Author Archives: Lorenz

On the Diverging Conceptions of Fairness in English and Bulgarian Contract Law: The Peculiar Transformation(s) of Roman Causa

by Radosveta Vassileva*

(2019) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite

This paper examines the distinct roles, which the Roman doctrine of ‘causa’ acquired in English and Bulgarian contract law, to challenge popular beliefs entertained by common law and comparative scholars and to demonstrate the peculiar mechanisms through which the conception of fairness in contract law evolves. While leading contemporary English scholars argue that the doctrine of consideration is a unique common law doctrine, an historical inquiry reveals that it is a direct descendant of Roman ‘causa’, which also made its way into continental systems. At the same time, many comparative scholars assert that, despite differences that may exist on the surface, the common law doctrine of consideration and the continental doctrine of ‘cause’ often reach the same results in similar circumstances. By using Bulgarian law as a case study, which has been subjected to the competing influences of Romanistic and Germanic legal traditions, this paper shows why this argument is misleading. Notably, in England, consideration remains primarily a question of form. In Bulgaria, however, turbulent political changes have created opportunities for scholarly and judicial activism. Thus ‘causa’ was moulded into a powerful tool against substantive unfairness in agreements which courts rely on even in modern times.

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Articles (Test)

2019

  1. Radosveta Vassileva: On the Diverging Conceptions of Fairness in English and Bulgarian Contract Law: The Peculiar Transformation(s) of Roman Causa

2018

  1. Robert Diab: Does the State Have a Compelling Interest in Searching Device Data at the Border? Emerging Approaches to Reasonable Search in Canada and the United States

2017

  1. Thomas S. Woods: Paragraph 168: A Cautionary Tale Concerning the Circulation of Draft Judgments to Counsel
  2. Pranoto Iskandar: Indigenizing Constitutionalism: A Critical Reading of “Asian Constitutionalism”
  3. Arvind Pillai, Raghav Kohli: A Case for a Customary Right to Privacy of an Individual: A Comparative Study on Indian and other State Practice

2016

  1. Khalid Ghanayim and Mordechai Kremnitzer: Offences against the Democratic System of Government
  2. Georgina Dimopoulos, Andrew Mitchell and Tania Voon: The Tobacco Industry’s Strategic Use of Freedom of Information Laws: a comparative analysis
  3. Chris D. L. Hunt and Nikta Shirazian: Canada’s Statutory Privacy Torts in Commonwealth Perspective
  4. Giorgio Fabio Colombo and Hiroshi Shimizu: Litigation or Litigiousness? Explaining Japan’s “Litigation Bubble” (2006-2010)

2015

  1. Peter L Reich: Regime Change and Legal Change — The legacy of Mexico’s Second Empire
  2. Lorne Neudorf: Judicial Independence: The Judge as a Third Party to the Dispute

2014

  1. Paul Hughes: Sentencing councils and commissions: an exception to Damaška’s two ideal types?
  2. Orlan Lee: New Packaging for Left-Over Big Data: “Identity Proofing” and “Equality Monitoring”

2013

  1. Baroness Hale: The Protection of Human Rights in the United Kingdom
  2. Christian Kirchner and David Ehmke: Economics of Legal Concepts for Management Compensation Schemes in the Credit Sector and of their Regulation – A Critical Contribution to the European Regulatory Discussion

2012

  1. Lorena Carvajal-Arenas and A F M Maniruzzaman: Cooperation as Philosophical Foundation of Good Faith in International Business-Contracting — A View Through the Prism of Transnational Law
  2. Andrea Marco Steingruber: The Mutable and Evolving Concept of ‘Consent’ in International Arbitration
  3. Christian Kirchner and David Ehmke: Private Ordering in Sovereign Debt Restructuring: Reforming the London Club

2011

  1. Camilo A. Rodriguez-Yong: The Doctrines of Unconscionability and Abusive Clauses: a Common Point Between Civil and Common Law Legal Traditions
  2. European Research Group on Existing EC Private Law (Acquis Group): Draft for a First Chapter (Subject Matter, Application and Scope) of an Optional European Contract Law
  3. Tobias Schrank: Legal Aid in Times of Economic Turmoil: Current Challenges in England and Germany

2010

  1. Willem H. van Boom: Juxtaposing BTE and ATE: the Role of the European Insurance Industry in Funding Civil Litigation
  2. Osita Mba: Judicial Review of the Prosecutorial Powers of the Attorney-General in England and Wales and Nigeria: an Imperative of the Rule of Law

2009

  1. Anthony Gray: The Regulation of Electoral Financing
  2. Hwa-Jin Kim: The Case for Market for Corporate Control in Korea
  3. European Research Group on Existing EC Private Law (Acquis Group): Position Paper on the Proposal for a Directive on Consumer Rights
  4. Rashmin Khandekar: Is The Legislative Policy on Legitimacy Really Legitimate?
  5. Junwei Fu: Towards a Social Value Convergence: a Comparative Study of Fundamental Principles of Contract Law in the EU and China
  6. Chris D. L. Hunt: Unjust Enrichment Understood as Absence of Basis: a Critical Evaluation with Lessons from Canada

2008

  1. Duncan Sheehan: Unjust Factors or Restitution of Transfers Sine Causa
  2. Alan Berman: The Experiences of Denying Constitutional Protection to Sodomy Laws in the United States, Australia and Malaysia: you’ve come a long way baby and you still have a long way to go!
  3. Lord Mance: Britain’s Emerging Constitution?
  4. Charles Zhen Qu and Björn Ahl: Lowering the Corporate Veil in Germany: A Case Note on BGH 16 July 2007 (Trihotel)

2007

  1. Andreas Rahmatian: Codification of Private Law in Scotland: Observations by a Civil Lawyer
  2. Guy E. Carmi: Dignity – The Enemy from Within: A Theoretical and Comparative Analysis of Human Dignity as a Free Speech Justification
  3. Khalid Ghanayim: The Role of Reasonable and Unreasonable Mistake in Justified Defences – A Comparative and Analytical Study
  4. Mathias M. Siems: The Adjudication of the German Federal Supreme Court (BGH) in the Last 55 Years – A Quantitative and Comparative Approach

2006

  1. Reinhard Zimmermann: The German Civil Code and the Development of Private Law in Germany
  2. Hwa-Jin Kim: Directors’ Duties and Liabilities in Corporate Control and Restructuring Transactions: Recent Developments in Korea
  3. Elise Groulx: “Equality of Arms”: Challenges Confronting the Legal Profession in the Emerging International Criminal Justice System
  4. Mark Freedland: Application of Labour and Employment Law Beyond the Contract of Employment

2005

  1. Charlotte J. Romano: Comparative Advertising in the United States and in France
  2. Alan Berman: The Law on Gender Parity in Politics in France and New Caledonia: A Window into the Future or More of the Same?
  3. Karen Eltis: Society’s Most Vulnerable Under Surveillance: The Ethics of Tagging and Tracking Dementia Patients With GPS Technology: A Comparative View
  4. David Bradley: A Note on Comparative Family Law: Problems, Perspectives, Issues and Politics
  5. Mohammed Saif-Alden Wattad: “Did God say, ‘You shall not eat of any tree of the garden’?”: Rethinking the “Fruits of the Poisonous Tree” in Israeli Constitutional Law

2004

  1. John Yukio Gotanda: Compound Interest in International Disputes
  2. In Memoriam Peter Birks
  3. Lama Abu-Odeh: Modernizing Muslim Family Law: The Case of Egypt
  4. Sue Farran: A Microcosm of Comparative Law: the Overlay of Customary, French and English Family Law in Present Day Vanuatu
  5. Orlan Lee: Systems Dynamics in the Law: A Comparative Approach to Certainty in the Common Law and Reviewability of Past Decisions

2003

  1. Beatriz Añoveros Terradas: Restrictions on Jurisdiction Clauses in Consumer Contracts within the European Union
  2. Orlan Lee: The Many Realms of Chinese Labour Law. Theory and Implementation of PRC Labour Law Reform
  3. Xiang Gao and Ross P Buckley: A Comparative Analysis of the Standard of Fraud Required Under the Fraud Rule in Letter of Credit Law.
  4. Mohamed El Zeidy: Universal Jurisdiction In Absentia: Is It A Legally Valid Option for Repressing Heinous Crimes?
  5. Albrecht Cordes: The search for a medieval Lex mercatoria

2002

  1. Armin Hadjiani: Duress and Undue Influence in English and German Contract Law: a comparative study on vitiating factors in common and civil law.
  2. Peter Schlechtriem: The German Act to Modernize the Law of Obligations in the Context of Common Principles and Structures of the Law of Obligations in Europe.
  3. Michael Bütter: Cross-Border Insolvency under English and German Law.
  4. Iain Stewart: Critical Approaches in Comparative Law.
  5. Maik Martin: Constitutional review of foreign law in English and German courts.
  6. Montesquieu | Iain Stewart (ed/tr): Montesquieu in England his ‘Notes on England’, with Commentary and Translation.

2001

  1. Jeroen Kortmann: Liability for Nonfeasance; a comparative study.
  2. David Bradley: Convergence in Family Law: Mirrors, Transplants and Political Economy.
  3. Peter Schlechtriem: Privacy, Publicity and Restitution of Wrongful Gains: Another New Economy?
  4. Otto Pfersmann: Le droit comparé comme interprétation et comme théorie du droit. [Comparative Law as Interpretation and as Theory of Law]
  5. Gerhard Dannemann: Haftung für die Verletzung von Verfahrensgarantien nach Art. 41 EMRK. Zur Herausbildung europäischer Haftungsmaßstäbe [Compensation for violation of procedural rights under the European Convention on Human Rights]
  6. Francesco Giglio: Restitution for Wrongs: a Comparative Analysis

2000

  1. Peter Birks: At the Expense of the Claimant: Direct and Indirect Enrichment in English Law.
  2. Mindy Chen-Wishart: In Defence of Unjust Factors: a study of rescission for duress, fraud and exploitation.
  3. Thomas Krebs: In Defence of Unjust Factors.
  4. Gerhard Dannemann: Illegality as Defence Against Unjust Enrichment Claims.
  5. William Swadling: The Role of Illegality in the English Law of Unjust Enrichment.
  6. Lionel Smith: Property, Subsidiarity, and Unjust Enrichment.
  7. Simon Whittaker: Performance of Another’s Obligation: French and English Law Contrasted.
  8. Ralph Surma: A Comparative Study of the English and German Judicial Approach to the Liability of Public Bodies in Negligence.

Does the State Have a Compelling Interest in Searching Device Data at the Border? Emerging Approaches to Reasonable Search in Canada and the United States

by Robert Diab*

(2018) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article

Courts in Canada and the United States currently hold warrantless and groundless device searches at the border to be reasonable. They do so by assuming the state’s pressing interest in search at the border extends to the search of device data at the border. Apex courts in both nations have yet to address the issue. Yet in recent cases on device searches on arrest (Fearon and Riley) both courts have made holdings about privacy and the state interest in device searches that run contrary to assumptions in the border search cases. In the wake of Fearon and Riley, courts in border cases have conceded the greater privacy in device data but have tended not to question assumptions about the state interest in data search at the border.

This paper examines the development of the law on border device searches in both nations with three aims. The first is to show that governments and courts have not been sufficiently critical of state interest in assessing reasonable border data searches. The second aim is to consolidate critical opinion on the nature of the state’s interest in border data searches, and to add the argument that the state has a less pressing interest in data search here than in the search of a person’s body, calling for a higher standard than reasonable suspicion. The third aim is to demonstrate that in recent reform efforts in Parliament and Congress, lawmakers have begun to question whether groundless border device searches are reasonable but have lacked clarity on state interest. The paper concludes by suggesting that reasonable search should be assessed in this context by foregrounding the question of state interest and taking an evidence-based approach, and that doing so supports a warrant standard.

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A Case for a Customary Right to Privacy of an Individual: A Comparative Study on Indian and other State Practice

by Arvind Pillai, Raghav Kohli

(2017) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article

Privacy as a concept has been hotly debated with regard to its role in an individual’s personal sphere since antiquity. The inception of international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, along with institutions such as the United Nations, the Inter-American Commission on Human Rights and the Council of Europe, have made the codification of privacy a global concern. However, despite the inception of these institutions, several states have refused to codify and respect privacy as a fundamental right guaranteed to an individual. Thus, the need arises to highlight the development of a right to privacy as a customary right with the help of widespread state practice around the world. The most recent country to address the question of what status privacy holds in the legislative framework of that state is India. Here a unique identifying number is provided to each citizen based on biometric and demographic information. Known as the ‘Aadhaar’ scheme, this is giving rise to grave concerns about bodily integrity, informational self-determination, and decisional freedom. Indeed, a nine-judge Constitution Bench has just unanimously affirmed that the right to privacy is a fundamental right under the Constitution of India (Justice K S Puttaswamy (Retd.), and Anr v Union of India and Ors (2017) 10 SCC 1)
This article traces the evolution of the right to privacy in India, starting with an exploration of its conception in the Constituent Assembly Debates of the longest Constitution in the world. It attempts to ascertain the intent behind the exclusion of the right to privacy as a fundamental right from the Constitution, and analyses the contemporary position developed by the inconsistent jurisprudence of the Courts in India. Finally, by scrutinizing the practices of states from around the world, it argues that the right to privacy, and in particular data privacy, can be considered a binding principle of customary international law.

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Indigenizing Constitutionalism: A Critical Reading of “Asian Constitutionalism”

by Pranoto Iskandar *

(2017) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article

The intense rise of the “Rest” has not only significantly wrought the real-world dimensions of the political and economic global landscape, which marked the power shift from the traditional West, but serenely introduced a different kind of intellectualism that challenges the Enlightenment based orthodoxies that have typically supported the liberal tradition. As a distinct scholarly strain, this vantage point of the “other” primarily rests on the binary self-proclaimed indigeneity, i.e. the native values of a society, that eventually challenges the legitimacy of the once well-established notions such as the rule of law, separation of power, secularism and constitutionalism that are the indisputable buttresses of democracy. In that light, this article situates the emerging ni debate on a distinct model of constitutionalism in Indonesia and the surrounding countries as the most current rebellious streak against the liberal constitutionalism. In so doing, more specifically, this article critically examines the application of the indigeneity-based arguments in the context of the discourse on constitutionalism. Rather than speaking for the population that they are purportedly representing, this article finds that the indigeneity-based arguments are no less alien than the liberal model that they despise as both culturally and sociologically estranged.
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