Giuditta Cordero Moss

International Contracts between Common Law and Civil Law: Is Non-state Law to Be Preferred? The Difficulty of Interpreting Legal Standards Such as Good Faith

Most commercial contracts are nowadays written on the basis of English or American contract models, irrespective of whether the legal relationship that the contracts regulate is governed by a law belonging to a Common Law system or not. These contract models are drafted on the basis of the requirements and structure of the respective Common Law system in which they were originally meant to operate. These models may therefore be in part ineffective or parts thereof may redundant, if the governing law belongs to a Civilian system. To overcome this tension between Common and Civil Law, it is sometimes recommended to subject international contracts to non-state sources of law (also referred to as transnational law, lex mercatoria, soft law). This article analyses the tension between the Common and the Civil Law of contracts, and to what extent non-state sources may represent a satisfactory solution to such tension. This is made by analyzing the role that good faith and fair dealing play in contracts according to the respective systems: English law as an illustration of Common Law systems, Norwegian, German and Italian law as illustrations of Civil Law Systems, the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law as illustration of non-state sources.

Between Private and Public International Law: Exorbitant Jurisdiction as Illustrated by the Yukos Case

The article analyses one specific aspect of the long and complicated proceedings in which the Russian oil company Yukos was involved: the question of jurisdiction relating to the application that Yukos made to a court in Houston, Texas, to open bankruptcy proceedings under chapter 11 of the US Bankruptcy Code and thus grant protection against the creditors to permit restructuring of the company. Yukos being a Russian company burdened by massive debt connected with taxes owed to the Russian authorities, and virtually the totality of its as-sets being located on Russian territory, the first question that arises is how it is possible for a court in the United States to have jurisdiction in this case. This article examines the question of extraterritorial jurisdiction in civil cases, from the point of view of both private and public international law.

Contract or Licence? Regulation of Petroleum Investment in Russia and Foreign Legal Advice

The petroleum sector is a very interesting area for foreign investment in Russia. However, due to the lack of a satisfactory legal framework, few substantial investments have been carried out so far.Great expectations arose in connection with the preparation of a Law on Production Sharing Agreements (PSAs), and intensive legal advice was rendered to Russian authorities by foreign sources; yet the resulting Act cannot be considered fully satisfactory.This article analyses the PSA Law and the background for choosing PSAs to regulate petroleum investments in Russia, as opposed to other instruments such as concessions; it concludes that the adoption of foreign legal models should be based on a thorough analysis of the involved legal, economic, social and other surrounding circumstances.

International Arbitration and the Quest for the Applicable Law

A clearly recognisable trend of the past decades in the field of international commercial law and, in particular, in international commercial arbitration, is to avoid too precise references to the legal mechanisms for identifying which countrys law governs an international legal relationship x96 legal mechanisms that usually go under the names of conflict of laws, private international law or choice of law. This article intends to show that private international law is not an anachronistic or redundant heritage of old fashioned, national sovereignty-obsessed lawyers without an understanding for international business transactions. The analysis will show that rules of choice of law contained in national laws are relevant to international arbitration, that disappearance from arbitration rules of reference to private international law may create unpredictable results and is not necessarily the optimal solution for business transactions. The relevance of private international law to international arbitration will be shown by identifying some of the main contract terms that, among those often used in various commercial contracts, run the risk of being governed by a law different from the law chosen by the parties. To this aim, the bases for restricting party autonomy need to be recognised, and this assumes an exercise of private international law. This will permit us to indicate not only which areas of the contract might be subject to a law different from the law chosen by the parties, but also which countrys law may be applicable instead of the law that the parties had chosen. Finally, to verify whether these restrictions to party autonomy are relevant even though the contract contains an arbitration clause, the article will succinctly analyse the criteria that may make them applicable not only to a court of law, but even to international arbitration.