Regulation of the content of standard-form contracts usually focuses on the invisible terms that customers hardly ever read. It does not refer to the price, because price is a salient component of the transaction, to which customers usually pay attention and sometimes even compare between suppliers. However, it is often difficult to draw the line between the price and price-related, invisible terms. This report — prepared for the 2018 general conference of the International Academy of Comparative Law — analyzes the Israeli experience concerning the regulation of prices and price-related terms. The Israeli experience is interesting for several reasons. These include the fact that in 1964, Israel was the first country to enact a specific Law regulating the content of standard-form contracts, which established both a framework for ex post judicial supervision and a mechanism for ex ante, administrative/quasi-judicial supervision; the various reforms made in these mechanisms throughout the years, including the de facto abolition of the administrative/quasi-judicial mechanism in 2014; and the activist policy adopted by the Israeli Banking Supervisor. While Israeli law — much like other systems — has long imposed strict disclosure duties on banks, insurers, and other suppliers, unlike some other systems, it has always regulated the content of contracts, as well. This regulation was vital during the 2008 subprime crisis, in which Israel suffered little, and recovered quickly.
{"title":"Three Modes of Regulating Price Terms in Standard-Form Contracts: The Israeli Experience","authors":"E. Zamir, Tal Mendelson","doi":"10.2139/ssrn.3045839","DOIUrl":"https://doi.org/10.2139/ssrn.3045839","url":null,"abstract":"Regulation of the content of standard-form contracts usually focuses on the invisible terms that customers hardly ever read. It does not refer to the price, because price is a salient component of the transaction, to which customers usually pay attention and sometimes even compare between suppliers. However, it is often difficult to draw the line between the price and price-related, invisible terms. This report — prepared for the 2018 general conference of the International Academy of Comparative Law — analyzes the Israeli experience concerning the regulation of prices and price-related terms. The Israeli experience is interesting for several reasons. These include the fact that in 1964, Israel was the first country to enact a specific Law regulating the content of standard-form contracts, which established both a framework for ex post judicial supervision and a mechanism for ex ante, administrative/quasi-judicial supervision; the various reforms made in these mechanisms throughout the years, including the de facto abolition of the administrative/quasi-judicial mechanism in 2014; and the activist policy adopted by the Israeli Banking Supervisor. While Israeli law — much like other systems — has long imposed strict disclosure duties on banks, insurers, and other suppliers, unlike some other systems, it has always regulated the content of contracts, as well. This regulation was vital during the 2008 subprime crisis, in which Israel suffered little, and recovered quickly.","PeriodicalId":125434,"journal":{"name":"Hebrew University of Jerusalem Legal Studies Research Paper Series","volume":" 14","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120834143","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This is a Review of Guido Calabresi’s fascinating and thought-provoking new book, The Future of Law and Economics (presented in a book symposium held at the Hebrew University of Jerusalem in December 2016). The Review proposes to break the notion of commodification, as used by Calabresi, into two distinct notions: monetization and commodification. It then focuses on the distinction between positive and normative economic analysis, and argues that even the supposedly positive parts of the book’s analysis are actually normative (and that in this regard Calabresi’s analysis is no different from the traditional economic analysis that he criticizes). Finally, the Review critically analyzes the proposal to integrate non-consequentialist, non-welfarist, and non-utilitarian moral concerns into economic analysis by treating them as “preferences.” It argues that within both normative and positive analyses, these concerns should be treated as what they are, namely normative judgments. The Review concludes by pointing to a possible, alternative way of integrating such moral concerns into cost-benefit analysis.
{"title":"Tastes, Values, and the Future of Law and Economics","authors":"E. Zamir","doi":"10.1093/JRLS/JLX028","DOIUrl":"https://doi.org/10.1093/JRLS/JLX028","url":null,"abstract":"This is a Review of Guido Calabresi’s fascinating and thought-provoking new book, The Future of Law and Economics (presented in a book symposium held at the Hebrew University of Jerusalem in December 2016). The Review proposes to break the notion of commodification, as used by Calabresi, into two distinct notions: monetization and commodification. It then focuses on the distinction between positive and normative economic analysis, and argues that even the supposedly positive parts of the book’s analysis are actually normative (and that in this regard Calabresi’s analysis is no different from the traditional economic analysis that he criticizes). Finally, the Review critically analyzes the proposal to integrate non-consequentialist, non-welfarist, and non-utilitarian moral concerns into economic analysis by treating them as “preferences.” It argues that within both normative and positive analyses, these concerns should be treated as what they are, namely normative judgments. The Review concludes by pointing to a possible, alternative way of integrating such moral concerns into cost-benefit analysis.","PeriodicalId":125434,"journal":{"name":"Hebrew University of Jerusalem Legal Studies Research Paper Series","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122350905","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This chapter offers a Law & Economics (L&E) perspective on international arbitration. L&E scholars tend to view dispute resolution as a market. They thus look at the supply and demand of such third-party adjudication, usually comparing litigation to arbitration. Predominantly, in the literature, there are two interrelated L&E perspectives on this: one is focused on the general welfare consequences of arbitration; the other is focused on why disputants choose one kind of third-party settlement over another. There are many ways of resolving disputes between contractual parties: arbitration is also in competition with mediation, conciliation, litigation, and other forms of resolving disputes, including so-called ‘extra-legal’, socially normative ones. Most literature has focused either on the choice between litigation and arbitration or on the influence of arbitration on negotiation and settlement between the parties. The chapter then addresses other disputant choices relating to third-party funding and arbitrator appointment. It also looks at the incentives and behaviour of arbitrators, including their cognitive abilities.
{"title":"Arbitration from a Law & Economics Perspective","authors":"Anne van Aaken, Tomer Broude","doi":"10.2139/ssrn.2860584","DOIUrl":"https://doi.org/10.2139/ssrn.2860584","url":null,"abstract":"This chapter offers a Law & Economics (L&E) perspective on\u0000 international arbitration. L&E scholars tend to view dispute\u0000 resolution as a market. They thus look at the supply and demand of such\u0000 third-party adjudication, usually comparing litigation to arbitration.\u0000 Predominantly, in the literature, there are two interrelated L&E\u0000 perspectives on this: one is focused on the general welfare consequences\u0000 of arbitration; the other is focused on why disputants choose one kind\u0000 of third-party settlement over another. There are many ways of resolving\u0000 disputes between contractual parties: arbitration is also in competition\u0000 with mediation, conciliation, litigation, and other forms of resolving\u0000 disputes, including so-called ‘extra-legal’, socially normative ones.\u0000 Most literature has focused either on the choice between litigation and\u0000 arbitration or on the influence of arbitration on negotiation and\u0000 settlement between the parties. The chapter then addresses other\u0000 disputant choices relating to third-party funding and arbitrator\u0000 appointment. It also looks at the incentives and behaviour of\u0000 arbitrators, including their cognitive abilities.","PeriodicalId":125434,"journal":{"name":"Hebrew University of Jerusalem Legal Studies Research Paper Series","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115793615","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-05-08DOI: 10.1007/978-94-007-6730-0_99-2
E. Zamir
{"title":"Law and Behavioral Economics","authors":"E. Zamir","doi":"10.1007/978-94-007-6730-0_99-2","DOIUrl":"https://doi.org/10.1007/978-94-007-6730-0_99-2","url":null,"abstract":"","PeriodicalId":125434,"journal":{"name":"Hebrew University of Jerusalem Legal Studies Research Paper Series","volume":"107 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116368171","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Regulatory space has become one of the buzzwords of the debate on international investment protection law. Critics claim that investment law unduly constrains states’ regulatory space. Proponents contend that claim. This article analyzes state sensitivity to constraints on regulatory space from a comparative perspective, on the basis of quantitative analysis of textual coding of investor-state dispute settlement provisions in renegotiated bilateral investment treaties.
{"title":"Who Cares About Regulatory Space in BITs? A Comparative International Approach","authors":"Tomer Broude, Yoram Z. Haftel, A. Thompson","doi":"10.2139/ssrn.2773686","DOIUrl":"https://doi.org/10.2139/ssrn.2773686","url":null,"abstract":"Regulatory space has become one of the buzzwords of the debate on international investment protection law. Critics claim that investment law unduly constrains states’ regulatory space. Proponents contend that claim. This article analyzes state sensitivity to constraints on regulatory space from a comparative perspective, on the basis of quantitative analysis of textual coding of investor-state dispute settlement provisions in renegotiated bilateral investment treaties.","PeriodicalId":125434,"journal":{"name":"Hebrew University of Jerusalem Legal Studies Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129058375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Privatization has occupied the attention of theorists of different disciplines. Yet, despite the multiplicity of perspectives, the typical arguments concerning privatization are instrumental, relying heavily on comparing the performance of a public functionary with that of its private counterpart. This paper challenges this approach for leaving unaddressed other important consequences of shifting responsibilities to private entities. More specifically, privatization cuts off the link between processes of decision-making and the citizens and, therefore, erodes political engagement and its underlying notion of shared responsibility.The effects of privatization are not restricted to the question of whether public prison is better or worse qua prison than its private counterpart or whether private forestry is better or worse qua forestry than its public counterpart. It extends to whether stripping the state of its responsibilities erodes public responsibility. For privatization is not only the transformation of detention centers, trains, tax inquiry offices, forestry operations, and so on, considered one service at a time. It is also the transformation of our political system and public culture from ones characterized by robust shared responsibility and political engagement to ones characterized by fragmentation and sectarianism.
{"title":"Against Privatization as Such","authors":"Avihay Dorfman, Alon Harel","doi":"10.2139/ssrn.2557409","DOIUrl":"https://doi.org/10.2139/ssrn.2557409","url":null,"abstract":"Privatization has occupied the attention of theorists of different disciplines. Yet, despite the multiplicity of perspectives, the typical arguments concerning privatization are instrumental, relying heavily on comparing the performance of a public functionary with that of its private counterpart. This paper challenges this approach for leaving unaddressed other important consequences of shifting responsibilities to private entities. More specifically, privatization cuts off the link between processes of decision-making and the citizens and, therefore, erodes political engagement and its underlying notion of shared responsibility.The effects of privatization are not restricted to the question of whether public prison is better or worse qua prison than its private counterpart or whether private forestry is better or worse qua forestry than its public counterpart. It extends to whether stripping the state of its responsibilities erodes public responsibility. For privatization is not only the transformation of detention centers, trains, tax inquiry offices, forestry operations, and so on, considered one service at a time. It is also the transformation of our political system and public culture from ones characterized by robust shared responsibility and political engagement to ones characterized by fragmentation and sectarianism.","PeriodicalId":125434,"journal":{"name":"Hebrew University of Jerusalem Legal Studies Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130890439","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is not very often that the preparation of modern statutes, let alone codes, is entrusted to the sole guardianship of a single expert. We live in an era of committees, where collective wisdom reigns supreme. It was therefore with great awe, and indeed timidity, that I decided to accept, in the summer of 1982, an assignment, entrusted to me by the Ministry of Justice in Jerusalem, to prepare and redraft a brand new Corporate Code for the State of Israel.Now, at the expiration of four years of intense study, the first Draft of the New Bill has been submitted for governmental (and later, parliamentary) approval. It is already the subject of a formal legislative procedure at the Ministry of Justice;' thus, it has not escaped the fate of other traveaux preparatoires,as it is hammered at, polished and refined by committees of experts. Nevertheless, one hopes that at the end of the tunnel it should reemerge retaining its original flavor, without, however, being marred by some of its initial faults.As the main features of this embryonic statute are already clearly visible, the purpose of this paper is to delineate some of its more interesting innovations. There are three different aspects that must be reckoned with in any work of codification: Form, substance, and the spirit of the proposed law. Accordingly, this paper is organized to address, respectively, these three complementary components.
{"title":"Designing a New Corporate Code for Israel","authors":"U. Procaccia","doi":"10.2307/840482","DOIUrl":"https://doi.org/10.2307/840482","url":null,"abstract":"It is not very often that the preparation of modern statutes, let alone codes, is entrusted to the sole guardianship of a single expert. We live in an era of committees, where collective wisdom reigns supreme. It was therefore with great awe, and indeed timidity, that I decided to accept, in the summer of 1982, an assignment, entrusted to me by the Ministry of Justice in Jerusalem, to prepare and redraft a brand new Corporate Code for the State of Israel.Now, at the expiration of four years of intense study, the first Draft of the New Bill has been submitted for governmental (and later, parliamentary) approval. It is already the subject of a formal legislative procedure at the Ministry of Justice;' thus, it has not escaped the fate of other traveaux preparatoires,as it is hammered at, polished and refined by committees of experts. Nevertheless, one hopes that at the end of the tunnel it should reemerge retaining its original flavor, without, however, being marred by some of its initial faults.As the main features of this embryonic statute are already clearly visible, the purpose of this paper is to delineate some of its more interesting innovations. There are three different aspects that must be reckoned with in any work of codification: Form, substance, and the spirit of the proposed law. Accordingly, this paper is organized to address, respectively, these three complementary components.","PeriodicalId":125434,"journal":{"name":"Hebrew University of Jerusalem Legal Studies Research Paper Series","volume":"507 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1987-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123419517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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