The Argentine and the French civil codes have recently undergone substantial modifications to their contract law provisions. These novel statutes could serve as models for future B2B contract law reforms in Latin American jurisdictions and beyond, as former Argentine and French laws have done in the past. The authors offer a contribution that paves the way in that direction with a systematic comparative analysis. As a starting point, this article unveils the influence that the modern unified laws on contracts (UNIDROIT Principles on International Commercial Contracts (PICC) and United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG)) have in Argentina’s and France’s new contract law. It also highlights the most obvious similarities and differences in both sets of rules. This contribution goes beyond simple tertium comparisons; the authors analyse which of the two laws offers better, or more effective, rules to achieve the desired contract law functions in various matters. Readers are provided with the best rule or solution to address the problem in question and, as the authors hope, they should conclude that both models provide for a range of complementary solutions for modern contract law reforms. |
Search result: 252 articles
Article |
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Journal | European Journal of Law Reform, Issue 3 2020 |
Keywords | contracts, sales, law reform, CISG, UNIDROIT Principles, Argentina, France, comparative law |
Authors | Edgardo Muñoz and Inés Morfín Kroepfly |
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Article |
A Civil Society Perspective on the ILC Draft Convention on Crimes Against Humanity |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | crimes against humanity, impunity, aut dedere aut judicare, amnesties, reservations |
Authors | Hugo Relva |
AbstractAuthor's information |
In a relatively short period of time, the International Law Commission has accomplished the impressive task of drafting and adopting the text of the Draft Articles on Prevention and Punishment of Crimes against Humanity. The Draft Articles circulated to states are promising. However, a number of substantive amendments appear to be necessary if the Draft Convention is to become a powerful tool “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”, as stated in the Preamble. Moreover, in order to avoid the rapid ossification of the new potential treaty, it is advisable for the articles to reflect the most significant developments in international law, and also allow for future progressive developments in the law, instead of reflecting a lowest common denominator acceptable to all states. This article suggests some revisions to existing provisions, new provisions which may make the text much stronger and finally identifies some important omissions which should be fixed by states at the time of adopting the Draft Convention. |
Article |
Time to DeliverDefining a Process Towards the Negotiation of a Convention on the Prevention and Punishment of Crimes Against Humanity |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | Sixth Committee, International Law Commission, intergovernmental negotiations, multilateral treaties, treaty-making process |
Authors | Pablo Arrocha Olabuenaga |
AbstractAuthor's information |
In 2019, the International Law Commission (ILC) adopted its articles on the prevention and punishment of crimes against humanity and referred them to the UN General Assembly with the recommendation of adopting a multilateral treaty based on them. The General Assembly’s Sixth Committee was unable to take a decision on this matter and deferred its consideration to 2020. This article focuses on how, in resuming its discussion, the Sixth Committee will have a unique opportunity to define the process towards intergovernmental negotiations. This will close a gap in international criminal law, while generating a new dynamic in its relationship with the ILC on codification, breaking its current cyclical inertia of inaction. |
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Relating to ‘The Other’The ILC Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance Initiative |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | International Law Commission (ILC), Draft Convention on Crimes Against Humanity, Mutual Legal Assistance (MLA) initiative, crimes against humanity, international criminal law |
Authors | Larissa van den Herik |
AbstractAuthor's information |
The International Law Commission (ILC) Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance (MLA) Initiative have largely run in tandem throughout their development. Both projects are motivated by similar gap-filling desires and both projects aim to expand the international criminal justice toolkit; however, these similarities have led to questions if both projects are necessary. This article addresses that question, looking at how different actors have answered this question during the respective processes of maturation of both projects and where both projects stand today. It argues that, while there is significant overlap between the projects, both instruments have merits which the other is lacking, and the optimal solution would be to bring both projects to fruition. |
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Unlocking the Sixth Committee’s Potential to Act for Crimes Against Humanity as It Did for Genocide |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | crimes against humanity, General Assembly, International Law Commission, Sixth Committee, United Nations |
Authors | Michael Imran Kanu |
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The International Law Commission, on completion of its work on the draft articles on prevention and punishment of crimes against humanity, recommended to the General Assembly the elaboration of a convention by the said Assembly or by an international conference of plenipotentiaries based on the said draft articles. The Sixth Committee of the United Nations General Assembly at the first opportunity only took note of the draft articles and postponed consideration of the recommendation to its next session. The resolution of the General Assembly, as recommended by the Sixth Committee, does not readily disclose the full extent of the debate, proposals and concerns expressed in the Sixth Committee that prevented the General Assembly from acting on the Commission’s recommendation. This article, in considering the cornucopia of views expressed by States, outlines a path to unlock the Sixth Committee’s potential to act, by proposing a separation of the organizational and substantive matters and future-proofing the further consideration of elaborating a convention through the adoption of a structured approach. |
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Interstate Cooperation and Why a Horizontal Treaty Would Make a Difference for ICC Investigations |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | cooperation framework, Draft Articles, international criminal law, International Criminal Court, interstate cooperation |
Authors | George William Mugwanya |
AbstractAuthor's information |
The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity contain an obligation to implement an interstate cooperation regime. This article argues that although this regime is ‘horizontal’, it also has the potential to enhance the efficacy of investigations by the International Criminal Court (ICC). It provides a brief overview of the regime as set out in the Draft Articles, and the ICC’s cooperation regime, before exploring how the Draft Articles can fill some gaps in the ICC system. It also makes suggestions to improve the Draft Articles and strengthen the cooperation regime. |
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Gender and the ILC’s 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | gender, crimes against humanity, international criminal law, Rome Statute |
Authors | Indira Rosenthal and Valerie Oosterveld |
AbstractAuthor's information |
The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity document is the latest international instrument to address gender-based crimes under international law and the first to do so outside the context of international courts. The elaboration of a treaty on crimes against humanity provides a critical opportunity to affirm that gender-based crimes are among the gravest crimes under international law. This article examines discussions on the meaning of the term ‘gender’ under the ILC’s Draft Articles, with reference to the discussions two decades prior on the definition of ‘gender’ in the Rome Statute of the International Criminal Court, the basis for the Articles’ consideration of sexual and gender-based violence. It then turns to the ILC consultation process, and the 2019 discussion of the ILC’s Draft Articles in the Sixth (Legal) Committee of the United Nations General Assembly on the term ‘gender’. Additionally, it considers a number of concerns raised by States and civil society on the definition of some of the gender-based crimes included in the Draft Articles and concludes by arguing for a comprehensive gender analysis of all of the Draft Articles. |
Article |
An Analysis of State Reactions to the ILC’s Work on Crimes Against HumanityA Pattern of Growing Support |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | crimes against humanity, Sixth Committee, International Law Commission, Draft Articles, International Criminal Court |
Authors | Leila N. Sadat and Madaline George |
AbstractAuthor's information |
The international community has been engaged with the topic of crimes against humanity since the International Law Commission (ILC) began work on it in 2013, with a view to draft articles for a future convention. Between 2013 and 2019, 86 States as well as several entities and subregional groups made comments on the ILC’s work at the United Nations Sixth Committee or through written comments to the ILC. This article is the culmination of the Whitney R. Harris World Law Institute’s work cataloguing and analysing States’ comments by assigning each statement to one of five categories – strong positive, positive, neutral, negative, and strong negative – examining both specific words and the general tenor of the comments. This article analyses the development of States’ reactions to the ILC’s work over time, as well as specific issues that frequently arose, observing that there is a pattern of growing support from States to use the ILC’s Draft Articles on Prevention and Punishment of Crimes Against Humanity as the basis for a new convention. |
Article |
The Temporal Effect and the Continuance in Force of the Treaty of TrianonA Hundred Years Later |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2020 |
Keywords | peace treaties, Trianon Peace Treaty, termination of treaties, temporal effect of international treaties, law of international treaties |
Authors | Norbert Tóth |
AbstractAuthor's information |
The 1920 Trianon Peace Treaty ended World War I between Hungary and its belligerents. Nonetheless, one hundred years have passed since then, yet this peace treaty is still unsettling to many, causing misbelief, hatred, anger and misunderstanding both in Hungary and its neighboring countries. To unearth the temporal aspects of the Trianon Peace Treaty, more precisely, to identify exactly what obligations remain in force following this rather hectic century, it is indispensable to study the temporal effect of this agreement. The present article aims at arriving at a conclusion in relation to several misbeliefs held with respect to the Trianon Peace Treaty as well as the issue of its termination. |
Article |
The Online Civil Money ClaimLitigation, ADR and ODR in One Single Dispute Resolution Process |
Journal | International Journal of Online Dispute Resolution, Issue 1 2020 |
Keywords | ADR, pre-action protocols, civil procedure, online dispute resolution, mediation, civil justice, online civil money claim, online services |
Authors | Md Mahar Abbasy |
AbstractAuthor's information |
This article considers the recent reforms in English Civil Justice System, especially the new Online Civil Money Claim (OCMC). To make the UK courts easily accessible and affordable, Lord Justice Briggs in his Civil Courts Structure Review recommended for the introduction of an Online Solutions Court. This is a revolutionary step because it embeds alternative dispute resolution (ADR), in particular mediation, into the court system. This is very important because mediation emerged as an alternative to courts but has become an integral part of it. This study critically examines how mediation is being embedded into the English Civil Justice System and argues for a balanced relationship between litigation and mediation because they complement each other. This article is divided into four sections (a) Section 2 will discuss how the Online Court will impact the open justice; (b) Section 3 will provide an overview of the three stages of OCMC; (c) Section 4 will carry out a critical analysis of the OCMC; and (d) Section 5 will seek to put forward solutions and recommendations in light of the findings. |
Article |
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Journal | Erasmus Law Review, Issue 1 2020 |
Keywords | youth justice, age limits, minimum age of criminal responsibility, age of criminal majority, legal comparison |
Authors | Jantien Leenknecht, Johan Put and Katrijn Veeckmans |
AbstractAuthor's information |
In each youth justice system, several age limits exist that indicate what type of reaction can and may be connected to the degree of responsibility that a person can already bear. Civil liability, criminal responsibility and criminal majority are examples of concepts on which age limits are based, but whose definition and impact is not always clear. Especially as far as the minimum age of criminal responsibility (MACR) is concerned, confusion exists in legal doctrine. This is apparent from the fact that international comparison tables often show different MACRs for the same country. Moreover, the international literature often seems to define youth justice systems by means of a lower and upper limit, whereas such a dual distinction is too basic to comprehend the complex multilayer nature of the systems. This contribution therefore maps out and conceptually clarifies the different interpretations and consequences of the several age limits that exist within youth justice systems. To that extent, the age limits of six countries are analysed: Argentina, Austria, Belgium, the Netherlands, New Zealand and Northern Ireland. This legal comparison ultimately leads to a proposal to establish a coherent conceptual framework on age limits in youth justice. |
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Journal | Erasmus Law Review, Issue 1 2020 |
Keywords | age limits, behavioural science, human rights, age, juvenile justice |
Authors | Frank Weerman and Jolande uit Beijerse |
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Article |
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Journal | Erasmus Law Review, Issue 1 2020 |
Keywords | voting age, children’s rights, youth enfranchisement, democracy, votes at 16 |
Authors | Tommy Peto |
AbstractAuthor's information |
This article argues in favour of lowering the voting age to 16. First, it outlines a respect-based account of democracy where the right to vote is grounded in a respect for citizens’ autonomous capacities. It then outlines a normative account of autonomy, modelled on Rawls’s two moral powers, saying what criteria must be met for an individual to possess a (pro tanto) moral right to vote. Second, it engages with empirical psychology to show that by the age of 16 (if not earlier) individuals have developed all of the cognitive components of autonomy. Therefore, since 16- and 17-year-olds (and quite probably those a little younger) possess the natural features required for autonomy, then, to the extent that respect for autonomy requires granting political rights including the right to vote – and barring some special circumstances that apply only to them – 16- and 17-year-olds should be granted the right to vote. |
Article |
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Journal | Erasmus Law Review, Issue 2 2019 |
Keywords | Web harvesting, data analysis, text & data mining, TDM, computational text |
Authors | Maria Bottis, Marinos Papadopoulos, Christos Zampakolas e.a. |
AbstractAuthor's information |
Text and Data Mining (hereinafter, TDM) issue for the purpose of scientific research or for any other purpose which is included in the provisions of the new EU Directive on Copyright in the Digital Single Market (hereinafter, DSM). TDM is a term that includes Web harvesting and Web Archiving activities. Web harvesting and archiving pertains to the processes of collecting from the web and archiving of works that reside on the Web. In the following analysis we will elaborate briefly upon provisions in EU Copyright law which were discussed during the proposal for a new Directive on Copyright in the DSM as well as provisions which are included in the text of art.3 and art.4 of the new Directive 2019/790/EU per TDM. In addition, the following analysis presents legislation in very few EU Member States which pertains to TDM and preceded the rulings of Directive 2019/790/EU. Digital legal deposit remarkable examples from EU Member States are also presented in this paper. The example of Australia is also presented below hereto because it is one of the oldest and most successful worldwide. The National Library of Australia’s digital legal deposit is state-of-the-art. |
Book Review |
Justicia juvenil y prácticas restaurativas, trazos para el diseño de programas y para su implementación |
Journal | The International Journal of Restorative Justice, Issue 3 2019 |
Authors | Virginia Domingo de la Fuente |
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Article |
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Journal | Erasmus Law Review, Issue 3 2019 |
Keywords | Mercosur, European Union, regionalism, integration, international organisation |
Authors | Ricardo Caichiolo |
AbstractAuthor's information |
This study is focused on the evaluation of successes and failures of the Common Market of the South (Mercosur). This analysis of Mercosur’s integration seeks to identify the reasons why the bloc has stagnated in an incomplete customs union condition, although it was originally created to achieve a common market status. To understand the evolution of Mercosur, the study offers some thoughts about the role of the European Union (EU) as a model for regional integration. Although an EU-style integration has served as a model, it does not necessarily set the standards by which integration can be measured as we analyse other integration efforts. However, the case of Mercosur is emblematic: during its initial years, Mercosur specifically received EU technical assistance to promote integration according to EU-style integration. Its main original goal was to become a common market, but so far, almost thirty years after its creation, it remains an imperfect customs union. |
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Journal | Erasmus Law Review, Issue 4 2019 |
Keywords | due diligence, supply chain, OECD, NCP, specific instance |
Authors | Sander van ’t Foort |
AbstractAuthor's information |
Since the introduction of a human rights chapter in the 2011 OECD Guidelines for Multinational Enterprises, National Contact Points (NCPs) have been increasingly dealing with specific instances referring to human rights violations by companies. According to the Organisation for Economic Cooperation and Development (OECD), the human rights provisions are the most cited provisions of the Guidelines. Specific instances include allegations such as a company’s failure to implement human rights due diligence, to apply the principles of free, prior and informed consent, to take supply chain responsibility, and/or to comply with the right to cultural heritage. Of all topics, human rights due diligence and human rights supply chain responsibilities are most commonly referred to in complaints based on the Guidelines. This article focuses on how NCPs have handled these topics of human rights due diligence and supply chain responsibility in specific instances. The Dutch NCP has been selected because it is celebrated in literature as the ‘gold standard’ because of its composition including independent members, its forward-looking approach, and because it is one of the most active NCPs in the world. All decisions of the Dutch NCP concerning these two topics are analysed in the light of the decisions of four other NCPs (UK, Denmark, Germany and Norway). A doctrinal methodology is used to analyse similarities and differences between the argumentations of the five NCPs. |
Article |
Control in International Law |
Journal | African Journal of International Criminal Justice, Issue 1 2019 |
Keywords | Effective / overall control, international human rights law, international criminal law, responsibility of states, statehood |
Authors | Joseph Rikhof and Silviana Cocan |
AbstractAuthor's information |
The concept of control has permeated various disciplines of public international law, most notable international criminal law, international humanitarian law, international human rights law and the law of statehood as well as the law of responsibility for states and international organizations. Often this notion of control has been used to extend the regular parameters in these disciplines to capture more extraordinary situations and apply the same rules originally developed within areas of law, such as the application of the laws of war to occupation, the rules of human rights treaties to extraterritorial situations or state responsibility to non-state actors. This article will examine this notion of control in all its facets in international law while also addressing some of its controversies and disagreements in the jurisprudence of international institutions, which have utilized this concept. The article will then provide an overview of its uses in international law as well as its overlap from one discipline to another with a view of providing some overarching observations and conclusions. |
Article |
Digital Identity for Refugees and Disenfranchised PopulationsThe ‘Invisibles’ and Standards for Sovereign Identity |
Journal | International Journal of Online Dispute Resolution, Issue 1 2019 |
Keywords | digital identity, sovereign identity, standards, online dispute resolution, refugees, access to justice |
Authors | Daniel Rainey, Scott Cooper, Donald Rawlins e.a. |
AbstractAuthor's information |
This white paper reviews the history of identity problems for refugees and disenfranchised persons, assesses the current state of digital identity programmes based in nation-states, offers examples of non-state digital ID programmes that can be models to create strong standards for digital ID programmes, and presents a call to action for organizations like International Organization for Standardization (ISO) and the United Nations High Commissioner for Refugees (UNHCR). |
Discussion |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2019 |
Keywords | migration, exile, citizenship, Europe, Spanish civil war |
Authors | Massimo La Torre |
AbstractAuthor's information |
Exile and migration are once more central issues in the contemporary European predicament. This short article intends to discuss these questions elaborating on the ideas of two Spanish authors, a novelist, Max Aub, and a philosopher, María Zambrano, both marked by the tragic events of civil war and forced expatriation. Exile and migration in their existential perspective are meant as a prologue to the vindication of citizenship. |