This article deals with exemption clauses and specifically with respect to their definition, type... more This article deals with exemption clauses and specifically with respect to their definition, types, and validity. It tackles clauses that exempt the obligor from liability for his or his employees’ non-performance. The article presents and analyses the legal provisions on exemption clauses under the Unidroit Principles and the Qatar Civil Code and discusses the case law made under these legislative instruments. In addition, the article draws a comparison between the legal texts at issue in order to conclude with a solution that best serves the parties’ interests.
This article deals with the law tacitly chosen by the parties to govern their international comme... more This article deals with the law tacitly chosen by the parties to govern their international commercial contracts. It shows the method by which The 2015 Hague Principles on Choice of Law in International Commercial Contracts and Arab laws refer to tacit choice, whether directly or indirectly. In addition, it tackles the level of strictness in tests for tacit choice and its criteria under both The Hague Principles and Arab laws. It concludes that, in order to achieve more predictability and legal certainty, the Legislatures in Arab states should reform the legal provisions on choice of law applicable to the contract with foreign element(s) according to the best practice followed by The Hague Principles in this regard.
The United Nations Convention on Contracts for the International Sale of Goods (the Convention or... more The United Nations Convention on Contracts for the International Sale of Goods (the Convention or CISG) was signed in Vienna in 1980 and became effective on January 1, 1988. CISG applies to contracts for the international sale of goods, i.e. contracts concluded between parties whose places of business or habitual residences are in two different states. The Convention aims at promoting international commerce by removing legal barriers in sale of goods transactions between international traders. To date, 77 States have adopted the CISG.1 This Convention entered into force in Egypt on January 1, 1988. Contracts for the sale of goods are also regulated by Egyptian law. There are two kinds of such contracts under the present Egyptian law, civil (non-commercial) and commercial contracts. The former Egyptian Commercial Code for the year 1883 had no provision relating to the sale of goods contract. Therefore, the Egyptian Civil Code governed both non-commercial and commercial sale of goods ...
Distinguishing between the proceedings of the confinement on the nominal shares and bearer shares... more Distinguishing between the proceedings of the confinement on the nominal shares and bearer shares that is stated in the federal civil proceedings law number 11 of 1992 is useless. This is because of the issuance of the new federal commercial companies law number 2 of 2015 that includes nominative shares as the only shares to be confined according to the proceedings that are held for a particular confinement of the debtor's property with others)protective confinement(. This kind of confinement supposes the existence of three parties: the first party is the distrainer creditor, the second party is the execution debtor shareholder, and the third party is the garnishee that is the company that exports the shares and the stock market where the shares are circulated. The nominative shares' confinement proceedings start by an announcement for the company that exports the shares and the stock market where the shares are circulated, then the confinement is announced for the execution debtor shareholder. In the confinement notification, the garnishee is asked for presenting a report of his debt of the debtor. If he does not do that, the garnishee shall be a subject for the legal penalty which imposes him to pay the debt. Signing the confinement leads the shares ad their attachments)the profits(to be under the control of a specific legal system according to which the confined shares and their profits' property stays for the shareholder. However, the shareholder has a constrained authority on the confined shares and the profits.
An-Najah University Journal for Research - Humanities, 2004
This research deals with the assignment of rights and debts under the draft civil law of Palestin... more This research deals with the assignment of rights and debts under the draft civil law of Palestine. The researcher uses an analytical and comparative method in discussing all different aspects of the assignment. Comparison has been made with the legal provisions regulating the assignment in the civil law of Jordan influenced by Islamic jurisprudence and the legal provisions of the civil law of Egypt influenced by Western jurisprudence. Consideration has been also made to the courts’ decisions applying the related legal provisions of both Jordan and Egypt. The research clarifies that the Palestinian draft takes its provisions, in this regard, from the Egyptian Code almost word for word. In the conclusion, the researcher recommends that Palestinian provisions shall be reviewed to be much more in accord with the Jordanian civil law and other Arab Codes followed its approach. The grounds standing behind this recommendation are that, all these latest Arab Codes have been influenced by Is...
This article deals with parties’ pre-estimation of the amount of compensation for non-performance... more This article deals with parties’ pre-estimation of the amount of compensation for non-performance (liquidated damages, penalty clause). It discusses this agreed payment in terms of definition, validity, invocation, and possibility of adjustment upon the application of either party. The article presents the provisions of this legal institution in the Unidroit Principles, the Egyptian Civil Code, and the Jordanian Civil Code. It, first, draws a comparison between these laws in the Arab region and, second, considers them in relation to the Unidroit Principles to conclude with a solution that best serves the parties’ interests.
This research clarifies the importance of the parties’ choice of the law applicable to an e-contr... more This research clarifies the importance of the parties’ choice of the law applicable to an e-contract, basically because one of the parties cannot normally identify the other contracting party. The research tackles the international character of the e-contract; it also clarifies how parties may choose the law applicable to such a contract whether explicitly or implicitly, and whether they can choose the so-called lex mercatoria or lex electronica. Finally, the research addresses the protection available under the comparative law for consumers when participating in the choice of the law applicable to an e-contract.
According to the conflict-of-laws rule in many Arab countries, the international commercial contr... more According to the conflict-of-laws rule in many Arab countries, the international commercial contract is subject to the law chosen by the parties. According to the prevailing opinion in judiciary and doctrine, the law chosen by the parties to govern the contract should be a law of a particular State. If the parties chose "rules of law", such a choice will generally not be recognized as the law governing the contract. Rather, courts would consider such a choice as an incorporation of the rules of law into the contract, provided that such chosen rules of law shall not contradict the mandatory rules of the law applicable to the contract. At the international level, in 2016, Unidroit published the latest version of its Principles on International Commercial Contracts. These Principles form a good set of rules of law that can be chosen to govern the contract. In 2015, The Hague Principles on Choice of Law in International Commercial Contracts were also published. Article 3 there...
An-Najah University Journal for Research - Humanities, 2008
This research deals with the Transnational Civil Procedure Principles adopted by the American La... more This research deals with the Transnational Civil Procedure Principles adopted by the American Law Institute (ALI) and the International Institute for the Unification of Private Law (Unidroit), in Rome, in 2004. It emphasizes the importance of these Principles in the field of international commercial arbitration; these Principles are the first instrument as such that deals with civil procedure, especially because the experience of international conventions in this field was not satisfactory. This research stipulates the matters addressed by the Principles. It also clarifies the cases of their application, whether by the agreement of the parties or by the adoption of the principles by the legislature. In order to cope with the international development and to encourage the foreign trade, it was finally recommended that the legislature in the Arab countries should adopt these Principles as special civil procedure rules for the matters they address, namely the transnational ...
This paper addresses the principles of hardship and specific performance as being unreasonably bu... more This paper addresses the principles of hardship and specific performance as being unreasonably burdensome or expensive both in terms of their definitions and legal consequences. This paper argues that, in a situation of hardship, the debtor can choose to invoke either the rules of section 6.2 (hardship) or the defense to specific performance under Article 7.2.2-b of the UNIDROIT Principles of International Commercial Contracts ("UNIDROIT Principles"). Yet, while in a situation where performance of the contract becomes "unreasonably burdensome or expensive," the debtor might only invoke the exception to specific performance under Article 7.2.2(b) of the UNIDROIT Principles.
According to the principle of party autonomy, the disputant parties may choose the law applicable... more According to the principle of party autonomy, the disputant parties may choose the law applicable to the merits of international commercial arbitration. In the absence of the parties’ choice, the arbitral tribunal shall determine this law. This article discusses the applicability of ‘rules of law’, namely the UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles) to the merits of the dispute. It shows whether the UNIDROIT Principles can be selected by the disputant parties or the arbitral tribunal to govern the subject of the dispute under the Arbitration Laws of the Gulf Cooperation Council (GCC) Countries as well as the Constitution and the Arbitral Rules of Procedure of the GCC Commercial Arbitration Center (GCCCAC).
According to the principle of party autonomy, the disputant parties may choose the law applicable... more According to the principle of party autonomy, the disputant parties may choose the law applicable to the merits of international commercial arbitration. In the absence of the parties’ choice, the arbitral tribunal shall determine this law. This article discusses the applicability of ‘rules of law’, namely the UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles) to the merits of the dispute. It shows whether the UNIDROIT Principles can be selected by the disputant parties or the arbitral tribunal to govern the subject of the dispute under the Arbitration Laws of the Gulf Cooperation Council (GCC) Countries as well as the Constitution and the Arbitral Rules of Procedure of the GCC Commercial Arbitration Center (GCCCAC).
This paper addresses the principles of hardship and specific performance as being unreasonably bu... more This paper addresses the principles of hardship and specific performance as being unreasonably burdensome or expensive both in terms of their definitions and legal consequences. This paper argues that, in a situation of hardship, the debtor can choose to invoke either the rules of section 6.2 (hardship) or the defense to specific performance under Article 7.2.2-b of the UNIDROIT Principles of International Commercial Contracts ("UNIDROIT Principles"). Yet, while in a situation where performance of the contract becomes "unreasonably burdensome or expensive," the debtor might only invoke the exception to specific performance under Article 7.2.2(b) of the UNIDROIT Principles.
This article deals with exemption clauses and specifically with respect to their definition, type... more This article deals with exemption clauses and specifically with respect to their definition, types, and validity. It tackles clauses that exempt the obligor from liability for his or his employees’ non-performance. The article presents and analyses the legal provisions on exemption clauses under the Unidroit Principles and the Qatar Civil Code and discusses the case law made under these legislative instruments. In addition, the article draws a comparison between the legal texts at issue in order to conclude with a solution that best serves the parties’ interests.
This article deals with the law tacitly chosen by the parties to govern their international comme... more This article deals with the law tacitly chosen by the parties to govern their international commercial contracts. It shows the method by which The 2015 Hague Principles on Choice of Law in International Commercial Contracts and Arab laws refer to tacit choice, whether directly or indirectly. In addition, it tackles the level of strictness in tests for tacit choice and its criteria under both The Hague Principles and Arab laws. It concludes that, in order to achieve more predictability and legal certainty, the Legislatures in Arab states should reform the legal provisions on choice of law applicable to the contract with foreign element(s) according to the best practice followed by The Hague Principles in this regard.
The United Nations Convention on Contracts for the International Sale of Goods (the Convention or... more The United Nations Convention on Contracts for the International Sale of Goods (the Convention or CISG) was signed in Vienna in 1980 and became effective on January 1, 1988. CISG applies to contracts for the international sale of goods, i.e. contracts concluded between parties whose places of business or habitual residences are in two different states. The Convention aims at promoting international commerce by removing legal barriers in sale of goods transactions between international traders. To date, 77 States have adopted the CISG.1 This Convention entered into force in Egypt on January 1, 1988. Contracts for the sale of goods are also regulated by Egyptian law. There are two kinds of such contracts under the present Egyptian law, civil (non-commercial) and commercial contracts. The former Egyptian Commercial Code for the year 1883 had no provision relating to the sale of goods contract. Therefore, the Egyptian Civil Code governed both non-commercial and commercial sale of goods ...
Distinguishing between the proceedings of the confinement on the nominal shares and bearer shares... more Distinguishing between the proceedings of the confinement on the nominal shares and bearer shares that is stated in the federal civil proceedings law number 11 of 1992 is useless. This is because of the issuance of the new federal commercial companies law number 2 of 2015 that includes nominative shares as the only shares to be confined according to the proceedings that are held for a particular confinement of the debtor's property with others)protective confinement(. This kind of confinement supposes the existence of three parties: the first party is the distrainer creditor, the second party is the execution debtor shareholder, and the third party is the garnishee that is the company that exports the shares and the stock market where the shares are circulated. The nominative shares' confinement proceedings start by an announcement for the company that exports the shares and the stock market where the shares are circulated, then the confinement is announced for the execution debtor shareholder. In the confinement notification, the garnishee is asked for presenting a report of his debt of the debtor. If he does not do that, the garnishee shall be a subject for the legal penalty which imposes him to pay the debt. Signing the confinement leads the shares ad their attachments)the profits(to be under the control of a specific legal system according to which the confined shares and their profits' property stays for the shareholder. However, the shareholder has a constrained authority on the confined shares and the profits.
An-Najah University Journal for Research - Humanities, 2004
This research deals with the assignment of rights and debts under the draft civil law of Palestin... more This research deals with the assignment of rights and debts under the draft civil law of Palestine. The researcher uses an analytical and comparative method in discussing all different aspects of the assignment. Comparison has been made with the legal provisions regulating the assignment in the civil law of Jordan influenced by Islamic jurisprudence and the legal provisions of the civil law of Egypt influenced by Western jurisprudence. Consideration has been also made to the courts’ decisions applying the related legal provisions of both Jordan and Egypt. The research clarifies that the Palestinian draft takes its provisions, in this regard, from the Egyptian Code almost word for word. In the conclusion, the researcher recommends that Palestinian provisions shall be reviewed to be much more in accord with the Jordanian civil law and other Arab Codes followed its approach. The grounds standing behind this recommendation are that, all these latest Arab Codes have been influenced by Is...
This article deals with parties’ pre-estimation of the amount of compensation for non-performance... more This article deals with parties’ pre-estimation of the amount of compensation for non-performance (liquidated damages, penalty clause). It discusses this agreed payment in terms of definition, validity, invocation, and possibility of adjustment upon the application of either party. The article presents the provisions of this legal institution in the Unidroit Principles, the Egyptian Civil Code, and the Jordanian Civil Code. It, first, draws a comparison between these laws in the Arab region and, second, considers them in relation to the Unidroit Principles to conclude with a solution that best serves the parties’ interests.
This research clarifies the importance of the parties’ choice of the law applicable to an e-contr... more This research clarifies the importance of the parties’ choice of the law applicable to an e-contract, basically because one of the parties cannot normally identify the other contracting party. The research tackles the international character of the e-contract; it also clarifies how parties may choose the law applicable to such a contract whether explicitly or implicitly, and whether they can choose the so-called lex mercatoria or lex electronica. Finally, the research addresses the protection available under the comparative law for consumers when participating in the choice of the law applicable to an e-contract.
According to the conflict-of-laws rule in many Arab countries, the international commercial contr... more According to the conflict-of-laws rule in many Arab countries, the international commercial contract is subject to the law chosen by the parties. According to the prevailing opinion in judiciary and doctrine, the law chosen by the parties to govern the contract should be a law of a particular State. If the parties chose "rules of law", such a choice will generally not be recognized as the law governing the contract. Rather, courts would consider such a choice as an incorporation of the rules of law into the contract, provided that such chosen rules of law shall not contradict the mandatory rules of the law applicable to the contract. At the international level, in 2016, Unidroit published the latest version of its Principles on International Commercial Contracts. These Principles form a good set of rules of law that can be chosen to govern the contract. In 2015, The Hague Principles on Choice of Law in International Commercial Contracts were also published. Article 3 there...
An-Najah University Journal for Research - Humanities, 2008
This research deals with the Transnational Civil Procedure Principles adopted by the American La... more This research deals with the Transnational Civil Procedure Principles adopted by the American Law Institute (ALI) and the International Institute for the Unification of Private Law (Unidroit), in Rome, in 2004. It emphasizes the importance of these Principles in the field of international commercial arbitration; these Principles are the first instrument as such that deals with civil procedure, especially because the experience of international conventions in this field was not satisfactory. This research stipulates the matters addressed by the Principles. It also clarifies the cases of their application, whether by the agreement of the parties or by the adoption of the principles by the legislature. In order to cope with the international development and to encourage the foreign trade, it was finally recommended that the legislature in the Arab countries should adopt these Principles as special civil procedure rules for the matters they address, namely the transnational ...
This paper addresses the principles of hardship and specific performance as being unreasonably bu... more This paper addresses the principles of hardship and specific performance as being unreasonably burdensome or expensive both in terms of their definitions and legal consequences. This paper argues that, in a situation of hardship, the debtor can choose to invoke either the rules of section 6.2 (hardship) or the defense to specific performance under Article 7.2.2-b of the UNIDROIT Principles of International Commercial Contracts ("UNIDROIT Principles"). Yet, while in a situation where performance of the contract becomes "unreasonably burdensome or expensive," the debtor might only invoke the exception to specific performance under Article 7.2.2(b) of the UNIDROIT Principles.
According to the principle of party autonomy, the disputant parties may choose the law applicable... more According to the principle of party autonomy, the disputant parties may choose the law applicable to the merits of international commercial arbitration. In the absence of the parties’ choice, the arbitral tribunal shall determine this law. This article discusses the applicability of ‘rules of law’, namely the UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles) to the merits of the dispute. It shows whether the UNIDROIT Principles can be selected by the disputant parties or the arbitral tribunal to govern the subject of the dispute under the Arbitration Laws of the Gulf Cooperation Council (GCC) Countries as well as the Constitution and the Arbitral Rules of Procedure of the GCC Commercial Arbitration Center (GCCCAC).
According to the principle of party autonomy, the disputant parties may choose the law applicable... more According to the principle of party autonomy, the disputant parties may choose the law applicable to the merits of international commercial arbitration. In the absence of the parties’ choice, the arbitral tribunal shall determine this law. This article discusses the applicability of ‘rules of law’, namely the UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles) to the merits of the dispute. It shows whether the UNIDROIT Principles can be selected by the disputant parties or the arbitral tribunal to govern the subject of the dispute under the Arbitration Laws of the Gulf Cooperation Council (GCC) Countries as well as the Constitution and the Arbitral Rules of Procedure of the GCC Commercial Arbitration Center (GCCCAC).
This paper addresses the principles of hardship and specific performance as being unreasonably bu... more This paper addresses the principles of hardship and specific performance as being unreasonably burdensome or expensive both in terms of their definitions and legal consequences. This paper argues that, in a situation of hardship, the debtor can choose to invoke either the rules of section 6.2 (hardship) or the defense to specific performance under Article 7.2.2-b of the UNIDROIT Principles of International Commercial Contracts ("UNIDROIT Principles"). Yet, while in a situation where performance of the contract becomes "unreasonably burdensome or expensive," the debtor might only invoke the exception to specific performance under Article 7.2.2(b) of the UNIDROIT Principles.
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