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.
