Issues Of Contract Law Research Articles

SHAREHOLDERS’ AGREEMENTS AND UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS

The article examines the issue of the foreign law as an applicable law of shareholders’ agreement at companies established under the laws of Ukraine. The emergence of shareholders’ agreement in the legal system of Ukraine, as well as the changes that have taken place during the last decades regarding the possibility of applying foreign law to contractual corporate relations, have been studied. Because of authority of English common law among Ukrainian legal practitioners, there is an attitude among them to choose it as the foreign law that will be applied to shareholders’ agreement. At the same time, there are significant differences in the basic principles of common law and continental legal family, which includes the legal system of Ukraine. On the other hand, the law of Ukraine will remain the applicable law for the rest of corporate relations in the relevant companies insofar as it is its lex societatis (i.e. everything with except of obligations of the parties to the shareholders’ agreement). Taking into account all the above, a conclusion was made to introduce a document equidistant from both legal systems and able to ensure a high quality regulation of general issues of contract law, namely the UNIDROIT Principles of International Commercial Contracts, among instruments providing regulation of relations under shareholders’ agreement. It is proposed to use one of the standard UNIDROIT clauses in order to determine the hierarchy between the provisions of foreign national law and the UNIDROIT Principles, as well as their correlation with the provisions of the shareholders’ agreement itself. It was also concluded that the UNIDROIT Principles might be applied to shareholders’ agreement even in the absence of a foreign element to establish a regulation of a contractual relations at the level of the best international standards.

Surrogacy in the Republic of Kazakhstan: A theoretical and legal perspective on legislative regulation improvements

A comprehensive understanding of medicine and psychology is indispensable for successful surrogacy practices. This paper aims to provide a qualitative assess-ment of modern Kazakhstan's legislative regulation of surrogacy in light of con-temporary challenges. This paper intends to highlight some aspects of surrogacy law that have not been adequately expressed in Kazakhstan contract law. The study revealed that a number of issues in this area are not regulated by law in Ka-zakhstan, creating legal gaps and potential contract law issues. Preparing a docu-ment or official commentary addressing many issues in contractual relationships pertaining to surrogacy contracts could be an essential solution. Family and healthcare lawyers will find the information in this paper useful for their practices.

Contract Law Solutions for Digitalized Cross-Company Value Networks in Industry 4.0: Part 2: Contract Law

The original German version of this text is available at http://ssrn.com/abstract=3767069 This series of papers deals with issues of contract law in Industrie 4.0. It is based on the law of the Federal Republic of Germany. Part 1 introduces the topic and explains the legal problems that arise in Industrie 4.0. Part 2 deals with issues of contract law: How are contracts concluded among autonomous software agents, what types of contracts come into question, and how must general terms and conditions be structured. Part 3 looks at issues of licensing law and intellectual property in data. Part 4 looks at the liability of autonomous systems in Industry and provides an outlook on possible future solutions. Industrial production is increasingly taking place in digitized value chains in which numerous independent companies cooperate in digital networks. Within the framework of such cross-company cooperation, industrial manufacturing processes autonomously manage themselves via integrated IT networks. This control increasingly makes use of intelligent systems that act either as autonomous software agents, in conjunction with humans or networked with other computers and machines. In addition to the industrial production process itself, parallel workflows of streams need to be handled, which is becoming more and more important. This results in specific situations and risks. Essentially, the questions to be answered are: • which legal status can be attributed to dataii that is generated in the production process, and • how can the liability in cross-company digital production networks be assessed and mitigated. In the absence of legislation, case law and technical standards that satisfactorily regulate these issues, contractual solutions are required between the cooperation partners in B2B (business-to-business) transactions, for which some approaches are outlined here. Key findings: • The multi-dimensionally networked industry 4.0 is approaching the limits of our bilateral understanding of contracts due to the virtualisation technologies used. • Data, and in particuliar industrial machine data, have no rights in rem attached. There is no data ownership. Although is legally protected in several respects, this protection remains fragmentary and incomplete. • Rights to must therefore be assigned by contract: It is advisable to follow the standards set by licence agreements from copyright law. Such contractual rights and obligations are only effective inter partes, but never in rem towards everybody. Data usage contracts must therefore be accompanied by effective technical and organisational measures for the de facto protection of data. • The German law on General Terms and Conditions, may regard liability limitations as ineffective even in business transactions. This, choice of foreign law clauses should be considered in the contract negotiations. • The networking of people, machines, virtualised and autonomous information technology systems makes it more difficult to attribute responsibility and prove causality. In the area of contractual liability, proof and presumption rules can be agreed. De lege ferenda, a compulsory insurance of the manufacturers and professional users as beneficiaries of such systems seems to make sense. • In all regulations, care must be taken to ensure that the right incentives for due diligence are in place for all parties involved.

Contractual Solutions for Digitalized Cross-Company Value Networks in Industry 4.0 - Part 1: Introduction

This series of papers deals with issues of contract law in Industrie 4.0. It is based on the law of the Federal Republic of Germany. Part 1 introduces the topic and explains the legal problems that arise in Industrie 4.0. Part 2 deals with issues of contract law: How are contracts concluded among autonomous software agents, what types of contracts come into question, and how must general terms and conditions be structured. Part 3 looks at issues of licensing law and intellectual property in data. Part 4 looks at the liability of autonomous systems in Industry and provides an outlook on possible future solutions. Industrial production is increasingly taking place in digitized value chains in which numerous independent companies cooperate in digital networks. Within the framework of such cross-company cooperation, industrial manufacturing processes autonomously manage themselves via integrated IT networks. This control increasingly makes use of intelligent systems that act either as autonomous software agents, in conjunction with humans or networked with other computers and machines. In addition to the industrial production process itself, parallel workflows of streams need to be handled, which is becoming more and more important. This results in specific situations and risks. Essentially, the questions to be answered are: • which legal status can be attributed to dataii that is generated in the production process, and • how can the liability in cross-company digital production networks be assessed and mitigated. In the absence of legislation, case law and technical standards that satisfactorily regulate these issues, contractual solutions are required between the cooperation partners in B2B (business-to-business) transactions, for which some approaches are outlined here. Key findings: • The multi-dimensionally networked industry 4.0 is approaching the limits of our bilateral understanding of contracts due to the virtualisation technologies used. • Data, and in particuliar industrial machine data, have no rights in rem attached. There is no data ownership. Although is legally protected in several respects, this protection remains fragmentary and incomplete. • Rights to must therefore be assigned by contract: It is advisable to follow the standards set by licence agreements from copyright law. Such contractual rights and obligations are only effective inter partes, but never in rem towards everybody. Data usage contracts must therefore be accompanied by effective technical and organisational measures for the de facto protection of data. • The German law on General Terms and Conditions, may regard liability limitations as ineffective even in business transactions. This, choice of foreign law clauses should be considered in the contract negotiations. • The networking of people, machines, virtualised and autonomous information technology systems makes it more difficult to attribute responsibility and prove causality. In the area of contractual liability, proof and presumption rules can be agreed. De lege ferenda, a compulsory insurance of the manufacturers and professional users as beneficiaries of such systems seems to make sense. • In all regulations, care must be taken to ensure that the right incentives for due diligence are in place for all parties involved. [ The original German version of this text is avialable at Contratcual Solutions for Industry 4.0. Part 1: Introduction by Arnold J. F. Lukas, LL.M. :: SSRN ]

Health Crises and the Limited Role of Contract Law

The COVID-19 pandemic of 2020-21 has focused our attention on contract law’s response when unanticipated circumstances make performance impractical or frustrated or performance would cause harm to the public. The pandemic has disrupted contracts between landlord and tenant, employer and employee, universities and students, to name a few, but has contract law provided a clear path to determine who must bear the risk of loss of such events? The purpose of this essay is to suggest that current contract law’s many and varied, sometimes even contradictory, rules and principles relevant to shaping a response to a health crisis can offer only limited guidance to courts and lawyers in the challenging cases. Further, contract law’s uncertainty in these cases reinforces the more general perspective that judicial decisions in contract cases (and more generally) often depend, not on doctrine, but on a pragmatic analyses of the facts, policies and equities. Although this taste of realism is not a revelation, in fact, there may be no better example of the limits of contract law, as administered by courts, than its response to contract disputes during a public health crisis.Part I of this essay inventories the plethora of contract law issues raised when a health crisis makes performance problematic and when no federal or state regulation is in place to resolve the dispute. Part II assesses what such circumstances reveal about the nature of contract law: First, contract law’s set of responses reinforce legal theorists who have long argued that, at least in hard cases, contract law is subjective and uncertain. Second, contract law’s main contribution in such cases is to identify the questions that should be asked and to provide a roadmap to follow. Part III, the Conclusion, offers a word about post-pandemic contract law.

Contracts In Brief

The contract is the very foundation of business law. Contracts define our everyday lives, whether we rent a car, buy or sell a home, hire someone to paint our house, or enter into an employment relationship. What situations are governed by application of the relevant state’s version of the Uniform Commercial Code (UCC)? And, what contracts are governed by common law? In the most basic of terms, the necessary requirements for a valid, enforceable contract under common law are: agreement, consideration, capacity and legality. Our purpose in writing this brief article is to acquaint students with a twenty minute or less read about basic concepts in contract law. First, we discuss governing law considerations; when the Uniform Commercial Code (UCC) applies and when to employ common law. Second, is a description of consideration and related issues. Third, we talk about capacity. Fourth, is the requirement for a legal purpose. Fifth, we provide samples of some common contracts. Sixth, we focus on developing contemporary issues in contract law. And last, we conclude. We believe this summary is helpful to contract pedagogy and offers students a useful overview.

Legal Issues Related to the Commercial Exploitation of Apps

Mobile applications (Apps) are a billion-dollar industry with myriad uses in everyday life. To ensure the successful commercialization of apps, one must study the peculiarities of the Apps market. Contract law issues and copyright law issues related to mobile apps are at the epicenter of this problematic. In the first part of the paper, the various actors engaged in the distribution of applications are identified and the role of the app stores as online platforms - marketplaces is analyzed. The End-user (consumer) is the reference point of the legal approach to interpret the relations created and classify the contract typology. In addition, the operational and technical functionalities of an app store, the terms and conditions, its organizational structure, the types of applications ‘sold’ or ‘licensed’ and payment methods applied, are several of the factors which are weighed upon, in an attempt to define the legal provisions applied on a national level. The second part of the paper focuses on copyright law issues arising from the fact that apps fall under the definition of software. In particular, the evolution of traditional copyright concepts such as the ‘exhaustion of rights’ and ‘first sale’ doctrine, in the context of App Markets, are analyzed. The analysis conducted indicates that, for the time being, application of traditional rules in the app environment does not contribute to legal certainty. Ad hoc cases which would constitute res judicata are rare. Rather, the solution must be sought on a case-by-case basis, and by careful consideration of multiple factors, including organizational and technical characteristics of the app stores.

CONTRACT FORMATION AND IMPLIED TERMS

WELLS was struggling to sell some flats. He mentioned this to a neighbour, who put Wells in touch with Devani. Wells and Devani spoke over the telephone. The trial judge found that Devani told Wells that he was an estate agent, and his usual commission was 2% + VAT. Wells agreed to this, but the parties did not expressly agree upon what was to trigger the commission. Devani subsequently introduced a purchaser to Wells who bought the flats. Was there a binding contract between Wells and Devani? Lewison and McCombe L.JJ. answered “No” (Wells v Devani [2016] EWCA Civ 1106, [2017] Q.B. 959). The trial judge and Arden L.J., dissenting in the Court of Appeal, answered “Yes”. The Supreme Court has granted permission to appeal. It is to be hoped that the Justices will clarify the important issues of contract law raised by these simple facts and allow the appeal.

ORGANIZACJA W CHMURZE. WYBRANE ZAGADNIENIA 7 PRAWNOKONTRAKTOWE

ORGANIZACJA W CHMURZE. WYBRANE ZAGADNIENIA 7 PRAWNOKONTRAKTOWE

АНАЛІЗ СТАНУ НАДРОКОРИСТУВАННЯ У НАФТОГАЗОВІЙ ГАЛУЗІ УКРАЇНИ, ПРОБЛЕМИ ТА АКТУАЛЬНІ ЗАДАЧІ

The article deals with the need to restructure and modernize Ukraine's economy in modern conditions. The analysis of the distribution of licenses for oil and gas and mineral resources specified in breach implementation phases and stages of exploration for oil and gas. Identified reserves and ways to increase production of oil and gas in Ukraine. Addressing subsoil causes a number of current problems of oil and gas subsoil use, namely, rational use, planning the optimal approaches and methods of process mineral resources, the need to increase the volume of exploration work in the extraction of mineral resources in Ukraine, etc. Key words: subsoil use, license, special permit, oil and gas region of Ukraine References Valyaev B.М., Dmitrievskiy А.N. 1991. The unity of the genesis of fossil fuels - a new basis. Degassing of the Earth and Geotectonics. Abstracts of the III All-Union Conference. M., Nauka, P. 124-126 (in Russian). Yevdoschuk M.I., Stryzhak V.P., Zits A.P., Vasilinenko L.M., Klochko V.P. 2013. Recent job subsoil oil and gas industry in Ukraine. Mineral resources of Ukraine. № 4. P. 41-44 (in Ukrainian). Stages and stage of exploration for oil and gas. 1999. Ukraine Committee on Geology and mineral resources. Kyiv. 17 p. (in Ukrainian). Klyukin V.D. 2000. Mining relations in Western Europe and America. Publishing house Gorodets, 180 p (in Russian). Koldaev S.V. 2003. The contractual forms in subsoil use on the right of Russia and foreign countries. Some issues of contract law of Russia and foreign countries. Collection of papers of graduate students and young scientists. Edited by T.E. Abovoi. Moskow, P. 169-175 (in Russian). Lukin A.E. Hydrocarbon potential of the great depths and perspectives of its development in Ukraine. Bulletin of the National Academy of Sciences of Ukraine. 2014. №5. P. 31-36 (in Russian).https://doi.org/10.24028/gzh.0203-3100.v36i4.2014.112455 Martynenko I.I., Krasnozhon M.D., Pryharina T.M., Starinskiy V.A., Unic N.V. 2015. The fund oil and gas facilities in the regions of Ukraine as of 01.01.2015 p. Kyiv, UkrDGRI, 49 p. (in Ukrainian). Oil and gas sector in Ukraine: progress and individual. 2012. Kyiv, Logos Ukraine, 327 p. (in Ukrainian). Rudko G., Kurilo M., Radovanov S. 2011. Geological and economic evaluation of mineral deposits. Kyiv, ADEF-Ukraine, 367 p (in Ukrainian). Shpak P.F. 1996. Ukraine oil and gas issues and ensure its hydrocarbons. Geological journal. №1-2. P. 113-117 (in Ukrainian). Yudin V.V., Gerasimov M.E. Fold-thrust structures and petroleum potential of the south of Ukraine. Materials of scientific nauk-practical conference. «Science and Gas Ukraine». Kharkiv, Ukrainian Oil and Gas Academy, 1996. Vol. 1. P. 220-222 (in Russian).

The PRC Contract Law and its Unique Notion of Subrogation

This paper briefly introduces a recent history of the development of the Chinese contract law. It then analyses various specific contract law issues including formation of the contract, liability for breach of contract and the notion of subrogation. This paper finds that PRCs contract law presents a hybrid version with key concepts from both Common law tradition and the Civil law tradition. This hybrid is however unique in the way of enforcing contracting parties rights/obligations in many contract matters. Unfortunately, without a proper case recording system in the jurisdiction, the unique Chinese legal method is somehow difficult to solve complex contract issues. This paper then argues further that there is a need to update the current system in the law of contract, particular in dealing with the right of subrogation.

Empirical Analysis of Legal Theory

Empirical analysis of dispute resolution terms in commercial contracts provides information about theoretical issues in contract law. These clauses are adopted at a time when the parties share an interest in maximizing the value of the contract. The analyst can examine the pattern of contracting behavior and infer that the choices made by sophisticated parties will tend to represent efficient arrangements.

The Federalization of Consumer Arbitration: Possible Solutions

Over the past fifteen to twenty years, businesses dramatically increased the use of arbitration clauses in contracts with consumers. Although commentators criticize the use of arbitration to resolve consumer disputes because arbitration lacks the due process protections inherent in traditional litigation, efforts to regulate or eliminate the use of arbitration in this context have failed miserably. This failure is due in large part to the Supreme Court’s embrace of arbitration and the corresponding lack of federal legislative interest in addressing this issue. The Supreme Court’s arbitration jurisprudence, particularly as it applies to consumer disputes, is the surest example of the “federalization” of an area of law that federalism principles dictate traditionally belong to the states. Interpreting the Federal Arbitration Act (FAA), the Court routinely applies a preemption doctrine that effectively precludes states from regulating the use of arbitration to resolve consumer disputes. As a result, enforcement of state laws regulating the use of arbitration to resolve consumer disputes has become the exception rather than the rule.This Article will focus on the Supreme Court jurisprudence that led to the current situation in which state law plays a minimal role in arbitration doctrine. While state legislatures traditionally regulate contract law issues, the Supreme Court’s interpretation of the FAA has resulted in an anomalous situation in which federal law routinely trumps state laws attempting to reform arbitration. The Article will also explain how the Court’s Stolt-Nielsen (2010) and Concepcion (2011) decisions took the anti-federalism approach a step further – by permitting preemption in areas the FAA does not address. This expansion of the preemption doctrine further undermines the states’ ability to substantively regulate arbitration by defining arbitration in a very specific way and then declaring preempted any regulation or decision that is not consistent with the definition. Moreover, this expansion, together with Congress’ lack of interest in regulating arbitration, makes it quite likely that private dispute resolution providers will be the only institutions able to reform the arbitration process. Recognizing that arbitration law is largely federalized, this Article will then identify a number of possible reforms private dispute resolution providers could implement and review one of the more promising avenues of reform – arbitrator opinion-writing – in greater depth. This reform would have a number of beneficial effects. It would provide transparency in the arbitration process, address problems perceived to exist in the arbitrator selection process, make clear whether the parties received due process during the arbitration, and ensure that awards are carefully considered and evidence properly balanced.

Atipikus szerződések Magyarországon és Szerbiában

The paper analyzes the notion and types of atypical contracts, primarily in the Hungarian andSerbian law, but also in wider, European perspective. The analysis sheds light on the differentterms used in different legal systems to denominate contracts that do not fit explicitly into therange of nominate contracts, that is into the range of contract-types envisaged by the civilcode or code of obligations, respectively. According to the Hungarian legal literature, all civillaw contracts are divided into two main groups: nominate and innominate contracts. Theformer group is further divided into the categories of typical and atypical contracts, while thelatter into the categories of mixed contracts and de facto innominate contracts.The authors conclude that there is a tendency in Europe, both in the jurisprudence, thelegislation and the application of law, to create a unified and coherent law of contracts, whichaffects the range of atypical contracts as well. Most notably, the Draft Common Frame ofReference, the normative proposal of the Study Group on a European Civil Code and theResearch Group on EC Private Law (Acquis Group), contains model rules on franchise, timesharing,commercial agency and treatment contracts, just as rules on electronic commerce, onthe one hand. The legislation of the European Union, on the other, aims at the highest possiblelevel of harmonisation of laws which, from the aspect of protection of consumers andcompetition law, affects the range and statutory content of atypical contracts. Finally, thepaper refers to a series of decisions of the Court of Justice of the European Union that tacklecertain features of the atypical contracts, whereby the Court in the determination of issues ofcontract law applies a rather functional approach.

Material adverse change and material adverse effect provisions: construction and application

This article examines the rules and principles of English law surrounding the construction and operation of material adverse change and material adverse effect provisions, with a particular focus on financing transactions. Such clauses raise a number of interesting issues of contract law and contractual interpretation; one of the key issues being the meaning and scope of “material”. It is argued that materiality ought to be interpreted in the context of the particular agreement and the transaction as a whole, without ignoring the remedial consequences that are to be triggered by the relevant provision. Numerous other issues that arise for consideration in relation to material adverse change and material adverse effect clauses are also critically examined.

Law, Economics, and Morality: Response to Critiques

In our book, Law, Economics, and Morality (OUP, 2010), we proposed to combine economic methodology and deontological morality through explicit incorporation of moral constraints into economic models. We argued that the normative flaws of economic analysis can be rectified without relinquishing its methodological advantages and that moral constraints can be formalized so as to make their analysis more rigorous. We then illustrated the implementation of constrained CBA in several legal fields, including contract law, freedom of speech, the fight against terrorism, and legal paternalism. In this paper, we respond to critical reviews of the book written by Professors Larry Alexander, Ariel Porat, and Avihay Dorfman. Among other things, we clarify the scope and goals of the book, elucidate the relationships between deontology and consequentialism, discuss the relationships between deontological constraints and options, and address various issues in contract law and remedies.

A Giant with Feet of Clay: A First Law and Economics Analysis of the Draft Common Frame of Reference (DCFR)

This paper contains the conclusions from the work of the Economic Impact Group (EIG), a part of the CoPECL Network of Excellence funded by the EU to prepare a Draft Common Frame of Reference (DCFR). Part 1 revisits basic principles which are central to the work of the whole group. For one, contract law is not just about remedying market failures, it is fundamentally a basic condition for markets to exist at all. Moreover, law and economics analysis looks for Pareto-efficiency and total welfare, without taking distributional considerations into account. Part 2 summarizes the contributions of the EIG members: they dealt with general issues of contract law (function of contract law, good faith, non-discrimination), the formation and interpretation of contracts (including standard terms), contractual performance (choice of remedies, standard for the assessment of damages), termination (including long-term contracts), specific areas such as insurance and consumer law, as well as non-contractual liability (interplay between contract and tort law, limits to extra-contractual liability). Part 3 draws general conclusions from these contributions. As regards the first question before the EIG (desirability of harmonization at European level), the costs of harmonization have been downplayed, so that the case for harmonization has probably been exaggerated, certainly as regards areas such a non-contractual liability where the DCFR cannot simply be an optional regime. As regards the second question assessed by the EIG (appropriateness of the provisions chosen in the DCFR), the work of the EIG reveals shortcomings: among others, rules have been formulated without a complete assessment of their rationales and the ex ante impact of the DCFR has been ignored. The drafters of the DCFR could have derived more added value from an economic analysis of their work than they seemed to acknowledge. Accordingly, while the DCFR is a momentous work of scholarship, it rests on fragile foundations.

The Issues of Contract Law Related with Life-Sustaining Treatment

The Issues of Contract Law Related with Life-Sustaining Treatment

Agreements to Negotiate in the Transnational Context - Issues of Contract Law and Effective Dispute Resolution

In international commerce, parties regularly include dispute resolution clauses into their contracts to make provision for future conflicts. Before being allowed to bring a claim in the respective state court or file a request for arbitration, the dispute resolution clause may require the parties to resort to structured negotiations or mediation. Only after such an attempt amicably to resolve the dispute has been made may they proceed to a final and binding decision by a court or an arbitral tribunal. As mediation is on its way to establish itself in the European landscape,1 parties – as a reaction to the institutionalisation of

Damages for Non-Performance and the Fault Principle

One of the controversial issues in contract law is whether damages for non-performance should be based on fault liability or strict liability. The article illustrates the functions of the fault principle in contract liability using the example of German contract law. While fault liability constitutes the rule, there is considerable room for exceptions, and in sum, the approach of German contract law can be characterised as a combinational system which balances the fault principle with countervailing principles. Not surprisingly, other legal systems that use strict liability as a rule allow for exceptions or limitations to liability too. The comparative survey provides the basis for an evaluation. While neither starting point, fault or strict liability, can claim to be clearly superior to the other, it is submitted that the fault requirement is a tool that conveniently allows for the necessary fine-tuning as the issues in question can be addressed directly and openly. Where a legislator considers a change from one system to the other, he carefully needs to assess the systematic implications and the compatibility of the alternative approach with established business practice.