Search result: 12 articles

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Article

Access_open New Sales and Contract Law in Argentina and France

Models for Reform Inspired by the CISG and the PICC?

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
AbstractAuthor's information

    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.


Edgardo Muñoz
Professor of Law, Universidad Panamericana. School of Law. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, Mexico. Ph.D. (Basel), LL.M. (UC Berkeley), LL.M. (Liverpool), LL.B. (UIA Mexico), DEUF (Lyon), emunoz@up.edu.mx.

Inés Morfín Kroepfly
Ines Morfin Kroepfly, J.D., Universidad Panamericana, Guadalajara.
Article

What Does It Take to Bring Justice Online?

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords ODR, access to justice, courts, online justice, remedy for small disputes
Authors Mirèze Philippe
AbstractAuthor's information

    Technology has revolutionized the world in the last century, although computation devices have existed for millennia and punched-card data processing for two centuries. After 70 years of progress in technology and telecommunications with all the knowledgeable computer specialists and the sophistication of online services, it is high time public and private justice offered fair access to a fundamental human right: justice online. The role of technology in dispute resolution is high on the agenda, and the topic is increasingly at the centre of discussions. In a world that is rapidly developing, it is surprising to observe that online dispute resolution (ODR) is lagging behind.


Mirèze Philippe
Special Counsel at the Secretariat of ICC International Court of Arbitration. She is co-founder of ArbitralWomen and Board member. She is also member of the Equal Representation in Arbitration Steering Committee, ICCA Diversity Task Force, Arbitrator Intelligence’s Board of Advisors, Council of the American Bar Association Section of Dispute Resolution, Paris Place d’Arbitrage, Association Arbitri’s Advisory Board, International Journal of Online Dispute Resolution’s Editorial Board, fellow of National Centre for Technology and Dispute Resolution (NCTDR), and Board member of International Council for Online Dispute Resolution’s (ICODR).
Article

Access_open Levying VAT in the EU Customs Union: Towards a Single Indirect Tax Area? The Ordeal of Indirect Tax Harmonisation

Journal Erasmus Law Review, Issue 3 2019
Keywords single indirect tax area, VAT action plan, quick fixes, e-commerce package, definitive VAT system
Authors Ben Terra
AbstractAuthor's information

    This contribution deals with the latest proposals regarding levying VAT in the European Union (EU) Customs Union. The present system, which has been in place since 1993 and was supposed to be transitional, splits every cross-border transaction into an exempted cross-border supply and a taxable cross-border acquisition. It is like a customs system, but lacks equivalent controls and is therefore the root of cross-border fraud. After many years of unsuccessful attempts, the Commission abandoned the objective of implementing definitive VAT arrangements based on the principle of taxing all cross-border supplies of goods in the Member State of their origin, under the same conditions that apply to domestic trade including VAT rates. The European Parliament and the Council agreed that the definitive system should be based on the principle of taxation in the Member State of the destination of the goods. After a brief discussion of the VAT Action Plan of 2016 (Section 1), the e-commerce package in the form of Directive (EU) 2017/2455 is dealt with (Section 2), followed by the proposal to harmonise and simplify certain rules in the VAT system and introduce the definitive system, only partially adopted (Section 3). Section 4 deals with the proposal to introduce detailed measures of the definitive VAT system. The proposed harmonisation and simplification of certain rules were meant to become applicable on 1 January 2019, but will become only partially applicable on 2020. It is proposed to make the detailed measures of the definitive VAT system applicable in 2022. It remains to be seen whether the Member States are willing to accept the definitive VAT system at all; hence the subtitle ‘the ordeal of indirect tax harmonisation’.


Ben Terra
Prof. Dr. Dr. h.c. Ben Terra was a professor of tax law at the universities of Amsterdam and Lund and visiting professor at the Universidade Católica in Lisbon.
Part II Private Justice

Reputational Feedback Systems and Consumer Rights

Improving the European Online Redress System

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords reputational feedback systems, consumer’s protection, dispute resolution, ADR, ODR, enforceability, ecommerce, European redress system small claims
Authors Aura Esther Vilalta Nicuesa
AbstractAuthor's information

    The European Union single market needs to tackle an outstanding issue to boost competitiveness and growth: a trust-based redress framework that ensures the effectiveness of consumers’ rights. The current disparities among dispute resolution mechanisms, added to the fact that in practice many do not guarantee participation and enforceability, are serious obstacles to this goal. Trust and the integration of certain dispute avoidance tools added to the regulation of some common enforcement mechanisms are key issues in the field of consumer protection. The goal of this article is to offer some insights within the context of the European Union legislative proposals aimed at improving the current redress system.


Aura Esther Vilalta Nicuesa
Aura Esther Vilalta Nicuesa is Professor of Law, Universitat Oberta de Catalunya (UOC) and member of the National Center or Technology and Dispute Resolution, Massachusetts, Amherst.
Article

On China Online Dispute Resolution Mechanism

Following UNCITRAL TNODR and Alibaba Experience

Journal International Journal of Online Dispute Resolution, Issue 1 2017
Keywords Online Dispute Resolution (ODR), China, UNCITRAL TNODR, Alibaba experience
Authors Zhang Juanjuan
AbstractAuthor's information

    The booming of cross-border e-commerce has bred online dispute resolution (ODR) mechanisms, to adapt to the growth of cross-border high-volume and low-value e-commerce transactions. China is the largest B2C e-commerce market in the world. However, along with a prosperous e-commerce market, a great number of disputes have erupted. Under this circumstance, how to establish a reasonable, convenient and efficient online dispute settlement (ODS) method is significant. This paper will briefly look at various ODS channels. By comparing the existing Chinese mechanism and UNCITRAL documents, the paper intends to help provide the reader with greater understanding of the Chinese style, point out the obstacles and challenges in China with quantitative and qualitative analysis, and make some suggestions on the future direction of China ODR system.


Zhang Juanjuan
Zhang Juanjuan is a senior lecturer at the Faculty of Law and researcher at the Centre of Latin American Studies at the Southwest University of Science and Technology, China. She is also a PhD candidate at the Faculty of Law, University of Macau, Macau, China.
Article

E-Commerce, ICTs and Online Dispute Resolution: Is This the Beginning of a New Professional Profile?

Journal International Journal of Online Dispute Resolution, Issue 2 2015
Keywords Mobile phones, ADR, ODR, mediation, conflict resolution
Authors Aura Esther Vilalta and Rosa Pérez Martell
AbstractAuthor's information

    There is a close link between the growth of Internet usage, the development of mobile technology, the expansion of markets and the increasing number of online dispute resolution mechanisms (ODRs). This article seeks to start a conversation about the need to provide justice by means of effective mechanisms, in particular for e-commerce disputes and transnational litigation. It also provides some information on the recent international initiatives towards the regulation of this new arena, and concludes with an early approach to the future challenges and the impact on training, qualifications and expertise of ODR professionals and service providers.


Aura Esther Vilalta
Senior Lecturer in Civil Law at the Universitat Oberta de Catalunya (UOC), Barcelona, Spain. Fellow of the National Center of Technology and Dispute Resolution (NCTDR), University of Massachusetts – Amherst; CEO of Iusmediare, mediator and arbitrator. Vilalta has been Spanish national representative at UNCITRAL, WG III (Online Dispute Resolution) and Deputy Magistrate in the Barcelona Court of Appeals.

Rosa Pérez Martell
Senior Lecturer in Procedural Law at Las Palmas de Gran Canaria University, lecturer at the Open University of Catalonia and member of the Mediation Commission at the Gran Canaria Government.
Article

Using Online Arbitration in E-Commerce Disputes

A Study on B2B, B2C and C2C Disputes

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords online arbitration, e-commerce disputes, electronic market exchange
Authors Farzaneh Badiei
AbstractAuthor's information

    This article provides a thorough analysis of the use of online arbitration in online disputes. It first defines online arbitration and provides a categorization of its different kinds. It then establishes which category of online arbitration is more suitable for e-commerce disputes considering the nature of the disputes, the relation between the parties and the parties’ access to technology. It concludes that using binding or non-binding online arbitration depends on the existence of trust between the parties. It then goes on to analyse the extent to which online arbitration can be held on the Internet without using offline mechanisms, and concludes that this is dependent on the nature of the transaction, the parties’ access to technology and the enforcement mechanisms.


Farzaneh Badiei
Farzaneh Badiei is a PhD candidate at the Institute of Law and Economics, Hamburg University. The program is funded by the German Science Foundation. She holds an LLM from Kingston University, UK and was a visiting scholar at Syracuse University School of Information Studies, USA.
Article

Disintegration of the State Monopoly on Dispute Resolution

How Should We Perceive State Sovereignty in the ODR Era?

Journal International Journal of Online Dispute Resolution, Issue 2 2014
Keywords online dispute resolution, sovereignty, justification
Authors Riikka Koulu LLM
AbstractAuthor's information

    The interests of state sovereignty are preserved in conflict management through adoption of a state monopoly for dispute resolution as the descriptive and constitutive concept of the resolution system. State monopoly refers to the state’s exclusive right to decide on the resolution of legal conflicts on its own soil, in other words, in the state’s territorial jurisdiction. This also forms the basis of international procedural law. This conceptual fiction is derived from the social contract theories of Hobbes and Locke, and it preserves the state’s agenda. However, such a monopoly is disintegrating in the Internet era because it fails to provide an effective resolution method for Internet disputes in cross-border cases, and, consequently, online dispute resolution has gained ground in the dispute resolution market. It raises the question of whether we should discard the state monopoly as the focal concept of dispute resolution and whether we should open a wider discussion on possible justificatory constructions of dispute resolution, i.e. sovereignty, contract and quality standards, as a whole, re-evaluating the underlying structure of procedural law.


Riikka Koulu LLM
Riikka Koulu, LLM, trained on the bench, is currently a doctoral candidate in procedural law at the University of Helsinki, Finland.
Article

Access_open Contracts for the International Sale of Goods

Recent Developments at the International and European Level

Journal The Dovenschmidt Quarterly, Issue 2 2014
Keywords CISG, CESL, contract for the international sale of goods, jurisdiction, standard terms
Authors Dr. S.A. Kruisinga
AbstractAuthor's information

    In the globalizing economy, national borders seem to have disappeared. However, when determining which law will apply to a commercial transaction, the opposite seems true. In 1980, the UN Convention on Contracts for the International Sale of Goods (hereafter the CISG) was specifically drafted to apply to contracts for the international sale of goods. Recently, the European Commission also published a document containing provisions that can apply to contracts for the international sale of goods: the Proposal for a Regulation on a Common European Sales Law. This paper compares the scope of application of these legal regimes, it compares the regulation of standard terms in both regimes and addresses the provisions in the EU Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I), which are of relevance for contracts for the international sale of goods which do not contain a valid dispute settlement clause.


Dr. S.A. Kruisinga
Dr. S.A. Kruisinga is Associate Professor at the Molengraaff Institute of Private Law, Utrecht University, the Netherlands.
Article

Access_open ODR Redress System for Consumer Disputes

Clarifications, UNCITRAL Works & EU Regulation on ODR

Journal International Journal of Online Dispute Resolution, Issue 1 2014
Keywords consumer redress, B2C v/ B2B, ODR, UNCITRAL, EU Regulation
Authors Mirèze Philippe
AbstractAuthor's information

    Despite the evolution and the experience in the field of ODR, it appears that some aspects remain to be clarified in order to attempt to determine which type of procedure would be best adapted to consumer disputes. What does online arbitration mean and is this ODR? What is the profile of the users making use of ODR? What mechanisms are adapted to business disputes and to consumer disputes? Are procedural issues for disputes resolved through mediation similar to those resolved through arbitration? The article discusses about indispensable clarifications which may have an impact on the choice of procedure: mediation or arbitration. It then raises issues related to the UNCITRAL ODR WG discussions on a redress system for cross-border consumer disputes and questions whether types of disputes and potential mechanisms are not confused. Finally, the European Union which adopted a Regulation on ODR for consumer disputes may have found a solution.


Mirèze Philippe
Special Counsel at the Secretariat of the ICC International Court of Arbitration.
Article

The Impact of Europeanization of Contract Law on English Contract Law

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords Rome I and II Regulations, Europeanization, contract law, Common European Sales Law, faulty goods
Authors Omar Abdelaziz
Abstract

    The ongoing process of Europeanization for promoting cross-border transactions and conferring better protection for consumers and small businesses has had its impact all over Europe. It represents a new step towards a harmonized set of legal rules to govern cross-border transactions in the field of contract law. So what is its exact scope? Who will benefit from it? What are its risks? What is its methodology? Does it represent a codification of common law rules? What will be its impact especially on common law countries such as the United Kingdom? The effectiveness of Europeanization depends almost entirely on the correct implementation into national law of the various directives; every member state is obliged to fully implement a harmonized measure into its domestic laws. This is accomplished by ensuring that (1) the relevant legal framework meets the requirements of the harmonized measure and (2) the application of the domestic rules giving effect to a harmonizing measure does not undermine the effectiveness of the European measure. English contract law is largely an uncodified law. Accordingly, the approach taken and the methods used by this jurisdiction to implement European directives into its national laws with the aim of harmonization are different. How did the English courts interpret legislations that implement EU legislations? Will Europeanization affect the deep-rooted principles and doctrines of English contract law (issues of commercial agency), good faith in pre-contractual obligations, unfair contract terms and specific performance? Finally, what could be the clash between European contract law, Rome I Regulations and the United Nations Convention on Contracts for the International Sale of Goods? Could this optional instrument be an exclusive law to either national or international mandatory rules for consumers in member states? What will be the qualification for a genuine consent of consumers in cross-border contracts? Will it lead to the development of the internal market as envisaged by the Commission?


Omar Abdelaziz
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).
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