Articles scientifiques

Legal Indicators in Transnational Law Practice: A Methodological Assessment


Jurimetrics, The Journal of Law, Science, and Technology

hiver 2018, vol. 58, n°2, pp.163-209

Départements : Droit et fiscalité

With metrics and analytics spreading into every profession and discipline,evidence-based decision-making is on the rise. Legal practice is also concerned by this trend, as reflected in the growing use of quantitative data by law firms with respect to their corporate clients. Based on the examination of the potential uses of legal indicators in an evidence-based approach to transnational law practice, this article argues that indicators can provide lawyers operating in a transnational context with a relevant source of evidence to move towards a quantitatively informed practice of law. While most academic literature on legal indicators focuses on their governance effects, writings on evidence-based law have not yet investigated the contribution that indicators can make to law practice. This article aims to bridge this gap. It provides a methodological assessment of eight major business law indicators and illustrates four potential applications: (1) ranking and benchmarking, (2) screening, (3) measuring legal risk, and (4) supporting litigation. The article concludes that transnational lawyers should employ transnational legal indicators on a daily basis as an opportunity to reengineer legal practice along the lines of the management culture in which transnational firms now live in

Reflections on the concepts of norms and sources of law in commercial matters


Journal of Business Law

2018, vol. 3, pp.255-277

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : Case law; Codification; Commercial contracts; Commercial law; France; Guidelines; International trade; UNIDROIT

The Impact of the French Doctrine of Significant Imbalance on International Business Transactions


Journal of Business Law

février 2018, n°2, pp.148-168

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : Applicable law; Commercial contracts; France; Inequality of bargaining power; Unfair contract terms

This article examines the concept of “significant imbalance” (SI) under Frenchlaw and its impact on international business transactions. “Significant imbalance” is a legal standard meant to assess whether a contractual clause is unfair (abusive). Although initially restricted to consumer law, it has been extended to general contract law with the implementation of a reform entered into force on 1 October 2016. Previously, the Commercial Court of Parisin the ruling Ministry of Economy v Expedia, Inc (2015) had qualified SI as an “overriding mandatory provision” (loi de police) under Regulation 593/2008 on the applicable law to contractual obligations (Rome I). As a consequence, SI became operative in respect of international contracts despite an express choice of a foreign governing law made by the parties to the transaction. This article argues that, as a result of Expedia and the 2016 reform, French courts can interfere with international business transactions by striking down contractual terms that they deem unfair according to the SI standard. The analysis focuses on two key issues. On the one hand, notwithstanding recent judicial precedents, SI still fails to provide a reliable test for predicting which clauses or contracts are at risk of being deemed unfair. On the other hand, the legal arsenal supporting the French legislator’s disapproval of SI allocates great powerto French courts and the French Government to pursue tort lawsuits against foreign companies allegedly oppressing their commercial partners with SI clauses. Empirical evidence shows that these actions are highly successful compared with those commenced by private actors. The article concludesthat all these aspects, together with SI’s turbulent case law throughout the years, will give rise to uncertainty in international business transactions and may eventually disadvantage France in the global competition in such a field

Direito Global: Uma teoria adequada para se pensar o direito ambiental? - Global Law: A Proper Theory to Reflect on Environmental Law?


Revista de Direito Internacional - Brazilian Journal of Internation Law

2017, vol. 14, n°3, pp.9-19

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : Global Law, Legal Theory, Environmental Law

Globalization has enabled the emergence and rise of new normative formsand institutions that, in practice, have assumed the functions of globalgovernance. These new norms have not gone unnoticed by jurists. Thereare several authors and schools of thought which have used this phenomenonto develop theories that recurrently lie under the labels of “global law”or “transnational law”. Therefore, this article has as its main objective themapping of the main theories of global law in debate, besides presenting,briefly, the pragmatic approach that we defend at the Perelman Center forPhilosophy of Law. Next, we will analyze how this approach can be appliedto environmental law, through the example of the fight against globalwarming. And finally, we will argue that global law, at least in its pragmaticversion, represents an adequate theoretical framework for thinking aboutenvironmental law

Fair and Equitable Treatment in Investor-State Dispute Settlement: A New Interpretative Framework


Journal of Business Law

2017, vol. 8, pp.632-650

Départements : Droit et fiscalité, GREGHEC (CNRS)

The fair and equitable treatment (FET) standard has become the cornerstone of investor-state dispute settlement, and one of the most disputed notions in international business law. With investors facing increasing uncertainty, and states moving closer to denouncing treaties they see as limiting their sovereign right to regulate, FET has come to pose a significant risk to the entire investor-state dispute resolution system. This paper outlines an alternative way to consider FET, by acknowledging its thick and indeterminate character as a legal standard. It argues that previous traditional taxonomies have inherent limitations, and that practitioners should instead seek to understand the FET standard through the lens of the rule of law. The paper offers an analysis of the jurisprudence of the International Centre for the Settlement of Investment Disputes (ICSID) to show that three principles of the rule of law – due process, legal certainty, and the prohibition of arbitrariness – constitute an operational and certain, yet flexible framework of interpretation for the application of the FET standard