Commercial Law - Science topic

ameer hjazia

Freedom of contract can be defined –or so I propose- as the "the power of natural or legal persons to create, modify, regulate or extinguish property relations by means of acts of private autonomy based on the exchange of declared wills, issued personally or by a representative, which lays down rules of conduct whose content and modalities are primarily determined by the contracting parties themselves- .To Contractual mercantile Autonomy or Freedom you can attribute a double nature: objective and subjective. " Prima facie ", it appears as the generating force of the juridical act; what the juridical act makes be born, though precisely in all that he turns out to be fitted to a more wide system: the juridical Order. This way, the private autonomy might be qualified very well as a General Legal Principle; "Source of Law" in Spanish Civil Code. But, if a subjective perspective is adopted, it shows the features of a civil right, and - therefore - its essence consists of a faculty or bundle of powers; a dominion of the will, to the service of a legitimate interest, which awards possibilities of personal action or exercised through an agent or representative, oponibles and enforceable in relationship to other subjects. Such a faculty consists of a possibility of choosing between several alternatives, so that his exercise should not endure any negative -I mean legally negative- consequence, also do not even subject to any legal burden or punishment, though this one is an affirmation that we must understand always as a relative one. The alternatives to the diverse objects of this Freedom, and the legitimate interest, to whose satisfaction institutionally serve the set of powers, that one is quite an interest that is not opposite to the Law, to the Morality or to the public Order. To these notes we must add the additional one, though absolutely essential: this civil right is original, and not derivative; it is not a power that "awards" or "attributes" the objective Law, but it is an area of freedom that the Law "recognizes", since it is a question of something inherent in the nature of the human Being.

If the essence of commercial contractual autonomy refers to what it is "in se", the content, or –better - its object refers to which aspects or at what levels that freedom is manifested; to what does it gives the right to? What acts or behaviors does it permit to you? Well; If the elements of any contract are consent, object, "causa" -let's say "consideration"- and form, and if - furthermore - the Contract, as a legal act or statement of will, is a human act that unfolds in the realm of a reality framed by time and space, and even surrounded by other circumstantial references, it seems logical that - in general - autonomy should extend to each and every aspect of legal business. Commercial contractual freedom is a subjective right consisting of the power to choose each and every one of the elements and aspects of the contract, as an act of private autonomy, as a legal relationship and as a "lex Privata": of its elements [consent, etc.]; its formative "iter", its form, etc. And also the choice of Lay and Jurisdiction whenever contract in an international contract. So, freedom of choice of law and jurisdiction may also be included, in relationship to "international contracts", such as the international sale of goods, inland crossborder carriage, international maritime or air contracts of carriage and/or charterparties, export credits and documentary banking operations, for the payment and guarantee of international trade operations, export credit insurance; also industrial or transforming activities and even the transboundary construction of infrastructures, and thus a long "et caetera". "Prima facie", the "International Contract" is a contract that expresses the will of the parties to constitute international relationships for the exchange of goods and services. In addition, it is the most important legal form of relationship –or form of legal relationship- to order the operations of agents of international trade . In a classical sense, the concept of "International contract" refers to any contract in which the "foreign element" is subject to the rules of conflicts international law. But this classical notion has been overtaken by another one that would identify it as one that "claims a treatment 'sui generis'"; a "contract without law" [without national law], because it creates and governs trade relations of exchange that exceed the borders of a single country... and its national or inner legal system, but with it the issue is not resolved, but moves to establish how the excess occurs; in what way or for what reason, the terms of trade exceed those strictly internal, since multiple criteria can be used: subjective [the establishment, registered office or residence of the parties are located in different States], objectives [because the object of the contract is in another State, or because the price is paid in foreign currencies] or functional: the fact that the contract has "significant links with several States" or has been concluded in a State other than the State of domicile, etc. of at least one of the parties. International contracts can be practically all statutory contracts, as well as atypical and unnamed ones, since ultimately it is not the contractual "type" -statutory or codified type of contract- that determines internationality. Therefore, in international contracts there exists also the freedom of choice the contractual type itself; the kind of contract one wishes to enter in. The "Unidroit Principles on International Contracts" and RegulationCE. No 593/2008 of the European Parliament and of the Council, 17.06.2008 on the law applicable to contractual obligations (Rome I), omitted any definition and even removed any reference to this concept. But, anuway, there is also here private autonomy, with the same content as in other areas of internal contracts, should perhaps give more emphasis to the freedom of arbitration agreements , and of choice of material law and jurisdiction ; that is: to the autonomy conflictual or "of location". Moreover, the private autonomy is also associated to the "foreign element", which constitutes not only an issue or a matter of choice –a matter which may determine the will of the contracting parties - but, above all, an object of choice. Thus, the first manifestation of international freedom of contract consists in the option of choosing the foreign element; of choosing that some of the elements of the contract, or that some of the circumstances surrounding it, as a legal act or transaction, and which may have legal significance, is qualified by the non-internal nature of the element or circumstance. If there is freedom to choose the person with whom you are contracting, that option may be summed up in the choice between contracting with a national... or with a foreigner, and even –in the latter case-, this option may be summed up in choosing between hiring with an alien of "X" nationality, or with another foreigner, this time of "Z" nationality. Also, there is freedom to fix the real and causal elements, selecting ones that involve some foreign factor. Thus, e.g. the exercise of freedom may be manifested in the choice between chartering a national flag vessel... or a foreign flag vessel, and even –in the latter -, this option may be summarised in the choice between chartering a foreign flag vessel of State "X", or purchasing, chartering or leasing a foreign flag vessel of State "Z".

And as to the circumstances that may surround the life cycle of the contract, the exercise of contractual freedom may manifest itself in the choice between concluding the contract in national territory... or in foreign territory, and even –in the latter case-, this option may be summarised in the choice between concluding the contract in territory foreign –- of State "X", or concluding the contract in territory of State "Z". But the most characteristic manifestation is given in the choice of the applicable national law and the competent jurisdiction; the choice between concluding the contract by submitting to one’s own national law... or to a foreign law, and even choose between concluding the contract under the National Law of State "X", or concluding the contract under the National Law of State "Z". It may also be the case that the exercise of contractual freedom is manifested in the choice between concluding the contract by submitting to the jurisdiction of one’s own national courts... or to the jurisdiction of foreign courts, and even –in the latter -, choose between concluding the contract by submitting to the Jurisdiction of the Courts of State "X", or concluding it by submitting to the Jurisdiction of the Courts of State "Z"; possibilities that can be combined, offering a truly variegated image. Typically, policies and forms of the various commercial contracts usually contain submission clauses, thus encompassing the establishment of the applicable substantive or material law ["Choice of Law Clause"], such as the competent State or arbitral jurisdiction ["Forum Selection Clause"], the clauses of which must prevail over any other means of determining the applicable law.

In the United States, witness coaching is an inevitable consequence of the adversary process as it is implemented here. ”Practice guides” for trial lawyers recommend witness preparation in civil and criminal cases for all witnesses, especially expert witnesses. Many trial lawyers consider it malpractice not to go to the edge of ethical boundaries (if not beyond) to win for their side.

On the other hand, there are studies upon studies that demonstrate how the competitive aspects of the adversary system lead to injustice. Preparations of eye witnesses (starting with police ID techniques through encouragement to make strong statements at trial by prosecutors) have led to documented wrongful convictions. “Junk science” — often no more than so called experts simply being advocates for the “side” they are hired by — is also found to be a leading cause of wrongful convictions as well as scientifically unsupportable civil judgments.

Much said about the problem. Given the adversary system, solutions are as yet not apparent.

Please share your research. Kind regards, Bob Sanger

I think the subject matter of your work is clear enough.  However, you may find that your supervisor will be anxious that you confine the topic as narrowly as possible in order to make the study manageable.  There is an excellent text called Research Methodology by Ranjit Kumar which you may find helpful.  It has an excellent chapter on formulating a research problem.

A patent/trade secret is a legal monopoly on an idea. Monopolies are, in general, bad because they reduce competition, innovation, and increase prices. The only reason the law allows monopolies on patents/trade secrets is because society has made a decision that the cost of not allowing the monopoly (increased competition, innovation, and lower prices) is more than the cost of allowing the monopoly (reduced competition, reduced innovation, and higher prices). Society has decided to reward the innovator with the idea that this will encourage innovation. 

If reverse engineering were to be prohibited or banned to some extent, this would certainly increase the value of the patent/trade secret to the holder.

I see the real issue with protecting trade secrets by preventing reverse engineering. Trade secrets potentially last forever, at least in the US. 

I think this is an interesting idea. 

as i know, common law countries have strong enforcement therefore activism might play a role but in civil law countries the enforcement of corporate governance is quite low and thus activism may not play a role

thank u dear Frank. please see icc arbitration award no 2508 in which an increase in contractual price  up to 50 % didn't justify refusing performance by the seller under Swiss law.  have u seen any award or sentence that contradicts the argument of this award?

In Croatia as member of EU the European  standards are  supposed to be  followed.  But when it comest to numerous consumer protection and   big corporate  sharks hings  are  skiping the reach of legislation Common  aswell as  European Law