Private Uniform Law and Global Legal Pluralism

2020 ◽  
pp. 745-767
Author(s):  
Gralf-Peter Calliess ◽  
Insa Stephanie Jarass
Keyword(s):  
Legal Theory ◽  
Legal Pluralism ◽  
Case Law ◽  
Commercial Law ◽  
Limited Success ◽  
Functional Equivalent ◽  
Uniform Law ◽  
International Instruments ◽  
International Chamber Of Commerce ◽  
Universal Rule

Global legal pluralism comes in many forms and carries various implications. This chapter traces the phenomena of legal pluralism in the field of commercial law. It is commonly held that legal certainty is of paramount importance to merchants. Therefore, efforts to harmonize commercial law on the international level are pertinent, albeit with limited success. As states proved unwilling or unable to create uniform commercial law, various private initiatives were established to achieve this end, the most prominent examples being the International Commercial Terms (Incoterms) and the Uniform Customs and Practice for Documentary Credits (UCP), both promulgated by the International Chamber of Commerce. From the perspective of global legal pluralism, such privately created uniform commercial law is an instance of legal pluralism. Interestingly, in this case it is not state law as the universal rule, which encounters conflicting normative claims of a substate social field, but it is a privately created normative regime that claims universal authority over the fragmented domestic commercial law regimes. According to conventional legal theory, such claim is simply ridiculous and it seems to be impossible for private uniform law to operate successfully. However, an analysis of English and German case law reveals that the Incoterms and the UCP in fact are effectively operating as uniform law and thus as a privately created functional equivalent to international instruments such as the Convention on the International Sale of Goods. This chapter, therefore, argues that beyond theoretical discussions in textbooks, judges do practice what global legal pluralism suggests.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 58 Colombia: Colombian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Salame Antonio Aljure
Keyword(s):  
Latin America ◽  
Civil Law ◽  
Case Law ◽  
Private International Law ◽  
Gap Filling ◽  
Commercial Law ◽  
Legal Relationship ◽  
Commercial Code ◽  
The Hague ◽  
International Instruments

This chapter looks at Colombian perspectives on the Hague Principles. In Colombia, civil and commercial regulations are contained in two separate codes: the Colombian Civil Code and the Commercial Code. Despite their separation, commercial law draws from civil law and regulates several areas not covered by the latter. As a result, civil and commercial law in Colombia should be understood as complementary in that they both regulate international contracts and share similar foundations and principles. There is currently no modern law that comprehensively deals with private international law in Colombia. However, the Bogotá Chamber of Commerce is in the process of drafting legislation with the objective of clarifying the interpretive approach to norms underlying international contracts. Although there is no express reference to the Hague Principles as a guiding or interpretative source of law for judges, it has been recognized in case law that international instruments such as the UNIDROIT Principles of International Commercial Contracts (UPICC) may govern a legal relationship if they do not contravene an express rule. This gap-filling role facilitates the transition of law to modernity by virtue of the requirements of relevance, coherence, and justice.

scholarly journals Backbone or Backyard of the Convention? The CISG's Final Provisions

2017 ◽  
Author(s):  
Ulrich G. Schroeter
Keyword(s):  
Commercial Law ◽  
Domestic Legislation ◽  
The Status ◽  
Uniform Law ◽  
United Nations Convention ◽  
National Boundaries ◽  
International Instruments ◽  
Legal Consequences ◽  
European Community Law

in: Camilla Baasch Andersen & Ulrich G. Schroeter (eds.), Sharing International Commercial Law Across National Boundaries: Festschrift for Albert H. Kritzer on the Occastion of his Eightieth Birthday, London: Wildy, Simmonds & Hill (2008), pp. 425-469This book chapter provides a comprehensive discussion of the 'Final Provisions' in Articles 89-101 of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).After a brief introduction to the purpose of the Final Provisions, it focusses on the Interpretation of Articles 89-101 CISG; the reservations contained therein (inter alia the conditions under which a reservation may be made under the CISG and the legal consequences when such a condition is not (or no longer) satisfied, the time at which a reservation may be made, the legal effects of reservations made, and unclear reservations (and how to avoid them)), 'interpretative declarations' under the CISG (examples of such declarations, their legal consequences under the CISG, and interpretative declarations and interpretative domestic legislation); succession of States and the CISG (how uniform law operates in a world of shifting borders, the effect of State successions upon the status as a CISG 'Contracting State', and successions and reservations); the Convention's relationship with other international instruments: Articles 90, 94 CISG and European Community law; and future accessions to the CISG and the limitation to 'States' (Article 91(3) CISG).

Religious Pluralism and State- Centric Legal Spaces in Europe

2021 ◽  
Vol 18 (1) ◽  
pp. 33-54
Author(s):  
Kyriaki Topidi
Keyword(s):  
Human Rights ◽  
Present Article ◽  
Religious Pluralism ◽  
Legal Pluralism ◽  
Case Law ◽  
Legal Systems ◽  
European Court ◽  
Starting Point

Multiculturalism is continuously and relentlessly put to the test in the so- called West. The question as to whether religious or custom- based legal orders can or should be tolerated by liberal and democratic states is, however, by no means a new challenge. The present article uses as its starting point the case of religious legal pluralism in Greece, as exposed in recent European Court of Human Rights (ECtHR) case- law, in an attempt to explore the gaps and implications in the officially limited use of sharia in Western legal systems. More specifically, the discussion is linked to the findings of the ECtHR on the occasion of the recent Molla Sali v. Greece case to highlight and question how sharia has been evolving in the European legal landscape.

Licences Implied by Custom

2021 ◽  
pp. 142-168
Author(s):  
Poorna Mysoor
Keyword(s):  
Case Law ◽  
Copyright Owner ◽  
Commercial Law ◽  
Independent Source

This chapter focuses on licences implied by custom. A custom in this context represents the conduct of a community (of members of a trade, profession, industry, or market), as opposed to an individual copyright owner enabling the copyright work to be used in a particular way. So long as the community within which the custom is alleged represents the copyright owner, the community’s conduct will be taken as being on behalf of the copyright owner. Once established, a custom does not require validation by a court of law for it to be binding, so that a custom becomes an independent source of power that drives the implication of a copyright licence. Also, once established, a custom can be the basis for implying both a bare licence and a contractual licence, depending on the content of the custom. Therefore, the chapter analyses the case law within a single framework for implying both bare and contractual licences. It builds on the criteria developed by the courts in commercial law to establish a custom (certainty, notoriety, and reasonableness), incorporating factors specific to the copyright context.

Duty to renegotiate in international commercial law and uncontemplated behavioural effects

2020 ◽  
Vol 27 (4) ◽  
pp. 445-464
Author(s):  
Mitja Kovač
Keyword(s):  
Contract Law ◽  
Jel Classification ◽  
Commercial Law ◽  
European Contract ◽  
Behavioural Effects ◽  
The Subject ◽  
Unforeseen Contingencies ◽  
Common European Sales Law ◽  
International Instruments ◽  
European Contract Law

This paper explores possible uncontemplated effects and behavioural implications created by duty-to-negotiate provisions in international instruments. More precisely, the paper considers how five different international instruments approach the subject, namely the Convention on Contracts for the International Sale of Goods (CISG), UNIDROIT Principles of International Commercial Contracts (PICC), Principles of European Contract Law (PECL), Draft Common Frame of Reference (DCFR) and Common European Sales Law (CESL). The extent to which these international and European legal instruments correspond to recent economic and behavioural findings is examined. Moreover, an economically inspired analysis is conducted of the uncontemplated consequences of the duty to renegotiate that well-intended international lawmakers never anticipated. Further, it is suggested that game theoretical and behavioural reasons might exist for adopting a cautious approach to the duty to renegotiate in instances of unforeseen contingencies as found in the CISG as well as the English, German, US and Scottish law of contracts. JEL classification: C23, C26, C51, K42, O43

Józef Nowacki as a Theoretician of Normativism in Poland

2020 ◽  
Vol 45 (2-3) ◽  
pp. 248-267
Author(s):  
Sławomir Tkacz
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Case Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
The Third ◽  
German Speaking ◽  
Post War ◽  
Legal Theorist ◽  
Historical Sketch

The present paper aims to present an outline of the views of the Polish legal theorist Józef Nowacki (1923–2005). The claim put forward is that Nowacki was the chief representative of Hans Kelsen’s normativism in Polish legal theory. The paper begins with a short historical sketch presenting the reception of Hans Kelsen’s views in Polish jurisprudence, noting that in the post-war period the communist authorities believed that normativism was at odds with the then prevailing system of actually existing socialism. Drawing inspiration from German-speaking authors, Nowacki rejected the ideology prevailing in Poland at that time and became a staunch advocate of the normativist stance, in particular with regard to the theory of the legal system. The second part of the paper discusses Nowacki’s views regarding the concept of the rule of law, and the third and last part presents Nowacki’s critique of the case-law of the Polish Constitutional Court.

Introduction

2020 ◽  
pp. 1-10
Author(s):  
Claire Fenton-Glynn
Keyword(s):  
Human Rights ◽  
Juvenile Justice ◽  
Family Law ◽  
Case Law ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
Margin Of Appreciation ◽  
Growing Body ◽  
International Instruments

This chapter provides a brief introduction to the European Convention on Human Rights (ECHR), and the European Court of Human Rights (ECtHR), as it relates to children. Over the past 60 years, the ECtHR has developed a substantial and ever-growing body of case law concerning children, covering issues ranging from juvenile justice and physical integrity to immigration, education, and religion, as well as a code of family law which significantly expands the scope and influence of the ECHR. The chapter explains four key principles of interpretation (positive obligations, the living instrument doctrine, subsidiarity, and the margin of appreciation), as well as the Court’s use of international instruments.

Legal Pluralism and Reasonable Accommodation of Religious Diversity

2017 ◽  
Vol 24 (4) ◽  
pp. 467-483
Author(s):  
Dolores Morondo Taramundi
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Religious Diversity ◽  
Legal Pluralism ◽  
Case Law ◽  
Reasonable Accommodation ◽  
Private International Law ◽  
Public Discussion ◽  
Sharia Law

This article aims to address a number of distinct characteristics of the European debate on legal pluralism as a means for accommodating religious diversity and religious normative orders. In contrast with the us and Canada, where there is a long-standing and varied tradition in jurisprudence that underpins theoretical debates and proposals, European case law is characterised by the prominent role of private international law. Public discussion has also been highly influenced by the uk controversy surrounding the application of Sharia law in arbitration. This article explores how this background shapes the space for religious normative orders, their potential as a means of accommodating religious diversity and the reasons and challenges ahead in the move from private international law to constitutional law for pluralistic arrangements.

Commercial Law

2017 ◽  
Author(s):  
M A Clarke ◽  
R J A Hooley ◽  
R J C Munday ◽  
L S Sealy ◽  
A M Tettenborn ◽  
...  
Keyword(s):  
Case Law ◽  
Commercial Law ◽  
Trade Finance ◽  
Vicarious Liability ◽  
Personal Property ◽  
Consumer Rights ◽  
Modern Slavery ◽  
Bankruptcy Procedure ◽  
The Impact ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This new edition includes discussion of new legislation, including: Consumer Rights Act 2015; Insurance Act 2015; Modern Slavery Act 2015; Small Business, Enterprise and Employment Act 2015; Third Parties (Rights against Insurers) Act 2010; Bribery Act 2010; Payment Services Regulations 2009. The text also has analysis of the latest developments in case law, including: Armstrong DLW GmbH v Winnington Networks Ltd and Devani v Republic of Kenya (on personal property law); Mohamud v WM Morrison Supermarkets plc (on vicarious liability); Kelly v Fraser and Thanakharn Kasikorn Thai Chamkat (Mahachon) v Akai Holdings Ltd (on apparent authority); Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd and European Ventures LLP v Cedar Capital Partners LLC (on agent's secret profits); Bailey v Angove's Pty Ltd (on irrevocable agencies); Cukurova Finance International v Alfa Telecom Turkey Ltd, Gray v G-T-P Group Ltd, and USA v Nolan (on the Financial Collateral Arrangements, No 2, Regulations). The book contains a new introductory section on the impact of Brexit on English commercial law. Insolvency coverage includes discussion of new out-of-court bankruptcy procedure, debt relief orders, and pre-pack administrations.

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