Contractual Interpretation,Registered Documents and Third Party Effects

This article considers whether extrinsic material should be available in interpreting registered documents when these may be contractual in nature or relate to contractual agreements. Many registers, for example the current scheme for recording land title, are intended to facilitate the reliance of third parties on their content, an objective that suggests that extrinsic material should be excluded. Such an approach, however, could itself cause unfairness and conflicts with the way that contractual documents are normally interpreted. Exploring this question leads us to consider the contextual approach to contractual interpretation generally and whether it should take account of the contemplated effects of contractual language on third parties. After concluding in the affirmative, we then ask whether this is sufficient as an approach to interpreting contractual documents entered into a register.     

情势变更案件处理的路径与策略

本文从法与理的结合上,对我国处理情势变更案件的问题作了新的阐释。文章认为,虽然我国民商法律没有规定"情势变更原则",但处理情势变更案件并无法律障碍。在法律路径选择上,涉外合同关系可适用国际惯例,国内合同关系则分情况而定:有具体规定时适用规定,无具体规定时,可以适用法定的"公平原则"。在适用"公平原则"时,应当注意操作策略:严格把握适用条件,并注意适用效果和严格的程序。     

Using Private-Public Linkages to Regulate Environmental Conflicts: The Case of International Construction Contracts

The article takes a pluralistic view of the 'trade-environment' conflict by exploring one of the settings of this conflict: the lex constructionis – international construction law. It seeks to unravel the way in which the unique structural-cultural attributes of this legal domain have affected its environmental (in)sensitivity. The article's main argument in that context is that the contractual tradition of the lex constructionis (as manifested in the standard contracts that dominate this field) and its unique institutional structure, have created a culture of ecological indifference. This culture has important practical consequences because of the deep ecological problematic of international construction projects. The article develops an alternative contractual model, which depicts the construction contract as a semi-political mechanism, rather than a private tool. This conceptual change seeks to break the public/private separation that characterizes the contractual discourse in the international construction market. The article explores, further, whether this alternative contractual vision could be realized in practice, and proposes several implementing modules which could further this goal. While the article explores a particular international regime, its methodology and conclusions – in particular, the political-constitutional interpretation of the contract and the critique of the public/private dichotomy (see sections III.3 and III.4) – should be relevant to the regulation of many other (national or international) environmental dilemmas.     

Law Applicable in the Absence of Choice – The New Article 4 of the Rome I Regulation

The applicable law to a contract in the absence of the parties' choice is governed by Article 4 of the Rome Convention, which has been implemented in the UK by the Contracts (Applicable Law) Act 1990. This rule adopts the 'closest connection principle' as a basic principle to decide the applicable law, but also introduces specific presumptions to simplify the process. The current rule has been criticised for its uncertainty. As a result, a substantive change has been provided in the Rome I Regulation, which aims to modernise the current choice of law rules in contractual obligations and convert the Rome Convention into a Council Regulation. The new Article 4 aims to enhance certainty and to overcome the difficulties of the current rules of the Rome Convention. However, a close scrutiny of the new Article 4 shows that it does not properly achieve its aim. The article aims to critically analyse Article 4 of the Rome I Regulation and to provide suggestions for its interpretation and understanding.     

Verba and Voluntas – Conflict of Laws in Interpretation of Contracts

This paper aims to describe an existing legal practice of contractual interpretation in Estonian legal order. In order to investigate the semiotic essence of contractual interpretation and its limits, this paper narrows its focus on a notion “conflict of laws” (as developed by Roberta Kevelson). By conflict of law is meant a depiction of incompatibility or conflict of co-existing legal practices, the conflict, which is both internal and external to Estonian legal system. From the inner perspective of Estonian legal order, the conflict of law is subsequently reduced to the conflict in law, and being analyzed on the grounds of contract law, the conflict of legal rules, in fact becomes a issue of contractual interpretation. It is claimed in this paper that there has been a fundamental incompatibility between objective and subjective approaches to interpretation of contracts. As later as 19th century, with the development of systematic legal science, an apparent confusion of objective and subjective approaches was becoming transformed into an open and growing system of law, based on a fusion of both methods. This paper lays theoretical grounds for a practical test, which could measure the exact level of legal integrity between different elements of legal system.     

The Relational Principle of Trust and Confidence

This article seeks to explain why, in terms of Iain Macneil'srelational theory of contract, the implied mutual duty of trustand confidence can be described as a quintessentially relationalnorm. The role played by the duty in the development of a relationalapproach to variation of the employment contract is examined.The potential for the trust duty to become a relational principleinforming the content of the employment contract is explored.The impact of litigation based on the trust duty in creatinga relational approach to employees’ contractual remediesat common law, which have traditionally been dominated by thenotice rule, is assessed. Finally, the potential for there todevelop a relational principle of trust and confidence capableof, to some extent, unifying the contractual, statutory andtortious elements of the law of the employment relationshipis examined.     

The 2007 Interpretation of the Supreme Court of China on contractual choice of law: Comments and analysis

On July 23, 2007, the Supreme Court of China issued a new judicial interpretation on contractual conflicts. By this Interpretation, the Supreme Court of China publicized contractual conflicts rules. Although a new legal system has been established in resolving conflict of laws in accord with the Law on the Application of Law in Foreign-Related Civil Relations in China (effective on April 1, 2011), there are not many detailed rules concerned on contractual choice of law in this law. As far as contractual conflicts are concerned, the new rules just re-confirm the principles embedded in the 2007 Interpretation. In China contractual conflict disputes still have to largely resort to the 2007 Interpretation.     

缔约能力制度比较研究

本文对罗马法系、英美法系、德国法系一些国家的缔约能力制度进行了比较分析 ,并就此提出了在立法中完善我国的缔约能力制度的具体建议。     

论《罗马条例Ⅰ》对欧盟合同冲突法的发展及对我国的启示

在国际民商事判决的执行和非合同之债法律适用领域,欧盟已经成功地以条例的形式进行了统一立法。但在合同冲突法领域,欧盟却迟至2008年才将1980年《罗马公约》转化为共同体立法——《罗马条例Ⅰ》。转化使得欧盟合同冲突法融入了共同体这一自足的法律体系,规则的解释得以统一,和其他领域的冲突法规则得以协调。在内容方面,《罗马条例Ⅰ》对《罗马公约》进行了一定发展,适度强化了当事人意思自治原则;对客观选择方法做了较大调整,降低了最密切联系原则的地位;以惯常居所统一了属人法;排除了客观选择方法中合同分割法的适用。这些发展均以追求合同法律适用的确定性、可预见性等欧洲大陆国际私法的传统价值为目标。这些发展对我国即将进行审议的《涉外民事关系法律适用法》中的合同冲突法部分的规则设计具有莫大的借鉴意义。     

论附保护第三人作用的契约

契约相对性原则历时已久 ,现代社会中附保护第三人作用契约又为其注入了新的活力。从探索该制度的产生诱因、形成经过及适用标准出发 ,对其制度作用进行了考察 ,经过分析 ,提出我国有必要引入附保护第三人作用契约。     

Interpretation and Application of the Precautionary Principle: Australia's Contribution

Australia has been a leading jurisdiction in the adoption of the precautionary principle, with widespread policy and legislative incorporation. This has paved the way for the development of a substantial jurisprudence on the interpretation and application of the principle. The international derivation of the version of the precautionary principle adopted in Australia, together with the wide range of areas in which the principle has been applied, for example biodiversity protection, environmental impact assessment, climate change, public health, etc., means that judicial consideration of the principle in Australia has the potential to form a body of common law with national and international application. Accordingly, this article reviews the adoption, interpretation and application of the precautionary principle in Australian environmental law, with a view to drawing out the general lessons this experience offers for interpretation of the principle in other, international settings .     

Good Faith and the Ubiquity of the ‘Relational’ Contract

The judgment of Leggatt J in Yam Seng Pte Ltd v International Trade Corporation Ltd shows the common belief that the English law of contract does not have a doctrine of good faith to be mistaken. That law does not have a general principle of good faith, but its doctrine of good faith, articulated through numerous specific duties, is more suitable for the interpretation of contracts according to the intentions of the parties than a general principle which invites the imposition of exogenous standards. That Yam Seng involved a relational contract does not mean that paternalistic exogenous standards should be imposed. It means that the good faith obligations essential even to a commercial contract of this sort must be implied in order to give efficacy to the fundamentally co‐operative contractual relationship.     

浅议《合同法》框架下的智能合约适用问题

智能合约是运行在区块链上能够自动履行合同义务的新型合同,因其具备"自动履行"和"去中心化"等优势,故可降低合同履行成本、提高合同运行效率,但也导致了智能合约难以直接适用现行合同制度的订立规则、生效要件和救济方式等问题。本文从理论角度分析了智能合约的运行过程,通过对合同法理论的解释使智能合约与合同制度相契合;从技术角度分析了智能合约的原理与架构,利用技术手段对其进行修正,使智能合约符合《合同法》的规定。     

合意变更商事仲裁司法审查范围在美国的发展和嬗变———兼论对我国法院处理同类案件之启示

国内理论界和实务界关于当事人合意变更涉外仲裁裁决司法审查范围的争论不多,但该类问题在美国已经争论多年,并已由联邦最高法院形成全联邦适用的判例。通过对美国相关案例梳理后提出,我国司法解释已确认《仲裁法》第 2" 条和《民事诉讼法》第 #1’ 条第 $ 款规定为强行性规则,法院应据此对当事人合意变更涉外仲裁裁决司法审查的范围裁决无效,并借鉴美国经验,针对不同情况分别提出该条款无效后的处理方案。     

The Doctrine of Legitimate Expectation & Proportionality: A Public Law Principle Adopted into the Private Law of Employment

This article examines the possible adoption of the public law principles of ‘legitimate expectation’ and the standard of ‘proportionality’ as the appropriate and cohesive legal approach to voluntary promises that are normally found in ostensibly non-contractual documents. The article argues that, allowing a further development into the principle of legitimate expectation, which has already been adopted in employment relations as a further development of the implied duty of trust and confidence, could enhance the courts’ approach to the issue of voluntary promises and avoid the unsatisfactory contractual solution that appears to produce inconsistent results. Giving particular consideration to the courts’ application of the proportionality test, thereby recognises an employee’s hierarchy of interests, when seeking to justify an employer’s decision, this article assesses how the influence of the proportionality standard can, and should, offer a more satisfactory solution when applied to resolving disputes.     

Contract Damages, Corrective Justice and Punishment

This article re-examines the established principle that contract damages compensate but do not punish from the theoretical perspective of corrective justice and, in particular, the version advocated by Professor Ernest Weinrib. Weinrib argues that corrective justice affirms the traditional view that contract damages should be circumscribed by compensatory functions, and the notion of punitive damages is inconsistent with the structure of corrective justice and hence contractual rights. The correctness of this conclusion depends, however, on what is understood by punishment. This article argues that punishment is not necessarily explicable only as a form of state punishment, but may (adopting the retributive idea of punishment expounded by Jane Hampton) also be understood as a form of correlatively-structured response that redresses the moral injury inflicted by one's conduct on another. If that is the case, punitive damages for breach of contract may be justified even within the framework of corrective justice.     

Restitutionary Remedies in the Contractual Context

Contracting parties sometimes have a claim to recover money paid in advance, or for reasonable payment for work done under the contract, commonly described as restitutionary remedies. This claim arising out of a contract is nowadays generally regarded as a non‐contractual, unjust enrichment claim governed by the modern law of unjust enrichment, by contrast with a contractual claim for damages or specific performance. The article argues that the claim is contractual, and that this is relevant to determining when it should be available and what the measure of recovery should be. In particular, it is argued that this follows from the proper understanding of the form of agreement made by contracting parties. The argument involves discussion of doctrinal categories such as contract and unjust enrichment, the relationship between primary and remedial rights in contract, the nature of contractual agreement, and the protection of reliance in contract.     

刑法解释论纲

我国的刑法解释理论应在不违背罪刑法定原则的限度内,立足于我国的经济建设和司法实践,规范司法解释并发挥其优势。刑法的解释应不限于探寻立法原意,应在阐发立法意蕴的基础上创造性地弥补刑法文本滞后性的缺陷。我国的刑法解释应顺应我国经济建设的需要,结合“主观解释论”和“客观解释论”,不断反映变化中的国民之意志,进而与我国构建和谐社会的治国理念结合起来。     

合同债权与仲裁条款转让的再审视——基于实体法、程序法和冲突法的视角

合同转让时,尤其是合同权利转让时仲裁条款是否随之转让的问题,是近年来国际商事仲裁领域的一个重要话题。目前,国内理论界的主流观点以及司法实践支持仲裁条款自动转让。但仲裁条款自动转让的理论依据并不充分,也未解决所有问题,而且对于仲裁条款转让的论证仅仅限于国内法上的视角,并未考虑国际合同转让中仲裁条款的效力和相关的法律冲突与法律适用等问题。本文旨在从实体法、程序法和冲突法的多维角度,进一步探讨合同仲裁条款转让的理论和实践问题,并对当前国内外的立法与实践进行评判,以期进一步完善我国国内的法制和实践。     

The Scope of Conversion: Property and Contract

The article asks whether the tort of conversion should be expanded so as to protect contractual rights. The suggestion, found in recent case law and academic texts, that conversion should protect contractual rights because such rights belong to the law of property is rejected. It is argued that this approach is purely semantic and ignores the fact that contractual rights have different characteristics to other kinds of rights that we typically class as ‘property rights’. The better approach, it is argued, is to ask whether it is actually possible to protect contractual rights through the tort of conversion. The article attempts to show that the absence of certain features from contractual rights, in particular the fact that such rights do not relate to a physical object and are not exigible against the world, makes the expansion of conversion extremely difficult.