Tuesday, 23 December 2008

O Direito

Temos que ler direito, para saber direito o significado do Direito

Monday, 22 December 2008

The uncertain.

Like a thick tunnel full of empty space,
Or like a never ending cruel race,
The feeling is quite similar to that of guilt,
But as no blood has been spilled,
You fail to see why you feel so ashamed,
But there is no one else for you to blame,
Some may say that this is not a game,
It’s something you know you must fully engage,
It’s like a spontaneous fit of rage.
It’s like death arriving a bit too early,
It’s like life ending a bit too late.

The feeling that of not knowing what tomorrow brings,
Not in terms of the weather, though rain always comes in
Summer, Autumn, Winter and Spring.
But when the time comes for you to spread your wings,
Where will you land?
Will it be land, air or sea?
Will I be someone, something or nobody?
Will you be my friend or my enemy?
Must I plan it out like a predetermined journey?
Or Shall I leave it to the Gods to surprise me?

The bird flies, the whale swims, the lion roars,
And what do I do?
I am clearly designed for some useful necessity.

I fear the uncertain.
But the uncertain must also fear me.
For if it didn’t it would have already surprised me,
With a tedious feeling of certainty.
But it hasn’t so it must have given up on that,
As I have already given up prematurely,
On the quest of knowing what tomorrow will bring,
A sunny, cloudy or rainy Spring
A cold summer with windy blows,
Tomorrow – Oh! Nobody knows.
Yet that is why we live so well,
Like a chronological spell.
Like someone who reveals a surprise that they weren’t supposed to tell,
Over-planning tomorrow is like thieving our spirit and invoking hell,
What will tomorrow bring if uncertainty vanishes,
The fact that I will die we already know,
But knowing the exact time of it is not something I’d really like to know!
For Death already knocks on Spontaneity’s door,
And beyond that I need to know no more.

How will I look? What will I do?
Will I be famous or a someone…
Who. Who?

I know this about the future.
It’s born and dies on the very same moment,
Time is an instrument for measuring things,
I’ve been measured-judged-assessed all my life,
So I’d like to skip this one. Thanks.
Let’s keep uncertainty in our vital equation,
Like a breath of fresh air,
Like unconstrained, mortal, fascination,
To live like there’s no other moment to spare,
Like now is the only thing that I know,
And I wouldn’t certainly dare
Worrying about tomorrow,
As it will make my ignorance grow,
For people only have one brain,
And of all multi-taskers that I Know,
I know this: that worrying usurps our brain power,
Like no other thing does.

Uncertainty is the very product of my prose,
The end of this poem nobody really knows,
So how about do a magic trick,
And make all following words disappear,
I think I’m going to end it right here.

Friday, 19 December 2008

Article 7 CISG and Good Faith: A summary of lecture delivered at the University of Bristol (November 2008)

For the full article email the author at lucasvelozo@hotmail.com

International commercial law is a vital ingredient for the healthy functioning of the global economy. The need for achieving certainty in international commercial law is a fundamental objective, but one that is necessarily counter balanced by the need to maintain flexibility in the system. The role of good faith in international commercial contracts poses a number of implications in the execution and enforceability of these contracts. Indeed, good faith acts as the moralisation agent of contracts and is taken into account by State judges or arbitrators at the different levels of the contractual evolution: establishment, performance and termination. This short essay will aim to dissect the issues pertinent in this area of the law and suggest a number of strategies in addressing the problems identified.

The main issue surrounding good faith in international contracts is the difficulty to ascertain a clear understanding of the obligation of good faith given the varying constructions and inherent ambiguities which surround the notion of this concept. Indeed, the task of reconciling morality and commercial law within the concept of good faith has been faced very differently in the various legal systems and this is the reason why the principle of good faith, although playing an important role in domestic laws, differs greatly in its scope and application depending on the legal tradition which governs a particular commercial transaction.

The contrast can best be exemplified by juxtaposing civil law and common law systems. While civil law systems recognise a general duty to negotiate and perform contracts in good faith, generally speaking the common law approach to good faith is considered to be less encompassing. Within the common law system, however, the rigidity to good faith by the English legal system is not completely shared by the United States (i.e. section 1-203 of the American Uniform Commercial Code). A significant example of a good faith requirement in a common law country can be found in the American Uniform Commercial Code where good faith is defined as meaning ‘honesty in fact in the contract or transaction concerned.’ These developments show a gradual tendency towards the concept of good faith finding favour across the common law world, although considerable differences still continue to exist among the various legal systems.

The attempt to resolve the divisions existing among the civil law and common law systems on the question of the principle of good faith was one of the most challenging problems faced by the drafters at the debates that led up to the United Nations Convention on Contracts for the International Sales of Goods (CISG).

The first sub-paragraph of Article 7 of the CISG states that:

“in the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade. “

As Bridge notes, “the application of this provision is something of a mystery.”[1] Whether the principle of good faith in Article 7 is relevant only as an interpretative tool of the Convention or if it is also relevant as a standard of behaviour for the contracting parties is a current legal issue in international commercial law.

Indeed, Professor Farnsworth’s opinion argues that “[Article 7(1)] does no more than instruct a court interpreting the Convention’s provisions to consider the importance of [good faith].”[2] Thus, it can be construed that Article 7(1) does not impose on the parties an obligation to act in good faith. The latter approach has been endorsed by the International Chamber of Commerce.[3]

Notwithstanding the language used in Article 7(1), the relevance of the principle of good faith is not limited to the interpretation of the Convention, as there are many provisions in the CISG that would be meaningless without recognizing a general duty to act in good faith (see Art 8(3) CISG).

Considerable disagreement over the interpretation of Article 7(1) exists not only among the literature but also among those judges and arbitrators who apply the CISG’s provisions. Once again, this confirms the difficulty in establishing and maintaining a ‘uniform sales code’ and in deciding disputes in a manner consistent with the spirit of the CISG. Thus, ‘the only thing that seems clear through all these competing arguments is that the uniformity sought by the CISG is definitely lacking with respect to the existence of a good faith obligation’.[4]

Although many decisions of domestic courts recognizing the good faith duty under the CISG are to be found in the major data banks on the CISG, their analysis leads to the conclusion that there is still a definite lack of uniformity in the interpretation of this rule of the Convention.[5] However, the CISG is arguably as flexible an instrument as any other law and its meaning can therefore change with time.[6]

It is argued that good faith under Art. 7(1) CISG ought to be more readily interpreted as a contractual duty in international commercial contracts. The trend, however, tends to suggest otherwise. The problem can be tackled at various levels:

First, a new Treaty could be drafted to replace the CISG in order to address the interpretative difficulties faced by Art. 7 CISG. The Unidroit approach to good faith in international commercial law could be adopted by such a treaty. Unlike the ambiguities of the CISG, there is no doubt that the Unidroit ‘Principles of International Commercial Contracts’ impose a general duty of good faith on the contracting parties.

Second, greater judicial cooperation via a global Judicial Cooperation Network could be established to promote judicial comity and the uniformity of the application and interpretation of Art.7 in international sales contracts. The European Judicial Training Network (EJTN)[7] illustrates how such an institutional model could produce tangible results in the resolution of transnational conceptual difficulties at judicial level.

Third, the current CISG could be retained and a Protocol issued so as to clarify, inter alia, the position of good faith within Art.7 CISG.

Fourth, the ICC could engage in stronger advocacy across all business sectors in order to establish a greater need to oblige parties to act in good faith.

Finally, and due to international law’s atypical nature, other related commercial institutions, such as the WTO could demonstrate greater collaboration in resolving difficulties in this area of international commercial law.

It is argued that the synergy of these recommendations will contribute towards achieving greater fairness and uniformity in international commercial law.

[1] Bridge, M. (2007), The International Sale of Goods: Law and Practice, Second Edition, Oxford: OUP.

[2] Farnsworth, E.A., ‘The Eason – Weinmann Colloquium on International and Comparative Law: Duties of Good Faith and Fair Dealing under the UNIDROIT Principles, Relevant International Conventions and National Laws’ (1995) 3 Tulane Journal of International and Comparative Law 54-55

[3] ICC Award No 8611 of 1997

[4] Powers, P.J. ‘Defining the Undefinable: Good Faith and the United Nations Convention on Contracts for the International Sales of Goods’ (1999) 18 Journal of Law and Commerce 349

[5] Komarov, A.S, ‘Internationality, Uniformity and Observance of Good Faith Criteria in Interpretation of CISG: Some Remarks on Article 7(1)’ (2005) 25 Journal of Law and Commerce 75

[6] M H Bonell, ‘Article 7: Interpretation of the Convention’ in C M Bianca and M J Bonell (eds), Commentary on the International Sales Law – The 1980 Vienna Sales Convention (1987) at p.83.

[7]See URL: http://www.ejtn.net/www/en/html/index.htm [29-09-2008]

Tuesday, 2 December 2008

Human Nature to Human Failure? (Comment)

"The United Nations says the world economy faces its worst downturn since the Great Depression" (BBC News, 1/12/08). It is apparent that the only thing we learn from history is that we learn nothing from it. It keeps repeating itself. And one would surely think that given modern technology, instantaneous forecasting methods, a plethora of data and economic indices, 'stronger' democracies and a shared sense of 'promoting peace, security and justice' (UN Charter), the world economy would be in safer hands nowadays than in the 1930s. Though all these developments have helped us to improve, the 'human system' is far from perfection. Indeed, it is human nature to experience failure. It goes without saying that the recent financial crisis has taught us many things; but perhaps the most important lesson can be reduced to just 5 letters: greed. Is greed one of the handful biological instincts that have survived from our bipedal ancestors or is it ultimately the product of an increasingly capitalised society?

Human greed has thrown us into a financial ratatouille. The greed to succeed has led us into a sea of failures. It's therefore quite clear that our human failure sprang from our very human nature - whether we learn how to 'trick' nature or accept it as an invariable biological eventuality remains to be seen.