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The Connotation of Criminal Procedure Contract  [PDF]
Xuejing Du, Yu Zhang
Beijing Law Review (BLR) , 2022, DOI: 10.4236/blr.2022.134046
Abstract: With the development of rule of law theory and judicial practice, contract theory has penetrated from private law to public law. As one manifestation of public law contract, criminal procedure contract is specific, moderate and exclusive. It has a profound theoretical foundation, such as the thought of criminal integration, theory of procedural subject and theory of criminal litigation right, etc. On the basis of will autonomy, the criminal procedure contract innovates the way of resolving criminal disputes, balances the interests of all parties, and guarantees the subject status of the parties.
A Utopia or Reality: Possibility of Using the Proper Law of Contract throughout an International Commercial Arbitration Claim  [PDF]
Karawita Arachchige Akalanka Nuwan Thilakarathna
Beijing Law Review (BLR) , 2021, DOI: 10.4236/blr.2021.121001
Abstract: International commercial arbitration has become the most favoured method of dispute resolution in the international arena since it has the capability of providing a win-win situation for the parties involved in the dispute which is not available under ordinary litigation. However, since arbitration is a matter of choice for the parties, the concept of party autonomy sometimes makes the arbitration process a difficult one to be conducted with the vigor that is found under court proceedings. One main reason for this can be seen in the multiplicity of laws that are involved in settling the dispute from the agreement to arbitrate to enforcing the claim. This article therefore looks at the possibility of adopting the proper law of contract to be applied throughout the process of arbitration in settling the dispute. Using the doctrinal approach by using international legal instruments, statues and decided case law as primary sources and using scholarly articles and books written on the subject, the results have shown that, while being highly optimistic, such an endeavour is not still possible since there is no single international legal document which deals with the whole process of arbitration and in such an absence,？it seems difficult at the moment to use a single system of law throughout the arbitration process. Nevertheless, the article makes suggestions as to how such a mechanism could be implemented and the possible prospects and challenges in making this utopia a reality.
Intention to Create Legal Relations and the Reform of Contract Law: A Conservative Approach in the Modern Global Era  [PDF]
Zhixiong Liao
Beijing Law Review (BLR) , 2013, DOI: 10.4236/blr.2013.42011
Abstract: This paper is partially to refute the submissions by Gulati’s article recently published on Beijing Law Review which proposes abandoning the requirement of proving intention to create legal relations for the formation of an enforceable contract. After a critical analysis of the abandonists’ arguments, this paper argues that intention to create legal relations is the “marrow of contractual relationships” and the arguments for abandoning such a requirement because of the existence of consideration and/or offer and acceptance as test(s) of contractual enforceability is untenable and unconvincing. Consideration and/or offer and acceptance may be evidence of serious intention to be bound somehow but unnecessary intention to be bound legally. For a number of reasons, the doctrine of consideration is very unlikely to work any better than the intention to create legal relations test. If a test of contractual enforceability must be abandoned, that should be the doctrine of consideration rather than the intention to create legal relations. This paper compares the current positions of some common law jurisdictions, upholds the needs of stability, consistency, and the harmonisation of contract law in the modern global era, and proposes a conservative approach of contract law reform regarding the intention requirement and the related presumptions, that is, all common law jurisdictions should “go back” to the orthodox English position.
Comparison of time adjustment clauses between DZ3910, AS4000 and STCC
David Finnie
Australasian Journal of Construction Economics and Building , 2013,
Abstract: This article examines time adjustment clauses, as they relate to time adjustment between standard terms of construction contracts. DZ3910, AS4000 and STCC were compared on the basis of how risks are allocated, how this may impact on the contractor’s pricing, and ease of understanding for each clause. ASTCC was found to be the most easily interpreted contract, followed by AS4000 and then NZS3910. These assessments were based on the following: a) whether each contract contains words with multiple meanings, b) the number of words used per sentence, c) the amount of internal cross-referencing, and d) the clarity of the contract structure. The allowable pre-conditions for the contractor to claim a time adjustment are similar for all three contracts, and none of them expressly state which party is to bare the risk of buildability, or address the risk of a designer’s disclaimer clause. All of the contracts adopt the principle of contra preferentum which means that the employer bares the risk of variance if there are any ambiguities in the design documentation. Due to their similarities of risk allocation, all of the contracts provide the employer with a similar amount of price surety. AS4000 is the only contract to contain a stringent time-bar clause, limiting a contractor’s time adjustment claim. ASTCC requires the contractor to apply ‘immediately’ and DZ3910 provides a time-bar of 20 working days or as soon as practicable. None of the contracts clarify whether their timing requirements take precedence over the prevention principle, or over any other ground for claiming a time adjustment. The effect of DZ3910’s pre-notification clause 5.19.3 is discussed, and an alternative contents structure is recommended for DZ3910, using a project management method.
'Intention to Create Legal Relations': A Contractual Necessity or An Illusory Concept  [PDF]
Bhawna Gulati
Beijing Law Review (BLR) , 2011, DOI: 10.4236/blr.2011.23013
Abstract: 'Intention to create legal relations' forms the basic ingredient of any valid contract in many jurisdictions around the world. The paper argues that such requirement is neither required nor is purposeful if any particular jurisdiction has 'Consideration' as the basic requirement to prove the formation of validly formed contract. The paper postulates that 'consideration' in itself is, and should ideally be, indicative of such intention. Therefore, as far as common law countries are concerned, 'consideration' in itself should be capable of dealing with the intention of the parties and there should not be any separate requirement of proving an 'intention to create legal relation'. By natural corollary, the requirement to prove such 'intention' can be justified in countries where 'consideration' is not a requirement for a form- ing a valid and legally enforceable contract. The paper, while dealing with the proposed postulations, also deals with the difference in presumption with regard to such intention while dealing with contractual relations that arise in do- mestic set-up as differing from those arising in a commercial set-up.
SALE UNDER THE ROMAN TRADITION VERSUS INTERNATIONAL SALE: A COMPARISON OF MODELS
dalla Masara, Tommaso
- , 2012,
Abstract: Sa？etak This paper examines different models of remedies in the event of material defects of sold goods. In particular, it focuses on the model of warranty that is characteristic of the Roman tradition, as well as on the model of ‘duty to perform’, introduced by the CISG (i.e. Vienna Convention). The latter models are analyzed by means of a synchronic and diachronic comparison
ANáLISIS CRíTICO DEL PROCESO DE ARMONIZACIóN DEL DERECHO CONTRACTUAL EN LA UNIóN EUROPEA
Momberg Uribe,Rodrigo;
Revista de derecho (Valdivia) , 2009, DOI: 10.4067/S0718-09502009000100001
Abstract: the following paper critically analyzes the so-called harmonization process in european private law, specifically in matters of contract law. it is hoped to demonstrate that this process does not present sufficient legal foundation to justifying the general or horizontal harmonization measures that are supposed to be taken, in which the elaboration of a common frame of reference in european contract law stands out.
The fixed-term employment contract as an atypical contract
Buklija？, Boris
- , 2006,
Abstract: Sa？etak It is indisputable that there are cases when by the nature of things it is necessary to conclude a fixed-term employment contract because there are activities which may obviously last only for a fixed term (for instance seasonal activities) and which are terminated upon the expiration of this term or the occurrence of a certain event. Such contracts are, therefore, exceptions to the rule according to which employment contracts are primarily concluded for an open-ended period of time and they are, by their character, atypical contracts of labour law. In contemporary circumstances of life and work through the so-called social globalization and more flexible employment relations, the number of concluded fixed-term employment contracts has considerably increased, even in those legal systems which have traditionally set strict legislative frameworks for their application. This is confirmed by the analysis of the situation in some European countries and the European Union in which there are attempts to reduce the application of fixed-term employment contracts only to the cases when it is really necessary, or if they satisfy best interests of employees and employers. Nevertheless, in reality the situation is such that, recently, they catch up with and even exceed the number of typical open-ended contracts of employment. Namely, such contracts more and more destruct the typical open-ended employment relation, and what used to be an exception, is actually becoming the rule
区块链智能合约的合同法研究
Contract Law Research of Blockchain Smart  [PDF]
董乐祎
Dispute Settlement (DS) , 2023, DOI: 10.12677/DS.2023.92057
Abstract: 近些年来人们热衷于炒比特币等数字货币为自己带来巨大收益，这些数字货币的交易需要通过区块链中的智能合约来实现。未来人们对数字货币的需求会越来越大，区块链中的智能合约的作用也就越来越重要。智能合约是以互联网区块链技术为载体形成的，其自身具备技术性，因此在合同订立、合同生效和执行方面实现了自动化和智能化，但是智能合约在保证了合同订立的高效、便捷的同时，也给传统的合同法带来了挑战，比如涉及到合同的订立、撤销权的丧失和违约救济，由此引发了一系列问题，因此我们需要对智能合约与合同法之间的关系进行研究。本文先对区块链进行了解释，然后分析了智能合约与传统合同之间的关系，通过研究相关法律制度，希望能为区块链智能合约制度完善提供相应合同法指引。
In recent years, people have made huge profits betting on digital currencies like bitcoin, which are traded through smart contracts in the blockchain. In the future, the demand for digital currency will increase, and the role of smart contracts in blockchain will be-come more and more important. The smart contract is formed by the Internet blockchain technol-ogy as the carrier, which has its own technology, so it realizes the automation and intelligence in contract conclusion, contract validity and execution. However, the smart contract not only ensures the efficient and convenient contract conclusion, but also brings challenges to the traditional con-tract law, such as the conclusion of the contract, the loss of the cancellation right and the relief for breach of contract. This raises a series of problems, so we need to study the relationship between smart contract and contract law. This paper first explains blockchain, and then analyzes the rela-tionship between smart contract and traditional contract. By studying relevant legal systems, it hopes to provide relevant contract law guidance for the improvement of blockchain smart contract system.
Lex Arbitri, Lex Curia and Lex Contractus in Brazilian Jurisdiction  [PDF]
Renata Thiebaut
Beijing Law Review (BLR) , 2016, DOI: 10.4236/blr.2016.72014
Abstract: International arbitration arose as a global phenomenon with the growth of transcontinental trade in a progressive smaller world. As its role and importance have become defined, the use of arbitration as an alternative dispute resolution has increased all around the world accordingly. However, even with unified international documents, such as the 1958 New York Convention, 1965 Washington Convention, 1985-2006 United Nations Commission on International Trade Law, or UNICITRAL Model Law, arbitration has been approached differently domestically, thus facing conflicts or controversies. This paper has as main objective to explain the key points concerning arbitration within the Brazilian legal system. The evolution of arbitration will be studied since the Iberian Union in the colonial era in order to bring about the formation of its legal characteristics. Besides, the current Brazilian Arbitration Act, promulgated in 1996, will be analyzed focusing on its provision gaps. The Sulamerica-Enesa arbitral award will be the case study of this paper, which will contribute to a better understanding of the increase in conflicts with the use of this method of dispute resolution. Last, an overview of the Brazilian arbitration legislation as well as its “gaps” will determine that in spite of arbitration being successfully implemented in Brazil, there is still an eminent need to improve legislation, which will be substantial to avoid further conflicts in lex arbitri, lex curia and lex contractus within arbitration itself.
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