Simplifions !

(Liste de discussion Juriconnexion) Bonsoir la Liste, La semaine se termine par un feu d'artifice de mesures de simplification - 3ème comité interministériel pour la modernisation de l'action

Editors’ Note

The American Journal of Comparative Law - sam, 2018/04/21 - 01:00
We have the pleasure of introducing this sixty-sixth volume of the American Journal of Comparative Law. This volume marks the fifth year of our tenure as Editors-in-Chief, as well as the fifth year that the Journal is hosted jointly at the Georgetown University Law Center and the McGill University Faculty of Law. This new volume is also the second one to be published by Oxford University Press.

Understanding Usage in International Contract Law Harmonization†

The American Journal of Comparative Law - jeu, 2018/03/22 - 01:00
AbstractThe importance of usage, especially trade usage, is uncontested. What has, however, been controversially discussed is how to explain its binding force. A contractual understanding explains it on a contractual basis: usage becomes part of the contract. In contrast, a normative understanding treats usage as a legal norm that is binding on the parties independent of being included in the parties’ agreement. The trend in international contract law harmonization is towards the normative understanding. The Article analyzes both understandings in instruments on international contract law harmonization and from practical and comparative perspectives, in order to provide a fuller comprehension of them. It then criticizes the normative understanding from theoretical, doctrinal, and historical perspectives. Finally, the Article fully explains the contractual understanding of usage and tests it from the perspective of an economic analysis of law. The conclusion of the Article is simple: the contractual understanding of usage is to be preferred.

A Response to Chibli Mallat

The American Journal of Comparative Law - mer, 2018/03/21 - 01:00
The Arab Spring is, as its subtitle indicates, an “essay” on ideas about revolution and constitutionalism.11 We chose the term “essay” deliberately, to signal that the book offers reflections and speculations on ideas important to thinking about constitutional law. The essay was occasioned by the form that constitutional transformation took—or failed to take—during the Arab Spring. Although several chapters present rather detailed accounts of how constitutional provisions evolved during the process, we did not purport to offer a “deep dive” into each of the jurisdictions. We thought that we offered, in Professor Mallat’s words, “a more abstract, less grainy perspective,”22 but apparently we failed adequately to convey that intention.

Antoni Abat i Ninet & Mark Tushnet, The Arab Spring: An Essay on Revolution and Constitutionalism

The American Journal of Comparative Law - mar, 2018/03/20 - 01:00
NinetAntoni Abat i & TushnetMark, The Arab Spring: An Essay on Revolution and Constitutionalism (Edward Elgar, 2015)

The Hague Choice of Law Principles, CISG, and PICC: A Hard Look at a Choice of Soft Law†

The American Journal of Comparative Law - mar, 2018/03/20 - 01:00
AbstractThe Hague Principles on Choice of Law in International Commercial Contracts are “soft” private international law rules. They empower parties to choose either state law or soft “rules of law” to govern their contract, regardless of whether they litigate or arbitrate. This Article investigates the relationship between the Hague Principles and two sets of rules of law that parties may choose: the UNIDROIT Principles of International Commercial Contracts (PICC) and the United Nations Convention on Contracts for the International Sale of Goods (CISG). It makes three principal claims. First, the nature of the Hague Principles and their relationship with the PICC or the CISG give rise to several normative ambiguities which need clarification. Second, since the Hague Principles do not limit the parties’ ability to divide their contract at a choice of law level (horizontal dépeçage ), parties can influence not only which rules of law govern the contract but also their content. This is undesirable as a matter of principle. It may also facilitate results which the PICC and the CISG do not intend. Third, the Hague Principles provide that the law that the parties purportedly chose determines whether the parties agreed on a choice of law. They also provide a mechanism which designates the law that the parties purportedly chose in standard contract terms. Applied to rules of law, the suitability of these provisions is questionable: alternatives should be explored.

Cross-Border Insolvency and Admiralty: A Middle Path of Reciprocal Comity

The American Journal of Comparative Law - sam, 2018/03/17 - 01:00
AbstractThe law relating to cross-border insolvency is largely founded on the concept of universalism, which requires all claims against the insolvent debtor to be marshaled together in one country, usually that of the debtor’s principal place of business. Any assets of the insolvent debtor that are found in other countries are to be brought into the insolvency proceedings, so that a single, orderly management of claims and assets can take place under the control of the court in which the insolvency proceedings have been opened. In stark contrast, admiralty law has for centuries protected the interests of claimants by allowing them to seize maritime assets such as ships by judicial process in order to satisfy their claims from the seized assets, even if (indeed, especially if) the owner of those assets has entered insolvency proceedings in another country. At first sight, the underlying imperatives of these two bodies of law appear to be irreconcilable. This Article proposes a middle path, according to which neither the country in which insolvency proceedings have been opened nor the country in which admiralty proceedings have led to the seizure of maritime assets should be required unconditionally to concede precedence to the legal proceedings pending in the other. The middle path is one of reciprocal comity, both between the countries in which the parallel proceedings are pending, and also between the two bodies of insolvency law and admiralty law.

Kevin Saunders, Free Expression and Democracy: A Comparative Analysis

The American Journal of Comparative Law - sam, 2018/02/24 - 01:00
Kevin Saunders, Free Expression and Democracy: A Comparative Analysis (Cambridge University Press, 2017)†