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.
Andrea Marco Steingruber*
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.
By Camilo A. Rodriguez-Yong*
Table of contents
- 1. The Doctrine of Unconscionability
- 2. The Doctrine of Abusive Clauses
- 3. The Doctrines of Unconscionability and Abusive Clauses – Are They So Different?
- 3.1. The Doctrines of Unconscionability and Abusive Clauses Arise as a Consequence of the Abuse of Right to Contract
- 3.2. The Doctrines of Abusive and Unconscionable Contract or Clause Apply to Agreements Imposed or Drafted by Only One of the Parties
- 3.3. The Party Who Has Drafted the Contract or Clause Has More Bargaining Power than the One Who Accepts the Contract
- 3.4. The Doctrines of Unconscionability and Abusive Clauses Arise in Contracts Where There is a Significant Imbalance Between the Rights and Obligations Assumed by the Parties
- 3.5. The Control Mechanisms Used to Avoid the Inclusion of Unconscionable and Abusive Clauses
- 4. Conclusion
European Research Group on Existing EC Private Law (Acquis Group)
Prepared by Gerhard Dannemann
Table of contents
- A. Subject Matter
- B. Applicability
- C. Scope
- D. Mandatory consumer provisions
- E. Overriding mandatory provisions
- F. Choice of jurisdiction
- G. Issues covered by a choice of law under Arts. 10 and 12 Rome I Regulation, but not by the Feasibility Study
- H. Issues covered by the Feasibility Study, but not by choice of law under Arts. 10 and 12 Rome I Regulation
- I. Linked or “ancillary” contracts
- J. Summary: Proposed Provisions
Table of contents
- 1. Introduction
- 2. Historical Background
- 3. Legal Aid Legislation
- 4. Legal Aid in Practice
- 5. ‘The Way Ahead?’ – Alternatives
- 6. Conclusion
Willem H. van Boom*
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
Table of contents
- I. Introduction
- II. Before The Event Legal Expenses Insurance (BTE LEI)
- III. After the event (ATE) Funding and Insurance
- IV. Conclusion
The pre-eminent position of the Attorney-General under the common law as the chief law officer of the State, generally as chief legal adviser to the State and specifically in all court proceedings to which the State is a party, is a common feature of the Constitutions of the Commonwealth countries. In many jurisdictions, including Nigeria, the Constitution confers the officer with similar powers to the common law prerogative to exercise ultimate control over prosecutions. However, despite this statutory basis the courts traditionally bestow the powers with the orthodox common law immunity from judicial review of the prerogative powers. This article challenges both the applicability of this orthodoxy to such jurisdictions and its continued validity under the common law. The first part deals with English law. It examines the origin and development of the orthodoxy in English law and argues that it should no longer apply to prerogative prosecutorial powers in view of the House of Lord’s decision in Council of Civil Service Unions v Minister for the Civil Service  AC 374 that prerogative powers that raise justiciable issues are amenable to judicial review. It further argues that the orthodoxy should not apply to statutory prosecutorial powers including the power to stop prosecutions in order to safeguard national security set out in the new Protocol between the Attorney-General and the Prosecuting Departments. The second part analyses the relevant provisions of successive Nigerian Constitutions to show that the orthodoxy has never been imported into post-Independence Nigerian law. It uses judicial interpretation of similar provisions in the Constitutions of other Commonwealth countries to establish the error in the Supreme Court’s decision in The State v Ilori  1 SCNLR 94 by which the orthodoxy was transplanted into Nigerian law. The third part applies the established grounds for judicial review to the exercise of the respective Attorney-General’s prosecutorial powers to give effect to the rule of law in both jurisdictions. The article concludes that judicial review will restore the right to private prosecution as a necessary safeguard against executive excesses and incompetence in both jurisdictions. Although the article deals specifically with English and Nigerian laws, the principles it sets out are applicable to other Commonwealth jurisdictions where the Attorneys-General or other officers such as the Directors of Public Prosecutions enjoy similar powers.
Table of contents
- 1. Introduction
- 2. Justiciability of the Prosecutorial Powers of the Attorney-General in English Law
- 3. Justiciability of the Prosecutorial Powers of the Attorney-General in Nigerian Law
- 3.1 Prosecutorial Powers of the Attorney-General and the Director of Public Prosecutions under the Colonial Constitutions
- 3.2 Prosecutorial Powers of the Director of Public Prosecutions under the 1960 Constitution
- 3.3 Prosecutorial Powers of the Attorney-General under the 1963 Constitution
- 3.4 Prosecutorial Powers of the Attorney-General under the 1979 Constitution
- 3.5 Prosecutorial Powers of the Attorney-General under the 1999 Constitution
- 4. Grounds for Judicial Review of the Prosecutorial Powers of the English and Nigerian Attorneys-General
- 5. Conclusion