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Reiner Schulze - Common European Sales Law (CESL)

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Reiner Schulze (ed.)

Common European Sales Law (CESL)

Series: Kooperationswerke Beck - Hart – Nomos

Volume 2012

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Article 58 General rules on interpretation of contracts Wendehorst S. 340-344

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. Function Art 58 is the introductory rule to Chapter 6 on the interpretation of contracts …” „… statements by and other conduct of a party, thus being primarily a rule on the interpretation of offer and …” „… acceptance and only indirectly a rule on the interpretation of the contract itself. In the UNIDROIT PICC …”

Article 63 Preference for interpretation which gives contract terms effect S. 354-357

„… II. Inconsistencies between terms Art 62 is, however, essential as a rule of interpretation where …” „… of consumer-friendly interpretation is concerned a conflict between the two rules arises where the …” „… guidelines should apply where there is a conflict between the rule in art 63 and the rule of interpretation …”

Article 65 Interpretation against supplier of a contract term S. 360-364

„… Most favourable interpretation Where the rule in art 64 applies it has the effect of giving …” „… of how important the rule is. To what extent different interpretations are favourable to the consumer …” „… , deviate from other rules in the chapter on interpretation. Article 65 Interpretation against supplier of a …”

Article 64 Interpretation in favour of consumers S. 357-360

„… and 60, and also to the specific rules of interpretation in arts 61 to 63. This cannot mean, however …” „… Wendehorst 8 9 10 11 12 Most favourable interpretation Where the rule in art 64 applies it has the effect of …” „… user of how important the rule is. To what extent different interpretations are favourable to the …”

Article 4 Interpretation S. 131-134

„… special rule applying to a particular situation within the scope of the general rule, the special rule …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. Function Each paragraph of the article contains a different rule. Paragraph 1 states the …” „… principle of autonomous interpretation, which is recognised in the case law of the CJEU for EU legislation.1 …”

Article 12 Unilateral statements or conduct S. 157-162

„… interpretation of unilateral statements indicating intention. 4. The rules on defects in consent in Chapter 5 …” „… ’ . . . . . . . . . . . . . . . . . . . . . . . . . 8 V. Application by analogy of other rules on interpretation of contracts . . . 10 VI. Applicability …” „… statements indicating intention since not all of the rules on the interpretation of contracts can be applied …”

Article 62 Preference for individually negotiated contract terms S. 352-354

„… ). Relationship with other special rules on interpretation A more difficult issue is the relationship of the rule …” „… in favour of consumers and the rule in art 63 about interpretation giving contract terms effect …” „… Art 62 is, however, essential as a rule of interpretation where two terms, one individually negotiated …”

Article 61 Language discrepancies S. 350-352

„… . Function Art 61 contains a special rule of interpretation for written contracts where the whole contract or …” „… means of the rules in arts 58 and 59 and the other rules of interpretation.3 II. Absence of a statement …” „… interpretation A more difficult issue is the relationship of the rule in 61 with the other special rules on …”

Article 59 Relevant matters S. 344-349

„… to draw a line between interpretation on the one hand and specific rules about the content of …” „… Kaufrecht?, p 234, who hold art 69 to be a concretisation of the general interpretation rules. 8 Cf comments …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. Function Art 60 introduces a general rule of interpretation according to which expressions used …”

Article 57 Choice of remedy S. 337-340

„… General rules on interpretation of contracts 1. A contract is to be interpreted according to the common …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. Function Art 58 is the introductory rule to Chapter 6 on the interpretation of contracts …” „… remedies takes precedence or provides for the more special set of rules. II. Position within the system of …”

Article 48 Mistake S. 291-301

„… risk also by statements or conduct outside of the contract. At any rate, the rules on interpretation …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 1. Mistakes regarding the content or the interpretation of a contract or its legal effects …” „… valid (art 54[2]). On the one hand, the rules on mistake are essential for safeguarding principles of …”

Article 3 Co-operation S. 128-131

„… barred by any specific rule of the CESL (P). Secondly, a claim for damages can only be granted if the …” „… general rule and a special rule applying to a particular situation within the scope of the general rule …” „… , the special rule prevails in any case of conflict. Contents A. Function …”

Article 72 Merger clauses S. 388-391

„… used for the interpretation of art 71. Whether a specific rule like art 71 is really needed given the …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 II. Prior statements as tools of interpretation …” „… alleged by one party, the rule can also work to the detriment of a party which has relied on the other …”

EXPLANATORY MEMORANDUM Explanatory Memorandum S. 788-817

„… mandatory rules of the consumer’s law need to be respected. Traders therefore need to find out in advance …” „… achieved by making available a self-standing uniform set of contract law rules including provisions to …” „… contain fully harmonised consumer protection rules providing for a high standard of protection throughout …”

Article 60 Reference to contract as a whole S. 349-350

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. Function Art 60 introduces a general rule of interpretation according to which expressions used …” „… . Function Art 61 contains a special rule of interpretation for written contracts where the whole contract or …” „… D. Criticism The rule in art 59 is certainly a good rule, but in terms of clarity and appeal it …”

Article 124 Means of payment S. 574-580

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 III. Comparison with other sets of rules for cross-border transactions . . . . . . 10 C …” „… PICC. A more elaborate version of this rule was first introduced as art 126(3) CESL (FS). Paragraph 4 …” „… contained in art 19 Dir No 2011/83/EU. III. Comparison with other sets of rules for cross-border …”

Article 66 Contract terms Kieninger S. 364-366

„… terms. While the PECL, UNIDROIT PICC and CISG provide rules for implied terms and the interpretation of …” „… : (a) the agreement of the parties, subject to any mandatory rules of the Common European Sales Law; (b …” „… ) any usage or practice by which parties are bound by virtue of Article 67; (c) any rule of the Common …”

Article 50 Threats S. 309-313

„… precise rule and should, in any case, be used as a guideline for an appropriate interpretation of art 50 …” „… application The rule in art 50 is a part of general contract law that applies to B2B as well as B2C contracts …” „… that, according to recital 27 of RegCESL (P), the Proposal does not include a rule on illegality, and …”

Titelei/Inhaltsverzeichnis S. 1-17

„… the internal market under a uniform set of contract law rules for traders and consumers. At the same …” „… national perceptions and interpret the rules of this new law autonomously and in accordance with its …” „… the reference to other European and international sets of rules in this field (eg European directives …”

Article 1 Objective and subject matter S. 38-50

„… only by interpretation of its rules without recourse to any other law. The rules of the Common European …” „… rules have a direct effect on the functioning of the internal market in relation to business–to–consumer …” „… based on a single uniform set of contract law rules irrespective of where parties are established. Such …”

Article 5 Reasonableness S. 134-140

„… prevails over rules of a more general nature (lex specialis derogat legi generali). Since the CESL (P) has …” „… hardly any general part, cases of conflict, which trigger the application of this rule, should occur less …” „… interpretation of statutes whereby the literal meaning of the statute is followed closely. Even for the English …”

Article 73 Determination of price S. 391-395

„… IV. Mandatory for B2C contracts Art 72(4) establishes the mandatory nature of the rules as far as B …” „… 2C contracts are concerned and the exclusion or modification of the rules is detrimental for the …” „… without an addition as contained in paragraph 4. D. Criticism The classic merger clause rule of art 72(1 …”

Article 180 Commencement S. 764-767

„… appear in cases with claims based on both CESL (P) and national rules on tort (outside the scope of CESL …” „… [P])11 under national rules with a short prescription period of more than two years. Article 180 …” „… supplementary rule of suspension of the period in case of lack of knowledge.4 Thus, art 180(1) integrates the …”

Article 30 Requirements for the conclusion of a contract S. 217-221

„… interpretation of the parties’ statements and conducts according to the relevant rules of the CESL (FS) and that …” „… agreement, supplemented if necessary by rules of the Common European Sales Law, has sufficient content and …” „… rule – there are no formal requirements for the formation or evidence of a contract. 1 Explanatory …”

Article 70 Duty to raise awareness of not individually negotiated contract terms S. 380-385

„… scope of application, the rules could still be mandatory only in regard to consumer protection and …” „… party’s attention. While the formulation is slightly different, the effect of the rule is the same as in …” „… forms part of the general provisions on contract formation. However, a similar rule is absent from the …”

Article 67 Usages and practices in contracts between traders S. 366-371

„… 67(3) that usages and practices which deviate from non-mandatory rules of the CESL should take …” „… individually negotiated or any mandatory rules of the Common European Sales Law. Contents A. Function …” „… and art 1:105 PECL ‘Usages and practices’ give very similar rules for usages and practices as part of …”

Article 128 Imputation of payment S. 595-602

„… , art 128 provides a cascade of five further rules, of which each only applies to the degree that all …” „… previous rules have failed. The identification of the debt that is extinguished can be relevant for a …” „… number of reasons: different prescription rules may apply, different securities may be provided for …”

Article 2 Definitions S. 50-67

„… hand, contains a rule on autonomous interpretation which one might have expected to find in the …” „… allocation of rules to the CESL (P) or the RegCESL (P) is anything but consistent, this will inevitably lead …” „… purchase the goods or digital content; (v) ‘mandatory rule’ means any provision the application of which …”

Article 92 Performance by a third party S. 473-477

„… the rules on sale, without modifying the structure of the first version of the CESL (FS). In general …” „… the contract. Actually, it is advisable to generalise the rule of art 150 instead of having two …” „… interpretation. The goal of paragraph 2 remains slightly unclear. It is hardly imaginable that paragraph 1 could …”

Article 68 Contract terms which may be implied S. 371-374

„… of interpretation or as an implied term. Article 68 Contract terms which may be implied 1. Where it …” „… parties, any usage or practice or any rule of the Common European Sales Law, an additional contract term …” „… legislator as default rules, will mostly arise where the specific type of contract is not regulated in the …”

Article 71 Additional payments in contracts between a trader and a consumer S. 385-388

„… 71 stems from art 22 Dir No 2011/83/EU. Although the wording of both rules is rather different, their …” „… the CESL limits its rules on restitution to cases of avoidance and termination, a separate rule had to …” „… precedents relating to art 22 Dir No 2011/83/EU could also be used for the interpretation of art 71. Whether …”

Article 146 Goods sold in transit S. 650-653

„… relationship to the general rules on interpretation of contract.5 Furthermore, one also has to consider the …” „… a rule has been criticised not only due to its lack of legal certainty4 but also its questionable …” „… interpretation of art 146. In particular, art 146(3) does not clarify where mere negligence on the part of the 1 …”

Article 94 Method of delivery S. 482-487

„… carrier should be treated as the rule of interpretation of the statement of the buyer which indicates the …” „… physical possession. However, in consideration that art 94 is a nonmandatory rule, this exclusion of the …” „… , which results in an unclear relation to the provisions governing the place of delivery and the rules of …”

Article 31 Offer S. 221-225

„… to make offers (like art 14[2] CISG). As in the DCFR, the rules of interpretation will determine the …” „… application by analogy of the rules on contact formation by means of offer and acceptance (cf art II.–4:211 …” „… accepted and contained sufficiently definite terms. The DCFR leaves the issue to be decided by the rules of …”

Article 127 Payment by a third party S. 589-595

„… party and buyer (no 25) can be criticised, but this could also be solved by way of interpretation. The …” „… Summary: early payment As mentioned above, early payment is an unlikely battleground for a clash of …” „… against early payment, in which case the – usually very limited – interests of the buyer in an advance …”

Article 5 Contracts for which the Common European Sales Law can be used S. 77-86

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 A. Function The rule in art 5 serves to define the material scope of the instrument. For the CESL …” „… mandatory or otherwise relevant rules of the applicable national law. B. Context Art 5 has to be read in …” „… do with a definition, but is rather a rule on scope. Parties to the contract For the purposes of the …”

Article 44 Obligations of the trader in the event of withdrawal S. 273-278

„… and the general rule suggested by art 5:105(1) ACQP and art II.–5:105(3) DCFR on the basis of these …” „… appears to serve as a form of cushion in order to prevent a too broad interpretation of the time frame for …” „… is no express rule concerning the form of reimbursement if the consumer has used a different means of …”

Article 100 Criteria for conformity of the goods and digital content S. 508-513

„… kinds of criteria, it raises the question of the interpretation of the contract – in such cases there …” „… are simply contradicting terms of the contract and usually the result of the interpretation in light …” „… of in dubio contra proponentem (art 64 [interpretation in favour of the consumer] and art 65 …”

Article 123 Main obligations of the buyer Dannemann S. 570-574

„… . Sources The wording of this provision is derived from art IV.A.–3:101 DCFR, to which rules on digital …” „… matter of legal policy (no 14), a restrictive interpretation of any obligation of the buyer to take …” „… for digital content). The interpretation of what ‘related to’ means should be guided by the attached …”

Article 76 Language S. 402-404

„… national law, a diversity of language rules will still substantially impede trade under the CESL.2 II …” „… that used for the conclusion of the contract. Contents A. Function …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. Subsidiary ‘stick to the language’-rule …”

Article 186 Agreements concerning prescription S. 777-780

„… performance. It does not rule out the possibility of restitution based on eg performance made by the debtor on …” „… general rules of prescription (cf art 178 no 8). Section 6 Modification by agreement Article 186 …” „… Agreements concerning prescription 1. The rules of this Chapter may be modified by agreement between the …”

Article 109 Cure by the seller S. 532-540

„… , and the rules or remedies built the point of reference for the fairness test. The trader and the …” „… that the rule on the right to cure in the case of early delivery is superfluous. 7 Cf for details on …” „… same rule should apply also to the price reduction in the meaning of art 120(1). The effects of the …”

Article 178 Rights subject to prescription S. 759-762

„… underlying the prescription rules of CESL (P) is the same as is known from national and international rules …” „… precise rules defining the relevant period of time as well as exceptions giving the creditor a fair …” „… .’3 Art 178 states that the rules of prescription apply to rights to enforce performance of an …”

Introduction to arts 30–39 S. 216-217

„… effects and with the interpretation and validity of unilateral statements and conduct indicating intention …” „… , capacity, illegality/immorality or representation.8 The existing rules of Member States’ civil law …” „… effect; and (c) the agreement, supplemented if necessary by rules of the Common European Sales Law, has …”

Article 6 No form required S. 140-142

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. Function The function of this short article is to state the rule that legal dealings do not …” „… certain value cannot be evidenced orally. Although freedom of form is the rule under the CESL (P), there …” „… (P) the power of derogation of the CESL (P) is limited to matters addressed in the rules of the CESL …”

Article 104 Buyer’s knowledge of lack of conformity in a contract between traders S. 523-524

„… contains the rule on the knowledge of the buyer about the lack of conformity, which deprives it of any …” „… remedies that would usually result from this kind of non-performance.1 The rule is based on the assumption …” „… lead to the other conclusion according to the general rules governing the formation of the contract …”

Article 75 Determination by a third party S. 399-402

„… corresponding rules of the DCFR, PECL and UNIDROIT PICC, recourse may be had to literature and practical …” „… presumption of a party will to empower the court – in practice, in both rules the result is that the court …” „… fall-back rule in case the determination fails – there is no such appointment right of the court;3 the …”

Article 125 Place of payment S. 580-584

„… . Criticism The CESL (P) can be criticised for excluding rules on the currency of the payment similar to art …” „… overcharges (no 23). Chapter 17 rules on restitution should be amended to include the return of overpayments …” „… closely art 7:101(1)(a) PECL where, however, it is formulated within a general rule on the place of …”

Article 7 Not individually negotiated contract terms Mazeaud/Sauphanor-Brouillaud S. 142-145

„… particular because the predecessors of the CESL (P) contained this rule, it may have a residual function in …” „… . Secondly, it determines the scope of application of the rules. Thirdly, the article contains rules …” „… concerning the burden of proof. Finally, it applies generally as a special, supplementary rule to provisions …”

Article 11 Computation of time S. 154-157

„… interpretation of unilateral statements indicating intention. 4. The rules on defects in consent in Chapter 5 …” „… both types of time limits, the provisions of this article provide some general rules on how such …” „… document may indicate another beginning or end of the period. Furthermore, the rule is misleading as to the …”

Article 181 Suspension in case of judicial and other proceedings S. 767-771

„… with the procedural rules of the forum court.15 This interpretation is in accordance with the DCFR,16 …” „… underlying the prescription rules (art 178 no 2).1 If the outcome of the proceedings is a decision on the …” „… content of art 181 is the same as art 184 CESL (FS). The DCFR2 also contains rules on suspension of the …”

Article 1 Freedom of contract Schulte-Nölke S. 122-126

„… constitutional right of selfdetermination. Art II.–1:102 DCFR contains a rather similar rule. Recital 30 of …” „… much to do with the issues of the existence and validity of a contract. If the rule is also meant to …” „… The freedom of contract is limited by any applicable mandatory rules. ‘Any applicable mandatory rules …”

Article 11 Consequences of the use of the Common European Sales Law S. 105-109

„… non-contractual nature not addressed in the CESL are governed by the pre-existing rules of the national law …” „… conflict of law rule. Furthermore, some of the most important gaps in the CESL (P) are listed. Article 11 …” „… and 9 and the rules of the CESL (P) on the conclusion of a valid contract. However, the contract must …”

Article 89 Change of circumstances S. 452-463

„… acceptable in the light of the good faith principle. Paragraph 3(c) – understood as a rule of interpretation …” „… ?, p 64, who states that the ‘hardship’ rules may be of different impact on the parties’ behaviour …” „… are covered by the clause in question. It is also always a matter of interpretation whether such a …”

Article 38 Modified acceptance S. 237-241

„… explicit, it should first be determined whether interpretation of the offer – in accordance with art 12 and …” „… DCFR because of the wide range of contracts and circumstances covered by the model rules.7 The CESL (P …” „… similar to the one of modified acceptance. Contrary to the rule on modified acceptance which deals with a …”

Article 105 Relevant time for establishing conformity S. 524-527

„… of the case may lead to the other conclusion according to the general rules governing the formation …” „… outside of this context – it should be treated rather as a rule providing one of the aspects in the …” „… process of the interpretation of the contract, which is not an exclusive one. If the seller has promised …”

Article 53 Confirmation S. 324-327

„… ]). The confirmation can be made explicitly or impliedly. The rules on interpretation of juridical acts …” „… rule on confirmation in case of an avoidance right. It is a part of the rules on vitiated consent, so …” „… IV. Addressee The notice has to be sent to the other party. National rules on representation apply …”

Article 173 Payment for monetary value S. 728-741

„… equitable modification under art 176. In the case of B2C contracts, the rules set out in the provision …” „… party.4 This rule does not, however, deal with the problem of digital content. Under the CISG, the …” „… If one were to apply this rule to the CESL (P), it would follow, eg, that the recipient of a generic …”

Article 29 Remedies for breach of information duties S. 212-216

„… information provided was incorrect. An overarching rule on the reversal of the burden of proof would dispel …” „… EU jurisprudence on the meaning of damage (cf art 160 nos 5–6).10 A specific rule removes from the …” „… to inform of the right of withdrawal (art 42[2]). However, this rule is narrower than the previous …”

Article 77 Contracts of indeterminate duration S. 404-408

„… another default rule: where a contract is of indeterminate duration and the parties have not stipulated …” „… contract. The rule will probably remain of minor practical importance because contracts for the sale of …” „… provide a contract term for duration. Another field of application for this rule for sales contracts will …”

Article 78 Contract terms in favour of third parties S. 408-413

„… avoid additional transactions.1 However, in practice, the scope of application of the CESL rules may be …” „… regulation of third party rights, which is shorter and less detailed than the DCFR rule. Art 6:110 PECL …” „… undue delay’ from the DCFR is missing in the CESL (P) rule, in most cases, a delay of rejection after …”

Article 47 Mandatory nature S. 288-291

„… consumer through the mandatory nature of the rules is also present in art 6 Dir No 85/577/EEC and art 12(1 …” „… from or varies their effects (as determined in art 47 and in the definition of mandatory rule in art 2 …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 1. Mistakes regarding the content or the interpretation of a contract or its legal effects …”

Article 6 Exclusion of mixed-purpose contracts and contracts linked to a consumer credit S. 86-90

„… comply with the whole set of mandatory rules, which would deprive the trader of the benefits granted by …” „… not have been necessary to include it,2 in particular as including the rules of Dir No 2008/48/EC in …” „… sold or digital content supplied. As art 5 only contains part of the rules on scope and must be read …”

Article 175 Compensation for expenditure S. 747-751

„… faith and necessary/luxury expenditures.3 Modern rules on expenditures are mostly part of property law.4 …” „… recipient’s payment to the supplier.7 On a strict interpretation of art 175, though, such costs are not …” „… provision does not cause interpretational problems. The last part of art 175(2), though, is too broad. The …”

Article 126 Time of payment S. 584-589

„… paragraph 2 is an explanatory rule on paragraph 1, changes in the place which occur after the conclusion of …” „… ], but added by the Commission in the CESL [P]) than to intentional design. An interpretation of contract …” „… such express rule. It may nevertheless be derived from the notion that the main obligations of the …”

Article 3 Optional nature of the Common European Sales Law S. 67-71

„… appropriate legal instrument, rules of substantive contract law, such instrument may provide that the parties …” „… Likewise, as far as the CESL (P) derogates from overriding mandatory rules of the gateway law, it also …” „… derogates from overriding mandatory rules of the forum, provided the forum is a Member State. For similar …”

Article 45 Obligations of the consumer in the event of withdrawal S. 278-284

„… specific rules concerning the restitution process. Art 45 therefore serves the purpose of stating the …” „… clear rules for this important element of the right of withdrawal led to clarification via a number of …” „… corresponding article in the CESL (P) with regard to the linguistic and structural aspects of the rules. In …”

Article 69 Contract terms derived from certain pre-contractual statements S. 374-380

„… public correction of wrong statements.3 The rule of paragraph 1 is extended (for all kinds of contracts …” „… trader.4 A pre-contractual statement about the quality which has become a contract term under the rule of …” „… statement under art 69(1)(a). Paragraph 4 establishes the non-dispositive nature of the rules for all B2C …”

Article 130 Early delivery and delivery of wrong quantity S. 605-611

„… express provisions on underpayment or overpayment: rules on part payment (art 123 no 9) and enforcement of …” „… contracts. II. Relationship to other legal acts of the EU Art 18 Dir No 2011/83/EU contains rules on …” „… contract.8 Art 129 clarifies that these are true obligations of the buyer, with corresponding …”

Article 108 Mandatory nature S. 531-532

„… , and the rules or remedies built the point of reference for the fairness test. The trader and the …” „… regarded as not falling under the limitation of liability arising from art 107. Art 107 applies only to the …” „… instances of lack of conformity. In cases of other kinds of non-performance the customer may resort to all …”

Article 51 Unfair exploitation S. 313-321

„… fully developed set of rules in these areas; the CESL (P) reserves matters of illegality or immorality …” „… of the resulting contract (cf no 15 for more detail). Unlike many national rules on illegality and …” „… functional difference between art 51 and Chapter 8, the applicability of either rule or set of rules has to …”

Article 102 Third party rights or claims S. 516-523

„… case of lack of conformity. Art 102 provides only in paragraphs 3 and 4 particular rules governing …” „… special rules concerning intellectual property.4 The objective of this provision is not to enlarge the …” „… indication of the place of the use may be subject-matter of the fairness control according to the rules of …”

Article 110 Requiring performance of seller’s obligations S. 540-544

„… performance, this remedy encompasses also to remedy the goods free of charge. Art 110 provides a general rule …” „… manner. The remedying of the goods or digital content is subjected to all rules governing the performance …” „… cases, the avoidance may be stopped according to art 2(2) – abuse of right in the light of the good …”

Article 135 Termination for delay after notice fixing additional time for performance S. 625-628

„… (P) as a well-defined category of non-performance to which specific rules (let alone specific …” „… provisions. D. Criticism The difference between the semi-mandatory nature of 135, and the default rule nature …” „… time for performance 1. A seller may terminate in a case of delay in performance which is not in itself …”

Article 49 Fraud S. 301-309

„… buyer. In order to avoid any discrepancy between art 48 and Chapter 2, the rules on burden of proof in …” „… effect of the contract could be sufficiently safeguarded by an appropriate interpretation of the risk …” „… application The rule in art 50 is a part of general contract law that applies to B2B as well as B2C contracts …”

Article 13 Member States’ options S. 115-118

„… States shall ensure that final judgments of their courts applying the rules of this Regulation are …” „… interpretation of the CESL (P) across the EU, the Commission anticipates creating a central database of national …” „… out a detailed description of the service he provides. D. Criticism The information requirements under …”

Article 14 Communication of judgments applying this Regulation S. 118-119

„… final judgments of their courts applying the rules of this Regulation are communicated without undue …” „… relatively few disputes are likely to proceed to the CJEU. In order to secure a uniform interpretation of the …” „… Article 14 Communication of judgments applying this Regulation 1. Member States shall ensure that …”

Article 172 Restitution on avoidance or termination S. 716-728

„… exception to the latter rule. III. Position within the CESL (P) In general Art 172 is part of Chapter 17 on …” „… general rule within Chapter 17. Art 173 contains an exception for those cases in which the return of what …” „… rules of national law on unjust enrichment. Art 172 also does not apply where the parties have failed to …”

Article 168 Rate of interest and accrual S. 704-708

„… than the rate in the DCFR and ACQP. C. Explanation I. Scope The rules of art 168 apply only to the …” „… contract, a broad interpretation of the obligation to pay the price for goods and services may be …” „… Section 3 Late payments by traders Article 168 Rate of interest and accrual 1. Where a trader …”

Bibliography S. 28-34

„… on EC Private Law (Acquis Group), Principles, Definitions and Model Rules of European Private Law …” „… , Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR), Outline Edition …” „… , ‘The Feasibilty Study’s Rules on Contract Interpretation’, (2011) ERPL 817–833 Johnston/Zimmermann (eds …”

Article 136 Termination for anticipated non-performance S. 628-630

„… nature of 135, and the default rule nature of 115, should be either explained or abolished (no 13 …” „… additional period) in case of a delayed performance which is not fundamental. For reasons which are not …” „… obvious, no similar provision is contained in art 115, so that, at least on a literal interpretation, the …”

Article 88 Excused non-performance S. 445-452

„… specific rules concerning the liability of the debtor for third parties assisting or participating in the …” „… dependent on interpretation and judicial practice. 6 Cf on examples of impediments, Schopper …” „… III. Insignificant non-performance in consumer contracts In consumer contracts, the requirement of …”

Article 87 Non-performance and fundamental non-performance S. 433-445

„… has to be considered carefully when transferring the narrow interpretation of ‘fundamental’ in the …” „… provided in these cases: In instances of delay there are special rules on interest (cf Chapter 16 Section 2 …” „… ) and also special rules governing the question of the circumstances in which a delay may entitle to …”

Article 7 Parties to the contract S. 90-94

„… binding for the interpretation of art 7. Elements of the definition a) Cumulative and alternative …” „… grants the credit, but not where it is a third party who grants the credit. At the end of the day …” „… , the exclusion adds to the complexity of the draft, narrows the scope of availability and reduces the …”

Article 20 Duty to provide information when concluding contracts other than distance and off-premises contracts S. 189-193

„… questions of interpretation. Presumably it means contracts that are of an everyday nature, not contracts …” „… contain such a rule. As in the Consumer Rights Directive, the burden of proving provision of the …” „… conclusion of the contract. This would be problematic. In addition, the trader should, when providing the …”

Article 176 Equitable modification S. 751-756

„… extremely important provision because it can be used to alter the consequences of all rules contained in …” „… purpose of the rule – to avoid grossly inequitable results for one party – it seems best to refer to the …” „… to the decision-maker to alter the consequences of the foregoing rules. The provision lends itself as …”

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Daniel Rosentreter - Article 31(3)(c) of the Vienna Convention on the Law of Treaties and the Principle of Systemic Integration in International Investment Law and Arbitration

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Daniel Rosentreter

Article 31(3)(c) of the Vienna Convention on the Law of Treaties and the Principle of Systemic Integration in International Investment Law and Arbitration

Series: Luxemburger Juristische Studien - Luxembourg Legal Studies

Volume 4 2015

Results in this title

Chapter 5: The Interpretation of Investment Treaties and Extraneous Rules of General International Law S. 283-304

„… The Interpretation of Investment Treaties and Extraneous Rules of General International Law …” „… rules into consideration for the interpretation of investment treaties, just as other international …” „… distinction between the application of general international law rules to a treaty and the interpretation of …”

Chapter 6: The Interpretation of Investment Treaties and Extraneous Rules of International Law of the Same Subject-Matter S. 305-362

„… The Interpretation of Investment Treaties and Extraneous Rules of International Law of the Same …” „… interpretation of FET What concerns references to customary rules of international law of the same subject-matter …” „… non-discrimination provisions and their interpretation in light of similar trade law rules, and secondly, by the …”

Chapter 7: The Interpretation of Investment Treaties and Extraneous Rules of International Law not of the Same Subject-Matter – Article 31(3)(C) VCLT and the ‘Principle of Systemic Integration’ – A Means to Reconcile Apparent Norm Conflicts in International Investment Law? S. 363-456

„… The Interpretation of Investment Treaties and Extraneous Rules of International Law not of the Same …” „… harmonious interpretation’ and therefore a rule of conflict avoidance rather than of conflict resolution …” „… of extraneous rules of international law in the interpretation of investment treaties This section …”

Chapter 2: The Elements of Article 31(3)(c) VCLT S. 93-216

„… rules of international law applicable in the relations between the parties.’ The interpretation of …” „… can potentially be taken into consideration for the interpretation of a treaty. Rules of international …” „… , II UNRIAA (1932) 1239, 1246 f.; Alexander Orakhelashvili, The Interpretation of Acts and Rules in …”

Titelei/Inhaltsverzeichnis S. 1-22

„… investment treatiesChapter 4: 247 The Interpretation of Investment Treaties and Extraneous Rules of General …” „… International Law Chapter 5: 283 The Interpretation of Investment Treaties and Extraneous Rules of International …” „… of Article 31(3)(c) VCLTII. 121 The general rule of treaty interpretation1. 121 The drafting history …”

Chapter 3: The ‘Principle of Systemic Integration’ and other Elements of Treaty Interpretation S. 217-244

„… Interpretation and the Incorporation of Extraneous Legal Rules' in: 55 International & Comparative Law Quarterly …” „… an established principle that the right of giving an authoritative interpretation of a legal rule …” „… can contribute to the interpretation of the treaty in the light of extraneous rules.775 In the …”

Conclusion S. 457-462

„… context’ indicates that treaty interpretation always requires the taking of these rules into account …” „… interpretation or aspects of state responsibility) references to other rules of international law in order to …” „… important means for the interpretation of investment treaties. Almost every investment tribunal has, in one …”

Chapter 4: The interpretation of investment treaties S. 245-282

„… of referring to extraneous rules for the interpretation of investment treaties (Part I), and after …” „… )/00/1, Award of 9 January 2003, para. 147: ‘We understand the rules of interpretation found in customary …” „… : procedural implications on the interpretation of investment treaties in the light of other relevant rules of …”

Chapter 1: The Relevance of Extraneous Rules in the System of International Investment Law & Arbitration S. 35-92

„… The system of international investment law & arbitration and extraneous rules of international law …” „… Part I – The Relevance of Extraneous Rules in the System of International Investment Law & Arbitration …” „… Introduction Rules protecting the persons and property of aliens are among the oldest in international law …”

International investment law and arbitration S. 28-34

„… , it seeks to answer the question whether this rule of treaty interpretation is a suitable tool to …” „… law and arbitration and setting out the relevance of extraneous rules in the interpretation of …” „… rules of international law. Chapter 5 looks at the interpretation of investment treaties in the light of …”

Bibliography S. 493-511

„… , Duncan, 'Treaty Interpretation and the Incorporation of Extraneous Legal Rules' in: 55 International …” „… : Oxford University Press, 2012) 365-418 Orakhelashvili, Alexander, The Interpretation of Acts and Rules in …” „… ) 208-34 Bernhardt, Rudolf, 'Interpretation and Implied (Tacit) Modification of Treaties: Comments on Arts …”

The phenomenon of fragmentation in international law S. 23-27

„… international law and fragmentation of the international legal order arises as a consequence of rule making in …” „… it is not only the scope of international law that has extended. The rules of international law have …” „… these rulecomplexes. This has gone hand in hand with new structures of rule-mak- 12 Miloš Vec, Recht und …”

Table of cases S. 473-492

„… , P.C.I.J. Series A. – No. 17 (1928) 2 P.C.I.J., INTERPRETATION OF ARTICLE 3, PARAGRAPH 2, OF THE TREATY OF …” „… . – No. 12 (1925) 6 P.C.I.J., INTERPRETATION OF THE CONVENTION OF 1919 CONCERNING EMPLOYMENT OF WOMEN …” „… 21 March 1959, I.C.J. Reports (I959) 6 I.C.J., INTERPRETATION OF PEACE TREATIES (SECOND PHASE …”

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Dirk Ehlers, Henning Glaser, Kittisak Prokati - Constitutionalism and Good Governance

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Dirk Ehlers (ed.), Henning Glaser (ed.), Kittisak Prokati (ed.)

Constitutionalism and Good Governance

Series: CPG Series of Comparative Constitutional Law, Politics and Governance

Volume 1 2014

Results in this title

Yueh-sheng Weng Interpretations of the Constitutional Court and the Developments of Rule of Law and Democratic Constitutionalism in Taiwan S. 319-360

„… Part IV: Courts Interpretations of the Constitutional Court and the Developments of Rule of Law …” „… than before. The Influences of Interpretations upon the Rule of Law in Taiwan The Protection of Human …” „… interpretation, the Constitutional Court articulated that “administrative rules adopted under the duty of seeking …”

J. W. F. Allison An Introduction to the Historical Constitutionalism of the English Common Law S. 127-140

„… , there are numerous statutes by which written rules of constitutional legal significance are enacted …” „… declarations or definitions of rights so dear to foreign constitutionalists” as intrinsic to the English rule …” „… of law.1 For Dicey, the rules and principles of the constitution were the outcome of the ordinary law …”

Hassavut Vititviriyakul Democracy, Elections and the Constitutional Governance S. 361-368

„… search for fairness on the basis of rules and consistency with reasons throughout Southeast Asia …” „… America. Nevertheless, they were all implemented under the principle of the rule of law. At the same time …” „… , Thai society emerged from a time where the ruling authority prescribed rules of conduct and advanced …”

Henning Glaser Multiple Constitutionalizations – ‘Constitutionalism and Good Governance in European-Asian Perspectives’ S. 11-62

„… their accounts on the British and German version of the rule of law respectively, as well as in Weng‘s …” „… , institutions and practices of politics, or [as] a result of deliberate attempts by rulers or ruling elites …” „… historical development of the German and English version of the rule of law respectively, while Grimm is …”

Robert Esser Constitutionalization and Rights of Freedom: Implementing International Human Rights Standards as a Contribution to the Constitutionalization of National Criminal Law S. 281-302

„… justifiable interpretation of the law”.35 Because of that, fundamental rights in conjunction with the rule of …” „… requirements concerning criminal justice from the – explicitly nominated – rule of law (Article 20 para. 3 of …” „… interpretation of the term “penalty”, the views of national constitutional law and international human rights …”

Rainer Grote Constitutionalization of Political Rule in Europe: Freedom of Speech, Press and Assembly S. 303-318

„… Constitutionalization of Political Rule in Europe: Freedom of Speech, Press and Assembly Rainer …” „… who are subject to it. If the ruler is regarded as being by the nature of his position presumably wise …” „… must be stifled and discouraged. If on the other hand the ruler is regarded as the agent of the …”

Titelei/Inhaltsverzeichnis S. 1-10

„… referring to twelve constitutional regimes in Europe and Asia. It is dealing with issues like the rule of …” „… Jörg Menzel Part II: Principles and Structures The Notion of the “Rule of Law” and its Development in …” „… English Common Law 127 J. W. F. Allison Levels of the Rule of Law – On the Possibility of Exporting a …”

Jörg Menzel Constitutionalism as Development S. 81-104

„… limited the monarchies of the time through concepts of rule of law, protected (weak) human rights concepts …” „… rights and rule of law, are often mentioned as conditions for “real” constitutionalism.8 But …” „… principles of democracy, basic rights and rule of law. Within the many states that have written constitutions …”

Warawit Kanithasen Some Critical Observations on the Freedom of Assembly in Thailand S. 243-254

„… each change of government whether by election or coup the number of Thai people seeking for the rule of …” „… of Justice of Thailand – by heart. Thus it comes to no surprise that the method of interpretation of …” „… the right direction leading to the enhancement of the rule of law and democracy. In principle, the …”

Björn Dressel Transformation of Constitutionalism in Asia: The Role of the Judiciary S. 369-392

„… interpretation and breach of procedural due process, which looked suspiciously like the un-rule of law. These and …” „… with legacies of executive dominance, weak rule of law, and an unusual degree of regime diversity that …” „… about the rule of law, accountability, and rights issues. Indeed, promoting the rule of law has gained …”

Andreas Føllesdal Federalism and Human Rights in Nepal’s Constitutional Design: Challenges for the Judiciary S. 195-206

„… require a stronger focus on the rule of law – and therefore measures to ensure an even more independent …” „… identities shape individuals’ expectations for the future, and must affect the interpretation of the …” „… interpretation of other states’ experiences. Two of are territorial: Constitutional and Political. The others are …”

Claudia Derichs Constitutional Rights in Multiethnic States – The Case of Malaysia S. 255-280

„… di-Pertuan Agong) is elected as king by the Conference of Rulers for five years. This form of electing the …” „… monarch is also unique to Malaysia. Although the Conference of Rulers includes both the dynastic Sultans …” „… king. The Conference of Rulers is exclusive to the Sultans in cases of “any proceedings related to the …”

Bodo Pieroth The Notion of the “Rule of Law” and its Development in German Constitutional History S. 105-126

„… Part II: Principles and Structures The Notion of the “Rule of Law” and its Development in German …” „… Constitutional History Bodo Pieroth Introduction “Rule of law” like “democracy”, is a term capable of many …” „… ”. Although “rule of law” in the Anglo-American legal world is not identical to “Rechtsstaat” the terms do …”

doi.org/10.5771/9783845237558

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Andrew Law

Patents and Public Health

Series: Munich Intellectual Property Law Center - MIPLC Studies

Volume 3 2009

Results in this title

The influence of the international customary rule of interpretation on the object and purpose provisions S. 58-60

„… 58 V. The influence of the international customary rule of interpretation on the object and …” „… by certain basic rules of interpretations. The Vienna Convention on the Law of Treaties is considered …” „… the best collection of the customary rules of interpretation.172 The golden rule, Article 31(1) of the …”

The scope and purpose S. 163-169

„… interpretation The inclusion of a reference to the use of customary rules of interpretation made for little …” „… by customary rules of interpretation.679 The reason for the general acceptance of the use of the …” „… therefore arises is: why was a reaffirmation of the role of customary rules of interpretation necessary …”

The role of ‘flexibility’ in the object and purposes of the TRIPS Agreement S. 60-65

„… . Finally, the added attention given to customary rules of interpretation of public international law by …” „… the customary rules for the interpretation of public international law. Where the interpreter must …” „… provisions within the TRIPS Agreement.192 The confirmation that customary rules of interpretation should …”

The role of health in the object and purpose of the TRIPS Agreement S. 65-68

„… ‘essential importance’ for the interpretation of the TRIPS Agreement but did not permit a Member State to …” „… operative provisions of the TRIPS Agreement permit, as stated already, significant flexible interpretations …” „… . The interpretation and implementation of these provisions can and should be done in a manner …”

An analysis of Article 8.2 TRIPS Agreement S. 56-58

„… the transfer of technology. 58 V. The influence of the international customary rule of interpretation …” „… of the ‘customary rules of interpretation of public international law’. Accordingly, WTO …” „… adjudicators are required to abide by certain basic rules of interpretations. The Vienna Convention on the Law …”

An analysis of the preamble S. 47-51

„… objectives and purposes of an agreement guide the interpretation of a treaty. The classification of the …” „… tools of customary international law.132 In terms of the Vienna Convention the interpretation of a …” „… TRIPS Agreement exhibits ‘gulfs of interpretive difference regarding the meaning of many of its rules …”

Clarification of the relationship between the TRIPS Agreement and public health S. 156-159

„… the object and purpose of the agreement, as set out in the customary rules of interpretation of …” „… interpretational rules state that the inclusion of one means the exclusion of others. This rule however will only …” „… issues. The Member States agreed that: the interpretation of the TRIPS Agreement must take into account …”

The legal status of the Public Health Declaration S. 161-163

„… Declaration. The pacta sunt servanda rule binds parties in good faith to the perfor-mance of the agreement …” „… follow the formal route for the adoption of an authoritative interpretation, it must be concluded that …” „… Public Health Declaration will lend assistance to the interpretation of the TRIPS Agreement by the DSB …”

The legal effect of the Decision and the Chairman’s Statement S. 190-197

„… noted that ‘uncontested interpretations given at a conference, e.g., by a chairman of a drafting …” „… Member States that the contents of the Statement be used for the interpretation of the Decision. However …” „… agreement, would mean that its role as an interpretation tool would be guaranteed by Article 31(2)(a) of …”

Nature and scope of the TRIPS Agreement S. 42-47

„… Convention.112 The operation of this rule requires the Member States to ensure that their domestic legal …” „… of the rules on national and MFN treatment.116 The scope of the TRIPS Agreement further requires …” „… interpretation of treaties, partially codified in the Vienna Convention, permit a contracting party to exclude …”

The withdrawal and limitation of rights conferred S. 86-145

„… , the general interpretation rule unius inclusio est alterius exclusio states that the inclusion of one …” „… jurisprudence, the concept as a whole is consistent with an interpretation of Article 28 excluding the right to …” „… Interpretation (Juta Cape Town 1994) p. 63. 292 Cf. de Carvalho, The TRIPS Regime of Patent Rights (Kluwer The …”

The Netherlands S. 234-236

„… a relatively simple manner. In terms of the Dutch ‘Policy Rules on issuing compulsory licenses …” „… interpretation and application of the public interest compulsory licenses pursuant to Article 31bis.1019 In the …” „… ) of the Patent Act. As such, the Policy Rules serve to guide the Minister’s powers in terms of …”

Other influences on the object and purpose of the TRIPS Agreement S. 68-69

„… Agreement preamble, ‘must add colour, texture and shading to [the] interpretation of the agreements annexed …” „… the form of an authoritative interpretation or an amendment in order for it to have any effect. A …” „… acceptance of the evolutionary interpretation by the DSB decisions will assist developing Member States in …”

Bibliography S. 251-261

„… JIEL 4 p. 497-521 (‘Abbott, 1 JIEL 4 (1998)’). Abbott, The Rule of Law and the Problem of Asymmetric …” „… States and the Rule of International Exhaustion (2002) 25 EIPR 12 p. 571-577. (‘Barrett, 24 EIPR 12 …” „… Centre Geneva 1999). 254 Correa, Social Costs of New Patent Rules (03.07.1995) IFDA South-North …”

Titelei/Inhaltsverzeichnis S. 2-16

„… Declaration on the TRIPS Agreement 163 I. The scope and purpose 163 1. The customary rules of interpretation …” „… of Article 8.2 TRIPS Agreement 56 V. The influence of the international customary rule of …” „… interpretation on the object and purpose provisions 58 VI. The role of ‘flexibility’ in the …”

The material obligations S. 169-178

„… in the interpretation of the WTO Agreements. It can therefore be said that the Public Health …” „… more awareness for the role of other rights and public interests in the interpretation and …” „… licenses The absence of rules or guidelines setting out when compulsory licenses could be used in a …”

Definitive consequences of the Public Health Declaration S. 248-250

„… values that underlined the interpretation of the TRIPS Agreement; no real or substantive amendments were …” „… required to the core rules underpinning the protection of patent rights.1104 On a domestic level there was …” „… Public Health Declaration. This policy of permitting and accepting flexible interpretations has spread …”

Rights conferred to the patent holder S. 85-86

„… general interpretation rule unius inclusio est alterius exclusio states that the inclusion of one is the …” „… , the concept as a whole is consistent with an interpretation of Article 28 excluding the right to …” „… Interpretation (Juta Cape Town 1994) p. 63. 292 Cf. de Carvalho, The TRIPS Regime of Patent Rights (Kluwer The …”

Introduction S. 29-30

„… rules-based WTO system and the lack of faith that the rules will transcend diplomatic pressures. If the …” „… noncompliance with these rules. To this effect the parties adopted Article XX of the GATT Agreement which …” „… the 14th of November 2001 the WTO Ministerial Conference adopted the Public Health Declaration …”

Manufacturing capacity S. 187-188

„… used in the final production. If the Member States were to limit their interpretation to a portion of …” „… diagnostic kits for HIV/AIDS play a crucial role in the treatment of diseases. A narrow interpretation of …” „… question the application of patent rights for Member States without a domestic manufacturing sector …”

Pharmaceutical sector S. 188-189

„… diagnostic kits for HIV/AIDS play a crucial role in the treatment of diseases. A narrow interpretation of …” „… interpretation of pharmaceutical sector is the notion that chemical compounds, per se, would also be excluded …” „… capacity, absence or insufficiency can be determined in two ways: the absolute nonexistence of a …”

An analysis of Article 8.1 TRIPS S. 53-56

„… Article 8.1 a tool for the interpretation of TRIPS or is it a TRIPS flexibility? Succinctly put, Article …” „… ’, Article 8.1 is a ‘comprehensive and fundamental’ rule of conduct for the implementation of the TRIPS …” „… provision for interpreting the meaning of other provisions within the TRIPS Agreement. The interpretational …”

Canada S. 228-234

„… a relatively simple manner. In terms of the Dutch ‘Policy Rules on issuing compulsory licenses …” „… interpretation and application of the public interest compulsory licenses pursuant to Article 31bis.1019 In the …” „… ) of the Patent Act. As such, the Policy Rules serve to guide the Minister’s powers in terms of …”

Insufficient or no capacities S. 188

„… diagnostic kits for HIV/AIDS play a crucial role in the treatment of diseases. A narrow interpretation of …” „… capacity, absence or insufficiency can be determined in two ways: the absolute nonexistence of a …” „… pharmaceutical sector or, where such exist, the unwillingness of domestic producers to produce the compulsory …”

Norway S. 223-228

„… waivers of Articles 31(f and h) of the TRIPS Agreement (found in the Decision) and the Article 31bis950 …” „… it will be able to make use of the system.951 Hence, a Member State seeking to export …” „… pharmaceutical products under a compulsory license in terms of Article 31bis(1) will be required to amend its …”

Public Health Declaration S. 272-274

„… these flexibilities include: (a) In applying the customary rules of interpretation of public …” „… TRIPS AGREEMENT AND PUBLIC HEALTH Adopted on 14 November 2001 1. We recognize the gravity of the …” „… Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to be part of the …”

The scope of paragraph 6 S. 186-187

„… States were to limit their interpretation to a portion of the pharmaceutical production process (i.e. the …” „… 186 Chapter 7 The solution to the paragraph 6 dilemma A. The identification of the paragraph 6 …” „… issues Paragraph 6 of the Public Health Declaration is misleading in the impression it gives. A read of …”

The subject matter of patents S. 69-85

„… into the WTO arena, should the circumstances apply. The acceptance of the evolutionary interpretation …” „… reduce the threat of abusive patents by ensuring that the interpretation and implementation of the …” „… 27 exceptions are nevertheless likely to play an important role in the interpretation of other pubic …”

Patents and society S. 19-25

„… raises standards of living.5 Patents form an exception to this rule in that they intentionally restrict …” „… effects that the Public Health Declaration may have had on the interpretation of the TRIPS Agreement. …” „… restrict free trade which can, in certain circumstances, even burden society. This negative effect of …”

The legal implications of the Decision S. 198-217

„… thus cannot be used as a means of interpretation. The statement may however be viewed as a preferred …” „… final solution.825 III. The legal implications of the Decision The Decision and the Chairman’s …” „… Statement introduce a number of formal requirements for Member States, whether as exporter or importer …”

An analysis of Article 7 TRIPS S. 51-53

„… transfer and dissemination of technology. The choice of the word ‘should’ in the context of rules and …” „… 51 adequate intellectual property protection or the public policy objectives of the Member States …” „… . The lack of a distinct direction in which the TRIPS Agreement is intended to operate creates the …”

doi.org/10.5771/9783845212654

Elena Ivanova - The Competing Jurisdictions of the WTO and the UNCLOS Dispute Settlement Fora in the Context of Multifaceted Disputes

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Elena Ivanova

The Competing Jurisdictions of the WTO and the UNCLOS Dispute Settlement Fora in the Context of Multifaceted Disputes

Series: Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law

Volume 23 2021

Results in this title

Chapter G: Rules Governing the Interaction of WTO Treaty and the UNCLOS: Interpretation and Normative Conflict Resolution S. 577-608

„… Rules Governing the Interaction of WTO Treaty and the UNCLOS: Interpretation and Normative Conflict …” „… whether the respective rules are in a relationship of accumulation (or interpretation) or in a …” „… includes the rules governing interpretation and the rules governing conflict of laws. Reference will be had …”

Chapter C: Multifaceted Disputes before Courts and Tribunals of Limited Jurisdiction: Why do They Pose Challenges and Why These Challenges Should be Addressed S. 149-180

„… application and interpretation of the law as it is somewhat blurred. In this regard, the rule of …” „… purposes of interpreting a treaty through them. Thus, logically the customary rule of interpretation …” „… interpretation involves some kind of a ‘modification’ of the interpreted text in accordance with the rule …”

Titelei/Inhaltsverzeichnis S. 1-32

„… role of the customary rule of interpretation reflected in Article 31 (3) (c) VCLT in the process of …” „… interpretation of both substantive law provisions and disputes settlement treaty rules and as a means for …” „… between the rules of interpretation and the rules on normative conflict. Concerning interpretation, it …”

Chapter H: Solution S. 609-688

„… substantive law rules with the respective implications for the interpretation and application of the …” „… to the discussion on the scope and meaning of the customary rule of interpretation reflected in …” „… the light of the object and purpose of the respective treaty as the customary rules of interpretation …”

Chapter B: Overlap between the Jurisdictions of the WTO and UNCLOS Courts and Tribunals S. 59-148

„… and interpretation of treaties by reference to other rules of international law with a view of …” „… prescribed by Article 3.2. DSU, on the customary rules of interpretation of public international law and, in …” „… those agreements in accordance with customary rules of interpretation of public international law. This …”

Chapter E: Multifaceted Disputes before UNCLOS Courts and Tribunals S. 283-362

„… tribunals to apply other rules of international law, the purpose of this examination is to assess the manner …” „… : this includes the means and the purposes for the use of these rules, the considerations that have …” „… broad competence to apply other rules of international law and how they situate the UNCLOS within the …”

Chapter F: Rules Governing the Interaction between WTO and UNCLOS Courts and Tribunals. Mapping International Procedural Law S. 363-576

„… ; and the forum selection rules. Such rules resolve the conflicts of jurisdictions to the extent …” „… contributes to the development of international law on procedure. I.Introduction 366 Rules Defining the Scope …” „… of the Subject-Matter Jurisdiction Rules under the WTO Agreement General Subject-Matter Jurisdiction …”

Chapter D: Multifaceted Disputes before WTO Adjudicators S. 181-282

„… provisions of the WTO agreements in accordance with customary rules of interpretation of public international …” „… not form part of the customary rules of interpretation of public international law, and are not of …” „… Rules as an Aid in the Interpretation of the WTO Provisions On a number of occasions, WTO adjudicators …”

Chapter A: Introduction S. 33-58

„… customary rules which may injects new perspectives in the interpretation of the law and change the old …” „… same rules of interpretation. Thus, Article 31 (3) (c) I. Introduction to the Research Theme 40 VCLT …” „… interpretation of the law. Linked to the Phenomenon of Competing Jurisdictions Seen from a broader perspective …”

Bibliography S. 689-714

„… Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’ (1949) 26 British Yearbook …” „… 1994). V Lowe, ‘Res Judicata and the Rule of Law in International Arbitration’ (1996) 8 African Journal …” „… Law Relates to other Rules of International Law (Cambridge: CUP, 2003). McNair, Law of Treaties (New …”

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