The Future of the Commercial Contract in Scholarship and Law Reform Project

Research Project 2016-17

  • IALS Centre for Corporate and Financial Law and University of Exeter
  • Professor Mads Andenas, Director of Centre for CFL, IALS, and  University of Oslo,
  • Dr Maren Heidemann, Visiting Fellow, IALS
  • Dr Joseph Lee, University of Exeter

"The Future of the Commercial Contract in Scholarship and Law Reform – European and  Comparative Perspectives // The interface between public international law and substantive contract law " 

Conference participants September 2016

Recent years have seen new European EU and academic proposals and legislation in regard of contract law. Examples are CESL, PECL and the DCFR but also the UK Consumer Rights Act 2015. These are either based on a universal notion of contract or deal predominantly with consumer contracts. Is there therefore a need to focus on commercial contracts in research and legislation? Is the current identity based system of merchant and consumer law sustainable? How can commercial contracts be defined? Are they a separate contract type? What should be the role of cross border dealings in this process? Should this outlook be universal or sector specific? This project wants to explore comparative positions in scholarship and legal practice, suggest new research agendas and provide a forum for debate of typical issues that might benefit from further attention by scholarship and legal drafting.

The project is conducted in two phases

Phase 1: March - September 2016 Scoping project

The objective was to scope and generate interest in the topic and to invite participants to contribute to further research.
A conference was held at IALS on 22 September 2016. (Convenors: Dr. Maren Heidemann and Dr Joseph Lee) where 23 participants from 10 different jurisdictions across the globe presented their ideas and current work on the topic. Click here for the conference programme.
Research output is planned to appear during 2017.

Phase 2: October 2016 - October 2017 Research, preparation of research output and dissemination

Research output: edited volume (s) of collected contributions and other research outcomes.
The final conference at IALS, is scheduled for Friday, 20th October 2017.
Click here for the conference programme

Current participants are:

Director: Prof. Mads Andenas, Director of Centre for CCL, IALS, and  University of Oslo
Convenors and Editors: Dr Maren Heidemann, IALS, and Dr Joseph Lee, University of Exeter

  1. Ms Catherine Jeanne Pedamon, Senior Lecturer, University of Westminster
  2. Mr Janwillem Oosterhuis, Assistant Professor, Faculty of Law, University of Maastricht
  3. Mr David Christie, Senior Lecturer, Robert Gordon University, Aberdeen
  4. Mr Daniele D’Alvia, PhD candidate, Birkbeck, University of London
  5. Mr Hendrik Puschmann, Senior Associate, K&L Gates London and Frankfurt
  6. Dr Chien Chung Lin, Associate Professor, National Chiao Tung University, Taiwan
  7. Dr Antonios Karaiskos, Associate Professor, Graduate School of Law, Kyoto University
  8. Dr  Despina Anagnostopoulou, Associate Professor, Jean Monnet Chair, University of Macedonia, Greece
  9. Dr Alexandra Horváthova, Postdoctoral Research Fellow, Faculty of Law, University of Copenhagen
  10. Dr Maren Heidemann, Ass iur., LLM (Nottingham), IALS Visiting Fellow 2016-17
  11. Mr Jack Kenny, LLM, Research Assistant, University of Bonn
  12. Dr Joseph Lee, Senior Lecturer, Law School, University of Exeter
  13. Dr Isabelle Rueda, Senior Lecturer, University of Exeter
  14. Dr Sara Hourani, Lecturer in Law, Centre for Intellectual Property Policy & Management, Bournemouth University
  15. Dr Muriel Renaudin, Lecturer, Cardiff Law School , Cardiff University
  16. Dr Dania Thomas, Lecturer in Business Law, Adam Smith Business School, University of Glasgow

Research questions Phase 1

Papers were invited from scholars and presented on 22 Sept 2016 at IALS along the following lines of enquiry:

1) General / theoretical:

  • Is the commercial contract identical with so called B2B transactions?
  • Is it a separate contract type? How would it be defined?
  • Is there or should there be separate law for it?
  • Should it be a separate discipline of scholarship within contract law?
  • Should the EU legislate for it (ie complementary to consumer contract)?
  • What are the main requirements?
  • What would the expectations be towards legislation in this area?
  • What role does international / cross-border trading play in this?
  • Would traders prefer sector specific law?

2) Specific contracts and remedies and  differences to general contract law in traditional merchant laws, US law and some international conventions such as:

a) Aspects from particular contract types such as IT, construction, insurance contracts

b) Typical general  features such as

Silent acceptance; inspection duties; force majeur clauses; contract adaptation; the perfect tender rule; the parol evidence rule; dispute settlement mechanism

3) Policy issues such as:

  • in what cases should traders be benefiting from rules designed for consumer contracts?
  • would this include good faith and a duty to co-operate?

Research Questions Phase 2

This second phase is additionally seeking to involve scholars and practitioners who also work with public and public international law. Scholars and practitioners who are interested in this phase should research into the following questions:

Call for papers

  1. Is there an issue with substantive contract law such as CISG being offered in the shape of a public international law instrument?
  2. What role do the monistic and the dualistic systems entertained by states of implementation into domestic law play in this context? Do these different methods affect the effectiveness of uniform law?
  3. What is the proper position of EU law in this context? Is it international law at all and should it comply with respective interpretation methods?
  4. What role does the autonomous interpretation method play in the application of uniform law?
  5. Can established methods of interpretation of public international law be extended to private law conventions and the lex mercatoria?
  6. What is the role of the object and purpose of the legislation in the interpretation of transnational and international contract law? Can the 1969 Vienna Convention on the Law of Treaties (VCLT) be a guiding basis? How does it relate to the interpretation clauses in international contract law instruments?
  7. What are the objects, objectives and purposes of uniform law offered in the form of public international law instruments? 

This list is non-exhaustive and related enquiries are welcome.

The research in Phase 2 may be more co-ordinated and targeted than Phase 1. Researchers should be able to remain in contact and share a website or platform to discuss and edit work. A research network will be set up for this purpose. This is optional. Any participant who already has a finished or fully drafted paper that will fit into this research agenda is welcome to propose it to be included.

Contacts:

Professor Mads Andenas
Dr Maren Heidemann 
Dr Joseph Lee 

Page last updated: 17th October 2017