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Lost in Translation: Interpreting Diverging but Equally Authentic CISG Texts
Get PDFThere are six different authentic CISG texts, which are to be deemed equally authoritative. Despite the efforts during the diplomatic conference, the texts encompass divergencies amongst their provisions. The issue raises a question as to the uniform interpretation of the CISG. This article examines some of the specific instances of discrepancy and how to resolve them under the CISG and the Vienna Convention of the Law of Treaties. It also discusses the issue of how parties may expressly or impliedly choose under Article 6 CISG a specific authentic or nonauthentic version of the CISG to govern their contract
The Formation of the CISG Contracts (Smart Contracts and Artificial Intelligence)
Get PDFThe 1980 Vienna Convention on Contracts for the International Sale of Goods (CISG) is currently the law of ninety-seven countries around the world. Part II (Formation of the Contracts) deals with the conclusion of the contract by way of the meeting of minds through offer and acceptance. CISG has been able to adapt to modern electronic means of communication such as email, despite the fact that the means of communication mentioned in the CISG are the ancient telegram and telex.When dealing with the electronic contract of sale, we are referring to those in which the offer and acceptance are made by electronic means, as derived from the rules of the offer and the acceptance under the CISG.In short, we are thinking about computers—today also mobile phones—connected to a network (internet). From this perspective, every purchase and sale contract under the CISG is capable of being concluded by electronic means following the classic and universal parameter (we find it in all legal systems in the world) of consent through the two declarations of will that give life to the contract, the offer and the acceptance. The offer and acceptance as a mechanism well present in the life of the contract and not only in its formation since other issues such as its modification or termination are observed under those parameters.The Vienna Convention has demonstrated its flexibility by adapting and applying without problems to electronic contracting. Technologies are evolving rapidly and we no longer question the validity of contracts concluded through electronic means but new and interesting perspectives emerge, as well as various legal problems that can be associated with the era of the digital economy, from the use of platforms as an intermediary in the contracting of goods or services—or simply as a meeting place or recreational or social exchange—when not as part of the commercial contracts themselves, the use of computer programs in the formation and performance of the contract, legal transactions on data, or the use of artificial intelligence in contracting.From a legal perspective, the question is whether the CISG, which is a traditional instrument of contract law, is sufficient to respond to the problems posed by the digital economy, specifically in the rise of the so-called SmartCcontracts, and the use of Artificial Intelligence (AI) in the formation of the contract
Corporate Governance in China: Shareholder Primacy under the Chinese Communist Party’s Influence
Get PDFChina, as a nominally socialist country, has a shareholder-primacy corporate governance model. Chinese company law grants shareholders strong rights, and Chinese companies have concentrated shareholding structures. As a result, shareholders can effectively dominate the board of directors and control the company. However, Chinese shareholders and companies are ultimately subject to the influence of the Chinese Communist Party (CCP). By drawing on empirical data, this article argues that Chinese corporate governance is sui generis. Shareholder primacy and party influence merge in a party-centered governance model in SOEs with party organizations (the CCP’s grassroots branches) dominating major decision-making. In private companies, shareholder primacy is the norm, and stakeholders are vulnerable to management’s exploitation and opportunism. The CCP sometimes intervenes to protect stakeholders but sometimes sides with companies. Its stance depends on its policy goals, which might vary from case to case and from time to time
Closing the Reverse Revolving Door: Proposed Restrictions on Employees of Contractors Seeking Government Employment
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International Commercial Courts "Made in Germany": Attractive Alternative for Big Business?
Get PDFOver the past two decades, jurisdictions in the Gulf Region, Asia and Europe have established special judicial bodies to settle international commercial disputes. Commonly referred to as “international commercial courts” these bodies are distinct from other (local) courts in that they display innovative features with regards to their institutional and procedural design which are geared towards greater internationalization. However, not all of these courts have turned out to be a resounding success. A case in point are the international commercial courts – or, more precisely: the international (commercial) chambers – that have been established at regional courts (Landgerichte) in Germany during the past 15 years: They have not managed to attract a large number of cases, most likely because they did not offer enough benefits to induce parties to change their dispute resolution habits. In fact, since the overall legislative framework remained unchanged, they were bound by the general rules and regulations of German law, notably the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG) and the Code of Civil Procedure (Zivilprozessordnung – ZPO). The newly founded chambers could, therefore, only make use of the leeway that was granted by these rules and regulations. And the leeway was certainly limited. The use of English as court language, for example, was confined to the oral hearing and the submission of English-language evidence whereas all party briefs as well as all court orders, the records of the proceedings as well as all judgments had to be made in German. Moreover, there was no certain prospect for an English-language second and third instance.
However, a new Law adopted by the German Federal Legislature in late 2024 gives hope that things are about to change. Called “Law on the Strengthening of Germany as a Place to Settle Disputes” (Justizstandort-Stärkungsgesetz) the new Law amends both the Courts Constitution Act and the Code of Civil Procedure with the aim of making German courts more attractive places to settle international commercial disputes and in the hope of improving Germany’s position vis-à-vis recognized litigation and arbitration venues, notably London, Amsterdam, Paris and Singapore. Specifically, it allows (certain) courts to conduct proceedings completely in English. And it allows the German federal states (Bundesländer) to establish specialized “commercial courts” that may hear certain high-volume (international) commercial disputes in an arbitration-style fashion.
In the article we explore whether the new Law will make German courts an attractive alternative for “big business” – and a serious competitor for foreign courts and international commercial arbitration. To this end, we contextualize the new German Law by giving an overview of the German civil justice system, the current German dispute resolution landscape and the global trend to establish specialized courts for international commercial disputes (part II.). We move then on to discuss the details of the new German Law (part III.) before we offer some thoughts on its likely impact on the dispute resolution landscape in Germany and beyond (part IV.). All in all, we show that the new Law introduces welcome innovations that will actually improve the framework conditions for the settlement of international commercial disputes in Germany. However, we also demonstrate that shortcomings remain that will prevent German courts from becoming serious competitors for leading international commercial courts as well as international commercial arbitration
Recailibrating the Use of Zero-Day Vulnerabilities
No full textZero-day vulnerabilities in critical software systems are of the highest priority for government agencies, black market hackers, and private software vendors. Each of these parties has different priorities and uses for zero-day vulnerabilities, but because of the global economy’s reliance on technology and software, they represent a significant threat to much of the critical infrastructure of the United States. The United States Intelligence Community is among one of the most sophisticated players in the zero-day market, and their decision making with respect to these unknown vulnerabilities has widespread impacts. This note examines the current state of the Vulnerabilities Equities Process, the executive branch policy designed to weigh various equities when determining the fate of a zero-day vulnerability discovered by the Intelligence Community; to use the zero-day to collect intelligence or to disclose the vulnerability and see that it is patched. I argue that the current Vulnerabilities Equities Process does not produce the most optimal outcomes, and that the decision making process must be ‘recalibrated’ to properly weigh all relevant equities and to ensure that zero-day vulnerabilities are not being used irresponsibly
Smells Like Teen Exploitation: Nirvana\u27s Nevermind Album Lawsuit and its Relation to Child Privacy Rights Online
Get PDFThe naked baby on the band Nirvana’s popular album, Nevermind, who is now in his thirties, sued Nirvana and other associated individuals in 2022 on the grounds that the cover of the album depicted child pornography. This note examines the validity of the lawsuit, as well as how “going viral” around the world can affect children, even before the Internet and social media. However, this note specifically assesses how social media can be detrimental on children and their development, especially when those children are social media influencers. Additionally, this note will discuss the current online privacy laws and how they can be improved to better protect one of our society’s most vulnerable population demographics