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Res judicata plays an important role in the management of complex cross-border commercial disputes. Courts and tribunals are increasingly required to grapple with the application of res judicata on the basis of a prior determination from a different, and potentially unfamiliar, legal system. These considerations come even more alive in the context of the ambitious transnational project of the Belt & Road Initiative. This paper critically examines the Singapore Court of Appeal's decision in Merck Sharp & Dohme Corp v Merck KgGA, which offers a cooperative vision of transnational res judicata that strikes a balance between comity and mutual trust between national legal systems, and each system's own sovereign and constitutional responsibilities and interests. The paper also considers the potential influences of Merck's unique transnational vision for the BRI dispute resolution ecosystem. [ABSTRACT FROM AUTHOR]

In July 2007 the English and Scottish Law Commissions published the consultation paper Insurance Law – Non-disclosure and Breach of Warranty (hereafter LCCP) which sets out in detail the Commissions' provisional proposals for the reform of insurance contract law with particular reference to the key areas of utmost good faith, warranties and agency. This article analyses, from a critical standpoint, the LCCP's principal conclusions and recommendations. It begins by noting, as a means of demonstrating that the current reform process should be informed by modern industry practices, that the ways in which modern insurance contracts are concluded differ significantly from those when insurance law was last reviewed by the Law Commission in 1980. The article then discusses the dichotomy between consumer and business insurance given that this distinction underpins the LCCP and its approach towards reforming the pre-contractual duty of good faith. By way of backdrop to the analysis, we consider the approach taken towards reforming the law governing intermediaries acting for prospective assureds during the disclosure process. Finally, the proposed rules for warranties and similar terms are examined. It is argued that the proposal to retain continuing warranties in business insurance contracts will, if implemented, represent a missed opportunity to rid insurance contracts of terms long criticised as draconian and disproportionate in their effect. [ABSTRACT FROM AUTHOR]

This paper analyzes the history of the Alberta Orderly Payment of DebtsAct and the constitutional controversy that followed. The legislation sought to protect debtors by imposing restrictions on creditors. In 1960, the Supreme Court of Canada in Reference re Validity of Orderly Payment of Debts Act, 1959 (Alberta) ruled that the legislation was ultra vires on the basis that it interfered with the federal bankruptcy and insolvency power. The Orderly Payment of Debts Act reference is the capstone in a trilogy of cases in which provincial legislation was invalidated for encroaching upon the federal bankruptcy and insolvency power. The reference case represents a high-water mark for the expansion of the federal bankruptcy power and a curtailment of provincial authority to assist insolvent debtors. The paper argues that the OPDA reference is a landmark case in that it continued a trend of limiting provincial efforts to assist insolvent debtors by giving a broad reading of the federal bankruptcy and insolvency power. [ABSTRACT FROM AUTHOR]

This article considers how the UNIDROIT Principles of International Commercial Contracts ('UPICC') respond to the typical form of commercial contract--the relational contract. Relational contracts provide a 'framework' for relationships, allowing them to develop over time. The temporal element gives rise to peculiar issues, including: the need to accommodate changed circumstances; whether to keep the contract alive or terminate it in response to changed circumstances; contractual discretions and the role of fault and good faith; the role of contractual mechanisms for dealing with supervening risks. The article considers various of the provisions of the UPICC dealing with these issues and concludes with a consideration of possible new directions, including the proposal for a future edition of the UPICC that certain contracts can be terminated for 'just cause'. As Australian commerce becomes more international in nature, we need a common framework--a 'new law merchant'--by which contractual relations are maintained. The Australian case law on relational contracts is thin. The UPICC will prod Australian courts and practitioners to grapple with these issues. However, that effort might stall if commercial parties believe the rules in the new law merchant are too open-textured, allowing too much judicial intervention in contracting practices. [ABSTRACT FROM AUTHOR]

This article presents information on Samuel Richardson, an author and his plans for contracts as a parliamentary printer. At first, it was assumed that Richardson refers only to official government contracts. The contract involved was enormous—the task included printing not only recent transcriptions but also manuscript records of sessions dating back to 1547, so that Richardson was embroiled for the rest of his life in a massive Shandean catch-up operation that was only nearing completion in 1761, the year of his death, when the proceedings to November 1757 had just appeared.

This article discusses various issues related to law and theories of overdue negotiable paper. There are three theories of overdue negotiable paper, no one of which has been consistently adopted by the common law. It is consequently difficult, if not impossible, to get either a correct perspective from which to view the cases or an absolute standard by which to measure their correctness. It appears to the article author to be impossible to follow the ordinary method and test the correctness of a case relating to overdue negotiable paper by the application. of the logical deduction and modification of the principles which, underlie the law of negotiable paper before maturity, because to do so would be to condemn almost every case to the limbo of legal error.

This paper examines the rise of algorithmic systems – that is, systems of data-driven governance (and social-credit-type) systems – in the form of ratings systems of business respecting human rights responsibilities. The specific context is rating or algorithmic systems emerging around national efforts to combat human trafficking through so-called Modern Slavery and Supply Chain Due Diligence legal. Section 2 provides a brief contextualisation of the problems and challenges of managing compliance with emerging law and norms against forced labour and, in its most extreme forms, modern slavery. Section 3 examines the landscape of such algorithmic private legal systems as it has developed to date in the context of forced labour ratings systems. There is a focus on the connection between the power to impose the normative basis of data analytics and the increasingly tightly woven-in connection between principal actors in this endeavour. [ABSTRACT FROM AUTHOR]

This paper analyzes the Colombian civil and commercial regulations that enshrine the categories of non-existence and validity of contracts. The differences between private and commercial law will be identified in the face of the phenomenon of non-existence. The shortcomings in the expressions used by the Colombian legislation will be examined. For this purpose, jurisprudence and the most significant doctrine in relation to the legal consequences in the lack of formalities or essential elements of the contracts will be studied. The different hypotheses developed regarding the figure of non-existence and its respective consequences are evaluated through a dogmatic, qualitative, normative and descriptive methodology, with a view to the judicial action in case of controversy. Finally, a legal tool is proposed to go to the jurisdiction without blurring the figure of non-existence both in commercial matters and, specially, in civil matters. [ABSTRACT FROM AUTHOR]

The 'code adjudicator' is a new statutory intervention in business-to-business disputes. They are Janus-faced, combining a statutory arbitration function with a regulatory remit. This paper is a detailed critique of the 'Pubs Code Adjudicator', which presides over the Pubs Code Regulations 2016 and intervenes in the contractual relationships between the largest pub-owning companies and their tied tenants. Drawing on a sample of interviews with affected tenants, arbitration data, and legal appeals under the Arbitration Act 1996, we argue that – although these 'new intermediaries' show promise – there are a series of limitations with both the function of the Pubs Code Regulations and the 'code adjudicator' model itself. In particular, our findings demonstrate the use of delaying tactics, the interaction of code adjudication with the parties' existing contractual relationships, and issues with the application of arbitration 'burden of proof' standards to the exercise of duties under the statutory code. [ABSTRACT FROM AUTHOR]

Regulation (EU) No. 2283/2015 on novel foods (NFR) defines the legal framework applicable to the majority of food innovations in the European Union. Following a risk analysis approach, the NFR requires pre-market authorization for foods not available on the European market before 1997, to assess the potential threats to human health and consumers' interests. The NFR's regulatory scope requires identification of certain factors which constitute a presumption of risk in innovative products and processes. We refer to such factors as "risk triggers". This paper shows that 'Legal Novelty' and 'Unnaturalness' are the main risk triggers associated with novel foods, even though the link between 'Legal Novelty' and 'Unnaturalness' and a clear risk for consumers' interests, human health or the environment is not evident per se. Novel foods, compared to non-novel food products, are thus subject to additional regulatory requirements investigating their safety. Benefits derived from their market entry and adoption are therefore delayed, or even lost. As a consequence, the innovation process in the food sector, which we identify as an implicit objective of the NFR, is potentially hindered. [ABSTRACT FROM AUTHOR]

This paper analyses how the North American Free Trade Agreement (NAFTA) influenced the opening of the Mexican energy sector, beginning in 1992. It evaluates how the multiplication of legal bodies governing the energy industry calls the attention of scholars to the analysis and systematisation of this novel legal discipline. The survey includes a discussion of the 2013 constitutional energy reform and how international treaties shield this reform, preventing a new constitutional amendment from reversing the opening of the Mexican energy sector. Finally, it emphasises that Mexican energy law is now not separate from international commercial law. [ABSTRACT FROM AUTHOR]

The object of the article is to recover the institutional memory of the 1980s debt crisis, when the decolonized world experienced forms of tutelage at the hands of international financial institutions, so as to sketch out material and discursive continuities with investment law's present. The paper asks whether damage awards in investment arbitration serve functions analogous to state indebtedness in the 1980s. As during the 1980–1989 debt crisis, states are expected to generate the conditions for investor confidence by, among other things, guaranteeing rights to property and to contract. State indebtedness, in both periods, places stress on government budgets and reduces the living standards of poor people, contributing to heightened inequality within and between states. The article begins with a social-theoretical discussion of how debt serves to curb the possibilities for political action. This is followed by a review of IMF borrowing practices in the 1980s and a discussion of the merits of comparison with contemporary investment law. The narrative frames arising during the 1980s debt crisis that continue to have resonance in the era of investment law are taken up in subsequent sections, focusing on the refrains of mismanagement, the missing development angle, shrunken policy space and irrelevance of ability to pay. The method is predominantly qualitative, although reference is made to relevant empirical work. In the course of the discussion, the Tethyan Copper v. Pakistan (2019) ruling is periodically revisited as a specimen of how tribunals arrive at damages assessments in investment arbitration. The upshot is that indebtedness in the contemporary world serves functions similar to that in the 1980s: principally to constrain policy capacity in a wide range of sectors. These binding constraints serve the interests of only a small set of actors, while those rendered most vulnerable by these constraints are relegated to the margins. [ABSTRACT FROM AUTHOR]

Shell companies are simple creatures: they exist on paper, have no physical place of business, and allow for a litany of fraud. Often used for legal purposes, shell companies have increasingly been used to facilitate crime, hide ownership, and threaten U.S. national security. The Corporate Transparency Act (CTA) is a notable step toward illuminating obfuscated corporate ownership, but various loopholes allow creative bad actors to circumvent its requirements. While the Act will likely deter such bad actors, resourceful nation-states have the means to defeat its protections. Nevertheless, the CTA will likely resolve many of the issues involving contractors using shell companies to conceal relationships with subcontractors, circumvent origin eligibility rules, and disguise other conflicts of interest. Here, defrauding the U.S. government will be more difficult. However, foreign adversaries interested in exploiting the U.S. defense supply chain may engage in complex ownership arrangements that do not trigger reporting under the CTA. This Article prescribes several solutions to mitigate these loopholes, including (1) amending the definition of “beneficial owner” under the CTA; (2) providing additional funds to States and Indian Tribes to require reporting to FinCEN as a requirement of company registration; and (3) increasing the severity of penalties associated with the CTA. [ABSTRACT FROM AUTHOR]

Modern enterprises often operate as interconnected groups of companies. This is facilitated by various cross-entity liability arrangements, which aim at risk mitigation and control, and may contribute to the reduced agency cost of debt. However, they pierce limited liability (cross-guarantees) or impose correlation between the fates of separate entities (intercompany cross-defaults and ipso facto clauses). They can promote group exposure and disincentivise debtors from taking early actions to avoid insolvency. This paper explores the tools that are embraced to address these problems to achieve group restructuring. They include restrictions of cross-entity ipso facto clauses and extension of enforcement stays to group entities. I examine the ex ante and ex post effects of group liability arrangements, make a comparative overview of national law responses and suggest recommendations to find a balanced approach to cross-entity liability arrangements, enhance the existing legal regimes and form the basis for future reforms of insolvency laws. [ABSTRACT FROM AUTHOR]

Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome "obsolescence"--the persistence of rules that only solve yesterday's contracting problems? Until the early twentieth century, contract law was largely created by common law courts. The law's default rules were efficient when created, and courts updated them as commerce changed. But there were few rules, and the common law process was slow. In response, the twentieth century saw public and private lawmaking bodies enact commercial statutes in discrete legal areas such as secured credit, commercial paper, and bankruptcy. Cohesive interest groups rapidly updated these discrete rules, but the rules, both original and as changed, served only the creating groups' interests. Private lawmaking efforts also assumed a generalist portfolio. In the Uniform Commercial Code, they reached beyond specialized fields to the law of sales and then, in the Restatements, to all contracting behavior. But because these generalist bodies lack the institutional capacity to update, many of their rules have not changed with changing commercial practice. Obsolescence is not innocuous: It can induce inefficient contracting practices and encourage parties to behave strategically. The need for a modern general law of commercial contracts remains. Specialized lawmakers are subject to interest group capture, and the generalist lawmaking bodies cannot update. Courts have responded better to the obsolescence concern, but they are slow and limited. Hence, we suggest a public/private regulatory response to the vexing production problem in contract law. [ABSTRACT FROM AUTHOR]

The Competition Commission of India's (CCI) journey with "control" has been the subject of much discussion in Indian competition law circles. As we witness an increase in reliance on technology as well as a consolidation in conventional industries, both catalyzed by the Covid-19 pandemic, there is a marked increase of activity in the Indian merger market. It is therefore crucial for businesses contemplating mergers and acquisitions, to have a clear sense of the hurdles they need to cross, particularly if the merger activity in question falls in the same or a related industry. The CCI would thus need to provide clarity on what constitutes control, and when transacting parties should approach the CCI. The CCI must also be transparent about control transactions resulting in anti-competitive effects. This paper proposes that the CCI provide guidance on what amounts to control, from the perspectives of both notifiability and competitive effects, to resolve the CCI's control quandary. [ABSTRACT FROM AUTHOR]

This paper deals with the study of the liability of the owner of the ship in the Peruvian Law. Traditionally, the rules of "Libro" III of the Peruvian Commercial Code have generated some uncertainty about their scope on this matter. This paper proposes an interpretation of the Commercial Code rules that allows to understand them in a coherent way, especially with the context in which they were passed. The many aspects around the liability of the owner of the ship exceed the field of mere civil liability and nowadays the obligations that the owner of the ship assumes under the public regulation constitute a very important aspect for the modern shipping company. For these reasons, the author also proposes a general approach to the "administrative liability" of the owner of the ship considering the most relevant rules of the Peruvian domestic Law and the main international treaties. [ABSTRACT FROM AUTHOR]

In March 2012, the Australian Commonwealth Attorney-General's Department published a Discussion Paper which explored the prospect of codifying or otherwise reforming the Australian law of contract. There is little reason to think that the codification of the Australian law of contract is likely to be embarked upon in the foreseeable future. At the same time, recent years have seen a resurgence of interest in codification in Britain. This paper examines the experience of contract codification efforts in Australia with a view to identifying a number of cautionary lessons. It focuses on two challenges inherent in contract codification which have been given too little attention by the proponents of reform in Australia. [ABSTRACT FROM AUTHOR]

Arbitrability in the context of IPR disputes has gained popularity worldwide. In India, there is no statutory provision that mandates the adoption of ADR when it comes to IPR disputes. The lack of any legislative insight thus stands as an impediment to efficient dispute resolution. The judiciary has also not taken a consistent stand in this regard. As a result, the law on this issue is a scattered version of what it could be. To improve the business environment and IPR protection, it is important to reform the law, keeping in mind the developments that are taking place in jurisdictions across the world. This paper studies the jurisprudence that has developed in India. It analyses the principles laid down by the Supreme Court of India in Booz Allen and Hamilton v SBI Home Finance, its inconsistent application by High Courts, and concludes that there exists scope for codification and uniformity. [ABSTRACT FROM AUTHOR]

When our home institution moved all instruction online in response to the pandemic, we began redesigning our business law survey course from scratch. Specifically, we decided to use the popular docuseries Tiger King: Murder, Mayhem, and Madness to explore the legal and ethical environments of business with our undergraduate students. We deliberately chose this surprise-hit television show in order to make our online course as relevant, timely, and engaging as possible. The remainder of the paper will describe the contents of each module of the course, explore their relation to Tiger King, and explain the logic of our design choices. [ABSTRACT FROM AUTHOR]

This paper assesses the extent to which patent renewal data is associated with government funding in a university context by focusing on the relationship between the funded patentees and renewal decisions of their patents. The aim of this paper is to show whether receiving funding from government contributes to high-value patents as measured by the patent renewal decisions made by their owners. Our observations of academic nanotechnology patents in Canada discovered a positive relationship between funded researchers and the rate of patent renewal after 4 years. Further analysis is also undertaken into the relative impact on patent renewal after 8 years and 12 years. Our results suggest that the length of patent renewal in numbers of years can be related to levels of government funding received by their inventors. [ABSTRACT FROM AUTHOR]

The paper "Essentialities concerning the competition policy in the European Union, the 2012-2016 period" presents the decisions adopted at European Union level in relation to the breech of the competition rules by the Member States. In the first part of the paper, I drew a parallel between the state aids granted at EU level for the banking system, deeply affected by the economic crisis, and the aids granted for supporting other sectors. Afterwards, I made a brief presentation of the main anti-competitive and of the decisions related to them in the analysed period. [ABSTRACT FROM AUTHOR]

Introduction This paper presents a proposal to apply the meta-heuristic Optimization Based on Variable Meshes (VMO) to the discreet problem of the Traveler Seller (TSP); This model explores the search space to Objective from a population of solutions called mesh that expands and contracts in order to find good quality solutions. In this context, the expansion operator is modified in such a way that it is applicable in a discrete domain, making combinations among the solutions in order to obtain new nodes. Another element that is modified is the clearing operator, which is responsible for maintaining the diversity of the mesh in each interaction. Methodology. A study of VMO model parameters is summarized in this paper, using a set of TSP instances with different characteristics; In addition, it can be observed that the proposal of this work obtains competitive results when compared with other international reference algorithms mentioned in the state of the art. The work is structured as follows: Section 1 describes the fundamental aspects of the TSP study problem. Then, in the second, the general functioning of VMO is explained, in the third one, each of the expansion and contraction operators is defined for the study problem. Later in the fourth section a study of the parameters of the proposal and an experimental comparative analysis with the results obtained with other algorithms mentioned in the state of the art is made. Conclusions Other operators of generation of new nodes were applied in the expansion process, where a combination of solutions is made in order to comply with the restrictions imposed by the problem. [ABSTRACT FROM AUTHOR]

The UNIDROIT Principles of International Commercial Contracts have recently been published in their fourth edition, prompting the analysis of the origin of such a great success of this multifunctional instrument. Namely, this soft law regulation, although formally non-binding has significant de facto legal effects: it is a model law for many legal systems, it can be used as the law governing contracts, in processes before courts and arbitration tribunals, and as a means of interpretation and supplementation of uniform instruments. In this paper, the role of the so-called bottom-up approach was observed as an academic, non-sanctioned method of law harmonization that was applied in the making and developing of the UNIDROIT Principles of International Commercial Contracts. This regulation is an obvious example of advantages that can be achieved by the creative normative process of the most esteemed experts not limited by the political imperative of the states they hail from. Their results achieve success because of the quality of their solutions and by doing so they promote alternative methods of harmonization of international commercial law. [ABSTRACT FROM AUTHOR]

The paper deals with issues of national mergers carried out in the year 2015 and 2016. The development of the mergers is characterized by the fact that it is a multidisciplinary areas (tax, accounting and legal), in practice the most widespread method is Mergers through consolidation. The analysis is therefore focused just on this type of merger. It examines the development of mergers carried out in the Czech Republic as well as globally. In the global perspective,is processed the number of mergers and acquisitions, and the trends in company transformations are monitored. For the Czech Republic is analyzed the number of mergers, number of merging companies, including their legal form, the number of registered mergers by individual Regional Courts, the date of entries, determination of the appointed date of merger and date of completion of merger project. Consequently are presented features typical of the implementation of national mergers. The paper also examines the relationship between the number of mergers and GDP and PX index from 2002 to 2016. [ABSTRACT FROM AUTHOR]

This paper assesses the Commerce Commission's Final Determination in which it declined to authorise the proposed merger between NZME and Fairfax New Zealand Ltd, New Zealand's two main media companies. Authorisation is the second step in the merger approval procedure that is available to mergers that result in a benefit to the public, despite being ineligible for clearance due to a lessening of competition. In this particular case, the Commission's analysis showed that the merger would result in net quantified efficiency gains. Nonetheless, authorisation was declined on the ground that the merger would reduce external media plurality, which in turn would negatively affect government accountability. Therefore, the Commission argued, the merger would not result in a public benefit so as to justify authorisation. While the Commission admitted that the impact on media plurality is different from the factors that it usually takes into account under the public benefit test as set out in its own Authorisation Guidelines, it argued that it has the power under the Commerce Act 1986 to look at all the negative consequences of a merger, including consequences that are unrelated to competition and occur outside the relevant markets identified. In this paper, I reject the Commission's arguments for such an expanded public benefit test. I take a closer look at the statutory framework and the relevant case law to show that these do not unambiguously support the Commission's arguments for an expanded public benefit test. Moreover, the case law has never expressly addressed a situation where the non-competitive out-of-market negative consequences came into play. I argue that, had the courts been presented with a case that raised such consequences, policy considerations would have pointed against an expanded public benefit test. [ABSTRACT FROM AUTHOR]

This article looks back to a paper written by the author and Phil Thomas in 2000 on socio‐legal studies and reflects on what has changed in the world of socio‐legal studies since then. It then turns to the continued modesty of the claims that socio‐legal studies researchers make for their work. The suggestion made is that socio‐legal studies forms a social ecology in what is termed the 'hyphen‐space' and that through this space social ecology theory allows much larger claims to be made about how actors and issues at different levels and scales relate to each other. To this end, the article takes an issue, an artefact, and a broad classification of 'people' within the sphere of international commercial law to illustrate how social ecology can be used to broaden the claims that research makes. [ABSTRACT FROM AUTHOR]

Much has changed in the four decades since United City Merchants v Royal Bank of Canada , in which Lord Diplock established the fraud exception in transactions financed by documentary credit. In particular, the introduction of the UCP 600, case law on nullity documents and amendment to the American fraud exception justify a reconsideration of both the policy arguments underpinning Lord Diplock's rule and the fate of documents known to be forged or null at the time of presentation. Accordingly, two arguments are made in this paper. First, a consideration of the broader exception in the US should prompt a modern Supreme Court to re-examine his Lordship's insistence that a narrow exception was required to preserve the efficiency of the credit mechanism. In addition, it further argues that banks should be entitled to reject known nullities and forgeries as non-complying. This argument would reinstate the doctrine of strict compliance, which was overlooked in United City Merchants , and is based on the clarified definitions in the UCP 600, more recent judicial consideration of nullities and the existence of the ICC's International Maritime Bureau. [ABSTRACT FROM AUTHOR]

During the 1980s, many software developers and enthusiasts reacted to software's unclear status within the U.S. copyright law by pursuing technical, rather than legislative fixes. This paper applies forensic methods to recover records of conflict between commercial software developers and the enthusiasts who sought to "crack" commercial programs' copy protection. [ABSTRACT FROM AUTHOR]

Price regulation of the utility sector occurs mainly at the wholesale level. In contrast, in Australian superannuation, regulation requires limited disclosure of fees and costs at the retail level. This paper reviews the regulatory theory that has led utilities regulators to focus on wholesale-level disclosure. It then applies the insights used in these sectors to analyse mechanisms for price and cost disclosure which could be applied to Australian superannuation. The paper argues that intervention done once, but done right, may reduce the need for mandatory retail-level disclosure and would reduce some aspects of regulatory information asymmetry. [ABSTRACT FROM AUTHOR]

New approaches to universal eating disorders prevention and interventions targeting macro-environmental change are greatly needed, and research-to-policy translation efforts hold promise for advancing both of these goals. This paper describes as a policy-translation case example an academic-community-government partnership of the Strategic Training Initiative for the Prevention of Eating Disorders, Multi-Service Eating Disorders Association, and the office of Massachusetts Representative Kay Khan, all based in Massachusetts, USA. The partnership's research-to-policy translation project focused on dietary supplements sold for weight loss and muscle building, which have been linked with serious injury and death in consumers. Youth and people of all ages with eating disorders and body dysmorphic disorder may be especially vulnerable to use these products due to deceptive promises of fast and safe weight loss and muscle gain. The research-to-policy translation project was informed by a triggers-to-action framework to establish the evidentiary base of harm to consumers, operationalize policy solutions to mitigate harm through legislation, and generate political will to support action through legislation introduced in the Massachusetts legislature to restrict sales of weight-loss and muscle-building dietary supplements. The paper concludes with lessons learned from this unique policy translation effort for the prevention of disordered weight and shape control behaviors and offers recommendations for next steps for the field to advance research and practice for universal, macro-environmentally targeted prevention. [ABSTRACT FROM AUTHOR]

In light of the fragmentation due to the nationalization of civil and commercial law and the growing intensity of cross-border trade in manufactured goods, arguments for the unification of private law surfaced already from the early 20th century. Such attempts resulted in, among others, the CISG, the UPICC or the PECL. In line with this pattern, as an attempt to make Out of Many, One Common European Sales Law, a Proposal for a Regulation on a Common European Sales Law (CESL) was published in 2011. The aim of the present contribution is to explore the background of the Proposal and to assess its significance for the future, with specific attention to the challenges of the digital age. Section I of the paper provides an overview of the process in the first decade of the 21st century leading to the publication of the Proposal, identifying the various stages of making an instrument. This is followed by the description of the Proposal and its evaluation in Section II. Although the immediate implementation and application of the instrument are not feasible, the text contains some promising elements to build on. According to the main findings of the paper, in the new millennium no longer merely international trade in manufactured goods is a chief factor triggering the implementation of international instruments of contract law. The innovations which pose new challenges and regulatory needs, also addressed in the CESL, are trade in digital content and e-commerce. Considering a digital key to the success of regulatory aspirations, the paper thus outlines ways European and international legislation might go in terms of regulating cross-border trade in the age of information technology. Accordingly, the areas to focus on for a start are transactions for the supply of digital content and e-commerce transactions. [ABSTRACT FROM AUTHOR]

Arbitration offers a unique and practical tool for solving private disputes between commercial parties. International commercial arbitration has traditionally been considered a creature of consent. Generally, arbitration is only able to compel willing parties, or those privy to the contract, to arbitrate. Therefore, arbitral tribunals have been unwilling to entertain claims by a non-signatory to arbitrate which leads some critics to consider the lack of extension to third parties a major short-coming of arbitration in the modern world. This paper concludes that the general consensus has become increasingly more willing to extend the arbitration agreement to third parties who were not signatories of the main contract. This conclusion is drawn from recent case law and amendments to the UNCITRAL Model Law on International Commercial Arbitration. The paper also highlights the utilisation of common law principles derived from agency and contract law as a means of facilitating a more inclusive approach from arbitral tribunals, with heavy focus on the five common theories first identified in the Thomson case and their further development in later cases. [ABSTRACT FROM AUTHOR]

The Truth and Reconciliation Commission of Canada (TRC)'s Calls to Action propose significant changes to legal education. No law school classroom is exempt, including business law courses. We are two of a growing number of scholars in the legal academy actively incorporating Indigenous laws, critical race theory and socio-economic perspectives into business law courses as part of our responses to the TRC. This paper explores a field school we developed at Windsor Law as a response to the Calls to Action. In a temporary fusion of two courses, Secured Transactions along with Indigenous Peoples, Art & Human Rights, a synergy emerges through "collaterization" and "valuation." Our methodology of combining courses and students with diverging interests was designed to evoke reflections on the intersections of Indigenous law and commercial law in legal education. In closing we offer five ways in which business law classrooms might respond to the TRC recommendations. [ABSTRACT FROM AUTHOR]

The dominant recent legal discourse concerning Bitcoin and later virtual currencies has been focused on regulatory issues such as anti-money laundering and financial and securities regulation. By contrast, scant attention has been given to the intersection between the uses of Bitcoin and commercial law even as its popularity has grown as both an asset class and as a means of payment for goods and services. In determining the commercial law consequences of transactions involving Bitcoin, the likely cross-border nature of Bitcoin-related transactions will give rise to choice of law issues which may have a determinative effect on a given dispute. Commercial disputes involving virtual currencies have already made their way into common law courts. This paper examines one of the most significant choice of law problems that arises – the law applicable to determine disputes concerning property in Bitcoins (and determining the situs of Bitcoins) through the lens of English conflict of laws. [ABSTRACT FROM AUTHOR]

This paper, structured in three chapters, analyzes the application of objective good faith and duty of diligence to the agency contract, under the perspective of Civil Law and Commercial Law. First chapter analyzes the agency contract, and its relation with distribution and commercial representation. The second chapter deals with Directive n. 86/653/CEE and discipline in some European countries. The third chapter examines the application of objective good faith to the agency contract, in the execution of their assignments from the point of view of objective good faith. The fifth chapter presents controversial issues in courts. At the end the conclusions are presented. The research used the deductive method, based on the premise that (i) objective good faith and diligence are applicable to contracts in general; (ii) the agency contract was typified by the Civil Code (minor premise); and (iii) objective good faith and due diligence apply to the agency agreement. The research is of the bibliographical and documentary type. [ABSTRACT FROM AUTHOR]

The Organization for the Harmonization of Business Law in Africa (hereinafter referred to as OHADA) was created on 17 October 1993 to foster economic development in Africa by creating a uniform and secure legal framework for the conduct of business in Africa. In an effort to reform the law of contracts in its Member States, OHADA has prepared the Preliminary Draft of the Uniform Act on the Law of Obligations (hereinafter referred to as the Preliminary Draft). Several provisions of the Preliminary Draft set forth general principles concerning choice of law in international commercial contracts. Indeed, the Preliminary Draft encompasses innovative provisions on party autonomy in international contracts, such as the explicit recognition of the right of parties to choose the law applicable to their contracts and the inclusion of limited exceptions to party autonomy (overriding mandatory rules and public policy). Yet, it still needs to be improved in respect of various issues, including for instance the ability of parties to choose different laws to apply to distinct parts of their contract and the possibility for the parties to expressly include in their choice of law the private international law rules of the chosen law. This paper analyses the provisions of the Preliminary Draft in the light of the Hague Principles on Choice of Law in International Commercial Contracts (hereinafter referred to as the Hague Principles). More particularly, it explores how the Hague Principles can help refine the rules on party autonomy contained in the Preliminary Draft to enhance legal certainty and predictability in the OHADA region. [ABSTRACT FROM AUTHOR]

More than ever, technical inventions are the symbol of our society’s advance. Patents guarantee their creators protection against infringement. For an invention being patentable, its novelty and inventiveness have to be assessed. Therefore, a search for published work that describes similar inventions to a given patent application needs to be performed. Currently, this so-called search for prior art is executed with semi-automatically composed keyword queries, which is not only time consuming, but also prone to errors. In particular, errors may systematically arise by the fact that different keywords for the same technical concepts may exist across disciplines. In this paper, a novel approach is proposed, where the full text of a given patent application is compared to existing patents using machine learning and natural language processing techniques to automatically detect inventions that are similar to the one described in the submitted document. Various state-of-the-art approaches for feature extraction and document comparison are evaluated. In addition to that, the quality of the current search process is assessed based on ratings of a domain expert. The evaluation results show that our automated approach, besides accelerating the search process, also improves the search results for prior art with respect to their quality. [ABSTRACT FROM AUTHOR]

Africa's indigenous minorities face unique constraints, particularly in terms of engaging in even the most basic business activities. They typically lack business rights, but, even where such rights have been extended, they have had scant impact on group poverty. This paper argues that the failure of business rights to meaningfully transform the livelihoods of marginalised minority groups stems from elite capture of resources, dependency on external validation, and a contradiction between a collective problem (group poverty) and an individualist solution (business rights). African states could alter conditions through active pursuit of affirmative action policies, but lack socio-economic and political incentives. [ABSTRACT FROM AUTHOR]

Given the intention of section 7(a) of the Companies Act 71 of 2008 (the Act) to promote compliance with the Bill of Rights in the interpretation and application of company law in SA, this article assesses the extent to which the Act actually does this. The article thus seeks to showcase evidence of the Act's intentional alignment with the normative framework of the Constitution of the Republic of South Africa, 1996 (the Constitution). The paper does this by answering the question: what are the implications of the Constitution's normative framework on the interpretation and application of the Act? The term "normative framework" is defined, and a distinction is drawn between the descriptive and explanatory social science research questions and the legal research questions which are evaluative and normative in nature. The article provides examples of the contexts in which the intentional alignment of the Act with the Constitution's normative framework is evident. To this extent, commentary is made on the following selected issues: remedies to facilitate the realisat ion and enjoyment of rights established by company law; the direct and indirect horizontal application of the Bill of Rights to provisions of the Act; and a discernible court's duty to develop the common law as necessary to improve the realisation of the rights established by the Act. A point is made in the article that judicial decisions involving the application of company law must be justified by reference to a cohesive set of values from the Bill of Rights. This is part of transformative constitutionalism. It demands that even commercial law principles should no longer be blindly accepted simply because precedent says so, or for the reason that it is expedient for the purposes of commercial certainty. The article argues that the Act permits the direct horizontal application of the Bill of Rights on its provisions in two stated ways. It is also argued that the Act permits the indirect application of the Bill of Rights through the development of the common law where it is deficient in promoting the spirit, purport and objects of the Bill of Rights. The development of the common law, it is argued, is vital for producing an incremental and cohesive body of constitutionalised common law in the company law context. [ABSTRACT FROM AUTHOR]

Purpose This paper aims to explain how contractual complexity, including contractual control, coordination and adaptation, makes a difference to the task and relationship conflict, and then, to investigate the moderating roles played by both, total interdependence and interdependence asymmetry, in altering the association between the two types of conflicts.Design/methodology/approach This study obtained data through a questionnaire survey in the Chinese construction industry and the final sample consisted of 232 responses. The data were analysed using hierarchy analysis using SPSS.Findings The results are as follows: first, higher contractual control and coordination reduce the level of relationship conflicts, and higher contractual coordination also reduces the level of task conflicts; second, task conflict positively affects relationship conflict; third, task conflict mediates the relationship between contractual coordination and relationship conflict; and finally, when total interdependence is higher, task conflict induces more relationship conflict. On the contrary, high interdependence asymmetry weakens the positive relationship between task and relationship conflicts.Practical implications This study highlights the importance of contracts in conflict management. The findings can guide practitioners in drafting suitable contracts to deal with task and relationship conflicts more effectively.Originality/value This study differentiates the effects of distinct components of contracts on task and relationship conflicts, and then reveals the contingent effects of interdependence on the relationship between task and relationship conflicts in inter-organisational transactions. [ABSTRACT FROM AUTHOR]

Debate over the proper approach to modern contract interpretation continues even in this era of modern contract interpretation where context is always considered. This paper identifies and contrasts two rival approaches to contract interpretation: "prescriptive contextualism" which demands that contract interpretation start with plain meaning, and only then go on to consider textual context, extra-textual context and finally commercial sense; and :"holistic contextualism" which involves consideration of those same factors but is not fussy about the order. In setting out the two approaches, I provide an exposition of the present law of contract interpretation. Then, I consider the main arguments that can be advanced by proponents of the two approaches, and conclude by offering my own arguments that, I suggest, tip the scales in favour of holistic contextualism: the prescriptive process inhibits identification of viable interpretation, and is overly dependent on which words are used to start the interpretive process. [ABSTRACT FROM AUTHOR]

Background: The Uruguayan Cannabis Clubs (UCCs) constitute one of three ways to obtain cannabis under the new cannabis regulation laws. These organizations, formed by up to 45 adults and with a legal limit to grow up to 99 plants, appear to provide a safe method of procuring cannabis in a country that is trying to regulate aspects of cannabis production and distribution. This article describes the operations of the UCCs and the challenges these organizations face.Methods: The paper draws on data from in-depth interviews conducted with representatives of UCCs and conversations with government officials conducted between March and August of 2015. We collected information about membership, facilities and forms of organization, methods of cannabis cultivation and distribution, and activities within the community.Results: This article describes how UCCs are formed, their resources, rules for cannabis production and distribution; and their relationships with government institutions and the community. Data show that UCCs face four main challenges: compliance with the extant regulation, financial sustainability, tolerance from the community, and collective action dilemmas.Conclusions: Organizational challenges are as frequent in Uruguay as in other country where cannabis clubs exist, however this paper shows that in order to be sustainable, UCCs need to address issues of collective action, financial sustainability, and possible competition with cannabis distribution via pharmacies that could diminish membership. In the case of Uruguay, UCCs are part of a regulation effort, though they may not be preferred over other legal alternatives already in place. [ABSTRACT FROM AUTHOR]

The paper describes basic financial elements of commercial navigation during the Roman and medieval period. These primarily include the persons who financed the voyage, as well as other partners as determined by law. The legal regulation in question concerns maritime loan, a deposit used as an instrument of security for the return of loan ever since the Ancient times by the Phoenicians, Greeks, Romans, and other maritime nations in the Eastern Mediterranean. The oldest legal regulations related to maritime loan can be found in the Roman law, the Rhodian Law on Jettison of Cargo, and the Rhodian Sea Law (Lex Rhodia). The paper analyses elements related to maritime litigation as well as other relevant issues such as maritime flags. In addition, the paper explores the extent of the influence that these regulations have had on the resolution of certain legal issues connected with maritime navigation. [ABSTRACT FROM AUTHOR]

The paper concerns the situation where public sector bodies are forced to enter into contracts. These obligations to contract are analysed from two angles. First, the paper offers an analysis of the reasons for imposing such obligations to contract under Swedish and Danish law. Secondly the paper discusses some consequences of the public entities' obligations to contract, more specific consequences for the use of rules that usually regulate contracts and the fact that obligations to contract imposed on public entities establish a new market and at the same time the obligations deprive the entities of the freedom to contract which is a fundamental to market behaviour. Finally attention is drawn to the fact that obligations to contract are also imposed on private entities. The paper takes Swedish and Danish regulations as a point of departure and provides an insight into regulations from these two countries imposing obligations to contract, offering a number of examples of such regulations. Moreover, since obligation to contract and freedom to contract are universal concepts, the paper is of relevance to all countries that have similar regulations including other EU Member States. [ABSTRACT FROM AUTHOR]

Beginning with the papers by Calvo and Reinhart (2002) and Levy Yeyati and Sturzenegger (2001), there has been growing recognition of a disconnect between what emerging economies say they do in exchange rate policy (words), and what they do in practice (deeds). More specifically, a “fear of floating” behavior has been identified, whereby countries that classify themselves as floating exchange rate regimes intervene quite vigorously over time. While many persuasive arguments have been offered as to why countries intervene, the question remains as to why intervening countries continue to classify their regimes as floating. Thus, concurrently with fear of floating, there seems to be a “fear of declaring.” This paper examines one possible reason for fear of declaring: that international capital markets might reward countries that are classified toward the flexible end of the spectrum. Based on the JPMorgan Emerging Market Bond Index spread, we use a panel data approach that exploits both time and cross-country variability. With some qualifications, we find that spreads are lower in countries that have a fixed exchange rate regime, whether de jure or de facto, implying that there is no evidence that markets punish fear of floating. One possible explanation for this puzzle—that is, countries intervene but say that they do not, even though markets appear to be, at a minimum, indifferent to intervention—arises from the fact that there is evidence that de jure floating regimes may fare better in crisis situations.IMF Staff Papers (2008) 55, 445–480. doi:10.1057/imfsp.2008.14 [ABSTRACT FROM AUTHOR]

This paper gives an overview on the processes of commodification and de-commodification of goods and services as a background for analysing developments in the emerging information society. It contributes to the current discussion on intellectual property rights in terms of political economics by connecting it to technology and law. Finally, as an illustration of the proposed view, selected trendsetting Internet-based companies are studied with respect to their strategies in making profit. [ABSTRACT FROM AUTHOR]

In an extended comment on work by this paper’s authors, Gustafsson in a previous issue of this journal reaches scathing judgements on Russia’sarbitrazh(or commercial) courts and draws strong conclusions about the prospects for the rule of law in Russia. He concludes that litigants use the courts because they can bribe the judges. His paper revives old tales about the 1990s that we showed previously were myths. We examine Gustafsson’s argument both conceptually and empirically. We demonstrate that this argument rests on two erroneous assumptions: that the use of legal institutions equates with trust in these institutions and that strategies for use of law are not context-dependent. We show that Gustafsson’s empirical specification is not uniquely related to a single theory and indeed that one interpretation of his results is that enterprises use the courts because they perceive less corruption there than in other venues, a theory diametrically opposite to the one Gustaffson chose emphasise. Using a rich data set collected in Russia in 1997, we are led to the tentative conclusion that firms turned to thearbitrazhcourts because of the relative quality of this institution. [ABSTRACT FROM AUTHOR]

Public expenditure and collection of public resources generate interactions among different subjects of law, natural and legal persons, subjects of public law and private law. These interactions are the main object of the financial regulation, both at domestic and EU level. The legal relations are part of social relations and the companies legally formed are subject to the execution of the financial and fiscal liabilities, which is ensured by the state authority. Financial legal relations are distinguished from other legal relationships by the specific connection that occurs between the contributors and the state authority representative. The subjects involved and the position they have towards each other is subject to regulatory act and, if needed, court of law determination and control. In legal theory, the time of crises determine deep mutation in the legislation in force and the papers shows some of these changes and conclude on some aspects to be improved. [ABSTRACT FROM AUTHOR]