Users without a subscription are not able to see the full
content. Please,
subscribe
or
login
to access all content.
Contents
- Preliminary Material
- Main Text
- Ch.1 An Introduction to the General Principles of Law and International Due Process
- Ch.2 Modern Applications of the General Principles of Law
- Preliminary Material
- A Good Faith in Contractual Relations
- B Abuse of Rights and the Principle of Proportionality
- C Estoppel
- D The Prohibition on Advantageous Wrongs and Unjust Enrichment
- E Corporate Separateness and Limited Liability
- F The Principles of Causation and Reparation
- G The Principles of Responsibility and Fault
- Ch.3 Modern Applications of the Principles of International Due Process
- Epilogue: General Principles of Law and International Due Process as a Function of Private International Law
- Further Material
- Annex of Cases
- The General Principles of Good Faith and Responsibility
- A Good Faith in Contractual Relations
- Pacta sunt servanda —agreements are to be observed
- Obligations should be carried out according to the good faith and mutual intention of the parties at the time the agreement was concluded
- Ut res magis valeat quam pereat —let the thing have effect rather than perish
- C ontra proferentem —the party who drafted an agreement cannot rely on its ambiguity, and any such ambiguity shall be interpreted against that party’s interest
- Parties can be held to contractual obligations when they conduct themselves as if a contract had entered into force
- Good faith implies a duty to maintain the status quo in juridical relations
- Clausula rebus sic stantibus —binding so long as circumstances remain the same
- The occurrence of unforeseen events that renders performance impossible constitutes force majeure, and is a valid excuse for the non-performance of a contract
- Reparation is a necessary consequence of a party’s failure to fulfill an agreement
- B Abuse of Rights and the Related Principle of Proportionality
- C Estoppel: Allegans Contraria Non Est Audiendus
- D The Prohibition on Advantageous Wrongs— Nullus Commodum Capere Potest De Sua Iniuria Propria —and Unjust Enrichment
- Nullus commodum capere potest de sua iniuria propria— No advantage may be gained from one's own wrong
- Ex dolo malo non oritur actio —an action at law does not arise from grave deceit
- No party can be allowed by its own abusive act to bring about a nonperformance of a condition precedent to its own obligation
- Where there is an unjustified and unjust enrichment of one party to the detriment of the other, and no contractual or other remedy available to the injured party, the law will demand reparation
- Arbitration clauses continue to be operative, even though the contract containing the arbitration clause is null and void
- E Corporate Separateness and Limited Liability
- F The Principles of Causation and Reparation
- Jure causa proxima non remota inspicitur —the proximate cause rather than the remote one is to be looked to
- Wherever there is an invasion of a right, there is a remedy— ubi ius ibi remedium est— and that remedy must wipe out all the consequences of the illegal act and re-establish the situation which would have existed had that act not been committed
- A party claiming a breach of contract is obliged to take such measures as are reasonable in the circumstances to mitigate its loss resulting from the breach
- The same damages may not be compensated twice
- G The Principles of Responsibility and Fault
- A Good Faith in Contractual Relations
- The General Principles of Law in Judicial Proceedings and International Due Process
- A Notice and Jurisdiction
- B Judicial Impartiality and Judicial Independence
- C Procedural Equality and the Right to be Heard
- D The Prohibition of Corruption and the Nullifying Effect of Fraud: Fraus Omnia Corrumpit
- E Evidence and Burden of Proof
- Actori incumbit onus probandi— the burden of proof belongs to the proponent
- Courts and tribunals may take notice of facts which are official or concern matters of common knowledge or public notoriety
- A litigant must produce the most trustworthy evidence in its possession to support its claim
- Proof may be administered by means of circumstantial evidence
- Proof acquired by unlawful or otherwise improper means should be stricken out from the record, as should evidence of questionable authenticity
- F The Principle of Res Judicata
- Parties to a final judgment or award are obligated to carry it out, and are prohibited from raising the same matter again
- Successive courts and tribunals must defer to the jurisdiction of a prior court or tribunal if the same matter is submitted for adjudication a second time, and all of the rights, issues, and facts that were distinctly put in issue and distinctly determined in the prior case
- The General Principles of Good Faith and Responsibility
- Name Index
- Subject Index
- Annex of Cases