Quo vadis Commercial Contract?: Reflections on Sustainability, Ethics and Technology in the Emerging Law and Practice of Global Commerce

Preface
The LCF Studies in Commercial and Financial Law
The London Centre for Commercial and Financial Law
Quo vadis Commercial Contract?
Acknowledgements
Contents
List of Contributors
Supply Chain Laws Update: Ethics in Global Commerce Through Contract and Regulation
1 Introduction
1.1 Technology in Commercial Contracts
1.2 Sustainability in Commercial Contracts
2 Sustainability Defined
3 Sustainability in Supply Chains: A Comparative Overview
3.1 Supply Chain Law in the UK
3.2 Swiss Legislative Initiatives
3.3 The New German Supply Chain Legislation of 2021
3.3.1 The Scope
3.3.2 The Duties
3.3.3 No Civil Liability
3.3.4 Dynamic Supervision, Public and Private Enforcement
4 Evaluation
4.1 What Are the Expectations?
4.2 Extraterritoriality
4.3 Legal Certainty and Procedural Guarantees
4.3.1 The Notion of Enterprise
4.3.2 The Definition of the Potential Victims or Complainants
4.4 Direct Application of International Law
4.5 Have Expectations Been Met?
4.5.1 The Campaign Groups
4.5.2 Businesses
4.5.3 Scholarly Position
5 Supply Chain Ethics in Context: Conclusions
5.1 A Patchwork and a Multi-Layered Approach
5.2 Contract vs. Regulation in a Three-Pronged Approach
6 How to Use This Book
References
Part I: Law and Technology
The Role of the Court of Justice of the European Union on the Interpretation of Platform Operators and Business Users´ Contrac...
1 The EU Context on E-commerce and the Platform Economy
2 The Platform Economy
2.1 Introduction
2.2 E-commerce Platforms as Self-regulated Environments on a Contractual Basis
3 The Contract Between the Platform Intermediary and the Business User
3.1 Introduction
3.2 The EU Legislation on Platform to Business Users (P2B) Contracts
3.2.1 The Legislation Before 2019
3.2.2 The 2019 Legislation
4 Regulation 2019/1150 on Unfair Contractual Terms in P2B Contracts
5 The Case Law of the Court of Justice of the EU on P2B Commercial Contracts
5.1 The Intermediary Information Society Services Contract Type
5.1.1 CJEU Case Google et al v Louis Vuitton Malletier SA
5.1.2 L´Oréal SA v eBay International AG
5.1.3 Other CJEU Case Law: The Cases Against Amazon and Facebook Ireland
5.2 The Impact of CJEU Case Law on Directive 2000/31/EC: The Proposal for a Digital Services Act (2020)
6 The Second Type of Contract: The Platform as Double Service Provider
6.1 The Uber Case Law
6.1.1 Introduction to the Legal Conundrum
6.1.2 The Uber Cases Before the CJEU
a) The Spanish Case: Case C-434/15, Asociación Profesional Elite Taxi vs. UBER Systems Spain SL
b) The French Case: C-320/16, Criminal Proceedings v UBER France SAS
6.2 Confronting the Uber Business Model in Other National Courts and the Impact of the CJEU Case Law on Uber
6.2.1 The German Case Law Following Asociacion Elite Taxi (C-434/15)
6.2.2 The UK Case Uber BV and Others (Appellants) v Aslam and Others (Respondents)
6.2.3 The Norwegian Model: Taxi Drivers as Employees with Flexible Work Arrangement According to Algorithmic Management
6.2.4 United States
6.3 The Proposed Directive on Digital Labour Platforms
7 The Third Type of Contract: The Business User as the Main Service Provider - Case C-390/18: Airbnb Ireland Is Not a Real Est...
7.1 The Preliminary Referral Before the CJEU
7.1.1 The Facts and the P2B Contract
7.1.2 Question: Is Airbnb an ISSP or Does It Provide an Underlying Service of a Real Estate Agent?
7.1.3 Question: Is the National Legislation Compatible with Directive 2015/1535 and Enforceable Against Airbnb?
7.1.4 The Advocate General Szpunar´s Test
7.1.5 Criticism Against the CJEU´s and Advocate General´s Doctrine
7.2 The Impact of Airbnb: May Member States Still Regulate on Urban Policies and Housing Markets?
8 Conclusion
References
Freedom to Contract and Democracy in the Age of Blockchain and Smart Contracts
1 Introduction
2 Blockchain: A General a-Technical Understanding
3 Blockchain: The Smart Contract and the Democratic Process
3.1 CMaaS
3.2 Fetch.ai
4 Blockchain, Smart Contracts and Freedom of Contract: The Coders
5 Standardising Smart Contracts: The Industry
5.1 The ICC
5.2 ISDA
6 Blockchain and Smart Contracts: Any Role for National or Supranational Regulators?
7 Conclusion
References
Part II: Sustainability in Commercial Contracts
Eco-Reasonableness. Possibilities of Incorporating Green Principles Into General Private Law Clauses
1 Setting the Scene
2 Legitimate Expectation Standard According to an Eco-Reasonableness Benchmark
3 Eco-Reasonableness: New Approach to Objectivisation
3.1 Expectations Based on Representations Created by the Seller
3.2 Empirical Basis
3.3 Mixed Context (Empirical and Normative Elements Taken Into Account)
3.4 Normative Basis
3.4.1 Legal Standards
3.4.2 Extra-Legal Standards
4 General Private Law Clauses as an Instrument for Implementation of Green Principles
5 Limitations of the Eco-Reasonableness: Mirage of Protection?
References
Right to Cure: The Odd One Out? The CISG´s Remedial Scheme and the Circular Economy
1 Introduction
2 The General Model of the Right to Cure Under the CISG
2.1 The Seller´s Right to Cure Prior to the Date Set for Performance
2.2 The Seller´s Right to Cure After the Delivery Date
3 Rationales for the Right to Cure
3.1 The Underlying Values of the CISG
3.2 Economic Efficiency
3.3 The Role of Trade Practice
4 The Right to Cure and Remedies Available to the Buyer
4.1 The Right to Cure and the Right of Avoidance
4.2 The Seller´s Right to Cure When the Requirements of Article 48 (1) CISG Are Not Satisfied
4.2.1 The Seller´s Right to Cure Under Article 48 (2)
4.2.2 The Seller´s Interest in Performance and the Mitigation Principle
4.3 The Right to Cure and the Right to Reduce the Price
4.4 The Right to Cure and the Right to Claim Damages
4.5 The Mode of Cure and the Buyer´s Claim for Repair or Substitute Delivery
5 The System of Remedies in the CISG and the Circular Economy
5.1 Economic and Environmental Efficiency
5.2 Fundamental Breach as a Hurdle
5.3 Costs of Return as a Hurdle
5.4 The Right to Cure as a Wasteful Remedy
6 Conclusion
References
From ``Green Bond Principles´´ to ``Green Bond Clauses´´: Mitigating Greenwashing Through Contract Law
1 Introduction
2 What Makes Bonds ``Green´´
3 Current Challenges of Market Governance
4 The Quasi-Regulatory Role of ``Green Indentures´´
5 ``Green Indentures´´: The Shortcomings of Market Practice
6 Overcoming the Impasse: Standard ``Green´´ Clauses
7 ``Greenness´´ as a Covenant
8 ``Greenness´´ as an Event of Default
9 Conclusions
References
Untitled
Part III: Supervening Events and Contractual Ethics
The Consequences of Brexit for Regulatory Competition and the Approximation of Commercial Law
1 Introduction
2 Fundamental Driving Forces for the Modernisation of Commercial Laws in the EU
2.1 The Approximation of Law
2.2 The Law of Secured Transactions: Case Study
2.3 Regulatory Competition
2.3.1 Definitions
2.3.2 Legal Competitivity
3 Approximation of Law and Regulatory Competition Post-Brexit
3.1 Impact of Brexit on the Approximation of Law
3.1.1 Legal Expertise
3.1.2 Continued Alignment with EU Law
Economic Factors
Legal Factors
Geopolitical Factors
3.1.3 Divergence from EU Law
3.2 Impact of Brexit on Regulatory Competition
3.2.1 Cross-Border Litigation in Civil and Commercial Matters Post Brexit
3.2.2 Implications for Legal Innovations in Law Reforms
3.3 Impact of Brexit on the Transnationalisation of Commercial Laws
4 Conclusion
References
A New Approach to Contracts Breached by COVID-19
1 Introduction
1.1 Force Majeure vs Frustration
2 The Frustration Doctrine Under the Orthodox Understanding of English Law and Current Developments
2.1 Supervening Illegality and Impossibility
2.1.1 Illegality Post Canary Wharf v European Medicines Agency
2.2 Delay as a Ground for Frustration
2.2.1 Proportionality of Delay
3 Is COVID-19 a Frustrating Event at Common Law? Lessons Learnt from Brexit
3.1 Illegality
3.2 Impossibility
4 Frustration of Contract in Singaporean Law
4.1 Introduction and Effect of the COVID-19 (Temporary Measures) Act 2020 in Commercial Proceedings
5 A Change of Course: Coronavirus Act 2020 vs COVID-19 Act
5.1 England and Wales to Follow Singapore´s Lead?
6 New Method of Drafting Contractual Terms Post COVID-19
7 Conclusion
References
Hong Kong´s Insurance Industry in Response to COVID-19
1 Introduction
2 The Hong Kong Government´s Responses
3 The Hong Kong Insurance Industry´s Responses
3.1 Business Interruption Policies
3.2 Updated Guidelines
4 Temporary Facilitative Measures
4.1 Types of Policies Covered
4.1.1 Phase 1 - 21 February 2020 Until 31 March 2020
4.1.2 Phase 2 - 27 March 2020 Until 30 June 2020
4.2 The Contents of TFM
4.3 Can TFMs Become the Future Direction of the Hong Kong Insurance Industry?
4.4 Moves by Insurance Underwriters to Provide Additional Coverage
5 May Insurance Companies Exclude Liabilities by Treating the Pandemic as Act of God?
5.1 Defences in Commercial Contracts
5.2 Innovations in Insurance Contracts
6 Hong Kong in 2020 and Its 2021 Outlook
7 Hong Kong´s Current Position After the First Wave of the Pandemic
8 Concluding Remarks
References
Uniformity or Diversity of the Concept of Good Faith Under the CISG and UAE Law
1 Introduction
2 Good Faith and Other Relevant Principles
3 The Requirement of Good Faith in Sale Contracts Under the CISG and UAE Law
4 The Right to Exclude Good Faith by Mutual Agreement of the Parties
5 Liability of the Parties Due to Non-Compliance with Good Faith
6 Termination of Contract and Good Faith
7 Conclusion
References
The Erosion of Contractual Freedom in Commercial Contracts. A Belgian Case-Study
1 Introduction
2 The Concept: Freedom of Contract
2.1 Party Autonomy
2.2 Freedom of Contract
2.2.1 Formal Freedom of Contract
2.2.2 Substantive Freedom of Contract
3 Socialization of Contract Law
3.1 The Concept
3.2 A Multi-Layered Legal System
3.3 A Proportional Approach Towards the Socialization of Contract Law
4 Contractual Fairness
4.1 The Concept
4.1.1 Formal Contractual Fairness
4.1.2 Substantive Contractual Fairness
4.2 Substantive Contractual Fairness Vs Good Faith
4.2.1 Good Faith Is Used for Gap-Filling
4.2.2 Corrective Justice: Derogative Function of Good Faith
4.2.3 Measures of Substantive (Contractual) Fairness as Piecemeal Solutions
5 The Socialization of Belgian Commercial Contract Law: Some Examples
5.1 Substantive Contractual Freedom
5.2 Substantive Contractual Fairness
6 Conclusion
References
Inequality of Bargaining Power and Arbitration: The Tale of Uber
1 Introduction
2 Inequality of Bargaining Power
3 Inequality of Bargaining Power and Arbitration
4 The Tale of Uber
4.1 The Canadian Case
4.2 The USA Cases
4.3 The Uruguayan Case
4.4 The South African Case
5 Uber, Inequality of Bargaining Power and Arbitration, the New Technology and the Same Problem?
6 Conclusion
References