Tinaye Chivizhe, ‘The Identity of the Beneficiary or Presenter Calling for Payment under Demand Guarantees: A Purposive Approach’

17 October 2024 | Author: steve

ABSTRACT
In practice issues may arise when a party other than the designated beneficiary makes a call for payment, leading to a non-conforming demand. This has threatened the commercial use of demand guarantees due to demands for payment being rejected for non-conformity. Notably, the party calling for payment may or may not be the designated beneficiary stated in the demand guarantee. It could be a third party or an authorised agent acting on behalf of the beneficiary or a party entitled to receive payment under the guarantee. Also, when the demand guarantee is transferred it is the transferee (the new beneficiary) who may sign and issue a demand for payment. This article undertakes a comparative analysis of the approach in South African and Australian case law and international instruments applicable to demand guarantees to address problems associated with the identity of the beneficiary. The approach followed in resolving such issues emphasises a purposive approach to compliance with the demand. A party other than the beneficiary can demand payment on behalf of the beneficiary if it has been authorised to do so. Imposing strict compliance would contradict well-established contract law and sound business practices. For this reason, if the parties do not wish it to be possible for an agent or a party other than the beneficiary to demand payment on behalf of the beneficiary, this should be stated in the guarantee itself. However, if the presenter of a demand is not the beneficiary but demands payment in its own right, it is suggested that a strict approach is entirely proper.

Chivizhe, Tinaye, The Identity of the Beneficiary or Presenter Calling for Payment under Demand Guarantees: A Purposive Approach, Potchefstroom Electronic Law Journal, 27, 1-23 (2024). Published on 17 October 2024.

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Margoni and Strowel, ‘Contractual Freedom and Fairness in EU Data Sharing Agreements’

17 October 2024 | Author: steve

ABSTRACT
This chapter analyzes the evolving landscape of EU data-sharing agreements, particularly focusing on the balance between contractual freedom and fairness in the context of non-personal data. The discussion highlights the complexities introduced by recent EU legislation, such as the Data Act, Data Governance Act, and Open Data Directive, which collectively aim to regulate data markets and enhance data sharing. The chapter emphasizes how these laws impose obligations that limit contractual freedom to ensure fairness, particularly in business-to-business (B2B) and Internet of Things (IoT) data transactions. It also explores the tension between private ordering and public governance, suggesting that the EU’s approach marks a shift from property-based models to governance-based models in data regulation. This chapter underscores the significant impact these regulations will have on data contracts and the broader EU data economy.

Margoni, Thomas and Strowel, Alain M, Contractual Freedom and Fairness in EU Data Sharing Agreements (May 6, 2024). Forthcoming in de Werra and Calboli (eds), Research Handbook on Intellectual Property Licensing 2.0, 2024.

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Adam Reilly, ‘Voidable title in the sale of goods: One power to rescind, or two?’

17 October 2024 | Author: steve

ABSTRACT
This article explores common law rescission within the sale of goods. It examines the proposition that the rescinding-claimant has a kind of legal, proprietary interest (a ‘power in rem’) to rescind a voidable contract of sale and revest legal title to the goods. This power is considered to be ‘proprietary’ because it binds third-party recipients who cannot plead good faith purchase, and it survives the recipient’s insolvency. The problem is that the data does not fit the theory; in truth, there is every reason to believe that the claimant has only a personal claim to rescind the contract of sale, with legal title revesting by operation of law thereafter. As a result of this analysis, we must: (i) reject the main academic account of this area of law (the ‘dual power’ analysis); and (ii) revisit the treatment of common law claims to rescind in the insolvency context.

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Adam Reilly, Voidable title in the sale of goods: One power to rescind, or two?, King’s Law Journal. Published online: 16 October 2024.

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Jacques and Flynn, ‘Protecting Human Creativity in AI-Generated Music with the Introduction of an AI-Royalty Fund’

17 October 2024 | Author: steve

ABSTRACT
Artificial Intelligence (AI) is posited to revolutionise the creative industries, prompting global calls for legislative intervention to ensure human creativity remain at the centre of the copyright system. As AI systems gain prowess in analysing and generating content, they promise new levels of creativity and innovation at accelerated pace and reduced costs compared to human production. Alongside these benefits come concerns of displacement, particularly in fields like music, where AI-generated music could potentially supplant human-authored creative endeavours. Suggestions ranging from taxation to levies have been proposed to address this challenge. This paper, however, advocates for a novel perspective: evolving copyright law to not only compensate creators for income lost to technological disruption but also to foster sustainability aligned with the principles of the Council of Europe’s European Social Charter. Proposing an ‘AI-Royalty Fund’ represents a more optimal approach to this dilemma. Such a fund would acknowledge the intrinsic value of music and support a sustainable and inclusive creative industry ecosystem. Essential to this vision is the role of a national collective, entrusted with administering this fund to ensure equitable distribution and uphold the interests of human authors in an AI-driven landscape, contribute to regional and local plans of growth and foster cultural diversity and innovation. In essence, as AI redefines the boundaries of creativity, adapting the copyright paradigm becomes imperative to preserving the livelihoods of human creators while promoting a resilient and sustainable creative economy.

Jacques, Sabine and Flynn, Mathew, Protecting Human Creativity in AI-Generated Music with the Introduction of an AI-Royalty Fund (August 8, 2024).

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Tibor Tajti (Thaythy), ‘The efficient enforcement challenge of secured transactions law reforms in civil law systems – self-help repossession, strict foreclosure, and other methods for the acceleration of enforcement of security interests’

17 October 2024 | Author: steve

ABSTRACT
Although the forging of an efficient system for enforcement of security interest is one of the central expectations of secured transaction law reforms in civil law systems, the results hardly give reason for satisfaction. As the reforms tend to be supported and influenced by various international organizations’ projects (especially the World Bank, the European Bank for Reconstruction and Development, the International Institute for the Unification of Private Law, and the United Nations Commission on International Trade Law), most out-of-court methods of enforcement of security interests have played a central role. Yet due to civil law’s general hostility towards self-help as such, either the introduction of the concept has been rejected or the local limited-reach kin have been merely ‘paper tigers’. Similarly, although security interests on several types of collateral (accounts, investment property) or on the workhorse of the English financial system – the floating charge – have also been enforced extrajudicially (save the exceptions), little attention has been attributed to these enforcement modalities. The same applies to strict foreclosure in civil law systems still being prohibited, or restricted, and thus rarely resorted to, due to the inherited hostility towards the doctrine of lex commissoria. Rethinking local laws on preliminary and temporary court orders to match them with such globally known ex parte preliminary measures as the English Mareva Injunction or the French Saisie Conservatoire, which allow creditors to swiftly freeze debtors’ assets and thus substitute self-help repossession, has also been given short shrift. The enforcement segment, consequently, remains the Achilles’ heel of secured transaction law reforms in civil law systems. This article desires to contribute to reform literature by addressing these deficiencies and by offering tested, fully or partially fitting, functional equivalents of self-help repossession.

Tibor Tajti (Thaythy), The efficient enforcement challenge of secured transactions law reforms in civil law systems—self-help repossession, strict foreclosure, and other methods for the acceleration of enforcement of security interests, Uniform Law Review. Published: 13 October 2024.

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Emons and Parisi, ‘The Economics of Litigation Financing’

17 October 2024 | Author: steve

ABSTRACT
Third-party litigation financing involves an external party funding a legal claim, taking on the risk of loss in exchange for a share of any potential recovery. As European regulators prepare to establish a common regulatory framework for third-party litigation financing, this article draws on existing law and economics literature to examine the unique characteristics of third-party litigation financing, vis-a-vis other forms of financial support of litigation. Our findings highlight the strengths and weaknesses of different litigation-financing mechanisms in promoting socially desirable levels.

Emons, Winand and Parisi, Francesco, The Economics of Litigation Financing (October 16, 2024), Minnesota Legal Studies Research Paper No 24-43.

Posted in Law and Economics, Remedies and Procedure | Leave a Comment

‘The Right to Work and Social Justice in the Face of Mass Unemployment’

17 October 2024 | Author: steve

This post focuses on social justice in the realm of work, more specifically on access to jobs and livelihoods. Daniela Caruso, in proposing in 2013 a retrospective analysis of social justice scholarly projects in European ‘private law’ and/or ‘contract law’, rightly criticized the tendency of those projects to focus almost exclusively on consumer protection and weaker parties in commercial transactions. Caruso argued that this focus was particularly misguided in the wake of the economic crises of the 2010s; the European social-justice private law project should now pay attention to ‘contracts that secure housing, employment and access to credit’ instead of focusing so much on contracts over ‘on-line shopping’ … (more)

[Pascal McDougall, Transformative Private Law Blog, 16 October 2024.

Posted in Employment and Labour Law, Transformative Private Law | Leave a Comment

Lauren Scholz, ‘Privacy and the Punitive Impulse’

17 October 2024 | Author: steve

ABSTRACT
There is a relationship between privacy and the punitive impulse in American jurisprudence that legal scholarship has previously ignored. The punitive impulse offers one way of explaining the privacy law we have and can inform future policy choices. Through an original study of privacy tort cases, this Article finds a strong correlation between privacy enforcement in the courts and the availability of punitive damages. This corresponds to other intentional torts, such as battery, fraud, and trespass, which have higher rates of award of punitive damages compared to negligence torts. What is more, there are typically crimes with similar elements as intentional torts. While compensation, restitution, and injunctive relief have been discussed as remedies for privacy invasions, there is a gap in the literature when it comes to punitive damages. First, this Article fills this gap, evaluating the potential and challenges of making punitive damages available as remedies for privacy wrongs. The Article goes on to contend that a common law understanding of privacy as an intentional, dignitary, quasi-property tort suggests that legislatures should consider criminalization of a greater number of privacy wrongs and the implementation of a public trust approach for privacy wrongs less susceptible to ex ante specification.

Scholz, Lauren, Privacy and the Punitive Impulse (August 1, 2024).

Posted in Defamation and Privacy, Remedies and Procedure | Leave a Comment

‘Thinking Freedom of Contract Sustainably’

17 October 2024 | Author: steve

At the time of writing this blogpost (18th of September 2024), large parts of eastern and central Europe are drowning in historical floodings. Would I have started writing this blogpost earlier on, I could have referenced to raging wildfires at the gates of Athens; floodings in southern Germany; record heatwaves in eastern Europe; and so forth and so on. That climate change is currently happening is, or should be, a commonplace. The explanations for its occurrence are as intricate as they are multiple. And yet, as a common denominator, it seems safe to say that our unsustainable way of living, is at the root of anthropogenic climate change, it’s very perceivable acceleration and a rapid loss of biodiversity … (more)

[Tom Hick, Transformative Private Law Blog, 16 October 2024]

Posted in Contract, Land use and Environment, Transformative Private Law | Leave a Comment

Katz and Feldman, ‘The Promise and Perils of Empathy in Contracts: Theoretical and Empirical Analysis’

16 October 2024 | Author: steve

ABSTRACT
Legal sanctions, reputation costs, economic incentives, and social norms play a pivotal role in influencing behavior within contractual relationships. However, there are instances when individuals disregard breaches, even when doing so runs counter to their economic interests, and do not fulfill their contractual commitments or legal obligations. This article sheds light on a frequently overlooked motivator behind such behavior-contractual empathy. It examines the capacity of contracts to elicit empathy towards a struggling party who cannot fulfill their contractual obligations. It argues that in such cases, empathy can reduce litigation costs, facilitate cooperation and renegotiation, promote efficient and fair loss-sharing between parties, and, more generally, increase social capital. However, empathy also has its drawbacks, including fostering inefficient behavior in some cases, transferring wealth from empathetic to non-empathetic individuals, and reducing individuals’ well-being by eliciting painful emotions. The experimental studies presented here provide initial insight into the extent to which empathy affects behavior when one party is expected to breach a contract. These findings also highlight factors that moderate people’s willingness to disregard a breach. These factors include whether the promisor is an individual or a company and whether the contract has been formally and legally negotiated. The article concludes by discussing the legal implications of acknowledging empathy as a motivating factor in contractual settings.

Katz, Ori and Feldman, Yuval, The Promise and Perils of Empathy in Contracts: Theoretical and Empirical Analysis (September 8, 2024).

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