Overcoming Obstacles to the Application of the Unidroit Principles: Proposal for a Descriptive Choice of the Unidroit Principles Clause

The article builds on a similar article written ten years ago and published in the Uniform Law Review. It tries to build a bridge between the academic world and the world of practitioners with regard to the perception of the Unidroit Principles.

Building a Fence Around Brain Death: The Shielded-Brain Formulation

The concept of brain death was proposed more than 50 years ago and it has been incorporated in laws and clinical practice, but it remains a source of confusion, debate, and litigation. Because of persistent variability in clinical standards and ongoing controversies regarding policies, the Uniform Law Commission (ULC), which drafted the Uniform Determination of Death Act (UDDA) in 1980, has appointed a committee to study whether the act should be revised. This article reviews the history of the concept of brain death and its philosophical underpinnings, summarizes the objections that have been raised to the prevailing philosophical formulations, and proposes a new formulation that addresses those objections while preserving current practices.

Outline of the Workers Co-operative Act in Japan - Líneas generales de la Ley de cooperativas de trabajadores en Japón

The Japanese co-operative legislation is characterized by the separate laws that are specializing to regulate the particular categories of co-operatives and enacted in line with the industrial policies, and the strong government’s control on incorporation and business activities. The Industrial Co-operative Act of 1900 was a uniform law following the German model and provided for the legal framework of credit, supply, marketing and production2 co-operatives. After the Second World War, the allied force introduced the radical land reform as a part of economic democratization programs and helped to enact the Agricultural Co-operative Act in 1947 to cement the effects of reform through organizing farmers in agricultural co-operatives. Then, the other co-operative laws were enacted in line with industrial policies (fishery, forestry, banking, SMEs etc.) during 1948-1978.

Should Iran join the United Nations Convention on Contracts for International Sale of Goods?

After 40 years of the United Nations Convention on Contracts for International Sale of Goods (CISG), it is still controversial whether the CISG has been a successful uniform law in practice. It is, nevertheless, evident that the number of ratifications of the CISG has been increasing. This article aims to highlight the important question of whether Iran should implement the CISG. In addition, it argues that irrespective of the possible ratification of the CISG, the Iranian contract law needs to be modernized. In particular, advantages and disadvantages of the possible adoption of the CISG in Iran are explored. This article argues that acceding to the CISG will provide Iran with a number of opportunities, including the promotion of international trade with its trading partners. In proposing a model for the modernization of the Iranian Civil Code (CCI), the author, however, argues that the CISG is not the best option. Instead, the Unidroit Principles of International Commercial Contracts (PICC) is the most appropriate model for reforming the Iranian contract law. This article concludes by suggesting that the combination of the CISG and the PICC is the best way forward for the Iranian legal system.

RECOVERY OF DAMAGE CAUSED BY LATE PERFORMANCE OF OBLIGATIONS RESULTING FROM INTERNATIONAL COMMERCIAL CONTRACTS

This article analyses the different approaches in comparative law, arbitral practice and in doctrine regarding the institution of interest on late performance (default interest) allocated to compensate for the damage arising from the late performance of contractual obligations, known by most legal systems and instruments of uniform law. Despite the trend of harmonization of regulations in this area, national legislations enshrine different solutions regarding some aspects of this institution. Consequently, the national and international tribunals give various decisions, depending on the legal regulations and the international commercial customs that they consider applicable in the case, the jurisprudence in this field being different.

Referring a Case to the Highest Division of the Supreme Court in the Criminal Procedure Legislation of Ukraine and European Countries

The article aims to examine one of the elements of the formal mechanism of maintaining court practice unity in criminal proceedings of Ukraine and European countries – referring a case to the highest division of the Supreme Court. Similar to the Ukrainian criminal procedure legislation, the grounds for referring a criminal case and the procedure of its application are provided in the legislation of Estonia, Italy and Lithuania. At the same time, the Ukrainian legislator has established a number of special features, however, the wording of the relevant articles of the Criminal Procedure Code of Ukraine is not perfect. The article provides answers to such questions as how forceful the provisions of criminal procedure legislation of Ukraine are, to what extent of effectiveness the Supreme Court exercises its legal authority regarding the unity of court practice in criminal proceedings, and whether the controversies in legal positions of the structural divisions of the Supreme Court have been successfully avoided. In order to achieve the stated aims, parts 2 and 3 are devoted to the examination of the grounds for referring a case in criminal proceedings of Ukraine and European countries. Part 4 outlines the shortcomings of the content of some articles of the Criminal Procedure Code of Ukraine concerning the procedure of the referral of a criminal case to the highest division of the Supreme Court. Part 5 provides the analysis of the validity of decisions made by the boards of judges at the Supreme Court on the referral of criminal proceedings to its higher judicial divisions – the joint chamber of the Criminal Cassation Court and the Grand Chamber of the Supreme Court. On the basis of the study of the judgements of boards, the judicial chambers of the Criminal Cassation Court and the Grand Chamber of the Supreme Court, in part 6 the question is answered on whether the Supreme Court of Ukraine managed to perform its duty on the assurance of court practice unity in such an area as criminal proceedings. Keywords: exclusive legal problem, development of law, formation of uniform law enforcement practice, the Supreme Court, criminal proceedings, Ukraine.

Application of CISG in Arbitration: A Combined Procedure or Parallel Procedure?

CISG and arbitration are connected with each other. They may work through a combined or parallel procedure. Globalization of trade desires uniformity in trade. For uniformity of trade, we require uniform law. The arbitration may not work to make it uniform, but choosing any uniform law (i.e. CISG), it may lead to deal a particular arbitration in the international standard. The international standard may be maintained while considering the uniform law. Choosing uniform law (i.e. CISG), it may minimize the risk of wrong interpretation and put the arbitral parties on “equal footing”. Parties may consider CISG as the applicable law in their arbitral agreements. As of 13 February 2021, 94 states signed the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG). The frontline trading states like the USA, Australia, Israel, Canada, China, Germany, France, Russia, and Japan are contracting states of CISG. This research emphasizes providing guidelines as to how parties may apply CISG into their arbitral agreements by maintaining the international standard.

The Role of Judicial Councils as Authorities of the Judicial Community in Individual Regulation of Judicial Activities

The activity of councils of judges in Russia is of a systemic nature, including various forms of individual influence on legal relations: opinions, resolutions, consulting on the prevention of corruption, compliance with ethical standards, prevention of conflicts of legal interests, and other reputational risks. The paper considers one of the activities of the councils of judges in the form of preparation of conclusions, which play a significant role in the formation of a uniform law enforcement practice in the process of individual regulation of judicial activity. The conclusions are of an explanatory nature and are taken into account by the qualification collegiums of judges when making decisions regarding judges and candidates for the position of judges. The essence of the conclusions of the councils of judges is substantiated as a kind of individual regulation of legal relations. The analysis of individual conclusions of the councils of judges made it possible to classify various methods of individual regulation in the process of law enforcement. It is concluded that the councils of judges are the subject of law enforcement, which, through individual regulation, provide certainty in the assessment of reputational risks, their prevention and suppression in the behavior of a judge through the interpretation of the principles and norms of law; overcoming conflicts in law; the use of optional, alternative, relatively specific, dispositive, etc. principles and norms of law; overcoming gaps in law; individualization of law in the form of opinions, decisions, consultation.