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This chapter sets the scene for volume IV of the Studies in the Contract Laws of Asia. It describes the genesis and the main objectives of the series, i.e. to facilitate conversations between Asian jurisdictions and between them and ‘Western’ jurisdictions. It provides some basic information on the population numbers and the economic importance of the thirteen Asian jurisdictions covered (China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Myanmar, the Philippines, Singapore, Taiwan, Thailand, and Vietnam). Moreover, it comments on the methodology employed throughout the volume and reproduces the guidance that the editors provided to the various contributors in order to ensure that their chapters cover roughly the same ground. This chapter concludes with an overview of the content of the further twenty-three chapters included in volume IV of the series.

This chapter sets the scene for Volume III of Studies in the Contract Laws of Asia. It describes the genesis and the main objectives of the series, ie to facilitate conversations between Asian jurisdictions and between them and ‘Western’ jurisdictions. It provides some basic information on the populations and the economic importance of the 13 Asian jurisdictions covered (China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Myanmar, the Philippines, Singapore, Taiwan, Thailand, and Vietnam). Moreover, it comments on the methodology employed throughout the volume and reproduces the guidance that the editors provided to the various contributors in order to ensure that their chapters cover roughly the same ground. The last and longest part of this chapter contains an overview of the content of the further 22 chapters included in Volume III of the series.

This chapter concludes Volume III of Studies in the Contract Laws of Asia. It summarizes the main findings on the 13 Asian jurisdictions covered (China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Myanmar, the Philippines, Singapore, Taiwan, Thailand, and Vietnam). With regard to both the interpretation of contracts and the control of unfair terms, the various legal sources and their ‘Western’ sources of inspiration are described, questions of classification and terminology discussed, and the major substantive issues that arise across legal systems examined. The latter include the dichotomy of ‘subjective’ and ‘objective’ approaches to contractual interpretation; the admissible aids to interpretation, such as customs, usages, the commercial background, good faith, and the negotiations of the parties; the conflict between ‘literalist’ and ‘contextualist’ approaches, particularly with regard to gap-filling by way of implication of terms or ‘supplementary interpretation’; the ‘covert’ judicial control of unfair terms under general contract law doctrines, such as incorporation, interpretation, and the rules on procedural unfairness; the open control based on specific legislation on either particular types of term, unfair standard terms, or consumer contracts, and the supporting enforcement mechanisms. In conclusion, the chapter highlights the differences and similarities that can be observed across Asia, relates these to the wide variety of legal transfers that occurred in the relevant legal systems, and maps out issues for further research.

Studies in the Contract Laws of Asia provides an authoritative account of the contract law regimes of selected Asian jurisdictions, including the major centres of commerce where limited critical commentaries have been published in the English language. Each volume in the series aims to offer an insider’s perspective into specific areas of contract law—remedies, formation, parties, contents, vitiating factors, change of circumstances, illegality, and public policy—and explores how these diverse jurisdictions address common problems encountered in contractual disputes. A concluding chapter draws out the convergences and divergences, and other themes. All the Asian jurisdictions examined have inherited or adopted the common law or civil law models of European legal systems. Scholars of legal transplant will find a mine of information on how received law has developed after the initial adaptation and transplant process, including the influences affecting and mechanisms of these developments. The many points of convergence and divergence (in both form and in substance) emerge. These provide good starting points for regional harmonization projects. Volume III of this series deals with the contents of contracts and unfair terms in the laws of China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Myanmar, the Philippines, Singapore, Taiwan, Thailand, and Vietnam. Typically, each jurisdiction is covered in two chapters; the first deals with the contents of contracts, while the second deals with unfair terms.

Much of legal biography is also attended by the criticism that it is written in a manner in which the personal life of the individual is detached from his (and it usually is his) legal or judicial accomplishments. Legal biography, more so than other forms of biography, has been dominated by what Woolf referred to as the Victorian biographer’s preoccupation with ‘the idea of goodness … [n]oble, upright, chaste, severe; it is thus that the Victorian worthies are presented’. English legal biographies in the twentieth century came, also, to become concerned with the enthusiastic, sometimes melodramatic, accounts of the great barrister’s activities. A related problem is that legal biography is often depicted as the individual histories of great men and how they changed the course of history. Such biographies, as Laura Kalman has observed, are not in vogue; they are an‘unusually old-fashioned subject of an unusually old-fashioned field, political history’. Finally legal biography straddles that uneasy divide amongst legal historians, between an internal legal history concerned with a self-contained lawyer’s world of rule development and an external legal history concerned to set, and explain, law and legal development within a broader historical context.

We are delighted to be part of the re-launch of the American Journal of Legal History as it moves from Temple University, where it has been published since 1957, to Oxford University Press. AJLH , as the journal is affectionately known, has had a distinguished history and its growth parallels the development of the field, which in the 1950s was focused on great (almost exclusively) American men—judges and lawyers, legal doctrine, and the development of the legal profession, to the 21st century when there are many more focal points. The field now stretches from mighty jurists to humble litigants and outsiders, in the United States and beyond. It includes the ideas of those actors, the way that law sets the boundaries for their thoughts and actions, and how they challenge law and custom. Its methods include such classic tools of intellectual history as reported cases and treatises, the quantitative analysis of records of long-forgotten courts and administrative agencies, and the oral recollections of people subject to law’s scrutiny. The journal has been around long enough that we can now turn its content into a subject of study.1 Let us look back for a moment and use the AJLH ’s content as a measure of how far we have come and as a gauge of the changes in legal history from the 1950s to now. Much of legal history writing before the 1950s had been part of a scholarly tradition that told a positive story of the unfolding of American liberty, where there was little conflict between the leaders of American law and society and those left behind. In fact, the complete picture of American legal history was rather different. There were plenty of causes for celebration, to be sure. The AJLH told some of those stories, as well … stefan.vogenauer{at}iecl.ox.ac.uk

Studies in the Contract Laws of Asia provides an authoritative account of the contract law regimes of selected Asian jurisdictions, including the major centres of commerce where limited critical commentaries have been published in the English language. Each volume in the series aims to offer an insider’s perspective into specific areas of contract law—remedies, formation, parties, contents, vitiating factors, change of circumstances, illegality, and public policy—and explores how these diverse jurisdictions address common problems encountered in contractual disputes. A concluding chapter draws out the convergences and divergences, and other themes. All the Asian jurisdictions examined have inherited or adopted the common law or civil law models of European legal systems. Scholars of legal transplant will find a mine of information on how received law has developed after the initial adaptation and transplant process, including the influences affecting and mechanisms of these developments. The many points of convergence and divergence (in both form and in substance) emerge. These provide good starting points for regional harmonization projects. Volume II of this series deals with contract formation and contracts for the benefit of third parties in the laws of China, India, Japan, Korea, Taiwan, Singapore, Malaysia, Hong Kong, Korea, Vietnam, Cambodia, Thailand, Myanmar, and Indonesia. Typically, each jurisdiction is covered in two chapters; the first deals with contract formation, while the second deals with contracts for the benefit of third parties.

This chapter provides an introduction to the Studies in Asian Contract Law series: its genesis and objectives, the difficulties encountered, the methodology adopted, as well as the terms of reference given to all contributors to this volume. It explains the comparative law dimensions of the project, the thematic focal points of each stage of the project, and the basis on which the Asian jurisdictions featured in this book were selected. It introduces the underlying research questions and overarching themes of the book and also provides a summary of each of the chapters.

Abstract: This article challenges the claim that there is regulatory competition in the areas of contract law and civil litigation. It is frequently assumed that lawmakers reform their contract laws and dispute resolution mechanisms with the purpose of attracting 'users', i.e., parties to cross-border contracts who choose the contract law or the courts of a given legal system. I shall discuss this assumption and its plausibility in the first part of this article. In the second part, I will test the assumption by presenting the available empirical evidence on the choices of contract law and forum that businesses in Europe actually make. For a long time, such data have been largely absent from the debate. Moreover, I assemble evidence of lawmakers competing for the production of the most attractive legal regimes in the areas of contract law and civil litigation. I conclude that meaningful regulatory competition in the areas concerned cannot be predicted with confidence; nor is there evidence of its existence. Résumé: Cet article questionne l'affirmation selon laquelle il existerait une concurrence normative en matière de droit des contrats et de contentieux civil. Il est généralement tenu pour acquis que les organes producteurs de droit réforment le droit des contrats et les mécanismes de résolution des conflits en ayant en vue de les render attractifs pour les 'utilisateurs de droit', et plus spécifiquement, d'attirer les parties aux contrats internationaux qui sont en position de choisir le droit applicable à l'acte ainsi que la juridiction compétente en cas de conflit. Cette hypothèse sera analysée et son caractère plausible étudié, dans la première partie de l'article. Dans la seconde partie, l'hypothèse sera mise à l'épreuve au regard des résultats des études empiriques récentes sur les choix de loi et de forum par les professionnels en Europe. Longtemps, ce type de donnés a fait défaut au débat. Au surplus, seront étudiés des indices relatifs à l'existence éventuelle d'une compétition entre législateurs pour produire les régimes légaux les plus attractifs en matière de droit des contrats et de contentieux civil. Il faudra conclure en reconnaissant que, d'une part, il est difficile de prédire avec certitude qu'une réelle concurrence normative pourrait marquer les domaines étudiés et que, d'autre part, il n'y a, pour l'heure, pas de preuve de son existence.

This article shows how the House of Lords has, in recent years, embarked on a retreat from its landmark decision in Pepper v Hart which had relaxed the rule prohibiting courts from using ministerial statements made in Parliament for the purpose of interpreting statutes. This development was initiated by a lecture given by Lord Steyn in May 2000 and subsequently published in this journal. The article attempts to refute the reasons advanced in support of the retreat. In addition, it sets out to show that the alternative solution proposed by Lord Steyn creates both conceptual and practical difficulties. As a result it argues for a reversal of the retreat. © The Author 2005. Published by Oxford University Press. All rights reserved.

German law is commonly assumed to be strongly influenced by legal scholarship. This was certainly true in the past, and this article explores whether it is still the case today. But what is actually meant by 'influence' in the context of law? Who exerts it on whom, and how? These questions are analysed at the beginning of this article which builds up on a first part published in the Cambridge Law Journal in 2005. It is then shown, by drawing on biographical material, legislative history and case law, how legal scholarship contributes to both the legislative and the judicial lawmaking process in Germany - and where it does not. Finally it is asked how the specific relationship between legal academics and lawmakers in the German legal system can be explained and whether this model can be transferred to other systems.