The law and economics of good faith in the civil law of contract

Good faith plays a central role in most legal systems, yet appears to be an intractable concept. This article proposes to analyse it economically as the absence of opportunism in circumstances which lend themselves to it. One of the objectives underlying the law of contract on an economic view is to curtail opportunism. In spelling out what this means, the paper proposes a three-step test: bad faith is present where a substantial informational or other asymmetry exists between the parties, which one of them turns into an undue advantage, considered against the gains both parties could normally expect to realise through the contract, and where loss to the disadvantaged party is so serious as to provoke recourse to expensive self-protection, which significantly raises transactions costs in the market. The three-step test is then used to analyse a set of recent decisions in international commercial transactions and three concepts derived from good faith: fraud, warranty for latent defects and lesion.

Proceedings of the inaugural construction management and economics ‘Past, Present and Future’ conference CME25, 16-18 July 2007, University of Reading, UK

This conference was an unusual and interesting event. Celebrating 25 years of Construction Management and Economics provides us with an opportunity to reflect on the research that has been reported over the years, to consider where we are now, and to think about the future of academic research in this area. Hence the sub-title of this conference: “past, present and future”. Looking through these papers, some things are clear. First, the range of topics considered interesting has expanded hugely since the journal was first published. Second, the research methods are also more diverse. Third, the involvement of wider groups of stakeholder is evident. There is a danger that this might lead to dilution of the field. But my instinct has always been to argue against the notion that Construction Management and Economics represents a discipline, as such. Granted, there are plenty of university departments around the world that would justify the idea of a discipline. But the vast majority of academic departments who contribute to the life of this journal carry different names to this. Indeed, the range and breadth of methodological approaches to the research reported in Construction Management and Economics indicates that there are several different academic disciplines being brought to bear on the construction sector. Some papers are based on economics, some on psychology and others on operational research, sociology, law, statistics, information technology, and so on. This is why I maintain that construction management is not an academic discipline, but a field of study to which a range of academic disciplines are applied. This may be why it is so interesting to be involved in this journal. The problems to which the papers are applied develop and grow. But the broad topics of the earliest papers in the journal are still relevant today. What has changed a lot is our interpretation of the problems that confront the construction sector all over the world, and the methodological approaches to resolving them. There is a constant difficulty in dealing with topics as inherently practical as these. While the demands of the academic world are driven by the need for the rigorous application of sound methods, the demands of the practical world are quite different. It can be difficult to meet the needs of both sets of stakeholders at the same time. However, increasing numbers of postgraduate courses in our area result in larger numbers of practitioners with a deeper appreciation of what research is all about, and how to interpret and apply the lessons from research. It also seems that there are contributions coming not just from construction-related university departments, but also from departments with identifiable methodological traditions of their own. I like to think that our authors can publish in journals beyond the construction-related areas, to disseminate their theoretical insights into other disciplines, and to contribute to the strength of this journal by citing our articles in more mono-disciplinary journals. This would contribute to the future of the journal in a very strong and developmental way. The greatest danger we face is in excessive self-citation, i.e. referring only to sources within the CM&E literature or, worse, referring only to other articles in the same journal. The only way to ensure a strong and influential position for journals and university departments like ours is to be sure that our work is informing other academic disciplines. This is what I would see as the future, our logical next step. If, as a community of researchers, we are not producing papers that challenge and inform the fundamentals of research methods and analytical processes, then no matter how practically relevant our output is to the industry, it will remain derivative and secondary, based on the methodological insights of others. The balancing act between methodological rigour and practical relevance is a difficult one, but not, of course, a balance that has to be struck in every single paper.

The Law and Economics of Hedge Fund Regulation: A Comparison between the U.S. and the EU

This doctoral dissertation seeks to assess and address the potential contribution of the hedge fund industry to financial instability. In so doing, the dissertation investigates three main questions. What are the contributions of hedge funds to financial instability? What is the optimal regulatory strategy to address the potential contribution of hedge funds to financial instability? And do new regulations in the U.S. and the EU address the contribution of hedge funds to financial instability? With respect to financial stability concerns, it is argued that despite their benefits, hedge funds can contribute to financial instability. Hedge funds’ size and leverage, their interconnectedness with Large Complex Financial Institutions (LCFIs), and the likelihood of herding behavior in the industry can potentially undermine financial stability. Nonetheless, the data on hedge funds’ size and leverage suggest that these features are far from being systemically important. In contrast, the empirical evidence on the interconnectedness of hedge funds with LCFIs and their herding behavior is mixed. Based on these findings, the thesis focuses on one particular aspect of hedge fund regulation: direct vs. indirect regulation. In this respect, a major contribution of the thesis to the literature consists in the explicit discussion of the relationships between hedge funds and other market participants. Specifically, the thesis locates the domain of the indirect regulation in the inter-linkages between hedge funds and prime brokers. Accordingly, the thesis argues that the indirect regulation is likely to address the contribution of hedge funds to systemic risk without compromising their benefits to financial markets. The thesis further conducts a comparative study of the regulatory responses to the potential contribution of hedge funds to financial instability through studying the EU Directive on Alternative Investment Fund Managers (AIFMD) and the hedge fund-related provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.

Copyright Exhaustion Rationales and Used Software: A Law and Economics Approach to Oracle v. UsedSoft

This article aims to provide courts and policymakers with an analytical framework that, building upon the traditional rationales of IP exhaustion doctrine, identifies factors which advocate for a modulation or flexibilization of the role of exhaustion in copyright law. Factors include (i) the personal features of acquirers of copies of copyrighted works, distinguishing between consumers and commercial users; (ii) whether post-sale restrictions have been adequately communicated to acquirers and have been agreed in the contract or license; (iii) the degree of complexity of the acquired goods and their prospects of productive uses and interoperability; (iv) the role of other exclusive rights in providing rightholders with indirect control over uses of the copies in the aftermarket; (v) the impact of post-sale restraints in preventing opportunism in long-term contracts and in reducing deadweight losses created by IP pricing; and (vi) the temporal scope of post-sale restraints. After setting out this analytical framework, the ECJ Judgement in Oracle v. UsedSoft is discussed.