 2 of the Sherman Act. Antitrust
laws generally focus on the percentage of foreclosure.
Section 2 of the Sherman Act, though, requires a smaller
percentage of foreclosure of distribution channels than
other antitrust laws. Analysis under section 2 of the
Sherman Act also focuses on the actual effects of the
agreement in the relevant market. Determining the
agreement's actual effects on the …

The Unenforceable Corrupt Contract: Corruption And Nineteenth Century Contract Law, Zephyr Teachout

Faculty Scholarship

This paper explores the 19th century practice of courts refusing to enforce "corrupt" contracts as against public policy.

Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz

Publications

Businesses and sophisticated parties have long used "contract exchanges," like the Chicago Board of Trade, to obtain a fair price and protect themselves from market volatility. These contract exchanges have greatly benefited both their participants and the public at large, but participation was long limited to a wealthy few. A decade ago, however, Internet websites, including Hotwire and Priceline, brought the power of contract exchanges directly to consumers, allowing regular people to flex their collective bargaining power to obtain low prices on travel services. Even more recently, other such "consumer contract exchanges," including Prosper and MoneyAisle, have organized vibrant markets …

The Windfall Myth, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Regulating Compensation, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Summary Of Gonski V. Dist. Ct., 126 Nev. Adv. Op. No. 51, Ryan Johnson

Nevada Supreme Court Summaries

The Second Judicial District Court entered an order compelling arbitration in a construction defect dispute. Petitioners asked for a writ of mandamus vacating the order compelling arbitration.

Alteration Of The Contractual Equilibrium Under The Unidroit Principles, Amin Dawwas

Pace International Law Review Online Companion

This paper addresses the principles of hardship and specific performance as being unreasonably burdensome or expensive both in terms of their definitions and legal consequences. This paper argues that, in a situation of hardship, the debtor can choose to invoke either the rules of section 6.2 (hardship) or the defense to specific performance under Article 7.2.2-b of the UNIDROIT Principles of International Commercial Contracts (“UNIDROIT Principles”). Yet, while in a situation where performance of the contract becomes “unreasonably burdensome or expensive,” the debtor might only invoke the exception to specific performance under Article 7.2.2(b) of the UNIDROIT Principles.

A Contractual Approach To Shareholder Oppression Law, Benjamin Means

Faculty Publications

According to standard law and economics, minority shareholders in closely held corporations must bargain against opportunism by controlling shareholders before investing. Put simply, you made your bed, now you must lie in it. Yet most courts offer a remedy for shareholder oppression, often premised on the notion that controlling shareholders owe fiduciary duties to the minority or must honor the minority's reasonable expectations. Thus, law and economics, the dominant mode of corporate law scholarship, appears irreconcilably opposed to minority shareholder protection, a defining feature of the existing law of close corporations.

This Article contends that a more nuanced theory of …

Pluralism In Contract Law, Leon Trakman

Buffalo Law Review

No abstract provided.

Resolving The Dilemma Of Nonjusticiable Causation In Failure-To-Warn Litigation, Neil B. Cohen, Aaron Twerski

Faculty Scholarship

No abstract provided.

Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson

William & Mary Law Review

Standard-form contracts are a common feature of commercial relationships because they offer the advantage of lower transaction costs. This advantage of standard contracts is increased when there is a second layer of standardization under which multiple firms agree on a standard contract. Trade associations and similar entities often effect standardization of this kind through collective agreement on a standard contract, sometimes under the aegis of state actors. Multifirm contract standardization can provide not only the usual transaction-cost advantages of standard-form contracts, but also increased competition among firms, because a standard contract makes comparison among firms’ offerings easier. But standardization among …