Category Archives: 2012

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.

Continue reading →

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.

Continue reading →