Mixed and Mixing Systems Worldwide: A Preface

Abstract:
In this volume the participating authors explore the complexity of contemporary scholarship on mixed and plural legal systems, both in the "third legal family" and beyond. Antonios Platsas and Haim Sandberg each investigate aspects of the Israeli tradition. Platsas provides a general overview of what he calls "the enigmatic but unique nature of the Israeli legal system", while Sandberg looks at Israeli constitutional review. Biagio Andò discusses Malta, a system closely related to the classical mixed system, but until recently largely overlooked by mixed scholarship. Lukas Heckendorn Urscheler goes still further afield to explore Nepal’s hybrid system. Finally, the two South African selections show how fertile the study of its legal system is. Flip Schutte looks at South African property law. Gerrit Pienaar looks beyond the two Western traditions to customary law; in particular, to land tenure. All of the articles reflect a thriving, flowering subject that is no longer the merely internal focus of isolated and ignored jurisdictions, but research of obvious import far beyond explicitly mixed systems, to comparative law, legal history, and legal theory.

Donlan, Seán Patrick, Mixed and Mixing Systems Worldwide: A Preface (September 25, 2012). Potchefstroom Electronic Law Journal, Vol. 15, No. 3, 2012.

The Legal Origins Theory in Crisis

Abstract:
The Legal Origins Theory purports to predict how countries respond to economic and social problems. Specifically, the legal origins of the United States should strongly influence the manner it approaches economic problems and its approach should be distinct from the response of civil law countries. If the theory is accurate, America's legal tradition should have a profound impact on its response to the crisis. This Article seeks to test the boundaries of the theory by assessing whether it could have predicted the manner the U.S. responded to the current economic crisis. After analyzing the U.S. response to the crisis, this article reveals that such response runs fundamentally counter to its legal origins. This inconsistency suggests that political, social, and economic forces do more to explain the U.S. response to significant turmoil than its legal origins. It also suggests that the current crisis may have been so severe that it overwhelmed any explanatory or predictive value potentially derived from the legal origins theory.

Fairfax, Lisa M., The Legal Origins Theory in Crisis (2009). 2009 Brigham Young University Law Review, 1571-1617 (2009); GWU Legal Studies Research Paper No. 2012-94; GWU Law School Public Law Research Paper No. 2012-94.

Presuit Discovery in a Comparative Context

Abstract:
In civil litigation around the globe, the usual process is that investigative discovery is allowed (if at all) only after the plaintiff files an initial pleading. Recently, however, a growing number of jurisdictions have adopted general mechanisms for presuit investigative discovery. This paper explores these mechanisms and probes their nature and importance. It first finds that presuit investigative discovery is surprisingly prevalent among common-law systems, despite the usual order of pleading and discovery. The paper then argues that presuit investigative discovery can provide a useful tool for enabling plaintiffs to file a sufficient complaint in fact-pleading jurisdictions. Finally, the paper suggests that the US federal system, as its pleading system moves closer to the fact-pleading regime typical of the rest of the world, ought to look to foreign mechanisms of presuit investigative discovery as a model for its own reform.

Dodson, Scott, Presuit Discovery in a Comparative Context (2012). Journal of Comparative Law, Vol. 6, 2012.

Comparative Legal Scholarship as Ordinary Legal Scholarship

Abstract:
This essay argues that comparative law is not and never will be a distinctive academic discipline. Various counter-arguments based on the alleged distinctiveness of comparative law’s (1) subject-matter, (2) methodology, (3) challenges, and (4) aims are identified and rejected. The essay concludes by arguing that comparative scholars should embrace the ordinariness of their scholarship. To the extent that comparative law is associated with a particular subject-matter, method, challenge, or aim its value will always be a matter for debate. By contrast, if comparative scholarship is just ordinary scholarship with more data (as I argue), its value is undeniable.

Smith, Stephen A., Comparative Legal Scholarship as Ordinary Legal Scholarship (October 10, 2012).

Comparative Constitutional Law and Property: Responses to Alviar and Azuela

Abstract:
I am pleased to have the opportunity to comment on two very rich and provocative articles: Property in the Post-post-revolution: Notes on the Crisis of the Constitutional Idea of Property in Contemporary Mexico by Antonio Azuela and The Unending Quest for Land: The Tale of Broken Constitutional Promises by Helena Alviar García. Both articles offer historical and contemporary accounts of the role of the social function of property in the constitutional framework of the countries they study (Mexico for Azuela and Colombia for Alviar).

I begin this Commentary with a few general thoughts on comparative method, and then engage in a comparison of the articles by discussing three issues they raise. In particular, I consider the tension between individual property rights and social function examined in each article, the possibilities the authors imagine for collective rights and conservation within the property rights regimes they examine, and the views about the role of law the articles express.

Engle, Karen, Comparative Constitutional Law and Property: Responses to Alviar and Azuela (2011). Texas Law Review, Vol. 89, No. 7, 2011.

CALL FOR PAPERS: New Voices in Comparative Law

AMERICAN SOCIETY OF COMPARATIVE LAW

YOUNGER COMPARATIVISTS COMMITTEE

CONFERENCE ANNOUNCEMENT: 

New Voices in Comparative Law

The Younger Comparativists Committee of the American Society of Comparative Law is pleased to invite submissions for its second annual conference, to be held on April 18-19, 2013, at the Indiana University Robert H. McKinney School of Law in Indianapolis, Indiana. The purpose of the conference is to highlight, develop, and promote the scholarship of new and younger comparativists.

Submissions will be accepted on any subject in public or private comparative law from scholars who have been engaged as law teachers, lecturers, fellows, or another academic capacity for no more than ten years as of June 30, 2013. We will also accept submissions from graduate students enrolled in master’s or doctoral programs.

Scholars may make individual or co-authored submissions. The conference’s Program Committee will assign individual and co-authored submissions to thematic panels according to subject area. Proposals for fully formed panels will also be accepted.

To submit an entry, scholars should email an attachment in Microsoft Word or PDF containing an abstract of no more than 750 words no later than November 4, 2012, to the following address: yccsubmissions@gmail.com. Abstracts should reflect original research that will not yet have been published, though may have been accepted for publication, by the time of the conference. Abstracts should also include the author’s name, title of the paper, institutional affiliation, contact information, as well as the author’s certification that she/he qualifies as a younger scholar. Graduate students should identify themselves as such.

Panels will be announced no later than December 16, 2012. There is no cost to register for the conference but participants are responsible for securing their own funding for travel, lodging and other incidental expenses.

Comparative Analysis of Guardianship Laws in India

Abstract:
Guardianship is a concept or relationship arising from the natural incapacitates of infants and persons of unsound mind and sometimes other category of persons to manage their own affairs. A guardian is a person who has the authority and the corresponding duty to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability. Most countries and states have laws that provide that the parents of a minor child are the legal guardians of that child, and that the parents can designate who shall become the child's legal guardian in the event of death.

Chapter one deals with introduction of the topic explaining role of Family Law, object and purpose of writing of the project, the research methodology used, the significance of the study undertaken for the project, the chapterization scheme, concept of guardianship and the powers of a guardian. Chapter two deals with Guardianship under Hindu Law, chapter three deals with Guardianship under Muslim Law and chapter four with guardianship under other laws, i.e, under Christian Law and under Parsi Law. The last chapter deals with conclusion of the project.

Srivastava, Mitali, Comparative Analysis of Guardianship Laws in India (January 10, 2012).

Cultures of Tort Law in Europe

Abstract:

This article provides a short introduction to the present special issue of the Journal of European Tort Law, which critically investigates the cultures of tort law in four selected national or regional contexts in Europe: England, France, Germany and Scandinavia. It explains what is meant by the idea of a culture of tort law, summarises the articles that follow, and ends with some concluding reflections from a comparative perspective.

Oliphant, Ken. Cultures of Tort Law in Europe. Journal of European Tort Law. Volume 3, Issue 2, Pages 147–157, ISSN (Online) 1868-9620, ISSN (Print) 1868-9612, DOI: 10.1515/jetl-2012-0147, September 2012.

Cultural Comparative Law?

Abstract:
The main aim of this paper is to discuss some recent developments in comparative law. Many scholars – including Pierre Legrand, David Nelken and Csaba Varga – declared that comparative law is in need of a ‘cultural turn.’ They advocate a wide application of the concept of culture in comparative legal studies instead of relying on the classical legacy of functionalism and the notion of ‘legal families’ coined by Zweigert/Kötz and David. The paper presents cultural comparatism by examining Legrand’s theses and formulates some critical remarks. In conclusion, it is argued that the premises of cultural comparatism can be fruitfully applied in comparative law but this should be done with a modest and critical attitude since some points of culturalism imply unrealistic assumptions. The final claim of the paper is that a potential field of application may be the research of post-Socialist legal mentalité in Central Europe.

Fekete, Balazs, Cultural Comparative Law? (August 27, 2010). LEGAL AND POLITICAL THEORY IN THE POST-NATIONAL AGE, pp. 40-51, Cserne, Péter, Könczöl, Miklós, eds., Peter Lang, Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien. 2011.

Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction

Abstract:
This article examines the design of legal directives found in and surrounding the Louisiana Civil Code through the prism of the classic rules versus standards debate. The Preliminary Title portion of the article introduces the vocabulary, descriptions and justifications typically displayed in jurisprudential debates over the propriety of rules and standards. Books One, Two and Three of the article analyze the extent to which several significant legal regimes in the Louisiana Civil Code — regimes that are likely to affect individuals in moments of personal crisis, when they enter into and exit from intimate personal relationships and when their love and loyalty to one another and to other intimate associates is most severely tested — have incorporated open textured standards as a primary form of rule design, have resisted discretionary remedialism by remaining tethered to relatively crystalline rules or have produced models of hybrid discretion.

Although the author originally expected to discover that Louisiana private law had largely embraced discretionary decision making within the realm of the Civil Code, punctuated with occasional moments of discretion skepticism, just as Niall Whitty has observed occurring in Scotland, the article’s analysis reveals that Louisiana has not evolved so decisively in the direction of standard based decision making models. Indeed, in the particular areas of private law examined (family law, co-ownership, and the inter-relationship between forced heirship and undue influence claims challenging wills), the author finds that Louisiana’s private legal order has only been partially transformed by the general trend toward discretionary remedialism that scholars like Whitty have observed occurring in other legal regimes. The article concludes by pointing to a number of additional concerns that should inform further scholarship examining whether Louisiana has assembled the proper mix of rules and standards.

Lovett, John A., Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction (August 21, 2012). Louisiana Law Review, Vol. 72, No. 4, 2012; Loyola New Orleans Law Research Paper Series.

Comparative Family Law, Korean Family Law, and the Missing Definitions of Family

Abstract:
This article uses comparative law to analyze the concept of ‘family’. In particular, the research focuses on how family is defined when a family group assembles outside of a nuclear marital family. The article discovers that ‘family’ is rarely defined outside of the concept of marriage in modern legal codes. However, eight characteristics and identifying behaviors of families can be found in the analysis of family law. These eight concepts are used to rebuild a potential definition of family that does not require the act of marriage.

This article proposes that family law should include a parallel definition for families that do not meet current marital definitions of family. This article does not advocate changing current marriage codes; it merely suggests adding room for non-nuclear families in family law. These other, non-nuclear families deserve legal support and recognition. It is time for family law to recognize that all families need legal protection and legal affirmation as families.

The reason to focus on family outside of the concept of marriage is that many family-type groups today fulfill the role of family life without legal recognition. These families serve broader societal goals of raising children, of providing for the elderly, and of sharing the burdens and responsibilities of life in a small group setting. Family law should extend the legal notion of family to include a wider array of options for non-nuclear families. These types of families are all ‘normal’ families in some sense of the idea of family, but they may simply lack two central ingredients: marriage and a nuclear spousal pair.

These types of families should have as much legal right to formally exist as families based in nuclear marriage and sexually-based procreation. Specifically, there should be a legal entity called a “family” that serves a small group of individuals living in some form of interdependency under a common roof. The basic argument is to provide a parallel option for these types of alternative families alongside the traditional marriage-based family option.

Partain, Roy Andrew, Comparative Family Law, Korean Family Law, and the Missing Definitions of Family (June 30, 2012). Roy Partain. "Comparative Family Law, Korean Family Law, and the Missing Definitions of Family" (HongIk University Journal of Law). June 2012. Vol. 13. No. 2.

Is There Room for the Trust in a Civil Law System? The French and Italian Perspectives

Abstract:
It is argued, through the examination of two civil law jurisdictions – France and Italy, that there is room for the trust to be translated – not transplanted – into existing civil law institutions and practice. The extent to which this is the case and the most appropriate model for this introduction will be dependent on the cultural, historical and political background of each such jurisdiction.

Whilst Italy lacks a domestic trust law, it has taken advantage of the Hague Convention to develop a thriving local practice of using foreign law for Italian trusts. This effort, spearheaded by both doctrinal and jurisprudential support, has allowed the development of a consistent framework and the surmounting of the obstacles inherent in the civil law tradition. As a result of this process initiated nearly twenty years ago, these trusts can no longer be said to be ‘foreign.' A more accurate term would be ‘domesticated’ due to the distinctive features they have developed.

Whereas France has its fiducie, a sui generis institution introduced in 2007, which is structurally a trust in comparative law terms, it is, nonetheless, functionally neutered. Trusts can be based on civil institutions, as the examples of Panama and Quebec show, and it is to be hoped that the French fiducie represents such a first step and will, one day, play a similar role. In any case, recent reforms which have increased its flexibility both structurally and functionally are to be welcomed. In particular the decision, albeit unsuccessful, of the French legislature to introduce a concept of ‘economic ownership’ goes to show just how much the lines are blurring between civilian and common law traditions.

Koessler, James, Is There Room for the Trust in a Civil Law System? The French and Italian Perspectives (March 1, 2012).

Pruning the European Intellectual Property Tree - In Search of Common Principles and Roots

Abstract:
The European Union knows a multiplicity of IP rights, from classical ones (copyright, patent, trademark or design) to more marginal ones, in terms of economic sectors concerned (rights in database, in plant varieties, in semiconductors, in geographical indications). This paper aims at identifying and assessing the existing similarities or common principles in the intellectual property rights in the European Union. Despite their apparent diverging functions, subject matter and scope of protection, copyright, trademark, patent and the other intellectual property rights share at least the fact that they belong to a set of rules granting some exclusive rights in intangible assets, whether creation or signs. Their inclusion under the same label ‘Intellectual Property’ should at least count for something and induce some joint ends and means that could serve as a first skeleton for a reform of intellectual property. This quest for common principles follows successive steps: the justification of the granted protection, the subject matter, the requirements for protection, as well as the exclusions from protection, the scope of protection, the limitations and exceptions to such protection, the duration.

This survey concludes that the principles common to all intellectual property rights are rather scarce. There is the overarching principle, laid down in the EU Charter of Fundamental Rights, that protection of intellectual property should be. The fact that ideas should remain free is another important motto in European intellectual property. The principle of exhaustion applies across all exclusive rights, and enforcement and remedies are almost similar whatever the right infringed. Beyond these common lines, traces of similarities can maybe be detected in formalities (save for copyright and related rights), in exclusive rights conferred, or in the rule of a limited duration. However, justifications, subject matter, rights and exceptions largely remain fragmented and leave ample manoeuvre for uncontrolled extension of intellectual property and overlapping of rights.

I argue that the EU IP tree should at least common roots in the form of an overall foundation sustaining intellectual property and based on innovation and promotion of knowledge, including a necessary balance, and a solid trunk based on some overarching principles. Those principles should be a proper limitation of subject matter, a registration-based grant of the protection, a unitary right of exploitation for all intellectual property rights, though adjustable to the subject matter concerned, a common catalogue of exceptions and limitations, as well as an effective public domain. The branches of intellectual property could then develop under their own rules and specificity to cater to the needs and mechanics of the diverse subject-matter concerned.

Dusollier, Severine, Pruning the European Intellectual Property Tree - In Search of Common Principles and Roots (April 10, 2011). Constructing European Intellectual Property: Achievements and New Perspectives, C. Geiger, ed., Edward Elgar Publishing, 2012.

Opinio Juris in Comparatione Vol 1/2012

Abstract:
Contents/Sommaire/Sumario

Francesco Donato Busnelli
Ricordo di Fernando Hinestrosa

Articles/Articles/Artículos

Paper n. 1, pp. 1-17

Cristina Amato
The Europeanisation of Contract Law and the Role of Comparative Law:
The Case of the Directive on Consumer Rights

Paper n. 2, pp. 1-21

Marco Farina e Demetrio Maltese
Abuse of Rights and Freedom of Contract in Comparative Perspective:
A Legal and Economic Analysis

Paper n. 3, pp. 1-30

Chiara Perfumi
Theory and Practice of Constructing a Common Contract Law Terminology

Conference Proceedings:
INTERNATIONAL WORKSHOP
ALTERNATIVE DISPUTE RESOLUTION MODELS IN CHINA AND WESTERN COUNTRIES PRACTICE

Paper n. 4, pp. 1-8

Renzo Cavalieri
Between Justice and Harmony: Some Features and Trends of Chinese A.D.R. from a Western Perspective

Paper n. 5, pp. 1-7

Paola Lucarelli
Strengthening Commercial Long Term Relationship with the Help of the A.D.R.

Paper n. 6, pp. 1-7

Jody B. Miller
Mediating Commercial Cases in U.S. Municipal Courts: A Case for Transformative Mediation

Paper n. 7, pp. 1-12

Luca G. Radicati di Brozolo
The Relation Between Courts and Arbitration: Support or Hostility

Paper n. 8, pp. 1-12

Judith A. Saul
The Legal And Cultural Roots of Mediation in the United States

Paper n. 9, pp. 1-9

Sibao Shen, Jian Shen
The Characteristics of Business Mediation System in China

News/Annonces /Noticias
SECONDO CONGRESSO NAZIONALE DELLA SOCIETÀ ITALIANA PER LA RICERCA IN DIRITTO COMPARATO S.I.R.D.
Il modello giuridico -scientifico e legislativo- italiano fuori dell’Europa
Università degli Studi di Siena – 20, 21, 22 settembre 2012

Busnelli, Francesco Donato, Amato, Cristina, Farina, Marco , Maltese, Demetrio, Perfumi, Chiara, Cavalieri, Renzo R., Lucarelli, Paola, Miller , Jody B. , Radicati di Brozolo, Luca G., Saul, Judith A. , Shen, Sibao and Jian, Shen, Opinio Juris in Comparatione Vol 1/2012 (August 7, 2012). Opinio Juris in Comparatione, No. 1/2012.

The Europeanisation of Contract Law and the Role of Comparative Law: The Case of the Directive on Consumer Rights

Abstract:
This paper shall concentrate on the revision attempts of the consumer acquis which are still on the European Institutions’ agenda, making an effort to highlight the final goals that these attempts aim at, as well as the quality of their (prospective) rules. In particular, the Directive on Consumer Rights has redrafted and amended four directives on consumer contracts: the present paper focuses on the main contents of the Directive, with the intent of checking whether its goals and contents achieved a sustainable level of quality and harmonisation in the light of a comparative approach. The results of this enquiry are twofold: a correct use of the comparative method not only would have avoided questionable choices, but it would also have achieved a better level of harmonization without irritating MSs.

Amato, Cristina, The Europeanisation of Contract Law and the Role of Comparative Law: The Case of the Directive on Consumer Rights (August 6, 2012). Opinio Juris in Comparatione, No. 1/2012, Paper No. 1.

The Comparative History and Theory of Corporate Criminal Liability

Abstract:
This paper is an exercise in comparative legal history and theory. It argues, first, that traditional views of the history of corporate criminal liability in German and Anglo-American law are interestingly mistaken, or at least incomplete, taken independently and comparatively, and, second, that histories and theories of corporate criminal liability engage in symbolic jurisprudence insofar as they treat their subject as a litmus test for other, more fundamental, phenomena, such as the relative influence of Roman and German law or the relative commitment of systems of criminal law to science, truth, and justice.

Dubber, Markus D., The Comparative History and Theory of Corporate Criminal Liability (July 10, 2012).

Essential Principles of Contract and Sales Law in the Northern Pacific: Federated States of Micronesia, the Republics of Palau and the Marshall Islands, and United States Territories

Abstract:
The Northern Pacific region, which includes Micronesia, the State of Hawaii, the American territories of Guam, the Commonwealth of the Northern Mariana Islands and American Samoa, and the Republics of Palau and the Marshall Islands, either follows or are heavily influenced by the Anglo-American common law tradition and statutes governing contract and sales. Islands in this region have made efforts to adopt recognized uniform international contract standards, particularly the Restatement (Second) of Contracts, but customary law and traditional rights still have a significant impact upon the development of contract and sales law creating a unique amalgam of substantive law in the Northern Pacific region.

The author includes a comparison to contract and sales law that is prevalent in the United States and applicable in its Northern Pacific State of Hawaii and in its Pacific territories of Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. Other U.S. territories in the Northern Pacific including Midway, Wake, Johnston Atoll, Baker, Howland and Jarvis, Palmyra, and Kingman are outside the scope of his anaylsis. The article emphasizes divergence, and highlights regional anomalies in the substantive law of contract and sales. It also examines the inter-relationship between customary and traditional law and the law of contract and sales. This anthropological approach highlights how regional custom and traditional law have interacted with Anglo-American concepts of contract and sales law to produce a unique blend of contract and sales law in this Northern Pacific region.

The author notes two significant developments; 1) that the American Law Institute’s Restatements of Law have been elevated from simply persuasive authority to the rule of decision in some of these Pacific Island nations, and 2) that the anthropological implications of local custom and traditional law in substantive contract and sales law have created a unique regional amalgam.

Ryan, Daniel P., Essential Principles of Contract and Sales Law in the Northern Pacific: Federated States of Micronesia, the Republics of Palau and the Marshall Islands, and United States Territories (January 29, 2009). Ave Maria International Law Journal, Vol. 1, No. 1, 2009.

A Law and Economics Perspective on Legal Families

Abstract:
In this paper, we review the economics of legal families. We describe the non-economic perspectives on the rise and decline of legal families in comparative law. At the same time, we summarize the main critiques to the premises, methods, and conclusions of the legal origins literature. We relate this discussion to the hypothesis of the efficiency of the common law and its shortcomings. We conclude the paper with possible methodological goals for future research in this field.

Garoupa, Nuno M. and Pargendler, Mariana, A Law and Economics Perspective on Legal Families (July 12, 2012). The Methodologies of Law and Economics, T. Ulen, ed., Edward Elgar, 2013; Illinois Program in Law, Behavior and Social Science Paper No. LBSS13-01.

The Comparative Turn: Accident, Coincidence, or Fate?

Abstract:
The comparative turn taken by one of America’s most influential constitutional scholars can tell us much about the field of comparative constitutional law. In this paper, delivered as a Provocation at the Symposium in Honor of Professor Frank Michelman, at Harvard Law School, February 10-11, 2012, three hypothesis are given for this turn. The first hypothesis, accident, looks to the post-Cold war expansion of the field of comparative constitutional law and the upsurge of American constitutional influence at that time. The second hypothesis, coincidence, views Michelman’s seminal work on constitutional economic and social rights, as well as on property, equality, law and economics, and democracy, as singularly apposite for building constitutionalism in post-apartheid South Africa. The third hypothesis, fate, examines how the normative questions that Michelman posed transcended any one constitutional system, precipitating a critical reflection on the United States, South Africa, and other constitutional systems.

Young, Katharine, The Comparative Turn: Accident, Coincidence, or Fate? (2012). Harvard Law Review Forum, Vol. 125, 2012; ANU College of Law Research Paper No. 12-20.

Cooperation as Philosophical Foundation of Good Faith in International Business-Contracting - A View Through the Prism of Transnational Law

Abstract:
Nowadays traders are very frequently conducting their businesses in accordance with principles and usages forged in the practice of commerce. This has given rise to an ongoing discussion on the existence of an autonomous third legal order called transnational commercial law or the lex mercatoria. This article looks at the role of good faith in that legal system.

As a consequence of the evolution of the law of contracts, the rise of transnational law and of the influence of its prevalent actors - multinational corporations - a cooperative view of contracts has been developed in international trade.

This article argues that the rationale of cooperation, as the underlying current of transnational commercial contracts, has prompted a new way of interpreting the principle of good faith: it is understood as cooperation between the parties to a contract. This interpretation of good faith requires the party to take various steps to fulfil the legitimate expectations of the other party. Rather than being imposed by a central authority, such a predominantly voluntary cooperation is assumed by the parties for the common good of everyone involved in the contractual relationship. This notion fits the experience of global trade today to the point that - it will be submitted - good faith is the fulcrum of cooperation in cross-border trade.

This proposition will be supported through the analysis of: philosophical doctrines; principles embracing transnational law and international arbitral awards. Furthermore, the development of good faith in some municipal legal systems will be considered; as well as the latest developments of good faith in EU law.

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. (2012) Oxford U Comparative L Forum 1.