Opinio Juris in Comparatione

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Opinio Juris in Comparatione is an electronic full open access journal devoted to “Studies in Comparative and National Law”. It aims at enhancing the dialogue among all legal traditions in a broad sense e.g.:

  1. in a cultural sense in order to increase legal knowledge and to promote circulation of (and competition between) models and legal transplants;

  2. in a more policy perspective, in order to harmonize, when possible/feasible, substantive (or procedural) civil law or private international law rules having regard to the different 'legal formants'.

Its international character, the fully anonymous peer review process and its openness to publication in several languages are among its challenging features. Finally, it offers an on-line discussion arena where comparative law experts may debate, similar to that experienced by the classic comparative law journals.

Yet, Opinio Juris will not desert exploring national and european law. The aim of diffusing contributions on national law as well, is to expand access to foreign legal materials and ideas to those who do not already have access to the traditional avenues (such as journals in the language of the explored legal system).

Opinio Juris in Comparatione has been included by the National Agency for the Evaluation of University and Research (ANVUR) in the list of the highest Italian ranking for Scientific Law Journals (Classe A) for the following areas: Private Law, Comparative Law, International and EU Law.

Announcements

 

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The Role of the GDPR in Designing the European Strategy on Artificial Intelligence: Law-Making Potentialities of a Recurrent Synecdoche
Denise Amram

Starting from an analysis of the EU Reg. n. 2016/679 on General Data Protection Regulation (GDPR), the Author deals with the opportunity to translate the current strategies on Artificial Intelligence into a possible general risk-based framework that combines hard and soft law instruments with the practical needs emerging in different sectors where AI technologies find application (i.e. healthcare, industrial innovation and robotics, workplace, etc.). This analysis allows the Author to provide a notion of “AI Controller”, whose main roles, responsibilities, and obligations are listed in a “General AI Regulation” proposal, illustrated in the last paragraphs.

See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/145

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The democracy of emergency at the time of the coronavirus: the virtues of privacy

Giovanni Comandé, Denise Amram, Gianclaudio Malgieri


The emergency of the Coronavirus imposes a cultural debate on the balancing of rights, freedoms and social responsibilities, finalized to the protection of individual and collective health.
So much and rightly has been written in these days about strategic errors of the past, and authoritarian and social control risks exploiting the fear of contagion to further compress individual freedoms. A lot has been said about the futility of privacy as well.
But is there a democratic way that respects fundamental rights in an emergency? Is there a model that can turn respect for democratic freedoms into a tool for effective common struggle in an emergency?

 See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/144/152

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From the Black swan, to the Snowball. Risks of Covid-19 pandemic for consumer credit scores in the lack of a harmonized regulatory intervention

Antonio Davola


In light of the harmful and wide-ranging effect of the coronavirus pandemic, many governments in the European territory and on the global framework rushed to introduce forms of financial support for those groups that are susceptible to be economically affected by the current situation in order to limit the economic fallout of the pandemic. Still, and in spite of the significant level of regulatory intervention, no major normative change addressed the area of consumer spending and consumer credit. Considering the expected length of the phenomenon, and its impact on the economy and employment, the management of consumers’ economic exposure and of unpaid debt is though meant to emerge as a major consequence during and after the expiration of the pandemic: in particular, significant risks are related to the consequences that the deterioration of consumers’ exposure caused by the COVID-19 and the pandemic-related factors is likely to have on their credit scores (and, subsequently, in terms of outcome of future creditworthiness assessments). Scores have a major impact on consumer credit landscape, and badly determined/distorted scores invest both consumers and credit operators: consumers are precluded from accessing credit in a moment of financial distress; banks and other institutions are not able to properly discriminate between the quality of potential borrowers, therefore facing risks of overexposure to losses and unprofitable operativity. In order to prevent a further worsening of the (already distressed) global economic health, it is therefore pivotal to promptly introduce harmonized corrective measures to mitigate the risk of unsought deviation in the credit scoring sector. The research investigates the impact of the events related to the COVID-19 infection on the scoring software’s functioning, considering how the pandemic is likely to impact on both macro and microeconomic factors related to consumer behavior and indebtedness. The analysis is then developed in order to provide a set of recommendations for interventions with the aim to preserve algorithms’ stability, accuracy and predictive power over the pandemic and during its aftermath.

 See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/150

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Instant paper for Senegal

Komlavi Agbam

 

Table of contents
I. Overall Framework: New code of civil and commercial obligations
1. The Externality
2. The unpredictability
3. The insurmountability
II. Specific framework
III. Some cases that can be invoked in Senegalese Law

 See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/146

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Law of Contracts in Times of Covid-19 Pandemic: Polish Report

Radosław Strugała


As the world struggles with the Covid-19 pandemic, the debtors try to perform their contractual obligations despite the hardship it brings about. In the meantime contract lawyers are focused on trying and finding remedies that would help face the new circumstances. The remedies that enable the parties either to modify the contract or to bring it to an end seem the most apt solution in the context of current pandemic. Having said that, two provisions of the Polish Civil Code are to be considered, namely article 475 (read in conjunction with the article 495) and 3571. (...)

See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/147

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Relevance of Contract Law Solutions Under a Pandemic

Reza Moradinejad

 

Table of contents
1. Force Majeure: A Plausible Solution
1.1. Characteristics of Force Majeure
1.2. Effects of Force Majeure
2. Revision of Contract for Imprévision: An Impossible Solution
2.1. Imprévision under the Civil Code of Lower Canada
2.2. Evolution of Quebec Contract Law: More Place for Equity
2.3. Civil Law Reform Project
2.4. Imprévision Under the Civil Code of Quebec
3. Duty of Good Faith: A Marginal Solution
3.1. The relational Contract Theory in Quebec Law
3.2. Scope of Obligation of Cooperation in Relational Contracts
4. Extraordinary Governmental Programs: An Out-of-the-Box Solution
5. Conclusion

 See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/148

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Impact of Covid-19 pandemic on contractual relationships: the case of Estonia

Karin Sein-Kai Härmand

 

Table of contents
1. General contract law rules: restrictions due to the Covid-19 pandemic as force
majeure
2. Adaptation or termination of contracts due to Covid-19 pandemic under the doctrine
of change of circumstances
3. Regulatory allocation of risks for specific contract types
4. New regulatory provisions due to the pandemic crisis?
5. Contractual clauses used in practice and their impact on contractual allocation
of risks

 See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/149

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The Impact of Covid-19 in Chilean Contract Law

Rodrigo Momberg Uribe, Alberto Pino Emhart

 

Table of contents
I. Introduction
II. Administrative regulations enacted to deal with the crisis
1. Consumer contracts and SERNAC’s directives
2. Consumer credits and CMF’s directives
3. Construction contracts with the State
4. CGR and contracts with the State. Dictamen No. 6854-20
5. Chile Compra and contracts with the State
III. General contract law
1. The Chilean Civil Code. A strong recognition of pacta sunt servanda
2. Force majeure
3. Change of circumstances (teoría de la imprevisión)
3.1. Legal doctrine
3.2. Case law
3.3. Perspectives

 

See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/151

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The Impact of the Health Emergency on Contract Law: National Report Peru

Daniel Ugarte Mostajo, Raúl F. Zúñiga

 

Table of contents
I. Peruvian contract law provisions dealing with circumstances interfering with contractual
performance
1. General framework
2. Impossibility of performance due to unforeseen circumstances or force majeure
3. Excessive onerousness of the performance or hardship
4. The disputed application of the frustration of purpose
II. Application of the provisions to certain contracts
1. Construction contracts
2. Contracts for the provision of educational services
3. Lease contracts

 

See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/152

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An overview of the colombian contract law, in times of the Covid-19 pandemic

Isué Natalia Vargas Brand

 

This paper notes the potential contract law rules applicable in the Colombian legal system to contracts affected by the economic crisis caused by the Covid-19 pandemic. Also, it points out the different temporary Decrees enacted by the Colombian government to mitigate the effects of the pandemic in Contract Law.

 

See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/153

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The Impact of Covid-19 in Mexican Contract Law

Edgardo Muñoz, Romina Guarneros

 

Table of contents
I. Introduction
II. Administrative regulations enacted and private stakeholders’ initiatives to encourage
or force contract performance in times of Covid-19
2.1. The main Federal Directive by the Federal Health Secretariat
2.2. Real estate and business loan contracts with banks
2.3. Housing and business lease agreements
2.4. Medical and Unemployment Insurance Agreements
2.5. Domestic service contracts
III. General Contract Law
3.1. C2C domestic contracts and impediments to perform
3.2. B2B domestic contracts and impediments to perform
3.3. B2C domestic contracts and impediments to perform
3.4. International Sale of Good Contract (CISG) and impediments to perform
IV. Conclusion
V. References

 

See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/154

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Environmental Law in the Middle East and North Africa

Zainab Lokhandwala

 

This paper analyses the impact of the Covid-19 pandemic on the Middle Eastern and North African (MENA) region against the backdrop of two themes: climate action and human rights. In the climate context, the renewable energy sector will certainly suffer in the immediate aftermath of Covid 19. At the same time, globally, renewables have shown more resilience than fossil fuels during this crisis, which may lead to increased investments in the long-term. Nevertheless, pre-Covid commitments and estimated future gains (if any) in renewables were not enough for combating climate change. The trajectory of regional climate action was slow and inadequate to begin with, and it is likely to suffer even further, owing to economic slowdown and relief measures that will pull resources away from climate action. In the human rights context, the Covid 19 crisis has led to increased authoritarianism and has added a new layer to existing human rights and humanitarian issues. As political stability is a prerequisite for the growth and execution of environmental law, public discontent against governments will only delay and detract the environmental agenda. Overall, these two legs of analysis show how the pandemic has led to a retraction of environmental law. Coming out of the crisis, there are many lessons to be learnt. Interdisciplinary approaches that draw a human-ecological-health nexus may offer solutions in the Middle East as in the world. The Berlin Principles 2019 are a positive step in this direction which could pave the way for more ecosystemic and holistic environmental legal development.

 

See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/155

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Climate and environmental approaches in the United States and Canada at the outbreak of the 2020 pandemic

Pasquale Viola

 

The essay deals with the issues triggered by environmental policies and Covid-19 pandemic in the United States and Canada. The analysis starts with an outline of the environmental law systems and the main responses to the pandemic, then emphasizing the focal legal concerns about the emergency measures and environmental policies. The last section draws critical conclusions that show some current patterns and the way forward in the entanglement environmental law/pandemic.

 

See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/156

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The impact of Covid-19 crisis on the French law of contract

Olivier Deshayes

 

The effect of the Covid-19 on contracts comes not as much from the virus itself than from the containment measures imposed by Governments which made it hard, if not impossible, for debtors to perform their obligations. This is why the crisis, as regards contracts, really started in France in the midst of March 2020 when President Macron and Prime Minister Edouard Philippe decided to shut down non-essential businesses, schools, restaurants, theatres, to forbid public gatherings and to impose containment measures on individuals. (...)

 

See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/157/165

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The Impact of Covid-19 in German Contract Law

Christian Johannes Wahnschaffe

 

Table of contents
I. Covid-19 as an Impediment to Performance under German Contract Law
I.1. Impossibility of Performance
I.2. Disproportionality of Performance and Fundamental Change of Circumstances
I.3. Contractual Remedies
II. Contemporary Legislative Responses in the Wake of the Covid-19 Pandemic
II.1. Temporary Moratoriums on “Essential” Continuous Obligations, Art. 240 s 1
EGBGB
II.2. Temporary Restrictions on the Termination of Lease Agreements, Art. 240 s 2
EGBGB
II.3. Temporary Deferral of Payments in B2C Loan Agreements, Art. 240 s 3 EGBGB
II.4. Recreational Events and Package Travel Contracts: Vouchers Instead of Refunds,
Art. 240 s 5 EGBGB and Art. 240 s 6 EGBGB
III. Outlook

See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/158

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Covid-19 pandemic and Greek Contract Law

Zafeirios N. Tsolakidis

 

Table of contents
I. The Covid-19 pandemic and its impact in contracts
II. General Contract Law Provisions
II.1. Impossibility
II.2. Debtor’s default
II.3. Creditor’s default
III. New regulatory provisions
III.1. Contracts of Lease
III.2. Commercial papers
III.3. Flights, sea trips and travels
III.V. Employment Contracts
IV. Pandemic and contractual clauses
IV.1. Force majeure clauses
IV.2. Judicial adjustment

See full text article here: http://www.opiniojurisincomparatione.org/opinio/article/view/159

 
Posted: 2020-10-16 More...
 
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Pre-Print

Table of Contents

Articles

Giovanni Comandé, Denise Amram, Gianclaudio Malgieri
PDF
Denise Amram
PDF
Antonio Davola
PDF
Komlavi Agbam
PDF
Radosław Strugała
PDF
Reza Moradinejad
PDF
Karin Sein-Kai Härmand
PDF
Rodrigo Momberg Uribe, Alberto Pino Emhart
PDF
Daniel Ugarte Mostajo, Raúl F. Zúñiga
PDF
Isué Natalia Vargas Brand
PDF
Edgardo Muñoz, Romina Guarneros
PDF
Zainab Lokhandwala
PDF
Pasquale Viola
PDF
Olivier Deshayes
PDF
Christian Johannes Wahnschaffe
PDF
Zafeirios N. Tsolakidis
PDF