Search result: 54 articles

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Ole Lando
Professor of Law, Copenhagen Business School; Chairman of the Commission on European Contract Law.

Christiana Dr. iur. Fountoulakis
Assistant Professor in Private Law University of Basel

Bruno Zeller
Ass. Professor, School of Law, Victoria University, Melbourne. Adjunct Professor, Murdoch University, Perth.

Christiana Dr. iur. Fountoulakis
Assistant Professor in Private Law, University of Basel

Fan Yang
Fan Yang, Research Fellow (MCIArb) LCIA (YIAG); PRC Representative of the Practice & Standards Committee, Arbitration Sub-Committee, Chartered Institute of Arbitrators; PhD Researcher (London) LL.M. (Birmingham) LL.B. (Shanghai) Certificate in International & Comparative Law (Cornell University (USA) & Universite Paris I - Sorbonne); Barrister (England & Wales, non-practising).
Article

Obituary - Peter H. Schlechtriem

Journal European Journal of Law Reform, Issue 1 2008
Authors Ingeborg Schwenzer and Frank Emmert

Ingeborg Schwenzer

Frank Emmert

Christiana Dr. Fountoulakis
Assistant Professor at the Faculty of Law, University of Basel

Pascal Hachem ACIArb
Referendar (Freiburg im Breisgau, Deutschland), Research and Teaching Assistant, Senior Assistant Global Sales Law, Chair of Private Law (Prof. Dr. Ingeborg Schwenzer, LL.M.), Faculty of Law, University of Basel, Switzerland

Hannes Rösler
Dr. iur. (Marburg), LL.M. (Harvard), Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany. The article is based on a talk given by the author at a conference in Skopje, Former Yugoslav Republic of Macedonia, as an expert of the German Foundation for International Legal Cooperation (IRZ-Stiftung).

Christiana Prof. Dr. iur. Fountoulakis
Fribourg

Ingeborg Schwenzer
Dr. iur., Prof. of Private Law, University of Basel, Switzerland.

Pascal Hachem
Dr. iur., Research Assistant and Lecturer, University of Basel, Switzerland.

    Even amongst those clauses frequently found in commercial contracts in general and sales contracts in particular, agreed sums enjoy exceptional popularity. Now, when I say ‘agreed sum’, of course I do not talk about the purchase price but about clauses that in traditional terminology are called penalty or liquidated damages clauses.


Pascal Hachem
Dr. iur. (University of Basel, Switzerland), ACIArb, Senior Researcher in the Global Sales Law Project at the Chair of Private Law held by Prof. Dr. Ingeborg Schwenzer, LL.M. and Lecturer of Comparative Private Law and International Trade Law at the University of Basel, Switzerland.

    Le droit uniforme de l’OHADA réglemente quelques contrats spéciaux des affaires: le bail; le courtage; la commission; le mandat de l’agent commercial; la société commerciale; le transport des marchandises par route; la vente commerciale. Hormis la société commerciale, seule la vente entre commerçants est longuement régie par 87 Arts. de l’acte uniforme relatif au droit commercial général (AUDCG) dans tous les détails de sa formation, son exécution, son dénouement. L’intérêt du législateur OHADA pour ce contrat se comprend pour, soit plusieurs raisons.


Joseph Issa Sayegh
Docteur en droit, ancien Professeur aux Universités de Dakar (Sénégal), de Nice (France) et d’Abidjan (Cote d’Ivoire).

    This paper will make the case for more widespread African adherence to the United Nations Convention on the International Sale of Goods, 1980 (“CISG”) on the ground that it represents an effort through the United Nations system to make available harmonised rules on the international sale of goods which are intended to have an international and universal reach. The paper begins with an introduction which briefly examines the origins of CISG and proceeds to discuss the relevance of CISG to Africa. It ends with a recommendation to African States to accede to, or ratify, the Convention.


S.K. Date-Bah
LL.B (Ghana), LL.M (Yale), Ph.D (London School of Economics), Professor of law. Justice at the Supreme Court of Ghana.

    Africa is a major source of commodities and other natural resources. However, such wealth has not yet led to economic development or to increased living standards. On the contrary, Africa remains underdeveloped while other regions of the world enjoy significant, if not spectacular, success. Between 1970 and 2008, the pro-capita income of African energy-exporting countries has increased 72%, while that of African Least Developed Countries has decreased 13%, and that of remaining African countries has increased 31%; in the same period of time, the increase in pro-capita income for South Asian and East Asian low income countries has been, respectively, 236% and 223%, and that of China a staggering 1,531%.


Luca G. Castellani
Legal officer with the UNCITRAL Secretariat, Vienna, Austria. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.

    The unification or harmonisation of laws and legal systems is not a new phenomenon. Schmitthoff describes the wave of national unification of commercial laws in Europe during the nineteenth century as a method of obtaining political unity. According to Faria similar results were achieved on a wider scale by the dissemination of English legal traditions throughout common law jurisdictions. What he describes as the “ultimate goal”, however, was the unification of private law, the benefits of which had been extolled by Lord Justice Kennedy as early as 1909.


Riekie Wandrag
LL.B., LL.M. (Free State University), LL.M. (Cambridge), Associate Professor of Law, University of the Western Cape.
Article

Is Africa Ready for Electronic Commerce?

A Critical Appraisal of the Legal Framework for Ecommerce in Africa

Journal European Journal of Law Reform, Issue 3-4 2011
Authors Nnaemeka Ewelukwa
AbstractAuthor's information

    It remains a daunting but not insurmountable challenge to actualize broad-based long term economic development in Africa. Statistics indicate that the poverty level in the continent is very high and the continent’s contribution to global trade remains very low in terms of export outflows. While acknowledging the negative aspects of Africa’s development however, it is important to note that the future may yet become brighter if key steps are taken by law and policy makers in the continent to put in place laws and policies that can facilitate the development process. One of the ways in which economic development can be facilitated is to significantly boost Africa’s contribution to global trade. In this regard, it has been noted that ‘After falling by 2.5% in 2009, export volumes of African countries are expected to increase on average by 3.2% in 2010 and by 5% in 2011.


Nnaemeka Ewelukwa
Dr. iur. (Queen Mary, London), Senior Teaching Fellow, International Trade Law, School of Oriental and African Studies, University of London (SOAS).
Article

Unification of General Contract Law in Africa

The Case of the UNIDROIT Principles of International Commercial Contracts

Journal European Journal of Law Reform, Issue 3-4 2011
Authors Stefan Vogenauer
AbstractAuthor's information

    The organizers of this conference kindly invited me to speak on the unification of general contract law and on one specific instrument in this area: the UNIDROIT Principles of International Commercial Contracts (‘PICC’).1xSee UNIDROIT International Institute for the Unification of Private Law, UNIDROIT Principles of International Commercial Contracts 2004, Rome, April 2004, available at <www.unidroit.org/english/principles/contracts/principles2004/integralversionprinciples2004-e.pdf>. I would like to use the 14 minutes allocated to my paper to touch on three issues. First, I will give a short overview of the PICC for those who are not yet familiar with this instrument. Secondly, I will look at the use of the PICC in legal practice. And thirdly, I will assess the potential of the PICC for making a contribution to the unification of general contract law in Africa. Overall, I can afford to be brief and limit myself to introductory comments because Ms Mestre of UNIDROIT will cover much of the ground in greater detail.

Noten


Stefan Vogenauer
Professor of Comparative law at the University of Oxford.

    When discussing regional and global unification of sales law it seems appropriate to briefly mention the globalisation of trade. The overall development of international trade over the last half century is startling. Although in Fall 2008 and persisting into 2009 there was a sharp decline worldwide – in 2009 alone the drop amounted to 12% –, preliminary figures indicate a strong rebound, with value of trade in 2010 said to expand by 9,5% compared to 2009. WTO figures for 2008 indicate that worldwide merchandise export trade amounted to 15,717 billion USD and worldwide merchandise import trade to 16,127 billion USD. These figures are approximately 100 times more than 45 years ago and more than 10 times the level at the time of the signing of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) in 1980. The average annual growth from 2000 to 2008 was more than 5% for both exports and imports worldwide. No longer is the highest growth found in North America, Europe and Japan, but instead it is the transition economies from different points of the globe – particularly China, Brazil, Russia and some African countries. Disregarding the figures for 2009, in Africa the annual growth of exports amounted to 18% in 2007 and 28% in 2008, that of imports to 23% in 2007 and to 27% in 2008.


Ingeborg Schwenzer
Dr. iur (Freiburg, Germany), LL.M. (Berkeley, USA), Professor for Private Law, University of Basel, Switzerland.
Article

OHADA’s Proposed Uniform Act on Contract Law

Formal Law for the Informal Sector

Journal European Journal of Law Reform, Issue 3-4 2011
Authors Claire Moore Dickerson
AbstractAuthor's information

    A great deal of effort and a great deal of erudition have gone into the preparation of the OHADA Uniform Act on Contract Law (preliminary draft) [hereinafter draft Uniform Act on Contract Law].1xThe participants at this conference need no introduction to OHADA. The following sources may be helpful to Anglophones seeking basic information about this uniform system of business laws, which includes both statutes (“uniform acts”) and institutions, and is effective in 16 West and Central African countries (with a 17th having signed and ratified the constitutive treaty). Books: C. Moore Dickerson (Ed.), Unified Business Laws for Africa: Common Law Perspectives on OHADA, 2009; Mator et al., Business Law in Africa: OHADA and the Harmonization Process, 2nd edn, 2007; M. Baba Idris (Ed.), Harmonization of Business Law in Africa: The Law, Issues, Problems & Prospects, 2007. Websites, all of which have English-language content, including unofficial translations of the principal OHADA documents: <www.ohada.com>, which also contains scholarly articles; and <www.juriscope.org>, which provides English-language commentary for three of the uniform acts. Also useful is OHADA’s official website, <www.ohada.org>; however, as of this writing (25 February 2011), it describes its English-language portion as still under construction.
    During OHADA’s legislature, the Council of Ministers, adopted at its meeting (13-15 December 2010) revisions to two of its eight existing statutes, namely the Uniform Act on the General Commercial Law (“Acte Uniforme relatif au Droit Commercial Général”, originally adopted 17 April 1997, 1 JO OHADA 1 (1 October 1997), available at <www.ohada.com>, hereinafter sometimes “UAGCL”) and the Uniform Act on Secured Interests (the official French title is “Acte Uniforme portant Organisation des Sûretés,” originally adopted 17 April 1997, 3 JO OHADA 1 (1 October 1997), available at <www.ohada.com>), and adopted a new Uniform Act on Cooperatives, not yet in effect. Because the revised and new texts have not yet been published in their official form as of this writing (25 February 2011), all discussions of the uniform acts, and in particular of the UAGCL, are based on the texts in force prior to that meeting, except for the references at infra notes 10, 19 & 22. The acronym “OHADA” stands for “Organisation pour l’Harmonisation en Afrique du Droit des Affaires”, sometimes translated as “Organization for the Harmonization in Africa of Business Laws”.
    An important but simple observation is that by far the greater part of the economies in OHADA’s current and prospective member-countries is located in the informal sector. This reality inevitably will have an impact on the implementation of the proposed uniform act currently under discussion. To be sure, the uniform act, if adopted, will affect agreements in the formal sector. The focus here, however, is the informal sector, for which the draft uniform act is already remarkably suited, given its broad and clear fundamental principles, and its respect for local norms.

Noten

  • 1 The participants at this conference need no introduction to OHADA. The following sources may be helpful to Anglophones seeking basic information about this uniform system of business laws, which includes both statutes (“uniform acts”) and institutions, and is effective in 16 West and Central African countries (with a 17th having signed and ratified the constitutive treaty). Books: C. Moore Dickerson (Ed.), Unified Business Laws for Africa: Common Law Perspectives on OHADA, 2009; Mator et al., Business Law in Africa: OHADA and the Harmonization Process, 2nd edn, 2007; M. Baba Idris (Ed.), Harmonization of Business Law in Africa: The Law, Issues, Problems & Prospects, 2007. Websites, all of which have English-language content, including unofficial translations of the principal OHADA documents: <www.ohada.com>, which also contains scholarly articles; and <www.juriscope.org>, which provides English-language commentary for three of the uniform acts. Also useful is OHADA’s official website, <www.ohada.org>; however, as of this writing (25 February 2011), it describes its English-language portion as still under construction.
    During OHADA’s legislature, the Council of Ministers, adopted at its meeting (13-15 December 2010) revisions to two of its eight existing statutes, namely the Uniform Act on the General Commercial Law (“Acte Uniforme relatif au Droit Commercial Général”, originally adopted 17 April 1997, 1 JO OHADA 1 (1 October 1997), available at <www.ohada.com>, hereinafter sometimes “UAGCL”) and the Uniform Act on Secured Interests (the official French title is “Acte Uniforme portant Organisation des Sûretés,” originally adopted 17 April 1997, 3 JO OHADA 1 (1 October 1997), available at <www.ohada.com>), and adopted a new Uniform Act on Cooperatives, not yet in effect. Because the revised and new texts have not yet been published in their official form as of this writing (25 February 2011), all discussions of the uniform acts, and in particular of the UAGCL, are based on the texts in force prior to that meeting, except for the references at infra notes 10, 19 & 22. The acronym “OHADA” stands for “Organisation pour l’Harmonisation en Afrique du Droit des Affaires”, sometimes translated as “Organization for the Harmonization in Africa of Business Laws”.


Claire Moore Dickerson
LL.M. in Taxation (New York University), J.D. (Columbia), Professor of Law and Breaux Chair in Business Law (Tulane University), permanent visiting professor (University of Buea).
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