This dissertation examines the influence of politics and legal education on choice of law for international contracts. The motivation for this study is to challenge the traditional approach of analyzing choice of law by highlighting the impact of areas exogenous to law in the judge’s decision-making process; as well as the importance of examining choice of law from a multi-disciplinary perspective. This motivation is achieved through the comparison of five jurisdictions belonging to a variety of geographical locations and legal traditions. They represent the common (U.S.) and civil law traditions (Venezuela), a mixed jurisdiction (Puerto Rico), an Arabic jurisdiction (Lebanon), and a European jurisdiction (England). Each one of these sample jurisdictions is examined in a chapter that includes the evolution of choice of law for international contracts, and the evaluation of the influence of legal education and politics in case law. When necessary, a historical background is included to clarify the previous aspects. Data have been collected from books, periodicals, online newspapers, blogs and reports, case law, interviews with university professors, judges and practitioners, and the offices of academic services from two universities. The investigation of each jurisdiction leads to a final comparative chapter in which overall and structural remarks are made. The struggle between certainty and flexibility, the interaction between judges and legislators, the expansion of flexible connecting factors, and the internationalization of commercial needs are some of the aspects evaluated under the overall comparisons. The abuse of discretionary power, the count of contacts as a choice of law method, the role of public policy in civil law traditions, and the relationships between presumptions and escape clauses, and lack choice and implied choice of law, are among the topics examined under the structural comparison section. The conclusion of this study is that judges belong to a society that shapes them and influences their decisions in ways that lawyers do not always consider when choosing the applicable law to international contracts. Two of the means by which society affects judges are legal education and politics; in this era of pluralism of the sources their impact can no longer be ignored. / acase@tulane.edu

En pratique, de nombreux obstacles peuvent empêcher le déroulement naturel du contrat. Lorsque ces obstacles n'ont qu'un caractère provisoire, le droit contemporain offre au contractant une solution temporaire : la suspension du contrat. Cependant, jusqu'à nos jours, cette solution du droit n'est pas soumise à un régime juridique unitaire. La suspension se dissimule dans diverses techniques juridiques, traditionnelles ou modernes. Le droit comparé français chinois à l'égard de la suspension permet d'identifier clairement l'ensemble de ces techniques, d'en envisager une nouvelle compréhension et de proposer une systématisation du phénomène complexe de suspension. Notre étude a révélé plusieurs constatations importantes. Pour un contractant, la suspension n'est pas uniquement une solution permettant de sanctionner l'inexécution temporaire de son cocontractant, elle peut également servir à justifier son inexécution légitime. En outre, la suspension peut être utilisée non seulement en cas d'inexécution du contrat, mais aussi en cas de risque d'inexécution. Enfin, l'objet visé par la suspension peut être non seulement la prestation contractuelle, mais aussi les travaux préparatoires à celle-ci. / In practice several obstacles may prevent the natural progress of the contract. When those obstacles are not permanent in nature, modern law offers the contracting party a temporary solution : suspension of the contract. However, up until now, that legal solution has not been subject to a unitary legal system. Suspension is concealed by a range of traditional and modern legal techniques. Sino-French comparative law in relation to suspension makes it possible to clearly identify all these techniques, to envisage a new understanding and to offer a systematization of the complex phenomenon of suspension. Our study has revealed several important findings. For a contracting party, suspension is not merely a way to enable the sanctioning of temporary breach by the other contracting party; it can also be used to prove his legitimate breach. In addition, suspension can be used, not only in the event of breach of contract, but also in the event of the risk of breach. Lastly, the object affected by the suspension may not only be the contractual arrangement, but also the work leading up to it.

This thesis explores the extent to which the law in the UK, Delaware and Germany imposes an obligation on directors of solvent public companies to take into account the long-term consequences of their decisions while establishing the content and scope of long-termism in these three legal systems. It adopts a comparative methodology with the aim of determining whether the approaches taken in the chosen jurisdictions regarding both the parameters of long-termism and its legal sources and forms are radically different or very similar. It is also scrutinised here if it can be stated with any certainty that the approach taken in any particular jurisdiction regarding long-termism is ‘better’ for the protection of a company’s interests. This thesis makes four original contributions. Firstly, it conducts a comprehensive, comparative study on the relevance of long-term considerations. The concept of long-termism is analysed in the contexts of current legislation, case law, soft law, academic literature, and incentives that encourage long-termism decision-making. Secondly, hard law in the UK, Delaware and Germany does not currently offer much guidance regarding the content and scope of long-termism. A key original contribution made by this research draws on the academic literature and performs a gap-filling exercise by identifying examples of long-term decision-making in these jurisdictions, as well as examples of decision-making and conduct that is not long-term in nature. In the gap-filling exercise, case studies are presented in the context of (i) the contemporary shareholder v. stakeholder debate in corporate governance scholarship and (ii) the relevance of the share ownership structure of the company. These two important debates are used as variables to cast light on the ambit of the notion of long-termism, and the structural differences and similarities between the corporate governance systems and concepts of long-termism in the UK, Delaware and Germany. Thirdly, this thesis identifies specific and concrete factual examples of the incentives that the legal systems in the UK, Delaware and Germany do or could provide to encourage long-term managerial decision-making. Finally, it will make a positive contribution to the ongoing ‘convergence v. divergence’ debate, as the thesis has the scope to offer insights into whether the law on the duties of directors is converging in different legal systems particularly in the specific context of what is meant by long-term decision-making by such directors.

[Introductory paragraph] The present generation must confront a challenge. The challenge is to determine what it must do for the sake of future generations. This challenge is quite puzzling because the present generation, like its predecessors, will pass on to future generations a complex mix of goods, inventions, institutions and opportunities containing a range of benefits and burdens. In this thesis, I focus on one key intergenerational problem – anthropogenic climate change – considering some of the questions of intergenerational justice that it raises. While it has not always been the case, climate and climate change have recently taken on new significance as a process to which humans can, and in fact do, contribute. More specifically, while paleoclimatic data show substantial variation in the Earth’s climate (Masson- Delmotte, Schulz, Abe-Ouchi, Beer, Ganopolski, J.F. González Rouco, E. Jansen, et al., 2013: 385), an ever-growing mass of evidence shows that human activity – particularly the sustained emission of greenhouse gases (GHGs) – is beginning to change the global climate, with much greater changes still to come (IPCC, 2013b: 4, 19ff). This produces what is known as anthropogenic climate change, “a change in the state of the climate that can be identified (e.g., by using statistical tests) by changes in the mean and/or the variability of its properties, and that persists for an extended period, typically decades or longer”, and that results from human activities (IPCC, 2013a: 1448, 1450).

Dissertation (LLD)--University of Stellenbosch, 2008. / Bibliography. Also available via the Internet.

This dissertation traces the development of a modern approach to comparative law that arose out of the fin-de-siècle critique of nineteenth-century legal thought in France and the United States. This critique undermined a mode of legal reasoning that assumed the common law and the civil code were internally-coherent and gapless systems of rules from which judges could logically deduce legal outcomes. As rapid social and economic changes swept across the Atlantic World, jurists influenced by reform movements sought to make the law more responsive to changing conditions, while also addressing the problem of legal indeterminacy posed by the critique of deduction. One group of jurists—including Raymond Saleilles, Édouard Lambert, Roscoe Pound, and John Wigmore—responded to these challenges by turning to comparative law. Because they could no longer pretend to access static legal concepts, these jurists worked to achieve stability by formulating the best legal solution for a particular time and place—replacing timeless Truth with the historicized, spatial truths of comparative law. Before the First World War, however, French and American comparativists struggled to get beyond the differences between the common law and the civil law. Unlike the social theorists of the day, whose transatlantic exchanges constituted a veritable marketplace of ideas, the comparativists of the Progressive Era and the Belle Époque held each other at arm’s length. This changed, however, when the Great War led to a profound realignment of intellectual affinities. As a result of the collateral damage suffered by Germany’s scientific reputation, French and American jurists turned to different sources for legal exchange—each other. During the interwar period, Franco-American jurists sought to achieve a rapprochement that would unite their laws in a “common law for the League of Nations.” This alliance finally bore fruit during two International Congresses of Comparative Law in the 1930s, but the intervening exchanges did not constitute a marketplace of ideas. Rather, they are best understood as a protracted contract negotiation over the terms of comparative law. Though the French and the Americans ultimately achieved a “meeting of the minds,” this outcome was far from certain when the century began. / History

Part One defends the thesis, first advanced by Aristotle, that the conclusion of practical reasoning is an action, and argues for its philosophical significance. Opposition to the thesis rests on a contestable way of distinguishing between acts and contents of reasoning and on a picture of normative principles as external to the actions that fall under them. The resulting view forces us to choose between the efficacious, world-changing character of practical thought and its subjection to objective rational standards. This is a false choice. Aristotle's own understanding of the thesis points the way to an alternative conception of practical reason on which it is at once a power to effect changes in the world and to get things right. Practical reasoning endows the action performed on its basis with a principle that is not imposed on it from outside: instead, it makes the action what it is. Properly understood in terms of the relevant acts of a rational subject, the thesis is defensible and philosophically attractive. Furthermore, it helps us understand the continuity and discontinuity that exists between the motions of human beings and those of other animals, as Aristotle showed. / Philosophy

Thesis (Ph. D.)--Florida State University, 2006. / Advisor: Dale L. Smith, Florida State University, College of Social Sciences, Dept. of Political Science. Title and description from dissertation home page (viewed Sept. 13, 2006). Document formatted into pages; contains ix, 242 pages. Includes bibliographical references.

The central aim of the thesis is to understand why intersectionality remains at the fringes of mainstream discrimination law and to provide an alternative vision to the dominant conception of single-axis discrimination. This aim is pursued by translating intersectionality theory into the conceptual and doctrinal precincts of comparative discrimination law of South Africa, Canada and the United Kingdom. The thesis is divided into three parts. Part One posits the framework of 'intersectional integrity' as forming the backbone of the category of intersectional discrimination. Its normative core insists on mapping the intersections between identities as creating unique and shared patterns of group disadvantage by considering people's identities as a whole. It is this bipartite framework against which the doctrine is considered. Part Two deals with the doctrinal limitations which impede a successful claim of intersectional discrimination. The comparative analysis fine-combs through the judicial interpretation to understand how it fares against the framework of intersectional integrity. The judicial strategies emerging from the doctrinal analysis are consolidated in the form of a graded spectrum which captures the proximity of each response from the category of intersectional discrimination. Beyond this conceptual reimagination, it also considers how other tools in discrimination law need to be recalibrated to accommodate an intersectional claim. These include the conception of equality and discrimination, the criteria for selection of analogous grounds, the understanding of indirect discrimination, the relationship between impact and justification analysis, apportioning the burden of proof and determining the standard of scrutiny. Part Three consolidates the normative insights emerging from the thesis. A restatement of the theoretical and doctrinal recalibrations helps imagine how a lawyer would walk through the labyrinth of discrimination law for realising a claim of intersectional discrimination.

Simulation is a complex legal operation in which the parties, with the aim of concealing their real intentions, have made two agreements: one apparent and the other one secret. Although simulation is dealt widely in Civil Law countries, the Civil Code of Peru shows some inconsistencies; especially, to employ a doctrinal classification, which describes different aspects of the fattispecie, as various fattispecie. Therefore, the author develops a critical and comparative analysis about simulation of contract in the Peruvian Civil Code. / La simulación es una operación jurídica compleja caracterizada por el acuerdo de las partes para fingir un negocio jurídico o contrato, o para disimularlo, detrás de un negocio jurídico o contrato aparente.A pesar de que la simulación ha sido objeto de amplia atención en distintos ordenamientos jurídicos, el Código civil peruano posee numerosas incongruencias; especialmente, por elevar al rango de fattispecie diversas algunas de las clasificaciones doctrinarias que describen las distintas facetas de una misma fattispecie, es decir, la fattispecie simulatoria. Por ello, la autora desarrolla un análisis crítico de la simulación en el Código civil peruano desde el enfoque del derecho comparado.