Trade law Part 49

 

Good Faith in Contract: A Non-Sceptical Commentary
E W Thomas
New Zealand Business Law Quarterly
Volume 11, Number 4, November 2005 p.391

On the premise that the law of contract should meet the reasonable expectations of honest men and women, this paper supports the importation of an obligation of good faith into contracts generally as a matter of law. It deprecates the current scepticism and analyses the underlying predispositions evident in “sceptical”thinking: a distaste for general principle, an exaggerated perception of freedom of contract and the free market, formalistic thinking, and a lack of realism. The latter failing is given particular attention because the realities of contractual negotiation and contractual performance provide a compelling need for an obligation of good faith. The realities which are identified are: the length, complexity and cost of commercial negotiations; the fact contractual relationships are not generally adversarial; the fact most contracts are relational contracts; the fact most contracts are incomplete; and the fact many contracts contain the potential for the relatively powerful party to unfairly exploit the other party. The author concludes by arguing, contrary to the claim by sceptics that good faith would add little or nothing to the existing law, that a general obligation of good faith would provide the law with a unifying, overriding and informing principle, would ensure that the law develops in a way which is responsive to the needs and reasonable expectations of the community, and that it would bring our domestic law into harmony with the preponderance of the law applicable to international trade.

Trade, Foreign Policy and Defence in EU Constitutional Law: The Legal Regulation of Sanctions, Exports of Dual-use Goods and Armaments. By PANOS KOUTRAKOS. [Oxford and Portland, Oregon: Hart Publishing. 2001. xxxi and 243 pp. Hardback £47.00. ISBN 1-84113-166-0.]
Rachel Barnes
Cambridge Law Journal
Volume 64, Issue 3, November 2005 p.761-762

Caribbean Market Forces: Emerging Trends in Trade, Comparative and International Law
Winston P. Nagan
West Indian Law Journal
Volume 30, Numbers 1 & 2, May & October 2005 p.179

DROIT DU COMMERCE INTERNATIONAL ET DE LA CONCURRENCE/INTERNATIONAL TRADE AND COMPETITION LAW
International Business Law Journal
Number 6, 2005

THE ROLE OF INTERNATIONAL LAW IN TRADE
John Jackson
Georgetown Journal of International Law
Volume 36, Number 3, Spring 2005 p.663

Outsourcing and Its Impact on Trade and Trade law
ILSA Journal of International and Comparative Law
Volume 11, Number 2, Spring 2005

Constitutional law: Freedom of interstate trade
Australian Law Journal
Volume 79, Number 10, October 2005 p.613

The World Trade Organisation: Law, Practice, and Policy BY MITSUO MATSUSHITA, THOMAS J. SCHOENBAUM & PETROS C. MAVROIDIS
reviewed by C.L. LIM
Singapore Year Book of International Law
Volume 9, 2005 p.277-280

Wolf, Trade, Aid, and Arbitration: The Globalization of Western Law
Nick Lingard
University of Queensland Law Journal
Volume 24, Number 1, 2005 p.241

ARBITRABILITY OF COMPETITION DISPUTES IN AUSTRALIAN LAW
Max Bonnell
Australian Law Journal
Volume 79, Number 9, September 2005 p.585

It is presently unclear whether competition law disputes are capable of resolution by arbitration under Australian law. Although there is a pronounced international trend in favour of allowing such disputes to proceed to arbitration, and although a number of Australian cases have suggested that there should be no impediment to such arbitrations, in practice Australian judges have been reluctant to permit the arbitration of disputes under Pt IV of the Trade Practices Act. It would be consistent with international developments in arbitration law, and with the policy of party autonomy which is the foundation of Australian arbitration legislation, if competition law disputes were to be arbitrable under Australian law, notwithstanding the fact that arbitration may not always be the most suitable vehicle for resolving such disputes.

The Distinctive Problem of European Trade Mark Law
MICHAEL HANDLER
European Intellectual Property Review
Volume 27, Issue 9, September 2005 p.306

This article criticises the European Court of Justice’s failure to establish a clear, overarching framework for the operation of the distinctiveness test in European trade mark law. It focuses on the ECJ’s recent decision in SAT 1 Sutell tenFernsehen GmbH v OHIM and argues that a formalistic interpretation of the distinctiveness provisions of the Trade Marks Directive and Regulation cannot be sustained.

 

Author: international

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