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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 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]

Joint Ventures are often used by parties in commercial enterprises where parties seek to achieve a common goal. One issue which is increasingly contentious is the extent to which, if any, joint venture parties owe each other fiduciary obligations. This paper refutes, as a dangerous heresy, the idea that joint venture relationships are discrete legal relationships that are inherently fiduciary in nature. The majority of self-styled "joint ventures" are, invariably, nothing more in legal terms than contracts. If parties are going to be bound by fiduciary duties, over and above the contractual duties they owe each other, this will only be so by virtue of the particular arrangement they have entered into which, on a thorough examination of the facts, is found to require each party to give unstinting loyalty to the other. Recent Australian case law bears this out. [ABSTRACT FROM AUTHOR]

This paper shows that the traditional equitable doctrine, which protected the rights of a prepaid buyer of future or unascertained goods, was wrongly perceived as being overruled by the judgment of a single Court of Appeal judge. What followed, however, was considerable judicial reluctance by English courts to remedy this error. The article examines various legislative and judicial approaches from major common law jurisdictions around the world that purport to lessen the potential for injustice created by this judicial caution. Yet despite legislative intervention in England to provide limited remedies, there has been a marked reluctance elsewhere to produce the necessary radical reform suggested by the Law Reform Commission of Ontario. The position in Ireland is examined and the authors note that the time may be ripe for a reconsideration of the current statutory provisions in that jurisdiction. [ABSTRACT FROM AUTHOR]

Academically, the principle of comity is all but dead. Not only is there a distinct lack of literature regarding the principle, but in circumstances where it is addressed it is considered to be of negligible importance for the resolution of modern private international law disputes. However, a review of Australian case law demonstrates that there is a significant disjunct between the academic view of comity and its actual use in judicial practice. In the last 10 years, over 850 Australian court decisions have made reference to comity – many of which relate to the field of private international law. In this article, the authors review 77 Australian cases where comity played a definitive role in the resolution of private international law issues. These cases demonstrate that comity is a relevant, useful legal tool to guide the development and application of private international law rules – doing so in a manner that helpfully mediates between the political need to uphold the doctrine of sovereignty and the commercial and judicial need to permit law to act transnationally in order to accommodate international commerce. This is the purpose for which comity was created almost 400 years ago and the examined case law demonstrates that it continues to be effective in reflecting these interests in the law. [ABSTRACT FROM AUTHOR]

This article considers the varying judicial approaches to the question of incorporation of arbitration agreements by reference to another contract, schedule of terms, or trading rules. In particular, attention is directed to the approach taken by English courts in considering whether a subsequent holder of a bill of lading is bound by an arbitration agreement contained in a charterparty. In that context, English courts required an express reference in a bill of lading to the charterparty arbitration clause before it could be regarded as part of the contract. General words purporting to incorporate the terms and conditions of a charterparty would not be sufficient. This article examines the development of this strict approach to incorporation in the maritime context, its application to contractual disputes outside that context and recent case law signalling a more flexible approach to the question based on the intention of the parties involved. [ABSTRACT FROM AUTHOR]

The article explores the role and significance of the freedom to conduct a business under Article 16 of the Charter of Fundamental Rights of the European Union (CFR) and the case law. It explains the assertion that Article 16 CFR can facilitate European social, economic and political integration, and that it should be read in the light of citizenship provisions and of the convergence of fundamental freedoms. It also examines the possibility of extrapolating new fundamental trade-related rights.

Wealthy families often use closely-held businesses to manage, preserve, and transfer wealth. These entities are difficult to value and, therefore, present estate planning and transfer challenges when owners attempt to give or sell portions of the business. Attorneys often use formula clauses to ensure predictability in the parties' expected tax liability. Recently, the Tax Court decided Wandry v. Commissioner in favor of the taxpayer, where the taxable transfer employed a defined-value clause with a non-charitable valve. Until this decision, courts have endorsed only the use of charitable valves in conjunction with defined value clauses. This Article analyzes the Tax Court's decision in Wandry and attempts to fit it within well-established case law decided in the last century. Although Wandry was decided in favor of the taxpayer, this Article suggests that attorneys who step outside the boundaries of court-blessed formula clauses do so at their own risk. [ABSTRACT FROM AUTHOR]

The article summarizes legal developments from 2006 regarding corporate compliance and ethics programs in the U.S. based on a survey from the Corporate Compliance Committee. It discusses developments in the Sentencing Guidelines for the sentencing of organizations. Significant state and federal regulatory developments were also explored including changes in the Foreign Corrupt Practice Acts. It also looks at state and federal case law developments.