Sorbonne Student Law Review - Revue juridique des étudiants de la Sorbonne

The aircraft leasing contracts in the pandemic era

Tanya Agarwal — Fri, 22 Dec 2023 00:00:00 +0100

The majority of aircraft are acquired on leasing agreements where the financial burden is on the lessor because such agreements involve financing of heavy equipment for the lessee. Therefore, to ensure that the lessee fulfils his obligation towards the payment of lease, Hell or High-water clause is drafted in the contract. This enforces payment by the lessee to the lessor irrespective of any circumstantial change which makes it difficult for the lessee to pay. However, due to the pandemic, the airline industry is suffering from a severe cash crunch as a result it has become difficult for them to honour their upcoming contractual obligations. The airline companies are debating to invoke Force Majeure in these contracts to avoid liability for non-performance, but considering the nature of such contracts and the legal principles adopted in Private International Air Law, taking such measures might pose several challenges. Therefore, this paper proposes the application of Hardship codified in the UNIDROIT Principle of International Commercial Contracts so that airlines can renegotiate the contract with the lessors and avoid liability for delayed or non-performance of the contract instead of completely avoiding their contractual obligation by invoking Force Majure. This will provide breathing space to the lessee and also ensure his obligation towards the lessor is maintained during the pandemic thereby ensuring the lessor is financially safeguarded.

The Compensation of a Lost Opportunity

Alexander Niebler — Fri, 22 Dec 2023 00:00:00 +0100

A record-champion equestrian is on her way to a horse race. On the way, she is involved in an accident not caused by her. As a result of the accident, she cannot compete in the race. In civil liability law, it is general consensus that in this case the equestrian can claim the damage suffered - to her car, her horse, and any physical and even possibly mental injuries. But can she claim more than that? Does it make a difference that she was on the way to a race where she intended to compete (and possibly win)?

Since 1889, in French civil liability law, a lost opportunity can constitute a compensable loss under the condition that the lost chance is of a direct and particular nature. As “the actual and certain disappearance of a favourable eventuality” in case law, French courts tend to consider a lost opportunity raised as a valid compensation claim, just as an actual loss suffered. This extensive understanding of a lost opportunity in French civil law is unique compared to other European systems, such as the British Common Law or the German Law.

This paper assesses whether or not the French model can be an inspiration for other legal systems. In that regard, in a first step, the legitimacy of the compensation for a lost opportunity is discussed. Secondly, the framework for compensation of a lost opportunity is analysed.

After systematically classifying a lost opportunity as a type of loss, the paper shows that this type of loss is often used as a remedy to cover that a causal link between action and damage cannot be established. Secondly, it is found that despite it having established reconnaissance by the French Courts, the conditions of a lost opportunity are still heavily contested, which causes concerns regarding the pending reform of the French civil liability law. Lastly, it becomes clear that the method of how to assess the compensation for the lost opportunity is entirely arbitrary.

Being confronted with the question of the legitimacy of compensation for a lost chance, this paper serves as an orientation for other European systems. It is shown that the French model can serve as an inspiration. However, due to the legitimate dogmatic criticism of the framework in practice, in no way, it can be exactly replicated.

L’urgence dans les rouages du système de maintien de la paix et de la sécurité internationale

Marina — Fri, 22 Dec 2023 00:00:00 +0100

An armed aggression provoked by one of the permanent members of the Security Council, coupled with the subsequent arrest warrant issued by the International Criminal Court against his representative testify to a breakdown in the system of peacekeeping and collective security put in place in the UN Charter. Yet, this is not the first crisis in this system. Against threats to international peace and security, strategies for empowering, delegating and adapting powers have been developed. The notion of the “emergency” of the reaction acts as a driving force for the empowerment and the gradation of institutional powers, but also for their delegation to other bodies or subjects of international law. These systemic adaptations of the structure of the maintenance of international peace and security through the notion of emergency reveal its finalistic nature: emergency makes it possible to achieve the goal of maintaining peace and security by influencing the assessment of an act’s conformity with international law.

Business, Human Rights Due Diligence and the Climate Crisis - Bridging the Gap between Climate Policy and Human Rights

Eoin Jackson — Fri, 22 Dec 2023 00:00:00 +0100

This article advocates for an integrated approach to human rights due diligence and climate change due diligence.

Comparative study on the role of the prosecutor in Korean law

Seungbeom SIM — Fri, 22 Dec 2023 00:00:00 +0100

The prosecutor has an important role in criminal procedure. He has especially the authority to prosecute a case. In South Korea, the prosecutor can participate in the criminal procedure across the board, from the criminal investigation to the public prosecution and the court hearing. The prosecution has a hierarchical structure in accordance with “the principle of uniformity of public prosecutors”. When conducting prosecutions, the prosecutor must respect the fundamental principles : “the principle of public prosecution” (1), “the principle of monopoly prosecution” (2), “the principle of discretionary prosecution” (3), “the principle of written indictment only” (4). This paper was approached from the perspective of French & Korean comparative law. Between both laws, there are several differences like the adoption of a civil prosecution in French law. Currently, the Korean prosecution has too much power in criminal procedure, and abusing this power causes social problems. Thus, French law will be an exemplary model to separate the prosecutor’s power in Korean law.

L’introduction de l’arbitrage international d’urgence : un pas ultérieur vers la « judiciarisation » de l’arbitrage international ?

Giulio Alvaro Cortesi — Fri, 22 Dec 2023 00:00:00 +0100

L’INTRODUCTION DE L’ARBITRAGE INTERNATIONAL D’URGENCE : UN PAS ULTE?RIEUR VERS LA « JUDICIARISATION » DE L’ARBITRAGE INTERNATIONAL ?

Editorial

Marina Lovichi — Fri, 22 Dec 2023 00:00:00 +0100

EDITORIAL VOL 6 NO 2