Suchergebnisse

Claus Kreß beleuchtet im Interview mit GWP die Idee der Weltstrafjustiz, institutionalisiert durch den Internationalen Strafgerichtshof in Den Haag. Als ausgewiesener Experte im internationalen Strafrecht widmet er sich den Fragen drängenden Fragen in diesem Kontext.

Abstract: Since 1915, English law has distinguished between penalties (which are unenforceable) and 'liquidated damages' (which are enforceable) by the criterion of whether the amount agreed to be payable is extravagant and unconscionable in comparison to a genuine pre-estimate of the loss. Recent cases have suggested that a clause may also be valid, though it was not a genuine pre-estimate of the loss, if it had a commercial justification and was not merely aimed at deterring breach or even if it was aimed at deterring breach, provided that there was a broader social interest in ensuring compliance with the contract. The latest cases have been appealed to the Supreme Court. In one, the appellants argued that the doctrine of penalty clauses should be abolished or at least dis-applied when the parties 'met on a level playing field'. But total abolition would leave unsophisticated businesses unprotected and partial disapplication would be difficult without developed criteria to determine when the doctrine should apply. More promising approaches may be to exempt clauses that form the 'core' of the contract or to ask what the commercial purpose of the provision is and whether its effects are proportionate to that purpose. It might be difficult, however, to determine what types of clause should fall within such a control, and it may be that the Supreme Court will decide to deal only with clauses that are triggered by a breach and to consider the legitimacy of clauses that have a commercial purpose other than compensation and including deterrence, provided that the effects of the clause are not extravagant and unconscionable.

This paper deals with arbitration clauses and class action waiver clauses inserted in consumer contract forms. Both clauses are deemed to be valid and enforceable in the Italian law system, although the decisions of the Corte di Cassazione consider the arbitration clause an unfair term, therefore null and void. Arbitration clause, indeed, is not an unfair term since it does not prevent the exercise of the jurisdiction according to article 33, section 2, letter t) of the Italian Consumer Code. Further, arbitration clause does not lead to a material unbalance of the contract according to article 33, section 1 of the Italian Consumer Code: as a matter of fact, arbitration clause does not restrict the rights of action of consumers, as they can recur to a class-wide suit, anyhow. In particular, consumer may recur to class arbitration suits. Similarly, neither class action waiver clause could be considered an unfair term according to article 33 of the Italian Consumer Code, since it does not refrain consumers from recurring to individual suits in order to enforce their rights. Furthermore, class action waiver clause does not lead to a material unbalance of the agreement, since Italian class action system is largely underexploited, yet. Comparative method has been crucial for the scope of work: on one hand, the study of the American model has inspired the work, since Federal Supreme Court already settled arbitration clause issue and class action waiver clause issue by four decisions issued within years 2009/2015. Indeed, the Supreme Court ruled for the validity and enforceability of these clauses, therefore, barring consumers from recurring to class action suits or class arbitration suits as well as to any kind of individual suit, since cost-benefit ratio is totally inefficient. On the other hand, the in-depth analysis of origins of class action in the common law systems revealed the real nature of Italian class action regulations adopted in 2009 and 2019. American class action provision currently in force, i.e. Rule 23 FRCP, is the outcome of principles of representative suit arising from centuries of case law. Indeed, procedural provisions disclaimed by Rule 23 FRCP, especially those regarding the certification phase, are provided in order to grant the plaintiff with a standing to sue in representation of the absent class members: class members which will be actually bound by the decision issued in the class action suit. In other words, procedural prescriptions become the source of the power of the plaintiff to sue in representation of the class. On the contrary, Italian class action regulations do not provide any representative power of the plaintiff, although American rules were the blueprint for the Italian legislator. Therefore, unlike Rule 23 FRCP, Italian class action reg-ulations, instead of being the source of power of the plaintiff to introduce a class action, are just procedural provisions adding to ordinary ones. Thus, the consumer has the right to freely use these special procedural devices and, therefore, consumers are free (i) to renounce to class action suit; or (ii) to adopt class action provisions in a class arbitration regulation.

Common law and civil law do not seem to agree on the function of punitive liquidated damages. Whereas penalty clauses are seen as a way of enriching contract law in France and the Netherlands, they are forbidden in the United States. Belgian law has its own hybrid approach to penalty clauses. This article looks to the past, the present and the future role that penalty clauses (could) play in American contract law, by comparing the American situation with that of France, the Netherlands, Belgium, and the harmonization efforts in private law (such as the Draft Common Frame of Reference). It promotes an understanding of the different visions in common and civil law. While recognizing the risks inherent to penalty clauses, the article puts forward that these risks can be better tackled by allowing a judge to reduce excessive or abusive penalty clauses – a power judges already have when dealing with excessive covenants not to compete, or when confronted with excessive punitive damages. It finds support for this statement in law and economics, the nature of contract law and the theory of punitive damages.

European democracy is in a bind: what urgently needs to be done is also extremely unpopular and therefore virtually impossible to bring about democratically. In this exclusive interview, Claus Offe discusses the contradictions at the heart of the European project.

clauses remains a debatable issue with incomplete solution in the Albanian syntax. The lack of a proper criterion for classification, structuring of clauses makes predicative clauses not treated properly, a few attentions is paid to them moreover they are explained superficially. This type of subordinate clause leaves room for treatments and discussions. They are among the most specific types of dependent clauses in Albanian. In the treatment of the subject, it is intended to explain the syntactic structures of these clauses, to describe as fully as possible the syntactic functions. It will address some conceptions and perspectives on Albanian syntaxes starting from the earliest to the present day. It has been selected the following grammars: the grammar of J. Rrota, M. Domi, S. Prifti, Th. Dhimës, M. Toton, M. Çeliku and the grammar of the Academy 2 (2002) etc.

Received: 6 October 2020 / Accepted: 21 December 2020 / Published: 17 January 2021

Abstract: The Italian legislative provisions pertaining to penalty clauses are based on the French model in the Code civil. In contrast to the typical approach in common law systems, Italian law does not distinguish between penalty and liquidated damages clauses. A contractual penalty, agreed upon with the aim of causing the creditor to cease performance, is regarded as effective; however the extent of such penalty can be lowered by the court if it is clearly too high. Due to different matters at the European level, contract theory in the field of penalty clauses has focused on private law sanctions. Recent key decisions by the Italian Court of Cassation have, however, brought the compensatory function of the penalty clause to the fore. In this context, it is thus necessary to examine the relationship between contractual penalties, claims to performance, and compensation in order to assess the parties' autonomy when determining the function of penalty clauses. Where compensation is concerned, it is to be clarified whether the loss suffered is one of the criteria to be considered when assessing whether the extent of the penalty is appropriate. This article also refers to the content of the consumer code as well as other provisions concerning similar clauses, e.g., deposits. Finally, the Italian rules on contractual penalties will be compared with the corresponding rules in projects aimed at the harmonization of private law.

On May 17, Ecuadorian President, Guillermo Lasso, dissolved the National Assembly by activating a unique constitutional clause known as 'mutual death' [muerte cruzada]. Under this provision, added to Ecuador's Constitution in 2008 but never before used, the President can dissolve the Legislative, call general elections, and rule by decree until a new Legislative and President are elected. This post details the significance of these recent events and the decision of the Constitutional Court to render the clause non-reviewable.

Controversial clause in bill that could see councils exempted from safeguarding laws has split opinion