Browsing by Author "Beletskaya (Santamala), Maria"

This study investigates the nature and economic effects of the contractual remedies and their role and specifics of application in the contemporary international trade, demonstrated on the example of standard construction contracts. Various remedies are examined within several legal orders across Civil and Common law traditions from the position of their convergence and utilization in the international contracting. Main focus of the research is on the economic efficiency of the contractual remedies as elements of integrated system, flexible and adjustable due to changes (internal and external to the parties’) in the circumstances after conclusion of the contract. Purpose of the study is to analyze possibilities for further harmonization of the contractual remedies’ regulation and adoption of their more efficient forms, developed within different jurisdictions and soft law codifications. These improved forms, as discussed in the work, are capable of enhancing economic efficiency of individual remedies and their productive incorporation in a cohesive remedial system, enabling contractual parties to divide various interests inside one contract and vary levels of their respective protection, exploiting suitable function of each remedy. First part is dedicated to studying definition of remedy, its functions and approach to it, developed within various contractual theories; it also briefly examines general differences between Common and Civil law systems, explaining dissimilarities in formation of remedies in various legal orders. In the second part I analyze specifics of each remedy in respective jurisdictions, including analysis of local statutory and case law, considering laws of France, Germany, UK, USA, and Finland and international codifications, underlying economic effects and drawbacks of every remedy. Remedies in question are: specific performance; damages’ compensation; termination of contract; liquidated damages and penalty; price reduction and performance withholding. Third chapter is devoted to history of development of the construction contract, combining elements of sale and service; application of each remedy in the standard construction contracts in their dynamic system and methods of improving economic efficiency. The research concludes that each remedy may simultaneously have various functions (preventive, restorative and corrective) regardless of compensatory or non-compensatory criterion, which currently becomes irrelevant. Remedial system adopted in the contract should be flexible and easy adjustable to the changes in the post-contractual circumstances. Following the ongoing process of normative convergence various legal orders should be harmonized; they should recognize autonomy of the parties to create own enforceable hierarchy of remedies within the contract and should ensure judicial intervention solely from the angle of safeguarding just and fair outcome. Study further determines that measures of enhancing economic efficiency of each remedy have been already developed in the practice and only need recognition and change of attitude in the respective national systems, widening perspectives of interpretation and qualification.