Pub Date : 2013-04-03DOI: 10.1504/IJPL.2013.053014
Jingbo Zhang
This paper aims to systematically analyse the bank’s post-notice obligations in a documentary credit under the framework of UCP600. The paper not only reviews the recent developments in the English court – Fortis Bank & Stemcor v Indian Overseas Bank ([2010] EWHC 84 (Comm); [2011] EWCA Civ 58; [2011] EWHC (Comm) 538), but also examines the methods adopted by the courts to interpret the UCP provisions. Meanwhile, in relation to this case, other useful methods which may effectively explain the bank’s obligations are also referred to in this paper. In addition, the paper addresses other important issues concerning the bank’s post-notice obligations which are partly ignored by the UCP and the case law, such as the condition of the returned documents. Moreover, some feasible suggestions are put forward in this paper relating to each aspect of the bank’s obligations, so as to achieve the purpose of supplementing this incomplete area under UCP600 as well as directing the market practitioners.
本文旨在系统分析UCP600框架下跟单信用证中银行的通知后义务。本文不仅回顾了英国法院的最新进展- Fortis Bank & Stemcor v Indian Overseas Bank ([2010] EWHC 84 (Comm);[2011]中华生态学报，58;[2011] EWHC (Comm) 538)，但也研究了法院采用的解释UCP条款的方法。同时，针对这一案例，本文也提出了其他可以有效解释银行义务的方法。此外，本文还讨论了UCP和判例法部分忽略的银行事后通知义务的其他重要问题，例如退回单据的状况。此外，本文还针对银行义务的各个方面提出了一些可行的建议，以达到对UCP600下这一不完善领域的补充，并指导市场从业者的目的。
{"title":"Bank's post-notice obligations in the documentary credits under UCP600","authors":"Jingbo Zhang","doi":"10.1504/IJPL.2013.053014","DOIUrl":"https://doi.org/10.1504/IJPL.2013.053014","url":null,"abstract":"This paper aims to systematically analyse the bank’s post-notice obligations in a documentary credit under the framework of UCP600. The paper not only reviews the recent developments in the English court – Fortis Bank & Stemcor v Indian Overseas Bank ([2010] EWHC 84 (Comm); [2011] EWCA Civ 58; [2011] EWHC (Comm) 538), but also examines the methods adopted by the courts to interpret the UCP provisions. Meanwhile, in relation to this case, other useful methods which may effectively explain the bank’s obligations are also referred to in this paper. In addition, the paper addresses other important issues concerning the bank’s post-notice obligations which are partly ignored by the UCP and the case law, such as the condition of the returned documents. Moreover, some feasible suggestions are put forward in this paper relating to each aspect of the bank’s obligations, so as to achieve the purpose of supplementing this incomplete area under UCP600 as well as directing the market practitioners.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"22 1","pages":"193"},"PeriodicalIF":0.0,"publicationDate":"2013-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80103779","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 : 2013-01-01DOI: 10.1504/IJPL.2013.050530
M. Nasiri, A. M. Nafchi, Mojdeh Mehdikhani
In Article 196 of the Iranian Civil Law, it is stipulated that in transactions, one can insert obligations in favour of the third party, but most of the provisions have not been well-defined. Therefore, jurists have raised a number of questions about this issue. Namely, is there a need for the acceptance of the third party in the obligations? Can the contracting parties relinquish the rights they have created for the third party by revoking the contract? What should be done if the third party refuses to accept the obligations? Or, who would have standing to sue if the undertaker refuses to fulfil the obligations? The methodology for this research is of an analytic and descriptive nature. The authors try to offer answers to the above questions drawing on other legislations and jurisprudential rules.
{"title":"Obligation in favour of the third party in the Iranian legal system","authors":"M. Nasiri, A. M. Nafchi, Mojdeh Mehdikhani","doi":"10.1504/IJPL.2013.050530","DOIUrl":"https://doi.org/10.1504/IJPL.2013.050530","url":null,"abstract":"In Article 196 of the Iranian Civil Law, it is stipulated that in transactions, one can insert obligations in favour of the third party, but most of the provisions have not been well-defined. Therefore, jurists have raised a number of questions about this issue. Namely, is there a need for the acceptance of the third party in the obligations? Can the contracting parties relinquish the rights they have created for the third party by revoking the contract? What should be done if the third party refuses to accept the obligations? Or, who would have standing to sue if the undertaker refuses to fulfil the obligations? The methodology for this research is of an analytic and descriptive nature. The authors try to offer answers to the above questions drawing on other legislations and jurisprudential rules.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"24 1","pages":"99"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83834229","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 : 2013-01-01DOI: 10.1504/IJPL.2013.050529
S. Srivastava
New technological developments and economic conditions are creating new forms of social behaviour that are fundamentally altering the way we know the world. It appears technology is racing out of legal control. It is a phase where a major part of society is trying to overcome with techno-virus, which has paralysed the autonomy of society. Here, people are looking towards legal system and laws for remedy. The conflict we face today is more a question of the extent to which law or government should or should not influence scientific progress and objectivity of scientific principles. This paper is an attempt to analyse the role of science technology in the development of society. This article has sought to understand whether our legal institutions effectively control technology or not. It is also an attempt to find out the solution for the gap between technology and human rights principles.
{"title":"Science, technology development and threat to human rights: a need to reformulate legal foundations","authors":"S. Srivastava","doi":"10.1504/IJPL.2013.050529","DOIUrl":"https://doi.org/10.1504/IJPL.2013.050529","url":null,"abstract":"New technological developments and economic conditions are creating new forms of social behaviour that are fundamentally altering the way we know the world. It appears technology is racing out of legal control. It is a phase where a major part of society is trying to overcome with techno-virus, which has paralysed the autonomy of society. Here, people are looking towards legal system and laws for remedy. The conflict we face today is more a question of the extent to which law or government should or should not influence scientific progress and objectivity of scientific principles. This paper is an attempt to analyse the role of science technology in the development of society. This article has sought to understand whether our legal institutions effectively control technology or not. It is also an attempt to find out the solution for the gap between technology and human rights principles.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"85 1","pages":"88"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91363541","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 : 2013-01-01DOI: 10.1504/IJPL.2013.050524
William E. Marple
The US Supreme Court has established two important constitutional limits on punitive damages awards: they are subject to review for substantive reasonableness and the amount of the award may not be predicated on harm that a defendant caused to non-parties. These limits call into question the well-settled principle in most jurisdictions that comparative fault may not be used to reduce punitive damage awards.
{"title":"Post State Farm decisions have considered comparative fault in determining the constitutionally permissible ratio of punitive damages to compensatory damages","authors":"William E. Marple","doi":"10.1504/IJPL.2013.050524","DOIUrl":"https://doi.org/10.1504/IJPL.2013.050524","url":null,"abstract":"The US Supreme Court has established two important constitutional limits on punitive damages awards: they are subject to review for substantive reasonableness and the amount of the award may not be predicated on harm that a defendant caused to non-parties. These limits call into question the well-settled principle in most jurisdictions that comparative fault may not be used to reduce punitive damage awards.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"55 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83845026","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 : 2013-01-01DOI: 10.1504/IJPL.2013.050526
Zeeshan Mansoor
The Commission on European contract law contends that the principles of European contract law are a source of European lex mercatoria. The concept of lex mercatoria itself, however, is still ambiguous. This paper analyses the current academic opinion on the nature of lex mercatoria and provides a more practical definition which focuses on the role of the arbitrator and better clarifies this confusing system of law. It further explains how the PECL, like any other set of principles developed to regulate international trade, form a part of the universal lex mercatoria.
{"title":"Principles of European contract law: an autonomous lex mercatoria or part of a universal lex mercatoria?","authors":"Zeeshan Mansoor","doi":"10.1504/IJPL.2013.050526","DOIUrl":"https://doi.org/10.1504/IJPL.2013.050526","url":null,"abstract":"The Commission on European contract law contends that the principles of European contract law are a source of European lex mercatoria. The concept of lex mercatoria itself, however, is still ambiguous. This paper analyses the current academic opinion on the nature of lex mercatoria and provides a more practical definition which focuses on the role of the arbitrator and better clarifies this confusing system of law. It further explains how the PECL, like any other set of principles developed to regulate international trade, form a part of the universal lex mercatoria.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"134 1","pages":"24-37"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77364659","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 : 2013-01-01DOI: 10.1504/IJPL.2013.050525
Barbara Masuku
Punishment of corporate individual offenders in South Africa is prescribed by the Criminal Law (Sentencing) Amendment Act 38 of 2007. The Act specifically stipulates a period of not less than 15 years imprisonment as a prescribed minimum sentence applicable in corporate offences committed by corporate individual offenders. This has seen the demise of the exercise of discretionary powers exercisable by the judges in consideration of an appropriate sentence. It has also become associated with an increase in the prison population, due to the exclusion of non-custodial sentencing upon determination of the sentence. This contribution will investigate the current trends in sentencing of corporate individual offenders in so far as it is inclined towards imprisonment. It will also look at the suitability of non-custodial sentencing as an alternative to imprisonment.
{"title":"Corporate offenders: is deterrence through imprisonment still relevant in meting out punishment to corporate offenders?","authors":"Barbara Masuku","doi":"10.1504/IJPL.2013.050525","DOIUrl":"https://doi.org/10.1504/IJPL.2013.050525","url":null,"abstract":"Punishment of corporate individual offenders in South Africa is prescribed by the Criminal Law (Sentencing) Amendment Act 38 of 2007. The Act specifically stipulates a period of not less than 15 years imprisonment as a prescribed minimum sentence applicable in corporate offences committed by corporate individual offenders. This has seen the demise of the exercise of discretionary powers exercisable by the judges in consideration of an appropriate sentence. It has also become associated with an increase in the prison population, due to the exclusion of non-custodial sentencing upon determination of the sentence. This contribution will investigate the current trends in sentencing of corporate individual offenders in so far as it is inclined towards imprisonment. It will also look at the suitability of non-custodial sentencing as an alternative to imprisonment.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"208 1","pages":"11"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77582650","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 : 2013-01-01DOI: 10.1504/IJPL.2013.050606
A. Lakhani
More and more, the world is moving towards an increasingly inter-dependent legal jurisdiction. While national legal cultures and legal jurisdictions continue to exist, legal practitioners and educators are increasingly required to know and understand the international implications of imposing national laws. At the same time, legal education and legal culture has remained seemingly unchanged in the wake of the reality of legal practice in the 21st century. This article discusses the results of a research project undertaken with the support of City University of Hong Kong. The focus of the research project is a market assessment of the required legal skills for lawyers in the 21st century. In this first article, I discuss the current state of the research findings and its implications for the skills required of 21st century lawyers and the future of legal education.
{"title":"Required legal skills for the 21st century lawyer: legal education at a crossroads","authors":"A. Lakhani","doi":"10.1504/IJPL.2013.050606","DOIUrl":"https://doi.org/10.1504/IJPL.2013.050606","url":null,"abstract":"More and more, the world is moving towards an increasingly inter-dependent legal jurisdiction. While national legal cultures and legal jurisdictions continue to exist, legal practitioners and educators are increasingly required to know and understand the international implications of imposing national laws. At the same time, legal education and legal culture has remained seemingly unchanged in the wake of the reality of legal practice in the 21st century. This article discusses the results of a research project undertaken with the support of City University of Hong Kong. The focus of the research project is a market assessment of the required legal skills for lawyers in the 21st century. In this first article, I discuss the current state of the research findings and its implications for the skills required of 21st century lawyers and the future of legal education.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"28 1","pages":"38"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83750124","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}
{"title":"Fraud versus manipulation by white-collar criminals: an empirical study","authors":"Petter Gottschalk","doi":"10.1504/IJPL.2013.050527","DOIUrl":"https://doi.org/10.1504/IJPL.2013.050527","url":null,"abstract":"This is the author's final and acceptet version of the article, post refereeing. Publisher's version is available at www.inderscience.com/","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"3 1","pages":"52"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75952080","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 : 2013-01-01DOI: 10.1504/IJPL.2013.050528
Camilo A. Rodríguez-Yong, Karol Ximena Martínez-Muñoz
This article aims to recognise the features that identify the Andean approach as a region of the stabilisation clauses by analysing the experience of Colombia, Ecuador, Peru and Bolivia. This approach is characterised by: 1 involving a classic freezing stabilisation clause 2 being used as an instrument to promote investment in the country 3 keeping the State power to enact new laws 4 being utilised by investors of multiple economic sectors and activities 5 being incorporated in contracts of private and administrative character 6 being entered into by national and foreign investors and natural and legal persons 7 being regulated by a statute 8 imposing a mandatory minimum amount for the investment 9 being exceptionally onerous 10 having a temporary character, and finally 11 guaranteeing legal stability over tax law and other law areas.
{"title":"The Andean approach to stabilisation clauses","authors":"Camilo A. Rodríguez-Yong, Karol Ximena Martínez-Muñoz","doi":"10.1504/IJPL.2013.050528","DOIUrl":"https://doi.org/10.1504/IJPL.2013.050528","url":null,"abstract":"This article aims to recognise the features that identify the Andean approach as a region of the stabilisation clauses by analysing the experience of Colombia, Ecuador, Peru and Bolivia. This approach is characterised by: 1 involving a classic freezing stabilisation clause 2 being used as an instrument to promote investment in the country 3 keeping the State power to enact new laws 4 being utilised by investors of multiple economic sectors and activities 5 being incorporated in contracts of private and administrative character 6 being entered into by national and foreign investors and natural and legal persons 7 being regulated by a statute 8 imposing a mandatory minimum amount for the investment 9 being exceptionally onerous 10 having a temporary character, and finally 11 guaranteeing legal stability over tax law and other law areas.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"24 1","pages":"67-87"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89683010","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 : 2012-10-02DOI: 10.1504/IJPL.2012.049359
M. Mcgregor
Unlike the equality laws of other countries such as the USA and the UK, the South African equality laws do not explicitly regulate equal remuneration claims despite statistics showing substantial pay differences between gender and race. The remuneration gap between male and female employees is currently at 25%. Between races it appears that whites and Indians on average tend to earn the highest at nearly all levels and Africans and non-whites on average tend to earn the lowest. This paper will investigate the notion of equal remuneration for the same work or work of equal value and its application in South Africa. The country’s discriminatory history and the amends made after 1994 to promote equality are set out as background. Moreover, international labour standards ratified by the country and national equality laws enacted are considered. Lastly the relevance of Mangenawill be considered.
{"title":"Endeavours in closing the pay gap between race and gender: a South African perspective","authors":"M. Mcgregor","doi":"10.1504/IJPL.2012.049359","DOIUrl":"https://doi.org/10.1504/IJPL.2012.049359","url":null,"abstract":"Unlike the equality laws of other countries such as the USA and the UK, the South African equality laws do not explicitly regulate equal remuneration claims despite statistics showing substantial pay differences between gender and race. The remuneration gap between male and female employees is currently at 25%. Between races it appears that whites and Indians on average tend to earn the highest at nearly all levels and Africans and non-whites on average tend to earn the lowest. This paper will investigate the notion of equal remuneration for the same work or work of equal value and its application in South Africa. The country’s discriminatory history and the amends made after 1994 to promote equality are set out as background. Moreover, international labour standards ratified by the country and national equality laws enacted are considered. Lastly the relevance of Mangenawill be considered.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"27 1","pages":"390-405"},"PeriodicalIF":0.0,"publicationDate":"2012-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85372421","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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