Institutional competition of optional codes in European contract law

The Common European Sales Law (CESL) is the European Commission’s most recent policy initiative for European contract law. It aims to address the problem that differences between the national contract laws of the Member States may constitute an obstacle for the European Internal Market. This paper develops a model of the institutional competition in European contract law and uses it to addresses the question as to whether an optional European contract code and the CESL are economically desirable for European contract law. To do so I examine the transaction costs involved in the process of choosing an applicable law that European businesses face when they conduct cross-border transactions in the European Internal Market. I then describe how these transaction costs shape the competitive environment, i.e. what I refer to as the “European market for contract laws” in which the contracting parties choose a law to govern their cross-border contracts. Having identified this environment and the competitive forces operating within it, I propose a model, the “Cycle of European Contract Law”. I use this model to analyze the competitive processes that take place in the European market for contract laws. Based on my results I make recommendations for the optimal implementation of an optional European contract code and the CESL in European contract law.     

Two Objections to Yaffe on the Criminalization of Attempts

In his recent book Attempts, Gideon Yaffe suggests that attempts should be criminalized because of a principle he dubs the “Transfer Principle.” This principle holds that if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized. Although Yaffe provides a powerful defense of the Transfer Principle, in this paper I argue that Yaffe’s argument for it ultimately does not succeed. In particular, I formulate two objections to Yaffe’s argument for the Transfer Principle. First, I argue that a basic assumption about criminalization, on which Yaffe’s argument crucially depends, is incomplete, and Yaffe’s own attempt to supplement it undermines his argument for the Transfer Principle. Second, I argue that Yaffe’s argument does not properly account for the fact that those who merely attempt a crime and those who complete it might sometimes be responding to reasons in different ways. Accordingly, I conclude that Yaffe has not succeeded in establishing the truth of the Transfer Principle.     

Punishment and Security

Policymakers and the public widely believe that punishment can reduce crime and therefore improve security. Empirical data, however, prove the preventive effect of punishment to be very limited at best. Especially, the assumption that imposing longer sentences will reduce crime rates seems erroneous. In our opinion, this misconception is due to a confusion of time perspectives: Criminal law necessarily looks back to the past, as it reacts to a deed. Security, on the other hand, means preventing dangers, and its focus must be the future. Hence, time orientation of criminal law and the logic of protection clash. Criminal law cannot provide the security wished for. The same mistake is repeated in the prevalent theories of punishment, notably the relative or unified theories of punishment. Security cannot be achieved or fostered through harsher punishment or punishment threats. On the other hand, one means of decreasing crime is increasing the number of policemen.     

Can Self-Defense Justify Punishment?

This piece is a review essay on Victor Tadros’s The Ends of Harm. Tadros rejects retributive desert but believes punishment can be justified instrumentally without succumbing to the problems of thoroughgoing consequentialism and endorsing using people as means. He believes he can achieve these results through extension of the right of self-defense. I argue that Tadros fails in this endeavor: he has a defective account of the means principle; his rejection of desert leads to gross mismatches of punishment and culpability; and he cannot account for punishment of inchoate crimes.     

Meeting of Commonwealth Law Ministers and Senior Officials

The paper broadly captures the legal framework for the prosecution of piracy cases in Kenya, given the experience that Kenya has gained from piracy prosecutions since 2006. It also underscores the need for regional, coastal and flag states to co-operate in the repression of piracy off the coast of Somalia in line with the UN Security Council resolutions on the subject. The challenges that Kenya has encountered in piracy prosecutions are also highlighted, and suggestions on how best states can co-operate in this regard are made. International co-operation is identified as a key component to the success in combatting piracy.     

Use of trusts by Eastern European clients: practical issues

In order to get a more sophisticated understanding of the useof trusts by the clients from Eastern Europe (primarily fromRussia), it is worthwhile describing the procedure for settingup a trust with a typical representative of the ‘new wave’Eastern European business; painting a collective portrait ofRussian businessmen in 2007, and identifying the most commontypes, their specific features and the possible difficultiesof working with this sort of client. This modest unsystematicreview will help trust professionals to break through a cultureshock produced by the contact with a recent extraterrestrial,and now a demanding client. This article provides an insightinto most frequent queries and examines psychological aspectsof behavior, business practice and, if possible, to dispersestereotypes.     

Forced to make mistakes: Reasons for complaining about Bebchuk's scheme and other market-oriented insolvency procedures

Bebchuk's proposal for bankruptcy reform is analysed, in particular his claim that using options is fair and prevents justified complains. However, the proposal has a systematic bias against junior creditors and former shareholders because they have to pay for unavoidable mistakes in estimating the company's value, may lack the financial resources to exercise their options and lose by a day of reckoning. A market solution will be specified that is simpler and at least as fair as Bebchuk's scheme according to his own standards. However, a complete solution to these problems may have to be a non-market one. JEL Classification G33 · K39 · K22     

Die Bewirtschaftung der genetischen Ressourcen des Tiefseebodens – Ein neues Seerechtsproblem?

Die genetischen Ressourcen des küstenfernen Tiefseebodens rücken angesichts ihrer besonderen biochemischen Eigenschaften zunehmend in den Vordergrund des wirtschaftlichen und wissenschaftlichen Interesses. Vorliegender Beitrag befasst sich mit der Frage, inwiefern eine nachhaltige Bewirtschaftung dieser Ressourcen vom geltenden See- und Umweltv?lkerrecht erfasst wird. Er legt den Schwerpunkt auf die Durchsetzung der einschl?gigen Hohe See-Bestimmungen und erteilt rechtspolitischen Forderungen nach einer Ausdehnung des Meeresbodenregimes eine Absage.