07 August 2012
NOTICE: Comparative Law on SSRN (by way of the Irish Society of Comparative Law)
Additional articles from SSRN have been noted by our friend in the Irish Society of Comparative 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.
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.
Young, Katharine, The Comparative Turn: Accident, Coincidence, or Fate? (2012). Harvard Law Review Forum, Vol. 125, 2012; ANU College of Law Research Paper No. 12-20.
The comparative turn taken by one of America’s most influential constitutional scholars can tell us much about the field of comparative constitutional law. In this paper, delivered as a Provocation at the Symposium in Honor of Professor Frank Michelman, at Harvard Law School, February 10-11, 2012, three hypothesis are given for this turn. The first hypothesis, accident, looks to the post-Cold war expansion of the field of comparative constitutional law and the upsurge of American constitutional influence at that time. The second hypothesis, coincidence, views Michelman’s seminal work on constitutional economic and social rights, as well as on property, equality, law and economics, and democracy, as singularly apposite for building constitutionalism in post-apartheid South Africa. The third hypothesis, fate, examines how the normative questions that Michelman posed transcended any one constitutional system, precipitating a critical reflection on the United States, South Africa, and other constitutional systems.
Garoupa, Nuno M. and Pargendler, Mariana, A Law and Economics Perspective on Legal Families (July 12, 2012). The Methodologies of Law and Economics, T. Ulen, ed., Edward Elgar, 2013; Illinois Program in Law, Behavior and Social Science Paper No. LBSS13-01.
In this paper, we review the economics of legal families. We describe the non-economic perspectives on the rise and decline of legal families in comparative law. At the same time, we summarize the main critiques to the premises, methods, and conclusions of the legal origins literature. We relate this discussion to the hypothesis of the efficiency of the common law and its shortcomings. We conclude the paper with possible methodological goals for future research in this field.