Abstract:
Nowadays traders are very frequently conducting their businesses in accordance with principles and usages forged in the practice of commerce. This has given rise to an ongoing discussion on the existence of an autonomous third legal order called transnational commercial law or the lex mercatoria. This article looks at the role of good faith in that legal system.
As a consequence of the evolution of the law of contracts, the rise of transnational law and of the influence of its prevalent actors - multinational corporations - a cooperative view of contracts has been developed in international trade.
This article argues that the rationale of cooperation, as the underlying current of transnational commercial contracts, has prompted a new way of interpreting the principle of good faith: it is understood as cooperation between the parties to a contract. This interpretation of good faith requires the party to take various steps to fulfil the legitimate expectations of the other party. Rather than being imposed by a central authority, such a predominantly voluntary cooperation is assumed by the parties for the common good of everyone involved in the contractual relationship. This notion fits the experience of global trade today to the point that - it will be submitted - good faith is the fulcrum of cooperation in cross-border trade.
This proposition will be supported through the analysis of: philosophical doctrines; principles embracing transnational law and international arbitral awards. Furthermore, the development of good faith in some municipal legal systems will be considered; as well as the latest developments of good faith in EU law.
Lorena Carvajal-Arenas and A F M Maniruzzaman, Cooperation as Philosophical Foundation of Good Faith in International Business-Contracting - A View Through the Prism of Transnational Law. (2012) Oxford U Comparative L Forum 1.
Purpose
Tuesday, July 24, 2012
Wednesday, July 11, 2012
A Comparative Perspective on Unjust Dismissal Laws
Abstract:
This book chapter is based on a larger project with Samuel Estreicher in which we examine in detail the unjust dismissals regimes of numerous countries. The study of these laws goes beyond the text of the relevant statues and cases, as it uses input from foreign employment law practitioners and available data — particularly claimants’ success rates and average remedies — in an attempt to observe how the laws actually operate in practice.
The conclusion drawn from this study challenges the common “American exceptionalism” premise that argues that adopting a just cause rule would place the U.S. in the same company as the rest of the world. It is true that most countries provide employees with more protection against unjust dismissals than the U.S. But even on paper, the protections in many of the surveyed countries are often weaker than the typical American view of just cause protection assumes. Moreover, the actual practice in these countries frequently reveals even less protection, particularly when remedies are taken into account. These considerations make American dismissal law, although certainly weaker, appear less than exceptional.
In addition, the variances in unjust dismissal regimes suggest that many economic studies of employment protection fail to account for the full range of differences that exist among countries. For instance, a study on the effect of employment regulation on a country’s or firms’ economic performance should not rely solely on the laws as they are written because similar looking laws may have substantially different effects due to their available remedies or other operational disparities. Thus, studies should do more to account for these differences or, where appropriate data are unavailable, at least acknowledge that limitation.
Hirsch, Jeffrey M., A Comparative Perspective on Unjust Dismissal Laws (2012). in Global Labor and Employment Law: Reports from Law Offices Worldwide (Samuel Estreicher ed.) 2012.
This book chapter is based on a larger project with Samuel Estreicher in which we examine in detail the unjust dismissals regimes of numerous countries. The study of these laws goes beyond the text of the relevant statues and cases, as it uses input from foreign employment law practitioners and available data — particularly claimants’ success rates and average remedies — in an attempt to observe how the laws actually operate in practice.
The conclusion drawn from this study challenges the common “American exceptionalism” premise that argues that adopting a just cause rule would place the U.S. in the same company as the rest of the world. It is true that most countries provide employees with more protection against unjust dismissals than the U.S. But even on paper, the protections in many of the surveyed countries are often weaker than the typical American view of just cause protection assumes. Moreover, the actual practice in these countries frequently reveals even less protection, particularly when remedies are taken into account. These considerations make American dismissal law, although certainly weaker, appear less than exceptional.
In addition, the variances in unjust dismissal regimes suggest that many economic studies of employment protection fail to account for the full range of differences that exist among countries. For instance, a study on the effect of employment regulation on a country’s or firms’ economic performance should not rely solely on the laws as they are written because similar looking laws may have substantially different effects due to their available remedies or other operational disparities. Thus, studies should do more to account for these differences or, where appropriate data are unavailable, at least acknowledge that limitation.
Hirsch, Jeffrey M., A Comparative Perspective on Unjust Dismissal Laws (2012). in Global Labor and Employment Law: Reports from Law Offices Worldwide (Samuel Estreicher ed.) 2012.
Deference in Investment Treaty Arbitration: Re-Conceptualizing the Standard of Review Through Comparative Public Law
Abstract:
The standard of review to be applied by investment treaty tribunals when reviewing host state conduct is a crucial, but still insufficiently analyzed issue. Although tribunals frequently make reference to “deference” as the applicable standard, the criteria they apply to concretize that concept remain uncertain and little predictable. What is more, the conceptual foundations of granting deference to host states are opaque. The present paper focuses on these foundations and argues that they are intrinsically connected to how investment treaty arbitration is qualified as either a form of commercial arbitration, a means to settle disputes under public international law, or as an internationalized form of judicial review in public law disputes. Siding with the latter, the present paper proposes to conceptualize the standard of review within a separation of powers framework that fuses domestic and international legal considerations in allocating power between states and arbitral tribunals. Within this framework, considerations originating from both international dispute settlement and comparative public law interact to determine and concretize the standard of review.
Schill, Stephan W., Deference in Investment Treaty Arbitration: Re-Conceptualizing the Standard of Review Through Comparative Public Law (June 28, 2012). Society of International Economic Law (SIEL), 3rd Biennial Global Conference.
The standard of review to be applied by investment treaty tribunals when reviewing host state conduct is a crucial, but still insufficiently analyzed issue. Although tribunals frequently make reference to “deference” as the applicable standard, the criteria they apply to concretize that concept remain uncertain and little predictable. What is more, the conceptual foundations of granting deference to host states are opaque. The present paper focuses on these foundations and argues that they are intrinsically connected to how investment treaty arbitration is qualified as either a form of commercial arbitration, a means to settle disputes under public international law, or as an internationalized form of judicial review in public law disputes. Siding with the latter, the present paper proposes to conceptualize the standard of review within a separation of powers framework that fuses domestic and international legal considerations in allocating power between states and arbitral tribunals. Within this framework, considerations originating from both international dispute settlement and comparative public law interact to determine and concretize the standard of review.
Schill, Stephan W., Deference in Investment Treaty Arbitration: Re-Conceptualizing the Standard of Review Through Comparative Public Law (June 28, 2012). Society of International Economic Law (SIEL), 3rd Biennial Global Conference.
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