CONTRACTS & COMMERCIAL LAW eJOURNAL

"Private Law Rights and Remedies Under the Free Movement of Goods and Services" Free Download
Forthcoming in H.-W. Micklitz and C. Sieburgh (eds), (Intersentia, Cambridge)

PAUL VERBRUGGEN, Radboud University Nijmegen
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The free movement of goods and services are central to the functioning of the Internal Market of the European Union (EU). While many scholars have devoted their attention to analysing those circumstances and the way in which they have been articulated in the case law of the Court of Justice of the EU (Court of Justice), considerably less attention has been paid to the exact consequences in private law of the application of the free movement of goods and services. Does such application to private law relationships create, modify or extinguish rights and obligations, does it affect existing private law remedies, and if so, how? If we remember that trade in goods and services typically takes place based on private law arrangements, namely contracts, we must admit that the decisions rendered by the Court of Justice will also have an impact on underlying contracts and related private law rights and obligations of individuals. It means that all judgements of the Court of Justice in the area of goods and services (may) have implications on pre-existing private law rights or have created new rights for private parties wanting to contract with others in the Internal Market. Taking this fact as the point of departure, this Chapter provides a systematic analysis of private law implications of the application of the freedom of goods and services. It is argued in this Chapter that the impact of these freedoms on private law rights and remedies, and the underlying relationships that are governed by them, is pervasive and multi-faceted, yet not well understood in legal scholarship and practice. The Chapter assesses via which doctrines these freedoms create, modify or extinguish rights and obligations in ‘horizontal’ relations (i.e. relations governed by private law) and whether and how private law remedies are affected in that process as well. Anticipating those consequences is important for legal practice as they may offer genuine and powerful arguments to solve the underlying private law dispute.

"Pandora's Digital Box: Digital Wallets and the Honor All Wallets Rules" Free Download

ADAM J. LEVITIN, Georgetown University Law Center
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Digital wallets are poised to transform the world of retailing. These digital wallets, such as ApplePay and Android Pay, are “smart? payment devices that can integrate payments with two-way, real-time communications of any type of data. Integration of payments with real-time communications holds out tremendous promise for retailers: the combination in a single platform of search, advertising, payment, shipping, customer service, and loyalty programs. Such an integrated retail platform offers brick-and-mortar retailers a potentially superior ability to identify, attract, and retain customers, bringing eCommerce-type platforms into the brick-and-mortar environment.

At the same time, however, digital wallets present materially different risks for merchants than traditional plastic card payments precisely because of their “smart? nature. Digital wallets can reallocate flows of consumer data from merchants to financial institutions, depriving merchants of valuable customer information used for anti-fraud, advertising, loyalty, and customer service purposes. Digital wallets can also facilitate poaching of customers by competitors, impair merchants’ customer relationship management, deprive merchants of influence over tender choice and payment routing, increase fraud risk, subject merchants to patent infringement liability, and ultimately increase the costs of accepting payments.

All of this suggests that merchants would accept digital wallets only selectively, based on the overall package of risks and rewards offered by any particular wallet. Merchants, however, are highly constrained in their ability to refuse or condition payments from digital wallets because of “Honor All Wallets? rules promulgated by American Express, MasterCard, and Visa for merchants that accept payments with their network brands. The Honor All Wallets rules require merchants to accept all network-branded payments from any device that uses a communications technology accepted by the merchant — magnetic stripe, Near Field Communications, QR codes, Internet, etc. The Honor All Wallets rules thus tie acceptance of a card network’s payments via digital wallets to the acceptance of traditional plastic cards that use the same communications technologies. The Honor All Wallets rules force merchants to accept payments from all digital wallets utilizing a card network brand, irrespective of the wallet’s risks. Honor All Wallets presents merchants with a digital Pandora’s Box.

The Honor All Wallets rules also skew the competitive landscape for digital wallets. By preventing merchants from accepting only certain brands of payments from digital wallets, the Honor All Wallets rules foreclose entry to digital wallets that offer the most attractive valuation proposition for merchants — those that make low-cost PIN-debit and ACH payments. The Honor All Wallets rules thus artificially increase the market shares of the high-cost credit and signature debt products of American Express, MasterCard, and Visa in the payment card network services market. By facilitating consumer use of high-cost wallets, the Honor All Wallets rules ironically impede the adoption of digital wallets altogether. Accordingly, this Article argues that the Honor All Wallets rules should invite serious antitrust scrutiny.

"Public Policy Considerations Concerning Forum Selection Clauses in Insurance Contracts" Free Download
St. Louis University Law Journal, Forthcoming

CHAD G. MARZEN, Florida State University
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Forum selection clauses are present in many commercial contracts today. Since the 1972 decision of the United States Supreme Court in M/S Bremen v. Zapata, numerous courts throughout the country have decided on the issue of enforceability of forum selection clauses and the general question of enforceability has inspired a rich scholarly literature. Despite this rich literature, there is a gap in the recent law review literature concerning the enforceability of forum selection clauses in insurance contracts generally.

This Article intends to bridge that gap in the literature with a comprehensive examination of the enforceability of forum selection clauses in insurance contracts. It proposes a new balancing test for courts to utilize in determining whether to enforce a forum selection clause in an insurance contract. Just as courts utilize insurance principles in examining other provisions in insurance contracts, the proposed balancing test incorporates principles of insurance law in analyzing forum selection clauses.

"Introducing Imprévision into French Contract Law A Paradigm Shift in Comparative Perspective" 
in Styns/Jansen (eds), The French Contract Law Reform: a Source of Inspiration? (Intersentia 2016) 89–112

TOBIAS LUTZI, University of Oxford - Faculty of Law

After more than a century of academic debate, the reform of French contract law — the last step of which was taken with ordonnance n° 2016-131 du 10 février 2016 — is going to finally overrule the Cour de cassation’s infamous decision in Canal de Craponne, according to which even a 300-year-old contract cannot be modified to accommodate a change of circumstances that has rendered performance significantly more onerous for one of the parties. In order to assess the new provision for ‘imprévision’, this paper draws a comparison between French, English, and German law. It identifies three conceptually different approaches to the underlying tension between pacta sunt servanda and contractual fairness: the traditional French approach, which does not admit any exception to pacta sunt servanda, the English approach, which does accommodate a limited number of supervening circumstances by extending the existing exception for force majeure, and the German approach, which admits a specific exception for the problem of ‘imprévision’. The paper argues that the French reform is to be lauded for marking a paradigm shift from one of these approaches to another and critically discusses the forms this shift has taken in the projet d’ordonnance of 2015 and the final ordonnance of February 2016.

This paper was presented in 2015 at the 20th Ius Commune Congress in Leuven. It has been amended in February 2016 to reflect the changes that ordonnance n° 2016-131 has brought to the part of the reform that this paper discusses.

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About this eJournal

This eJournal distributes working and accepted paper abstracts dealing with contracts and commercial law. This includes papers and articles dealing with all aspects of contract law and all articles of the UCC, including commercial paper and secured transactions.

Editor: George G. Triantis, Stanford Law School

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LSN SUBJECT MATTER EJOURNALS

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Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
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Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Advisory Board

Contracts & Commercial Law eJournal

IAN AYRES
William K. Townsend Professor of Law, Yale University - Yale Law School, Yale University - Yale School of Management

RANDY E. BARNETT
Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago - Law School

CLAYTON P. GILLETTE
Max E. Greenberg Professor of Contract Law, New York University School of Law

ROBERT A. HILLMAN
Edwin H. Woodruff Professor of Law, Cornell Law School

AVERY W. KATZ
Milton Handler Professor of Law, Columbia University - Law School

RANDAL C. PICKER
Leffmann Professor of Commercial Law; Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory, University of Chicago - Law School

ALAN SCHWARTZ
Sterling Professor of Law, Yale Law School

MICHAEL J. TREBILCOCK
Professor and Chair in Law and Economics, University of Toronto - Faculty of Law

ELIZABETH WARREN
Leo E. Gottlieb Professor of Law, Harvard Law School