During the later half of the 20th century standard form contracts began to be used more frequently in contract situations. This trend has been consistent and in today’s world numerous commercial parties employ such contracts in their business transactions. The reasons for the extended use of standard form contracts are the benefits that can be obtained for the parties such as time efficiency, effectiveness and price advantages. Standardised contracts often regulate certain issues of the contract for example the way of delivery, remedies and complaints. The definition of such contracts is corresponding in Sweden and England as contracts containing in advance standardised terms with an aim to be used similarly in contract situations with most clients or customers. As the usage of standard form contracts increased, the number of unfair contract terms also enhanced. Therefore, the legislative powers in Sweden and England realised that the rules concerning the freedom of contract had to be restricted and governed. As a result, the legislative powers introduced an open control device through statutory control. This was done in Sweden in 1976 with the enforcement of Section 36 of the Contracts Act, and in England the year after when UCTA came into force. The statutory control in both Sweden and England makes it possible to appraise the fairness of exemption clauses. The statutory control is not identical in the two states. UCTA only concerns exclusion clauses and limitation clauses regarding contract terms and non-contractual notices. In Sweden, on the other hand, there is a general doctrine of unfairness and Section 36 of the Contracts Act can set aside all kinds of agreements. The statutory control is complemented by indirect means of controlling the content of a contract through non statutory methods. The non statutory methods are concerned with the incorporation, interpretation and construction of clauses in a contract. To be valid and for a party to be able to rely on a term it must have been incorporated into the contract. The rules concerning the interpretation of standard form contracts and exclusion clauses are also of great importance. In both states the approach held is that the statutory control should be used preferably over the indirect control means, though the indirect means still has a prominent role in England through common law. Both England and Sweden agree on that the weaker party in a contract situation is in a greater need of protection by the rules of law in unfair contract situations. However unfairness can only arise if the superior party has wrongfully used the exclusion clause. Our study shows the differences between Swedish and English contract law that can result in difficulties in the harmonisation process. These differences concern the test of reasonableness of exemption clauses, the doctrine of good faith, the legal effects and to what extent the indirect means of control should be applied. The Swedish test of reasonableness may include all relevant circumstances irrespective of the time of their occurrence, before or after the entry of the contract. The courts in England are limited to circumstances that have occurred before the closure of the contract. Section 36 of the Swedish Contracts Act includes a general rule of unfairness applicable to all kinds of contract terms. The rule of unfairness in the UCTA on the other hand, is only applicable to exemption clauses and indemnity clauses and there is no general rule of unfairness in English contract law. Instead the courts rely on indirect means of control, which therefore is of greater importance in English contract law. Finally, adjustments of unfair exemption clauses has a significant role in Swedish contract law, in contrast to English contract law where any adjustment is regarded as an intrusion of the freedom of contract. To endorse one of the most important aims of the EU; a well working inner market, discussions commenced in 2001. The discussions concerned the harmonisation of the contract law within the union. The questions that arose were whether or not it was possible at all to form a European common contract law and if so, what the effects would be. An action plan was developed by the Commission and today both the EU Parliament and the Council are positive in regard to the continuing work with a reference frame. The Commission aims to pass the reference frame in 2009. Since the EU member states are diverse and have different legal systems a harmonisation of the contract law could cause difficulties. There are differences concerning legal traditions and legal values, hence the legal expertise in Europe is divided in the harmonisation question. The following study aims to analyse the existing rules of law in Sweden and England representing two diverse legal systems existing in Europe; civil law and common law. The focus of this study regards the control of exclusion clauses in standard form contracts in both legal systems. The comparison will then be used to analyse the fundamental question if the harmonisation of contract law in the EU is feasible. Specific areas within the contract law have already been harmonised, which shows a possibility to coordinate common law and civil law. Directive 93/13/EEC on Unfair Terms in Consumer Contracts is one example of harmonised contract law in the EU and the principles in PECL is another example which shows that it is possible to coordinate common law and civil law. A harmonisation of the contract law will probably promote the commerce within the union and be the next step towards one of the most prominent goals of the EU, namely a well functioning common market. However, our study shows that the differences between national legislation and the differences between the legal traditions within the EU are not insignificant and a harmonisation will probably not be enforced without difficulties.

Despite Brazil’s importance in the world economy and its increasing participation in foreign trade, there is considerable legal uncertainty regarding the law applicable to international commercial contracts involving Brazilian parties because Brazilian judicial courts do not respect parties’ freedom to choose the governing law, thus this determination is only made by a judge, according to Private International Law rules of the forum. Applying these rules, this study demonstrates that there are at least three potential legal regimes: the Brazilian law, the United Nations Convention on Contracts for the International Sale of Goods, and a foreign domestic sales law. Making use of the American law as the foreign law, a comparative analysis of these three legal regimes regarding contract formation demonstrates that their approaches are very distinct, and this confirms the legal uncertainty. In order to reduce this problem, three different strategies are proposed to the Brazilian government.

Despite Brazil’s importance in the world economy and its increasing participation in foreign trade, there is considerable legal uncertainty regarding the law applicable to international commercial contracts involving Brazilian parties because Brazilian judicial courts do not respect parties’ freedom to choose the governing law, thus this determination is only made by a judge, according to Private International Law rules of the forum. Applying these rules, this study demonstrates that there are at least three potential legal regimes: the Brazilian law, the United Nations Convention on Contracts for the International Sale of Goods, and a foreign domestic sales law. Making use of the American law as the foreign law, a comparative analysis of these three legal regimes regarding contract formation demonstrates that their approaches are very distinct, and this confirms the legal uncertainty. In order to reduce this problem, three different strategies are proposed to the Brazilian government.

The human rights of women in The Middle East and North Africa (MENA) have been a subject of unresolved debate among sociologists, economists, and political scientists alike, as this region’s gender related human rights performance remains uniquely weaker compared to other geographic regions in the world. Most notably, the human rights of women in the region have been lagging in the area of family law. The following paper assesses gender inequity in the MENA region from a legal perspective, with a focus on family law and legal pluralism, and with the intent to shed light on domestic legal institutions as means of influencing the economic and political status of women both in the Middle East and globally.

No description available.

<p>During the later half of the 20th century standard form contracts began to be used more frequently in contract situations. This trend has been consistent and in today’s world numerous commercial parties employ such contracts in their business transactions. The reasons for the extended use of standard form contracts are the benefits that can be obtained for the parties such as time efficiency, effectiveness and price advantages. Standardised contracts often regulate certain issues of the contract for example the way of delivery, remedies and complaints. The definition of such contracts is corresponding in Sweden and England as contracts containing in advance standardised terms with an aim to be used similarly in contract situations with most clients or customers.</p><p>As the usage of standard form contracts increased, the number of unfair contract terms also enhanced. Therefore, the legislative powers in Sweden and England realised that the rules concerning the freedom of contract had to be restricted and governed. As a result, the legislative powers introduced an open control device through statutory control. This was done in Sweden in 1976 with the enforcement of Section 36 of the Contracts Act, and in England the year after when UCTA came into force. The statutory control in both Sweden and England makes it possible to appraise the fairness of exemption clauses. The statutory control is not identical in the two states. UCTA only concerns exclusion clauses and limitation clauses regarding contract terms and non-contractual notices. In Sweden, on the other hand, there is a general doctrine of unfairness and Section 36 of the Contracts Act can set aside all kinds of agreements.</p><p>The statutory control is complemented by indirect means of controlling the content of a contract through non statutory methods. The non statutory methods are concerned with the incorporation, interpretation and construction of clauses in a contract. To be valid and for a party to be able to rely on a term it must have been incorporated into the contract. The rules concerning the interpretation of standard form contracts and exclusion clauses are also of great importance. In both states the approach held is that the statutory control should be used preferably over the indirect control means, though the indirect means still has a prominent role in England through common law. Both England and Sweden agree on that the weaker party in a contract situation is in a greater need of protection by the rules of law in unfair contract situations. However unfairness can only arise if the superior party has wrongfully used the exclusion clause.</p><p>Our study shows the differences between Swedish and English contract law that can result in difficulties in the harmonisation process. These differences concern the test of reasonableness of exemption clauses, the doctrine of good faith, the legal effects and to what extent the indirect means of control should be applied. The Swedish test of reasonableness may include all relevant circumstances irrespective of the time of their occurrence, before or after the entry of the contract. The courts in England are limited to circumstances that have occurred before the closure of the contract. Section 36 of the Swedish Contracts Act includes a general rule of unfairness applicable to all kinds of contract terms. The rule of unfairness in the UCTA on the other hand, is only applicable to exemption clauses and indemnity clauses and there is no general rule of unfairness in English contract law. Instead the courts rely on indirect means of control, which therefore is of greater importance in English contract law. Finally, adjustments of unfair exemption clauses has a significant role in Swedish contract law, in contrast to English contract law where any adjustment is regarded as an intrusion of the freedom of contract.</p><p>To endorse one of the most important aims of the EU; a well working inner market, discussions commenced in 2001. The discussions concerned the harmonisation of the contract law within the union. The questions that arose were whether or not it was possible at all to form a European common contract law and if so, what the effects would be. An action plan was developed by the Commission and today both the EU Parliament and the Council are positive in regard to the continuing work with a reference frame. The Commission aims to pass the reference frame in 2009. Since the EU member states are diverse and have different legal systems a harmonisation of the contract law could cause difficulties. There are differences concerning legal traditions and legal values, hence the legal expertise in Europe is divided in the harmonisation question.</p><p>The following study aims to analyse the existing rules of law in Sweden and England representing two diverse legal systems existing in Europe; civil law and common law. The focus of this study regards the control of exclusion clauses in standard form contracts in both legal systems. The comparison will then be used to analyse the fundamental question if the harmonisation of contract law in the EU is feasible. Specific areas within the contract law have already been harmonised, which shows a possibility to coordinate common law and civil law. Directive 93/13/EEC on Unfair Terms in Consumer Contracts is one example of harmonised contract law in the EU and the principles in PECL is another example which shows that it is possible to coordinate common law and civil law. A harmonisation of the contract law will probably promote the commerce within the union and be the next step towards one of the most prominent goals of the EU, namely a well functioning common market. However, our study shows that the differences between national legislation and the differences between the legal traditions within the EU are not insignificant and a harmonisation will probably not be enforced without difficulties.</p>

In this thesis it is argued that while the concept of freedom of religion or belief itself is opaque and difficult to define, the right to religious freedom must contain certain basic factors – most importantly the right to individual (religious) autonomy. The individual autonomy approach is seen here as providing the necessary rationale for the protection of freedom of religion or belief. This rationale is not cemented in stone in the practice of the Convention and this has caused the Court to lose its focus on individual freedom. It is a dangerous tendency. It allows the focus to be placed on the role of the State and leaves freedom of religion or belief to be heavily affected by politics and fluctuating social attitudes. In this regard, this thesis looks for the meaning and scope of individual and collective religious autonomy and how it is and ought to be represented in the practice of the European Court of Human Rights. It is the aim of the author to contribute to a clearer and more principled understanding of Article 9 of the ECHR. The right to individual autonomy is thought to be able to provide the necessary focus for the European Court of Human Rights in creating a more robust framework for the protection of freedom of religion or belief different from current Court practice which shows inconsistency in its reasoning and theoretical chaos. This lack of clarity has also contributed to freedom of religion or belief being a relatively weak right. It is explored here as to how the principle of autonomy (as developed in this thesis) relates to other principles provided by the Court, namely the principle of State neutrality, pluralism and the effective protection of rights, but also the margin of appreciation and the autonomy of religious communities. The individual autonomy centred theoretical framework in the first part of the thesis will be engaged to analyse the conflict in the triangle of state-individual-community explored in the second part.

Le présent mémoire de maîtrise a pour objet l'analyse du droit international des marques de commerce et du droit de certains pays industrialisés en comparaison avec la législation canadienne sur les marques de commerce. Il traite également des modifications qu'il serait nécessaire d'apporter à la loi canadienne en vue de l'adoption du Protocole de Madrid, du Traité sur le droit des marques et de l'Arrangement de Nice, et de la mise en application de la Recommandation commune sur les marques notoires. Le Canada devrait aussi modifier certaines dispositions de la loi sur les marques de commerce pour la rendre plus conforme à l'Accord sur les ADPICs et à la Convention de Paris. Compte tenu des lacunes du droit international en ce qui a trait à l'utilisation de la marque, le mémoire analyse et critique cette notion en droit canadien et la compare aux tendances actuelles qui ont cours aux États-Unis et au Royaume-Uni. / The purpose of this thesis is to compare the Canadian legislation in trade-marks law with international trade-marks law and the law of sorne industrialized countries. It is also suggested that the implementation of the Madrid Protocol, of the Trademark Law Treaty, of the Nice Arrangement and of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks would necessitate some amendments to the Canadian Trade-Marks Act. Moreover, some sections of the Canadian Trade-Marks Act should be amended so as to comply with the TRIPs Agreement and with the Paris Convention. U.S. and UK. approaches regarding the use of a trade-mark are also analysed, since international law does not appear to have fully addressed this issue. / "Mémoire présenté à la faculté des études supérieures en vue de l'obtention du grade LL.M. en droit des technologies de l'information"

Les risques systémiques des défaillances financières des établissements bancaires bouleversent les limites de compétence des législations nationales. De très grandes disparités entre les systèmes sont de nature à perturber les marchés, nationaux et internationaux, en raison de la spécificité de l’activité bancaire qui est de servir l’intérêt général. Toutefois, les grands systèmes normatifs qu’ils soient chinois, européens ou des Etats-Unis, révèlent des convergences d’ensemble pour prévenir ou résoudre les risques de défaillance des établissements bancaires, au sein d’une « lex argentariae » d’un milieu professionnel homogène. Une analyse comparée de ces législations qui privilégient l’intervention d’autorités administratives montre clairement la prise en considération des nécessités économiques et financières, alors que le juge judiciaire même subsidiairement imposera des solutions ayant autorité erga omnes et conservera ses missions essentielles notamment de protection des droits et des libertés individuels. L’analogie des solutions pose alors une question essentielle, celle de la coordination internationale des interventions administratives et judiciaires, afin de surmonter l’utopie d’une législation mondiale unifiée. Ces réflexions sont confirmées par l'évolution de l'Union bancaire européenne et de l'activité des banques chinoises à l'international. / The systemic risk of the financial failure of the banking institutions has overturned profoundly the limits of the competence of the national legislations. Though the banking activities have the characteristics that serve the general interest, the great disparity between those jurisdictions creates the instability of the national and international markets. However, the major jurisdictions whichever the Europe, the UnitedStates or the China, have revealed overall convergence in preventing or resolving the risk of the bank failure, in a “lex argentariae” of a group of professionals that are homogeneous. The comparative analysis of those legislations that prevails the intervention of the administrative authority has clearly indicated the economic and financial needs, while the judges on bench, though of being subsidiary, continue to impose the solutions that has the authority erga omnes, and maintain their core functions, particularly the protection of the individual rights and freedoms. In order to surmount the utopia of a unified international legislation, the analogy of the solution has raised another important question, which is, the global coordination of the administrative and judicial intervention. These thoughts are confirmed by the evolution of the European Banking Union and of the activities of Chinese banks abroad.

L’ordre public est un concept fuyant. Dans les ordres juridiques nationaux comme dans l’ordre juridique européen, il renvoie à des réalités diverses. Pourtant, il s’agit d’un concept nécessaire. Il est en effet irréductible aux concepts qui lui sont proches : l’indisponibilité, l’illicéité et l’impérativité. Malgré la difficulté que présente sa définition, il peut être identifié dans sa singularité. Des critères d’identification tels que le libellé de la règle et sa sanction sont généralement retenus. Ils sont cependant insuffisants et peuvent être utilement complétés par la détermination de l’intérêt protégé, la prise en compte de la valeur en cause et la contextualisation de la règle. Le concept d’ordre public ainsi délimité présente des atouts indéniables dans une perspective comparatiste ayant pour objet les ordres juridiques nationaux de l’Union européenne. Il est une notion nécessaire à l’harmonisation du droit en général et à celle du droit commercial en particulier. Dès lors, il convient de penser l’harmonisation du droit commercial en fonction des règles d’ordre public. Ces dernières apparaissent comme un élément d’explication des échecs passés. Que les obstacles à l’harmonisation aient été liés à un « ordre public de structure » ou à un « ordre public de fonctionnement », ils peuvent s’expliquer par la diversité des règles d’ordre public. Toutefois, plus qu’un obstacle, les règles d’ordre public constituent un élément d’union entre les différents droits nationaux. La protection de certaines catégories de sujets, la lutte contre l’abus et la fraude, sont en effet des objectifs communs qui trouvent leur meilleure traduction dans des règles d’ordre public. / Public order is an evasive concept. In domestic legal systems as well as in the European legal system, it conveys diverse meanings. Nevertheless, it is a necessary concept. It is indeed irreducible to other similar concepts: unavailability, illegality and mandatory rules. Although it is hard to define, the concept of public order can be identified thanks to its singularity. Identification criteria such as the wording of the rule and its sanction are generally retained. They are however insufficient and can be usefully completed with the determination of the interest of the rule, the taking into account of its value and the putting of the rule into its context. Thus, the scope of public order being defined, this concept has undeniable advantages from a comparative viewpoint, which subject matter is the domestic legal systems of the European Union. It is a necessary notion for the harmonisation of law in general, and of commercial law in particular. Indeed, the harmonisation of commercial law has to abide by the rules of public order. These rules appear then as an element of explanation for past failures. Whether the obstacles to the harmonisation have been linked to a “structural public order” or to a “functional public order”, these obstacles can be explained by the diversity of the rules of public order. However more than an obstacle, the rules of public order constitute an element of union between the various domestic laws. The protection of some categories of individuals, the war against abuse and fraud, are indeed common goals that are better translated into rules of public order.