Commercial agency and the duty to act in good faith

Under Directive 86/653/EEC on the co-ordination of the laws of European Union Member States relating to self-employed commercial agents, commercial agents have an obligation to act ‘dutifully and in good faith’ (the Obligation). This article considers the impact that this general good faith clause has had upon the UK legal order. It first analyses the Obligation, assessing its scope, function and content. It then reviews the choices made by the UK legislature in implementing this duty and scrutinises the manner in which it has been construed and applied by UK courts, as well as commentators. Finally, it charts the areas of the pre-existing common law agency rules that are affected by this imported notion and appraises the resulting alterations to the positive law

Intellectual property license contracts: reflections on a prospective UNCITRAL project

IP licenses are the leading lady of the information age. The economic and strategic significance of this contract archetype have grown exponentially over the past 40 years. Under this glaring spotlight, it has become progressively more apparent that the legal framework governing these transactions is ill-suited to the role that they play in the modern digital environment. The applicable norms are scattered throughout diverse areas of the law, rendering a holistic appraisal onerous, and causing both doctrinal underdevelopment and legal uncertainty. Moreover, a comparative analysis of IP licensing regimes across jurisdictions reveals a jarring lack of alignment that severely hinders international transactions. The United Nations Commission on International Trade Law (UNCITRAL) has been contemplating the possibility of a project in this area of the law for over a decade. Though Member States have battled lingering reservations, support has been increasing steadily among practitioners and academics, and is verging on achieving critical mass. This paper provides the necessary theoretical infrastructure for this initiative by expounding its possible scope, content and form. The objective is not to articulate or advocate a single, concrete proposal, but rather to identify the categories of legal issues that UNCITRAL Member States would face in the elaboration of this project and lend color to the types of decision-making processes required to attain consensus solutions. On the basis of this analysis, a strategy to advance this project to its next phase is proposed

Access To Medicines and Pharmaceutical Patents: Fulfilling The Promise of TRIPS Article 31bis

The Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) is one of the cornerstones of the World Trade Organization (WTO). TRIPS requires all WTO member countries (Members) to adopt minimum standards for the protection of intellectual property (IP). This international treaty is highly controversial. Its critics claim that TRIPS imposes a wealth transfer from poorer Members (net IP importers) to richer ones (net IP exporters). Its supporters maintain that trade between developing and developed economies cannot thrive without an internationally-harmonized IP framework. The most contentious issue has long been the impact of the TRIPS patents regime on access to medicines. Our Article contributes to this debate by illuminating an oft-overlooked facet of TRIPS: Article 31bis. Enacted following the Doha Declaration of 2001, this provision was designed to enable Members with inadequate manufacturing capabilities to import patented pharmaceuticals produced by generics manufacturers under an export compulsory license (ECL) issued by another Member. Initially welcomed with enthusiasm, ECLs have enjoyed minimal success. We propose an explanation for the current fallow state of Article 31bis and suggest approaches to fulfill its promise. First, we identify and analyze the factors that deter Members from making recourse to ECLs. Second, we posit that, under current law, pooled procurement is the only viable avenue to exploit ECLs and elucidate pathways for Members to pursue this strategy. Third, we advance the view that TRIPS reform is necessary to unlock fully the potential of Article 31bis. We proffer targeted amendments to enhance the flexibility and economic viability of ECLs, detailing the ways in which these revisions would bolster the flow of patented pharmaceuticals from the Global North to the Global South. The Covid-19 pandemic has reawakened public opinion to the glaring disparity in access to medicines worldwide. It has also exposed the unprecedented extent to which production capacity for mRNA vaccines, antivirals, monoclonal antibodies and other life-saving medicines is concentrated in a small number of wealthy countries. It can only be hoped that this realization will spark the impetus to reform Article31bis

Floating Liens Over Crypto-in-Commerce

Commercial law and crypto are colliding. Against the backdrop of explosive growth (and discord) in the digital asset market, there has been a series of recent revisions to American commercial law aimed at addressing new and emerging technologies. These changes to the Uniform Commercial Code (UCC) are designed to facilitate the buying and selling of digital assets as well as their use as collateral. However, to date, the literature exploring these changes has mainly focused on understanding the basics of the new regime. This Essay moves beyond that baseline by showing how the UCC amendments can be used to structure more complex secured credit arrangements that tap into the borrowed capital potential of blockchain technology. Specifically, this study explains how these recent law reforms—in concert with the inherent capabilities of distributed ledgers, smart contracts, and cryptography—can be used to create a floating lien (the quintessential financing device in American commercial law) over crypto inventory

Floating Liens Over Crypto-in-Commerce

Commercial law and crypto are colliding. Against the backdrop of explosive growth (and discord) in the digital asset market, there has been a series of recent revisions to American commercial law aimed at addressing new and emerging technologies. These changes to the Uniform Commercial Code (UCC) are designed to facilitate the buying and selling of digital assets as well as their use as collateral. However, to date, the literature exploring these changes has mainly focused on understanding the basics of the new regime. This Essay moves beyond that baseline by showing how the UCC amendments can be used to structure more complex secured credit arrangements that tap into the borrowed capital potential of blockchain technology. Specifically, this study explains how these recent law reforms—in concert with the inherent capabilities of distributed ledgers, smart contracts, and cryptography—can be used to create a floating lien (the quintessential financing device in American commercial law) over crypto inventory

The Intersection of NFTs and Structured Finance

Blockchain technology, cryptocurrencies, stablecoins and non-fungible tokens (NFTs) continue to invade financial markets. Whether through partnerships between financial institutions and tech firms or through in-house initiatives at some of the nation’s largest banks, blockchain-based products, services, and transactional structures are a major point of interest. In a recent work by Professor Steven Schwarcz, the growing NFT market is analyzed using the traditional tools of structured finance. Creating a new conceptual model called non-cash-flow monetizations, Professor Schwarcz reveals the risks to investors and markets, if the tokenization of non-traditional and largely illiquid assets proliferates. Having identified the potential harms, he offers a package of regulatory solutions grounded in public law frameworks, which might mitigate, though not completely eliminate, these potential downsides. In this Essay, we review Schwarcz’s Article and highlight how its insights advance the understanding of novel blockchain-based transactions and their disruption of the existing financial landscape. Additionally, we provide an analysis of the private law dimension of non-cash flow monetizations—a perspective we believe is absent from much of the public discourse and relevant academic literature

Commercial Law Intersections

Commercial law is not a single, monolithic entity. It has grown into a dense thicket of subject-specific branches that govern a broad range of transactions and corporate actions. When one of such dealings or activities falls concurrently within the purview of two or more of these commercial law branches—such as corporate law, intellectual property law, secured transactions law, conduct and prudential regulation—an overlap materializes. We refer to this legal phenomenon as a commercial law intersection (CLI). CLIs are ubiquitous. Notable examples include traditional commercial transactions, such as bank loans secured by shares, supply chain financing, or patent cross-licensing agreements, as well as nascent FinTech arrangements, such as blockchain-based initial coin offerings and other dealings in digital tokens. CLIs present a multi-faceted challenge. The unharmonious convergence of commercial law branches generates failures in coordination that both increase transaction costs and distort incentives for market participants. Crucially, in the most severe cases, this affliction deters business actors from entering into the affected transactions altogether. The cries of scholars, judges, and practitioners lamenting these issues have grown ever louder; yet methodical, comprehensive solutions remain elusive. This Article endeavors to fill this void. First, it provides a comprehensive analysis of CLIs and the dynamics that give rise to coordination failures. Drawing from systems theory and jurisprudence, it then identifies the deficiencies of the most common approaches used to reconcile tensions between commercial law branches, before advancing the concepts of “legal coherence” and “unity of purpose” as the key to addressing such shortcomings. Finally, leveraging these insights, it formulates a normative blueprint, comprising a two-step method which aims to assist lawmakers, regulators, and courts in untangling the Gordian knot created by CLI coordination failures

Personal Property Security Law: International Ambitions and Local Realities

Personal property security law is a key element of “access to credit” and “financial inclusion”. The prevailing view is that a legal framework enabling the effective use of personal property as collateral markedly benefits both lenders and borrowers. Lenders can offer financing at a lower cost thanks to reduced credit risk; borrowers can access funding by leveraging the otherwise unavailable value of the assets integral to their operations.Over the past century, the priorities of personal property security law have evolved fundamentally. As small and medium-sized enterprises (SMEs) and individual entrepreneurs have become the growth engine of both developed and developing economies, legislators have grown sensitive to the financing needs of these entities. In parallel, the advent of the information society has demanded that lawmakers address squarely the rules governing the use as collateral of intangibles such as “receivables”, “intermediated securities”, “non-intermediated securities”, and “intellectual property rights”, rather than confine their gaze to tangibles such as industrial machinery, mobile equipment and inventory. Concurrently, the increasingly transnational nature of both economic development policies and commercial activity have engendered the need for global principles and standards for asset-based lending.To address these novel priorities and promote a healthy and vibrant credit ecosystem, international and regional organizations have undertaken projects aimed at modernizing and harmonizing personal property security law. Over time, these efforts have yielded a panoply of legal instruments. Binding conventions have been adopted to unify the rules of discrete facets of personal property security law, while soft-law texts, such as model laws and legislative guides, have been formulated to supply comprehensive legal templates to lawmakers keen to revise their domestic legal regimes. Nevertheless, states have struggled to assimilate these international efforts into their domestic legal systems. Common law jurisdictions have been loath to abandon the familiarity and safety of the path paved by centuries of case law; in similar vein, civil law jurisdictions have resisted inducements to renovate the normative infrastructure erected by the codifications of the 19th century.This Chapter explores the tension between international ambitions and local realities, with a special focus on the issues encountered in civil law jurisdictions. To this end, the case of Italy is examined as a living experiment in comparative personal property security law. In this jurisdiction, the recent enactment of a non-possessory security device, absent a comprehensive reform of the country’s civil code affords important lessons for any civil law system which might be pondering personal property security law reforms. More profoundly, it epitomizes the gap that separates the aspirations of international legal instruments from their effective implementation in domestic contexts. This analysis is divided into two parts. The first reviews international and regional legal initiatives that have shaped the personal property law landscape and then identifies a set of core tenets shared among them. In the second part, attention shifts to Italy, scrutinizing both the personal property security legal edifice originally constructed in this jurisdiction and the attempts to overhaul it that have taken place over the past three decades. This is followed by a critical appraisal of the current state of the law, by reference to the aforementioned core tenets of personal property law reform

The Era of Chinese Global Hegemony: Denaturalizing Money in the Early Modern World

This article argues that the commodity “nature” ascribed to early modern money should be understood as an ideological effect of Chinese domination of the early modern global monetary system. In the three centuries before 1800, Chinese demand for silver anchored a global system that made silver valued by weight and fineness the apparently natural money of the world, just as it in late Ming and Qing China. We argue that this naturalization should be understood as resulting from Chinese power, and that the early modern era is perhaps best understood as an era of Chinese global hegemony. We follow the effects of this Chinese monetary hegemony through three different fields. First, we trace it through early modern English financiers and philosophers’ formulation of the ideal qualities of a universal money, deliberately based on the Chinese model. Second, we show the importance of Chinese demand for silver for evoking and determining the character of the British Empire in India. And finally, we show how officials naturalized silver as money in early modern Ottoman statecraft