Contract Research Articles

Rethinking non-conformity of a serious nature: From the CISG and the PICC’s concept of fundamental breach towards a Nachfrist principle—learning from the amendments to Catalan sales law’s cure regime

Abstract Whereas the European Commission’s endeavours to codify European contract law are at an impasse, the harmonization effect of European Union (EU) Directive 2019/771 should not be under-estimated. Such effect extends beyond consumer legislation and is particularly remarkable in EU jurisdictions that did not enact ad hoc consumer acts. This article takes the amendments to Catalan sales law after the transposition of Article 13 of the Directive as a benchmark. It delves into the recently introduced seriousness threshold under Article 13(4) lit. (c) of the Directive as an additional basis for contract avoidance in case of the delivery of non-conforming goods. The article further discusses whether such a serious nature threshold should (or can) coexist with the previous notion of fundamental breach and rethinks the contours of these legal thresholds from a cure perspective.

The Unidroit Principles on International Commercial Contracts and sustainable development

Abstract A number of motivations currently drive multinational corporations to the inclusion, monitoring, and enforcement of contract requirements for sustainability. These can be either as a result of investor demand for environment, social, and governance policies; regulatory requirements for inclusion of such contract stipulations; or the increasing litigation for conduct leading to environmental harm, but they can also be a result of reputational risk linked to the failure of adoption of such policies. This article examines the role of contract law in enforcing such requirements, which have traditionally been viewed with suspicion due to their unilateral nature. The article poses the features of the International Institute for the Unification of Private Law’s Principles on International Commercial Contracts as a beneficial regime to further the goals of sustainability through the use of contextual interpretation enabled through the good faith principle, the recognition of the importance of trade usages, and the limitations placed on party autonomy. The article posits that a major shift in the ideological orientation of contract law through the imposition of limitations on the pacta sunt servanda principle in order to protect the public interest is not warranted. Rather, tools such as contractual interpretation and the establishment of contractual standards of sustainability are better placed to ensure enforcement and compliance with the widely established practice of inclusion of sustainability standards and codes of conduct.

Prospects for the Legal Regulation of Property Relations Between Spouses when Concluding a Marriage Contract Using Digital Technologies

Introduction: the paper deals with the study of the content of the conditions for concluding a marriage contract as an effective tool for resolving property disputes in the family. The possibility of concluding a marriage contract in electronic form is analyzed. The debatable issue of regulating the personal non-property rights of spouses under a marriage contract is also investigated. The purpose of the study is to identify the main directions for the development of the institution of a marriage contract using digital technologies and to determine their impact on the stability of the economy and civil circulation. Methods: the research is based on specific scientific legal techniques – dogmatic, legal-technical, method of interpretation of law, state-legal modeling, comparative law method – that allow for the formation of a scientifically based structure for the legal development of digital technologies in regulating the institution of a marriage contract in the context of international integration. Results: it is proved that 1) the digitalization of the economy affects the regulation of marital and family relations; 2) the marriage contract has a contradictory nature: on the one hand, it helps to strengthen the family; on the other hand, it can also be a factor destabilizing civil circulation. Conclusions: the current family legislation does not contain any direct prohibition on the use of electronic means when concluding family law contracts; therefore, the confirmation of the conditions when signing a marriage contract in electronic form is not only possible but will also speed up and simplify the process of concluding it for spouses (future spouses). If any economic or technological innovations can potentially contribute to strengthening rights and freedoms in the family, as well as strengthening their protection, then it is necessary to consolidate such means of protection at the legislative level, in particular, to allow the possibility of concluding a marriage contract in electronic form.

Net Zero and Natural Resources Law: Sovereignty, Security and Solidarity in the Clean Energy Transition (Oxford University Press, 2024)

The IBA’s Section on Energy, Environment, Natural Resources and Infrastructure Law is advised by the Academic Advisory Group (AAG), a group of leading academics from around the world. Every two years, the AAG publishes a book about a key topic of interest to the entire Section. This year’s book focuses on the legal issues involved with the clean energy transition. In response to the climate emergency, several countries, corporations and other actors worldwide have announced programmes aimed at reducing global emissions of greenhouse gases that contribute to climate change to net zero by the year 2060 or earlier. While the need for a clean energy transition is clear, incoherently designed transition programmes could produce complex environmental, social and governance risks, including legal liability and protracted disputes. At the same time, the growing rush for minerals needed to manufacture clean energy technologies raises fundamental questions. Most crucial is how to ensure the exploration and development of energy transition minerals in a manner that does not exacerbate resource conflicts, resource nationalism, human rights violations, protectionism, energy insecurity, social exclusions and inequity, especially in conflict-affected and high-risk regions. These scenarios raise the need for net-zero and climate-aligned natural resource contracts, legislation and investment agreements to drive a just and inclusive energy transition. With presentations from some of the expert contributors to the latest AAG book, Net Zero and Natural Resources Law, this panel session reflected upon innovative legal drafting, contract negotiation and policymaking approaches needed to address the wide range of resource sovereignty, security and solidarity questions posed by the net zero transition.

Environmental Sustainability in Public Procurement Processes: A Study Guided by The Paradigms of The New Law on Tenders and Contracts

Objective: The objective of this study is to investigate the incorporation of environmental sustainability criteria in public procurement processes, aiming to assess the impact of these criteria on the effectiveness of procurements under the New Public Procurement and Contracting Law. Theoretical Framework: The research is based on concepts of environmental sustainability and sustainable public procurement. Theories of sustainable development and principles of sustainability in public administration are highlighted, providing a solid foundation for the analysis. Method: The methodology adopted for this research includes a qualitative approach, using the deductive method. Data collection was conducted through a critical analysis of bibliographic materials indexed on platforms evaluated by Capes, as well as legislative documents and relevant doctrines on the subject. Results and Discussion: The results indicate that the New Public Procurement and Contracting Law presents significant advances in integrating sustainability into public procurement processes through the explicit inclusion of environmental sustainability criteria. However, the effective implementation of these criteria faces important challenges, mainly related to the training of public agents and the adaptation of existing structures to new demands. The discussion contextualizes these results in light of the theoretical framework, highlighting the identified implications and relationships. Research Implications: The practical and theoretical implications of this research are discussed, providing insights into how the results can be applied or influence practices in the field of public procurement. These implications encompass areas such as public policies, professional training, and sustainable development. Originality/Value: This study contributes to the literature by highlighting the relevance of the New Public Procurement and Contracting Law in promoting sustainable practices in public procurement. The originality of the research lies in the critical analysis of the challenges and advances provided by the new legislation, highlighting its potential impact on sustainable development.

Smart Contracts in Contract Law as an Auxiliary Tool or a Promising Substitute for Traditional Contracts

Smart Contracts in Contract Law as an Auxiliary Tool or a Promising Substitute for Traditional Contracts

E-contract Consensus in Indonesian Contract Law

Introduction: In the era of Society 5.0, the use of IT in implementing agreements in Indonesia is inevitable. The development of e-contracts, becoming increasingly necessary in society, is demanding the business world's attention. Particularly in Indonesia's Treaty Law, the concept of consensual e-contracting emerged, suggesting that even in the absence of direct meetings, parties could still realize an agreement through the e-contract. Purposes of the Research: This study aims to analyze and describe the existence of e-contract consensus in contract law in Indonesia from the point of view of contract theory. Methods of the Research: This specific type of investigation is doctrinal law research, which endeavors to uncover the truth by employing legal principles, foundational doctrines, and doctrinal law as supporting material. This work utilizes an inductive methodology, first presenting specific assertions and then drawing a general conclusion from them.Results of the Research: One of the legal prerequisites for an agreement is consensus. The study's findings indicate that legislative regulations in Indonesia have incorporated e-contract consensus into contract law. We apply Uitings theory, Verzending theory, and Ontvangs theory as agreement theories to determine the existence of e-contract consensus. The legislation contains provisions that specifically address the maintenance of electronic transactions. In general, it establishes that an electronic transaction has taken place when the parties to an electronic contract (e-contract) issue a statement of acceptance of an offer.

Classification Issues of Civil Law Contracts in the Field of Real Estate Turnover

Classification Issues of Civil Law Contracts in the Field of Real Estate Turnover

The choice of the PICC as the proper law of the contract in Latin American jurisdictions: Chilean contract law as a sample study

Abstract This article analyses a distinctive trend in Latin American conflict laws to enable the parties to choose the Unidroit Principles of International Commercial Contracts (PICC) as the proper law of the contract since this choice must be upheld by national courts. This provides an incentive for contracting parties linked to Latin American jurisdictions to adopt updated and fair rules that are inexistent in their domestic contract laws. This trend began with the 1994 Mexico Convention and has spread to the new conflict rules on contracts enacted in Latin America and even to the 2015 Hague Principles. Nowadays, the choice of the PICC to govern the substance of a contract might be upheld in the national courts of several Latin American countries. This solution is unique since it is not allowed in most jurisdictions, such as those of the European Union, which only accept ‘ordinary legal techniques’ for applying the PICC. There is now legal certainty that the PICC will be applied in arbitration and litigation in these Latin American jurisdictions, either via the ordinary legal techniques or via choosing the PICC as the rules of law governing a contract subject to judicial adjudication. This benefits parties that do not have in their domestic contract law some of the PICC’s solutions. Using Chilean contract law as a sample study, we will show that the PICC’s rules on the pre-contractual stage and on hardship are better suited than existing national laws to negotiate, conclude, and perform international commercial contracts.

How to Extend China’s Rural Land Contracts for Another 30 Years: A Psychological Ownership Perspective

In China’s rural land system, the collective owns the land, and farmers, as members of the collective, can acquire land contractual management rights through land contracting. With the second round of land contracts nearing expiration, the central government has announced that the term should be extended for 30 years. This paper introduces the theory of psychological ownership to explore the implementation paths of the 30-year extension policy. The study finds that (1) farmers generally exhibit strong psychological ownership towards the contracted land. (2) The Household Contract Responsibility System satisfies the three routes for the formation of psychological ownership—control, intimate knowledge, and self-investment. As the duration of farmers’ possession of contracted land extends, their psychological ownership gradually forms and strengthens. (3) Farmers’ psychological ownership has both positive and negative effects. The 30-year extension policy must adhere to the path dependence formed by the evolution of the land contract system, comply with the institutional constraints imposed by rural land collective ownership, and simultaneously meet the practical demands posed by urban–rural integration and agricultural development. Drawing on the complex effects of farmers’ psychological ownership and considering the historical, institutional, and practical contexts of policy implementation, this study proposes the dual necessity of facilitating and restraining farmers’ psychological ownership when extending for another 30 years and offers corresponding policy suggestions. Facilitation requires empowering farmers with more stable land possession and stronger land rights. Restraint requires preventing the permanent locking of rural land allocation patterns to achieve fair and efficient land allocation.

Provision representation by third parties

Relevance. The study is devoted to determining the substance of representation given by a third party and their place among the general models of third party participation in another contractual obligation (Articles 312, 313 and 430 of the Civil Code of the Russian Federation). The possibilities of applying the current rules of positive law on the participation of a third party in another contractual obligation to representation provided by a third party are analyzed. Due to the presence of only explanations of the Supreme Court of the Russian Federation on such representations, there is a need for scientific formulization in this regard.The purpose of the article is to formulization theoretical provisions on representation provided by a third party and their relationship to existing models of third party participation in another contractual obligation.Objectives. to determine the most appropriate rules for applying to representationы given by a third party on a specific model of a third party's participation in another contractual obligation.Methodology. The author used dialectical-materialistic method, methods of analysis and synthesis, a systematic method, as well as methods of description and formal-legal method.Results. Based on the results of the study, it was found acceptable to apply the rules on contract in favor of a third party (Article 430 of the Civil Code of the Russian Federation) to the construction of representation provided by a third party.Conclusion. The structure of representation given by a third party proposed by the Supreme Court of the Russian Federation should be properly integrated into the existing domestic system of contract law. However, it has been revealed that the legal substance of the representation provided by a third party is not acceptable for all general models of third party participation in another contractual obligation. The closest model of a third party's participation in another contractual obligation to the construction of representation provided by a third party should be considered a contract in favor of a third party.

Khartoum War's echoes in oil and energy sectors: Economic and environmental implications for Sudan and South Sudan

The energy sector is a main driver of African growth, particularly in regions with geopolitical conflicts like Sudan and South Sudan. The oil and gas industry notably influences these regions' economy, politics, humanitarian situation, and social stability. This study seeks to investigate how the Khartoum War affected the energy sector of both Sudan and South Sudan, particularly looking at the disruptions caused by recent conflicts and their impact on oil production, economic stability, and environmental conditions. The study employs a multi-disciplinary approach, utilising different sources such as regional legal agreements, government reports, academic articles, and press releases from international organisations. The key methodology includes qualitative analysis of several documents and quantitative assessment of production data and economic reports. The study's key findings show a significant decline in oil production and transportation due to the shutdown of key oilfields and pipelines, intensifying economic and humanitarian crises. Additionally, the damage to oil infrastructure has presented serious environmental risks, highlighting the delicate balance between resource management and regional stability. In conclusion, the study's findings underscore the intense impact of the Khartoum War on the energy sector of Sudan and South Sudan, and the urgent need for policy recommendations to mitigate these effects and foster sustainable development.

Cheaper and faster: The role of air services agreements on transportation

AbstractRules of international air transportation services that apply to signatories' airlines are defined by air services agreements (ASAs). We assess the impact of bilateral ASAs on air transportation using an unique data set providing direct observations of bilateral air transport cost and time for a standardised good, for 1190 country‐pairs, between 2011 and 2015. Our results show that ASAs reduce transportation cost by 8% while they only impact transportation time for landlocked countries and Regional Trade Agreements (RTA) members. Our estimates also reveal that bilateral trade decreases cost of transport, which highlights the role of backhauling in air transportation.

Potential Influence of Article 6(1)(b) of the Hague Principles on Choice of Law in International Commercial Contracts on Indian Private International Law

Potential Influence of Article 6(1)(b) of the Hague Principles on Choice of Law in International Commercial Contracts on Indian Private International Law

The onerous granting of the right to build: an alternative form of financing in the popular housing programs of the municipality of Goiânia

The City Statute (Law nº 10.257/2001) established general norms for the elaboration of the Master Plan by the Municipalities, including defining that not only the OODC, but all urban policy instruments defined therein, must follow the general guidelines of urban policy, such as the fair distribution of burdens and benefits, the recovery of government investments that result in the appreciation of urban properties and, in the specific case of Onerous Grants, that part of the amounts collected with their concession are applied in social housing programs. In this sense, the scope of the implementation of the urban instrument of the Onerous Grant of the Right to Build is discussed, based on its criticisms and distortions, in case there is a legal binding expressed in the local legislation of the percentage of collection of its revenues linked to housing programs of social interest.

Administrative Contract in Administrative Matters

Administrative contracts are also known in Slovenian law, where they are mainly used as an instrument to regulate in more detail the (previously issued) administrative act, and generally cannot replace the issuance of an administrative act. Namely, the General Administrative Procedure Act only provides for settlement between parties with opposing (private law) interests. However, the elements of administrative contracts as an ADR mechanism can be found in other (sectoral) legislation, but are often very deficiently regulated, leading to the application of private law rules that govern contractual relations and which are not adapted to administrative law relations. Given all the advantages of alternative dispute resolution and shortcomings of the current legal framework, Slovenian law should also – while respecting all the specific features of administrative decision-making and following the example of selected comparative-law regimes – systematically regulate subordinate administrative contracts (replacing administrative acts), at least for some administrative matters. They should be limited only to those areas of administrative functioning where the administration has a certain margin of discretion in determining the content of the decision on the administrative matter. This means, on the other hand, that the possibility of a subordinate administrative contract should normally be excluded in the case of legally binding decision-making since the content of such a decision is predetermined and the administrative authority is bound by it (principle of legality). However, the administrative authority must have a specific power to conclude such a contract in a (sectoral) law – a general power to conclude subordinate administrative contracts is not sufficient due to the risk of infringing the principle of equality and legality.

Swiss Contract Law in International Commercial Arbitration by Christoph Müller with Sabrina Pearson-Wenger

Swiss Contract Law in International Commercial Arbitration by Christoph Müller with Sabrina Pearson-Wenger

Addressing employment barriers for humanitarian migrants: Perspectives from settlement services

AbstractThis research seeks to understand the challenges faced by settlement service providers (SSPs) in assisting humanitarian migrants to secure appropriate employment. In‐depth interviews with 26 SSPs identified that current impediments to facilitating humanitarian migrants' employment related to employment support programmes; settlement service partnerships; cultural appropriateness of services; employment readiness, experience, skills and knowledge; social support and networks; and limitations of funding and service agreements. While employment is recognised as key to effective settlement, the findings of this study show that employment services are not currently a focus of settlement services, that is, most employment services delivered by settlement services were coordinated as part of job preparedness or readiness programmes. The paper argues for government to ensure financial and human resources to enable SSPs to deliver services that can formally recognise and overcome barriers to humanitarian migrants' employment.

Определение стоимости обслуживания опасного производственного объекта профессиональными аварийно-спасательными формированиями

The existing methodologies to determine the costs of service for a hazardous production facility provided by emergency and rescue units have been analyzed. The issues hampering the calculations were identified, and the criteria to be incorporated into the calculation procedure, considering the identified shortcomings, have been proposed. Throughout the study, the following problems were resolved: The analysis of accidents at hazardous production facilities, federal laws in the sphere of industrial safety, and the existing methodologies to determine the cost of service for a hazardous production facility provided by emergency and rescue services or units; Identification of issues hampering the calculations; Proposing criteria incorporated into the procedure of calculation of costs of service for a hazardous production facility provided by emergency and rescue services or units. The authors refer to the statistics on emergencies at hazardous production facilities and focus on the fact that similar accidents cause devastating consequences requiring emergency and rescue operations. When operating a hazardous production facility, its operating company is required to enter into servicing agreements with professional emergency and rescue services or professional emergency and rescue units. Maintaining a servicing agreement with professional services is more cost-efficient compared with maintaining an in-house emergency and rescue unit. At the same time, the issue of determining a justified cost of the agreement with professional emergency and rescue services (units) for servicing a hazardous production facility becomes crucial. The article analyzes the Rules of calculation of costs of service for mining facilities provided by professional emergency and rescue services (units) and the Norms of minimum equipping of emergency and rescue units. The procedure of calculation of expenses on maintenance of personnel of professional services and the respective operational costs have been analyzed. It has been demonstrated that the calculated service cost is significantly higher than the service costs specified for tenders. The criteria incorporated into the cost calculation procedure for servicing a hazardous production facility by emergency and rescue services or units have been developed.

Legal regulation of climate change in the context of global warming

The relevance of the problem stated in this article is due to the direct negative impact of the climate change, in particular the global warming, on most life-supporting human processes: production, agricultural sector, safe and secure dwelling of population, and more. The purpose of this article is to study the effectiveness and efficiency of harmonization of the national legislation of the developed countries in accordance with international legal treaties in the field of climate in the context of global warming. The formal legal method is the main one in the study of this issue, which allows making a legal analysis of the provisions of international legal treaties of both a general nature and special rules that relate to the carrying out of entrepreneurial activity, considering the minimization of negative impact on the climate change, as well as foundations for implementation of the carbon neutrality policy. As a result of research, it was made the legal analysis of the content of legal acts on the issue of climate change. The requirements for business entities were determined, provided for by the international legal agreements and leading to a decrease in the negative impact on the climate. In addition, it was made an analysis of the legal basis and feasibility of achieving the carbon neutrality in the developed countries until 2050. To a greater extent, the results of the study are of theoretical significance, since the generalization of requirements provided for by international law is the end result of the study, which together will lead to a decrease in the impact of global warming on climate change, states, business entities and individuals. In turn, the results of this study can be the basis for improving the mechanisms of influence on the climate both in the field of legal sciences and technical sciences. .