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Academie Internationale de Droit Compare International Academy of Comparative Law
Ba§ak Ba§oglu Editor
The Effects of Financial Crises on the Binding Force of Contracts - Renegotiation, Rescission or Revision
^ Springer
Editor
Ba§ak Basoglu
Istanbul Kemerburgaz University Istanbul, Turkey
Preface
ISSN 2214-6881 ISSN 2214-689X (electronic)
Ius Comparatum - Global Studies in Comparative Law ISBN 978-3-319-27254-2 ISBN 978-3-319-27256-6 (eBook)
DOI 10.1007/978-3-319-27256-6
Library of Congress Control Number: 2016930394
Springer Cham Heidelberg New York Dordrecht London © Springer International Publishing Switzerland 2016
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Growing interconnectedness of global economies facilitates the spread of the effects of the financial crises. Financial crises cause severe difficulties for persons to fulfill their contractual obligations. During the financial crises, performance of contractual obligations may become excessively onerous or may cause an extreme loss for one of the contracting parties and consequently destroy the contractual equilibrium and legitimate the interventions to the contract. But who will bear the risk arising from these circumstances?
This question, asked during the uncomfortable economic climate, leads to one of the most controversial dilemmas of the contract law: whether the binding force of the contract is absolute or not. In other words, unstable economic circumstances impose the need to devote special attention to review and perhaps to narrow the binding nature of a contract. Principle of good faith and fair dealing motivate a variety of theoretical bases in order to overcome the legal consequences of financial crises. All these theoretical bases are analyzed in this book with special focus on the available remedies, namely, renegotiation, rescission or revision, and the circumstances that enable the revocation of these remedies.
The legal approaches of various jurisdictions provide different answers and solutions to this problem. These differences seem to be determined predominantly by the frequency and intensity of financial crises in each jurisdiction and also by the influence of the financial, political, and social forces of the respective country.
The chapters in this collection are based on papers originally presented at the XlXth Congress of the International Academy of Comparative Law, held in Vienna, July 2014.1 am grateful to all reporters who were willing to reformulate and submit their reports considering the debates, which aroused great interest and appreciation during the session in the Congress.
Preface
I would like to express my sincere gratitude to general reporter Prof. Dr. Rona (TrtlltentS Serozan who provided me the opportunity to edit this book. I also appreciate the KsVllW l
unwavering support of my colleague Asst. Prof. Dr. Kadir Berk Kapanci. Also, I would like to thank the organizers of the conference, both at the Paris headquarters * of the International Academy of Comparative Law and in Vienna. Last but not least, special thanks are due to Neil Olivier, Diana Nijenhuijzen, and their colleagues from Springer for their professional editorial efforts.
Istanbul 2015 BasakBasoglu *
Part I   General Report and Original Questionnaire
1 General Report on the Effects of Financial Crises on the Binding Force of Contracts: Renegotiation,
Rescission or Revision............................................................................. 3
Rona Serozan
Part II  National Reports
2 From Crisis to Crisis: Weakness of Contracts in Argentina............... 33
Julio C6sar Rivera
3 Keeping the Balance: The Effects of Financial Crises
on Contracts Under Brazilian Law....................................................... 53
Anderson Schreiber
4 Les effets exerces par les crises financieres sur la force obligatoire des contrats: certitudes et incertitudes
du droit quebecois en matiere d'imprevision....................................... 59
Elise Charpentier and Nathalie Vezina
5 Can Financial Crisis Lead to the Application of the Institute
of Changed Circumstances Under Croatian Law?.............................. 83
Maja Bukovac Puvaca, Gabrijela Mihelcic, and Iva Tuhtan Grgid
6 Elimination of the Impacts of Financial Crisis on Legal Relationships According to Czech Private Law................................... 101
Marketa Seluckä
7 Financial Crises and Danish Contract Law:
No Room for Hardship........................................................................... 121
Mads Bryde Andersen and Joseph Lookofsky
viii Contents
8 Crises financieres et contrats: le droit positif francais refuse la revision d'un contrat devenu desequilibre mais le projet
de reforme entr'ouvre la porte a 1'imprevision.................................... 137
Remy Cabrillac
9 Financial Turmoil as a Change of Circumstances
Under Greek Contract Law................................................................... 145
Nikolaos A. Davrados
10 "All Roads Lead to Rome": The Multiple Grounds Under Italian Law to Challenge a Contract Due
to Supervening Changes of Circumstances.......................................... 163
Marco Torsello
11 Effects of a Bubble Economy on the Binding Force of Contracts:
The 1990s Experience of Japan and Its Implications.......................... 191
Shugo Kitayama
12 The Effects of Crises on the Binding Force
of Contracts: Polish Solutions................................................................ 207
Wojciech Robaczyriski
13 Discussing the (Ab)Normality of Financial Crises as a Relevant Change of Circumstances Under Portuguese Law.............................. 221
Manuel Carneiro da Frada and Mariana Fontes da Costa
14 L'imprevision dans le Nouveau Code Civil roumain
enfante par la crise economique mondiale............................................ 243
Dumitru Dobrev and Marilena Uliescu
15 The Russian Federation Legislation on the Effects of Financial Crises on the Binding Force
of Contracts: Renegotiation, Rescission or Revision........................... 255
Nataliya Georgievna Doronina and Natalia Gennadievna Semilyutina
16 The Effects of the Global Financial Crisis on the Binding Force of Contracts: A Focus on Disputes over Structured
Notes in Taiwan...................................................................................„.. 265
Chang-hsien Tsai
17 Certainty Over Clemency: English Contract Law
in the Face of Financial Crisis................................................................ 285
Horace Yeung and Flora Huang
18 Financial Crisis and the Remedy of Rescission
in the United States................................................................................. 307
Aditi Bagchi
19 The Adaptation of the Contract in Turkish Law.................................. 313
Contributors
Mads Bryde Andersen Faculty of Law, University of Copenhagen, Copenhagen, Denmark
Aditi Bagchi Law School, Fordham University, New York„NY, USA
Ba§ak Basoglu Faculty of Law, Istanbul Kemerburgaz University, Istanbul, Turkey
Basak Baysal Faculty of Law, Istanbul University, Istanbul, Turkey
Remy Cabrillac Faculte de droit, University de Montpellier, Montpellier, France
Elise Charpentier Universite de Montreal, Montreal, Quebec, Canada
Mariana Fontes da Costa Law Department of the Faculty of Economics, University of Porto, Porto, Portugal
Nikolaos A. Davrados Loyola University New Orleans, College of Law, New Orleans, Louisiana, USA
University of Nicosia, Department of Law, Nicosia, Cyprus University of Athens, School of Law, Athens, Greece
Dumitru Dobrev Legal Research Institute "Acad. Andrei Rädulescu" of Romanian Academy, House of Romanian Academy, Bucharest, Romania
Nataliya Georgievna Doronina Private International Law Department, Institute of Legislation and Comparative Law, Moskow, Russian Federation
Manuel Carneiro da Frada Faculty of Law, University of Porto, Porto, Portugal
Iva Tuhtan Grgic" Faculty of Law, University of Rijeka, Rijeka, Croatia
Flora Huang School of Law, University of Leicester, Leicester, UK
Shugo Kitayama School of Law, Seikei University, Tokyo, Japan
X
Contributors
Joseph Lookofsky Faculty of Law, University of Copenhagen, Copenhagen, Denmark
Gabrijela Mihelčič Faculty of Law, University of Rijeka, Rijeka, Croatia
Maja Bukovac Puvača Faculty of Law, University of Rijeka, Rijeka, Croatia
Julio César Rivera Faculty of Law, University of Buenos Aires, Buenos Aires, Argentina
Wojciech Robaczyňski Faculty of Law and Administration, University of Lodž, Lodž, Poland
Anderson Schreiber Faculty of Law, Rio de Janeiro State University, Rio de Janeiro, Brazil
Markéta Selucká Faculty of Law, Masaryk University, Brno, Czech Republic
Natalia Gennadievna Semilyutina Private International Law Department, Institute of Legislation and Comparative Law, Moskow, Russian Federation
RonaSerozan Faculty of Law, Istanbul Bilgi University, Istanbul, Türkey Marco Torsello School of Law, University of Verona, Verona, Italy School of Law, New York University, New York, NY, USA
Cbang-hsien Tsai Institute of Law for Science and Technology, National Tsing Hua University, Hsinchu, Taiwan
Marilena Uliescu Legal Research Institute "Acad. Andrei Rädulescu" of Romanian Academy, House of Romanian Academy, Bucharest, Romania
Nathalie Vézina Universite de Sherbrooke, Sherbrooke, Quebec, Canada
Horace Yeung School of Law, University of Leicester, Leicester, UK
About the Authors
T
Mads Bryde Andersen graduated from the University of Copenhagen in 1981 and practiced law as a Danish advocate in the years thereafter. In 1991, he was appointed Professor of Law at the same university. His authorship comprises contract law, the law of obligations, pension law, IT law, intellectual property law, and the law of advocacy. He defended his Dr.jur. degree in 1989 on the basis of his doctoral dissertation on computer liability issues (1988). He is chairman of the governing board of the Danish Financial Supervisory Authority (FAS) and a frequent arbitrator in domestic Danish and international arbitrations.
Aditi Bagchi is Professor of Law at Fordham University Law School. She teaches in the areas of contract and labor law. Her research concerns the nature of contractual obligation, contract interpretation, and questions in political and moral philosophy as they arise in contract. Professor Bagchi obtained her J.D. from Yale Law School, an M.Sc. in Economic and Social History from Oxford University, and an A.B. in Government and Philosophy from Harvard College.
Basak Baysai is Associate Professor of Civil Law at Istanbul University Faculty of Law. She obtained both her bachelor degree in law and her doctorate in private law from Istanbul University and her LL.M. degree from Paris II Pantheon-Assas. She is member of Executive Committee of International Association of Legal Sciences and member of Association Henri Capitant des amis de la culture juridique fran-caise, Societe de legislation compare, European Law Institute, and Freunde des Max-Planck-Instituts.
Remy Cabrillac is Professor at the Faculty of law of the University of Montpellier (France). He has published many books including Law of Obligations, The Codifications, General Introduction at Law, Dictionary of Law, Matrimonial Law, and more than 200 articles. He has participated at many conferences throughout the world about his specialities.