Moral Value and Commercial Gain

This paper presents three theoretical accounts developed to assess the moral value and legal status of acts designed to promote commercial gain in the thought of major classical Muslim scholars. There has been an increased interest in Islamic commercial law and ethics in recent years. Much of the recent scholarship consists of practically inclined studies that tend to lump the Islamic tradition of evaluation of commerce under the principles of social justice and avoidance of harm. Our study of three selected scholars will reveal distinct approaches that are characteristic of classical Islamic ethical discussions: anchoring moral value in this world, attributing moral goodness to salvation in the next world, and finding a balance between these two approaches. Counterintuitively, we will see that the naturalistic view that ascribes moral values to things and actions was the most restrictive, whereas the dualistic model that focuses on salvation in the next world was markedly more permissive of commercial transactions.

Administering Empire. Business Diplomacy in Early Modern Sweden: The Cases of Abraham Cabiljau and the Gothenburg Company

The article illustrates the importance of business diplomacy practised by free agents, who navigated and negotiated between northern European empires for widespread commercial, legal and administrative developments. Abraham Cabiljau’s career is an example from the early modern Swedish empire, which stands on the threshold of a new era. In the Swedish empire, Cabiljau was involved in several different sectors, from military recruitment to the development of state accounting and administration of international trade. He represents the Swedish empire’s vast economic relationships with international merchant networks operating in a broad spectrum of military and commercial arenas. The Swedish empire was economically dependent on the financial resources of the merchants in Amsterdam, and economic prosperity was not the sole contribution of these merchants. The education, knowledge and connections provided by Cabiljau greatly enhanced the administration and organisation of Sweden’s international trade by importing a new legal mindset and organisational culture. In return, northern mining resources and Baltic commerce were alluring for Dutch merchants. We argue that the modelling of international organisations was an essential part of Swedish economic development. However, the first Swedish trading companies remained an experimental attempt to transplant the Dutch East India Company (VOC) model to Sweden. Individuals like Cabiljau represent key actors who ignited, taught and promoted commercial law development in Sweden, on which international commerce was later built upon, with long-lasting impacts.

NEW CHALLENGES IN INCOTERMS IN THE BACKGROUND OF THEIR HISTORICAL DEVELOPMENT

INCOTERMS conditions are internationally recognized delivery clauses. Their advantage is comprehensibility and uniform interpretation by the contracting parties, as well as easy incorporation into the contract. An undeniable advantage is the regular update. The individual updates reflect trends in international business practice and therefore clarify or repeal existing clauses or introduce new ones as needed. The aim of the article is to evaluate the development of the INCOTERMS clauses on their historical development and their impact on international commercial law relations, and through this to outline possible future developments. The authors also consider whether, given the rapid technological progress, the current ten-year cycle of revision of the INCOTERMS clauses is appropriate or whether it is too long. Among the new trends, the authors point to new types of transport, especially unmanned drones, and the continuing trend of a transparent and secure logistics chain.

Skazane na zapomnienie — prawo handlowe w PRL

The post-war history of Polish commercial law is not a frequent subject of interest in the literature. Historical reflection is usually limited to indicating that the civil code entering into force on 1 January 1965 and, on the same day, the repeal of the pre-war commercial code from 1934 formally ended the era of Polish private law’s duality — the coexistence of two equal branches of law: civil law, regulating common relations, and commercial law, regulating economic relations. However, it was the last symbolic chord in the history of commercial law during the communist period. In fact, it had been extinguished several years earlier and replaced by a socialist substitute in the form of economic law, intended to regulate the centrally planned, socialist trading, in which there was no space for individual economic activity. The article discusses the mechanism of dismantling commercial law in the political and economical order of the totalitarian state, which Poland became after the Second World War. This mechanism was implemented not on the normative level, by repealing the norms of commercial law, but on the factual one, by eliminating — through administrative, fiscal, and penal pressure methods — addressees of commercial law (already existing and potential entrepreneurs) and taking them away, e.g. by nationalizing the most essential components of their enterprises. In this way, the necessary (personal and property) background of commercial law was destroyed, making its norms irrelevant. Thus, commercial law was condemned to a dozen or so years of non-existence and oblivion before the legislator decided to make a formal decision, which was to repeal most provisions of the commercial code. Only those regulations remained in force that were needed by the communist authorities, e.g. to conduct foreign trade. The effects of several-decades-long systemic non-existence of commercial law are still noticeable today. Despite the systemic transformation in 1989 and the return of the Polish economy to free market rules, Polish commercial law — relegated to the role of a specialized discipline of civil law and formally distinguished only for research and teaching activities — has not yet regained its rank as an independent branch of private law.

The Impact of the Merchant’s Confession in the Development of Business Law during the Siglo de Oro: the Casuistic Approach of Tomàs de Mercado and Martin de Azpilcueta to Commercial Law.

In 16th century Spain, the confessor and the merchant had a privileged relationship, resulting from the new economic practices induced by the Great Discoveries. The merchant must, for the salvation of his soul, engage in commercial activity in accordance with Christian morality. Through confession, the confessor provides legal and theological advices necessary to achieve this purpose, but also judges the morality of his penitent by deciding whether or not to absolve him. Therefore, the confessor must know both the Christian moral precepts designed to govern business life, and the institutions of civil law used in business practice. An issue raised by the penitent is a case of conscience, which the confessor must resolve by formulating a moral resolution. This resolution could be a certain or only a probable one, and therefore subject to debate against other probable opinions. These resolutions were then incorporated among others into the casuistic literature that was to be diffused throughout Europe for the use of both confessors and penitents.

Legal Person Subject to Civil Law

The legal person, now a distinct institution in its own right, regulated as such in the Romanian Civil Code, is the result of a long process of modernisation of Romanian legislation, but also of its harmonisation with international regulations which unanimously recognise the legal person as a subject of law. The notion of legal person was born in private law and has been and is used in all branches of law. Legal persons are distinct subjects in civil law or commercial law legal relationships. The legal person is a subject of law with a wide scope in the legal circuit. Commercial companies, autonomous companies, companies, are participants as legal persons in private law relationships. Legal persons are the entities provided for by law, as well as any other legally-established organisations which, although not declared by law to be legal persons, fulfill all the conditions provided for by the Civil Code and the relevant legislation. The present article aims to present the specific rules for the establishment and functioning of a legal person, as well as issues related to classifications and constituent elements, and to their liability for legal acts or deeds performed.

Company Controller's Role as One Way to Rescue Companies under Jordanian's Insolvency Act 2018 "Comparative Study"

The main objective of this article is to shed light on the new emergence on the Jordanian insolvency Act no. 21 of 2018, after it became independent from the commercial law, specifically the role of the companies general controller through the application of the provisions of this law to rescue company as much as possible from stopping running its business activates and then its insolvency. In this article, the Jordanian law was compared with English law in order to compel Jordanian legislator to benefit from other legislation, given that the Jordanian law is still recent. This article dealt with the issue of corporate rescue and the role of the company controller in starting company insolvency procedures, in accordance with the provisions of the Jordanian Insolvency Act 2018; with refer to the provisions of the UNCITRAL Insolvency Legislative Guide 2004. This article concluded that Jordanian legislator must develop a rescue culture by putting in place protection for insolvent companies, such as a moratorium and expanding the means of rescue, rather than limiting the rescue culture to the reorganization plan that is adopted by the UNCITRAL Legislative Guide of Insolvency 2004. In addition, Jordanian legislators must make some legal amendments that are in line with recommendations made by legal authorities within the framework of the company controller role in the Jordanian Insolvency Act 2018.

Mediation advocacy

<p>Mediation has been a part of New Zealand’s employment statutory framework in one form or another for over a century, and has been the first port of call for employment disputes under the current Employment Relations Act for nearly 15 years.¹ I have been working as a mediator in this context for almost seven years in more than 1,000 mediations. Lawyers are playing a significant part in the field of mediation, with a large number representing clients in this forum on a regular basis. In an evaluation of 100 of my mediations over a ten-month period, 85% of parties were legally represented. This rate is consistent with anecdotal reporting across the employment mediation service. Lawyer representation in mediation is not unique to the employment context. There are various mediation schemes provided for under many New Zealand statutes as well as a wide raft of non-statutory mediation occurring in numerous settings. In my experience as a mediator with human rights and leaky building mediations, as well as working as a lawyer in a large commercial law firm, I am aware lawyers are representing clients in many other areas of mediation as well. Although there is a significant amount of mediation occurring and a large number of lawyers regularly appearing in mediation, my experience is that the majority of lawyers act in mediation as if they were in litigation and take an adversarial approach. My thesis is that lawyers have not adapted effectively to mediation and taken on the role of mediation advocacy. This paper explores the topic by first describing, in Part II, what I observe as lawyers’ adversarial approach in mediation. It then looks at other research to assess whether this experience is reflective of a wider issue. It finds there is evidence to support my observations. Part III analyses why lawyers are operating in an adversarial way in mediation and proposes several reasons this may be the case. Part IV puts forward what I propose is appropriate mediation advocacy. It sets out the knowledge, roles and skills required from lawyers when representing clients in mediation. Part V suggests what might be done to assist a shift away from the common, adversarial approach to effective mediation advocacy. This paper is written within the context of employment mediation in New Zealand. However, it draws on research from different jurisdictions and areas of practice so the conclusions it comes to may have more general application. The topic is not whether lawyers should be in mediation. I am not arguing that lawyers do not have a part to play in mediation. A lawyer well versed in mediation advocacy can play a highly effective part in the process. Leonard Riskin, one of the key authors on the topic of lawyers in mediation, expresses this even more strongly, saying he believes lawyers’ involvement is fundamental to mediation’s success.² Further, this paper is focused on lawyers representing parties in mediation and does not consider lawyers as mediators.</p>

Mediation advocacy

<p>Mediation has been a part of New Zealand’s employment statutory framework in one form or another for over a century, and has been the first port of call for employment disputes under the current Employment Relations Act for nearly 15 years.¹ I have been working as a mediator in this context for almost seven years in more than 1,000 mediations. Lawyers are playing a significant part in the field of mediation, with a large number representing clients in this forum on a regular basis. In an evaluation of 100 of my mediations over a ten-month period, 85% of parties were legally represented. This rate is consistent with anecdotal reporting across the employment mediation service. Lawyer representation in mediation is not unique to the employment context. There are various mediation schemes provided for under many New Zealand statutes as well as a wide raft of non-statutory mediation occurring in numerous settings. In my experience as a mediator with human rights and leaky building mediations, as well as working as a lawyer in a large commercial law firm, I am aware lawyers are representing clients in many other areas of mediation as well. Although there is a significant amount of mediation occurring and a large number of lawyers regularly appearing in mediation, my experience is that the majority of lawyers act in mediation as if they were in litigation and take an adversarial approach. My thesis is that lawyers have not adapted effectively to mediation and taken on the role of mediation advocacy. This paper explores the topic by first describing, in Part II, what I observe as lawyers’ adversarial approach in mediation. It then looks at other research to assess whether this experience is reflective of a wider issue. It finds there is evidence to support my observations. Part III analyses why lawyers are operating in an adversarial way in mediation and proposes several reasons this may be the case. Part IV puts forward what I propose is appropriate mediation advocacy. It sets out the knowledge, roles and skills required from lawyers when representing clients in mediation. Part V suggests what might be done to assist a shift away from the common, adversarial approach to effective mediation advocacy. This paper is written within the context of employment mediation in New Zealand. However, it draws on research from different jurisdictions and areas of practice so the conclusions it comes to may have more general application. The topic is not whether lawyers should be in mediation. I am not arguing that lawyers do not have a part to play in mediation. A lawyer well versed in mediation advocacy can play a highly effective part in the process. Leonard Riskin, one of the key authors on the topic of lawyers in mediation, expresses this even more strongly, saying he believes lawyers’ involvement is fundamental to mediation’s success.² Further, this paper is focused on lawyers representing parties in mediation and does not consider lawyers as mediators.</p>