Category Archives: Articles

New Packaging for Left-Over Big Data: “Identity Proofing” and “Equality Monitoring”

by Orlan Lee*

(2014) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

“Identity Proofing” is a commercial database search product recently adopted by the US Department of Homeland Security (DHS), other government agencies, and commercial entities, paradoxically, to verify the identity of the holder of identity documents. Clearly, in the security world, tracking has greater appeal than hard copy credentials. No matter the photo IDs and documents with embossed seals, the system relies on confirming our knowledge of database entries: present and former home addresses, present and former employers, details of financial credit experience, names of personal associates, and what the latter say about the person the system has their eye on. If, when “quizzed” about these things, your answers match the contents of your file, you may convince the inquiring IdP client that you are the rightful holder of your ID docs. Without a warrant, even the police could not seize all your personal information in the United States. Of course, nothing can stop you from consenting to provide it. Presumably, you have also consented, sometime, somewhere, for all this to be already available in a commercial file.

Rarely do we see an industry leader—here a developer of prime “identity proofing” products—also admit that a hidden weakness may lie anywhere along the chain of data collection, entry, search, recovery, or solutions application:

Source data is sometimes reported or entered inaccurately, processed poorly or incorrectly, and is generally not free from defect. This product or service aggregates and reports data as provided by the public records and commercially available data sources, and is not the source of the data, nor is it a compilation of the data. Before relying on any data, it should be independently verified.1

The UK Equality Act signifies real advances toward the “Aim of Equality”. Whether or not reliable or useful statistics emerge from the “Duty to Monitor”, British HR practice now outdoes the Americans in their intrusive personal data tracking.

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Cooperation as Philosophical Foundation of Good Faith in International Business-Contracting – A View Through the Prism of Transnational Law

By Lorena Carvajal-Arenas* and A F M Maniruzzaman**

(2012) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

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.

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The Mutable and Evolving Concept of ‘Consent’ in International Arbitration – Comparing rules, laws, treaties and types of arbitration for a better understanding of the concept of ‘Consent’

Andrea Marco Steingruber*

(2012) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Consent is considered the cornerstone of international arbitration. Yet in the last few years there has been an increasing discomfort with this deep-rooted assumption, with a discussion emerging. Scholars have spoken of the ‘dogma of consent’ or the ‘marginalization’ of it. The main reason for this is that arbitration has evolved and expanded. Multiparty situations involving complex jurisdictional issues are now quite common, and investment arbitration has experienced an exponential growth the last two decades. The article suggests that the consensual nature of arbitration should be looked at from different perspectives. These different perspectives should highlight that the consensual nature of international arbitration is a complex phenomenon and that the qualification of arbitration as a ‘consensual’ dispute resolution mechanism needs to be differentiated and reconciled with the jurisdictional side of arbitration.

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The Doctrines Of Unconscionability And Abusive Clauses: a Common Point Between Civil And Common Law Legal Traditions

By Camilo A. Rodriguez-Yong*

(2011) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

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Draft for a First Chapter (Subject Matter, Application and Scope) of an Optional European Contract Law

European Research Group on Existing EC Private Law (Acquis Group)

Prepared by Gerhard Dannemann

(2011) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article this article

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Legal Aid in Times of Economic Turmoil: Current Challenges in England and Germany

Tobias Schrank*

(2011) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

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Juxtaposing BTE and ATE: the Role of the European Insurance Industry in Funding Civil Litigation

Willem H. van Boom*

(2010) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

One of the ways in which legal services are financed, and indeed shaped, is through private insurance arrangements. Two contrasting types of legal expenses insurance contracts (LEI) seem to dominate in Europe: before the event (BTE) and after the event (ATE) legal expenses insurance. Notwithstanding institutional differences between different legal systems, BTE and ATE insurance arrangements may be instrumental if government policy is geared towards strengthening a market-oriented system of financing access to justice for individuals and business. At the same time, emphasizing the role of a private industry as a keeper of the gates to justice raises issues of accountability and transparency, not readily reconcilable with demands for competitive markets. Moreover, multiple actors (clients, lawyers, courts, insurers) are involved, causing behavioural dynamics which are not easily predicted or influenced.

Against this background, this article looks into BTE and ATE arrangements by analysing the particularities of BTE and ATE arrangements currently available in some European jurisdictions against the backdrop of their respective markets and legal contexts. This allows for some reflection on the performance of BTE and ATE providers as both financiers and keepers of the gates to justice. Two issues emerge from the analysis that are worthy of some further reflection. Firstly, the long-term sustainability of some ATE products appears problematic. Secondly, policymakers that would like to nudge consumers into voluntarily taking out BTE LEI are facing certain challenges.

JEL classification: G22, K12, K41

Keywords: legal expenses insurance, conditional fee arrangement, after the event insurance

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