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Ackerman, David T. "International contracts a quantitative analysis of transnational contract formation." Honors in the Major Thesis, University of Central Florida, 2011. http://digital.library.ucf.edu/cdm/ref/collection/ETH/id/8.
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Globalization is the promise of the future, and it presents, quite literally, a world of opportunities not available in the past. International collaborations in science, research, and business now enjoy increased probabilities of success, in part, because of the advance in technology and the possibility of instantaneous communications. The convenience, simplicity and affordability of technology are helping to make the world accessible to almost everyone. With new availability of international concerns and the growth of global partnerships in all areas of interest, an increased need arises for agreements that memorialize collaborators' commitments, responsibilities and obligations. There is a corresponding concern that the agreements be enforceable across national and international lines should anything go wrong. There is no collaboration, partnership or venture that will not be touched in some way by the law. Whose law governs and how rules and regulations of different nations will be applied are of escalating concern. Empirically examining the state of international contract law is the overarching focus of my research. Adopting a research methodology involving both quantitative and qualitative techniques, I am investigating whether any consistency exists between attorneys of different practice sectors (academic, government, corporate and private) considering choice of law, enforcement of contract provisions, and the inclusion of preventative measures of international contracts. My results contribute to the future success of international collaborations of all concerns by empirically identifying the need for increased education on various dispute resolution options, as well as the effect cultural awareness has on the drafting of international contracts.ID: 030476559; System requirements: World Wide Web browser and PDF reader.; Mode of access: World Wide Web.; Accepted in partial fulfillment of the requirements for honors in the major in Legal Studies.; Thesis (B.A.)--University of Central Florida, 2011.
B.S.
Bachelors
Health and Public Affairs
Legal Studies
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Yigit, Muhammet Alper. "Contract Management Behavior Of Turkish Construction Companies In International Contracts." Master's thesis, METU, 2009. http://etd.lib.metu.edu.tr/upload/12610374/index.pdf.
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Contract management starts with the contract negotiations and lasts until the end of the contract, and is the process that covers three fundamental functions required to compensate the goals of the projectRelationship Management, Project Delivery, and Administration of the contract. This thesis focused on investigating contract management behavior of Turkish construction companies in international projects. A survey was composed and interviewed with professionals for investigating the contract management behavior of contractors. The survey aimed to investigate
factors influencing contractors&rsquo
behaviors, key success factors for contract management, company contract management organizations, claim issues, and conflict and dispute resolution behavior of firms. 51 companies participated to the survey. The survey results revealed that Turkish contractors consider contract management to be significant for success at international markets. Contractors are aware of the need for a continuous contract management application although this rate cannot be achieved in practice. Considering awareness as a driving factor for improvement it can be estimated that in future Turkish contractors will be managing their contracts in more efficient, organized and systematic ways than today. Results revealed that
contract management behaviors are mostly affected by the risk and complexity of the project, regular contract process is the most impactful process on the success, and change order requests of the owners are the most frequent reasons of claims. According to respondents contract management can reduce number of conflicts and disputes.
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Meidell, Andreas. "International contracts and currency fluctuations /." Oslo : Cappelen Akademisk Forl, 2007. http://www.gbv.de/dms/zbw/55551854X.pdf.
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Al, Shamsi Abdulla Rashid Obaid. "Arbitration in international administrative contracts and administrative contracts with international dimensions in the UAE." Thesis, Liverpool John Moores University, 2017. http://researchonline.ljmu.ac.uk/7456/.
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This is a study on some controversial legal aspects of resorting to arbitration in disputes concerning administrative contracts with an international dimension – i.e. contracts between public authorities in the United Arab State (UAE) and foreign companies, as well as contracts concluded between local parties but indirectly generate results of international dimensions. In this study, I have adopted a descriptive methodology, meticulously describing the legislative and judicial status in the UAE compared to those of both Egypt and France. In addition, I have also resorted to an analytical approach to provide a concise analysis of the essence of legal provisions guided by the established jurisprudence and judicial opinions. Finally, I used the comparative approach to draw parallels and difference within the legislature and the judiciary between three legal systems, with an eye at making use of relatively advanced legal systems. According to the above, and through utilizing the three research methods mentioned, (the descriptive, analytical and comparative), we attempted to analyze the various relevant jurisprudence and judicial opinions, together with court rulings and legislative provisions. The ultimate objective is to draw scientific results from the detailed evidences drawn from the selected rulings, as well as deciding on the position of both local and international jurisprudence and judiciary on this regard. This is to consolidate the theoretical positions with existing practice. At the outset of the thesis (chapter one) this study begins with a discussion of the main concepts of the constitutional system of the United Arab Emirates (UAE), with an explanation of the federal structure of the state and the nature of the UAE system of government. This is important because this study is mainly concerned with the UAE. This is followed by an illustration of the principles of administrative law within the UAE state. The study shows that the judicial system of the UAE state adopts a unitary judicial system whereby the same courts have jurisdiction on all sorts of disputes, both on disputes arising from administrative law and administrative contracts, as well as on disputes arising between private persons. This would unify the rules that apply to all disputes relating to the administration including administrative contracts with international dimensions. (Chapter two) attempts to define the concept of the administrative contract; the main focus of this study, and the criteria for distinguishing it from other types of contracts. It is concluded that the distinctive criteria for administrative contracts in the UAE are that: (i) one party to a contract shall be a public persona (such as the state, city authorities or municipalities); (ii) the contract shall be connected to the running or organization of a public facility (such as public institutions and authorities, security organizations and educational institutions) and (iii) it shall include exorbitant conditions which are unfamiliar in private law contracts. This distinction would help determining the nature of the legal rules to be applied on settlement of disputes, whether pertaining to the rules of administrative law or those of private law. (Chapter three) displays and critically reviews the main ideas related to arbitration in administrative contracts and shows the reservations and disadvantages that might arise from resorting to arbitration in this field. (Chapter four) This study comes to a number of conclusions in relation to these reservations and disadvantages. Despite the great importance of resorting to arbitration in administrative contracts as a speedy and distinctively confidential instrument for protecting the interests of the contractual parties, my opinion resorting to arbitration for settlement of disputes should be followed only if and to the extent it encourages investment in the UAE and it is respectful of higher administrative interests of the UAE state. The same limitation should apply to international administrative contracts and administrative contracts with international dimensions. Arbitration should be carried out without prejudice to the principle that a public authority in the UAE shall pursue a public interest without prejudice to private interests. This study argues that the legislator should intervene in an unambiguous manner to achieve the following results in relation to arbitration in administrative contracts with an international dimension and formulate proposals on how best to address these issues: 1. Determine the fields in which resorting to arbitration in administrative disputes should be admitted. 2. Specify the competent authority for approval of resorting to arbitration in this field (preferably the higher administrative authority within the state, such as the cabinet of ministers, the competent minister or authorized representative among public persona. No delegation is permissible, in this regard, for public persona assuming positions inferior to the above-mentioned ones because of their distinguished expertise which brought them to shoulder highly sensitive positions. Delegation in arbitration should be restricted to a very limited domain and only endowed upon those who assume the highest executive positions and qualified to shoulder high ranking positions and responsibilities. 3. The arbitration panel shall refrain from prejudicing the nature of the administrative contract, that is to refrain from prejudicing public interests, in order not to use resorting to arbitration as a means of evading application of the rules and regulations pertaining to the established administrative contract, which are stipulated to maintain public interest and public funds without prejudice to the rights and freedoms of private persons. Hence, it is pertinent to preserve the administrative nature and enforce the substantive regulations of the administrative contract. The contract should involve provisions for including arbitration, in addition to explicitly specify that the applicable law governing the contract should be the administrative law and the theory of administrative contract, which shall be applied in case of dispute. Arbitration should be restricted to administrative contracts with international dimensions, connected with public interest projects and leading to the encouragement of foreign investment and applying the principles of arbitration for conciliation in internal administrative contracts disputes only. The study concludes by arguing that legislative reform should be carried out to introduce legislative amendments, incorporating the above-mentioned arrangements, which are crucial to the settlement of administrative contracts disputes through arbitration. Resorting to arbitration should be restricted to certain types of contracts concluded by public authorities as an exception to the general principle of resorting to a judicial authority for looking into a legal disputes. These were put in place only to strike a balance between achieving public interests of the state and protecting the rights and freedoms of individuals.
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Younesi, Hamid. "Preserving the contractual equilibrium of international petroleum contracts : a relational contract analysis." Thesis, University of York, 2017. http://etheses.whiterose.ac.uk/18874/.
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The viability of long-term investment contracts is dependent on the effective and efficient distribution of risk and reward between the parties, while retaining the potential for flexibility in the face of future pressures for alteration. Petroleum contracts as long-term state contracts have complex economic and legal aspects, and their performance depends upon a durable relationship between the investor, whether foreign or domestic, and the host government. Such contracts cannot be seen as discrete commercial transactions or isolated agreements. Hence, the sustained contractual relationship for petroleum transactions is based on the ability to accommodate changing expectations in changing circumstances, and on the ongoing balance and adjustment of contractual rights and obligations in changed framework. International energy investment agreements are very vulnerable and exposed to a range of actions or inactions by public authorities (government or state agencies) which could considerably affect the profitability of a project. Amongst the principal reasons for the risk of expropriation is that the host state seeks to obtain a greater share of the return from a successful operation, by raising taxes or tightening other provisions in the investment contract without necessarily taking over ownership of the investment or to drive the investor out of business. As a result, the business relationship between the foreign oil company and host government resembles a model of an ‘obsolescing bargain’, (OBM). The thesis explores the role of the contractual equilibrium and bargaining positions and their interactions with contractual clauses in a relational model of relationship to reduce and manage risk of expropriation in international energy investment transactions. The thesis examines the classical and the relational theories of contract and their response to contractual obligations, and then suggests an adaptive contractual mechanism to maintain the equilibrium of the contract in order to protect the contracting parties’ interests and resolve disputes.
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Vafakish, Sistani Masoud. "International commercial arbitration and state contracts." Thesis, University of Edinburgh, 1998. http://hdl.handle.net/1842/27017.
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Whether international commercial arbitration is appropriate as a method of state contracts dispute settlement is the main question of this thesis. In the course of this study, it is noted that, as a growing method of private commercial disputes settlement, international commercial arbitration, in principle has developed against a private law background. A trend in the practice of such arbitrations points to a desire for an expansion of the powers of arbitrators and the subsequent reduction of the role of national laws in arbitration and its eventual elimination through the so-called 'transnationalisation' of the process. Chapters I-VI focus on the question of how this process of transnationalisation is pursued and to what extent it has been accomplished. These chapters include a study of the nature of arbitration and state contracts, jurisdictional issues, control function in arbitration of state contracts, applicable substantive law, substantive remedies and the recognition and enforcement of awards. The final chapter, the question of why such a transnationalisation is sought is addressed. It attempts to identify the theoretical basis of transnational arbitration and any likely policy objectives followed by its proponents. From such a study, it would appear that, as distinct from national and international law, transnational law theory as the basis of international commercial arbitration follows a reductionist view of the setting of the law relating to transnational economic activities which considers only the commercial aspects. Given such foundations of the theory, it is argued that a bias towards the transnational business community ensues and is in turn reflected in the mechanisms of dispute settlement. In this sense, it would appear that, in relation to the settlement of state contract disputes, the mechanism, in principle, is biased against state parties whose concerns are not purely commercial, but have a public policy element. In dealing with the above, by way of comparison, references are made to the national and international law positions in respect of the matters under discussion.
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Tolkušinas, Kasparas. "Defective Arbitration Clauses in International Commercial Contracts." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2011. http://vddb.laba.lt/obj/LT-eLABa-0001:E.02~2011~D_20110124_131045-86915.
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Usually in a drafting process of a contract arbitration clause is left at the end of a contract. Sometimes it happens that parties really do not wish start discussions on how should arbitration clause look like or what details should it contain, because either parties think they would never come to a conflict or they are short in time and leave arbitration clause unconsidered. Absence of proper attention when drafting arbitration clauses is likely to give rise to defective arbitration clauses, which lead to much higher than expected time and money costs or even make arbitration impossible.
Master thesis analyses defective arbitration clause types and provision of a way to create correct arbitration clauses. In order to reach this goal gradual completion of tasks is necessary, which involves: a) identification of the main features of defective arbitration clause, b) identification of the main elements of well drafted arbitration clause, c) identification of the main types of defective arbitration clauses, d) provision of a classification of defective arbitration clauses, e) provision of as much as possible ways to avoid defective arbitration clauses and f) analysis doctrine and case law in this field and result encompassing conclusions. First part of master thesis briefly defines international commercial contract. This way the geographical scope of master thesis object is defined. Second part presents the roots of defective arbitration clause. Second part encompasses... [to full text]Dažniausiai rengiant tarptautines komercines sutartis arbitražinė išlyga eina sutarties pabaigoje. Kartais nutinka taip, kad šalys nerodo didelio noro kelti diskusijų dėl to kaip turėtų atrodyti arbitražinė išlyga arba kokius sudėtinius elementus ji turėtų turėti. Šalys gali manyti, kad ginčas mažai tikėtinas, todėl neverta gilintis į arbitražinę išlygą arba dėl laiko stokos įkeliama atsitiktinė arbitražinė išlyga. Pakankamo dėmesingumo trūkumas ruošiant arbitražinės išlygas dažniausiai leidžia kilti arbitražinėms išlygoms su spragomis, kurios esant ginčui priverčia šalis sugaišti daug daugiau laiko ir suvartoja daug daugiau finansinių resursų nei tikėtasi arba išvis paverčia arbitražą kaip ginčų sprendimo būdą šalių atveju neįmanomą. Magistriniame darbe nagrinėjamos arbitražinės išlygos su spragomis ir siekiama pasiūlyti būdą, kaip parengti taisyklingas arbitražines išlygas. Šiems tikslams pasiekti būtinas nuoseklus užduočių įvykdymas, apimantis: a) pagrindinių arbitražinės išlygos su spragomis bruožų nustatymą, b) pagrindinių taisyklingai parengtos arbitražinės išlygos elementų nustatymą, c) pagrindinių arbitražinės išlygos su spragomis tipų nustatymą, d) arbitražinių išlygų su spragomis klasifikacijos pateikimą, e) būdų išvengti arbitražinių išlygų su spragomis pateikimą ir f) doktrinos bei teismų praktikos analizę ir apibendrinančių išvadų pateikimą. Pirmoji magistrinio darbo dalis glaustai apibrėžia tarptautinę komercinės sutartį. Tokiu būdu geografinės magistrinio darbo... [toliau žr. visą tekstą]
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Richardson, S. M. "International contracts and the choice of law." Thesis, University of Canterbury. Law, 1988. http://hdl.handle.net/10092/7791.
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The choice of law dilemma for international contracts is the subject of this thesis. In Part A the concept of party autonomy is discussed and the traditional English approach considered. This involves a critical examination of the proper law doctrine.
Part B considers the 'American Solution' with particular reference to the State of New York. Interest Analysis, New York legislation and common law are discussed. A criticism of the New York approach concludes this section.
In Part C the limitations on party autonomy are considered in both the English and New York setting.
In Part D four alternative proposals are canvassed. The lex loci contractus and the lex loci solutionis (the law of the place of contracting and the law of the place of performance) are briefly considered in an historical setting. These two theories contrast with the lex validatis (the law which validates) which an academic suggestion. Finally the European Convention on the Law Applicable to Contractual Obligations (1980) is chosen as a legislative proposal to resolve the choice of law dilemma for international contracts. Its provisions are stated and discussed.
Parts A to D demonstrate that law to govern international contracts on both sides of the Atlantic is unsatisfactory. To date New Zealand has followed the English proper law doctrine. However it is submitted that the time for change has arrived. It is argued that New Zealand needs a law which advances conflict of laws goals, avoids present difficulties and which is in harmony with domestic contract law. Thus Part E considers such goals and the domestic and conflict of laws provisions of recent national contractual legislation. A legislative solution is then proposed and it is argued that if the proposals were adopted New Zealand would have gone a long way towards resolving choice of law issues for international contracts.
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Dang, Hop Xuan. "International law as governing law of state contracts." Thesis, University of Oxford, 2008. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.496437.
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Erasmus, Christo. "Consumer protection in international electronic contracts / C. Erasmus." Thesis, North-West University, 2011. http://hdl.handle.net/10394/6917.
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Since the Internet became available for commercial use in the early 90s, the way of
doing business was changed forever. The Internet and electronic commerce have
allowed people to carry out business by means of electronic communications, which
makes it possible for them to do business and to conclude contracts with people
situated within foreign jurisdictions. The need for consumer protection in electronic
commerce has become necessary because of the misuse of aspects peculiar to
electronic–commerce. Consumers have been cautious to make use of electroniccommerce,
as they are uncertain about the consequences that their actions might
have. Consumers will only utilise e–commerce if they have confidence in the legal
system regulating it; therefore, legislation was needed to regulate their e–commerce
activities. In 2002, the Electronic Communications and Transactions Act, 2002 was
introduced into South African law as the first piece of legislation that would deal
exclusively with electronic communications. Chapter VII of this particular act deals
exclusively with consumer protection and seeks to remove certain uncertainties
imposed by e–commerce. This is done by providing the South African consumer with
statutory rights and obligations when engaging in electronic communications. The
Consumer Protection Act, 68 of 2008 is the most recent piece of legislation that aims
to promote a consistent legislative and enforcement framework relating to consumer
transactions and agreements. South African legislation dealing with electronic
commerce is relatively recent, and it is uncertain whether consumers are offered
sufficient protection when they conclude contracts with suppliers or sellers from a
foreign jurisdiction, that is, one that is situated outside South Africa.
After looking at the protection mechanisms in place for South African consumers
engaging in e–commerce, we have seen that there are certain problems that one
might experience when trying to determine the applicability of some of the consumer
protection measures to international electronic contracts. Most of the problems that
we have identified are practical of nature. Consumers may, for instance, find it hard
to execute their rights against foreign suppliers in a South African court, even if the
court has jurisdiction to adjudicate the matter. Another problem that we identified is
that some of the important terms in our legislation are too vaguely defined. Vague terms and definitions can lead to legal uncertainty, as consumers might find it hard to
understand the ambit of the acts, and to determine the applicability thereof on their
transactions. In order to look for possible solutions for South Africa, the author
referred to the legal position with regards to consumer protections in the United
Kingdom, and saw the important role that European Union legislation plays when
determining the legal position regarding consumer protection in the UK. The
legislation in the UK dealing with consumer protection is far more specific than the
South African legislation dealing with same. There is definitely consumer protection
legislation in place in South Africa but the ongoing technological changes in the
electronic commerce milieu make it necessary for our legislators to review consumer protection legislation on a regular basis to ensure that it offers sufficient protection
for South African consumers engaging in international electronic contracts.Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2012.
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Lundgren, Lisa. "The United Nation's Convention on Contracts for the International Sale of Goods : Why is it being excluded from International Sales Contracts?" Thesis, Internationella Handelshögskolan, Högskolan i Jönköping, IHH, Rättsvetenskap, 2014. http://urn.kb.se/resolve?urn=urn:nbn:se:hj:diva-23882.
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The development of the United Nation’s Convention on Contracts for the International Sale of Goods (CISG) started at the beginning of the 20th century in order to provide a uniform legal regime for international sales contracts. The development started because of a belief that a uniform international sales convention would contribute certainty in commercial trade and decrease transaction costs for the contracting parties. The Convention was signed in Vienna 1980 and came into force in 1988 after securing the necessary number of ratifications. The CISG is automatically applied to international sale contracts in certain given situations but the contracting parties are free to exclude the Convention as applicable law in favour of another regulation. As of today, more than 25 years after the CISG came into force, the Convention is commonly being excluded as the governing law of international sales contracts. By studying surveys and academic writings, certain factors can be derived as reasons prior to an exclusion of the CISG. The factors can be referred to as unfamiliarity, time and costs, negotiation strength and standard form contracts or standard terms. Regarding unfamiliarity, the importance given to the Convention in law faculties within the signatory states, together with time and costs attributed to a familiarization process, seems to play an important role. Moreover, the Convention is associated with problems regarding a non-uniform interpretation of the Convention’s provisions within the national courts and arbitral tribunals, as well as regarding its incompleteness, meaning that there are gaps that need to be filled by national law. These problems affect the Convention’s ability to provide potential users with legal certainty and predictability, which in turn may affect the familiarity with the Convention and hence have an impact on an exclusion of the CISG.
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Supapa, Rattapong. "The protection of upstream energy contracts under investment treaty arbitration : a study of the interaction between contract and treaty instruments." Thesis, University of Aberdeen, 2014. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=225686.
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This thesis analyses how and to what extent the contractual and treaty instruments interact in protecting upstream energy contracts against political interference by the host state. The study considers whether the interaction between the upstream contracts and international investment treaties provide effective protection for the upstream investors and whether the interaction between them prevents the host state from exercising its regulatory rights. By examining both jurisdictional and substantive aspects of the interaction between these two instruments, the study found that political risks in the upstream industry are not effectively mitigated and managed. The study therefore calls for a higher degree of interaction between these two instruments. This can be achieved by drafting the relevant upstream contracts and investment treaties in a more interactive manner so that they would together provide maximum protection for the upstream investors.
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Zhang, Mingjie. "Conflict of laws and international contracts for the sale of goods : study of the 1986 Hague convention on the law applicable to contracts for the international sale of goods : a Chinese perspective /." Orléans : Paradigme, 1997. http://catalogue.bnf.fr/ark:/12148/cb36171693j.
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Theodosiou, Ioannis E. "Essential elements in international contract negotiations." Thesis, Monterey, Calif. : Springfield, Va. : Naval Postgraduate School ; Available from National Technical Information Service, 2006. http://library.nps.navy.mil/uhtbin/hyperion/06Jun%5FTheodosiou.pdf.
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MacKay, Kathryn. "An examination of exploitation in international gestational surrogacy contracts." Thesis, McGill University, 2010. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=86945.
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This thesis aims to determine whether international gestational surrogacy contracts are exploitative, and whether they should be prohibited. I chose a group of women working as surrogates at Kaival Maternity Home and Surgical Hospital, in Anand, Gujarat, India as a study group. After examining their life circumstances, I argue that these women live in unjust circumstances caused by institutional sexism and poverty. I critically assess arguments launched against surrogacy, organ trade, and prostitution and find that none of these are sufficient for demonstrating that contracts involving the sale of the body are necessarily exploitative. I find that surrogacy is exploitative because of a complex set of social conditions. Further, the contracts are beneficial to both the woman acting as surrogate and to the couple hiring her. I conclude that international gestational surrogacy is exploitative yet mutually beneficial, and prohibiting surrogacy would be harmful unless accompanied by drastic social change.Cette thèse vise à savoir si les contrats internationaux de maternité de substitution sont une forme d'exploitation et s'ils devraient être interdits. La population étudiée est un groupe de femmes travaillant comme mères de substitution au Kaival Maternity Home and Surgical Hospital à Anand (Gujarat) en Inde. Après examen de leurs conditions de vie, je soutiens que ces femmes vivent dans des conditions injustes causées à la fois par la pauvreté et par une forme de sexisme institutionnalisé. Puis, j'ai étudié et évalué les arguments critiquant cette pratique ainsi que ceux relatifs au commerce d'organes et à la prostitution. J'en ai conclu qu'aucun d'entre eux n'est cependant suffisant pour démontrer que des contrats impliquant la mise en vente du corps sont nécessairement et par essence des outils d'exploitation. La maternité de substitution est une forme d'exploitation parce qu'elle met en jeu un ensemble complexe de conditions sociales inégalitaires. Cependant, ce type de contrat profite à la fois à la mère de substitution et au couple qui l'emploie. Les contrats internationaux de maternité de substitution sont une forme d'exploitation mais ils apportent un bénéfice mutuel. Dès lors, interdire la maternité de substitution serait préjudiciable à moins qu'une telle mesure ne soit accompagnée d'un changement social drastique.
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Osadchenko, Igor. "Risk Assessment of International Sales Contracts in Beverages Market." Master's thesis, Vysoká škola ekonomická v Praze, 2015. http://www.nusl.cz/ntk/nusl-264266.
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The aim of my thesis was to analyze and identify main types of risks and uncertainties, which can be faced by international companies. I also described main ways and methods of avoidance and minimisation of such risky situations. AB Inbev was chosen as an example since I was working in the branch of this company located in Prague, Czech Republic. This explains my concentration mainly on the market for beverages.
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Yu, Jia Feng. "A study on economic hardship." Thesis, University of Macau, 2010. http://umaclib3.umac.mo/record=b2487645.
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Waked, Rita. "La notion de contrat administratif international à travers l'exemple du contrat BOT (Build, Operate, Transfer) : étude comparée Droit français-Droit libanais." Thesis, Paris 2, 2011. http://www.theses.fr/2011PA020005.
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Oser, David. "The UNIDROIT principles of international commercial contracts : a governing law? /." Leiden : Nijhoff, 2008. http://opac.nebis.ch/cgi-bin/showAbstract.pl?u20=9789004167896.
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Sewerin, Diana. "International product liability and uniform sales law." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2000. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp03/MQ64305.pdf.
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Huck, Hermes Marcelo. "Contratos com o estado aspectos de direito internacional /." São Paulo, SP, Brasil : Gráfica Editora Aquarela, 1989. http://catalog.hathitrust.org/api/volumes/oclc/29347637.html.
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Sinclair, Anthony Charles. "State contracts in investment treaty arbitration." Thesis, University of Cambridge, 2014. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.648775.
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Bouleghlimat, Widad. "L'arbitrage commercial international dans les pays arabes et les principes Unidroit relatifs aux contrats du commerce international." Thesis, Paris 2, 2014. http://www.theses.fr/2014PA020013.
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L’arbitrage commercial international est le mode alternatif de règlement de différends le plus utilisé dans le monde. Ce qui contribue notamment à en faire l’acteur principal de la diffusion des règles anationales telles que les principes généraux du droit, les usages du commerce international, ou encore la "lex mercatoria" qui sont souvent choisies par les arbitres en tant que droit applicable au fond du litige. Ce choix s’est étendu aux nouvelles règles élaborées par des institutions internationales privées telles que les Principes d’UNIDROIT relatifs aux contrats du commerce international. Une codification doctrinale conçue comme un instrument de "soft law" et qui trouve de plus en plus application dans la pratique arbitrale. Notre étude cependant montre que peu de sentences arbitrales rendues dans des affaires dont l’une des parties est arabe ont fait référence aux Principes Unidroit. L’explication n’est pas à rechercher dans une incompatibilité entre ceux-ci et le droit des contrats des pays arabes mais dans la méconnaissance de cette codification doctrinale par les juristes arabes. À cela s’ajoute un sentiment de méfiance à l’égard d’une manifestation de la soft law. Il convient dès lors de s’interroger sur les moyens qui permettraient aux Principes Unidroit de trouver leur place dans le droit et la pratique des pays arabesInternational commercial arbitration is the Alternative Dispute Resolution (ADR) the most used in the world. Which contributes in particular to make the main actor of the diffusion of a-national rules as the general principles of law, usages of international trade, or the lex mercatoria, often chosen by the arbitrators as the law applicable to the substantive of the dispute. This choice was extended to the new rules developed by private international institutions such as the UNIDROIT Principles of International Commercial Contracts. A doctrinal codification conceived as a soft law instrument, which is increasingly applied in arbitration practice. Our study shows, however, that few awards rendered in cases in which one of the parties is Arabic made a reference to UNIDROIT Principles. The explanation is not to look for in an incompatibility between them and contract law in Arab countries but in the ignorance of this doctrinal codification by Arab jurists and lawyers. Added to this, a feeling of distrust a manifestation of soft law. It is therefore necessary to consider the ways in which the UNIDROIT Principles to find their place in the law and practice of the Arab countries
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Hardjowahono, Bajuseto. "The unification of private international law on international commercial contracts within the regional legal system of ASEAN /." Groningen : Ulrik Huber Inst. for Private International Law, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/52443056X.pdf.
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Tripodi, Leandro. "O direito uniforme da venda do século 21: caducidade e renovação da CISG." Universidade de São Paulo, 2014. http://www.teses.usp.br/teses/disponiveis/2/2135/tde-30082017-153922/.
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A Convenção das Nações Unidas sobre os Contratos de Compra e Venda Internacional de Mercadorias de 1980 (CVIM ou CISG) atingiu sua caducidade em virtude: 1) das profundas modificações ocorridas no comércio internacional desde sua adoção; 2) de seu diálogo insatisfatório com outras fontes do direito do comércio internacional; 3) da necessidade de incorporação de objetivos fundamentais da comunidade internacional; 4) da necessidade de uma nova configuração institucional a fim de promover sua adequada aplicação mundialmente. Por tais razões, sugere-se que futuros trabalhos na Comissão das Nações Unidas para o Direito Mercantil Internacional (CNUDMI ou UNCITRAL) levem a uma renovação da CISG com o propósito de adaptá-la às características do comércio mundial no século 21, em particular com respeito: 1) à considerável dificuldade em se separar o comércio de bens do comércio de serviços; 2) à maior importância dada à autonomia da vontade e a regras privadas aplicadas por árbitros internacionais sem a direta participação do Estado; 3) à necessidade de promover o desenvolvimento sustentável em conexão com a responsabilidade social corporativa; 4) à necessidade de melhorar a aplicação uniforme (ou adequada) do direito da compra e venda internacional em virtude do surgimento de instrumentos regionais e da tendência domesticista dos tribunais nacionais. De acordo com as conclusões da presente tese, os futuros trabalhos a serem conduzidos na UNCITRAL devem ser levados adiante segundo as seguintes premissas: 1) os trabalhos já realizados pela UNCITRAL na área do direito do comércio internacional devem ser preservados e levados adiante; 2) futuros trabalhos na área do direito da compra e venda internacional devem assumir a forma de uma nova convenção internacional que contenha princípios gerais do direito dos contratos assim como regras para a compra e venda de mercadorias e serviços; 3) tal nova convenção deve promover a arbitragem como método de resolução de controvérsias, tendo em vista que a arbitragem apresenta maiores chances de produzir uniformidade de aplicação do que os tribunais nacionais. Propõe-se que a nova convenção seja denominada de Convenção sobre os Contratos de Compra e Venda de Mercadorias e Serviços (CISGS). Também se propõe que seu texto seja redigido conjuntamente pela UNCITRAL e pelo Instituto Internacional para a Unificação do Direito Privado (UNIDROIT). A CISGS deverá futuramente substituir a CISG. Porém, até que a CISGS entre em vigor e seja adotada por um número relevante de Estados, a CISG continuará a fornecer regras padrão para a compra e venda internacional de mercadorias.The United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG) has become old to the extent that: 1) fundamental changes have affected international trade since its inception; 2) it has proved to poorly interact with other sources of international trade law; 3) it needs to incorporate fundamental objectives of the international community and 4) it deserves a new institutional framework to ensure its proper application on a global basis. On such grounds, it is suggested further work at the United Nations Commission on International Trade Law (UNCITRAL) ought to be carried out for the purpose of renovating the CISG and adapting it to the requirements of world trade in the 21st century, due in particular to: 1) considerably increasing difficulty in severing sales of goods from sales of services; 2) greater importance given to party autonomy and to privatized rules applied by international arbitrators without direct participation of the state; 3) the need to promote sustainable development in connection with corporate social responsibility; 4) the need to further the uniform (or proper) application of international sales law in the light of the emergence of regional instruments and the homeward trend of national courts. According to the findings of the present thesis, further work at UNCITRAL must be carried out according to the following premises: 1) the work already done by UNCITRAL in the field of international sales law must be preserved and carried forward; 2) further work in the field of international sales law must be envisaged in the form of a new convention that encompasses principles of contract law as well as rules on contracts for the sale of goods and services; 3) such new convention must promote arbitration as a dispute resolution method, on the ground that arbitration is more likely to provide uniformity of application than national courts. It is proposed the new convention be named as the Convention on Contracts for the International Sale of Goods and Services (CISGS). It is also proposed its text be jointly drafted by UNCITRAL and by the International Institute for the Unification of Private Law (UNIDROIT). The CISGS is intended to replace the CISG in due course. However, until the CISGS enters into force and is adopted by relevant membership, the CISG will continue to provide default rules for the international sale of goods.
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Koch, Robert 1965. "The concept of fundamental breach of contract under the United Nations Convention on contracts for the International Sale of Goods (CISG) /." Thesis, McGill University, 1998. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=20987.
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The concept of fundamental breach plays a crucial role within the remedial system of the U.N. Convention on Contracts for the International Sale of Goods (CISG), because the remedies available to the parties to a contract of sale depend on the character of the breach. The Thesis analyzes the concept. It canvasses the different approaches employed by scholars and courts in determining fundamental breach and examines whether they can be justified by the rules of interpretation under the CISG. This examination shows that none of the approaches can be applied to all potential situations of fundamental breach and that their concurrent application is likely to produce conflicting results. This Thesis introduces a new methodology, which is based on a single concept applicable in all circumstances. Such methodology would also provide greater certainty and predictability to international sales transactions as required by the needs of the business world.
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Draf, Oliver. "Selected issues of private international law and of contracts on the Internet." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1999. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp03/MQ64271.pdf.
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Paasivirta, Esa Juhani. "Participation of states in international contracts and the arbitral settlement of disputes." Thesis, University of Cambridge, 1988. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.276526.
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Castro, Ruiz Marcela. "Dealing with the unexpected. Force majeure in international contracts: principle or clause?" Pontificia Universidad Católica del Perú, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/115719.
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Force majeure excludes civil liability and is accepted as a universal defense in accordance with the principle that nobody is bound to perform what is impossible. In the civil law systems force majeure is a concept provided for by statutory law, leaving its application to the courts in a case by case approach. In the common law system, the contract is terminated and the non-performing party is exempted from paying damages if there is an emerging event which frustrates the purpose of the contract or renders the same as commercially impracticable. The force majeure defense can be invoked only if there is an express contractual provision where the parties define which events are deemed as force majeure and agree upon its legal effects. This paper examines the interaction between the two systems, which happens most significantly in the international business transactions.La fuerza mayor es una eximente de responsabilidad de aceptación universal, en desarrollo del principio según el cual nadie está obligado a lo imposible. En los sistemas de derecho continental este concepto se ha consagrado generalmente a través de una enunciación legal que puede ser más o menos amplia, dejando a los jueces su valoración caso por caso. En el common law, el contrato termina y la parte incumplida se exonera de la obligación de pagar perjuicios cuando surge una circunstancia que frustra la finalidad perseguida por los contratantes o si la prestación es «comercialmente impracticable». La aplicación de la eximente «fuerza mayor» en este sistema proviene de cláusulas expresas en que las partes la consagran y regulan sus efectos jurídicos. En el presente escrito se examina la interacción de los dos sistemas, la cual ocurre de manera muy significativa en la contratación internacional.
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Hoekstra, Johanna. "The legal authority of non-state rules : application in international commercial contracts." Thesis, University of Essex, 2016. http://repository.essex.ac.uk/18633/.
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This thesis examines the legal authority of non-state rules in international commercial contracts and their application in state courts. Non-state rules can be divided in uncodified rules and codified rules. Uncodified non-state rules are general principles of law, practices, trade usages, and custom. They have a customary origin. Codified non-state rules are model laws, restatements of law, standard terms and conditions, and guidelines. They are created by international organisations and trade associations. Non-state rules have legal authority in the national and the international sphere. Their legal authority can be established by looking at different factors: promulgator, substance, support, and application. It is especially the last factor which plays a deciding role in measuring their legal authority. This thesis uses three main case studies: France, England, and the US to understand the legal authority of non-state rules. After having established what non-state rules are and how their legal authority can be measured this thesis concentrates on their application in courts. It asks three important questions: when can non-state rules be applied? When are they applied? And how are they applied? There are four scenarios in which non-state rules are applied in descending degrees of legal authority: first of all, they are applied as the applicable law to the contract, secondly they are applied as sources of domestic law, thirdly they are used to interpret the applicable law, and fourthly they are applied as contractual rules. Legislations have a preference for uncodified non-state rules such as trade usages and general principles. These are often sources of domestic law. To apply these uncodified non-state rules judiciary resorts to codified non-state rules to go from the general principle to the practical application. After studying the application of non-state rules in depth, this thesis concludes with a framework and classification that leads to understanding the legal authority of non-state rules.
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Malek, Roksana Janina. "Electronic Commerce in international trade law - especially under the UN COnvention on the use of electronic communications in international contracts 2006 and under the UN Convention on Contracts for the International Sale of Goods 1980." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4661.
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Desgagné, Richard. "La participation des états au commerce international : les contrats gouvernementaux en droit comparé et en droit international." Thesis, McGill University, 1991. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=60704.
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The study is about the activities of public entities in international trade, more precisely, about international government procurement. The law of government contracts, in international and municipal law, seeks to balance the stability of contractual relations between the parties and the mutability of the contract which flows from a recognition of the primacy of the public interest. The precise balance struck varies from one legal system to another. Part One of the work looks, firstly, at the recognition, immunities and capacity of public entities in international commercial transactions. Secondly, it treats the conflict of laws rules applicable before national and arbitral jurisdictions. Thirdly, it explores the various possibilities of applicable law, namely the law of the contracting State, the lex mercatoria and public international law. Part Two examines, from a comparative perspective, the notions of "public body", "public contract" and "contrat administratif" in Ameircan, English and French law. The third part explores two main themes. Firstly, the process of procurement in national law, European law, and under the Agreement on Government Procurement; and secondly, the question of the stability of the contractual obligations which can be disturbed by unilateral interventions of the contracting public entity and by external supervening events.
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Guillemard, Sylvette. "Le droit international privé face au contrat de vente cyberspatial /." [Cowansville] : Blais [u.a.], 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/520267559.pdf.
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Brinkhof, Johannes J. Grosheide Frederik Willem. "Contracteren internationaal : opstellen aangeboden door collegae, oud-collegae, medewerkers, oud-medewerkers, promoti en promovendi aan prof. mr. F. Willem Grosheide ter gelegenheid van zijn afscheid als leerstoelhouder in het burgerlijk recht /." Den Haag : Boom, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/524515891.pdf.
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Al-Janabi, Mohammed Qasim Kareem. "Fundamental breach in international commercial contracts in the CISG, English and Egyptian law." Thesis, Glasgow Caledonian University, 2014. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.687422.
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The main purpose of the research is to investigate and analyze the concept of fundamental breach of contract in international commercial contracts, and how its inclusion in Iraqi civil law can promote a more effective approach to contractual disputes between Iraqi companies and international partners. Additionally, it aims to raise awareness of the practical value of the application of the concept of fundamental breach in managing contractual disputes involving common and civil law, and ultimately provide a valid contribution to academic knowledge that promotes enhanced understanding of this concept within the different legal systems at a global level. The research method adopted is theoretically comparative in nature and compares the concept of fundamental breach of contract from the perspectives of the United Nations Convention's guidelines on Contracts for the International Sale of Goods 1980 (referred to hereafter as the CISG), English (Common) law and Egyptian (Civil) law. The study is based on the following research questions: i) reasons for the numerous cases of avoidance of international commercial contracts in Iraq due to a fundamental breach of terms; ii) The elements that constitute a 'fundamental breach' of contract; iii) Which legal systems could provide a comprehensive framework of reference to compare the different processes applied in breach of contract in selected case studies, to determine which, if any, is more effective in keeping contracts 'active'. iv) If the outcome of the comparisons could be applied more universally, in cases of arbitration in international commercial contracts, to bridge the differences in individual laws of the countries involved. The concept of fundamental breach is examined in-depth, including its origins, development, application and effectiveness in maintaining the active life of international commercial contracts. A comparison of its application is made within three different legal systems and the study concludes with a commentary on the outcomes of the comparative research, including any limitations and implications for international sales contracts involving different legal systems. Finally, recommendations are made, both for the Iraqi legislature and for future research. The key outcomes are that the CISG rules regarding fundamental breach appear to be more successful in upholding the validity of international commercial contracts than Common or Civil law. This can be attributed to the way in which the CISG tailored the concept of fundamental breach. To date, it has been ratified by 83 countries. Not only are its principles rooted in the two primary law systems (Common and Civil), but they are also significantly influenced by the doctrinal concepts that vary considerably across different national law systems. This suggests the CISG offers a greater degree of flexibility and harmony across the legal systems, and does not require any court order or ruling in instances of contract avoidance. Indeed, its greatest success lies in the flexibility of its principles due to the additional terms it provides in promoting the life of the contract; namely: additional period of time, partial avoidance, anticipatory breach and instalments contracts. There are limitations, however, despite the CISG rules providing a degree of flexibility. The definition of fundamental breach given in Art.25 is vague due to the generality of the terminology used by the CISG drafters. Unlike the trend of the 1998 Principles of European Contract Law and the 1994 UNIDROlT Principles of International Commercial Contracts, no examples are given to provide guidance on the exact meaning of the term. It is also noticeable that the CISG's notion of fundamental breach is more common law oriented. As a result, this may be a source of possible conflict in countries where civil law is adopted such as: Egypt, Iraq, Kuwait, Jordan, Libya, amongst others. The implications of adopting the CISG approach to determining fundamental breach in international commercial contracts are that contractual parties could incur delays and subsequent financial losses while disputes involving interpretation of its rules are resolved. Nevertheless, CISG principles governing fundamental breach are increasingly popular as the applicable law for international contracts, since they fulfill a primary goal of contract law to act in accordance with developmental requirements and changes. Contract law has to correspond to a growing economic need and be flexible in addressing emerging difficulties and shifting conditions. For this reason the CISG's principles are likely to continue to be adopted by contractual parties within the arena of International Trade. A necessary recommendation, however, concerns the terminology of the CISG rules on fundamental breach, which could benefit from being more specific in order to satisfy the demands of international commercial contracts that involve countries governed by common and civi11aw. In short, greater specificity is required in ascertaining the degree of seriousness, detriment, foreseeability and time of foreseeability in cases of contractual breach.Establishing an international body for resolving disputes stemming from the CISG is highly recommended. The given body could contribute greatly to reducing both the time and the cost resulting from such disputes. Reviewing the provisions of the CISG periodically is, therefore, highly advisable for making changes or establishing new rules applicable to the new developments in trade. The avoidance of contract in electronic trade contracts could represent an example where this would be necessary. However, more discussion is needed to elaborate on the development of the wording of the CISG principles in this respect. Finally, with regard to Iraq, its legislation would do well to make provision to include the concept of fundamental breach in accordance with the principles of the CISG. This reform is necessary since Iraq's existing law is no longer capable of properly addressing the special demands of international trade to ensure disputes are dealt with in a manner that is reliable, consistent, valid and fair to the contractual parties concerned.
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Koch, Robert. "The concept of fundamental breach of contract under the United Nations Convention on Contracts for the International Sale of Goods, CISG." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1998. http://www.collectionscanada.ca/obj/s4/f2/dsk1/tape11/PQDD_0028/MQ50940.pdf.
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Karton, Joshua David Heller. "The culture of international arbitration and the evolution of contract law." Thesis, University of Cambridge, 2011. https://www.repository.cam.ac.uk/handle/1810/252239.
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International commercial arbitration ('ICA') is typically characterised as a procedural alternative to litigation in national courts. The great majority of scholarly literature on ICA relates to its procedure, as opposed to substance. This is not surprising since, in ICA, the governing substantive law is usually the national law of some state. One might therefore expect that there would be no difference between the decisions of arbitrators and judges on matters governed by substantive law. However, this intuition remains untested. ICA exists outside the legal system of any state and is specifically adapted for the resolution of international commercial disputes. The decisions of international arbitrators are fertile ground for the growth of international (i.e., transnational) commercial law. A better understanding of arbitrators' decision making will therefore shed light on how international commercial law is likely to evolve. Such understanding would also enable both consumers and providers of arbitration services to make better-informed decisions. International arbitrators' decisions are not susceptible to traditional legal analysis because only a tiny, non-representative sample of arbitral awards is published. The researcher simply lacks access to the necessary data. For the same reason, quantitative statistical studies of arbitrators' decisions are unlikely to yield useful insights. This thesis adopts a sociological approach. It identifies social norms that constitute an incipient culture of ICA and assesses the effects of these norms on arbitrators' decisions on the merits. Part I consists of two case studies that focus on specific areas of contract law. These case studies, which employ standard comparative law methodologies, provide evidence that the outcomes reached in ICA do diverge from those reached in national court litigation, even when arbitrators and judges purport to apply the same substantive laws. Part II employs the sociological methodology of 'grounded theory' to explain this divergence. It analyses the writings of arbitrators, counsel and commentators in order to describe two classes of social norms: those arising from the institutional structure of ICA and those arising from the values shared by international commercial arbitrators. The thesis concludes by predicting, in general terms, the effects of these social norms on arbitrators' decisions on the merits. It also suggests the specific contract law doctrines that international arbitrators will tend to prefer. These doctrines represent a likely future of international commercial law.
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Cecchi-Dimeglio, Paola. "Beyond traditional analysis of international franchise contracts : Interdisciplinary perspectives, from negotiation to dispute system design." Montpellier 1, 2008. http://www.theses.fr/2008MON10041.
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Falsafi, Alireza. "Applicable law in state contracts : the drive to create a supranational legal regime in international arbitral dispute settlement." Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=19623.
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This thesis addresses the question of the application of a supra-national legal regime to the substance of disputes arising from State contracts in the context of international arbitral dispute settlement. Foreign private parties seek to subject the merits of their contractual relationships with a State arising from a State contract to a legal regime superior to the national law of the State party. Such a supra-national legal regime has been advanced through a de-localization trend in international arbitration. In the main, the de-localization trend defies a jurisdictional concept of the legal regime governing a State contract with a view to dissociating the contract from the legal jurisdiction of the State party. How paradoxical the idea of subjecting the substance of a State contract to a Stateless legal regime proves is an issue that the present thesis embarks upon.
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Dupont, Alain. "Non-Pecuniary loss in commercial contracts: with special emphasis on the United Nations Convention on Contracts for the International Sale of Goods (CISG)." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4601.
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Hémous, David. "Essays on International Trade, Economic Growth and the Environment." Thesis, Harvard University, 2012. http://dissertations.umi.com/gsas.harvard:10434.
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This dissertation consists of three essays on Economic Growth. The first essay introduces directed technical change in a growth model with environmental constraints. The final good is produced from ”dirty” and ”clean” inputs. We show that when inputs are sufficiently substitutable, sustainable growth can be achieved with temporary taxes/subsidies that redirect innovation towards clean inputs; and that delay in intervention is costly as it later necessitates a longer transition phase with slow growth. The second essay explains how unilateral environmental policies undertaken by a group of committed countries can ensure sustainable growth in the presence of directed technical change. There are two countries and two tradeable goods: a nonpolluting good and a polluting one, which, itself, is produced with a clean and a dirty input. Innovation can be targeted at the non-polluting sector, at clean or at dirty technologies. I show that sustainable growth can generally not be achieved by unilateral carbon taxes but can be achieved by a temporary unilateral combination of clean research subsidies and a tariff. I characterize the first best policy, the world optimal policy under the constraint that one country must be in laissez-faire, and the optimal policy from the viewpoint of a single country. The third essay shows that long-term relationships, which reduce the static costs associated with low contractibility, create dynamic inefficiencies. We consider the repeated interaction between final good producers and intermediate input suppliers, where the provision of the intermediate input is non contractible. Producer/supplier pairs can be good matches or bad matches (featuring lower productivity). We build a ”cooperative” equilibrium that features cooperation in good matches without any collusion amongst suppliers. We contrast this set-up with the Nash equilibrium where cooperation is precluded and a contractible setting. Every period one supplier has the opportunity to innovate. We show that innovations need to be larger to break up existing relationships in the cooperative case than in the contractible and Nash cases. The rate of innovation in the cooperative case is lower than in the contractible case, and can be lower than in the Nash case.Economics
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Alem, Mohammed Y. "The applicable law to international commercial contracts : harmonization perspectives between civil and common law?" Thesis, McGill University, 1991. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=61160.
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There seems to be wide acceptance of the idea that divergencies between legal systems give rise to disadvantages. These divergencies are, and have always been, regarded as inconveniences to overcome, particularily between the Civil and Common Law traditions, which present quite diverging points of view in the way the Law is thought. Today, one criterion of evaluating any harmonization of international legal norms is the extent to which the effort enhances certainty, a quality much appreciated in the field of international commercial contracts.In fact, today, there is a detectable effort on the international level to harmonize the laws, especially in relevance to international contracts, in order to provide a better environment for world trade.
When we decided to go through this subject, we had in mind the importance of understanding this harmonization tendency on the international sphere. That may be the reason why we have tried, in this thesis, to expose the harmonization process adopted by some recent conventions. Our purpose was to prove that, even though differences and disparities may exist, as long as there is a uniform tendency toward social and cultural uniformity, one might predict that these divergencies would eventually even out. We see in this tendency an indication of the convergence of the Common and Civil Law toward the same destination: make this world a better place.
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Nathan, K. V. S. K. "Submission to ICSID in breach of the convention : disputes in international civil engineering contracts." Thesis, Queen Mary, University of London, 1994. http://qmro.qmul.ac.uk/xmlui/handle/123456789/1607.
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The World Bank produces sample bidding documents for use by its member countries to prepare tender forms and contract conditions for Bankfinanced civil engineering construction contracts. The contract conditions provide for arbitration of disputes and parties to a contract may choose to submit to the International Centre for Settlement of Investment Disputes (ICSID) which was established by members of the World Bank for the settlement of investment disputes between states and nationals of other states. The objectives of the Thesis are to (i) examine the legality of generally submitting disputes in international civil engineering contracts to ICSID arbitration, (ii) provide an analysis of ICSID as an international arbitral institution and (iii) discuss the legal aspects of submission of disputes to ICSID arbitration in breach of the Convention that established ICSID. Chapters One, Two and Three are devoted to describing the importance of civil engineering works to economic growth and arbitration as a method of resolution of disputes. An analysis is made of the fundamentals and complexity of the arbitral process and the interfacing between legal systems, national laws and international law in international arbitrations. Chapter Four traces the genesis of ICSID and Chapter Five examines critically the salient features of ICSID arbitration, which according to the Thesis are not all exclusive to ICSID arbitration. Chapters Six and Seven analyse in depth ICSID jurisdiction ratione personae and ratione materiae. Chapter Eight argues that disputes in freestanding international civil engineering contracts are not investment disputes and that submission to ICSID is in breach of the Convention. Chapters Nine and Ten discuss the legitimate role of ICSID in developing rules of international economic law and conclude by recommending that ICSID should not detract from that role by becoming just another arbitral institution in. the business of arbitration.
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Bruwer, Elizabeth. "Vereniging van die koopreg : kontraksluiting in 'n historiese, regsvergelykende en internasionale perspektief." Thesis, Stellenbosch : Stellenbosch University, 2000. http://hdl.handle.net/10019.1/52046.
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Thesis (LLM)--University of Stellenbosch, 2000.ENGLISH ABSTRACT: International trade has increased tremendously in the last few decades. When parties to a contract find themselves in different countries and each has its own legal background, specific problems originate in connection with formation of the contract, its execution, the breach thereof and so forth. The predominant theme of this work is the question of how a diversity of legal rules should be approached in an international context. The focus is on contract formation, and the rules of offer and acceptance are therefore examined. As a result of diverse legal cultures, different legal systems often have contradicting rules pertaining to contract formation, which can lead to a variety of problems if the contracting parties are not aware of the inconsistencies. According to international private law's choice of law-rules, such a contract should be governed by the rules of the legal system with which it has the closest connection. Connecting factors can be for instance the domicile of particular persons at various times, the situs of property, or the place where a juristic act was performed. One specific legal system will therefore rule the contract. There is however another possibility: that of a uniform substantive law. This involves the unification of different legal rules into one set of rules to be applied to contracts which are concluded in an international context. Taking into account that many of the rules and doctrines applicable to contract law have a common philosophical origin, the necessity of a convergence of these rules may be questioned. However, most of the rules ended up being different in different legal systems, and parties to an international transaction will probably not have the same idea about questions such as the possibility to revoke an offer before acceptance, or the precise moment of formation of the contract. A comparative study of the rules of offer and acceptance illustrates this point. International efforts to unify the law in this regard are explored, in order to assess the possibility of a uniform substantive law of contracts. Some of the international instruments seem to be able to find a middle way between conflicting rules, although it may not always be the best way to solve the problem. It is argued that harmony is not necessarily advanced by a codification of existing rules, and that a common legal culture which can lead to the incremental development of harmonious legal principles may be an alternative solution for the problem of incompatible national legal systems in an international context.
AFRIKAANSE OPSOMMING: Internasionale handel het die afgelope paar dekades geweldig toegeneem. Wanneer kontraktante hulle in verskillende lande bevind, elke party met sy eie regsagtergrond, ontstaan eiesoortige probleme in verband met kontraksluiting, die uitvoering daarvan, kontrakbreuk, en dies meer. Die oorheersende tema van hierdie werk is die vraag na die hantering van 'n verskeidenheid regsreëls betrokke in 'n internasionale konteks. Die fokus is op kontraksluiting, en die reëls aangaande aanbod en aanname word derhalwe ondersoek. As gevolg van die bestaan van uiteenlopende regskulture het verskillende regstelsels dikwels teenstrydige reëls met betrekking tot kontraksluiting. Dit kan natuurlik problematies wees, veral indien die partye tot die kontrak nie bewus is van die teenstrydighede nie. Ooreenkomstig die choice of law-reëls van internasionale privaatreg, word so 'n kontrak beheers deur die regstelsel waarmee dit die nouste verbintenis het. Faktore wat dui op so 'n band kan byvoorbeeld die domisilie van bepaalde persone op verskillende tye, die situs van eiendom, of die plek waar 'n regshandeling verrig is wees. Een spesifieke regstelsel sal dus van toepassing wees op die kontrak. Daar is egter ook 'n ander moontlikheid: dié van 'n eenvormige substantiewe reg. Dit behels die vereniging van verskillende regsreëls ten einde een stel reëls daar te stel wat toegepas word op internasionale kontrakte. lndien in ag geneem word dat heelparty reëls en leerstukke in die kontraktereg 'n gemeenskaplike filosofiese oorsprong het, is die noodsaaklikheid van 'n vereniging van die reëls nie 'n gegewe nie. Die meeste van dié reëls het egter verskillend uitgekristalliseer in verskillende regstelsels, en partye tot 'n internasionale transaksie sal heel waarskynlik nie dieselfde opinie hê oor kwessies soos die moontlikheid om 'n aanbod voor aanname daarvan te herroep, of die presiese oomblik van totstandkoming van 'n kontrak nie. 'n Vergelykende studie van die reëls van aanbod en aanname illustreer die punt. Internasionale pogings om die reg in die verband te verenig word ondersoek, ten einde die moontlikheid van 'n eenvormige substantiewe reg van toepassing op kontrakte te beoordeel. Sekere van die internasionale instrumente blyk 'n middeweg tussen uiteenlopende reëls te vind, alhoewel dit nie noodwendig die beste manier is om die probleem voorhande op te los nie. Daar word geargumenteer dat harmonie nie noodwendig bevorder word deur 'n kodifikasie van bestaande reëls nie, en dat 'n gemeenskaplike regskultuur wat tot die geleidelike ontwikkeling van eenvormige regsbeginsels kan lei, 'n alternatiewe oplossing vir die probleem van onversoenbare nasionale regstelsels in 'n internasionale konteks kan wees.
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Wong, Joseph Kin. "The future trend in the use of expert witness in international construction disputes." access abstract and table of contents access full-text, 2006. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21324281a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2006.Master of arts in arbitration and dispute resolution, City University of Hong Kong, School of Law. Title from title screen (viewed on Sept. 20, 2006) Includes bibliographical references.
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Nieman, Mark David. "The return on social bonds: the effect of social contracts on international conflict and economics." Diss., University of Iowa, 2013. https://ir.uiowa.edu/etd/1887.
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Hierarchical or asymmetrical power relationships among states have long been a focus of scholarly attention (e.g., asymmetrical alliances, trade dependencies). While the "power to hurt" is one expression of power, an alternative approach is to gain and exercise authority, or "rightful rule." One of the major impediments to the study of social concepts such as authority or legitimacy, however, is in their informal or intangible nature. This dissertation uses game theoretic and latent variable approaches to capture informal, social authority relationships, or social hierarchies, among international states and explores the effects of these hierarchies on security and economic behavior.
I posit that states adopt one of two social roles--that of a dominant or a subordinate. Each subordinate chooses a degree of autonomy that it is willing to cede to the dominant in exchange for a corresponding degree of protection. Ranging from complete autonomy to complete control, these dyadic bargains make up a social international hierarchy. This hierarchy affects the relationships between each subordinate and the dominant, as well as the relationships among subordinates.
In the security realm, the probability of conflict initiation is inversely related to the degree of subordination. When conflict does occur, dominants are more likely to intervene when the target is located at a higher position in the dominant's social hierarchy than the aggressor state. Economically, the probability that a state enacts illiberal policies is inversely related to its degree of subordination. Moreover, more subordinated states face a lower risk of economic sanction than states located lower in the hierarchy, even for similar illiberal actions. Empirical analysis of states within the US hierarchy (1950-2000) and UK hierarchy (1870-1913) using strategic probit models supports these theoretical predictions.
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Lwabukuna, Olivia. "Good faith and fair dealing in international commercial contracts : a quest for uniformity in application." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4657.
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This paper will cover the adoption of the concept in various instruments such as the Convention for the International sale of goods (CISG) in Article 7(1), the UCC of the United States, UNIDROIT in article 1.7, and the most important adoption on the European continent, the Principles of European Contract Law (PECL), specifically article 1: 202(1) and 1: 106 (1) of the principles. The question that will be raised and probably answered in the course of this paper is whether, the adoption of the concept of good faith and fair dealing has made a difference in international commercial contracts, the extent of its contribution, the hindrances faced, whether such problems can be addressed, how they can be addressed and finally whether uniformity in interpretation and application of the doctrine is maintained. Under domestic law, the adoption of good faith and fair dealing notion into various legal systems and its implementation and enforcement thereof will be looked into, an attempt will be made to determine the main reasons why some states refuse to adopt the doctrine, and whether adoption of the doctrine in such states would make a substantial impact on their legal systems. Under the approaches adopted by various domestic legal systems in incorporating the doctrine into their laws, and in trying to deduce whether uniformity in interpretation and application of the doctrine can be attained, the jurisdictions that will be looked into are; German, which is a pioneer when it comes to the adoption of the doctrine within the European Union. The German Treu und Glauben provides for such, and has been included in the BGB (German Civil Code). In the provisions of the BGB, one is not only required to act reasonably, but there must be a relationship of trust based on the commercial dealings of the parties in a particular transaction. It has been noticed that most European countries, for instance France and Italy have this similar approach towards the concept of good faith and fair dealing, of course there are always minor differences in every legal system, and these will be highlighted. England of course is an exception, and in this paper it will be considered separately. It is regarded different due to its historical background, thus the doctrine in England is approached differently, and there are limitations in its application. In the United States the doctrine of good faith and fair dealing has been adopted through the Uniform Commercial Code, section 1-203. This section unfortunately does not apply to the formation or negotiation of the contract. Numerous other sections seem to refer to the doctrine, even the Second Restatement on Contracts does touch on the concept. In fact it is the most recent re-enactment of some of the provisions in the Uniform Commercial Code. In the United States the doctrine basically applies to performance and enforcement in contracts. English law reluctantly recognizes a general duty to act in good faith, it arrives at similar results as those arrived at by other countries when it comes to the implementation of the doctrine, even though the avenues used are different. The starting point in English Law was the judgment of Justice Steyn in Banque Financiere and of course the judgment of Sir Thomas Bingham in the Interfoto case. The cause started by these judges was later fueled by the unwavering support of the European Community. Before long it had become accepted that the doctrine could not be ignored anymore in England, and slowly its inception began. Even though the concept is legally accepted, it has not yet managed to get complete acceptance from the English legal fraternity, it is still approached and applied with caution. This paper intends to discuss the reasons for such slow progress of the concept in England, and further compare the position to that of other European states. In South Africa the doctrine of good faith has existed for quite sometime, mostly referred to as bonae fides, a doctrine which played a great role in the development of Roman contract law, and further influenced the development of the principle of equity in civil law. But this did not give the doctrine of good faith formal acceptance in the South African legal system, it has over the years been regarded as an elusive concept which could only destabilize well established legal rules. Most judges regard the doctrine as a threat to their views on freedom of contract being an absolute basis of the law of contract. The concept was accepted in a couple of instances , for instance, in Eerste Nasionale Bank van Suidelike Africa Bpk v Saayman in 1997, it was later dismissed in Brisley v Drotsky, where it was held that the doctrine could not be accepted as a basis to set aside or enforce a contractual relationship. This was confirmed in Afrox Healthcare Bpk v Strydom in 2002, it is now settled that in South Africa, the concept of good faith cannot be used in dealing with cases involving contractual unfairness that cannot be handled by pre existing rules, but public policy can. This work intends to follow up on the development of the concept of good faith in South Africa, and the reasons for its subsequent dismissal in Drotsky, not forgetting to outline the doctrine's future in the country's legal system and the effects of dismissing such doctrine.
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Marchand, Sylvain. "Les limites de l'uniformisation matérielle du droit de la vente internationale : mise en oeuvre de la Convention des Nations Unies du 11 avril 1980 sur la vente internationale de marchandises dans le contexte juridique suisse /." Bâle [u.a.] : Helbing & Lichtenhahn, 1994. http://www.gbv.de/dms/spk/sbb/recht/toc/278947883.pdf.
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Mercedat, Ralph. "Légitimité et autonomie des principes d'UNIDROIT relatifs aux contrats du commerce international." Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=80942.
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This thesis analyses three issues raised by the application of the general principles of law to commercial arbitration. First, it is essential to assess the core and the substance of the general principles of law. Our first hypothesis purports that the UPICC reduces considerably the uncertainty of the general principles of law in international trade. Secondly, an analysis of the nature of the UPICC is needed, in order to determine whether they have the essential features of a transnational norm and can thus escape the application of national legal norms. We will thus analyse the existing mechanisms to assure the autonomy, of PUCCI, from national law. Thirdly, we will analyse the legitimacy of the UPICC. In doing so, we shall refer to the concept of reflexive legimitacy, a legitimacy obtained through the consensus of the merchant community. This reflexive legitimacy over the UPICC is generally admitted. Two rules within the UPICC, however, raise doubts and concerns over their acceptability in the merchants' community: the hardship and the gross disparity provisions. (Abstract shortened by UMI.)
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Bordukh, Oyunchimeg. "Choice of law in state contracts in economic development sector :is there party autonomy?" Gold Coast, Australia : Bond University, 2008. http://epublications.bond.edu.au/theses/bordukh.
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