Q7-5a) What are the problems with consulting foreign decisions? Think of language, accessibility, etc. b) Can you imagine what prompted the ‘turn-around’ with respect to quoting foreign CISG decisions? Q7-6a) Compare the UNCITRAL Digest to the Opinions of the Advisory Council. What are their similarities, where are the differences? b) What are the pros and cons of an official case law survey such as the Digest, in particular in light of the Advisory Council, which is a private board? Q7-7 Basically, the interpretation of a legal text begins with its wording. a) Which problems arise from the fact that there are six authentic texts of the CISG? b) Do you know of other countries whose legal texts are published in more than one official language? c) How can we find out what the purpose of a particular CISG provision is? Q7-8a) Explain the principle of good faith embodied in Art. 7(1) CISG. b) Is it a maxim for the interpretation of the provisions of the CISG only, or should it also be applied in interpreting the contract and the behaviour of the parties? Cf. C7-1. c) What is the consequence of holding ‘good faith’ to be a maxim for the interpretation of the CISG only? d) Can you find any other provisions in the CISG which reflect the principle of good faith? e) Compare Art. 7(1) CISG with similar provisions from other sets of rules. Which ones provide for a solution similar to that under the CISG, which ones are different? f) Can you imagine why the drafters of the CISG refrained from establish-ing a ‘good faith’ principle for interpreting the parties’ contract or any of their statements? Art. 7(2) CISG

2007 ◽  
pp. 111-111
Keyword(s):  
Case Law ◽  
Good Faith ◽  
Advisory Council ◽  
Official Language ◽  
Authentic Texts ◽  
Legal Text ◽  
Legal Texts ◽  
Pros And Cons ◽  
Language Accessibility

scholarly journals A Structural and Grammatical Analysis of the Estonian Constitution

2016 ◽  
Vol 6 (2) ◽  
pp. 76-95
Author(s):  
Addi Rull ◽  
Tõnu Tamme ◽  
Leo Võhandu
Keyword(s):  
Text Mining ◽  
Computational Linguistics ◽  
Quantitative Method ◽  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Rights ◽  
Legal Text ◽  
Grammatical Analysis ◽  
Text Structures ◽  
Legal Texts

Abstract The authors propose a novel quantitative method to analyse the structure of legal texts. The method enables to determine grammatical similarity between legal texts. The authors use the external theory of fundamental rights to separate the text of fundamental rights of the Estonian Constitution into two categories of norms: constitutional rights and restrictions. Grammatical similarity between constitutional rights, restrictions and selected legal acts and case law is measured. The layer of special norms renders the best grammatical similarity with the text of fundamental rights. The same grammatical similarity tests can be replicated to cover other jurisdictions in the future. The research is experimental, but the authors believe that the method can be utilised in fields of computational linguistics and legal text mining, but also in research where legal text structures are analysed for various purposes.

Non-Signatories in International Commercial Arbitration: Contesting the Myth of Consent

2018 ◽  
Vol 18 (2) ◽  
pp. 59-84
Author(s):  
Slavomír Halla
Keyword(s):  
Case Law ◽  
Good Faith ◽  
Mutual Understanding ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Starting Point ◽  
Professional Audience

Abstract Consent, the final frontier. International commercial arbitration is a dis­pute resolution mechanism embedded in consent of the parties involved. Presentation of such a mutual understanding is done through an arbitration agreement. However, the aim of this paper is to analyse whether its contractual, indeed consensual, nature is the only element which the courts use to identify the subjects who may compel or must be compelled to arbitrate disputes, or whether they employ other considerations as well. The paper will focus on extension doctrines which might be less known even to a professional audience: piercing of the corporate veil, estoppel & group of companies. A review of selected case law leads to a conclusion that consent-finding analysis is defi­nitely a starting point of any analysis. However, at the same time courts and arbitrators do indeed use tools of contract interpretation and the ones based on equity or good faith considerations to establish, and exceptionally force, the implication of consent far beyond what is obvious.

Fiduciary Law, Good Faith, and Publicness

2019 ◽  
pp. 762-779
Author(s):  
Hillary A. Sale
Keyword(s):  
Case Law ◽  
Corporate Law ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Red Flags ◽  
Corporate Development ◽  
Duty Of Loyalty ◽  
Trust Law

This chapter uses corporate law as a case study to evaluate the content of the fiduciary duty of good faith. Tracing its development from Van Gorkom through to the present, the chapter shows how good faith, though part of the duty of loyalty, has become a gap filler, policing the space between generally exculpated breaches of care and the more obvious breaches of loyalty. This chapter also surveys good faith case law to show the most common “red flags” for which corporate officers and directors should be monitoring. An analysis of two of the most recent good faith cases—City of Birmingham and In re Wells Fargo—show how the theory of publicness can be used to predict future good faith developments. Finally, the chapter ends by showing that the duty of good faith’s expansion into trust law parallels its corporate development by emphasizing its gap-filler function.

scholarly journals The Principle of Directive-Compliant Development of the Law and the Contra Legem Limit

2020 ◽  
Vol 16 (4) ◽  
pp. 465-488
Author(s):  
Thomas M.J. Möllers
Keyword(s):  
Case Law ◽  
Third Party ◽  
Broad Term ◽  
Legal Texts ◽  
Classical Methodology ◽  
The Law ◽  
Legal Methodology ◽  
The Relationship ◽  
Further Development ◽  
Domestic Law

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.

Schemes of Arrangement: Law and Practice

2012 ◽  
Author(s):  
Geoff O’Dea ◽  
Julian Long ◽  
Alexandra Smyth
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Sources Of Information ◽  
Foreign Companies ◽  
Pros And Cons ◽  
English Law ◽  
The Law ◽  
The Uk

This new guide to schemes of arrangement draws together all of the elements of the law and practice concerning both creditor and member schemes. Member schemes of arrangement have become the preferred method of implementing takeovers in the UK. Creditor schemes of arrangement are increasingly used in restructuring matters and the trend in their usage in foreign companies is likely to continue as many credit documents across Europe are arranged and underwritten in London under English law. The book considers the effect given to an English scheme in foreign jurisdictions, and other Private International Law issues. A major issue for those considering a scheme for creditors is whether a scheme or CVA (Company Voluntary Arrangement) is more appropriate and this book assists the reader by including an analysis of the pros and cons of schemes and CVAs. There are very few sources of information on schemes of arrangement and the area takes much of its substance from case law. This book, addressing the law and practical issues faced by practitioners on a day-to-day basis, is a first in the field.

scholarly journals Development of the Principle of Good Faith and the Institute of Pre-Contractual Liability in Light of the Reform of French Legislation on Obligations

10.12737/2243 ◽  
2014 ◽  
Vol 2 (2) ◽  
pp. 91-100
Author(s):  
Ирина Мутай ◽  
Irina Mutay
Keyword(s):  
Case Law ◽  
Good Faith ◽  
Legal Doctrine

On the materials of project of reforming of law of obligation in France the author researches law positions of French courts and legal scholars on good fair and pre-contractual responsibility, explaines importance of legislative basis of proposals on pre-contractual responsibility and its development by case law, makes conclusions of necessity of taking into account of achievements of foreign legal doctrine during formation of Russian case law.

The role of the principle of integrity in copyright protection

2021 ◽  
pp. 12-25
Author(s):  
Olena Shtefan
Keyword(s):  
Case Law ◽  
The United States ◽  
Fair Use ◽  
Good Faith ◽  
Scientific Article ◽  
Anglo Saxon ◽  
Fair Dealing ◽  
Applicable Law ◽  
Principle Of Justice

Shtefan O. The role of the principle of integrity in copyright protection.The article is devoted to the disclosure of the essence of the principle of good faith as the quintessence of all principles of law, universal principle, which applies both in procedural and material law. Directly in the article, the principle of good faith is revealed through the prism of the analysis of controversial legal relations arising in copyright relations.The application of the principle of fair use of works is aimed at establishing a balance between the interests of authors of works and the interests of society regarding their use, while sometimes it is used to expand the monopoly of copyright.Analysis of the legislation and case law of Canada, Australia and other countries allows us to define the principle of «fair dealing» as a way to protect («affirmative defense ») from copyright infringement and restrictions, rather than as a statutory right to use someone else’s work. Otherwise, the defendant would be burdened with proving that: 1) the use corresponds to one of those listed in Art. 29 goals (for example, research, criticism or news); 2) the use was «fair» and 3) there were references to the original source.According to the results of the study in the scientific article it was concluded that the existence in the Anglo-Saxon legal family of two conceptually different in the application of doctrines of fair use «fair use» and «fair dealing» and understanding the free use of works in Ukraine, as in other countries in continental Europe, closer to the doctrine of «fair dealing», which implies a statutory list of actions that are classified as fair use, than to the doctrine of «fair use», which operates in the United States. Although it is possible to trace some similarities between the understanding of free use in the Civil Code of Ukraine, the Law of Ukraine «On Copyright and Related Rights» and the doctrine of «fair dealing» (given the statutory list of restrictions on copyright), it is necessary to take into account case law and, accordingly, a more «free» interpretationof the applicable law when the courts decide whether the use is a violation of exclusive rights or is an activity within the framework of free (fair) use. Keywords: copyright, illegal use of copyright objects, the principle of justice, thedoctrine of «fair use», the doctrine of «fair dealing».

Part II Formation, 4 Certainty

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Case Law ◽  
Good Faith ◽  
English Law

A requirement in English law is that an agreement must have sufficient commercial certainty. The extensive case law is examined closely, with instances being cited of numerous cases where the courts have either concluded that the certainty requirement has been satisfied, or that the transaction is void for lack of fundamental clarity. An agreement to agree is not valid, nor an agreement to negotiate reasonably or in good faith. These restrictions are examined closely. An interesting exception has emerged, requiring a party to adhere to an undertaking to negotiate in an amicable and constructive way as a preliminary to commencing arbitration.

Features of the language of law: A comparative study of Polish, English and Indonesian legal texts

2019 ◽  
Vol 4 (1) ◽  
pp. 69-86 ◽  
Author(s):  
Daria Zozula
Keyword(s):  
United States ◽  
Real Estate ◽  
Comparative Study ◽  
United States Of America ◽  
The United States ◽  
Legal Text ◽  
Legal Texts ◽  
The Republic ◽  
Civil Codes ◽  
Parallel Texts

Abstract Researchers studying the language of law agree that there is a number of certain features which are characteristic of the legal genre, regardless of the language of the legal text. Among the most commonly listed features of lingua legis are: conventionalised sentences, performative verbs, Latinisms, euphemisms, and time expressions. The paper provides a discussion of these features, as well as provides examples of their occurrence in Polish, English, and Indonesian legal texts. The analised corpus includes the 1945 Constitution of the Republic of Indonesia, the Constitution of the Republic of Poland, The Constitution of the United States of America with amendments, Polish and Indonesian Civil Codes (clauses concerning obligations), together with a set of parallel texts of rental agreements and real estate sale contracts.

Wiederaufleben von Drittsicherheiten

2019 ◽  
Author(s):  
Sven Kalisz
Keyword(s):  
Historical Context ◽  
Previous Treatment ◽  
Case Law ◽  
Third Parties ◽  
Good Faith ◽  
Third Party ◽  
Security Agreements

The reinstatement of third-party collateral has not received much academic attention to date. Previous treatment of this issue has, in relation to many questions, merely led to seemingly apodictic assertions, without taking each systematic, historical context into account. This work provides coherent, dogmatically well-founded reasoning with respect to this set of issues. It scrutinizes prior approaches to this, in particular the differentiation between accessory and non-accessory collateral, resolves issues that have been disputed to date and provides a viable, dogmatic solution. In conclusion, possible contractual solutions are outlined which, contrary to previous approaches, except for tax and accounting law issues, protect the collateral taker as far as possible against good faith acquisition by third parties and can stand up to the strict case law relating to “restrictive security agreements”. This work is aimed at both practitioners and academics.

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