Cross-border Contracts Research Articles

The European consumer

European consumers enjoy protection, if they are natural persons who act outside professional purposes and have as counterparts professionals (traders). Applying the test of the three conditions, it is possible that consumers who do not need protection to fall within the scope of the consumer protection laws. This is the reason why we are wondering about the “identity” of the European consumer.To elucidate the issue we will use a few questions, which, in a logical sequence, would be asked by any jurist more or less familiar with the matter of EU consumer protection. First, why do consumers need protection? Are they vulnerable? How are consumers protected and “identified” in cross-border contracts? Does the irrebuttable presumption of consumer vulnerability generate fair judgments?We will conclude by pointing out that EU consumer protection has reached a critical moment, when the irrebuttable presumption of consumer vulnerability generates exaggerations and, possibly, imbalances. Protective laws are used as a shield by consumers who do not actually need them, which produce results that are contrary to the purpose for which they were designed .

EcoClimate and ESG Disputes: Practice, Risks, Prospects

The ecoclimate or «green» agenda, largely constituted through the concept of «sustainable development» and the system of ESG standards, has captured the world and is changing society, generating new social patterns, and ceasing business and management models. This encourages rethinking the legal superstructure, adapting new regulatory arrays to the current legal taxonomy, which is not always possible, taking into account the positivist approach to law and a significant amount of «soft» law rules and sources of non-state regulation within the framework of «green» regulation. The ecoclimate agenda has a number of dimensions in the context of law and jurisprudence, one of which is the practice of ecoclimate and ESG disputes, often of a cross-border nature. Very little attention is paid to this issue in the Russian research space, while the volume of relevant lawsuits in the world is growing rapidly. The object of the study within the framework of this work covers the risk-oriented nature of the above-mentioned issues, the licensing risks of mainly cross-border contracts, the assessment of companies’ activities in the field of sustainable development in the context of possible judicial or arbitration proceedings. The paper provides a classification of ecoclimate and ESG disputes, gives examples of judicial and arbitration practice, and makes some conclusions regarding mitigation of litigation risks generated by the companies’ activities.

Disputes from a Cross-Border Contract with a Chinese Contractor: Features of Recognition and Implementation of Decisions

This article analyzes the risks that may arise for Russian companies in the event of applying to the state courts of the Russian Federation or China, or choosing an arbitration method for resolving a dispute with Chinese partners. The features of the recognition and enforcement of the decision in the PRC and the Russian Federation are determined. In this work, it was found that when concluding a cross-border contract with Chinese counterparties, it is necessary to adhere to the following rules: in order to avoid difficulties an arbitration clause should be written with the consolidation of one of the well-known Chinese institutional arbitration centers; if the counterparties do not want to consider the dispute in arbitration, it can be advised to fix the prorogation clause on the resolution of the dispute in the Chinese state court, since the Russian courts are more willing to recognize the decisions of the courts of the PRC.

An In-Depth Analysis of Choice of Law Rules in Consumer Contracts: A Focus on the African Continental Free Trade Area

Choice of law is a perplexing concept due to the importance of party autonomy, the diversity of connecting factors, and the variety of different contractual issues. The problem of choosing a governing law is complicated in consumer contracts by industrialised mechanisms depriving consumers of negotiation rights. The core mandate of the African Continental Free Trade Area (AfCFTA) is to establish a single market for goods and services associated with the free movement of legal persons for economic integration. This objective requires a harmonised consumer protection policy to resolve the diverse consumer protection regimes applicable in state parties within AfCFTA member states. This policy should provide suitable consumer protection mechanisms generally and in the context of choice of law specifically. Implementing a draft competition policy bestows a legitimate mandate on the AfCFTA to negotiate a continental framework on consumer protection as both fields of law complement each other to safeguard consumer rights in cross-border trade. This article argues the dynamics of providing adequate choice of law rules on consumer contracts to inform suitable mechanisms on consumer interest within the AfCFTA. The article discusses the abuse of choice of law clauses in consumer contracts, affecting consumers’ rights in cross-border contracts within the AfCFTA. It suggests a harmonised consumer protection policy to regulate and mitigate these clauses. The article also examines trends in Global North jurisdictions like the European Union to inform a context-specific institutional framework for the AfCFTA’s choice of law rules.

Setting Sail with the Rome I Regulation, Article 5 and Cross-Border Contracts of Carriage

Setting Sail with the Rome I Regulation, Article 5 and Cross-Border Contracts of Carriage

Transformation of several issues of exemption from obligations under cross-border and domestic contracts due to COVID-19: analysis of judicial practice

The COVID-19 pandemic has completely changed the entire life of the society. Today, the world witnesses the third wave of the COVID-19 pandemic. This is evidenced by the steadily increasing number of new cases of contamination. Despite the difficult situation, every day merchants continue to conclude cross-border and domestic contracts. Therefore, the issue of exemption from obligations due to the onset of the consequences of the COVID-19 pandemic is relevant and requires detailed consideration. We propose to analyze two concepts, namely, force majeure and a significant change in circumstances (hardship), in order to analyze the judicial practice (case law) developing at the international level in different countries and at the national level in the Russian Federation. The article analyzes international acts of both state and non-state regulation, examines the approaches of foreign state courts to the issues of exemption of counterparties from fulfilling obligations due to the onset of the consequences of the COVID-19 pandemic and practice of Russian courts. The study was conducted using general scientific and special methods of cognition: logical, systemic-structural, methods of generalization, synthesis, induction, and deduction. Certain substantive conclusions are made based on the comparative research method. Analysis of the Russian judicial practice concerning the application of the concept of exemption from the fulfillment of obligations shows that, unfortunately, Russian courts apply dual practice regarding recognition of a particular circumstance as a basis for releasing a counterparty from liability. This is explained by the fact that the principle of pacta sunt servanda (contracts must be executed) continues to be of decisive importance in international practice. With regard to the second concept application, namely, a significant change in circumstances, we note a positive practice of Russian courts. Currently, the Russian courts recognize the circumstance that affected performance under the contract due to the onset of coronavirus infection or consequences of the COVID-19 as a significant change in circumstances.

EU Private International Law on the Law Applicable to Cross-border Contracts involving Weaker Contracting Parties

EU Private International Law on the Law Applicable to Cross-border Contracts involving Weaker Contracting Parties

Rethinking choice of law and international arbitration in cross-border contracts: a roundtable with stakeholders

Rethinking choice of law and international arbitration in cross-border contracts: a roundtable with stakeholders

Traditional Procurement versus Public-Pivate Partnership: A Comparison and Synergies with Focus on Cross-border Contracts

Abstract Government purchases represent an important part of the world economy. Selling to the public sector is a key business activity for certain industries or service providers. The public procurement segment’s attractiveness is also underlined by the security of payment and large extent of supplies. With globalisation as a worldwide phenomenon, businesses do not have to rely only on domestic institutions; they can enter international B2G markets as well. However, the ability of private companies to do business with foreign governments is limited by various national legislations as governments settle the procurement regulation with respect to their national interests. In the following overview article, the authors analyse the two main and typical procurement types – traditional procurement and public-private partnership – with regard to recent development trends, international regulatory framework, opportunities and barriers to entry for European businesses. The main goal of the paper is to define, based on this analysis, the main differences and possible synergies of the traditional procurement and public-private partnership while focusing on cross-border contracts. This paper can be regarded as useful for business, academia as well as the public sector.

СУБ’ЄКТНИЙ СКЛАД ДОГОВОРУ УМОВНОГО ДЕПОНУВАННЯ (ЕСКРОУ) В УКРАЇНІ ТА ІНОЗЕМНИХ КРАЇНАХ: ПОРІВНЯЛЬНО-ПРАВОВИЙ АСПЕКТ

Стаття присвячена аналізу суб’єктного складу договору умовного депонування (ескроу) в Україні та іноземних країнах. Досліджено схожі та відмінні риси в суб’єктному складі договору умовного депонування (ексроу) в законодавствах України та іноземних країн. Автором також сформульовано рекомендації щодо врахування зарубіжного досвіду стосовно суб’єктного складу відповідного договору в правовій системі України. Автор вбачає за доцільне звернути увагу на можливість розширення кола суб’єктів, котрі можуть виступати ескроу-агентами в Україні. Це необхідно задля того, щоб не виникла ситуація, коли юридичне поняття «договір ескроу» неможливо було тлумачити в рамках національного права. Стосовно ж інших суб’єктів договору ескроу – депонента і беніфіціара, то вважаємо нинішнє регулювання їх в ЦК достатнім і таким, що відповідає міжнародним потребам і стандартам

POTENTIAL UNIFICATION IN THE FIELD OF CROSS-BORDER CONTRACTUAL RELATIONS IN THE BRICS COUNTRIES

The article is devoted to the peculiarities of regulation of cross-border contractual relations that are being developed within the BRICS countries in compliance with universal international treaties. The author has outlined the prospects and problems with which traders from BRICS countries are facing when concluding contracts. International treaties, which contain, above all, uniform substantive rules, play a great role in concluding cross-border contracts. However, all the BRICS countries are member-states to very few treaties. The author of the article has revealed that such conventions still exist, although not only in the contractual field. The article pays special attention to the peculiarities of application of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, the Cape Town Convention on International Interests in Mobile Equipment of 2001 and, indeed, the Vienna Convention on Contracts for the International Sale of Goods of 1980 (although only three BRICS countries are involved, it can also be applied to India and South Africa).

The Emergence of International Commercial Courts in India: A Narrative for Ease of Doing Business?

The liberal globalised order has brought increased focus on the regulation of international commerce, and especially dispute resolution. Enforcement of contracts has been a concern largely owing to the insufficiencies of the legal systems, especially relating to the institutional structure, and it holds true for India as well. The commercial courts mechanism – international and domestic – with innovative features aimed at providing expedited justice is witnessing much traction. India, similar to many other jurisdictions, legislated in favour of specialized dispute resolution mechanisms for commercial disputes that could help improve the procedures for enforcement of contracts. This research attempts to critique the comparable strengths and the reform spaces within the Indian legislation on commercial courts. It parses the status of commercial dispute resolution in India especially in the context of cross-border contracts and critiques India’s attempt to have specialised courts to address commercial dispute resolution.

Content and Characteristics of a Cross-Border Construction Contract

The paper deals with the problems of legal regulation of relations arising due to a cross-border construction contract. The author substantiates the presence of the characteristics distinguishing a cross-border construction contract from the related private law agreements. Based on the results of the legal doctrine and arbitration practice study the author identifies a number of new features.The most important aspects disclosed by the author in the paper concern the theoretical and practical aspects of determining the content of the characteristics of a cross-border construction contract, distinguishing it from other private law contracts.The author makes a conclusion on the formation of new constitutive features of a cross-border construction contract and the possibility of assigning a cross-border construction contract to a separate, independent type of sui generis contracts.

ESSENCE AND LEGAL NATURE OF THE CROSS-BORDER CONSTRUCTION CONTRACT

The article gives a thorough analysis of various means of regulation of trans-border private law issues, including trans-border construction activities, based on a contract. The author analyses the sources of law, applicable in the sphere of construction, their types and specific areas of application with regard to practice. Analysing the sources of international and national law, the author comes to the conclusion that it is necessary to take into account their specifics and development tendencies when drafting cross-border construction contracts. The author compares international and national sources of law, types of regulation at conventional and national levels and comes to the conclusion that the conventional and national sources of law are closely interconnected. Private international law; standard form contracts; construction contract; lex mercatoria; construction activity regulation, international convention, conventional regulation, conflict of laws, foreign trade transactions, standard contracts; contract, building contract; lex mercatoria; regulation of construction activities.

Fair Allocation of International Jurisdiction over Consumer Contracts

The Brussels Ia Regulation leaves businesses no feasible option for a choice of jurisdiction in cross-border B2C contracts. The recent judgment by the European Court of Justice in the Ryanair case confirms that the Court will not tolerate any attempts to circumvent the regulatory aim of effective consumer protection detailed in the Regulation. However, this consumer-friendly approach comes with some notable disadvantages that affect not only companies engaged in cross-border commerce, but the European Single Market as well. Innovations in procedural technology offer ways to cushion such drawbacks and relieve the pressure of assigning international jurisdiction to the domicile of one or the other contractual party.

General Principles and Convention on Contracts for the International Sale of Goods (CISG) – Uniformity under an Interpretation Umbrella?

Globalization and digitalization of international sales creates needs to harmonize rules of international commercial contracts. The question is whether the harmonization should be done by binding rules or using soft law tools or through digitalization. In this article I argue on favor of harmonization through international contracts law rules ’ international interpretation. The international interpretation principles used in this article are found from on Art. 7(1) of the Convention on Contracts for the International Sale of Goods (CISG) which sets three interpretation rules: international character; promoting uniformity; and observance of good faith in international trade. These principles are not only principles of the CISG, but also principles commonly recognized in international commercial practice and also in domestic contract rules. I argue that by adopting an international interpretation umbrella – the meta-principle of international interpretation, cross-border contracts could be interpreted under the same principle no matter applicable substantial law. The meta-principle functions as an interpretation umbrella covering general principles and Articles of the CISG, general principles of international commercial contracts, Lex Mercatoria, and cross-border contract provision under national law. The outcomes points out that arbitral tribunals have interpreted general principles of the CISG and Lex Mercatoria in various ways. General principles and their application in case law is analyzed in connection with the Civil Code of the Russian Federation. Tribunals found that general principles of the CISG are applicable even if the CISG is not. It follows Art. ’s 7(2) logic to promote international standard to cross-border contracts where the closes connection is international commercial practice rather than any national jurisdiction.

Unidroit Principles of International Commercial Contract as the Rules of Law Governing Cross Border Contracts

Unidroit Principles of International Commercial Contract as the Rules of Law Governing Cross Border Contracts

Islamic Banking in Malaysia: Arbitration Resolution of Financial Disputes and Obstacles to its Spread

Purpose: the article examines the main problems associated with the extension of arbitration of domestic and international Islamic financial disputes in Malaysia. These include the specific features of the legal regulation of Malaysia, excluding the resolution of certain categories of cases by way of arbitration, and the lack of legal certainty in the submission of cross-border contracts in the field of Islamic banking to Sharia law. To achieve this goal in the article you must accomplish the following tasks: to determine whether there are institutions in Malaysia providing arbitration services for disputes in the field of Islamic banking; investigate the reasons for the unwillingness of the parties to a financial dispute to transfer it to arbitration; to identify the main problems of transferring a cross-border financial dispute to international arbitration; to study the practice of international arbitration on this issue. Methods: this article is based on an interdisciplinary concept of research, which allowed to distinguish the distinctive features of the legal regulation of the settlement of financial disputes in Malaysia. Results: currently the popularization of arbitration permits for domestic and international financial disputes in Malaysia faces difficulties due to both internal reasons and the traditional approach of Islamic banks to include in contracts the reservation of subordination of the provisions of the contract to the law of England or the United States in conjunction with the reservation clause financial disputes in the courts and arbitration of these states. Nevertheless, one can assume with great confidence that, following the development of Islamic banking, so-called Islamic arbitration will spread in Malaysia. Conclusions and Relevance: the materials outlined in the article show the special role of arbitration in resolving domestic and international disputes in the field of Islamic banking. Practical application of its results will improve the Russian legislation in the sphere of resolving financial disputes.

Networked liabilities: Transnational authority in a world of transnational business

The proliferation of production networks and cross-border contracting is frequently cited as empowering globally active corporations to skirt, and shape, national regulations. While scholars often focus on the political gains from these new forms of business organization, we shift the conversation to the potential political costs of global firm reorganization. The spread of corporate subsidiaries and global supply-chain networks leave firms vulnerable to a host of jurisdictional claims, and by targeting a domestically rooted affiliate, states can bring the global practices of the multinational corporation in line with their interests. In other words, states can take advantage of the transnationalization of the firm to transnationalize their authority beyond traditional jurisdictional boundaries. We label this process “networked liabilities.” Specifically, the combination of a firm’s sunk costs and the country’s jurisdictional substitutability determines the ability of governments to exert demands on multinational corporations. A key contribution of the article is to better specify the relationship between mobility and authority and to illustrate that networked liabilities can further empower a variety of states beyond traditional economic powers like the US or the European Union. We further highlight when firms may curtail the authority of great powers. The growing reach of the regulatory state domestically, coupled with the transnationalization of the firm, creates an increasing number of tools for certain governments to engage in economic statecraft beyond their borders. Our findings, then, contribute to debates on business–government relations in a globalized world, the changing nature of political risk, and the deterritorialization of state authority.

Meet the Flexperts! How to bring in expert contributions around the contract in support of commercial interests

The purpose of this paper is to highlight difficulties currently facing cross-disciplinary experts attempting to collaborate around commercial contracts in large businesses, and to suggest a means of addressing this in order to ease the process and enhance the client experience. The paper tells the story of a deal in short chapters, intercut with background explanations and reflections on the challenges and the solutions. This unusual approach in an academic essay allows the author to share a vision within a little-known commercial sector – reinsurance – which serves as a paradigm for complex cross-border contracting. This vision intends to provoke thinking and does not have the ambition of proving one approach over another. The author’s recommendation is an investment in a backbone technology allowing knowledge sharing, and a change in mindset which the author refers to as ‘Flexpertise’ to align the views of individuals to the view of the company.