"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, March 2, 2010

SSRN Articles

Barbara Mescher, Business Ethics and the Law of Contract,
It is essential for business managers to be able to rely upon the performance of promises made in legally binding contracts. This article examines the role of business ethics in contract performance. It demonstrates that the law alone is not enough to ensure performance because the law is a narrower fi eld than business ethics. Law has drawn upon the broader discipline, ethics, to form the foundation of the law. Ethics is about moral standards, and ethical philosophies explain moral standards. Business ethics has applied these philosophies to business. The law and business ethics are two different disciplines although they are at some points integrated and at others complementary. An appreciation of the relationship between applied ethics and the law is necessary to assist managers to appreciate that business ethics is as much part of business as is commercial law. This is particularly the case in the law of contract. This article encourages managers to embrace the principles of business ethics and engage in ethical decision-making as a necessary part of their business. Trust and honesty are ethical principles and they are basic elements of all business operations, especially entry into contracts. 
[In this Article, the author seeks to argue that "contractual performance is assisted by the application of business ethics principles". Further the author argues that ""the law alone does not ensure contractual performance. Rather, the principles of business ethics, in particular honesty and trust, encourage contractual performance. If business managers did not believe in the honesty of their potential contract parties, no contract would be formed. It would simply be too great a risk commercially". No business manager would rely on her expectation that the other potential contract party would act honestly. Rather, she would ensure that (a) the entity which she represents gets the best deal and (b) the entity which she represents is best protected. From this point of view, it is difficult to sustain the author's arguments that belief in honesty and trust encourage contractual performance. ]

Tai-Heng Cheng, Some Limits to Apply Chinese Med-Arb Internationally,  
Recently combined arbitration and mediation processes have been gaining in appeal as parties seek to resolve disputes more expeditiously and at reduced costs. Issues relating to confidentiality, procedural due process and the effectiveness of the mediation step in such a hybrid process have been the subject of several law review articles. Cross-cultural differences relating to such mixed processes have been noted. We have gathered in this issue reflections on med-arb and arb-med from jurisdictions around the world. We hope that this sharing of perspectives on the efficacy and fairness of med-arb and arb-med will assist ADR specialists and parties in designing their dispute resolution process. 

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