Legal Issues

Competition law, also known as antitrust law in the U.S, refers to one among the areas of authority of the European Union (EU) to control the activities of market influence by governments, large companies and other entities in economics. It is evident that from the beginning, people recognized law as individual entity.  Then after some development, there came society and law being recognized as interdependent.  The society required law and at the same time law could no longer function without a society.  The study of law required an integration of history and the two became studies Law was then integrated in economics. The development of law has been analogous to the development of priesthood from mare priest to a full theologian.  These give synergy to each other in better serving the civilians. As an effort to provide service to the civilians, the competitive law was instituted to control the market influence by the multinational companies and governments.                

It is believed that the initial interest by scholars in examining the relationships existing between economics and law came from the theory of law coined by Karl Marx. Later, Karl Renner, using the already laid foundation by Marx made more contributions to the relationships between law and economics.  For instance, in his book, Institutions of Private Law and their Social Function he expounded on the Marxist theory pointing out that in spite of the legal concepts (for example those giving guidelines on contracts and property) being stable, their roles in the society have in deed undergone much transitions.   He proposed that for legal concepts to be expounded, thorough penetrations into their economic foundations had to be established.
   
The competition law has been developed all along in history.  Some guidelines used to mark a path or shed some light into the economic analysis of legal concepts included the issue of ownership which was perceived to be associated with land.  Secondly, the authority to control property was a feature only in the similar person owning the property. With the advent of industrial revolution and emergence of share trading, forms of property included those intangible ones like the bought shares.    
   
The modern tend has by far changed greatly with the introduction of private property ownerships by modern corporation.  The pioneers to study the interdisciplinary study of law and economics were Gardiner Means and Adolf Berle.  It was during their time when stock markets changed the nature of powers possessed by the owners of the shares to control the intangible property.  Berle and Means proposed that shareholders having 51 percent of shares in any given company had no right to control the activities of that company.  This proposal came slightly after there was widespread distribution of stock holdings via the stock markets.  Contrary, individuals having lesser percentage of shares (less than 51 percent) had all the rights and powers to control the company.   This concept was applicable with the modern corporations and private property owners.                     

There is a connection between Competition law and the Contract law.  Contract law was one time private until the close of 19th Century when it assumed fully the constitutional scope.  Therefore, the economic study of ownership shows clearly how institutions of law went through radical transitions while on the exterior maintaining the theoretical shell.                

There was eventually a necessity to put into application the legal limitations on the market authorities. This came as a result of the liberalization of trade and the gradual withdrawal of the state from the extensive role it had earlier assumed during the era of collectivism. The focal point of legal scholarship also shifted from the constitutional doctrines obsessions which had limitations of the actions by the state to the key players in the market force.                 

The inception of liberalization of trade claimed much importance of the Competition law which acted to solve the powers of control in the market place.  In the legal setting, it was important for lawyers to master the basics of the competition law knowing the key players in the market and the general structural operation of the market.  The emerging discipline of competition law was so imperative that lawyers could not assume since it furnished them about the knowledge of microeconomics and price theory, industrial organization which deals with the behavior of firms in the market place and finally the main doctrines of contract law.         

Basically, competition laws are known as antitrust laws which are Magna Carta of the free enterprise system. The antitrust laws, as widely known in the U.S, are imperative to the preservation of freedom in economic environment according to the U.S Bill of Rights which provides for the protection of the peoples fundamental al freedoms. There are some issues greatly prohibited by competition law.  These issues include a firm deliberately misusing a central position of a market place. The competition law prohibits any contract, understanding and arrangement between two or more enterprises having the effect of substantially lessening or limiting access to market.    

The prohibition applies to both the written and oral agreements which may be regarded as informal.  The competition law clearly outlines these prohibitions and does not consider if the agreements are made through written consents or oral approvals. There are procedures stipulated by courts to determine whether an agreement unreasonably restrains competition.  The procedures put forward by courts for analysis depend on the form of agreement in question. Some agreements, for example the per se offenses, are considered to be intrinsically anticompetitive     that they are automatically illegal. In fact, these agreements are considered against the law in spite of the intention of the parties or the authentic effect of the agreements on competition.      

The courts have identified various agreements which constitute per se offenses.  The agreements constitute those between the competitors. Some of the agreements include those involving the fixing of prices or sometimes the terms and conditions of sales and credits. The multinational companies may decide to fix the prices of commodities or force terms and conditions of their products on customers.  Other agreements which involve per se offenses can include the allocation of customers and territories. It is not allowed to deal with any individual (s) or as commonly called, group boycotts.  Sometimes the agreement may include the selling of one product conditioned on an accord by the purchaser to buy a second distinct product. This agreement is also considered to be consisting of per se offenses. The last form of per se offenses contained in agreements includes the resale price maintenance.    

Although the law classifies some conditions as prohibited practices, the same competition law provides exceptions to these prohibited practices.  Some other agreements exist between the distributors and suppliers including the trade association members which add to the economic effectiveness. These agreements are in addition to the anticompetitive agreements even if the agreements may always lead to anticompetitive effects. The agreements, although they are anticompetitive, can be excluded in effect by the competitive influences after considering the expected gain in effectiveness from the agreements in comparison with any adverse consequence on competition.   

In competition law, there are rules of reason and block exemptions. Exemptions of competition law can be on a basis of case to case or sometimes assuming the form of block exemption. When such exemptions assume the block exemption or become on a case to case basis, this approach can be termed ad the Rule of Reason. The Rule of Reason requires an in-depth investigation of the consequence on competition in the prevailing market. Usually, in the Rule of Reason, there is careful consideration of the competitive intent and its consequences considering the business justification of the activity in question to establish their legitimacy. Similarly, potentially anticompetitive practices which can not qualify to be classified under the per se group are examined under the standard of Rule of Reason.   

There are various types of anticompetitive agreements which fall foul of competition law and which can be said to be per se offenses. These agreements include price fixing, output fixing by cartels, collusive tendering and the sharing of the market. Unlawful monopolization is one of the offenses classified to be a breach of the competition law. The unlawful monopolization comprises of two major elements.  The first element is the possession of market influence in the pertinent market in that other parties have little or no role to play in market control. The second element is the willful attainment or protection of the authority as distinguished from the growth or rather development brought as a result of a superior product, historic accident or business intelligence.     

What is meant by market power is a question which remains in the mind of a critical business mind.  In most definitions appearing in business law texts present market power as the authority to regulate prices or exempt stiff or any form of competition. In measuring market power, market share becomes an imperative tool in determining this authority in the market. However, this is only done with shares more than 70 percent considered to command sufficient market power while the shares less that 40 percent are generally regarded to be insufficient for market power command.    Well, there are circumstances which can be said that a business entity willfully acquired market power. Especially considering the second element, the courts have found it necessary to display anticompetitive or even a predatory conduct. These are typically efforts to exempt rivals on other weird basis apart from provision of efficiency. Common cases of such conducts consist of under cost-pricing, unjustifiable litigation filing against the competitors or total denial of right of entry to an indispensable facility.   

While the acquisition of unlawful monopolization is an offense under the competition law, attempt to acquire the same is also regarded to be an offense under the same law which has three elements. These intentions may include attempts to regulate prices or consequently plan to obliterate competition which automatically qualifies a breach of the competition law. The second element is the anticompetitive or predatory conduct directed towards the unlawful objective and the third element consist of a perilous propensity of success in obtaining a monopoly in the pertinent market.   

In considering competition law, it is necessary to examine horizontal agreements which are made between the autonomous enterprises or simply enterprises which potentially compete in one particular market. It has been observed that several horizontal agreements which relate to discounts, outputs, prices or the market sharing always restrain competitors.  In so doing, these horizontal agreements unswervingly or in some way trim down the right of entry to market by other parties. These kinds of agreements are not permitted under the competition law and are thus classified as per se offenses.    There is another form of agreements known as vertical agreement. These kinds of agreements occur between independent enterprises.  These may happen at different distribution or production stages for instance, exclusive dealing and other stages. 

These stages can by design be exempted from the purviews of the competition law by the Rule of Reason approach by the establishments of competition law. An issue of vertical restraints and the anticompetitive effects come into the limelight because of the insight that the anticompetitive effects have the possibilities of flowing from the limitations forced on the firms. The limitations can either be related to price for instance the maintenance of resale price or at the same time it can be unrelated to price like the customer or territorial limitations. These limitations are imposed on the firms in the downstream manner and are related to price or non price regulations.     

Collusive tendering is another concept which is important in considering the competition law. Usually, the agreement between different enterprises to submit similar bids for one or several contracts is termed as collusive tendering. However, collusive tendering to some level, assume more complicated forms and the tendering firms or enterprises may make a consensus among themselves and select the business for which the preferred tendering individual will bid for the deal. To ensure that at least every firm comes out to be successful bidder, this selection system is backed by appropriate tools to avoid some form of bias.  However, some portion of the earned profit gained by the successful bidder is shared among other bidders which act like a compensation for the loss resulting from the decision. According to the competition law, collusive bidding is fully identified as a breach of law and thus classified as a per se offense.    

Another aspect of per se offense as recognized by competition law is price fixing.  Price fixing is a collective consensus to decide on prices of commodities. However, price fixing is depended on two major exemptions. The first exemption requires that a list of proposed prices provided by trade associations to its small business members may not be considered as a breach of competition law.  The fixed prices are not considered a violation of competition law when the prices are no more than recommendatory in nature and individual enterprises are free to charge what they desire. 

The second exemption is about the cartels which seek to fix to decide on prices for particular commodities. These cartels are exempted from competition law since the law is basically concerned with the practices of anticompetitive effects on merely the domestic market.    The cartels usually fix an output quota for every firm which is participating as an alternative to price fixing at which the commodities are sold.

The effect of fixing output quotas for every participating firm is to prevent the less vigorous or less efficient types of firms.  The end result of this procedure is to lessen the competition and avoid heavy imposing of higher prices to the consumers. The competition law also considers the procedure of collective agreement to decide on output quotas for individual participants in a cartel as a breach of law. Another emerging concept where competition law is increasing gaining application is in the field of sports. The European Court of Justice declared that several aspects of sports particularly the economical ones are the areas under discussion to Community law. Although the court considers sport economic elements to be subject to Community law, the same Court recognizes particular elements of the sports sector. It is true to say that sport is an economic activity owing to our observations of sports clubs which are run with a lot of professionalism to realize handsome profit. For instance, the professional football clubs like the Manchester United and Arsenal are run by sound business plans.  As a result, the European Court of Justice established that the European Union law is relevant to sports.

This was after the ruling by the European Court of Justice in the case of Walrave in 1974. The court identified that sport constitutes an economic activity within the sports union. How does sport apply to competition law Any joint selling on an exclusive foundation prevents or discourages competition even in sports or any given sector.  This is because exclusive joint selling has a profound effect of declining the output and restraining the competition in prices.     

At the same time, the sale of the whole rights on the basis of exclusive has another profound effect of strengthening the incumbent television position as the sole company with the financial power to win every bid in the sector. The effect of having a single television company having dominance leads to discontented demand from the broadcasters and reduced capability to provide an attractive offer to the customers. It has been identified that in the U.K that sports and films are the leading income generating sources for television companies and also particularly for pay-TV Channels. Sports and films in the U.K have also proved to be increasingly important in the development of novel technologies and per se the industry has received competent investors.   

Sport is considered an economic activity prior to the declaration on the particular identified sports characteristics and the social role of sports in the U.K. As a result, these accounts should be considered in order to put into practice universal policies.  In addition, the Annex IV to the conclusion of the President on 7th -9th December, 2000 by Nice provides sport as an economic activity subject to competition law. To understand the issue of sports and competition law, it is important to identify some of applications of the competition law to sports in the European Union.    

The declarations provided in the Annex IV to the presidency conclusions in 2000 by the European Council in Nice emphasizes the necessity to consider the educational and as well as the cultural roles intrinsic in the field of sports.  The emphasis is directed toward making sports special element in the society so that the ethical code and the solidarity which is essential to its preservation of the social function can be nurtured and appreciated. Some cases which give light to the relationship of sports and competition law include the Bosman case which gave light to sports and free movement.  The competition law formed the background situation on the decision by the European court on the Bosman case.    

Jean-Marc Bosman was a professional soccer player in Belgium who played for the team R.C Liege which was the pioneering division club in Belgium.  The case of Bosman came as a result of a dispute between himself and the R.C Liege club in 1990.  Bosman alleged that the UEFA-FIFA and the Belgian Football Federation transfer laws had restrained his transfer to another French club by the name US Dunkerque. It was barely in the middle of the 1990s that these economic facets of sporting activities became to be recognized as imperative issues.  This realization of sporting activities to be pertaining to economic elements came after the judgment of Bosman case.  It should be noted that the same realization erupted after there was huge sums of money being made for broadcasting rights to major sporting events. A major question was asked to the European Court about the interpretation of the Articles 48, 85 and that of 86 of the Treaty of Rome of the 25th March, 1957.  The Articles were not understood whether they prohibited a football club from receiving or demanding payment of a sum of money upon commitment of one of its players who has reached the end of his contract by another new club.  The case of Bosman was the question which led to the formation of competition laws in the area of sports which came out to be perceived as a special form of economic activity.    

Competition law was also invoked in the case which involved the Union des Associations Europennes de Football (UEFA) Champions League.  The UEFA Champions League is a tournament in the UK which is organized yearly between the best European clubs playing football.  A total of 72 clubs participate in the tournament and the clubs come from both the European Union and the non- EU nations.  Only 32 qualifying clubs reach the last stage and it is usually in September and the closing stages are in May of the preceding year . The association (UEFA) in 1999 notified the Commission about   its Regulations on the joint selling to the UEFA Champions League of its commercial Rights therefore demanding clearance under the European competition laws.      To date, the UEFA has sold all its TV rights to the UEFA Champions Leagues final stages on behalf of the participating clubs in the league. These rights were sold in form of a bundle on an exclusive basis to a single broadcaster for up to a total of four years in each member state participating.   These sales have been done to a television company which is free to air which can sublicense some of the rights to a pay-TV Channels.  Drawbacks resulting from this system include the poor exploitation of live footages.     

The Commission had originally rejected the joint selling pact which was fully informed about in the year 1999. This step was because the UEFA had sold all the TV rights of the Champions League in one bundle to one broadcaster on an exclusive basis for up to a total of four years at an instant. Most of the buyers were free-TV broadcaster companies which could easily sublicense some of the rights to pay-TV broadcasting companies.  These arrangements were totally contradicting the interests of the clubs, broadcasters, fans and other consumers.   There was one most imperative drawback which came as a result of the original joint selling pact.  This drawback was that not all the matches were viewed live on TV and the phone operators and internet users were denied the rights of access.  This showed that the pact had a negative effect of denying competition between different the broadcasters.

The commission had earlier rejected the current rules which had been notified for regulatory clearance on the basis that if a group of people joined forces to put up for sale a commodity then that actually restrained competition. These rules misrepresented competition between the broadcasters and instead encouraged the concentration by the media thus stifling the development of sport service via the internet and through mobile phones by denying the rights to access to content. This was not the expectations of the consumers and fans. From the case of UEFA, we see that the joint selling of the TV rights of football can only be permitted if the pact is beneficial to the consumers and only if specific safeguards are observed like the Articles 81 section 3 of the EU Treaty.  The Article allows the Commission to exclude the restrictive agreements which may contribute to progressing the distribution or production of commodities at the same time permitting the consumers a fair share of the gained benefit.

The effect of joint selling is that it is discriminative, in that only extensive media groups can afford to acquire and exploit the bundle of rights. These extensive groups are usually overriding incumbent broadcasters. The joint selling also leads to the less extensive broadcasters having dissatisfied demand which can impact on the exploitation of novel technologies since they may be forced to rely on some parties in presenting images and sound of football. Generally, it has been observed that a large percentage of current media cases involving competition law engross the rights in sports and the buying or selling of the rights. These cases have been dealt under the antitrust, which is, the agreements or sometimes the abuse of overriding positions. Only recently, has the sporting organization turned on a multifaceted task of making adjustments on the regulation of sport to make them inline with the modern sporting, legal and economic demands. For instance, in 2001, the

Commission cleared altered the regulations concerning the UEFA broadcasting which allowed the national football associations to block football television broadcasting for 212 hours on either of the weekend days to safeguard stadium attendance and unpaid participation in the stadium. Long negotiations finally led to the FIA (Federation Internationale d Automobile) to agree to change their guidelines in order to be in line with the EU laws. Competition law has been applied in diverse areas in our modern society. The diversity of law has attracted the applications of competition law in business, sports and other areas which might in future require the bringing into play of this kind of statutes. 

 According to the Constitution of the United Kingdom and Northern Ireland, the Prime Minister should have the highest powers than all the other officials in the government. Heshe is therefore the one who is responsible for all the other members in the government including the council members. It is the requirement of the law that the Prime Minister be the leader of the party with the majority votes in the elections.

In this case, therefore, we find that after the elections, there is no party that gains the required simple majority. This means that it would be very difficult to use this rule to determine the winner as none of the existing parties have met the minimum requirements. However, it would be a good idea to consider using the number of votes that each of the parties have so that they can be able to know who the Prime Minister should be.

Sometimes back, there was an election that was held which had the Brown party win. This is the reason as to why there is a Prime Minister who is still ruling. From this election, it is clear that the Brown party did not achieve the simple majority and so are all the other parties. However, the Brown party forms a coalition with the Pink party and this nullifies its possibility of having the Prime Minister seat. It should therefore be automatic that the leader of the Brown party should not be the Prime Minister.

The Pink party is also in a coalition with the Brown party and therefore the leader of the Pink party can not at all become the Prime Minister. The only one that is left out that can become the Prime Minister is the leader of the Blue party. In addition, this will be the only remaining large party after the Brown party forms a coalition with the Pink party. The coalition is only valid as long as the elections are valid. Therefore, the leader of the Blue party should be the Prime Minister as it is the largest party in that election as the coalition should not be considered. The reason as to why they form a coalition is to have some powers in the House or rather to be properly presented there as they will be a bigger party in coalition as compared to when they are individual parties.

First Past the Post is a system of voting where the winner is usually the one who achieves some specific number of votes first during the elections. For instance, if there is an election that is being held in a country which embraces this system of voting and that it is mutually agreed that the winner will be the one who reaches the forty percent mark first, it would mean that the party that reaches this mark first will be the one that becomes the winner. This is not a very good system of voting in that a party may reach the mark first and fails to have the simple majority presentation in the parliament.

The reason behind this is that a party may be popular in the region where the elections are first held and therefore achieve the required number of votes while it has less popularity in the other areas. In this case, we find that the Pink party is a small party and therefore it may not have a lot of seats in parliament. This means that even when it comes to elections, this party may not get the required number of votes so that it can win the elections. There is therefore a need to look for another system that may be used in determining the winner in the elections other than the first past the post system.  This system of voting is known to do well in those countries that have only two major parties. It is known to lock out any third party or minority party that may be in existence in such areas.

In this case, there is a need to adopt another system of voting which will benefit smaller parties such as the Pink party. A mixed member proportional voting system may be a better system that should be used in the elections. In this system, the number of parties is the one that determine the number of votes that will be cast. This means that all the parties will have equal presentation in the parliament and also during the election time. In addition, in this system, there are a set of members that are elected on the basis of their Geographic constituencies. These members are usually deducted from the partys overall votes and this is known to maintain the proportionality. Using this system, the Pink party will be properly presented and it may not need to form a coalition with the Brown party.

It is clear that the coalition wants to take advantage of the fact that they have simple majority. They want to pass bills that are not justified simply because they are more and due to their votes in the House, they are likely to win. In such a situation, there are chances that there may be passage of bills that are not very good. Therefore, there is a need for the higher power which would control and prevent such activities or such bills from passing.  The monarch is the only one who can prevent such bill from passing as it is the one responsible for signing and letting it be an Act. It is also the only one who can push out the Prime Minister who has refused to get out of the seat.

In this case, the monarch has a number of options which heshe can employ so that it can prevent the bill from passing. First, it can ask or rather request that there may be a revision that will be done on the bill before it passes. The monarch may require that the bill be changed and the parts that are not good harmonized. This way, there may be no objection and the parties may need to just harmonize the bill so that it can be passed by the monarch.

Alternatively, the monarch may decide to reject the bill without giving any explanation. This way, there is a possibility that the coalition party will take the monarch to the court demanding for an explanation as to why the monarch has rejected the bill. This may take some time and, depending on the way the monarch handles the case in the court, it may or may not win on the bill. This may also be a tedious process, bearing in mind that the monarch has a lot of powers but rarely uses them. Heshe is only represented by the Crown and has a main duty of preventing those who wield from becoming very powerful. Even though the royal prerogative is rarely used, it may be necessary to employ these powers in a case like this, as this is the only way that a solution will be achieved in such a baseless situation. The monarch should therefore not give assent to the bill as it is unconstitutional.

It is evident that in this case the coalition party will take the monarch and the conventions which are responsible for the use of the prerogative powers to the court. In its accusation, the coalition party is likely to sue the monarch for not allowing the bill to be passed.  On its claim, the coalition party may claim that the monarch is denying the party their freedom and it is not just in its judgment. The reason is that it is obvious that the coalition party will have more votes that the other side of the government. This means that if they were to vote by simple majority, they might win and the bill might pass. This is an unconstitutional bill and therefore it would block the use of justice and democracy in the area. This is the main reason as to why the monarch may not give assent to the bill.

The coalition party may argue that this decision that is arrived at by the monarch is not a fair one to make in that it does not really present the views of the majority in the government. Their argument is not a valid one and therefore it will only pass if they base it on the parliamentary acts 1911 and 1949. These two parliament Acts of 1911 and 1949 are known to have limited the powers of the House of the Lords from blocking or delaying any bill.

In this case, the court decision will have to be based on the decision of the monarch. The court also has the duty to help in maintaining law and order. In addition, it has to help the monarch to ensure that all the parties that are powerful do not use their powers to rule unfairly and at the same time to pass bill that are undemocratic and those that would affect the government in later years. Therefore, it is necessary that the court consults the monarch before making any decision as this is the only way that they will come up with a ruling that would help to prevent unnecessary decisions which would otherwise be difficult to achieve. This is because the coalition party has the simple majority that would be necessary for the bill to be passed. Therefore, there is a need for the royal prerogative to act using its extra ordinary measures at such an extra ordinary time.

Mike Allen, a lifelong resident of Kent is asking if he can sue Manor Hotel because he fell at the shower.
Issue
It is possible for Mr. Allen to sue the hotel management because of the accident Are the courts of the State Kent competent in hearing the case

Conclusion
The client did not specify in his letter the cause of the accident. However, on the question on jurisdiction or if Mr. Allen can file a case against Manor Hotel in Kent the answer is yes.

Facts of the Case    
Mr. Mike Allen is a bona fide resident of Kent and a professional hypnotist. While attending the national conference of American Counsel of Hypnotists, he slipped while taking a shower. The hotel where Mr. Allen is staying is Manor Hotel, which the client claimed to be not a native company in Kent.
    
Based on the letter of Mr. Allen, Manors headquarters is in Delaware. The hotel management, as a business strategy, actively negotiates with different organizations, institutions and associations, convincing them to hold their important events andor functions in their hotel. 

Organizations that have acquired the service of Manor Hotel are American Lung Association, the National Rifle Association and the American Association of Orthodontists.
However, Mr. Allen claims that Manor hotel, though servicing clients and clienteles in Kent, the hotel does not place any advertisement in the local daily and other media organizations, neither have they had a resident business agent in the state. 

Though this was the case, the Manor Hotel has placed some billing arrangements with several Kent companies whereby these companies employees can direct bill their rooms to the corporation. I think that the Manor has two or three such relationships with Kent based corporations. 

Prior to the conference, which Mr. Allen has attended, his organization, the American Counsel of Hypnotists had already had their 2007 convention there. Now, in 2008 the organizing committee of the American Counsel of Hypnotists has agreed to hold their event in Manor Hotel.

Mr. Allen, a delegate to the said conference, checked-in one of the rooms of the hotel. He made his billing via credit card. On that same room where the incident happened.

Based on the current legislature existing in Kent, it states that xxx A Court may exercise personal jurisdiction over a person, who acts directly or through an agent, as to a cause of action in law or equity arising from the persons that a. transacting any business in this state and b. contracting to supply services or things in this state xxx.
   
Discussion
In the case International Shoe v. Washington, 326 U.S. 310 (1945), the ruling explains that, without violating the due process clause of the US Constitution, minimum contacts with the forum state can give the court in that state personal jurisdiction over a party. 

On that ruling, the court also said that the International Shoe had conducted systematic and continuous business in Washington. It furthered that a large volume of interstate business for the defendant was created through Defendants agents in the state and Defendant received the benefits and protection of the states laws. Defendant had established agents in the state permanently. (International Shoe v. Washington, 326 U.S. 310 (1945)).

Mr. Allen has established by knowing that the Manor hotel, notwithstanding the absence of its corporate office in the State of Kent, has been with continuous contact with the businesses operating under the laws of Kent. Therefore, the courts in Kent are pertinent to try the case of Mr. Allen versus Manor Hotel.

Another jurisprudence that can support this belief is the case of Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) wherein the Supreme Court that the defendants purposefully availed themselves of the protections of the forum state (Florida) and were, therefore, subject to jurisdiction there.
Furthermore, the Court had reasoned that the defendants had a substantial and continuing relationship with Burger King in Florida and that due process would not be violated because the defendants should have reasonably anticipated being summoned into court in Florida for breach of contract.
In this light, the plaintiff Mr. Allen can therefore file a case in the courts in the State of Kent without any violations of the existing laws of the United States of America, provided that the petition has legal merits.

The matter that I am reporting on is an appeal before the New York department of Unemployment.  The name of the matter is In the Matter of George Tompson, Case Number  ALJ Case No 009-29419. The case is before Administrative Law Judge Elizabeth T. Nicolato.  The location of the court is 120 Bloomingdale Road, Rm. 233, White Plains, New York 10605.  This is an administrative proceeding which means that the rules of evidence are far more relaxed that what one would experience in criminal or civil litigation.  For instance, hearsay testimony is admissible in administrative proceedings.  The proceedings are taped on a recorder and witnesses are sworn in.
    George was fired from his position as a manager of Chase bank in Yonkers, New York.  It is alleged that he fraudulently double endorsed a paycheck and deposited it into his friends bank account in order to avoid an Internal Revenue Service levy.  George insists that his friend did indeed sign the check and that there was no fraud.  The bank alleges that he left voluntarily and is therefore not entitled to unemployment benefits.  Gorge contends that he was forced out of his job due to intimidation tactics initiated by the regional director.  George is also alleging that as a result of the banks conduct, he had to be hospitalized for a panic attack.  He stated that the bank is attempting to besmirch his reputation which is fatal to his career long term since he is graduating college this year with a degree in international banking.
    George gave his opening statement, and the bank gave theirs.  George informed the judge that he had witnesses and asked that the court take their testimony.  His main witness is the friend whose signature George allegedly forged.  George had to ask for a brief adjournment however, because the friend was not available to testify today so he offered the court dates that the friend would be available to testify.
   

This term paper is about the environmental laws concerned with wetlands and other protected lands. The author of this paper defines wetlands and then discusses the importance of wetlands and laws that regard to wetlands. It is important to note that wetlands are very important in any particular type of ecosystem. A wetland can be defined as a habitat that lies on environment ecosystem and is between dry land and water. It is a specific portion of land that has its soil saturated with high levels of moisture on permanent or seasonal basis.
 Wetland has some different characteristic features that make it different from other types of environmental features such as lakes, forests and natural features. The area of land can be covered partially or completely by pool of water that is shallow. One of the worlds largest wetland is in South America and covers Brazil, Paraguay and Bolivia. Wetlands are habitats of different types of species and have different survival conditions and a mixture of interactions in the ecosystem. The type of species that are found in wetlands, soil and hydrology are some aspects that defined wetlands well (Kibel, 1999). Soil type found in an environmental spectrum that is covered by wetland is shaped by presence of water and in most cases the soil is hydric.
The type of soil is very important in maintaining high levels of water and it is always submerged as a way of raising the water table. Water lilies, cypress, tamarack, cattails and mangrove are some of the plant species found in wetlands. Wetlands in different regions of the world do vary as a result of soil type and the accumulation of water. For instance, there is salty and fresh water in different regions of the world and this makes wetlands to vary. In every ecosystem over the world, there is the presence of wetland except in Antarctica. Some good examples of wetlands in Arctic include swamps, bogs, fens and marshes. There are coastal wetlands that include mangrove forests, tidal marshes and coastal swamps. In addition, ponds, riparian systems, swamps, marshes and vernal pools are good examples of wetlands found in inland regions.
     Wetlands are one of the most important types of environmental ecosystems because they provide food, shelter and habitat to many different species of animals. The higher levels of productivity in wetlands allow it to be a good habitat for any particular species of animal on earth. Among the most beneficiaries of wetlands are fish, insects that survive in water, amphibians and shellfish. This is because these species survive in water. Human beings are too beneficiaries of wetlands because they get food inform of fish (Boyle, Anderson, 1996). Mammals and birds also rely on wetlands to get food, water, shelter and swamps providing good breeding sites. 
It is therefore very important for every individual to take adequate measures that will lead to the protection of wetlands and its habitats. Environmental protection is both a role of both public and private sectors especially the government and environmentalists. Wildlife is the biggest beneficiary of wetlands and there is a need to protect the lives of these species otherwise they will get finished and create an imbalance of ecosystem. Wetlands to large extent act as tourist attraction sites and if they are not protected, then there is no any single tourist who will be attracted to these sites leading to reduced economic growth.
Environmental laws that govern wetlands and protected land
    Wetlands need to be protected by different entities like government and private sector. As a form of environmental spectrum, wetland constitute a  big percentage of environment and all those laws that apply in protection of environment need to be put in place so that it is conserved. However, in other developed countries with little space left for development, they have opted to rehabilitate wetlands to create more space (Foster, 2004). In United States of America, almost all of their original wetlands have been rehabilitated to dry land for development. In Pennsylvania, two thirds of the original wetlands have been converted into useful land for agriculture or establishment of industries. As a result of all these measures, many countries have established laws like Environmental constitution and Clean Water Act (Stenzel, 2002). These laws however have not helped much because in the modern world wetlands are lost. There are other laws that lead every citizen participates fully in preserving wetlands such as
State laws
    Many global states have come up with state laws that lead to protection of wetlands like swamps, mangrove forests and bogs. For instance in Pennsylvania, the environmental law that provides for protection of wetlands is the Dams Safety and Encroachment Act. The act incorporates rules and regulations that have been in use since 1980 and the department of environment is concerned with enactment of these rules. The regulations aims at protecting the  replacement of wetlands and it permits a ratio of one to one or a ratio of two to one in case of replacing a wetland where permission has not been given and is to be enforced at a later stage. This basically aims at protecting the existence of wetlands that have accruing benefits in any particular nation (Odgen, Saxer, 2006). State laws help to protect natural wetlands and are set laws that make it difficult for any specific individual in owning a wetland or trying to miss use it. Therefore, every state must put into place measures that will lead to the protection of wetlands and other special lands.
Federal laws
    Federal government is given the power of protecting and regulating any activity that takes place in wetland. The rules and regulations are put under Rivers and Harbors Act and Clean Water Act. US Army Corps of Engineers has been given the mandate of administering these rules that work under the umbrella of Environmental Protection Agency. The main aim of these rules is to protect the lives of many endangered species of plants and animals. The government should ensure that environmental laws about wetlands are fully enforced and anybody who is found guilty of breaching such laws should be punished (Foster, 2004). There are other states that are yet to establish statutes about protection of wetlands but they have given other federal agencies the power to oversee wetlands which is also good.
Local authorities
    The local municipalities and counties in any particular country can as well act in their full capacity to protect wetlands. Many commonwealth countries have agreed that it is better for municipalities to put legislative measures that amount to protection of wetlands. The local authorities can work better through mobilizing people in the society on how to adequately participate fully when it comes to wetland preservation.  Communities living around wetlands must be enlightened on how to protect the ecosystem by the local municipalities. For instance, they should be taught on the dangers of polluting wetlands (Boyle, Anderson, 1996). When the society is taught on the best methods to apply as a way of reducing pollution of wetlands, it gives long life of all the species in the wetlands and thus promotes the conservation of environment. The counties have the responsibility of teaching its local people on ways of flood management that causes a lot of threat to many wetlands.
     All these laws are very basic and need to be applied in any particular country that has wetlands. Environmental laws can only work under the three umbrellas of law but individuals have the capacity to conserve wetlands and protected land. Since the same individuals are responsible for degrading, polluting, replacing and destroying wetlands, they should be taught on how to preserve the same ecosystems. For instance, parents should ensure that their children are taught on the importance of wetlands and how they need to be conserved. Parents should take their children on picnics along wetlands where they learn more (Stenzel, 2002). Individuals in this aspect should try to locate lands that have been protected like natural forests and wetlands. They should learn more about these areas and try to protect them for self and global benefit.
In conclusion wet lands and other protected lands need to be preserved by any person as a way of promoting environment preservation to create a better future for generations to come. Laws that govern environment protection should also be put in place when conserving wetlands. The paper has discussed all these laws and therefore it is the role of government and private sectors to enforce the laws.

Hate crimes are those criminal actions that are carried out with an intention of intimidating and harming people and property on the basis of their ethnicity, religion, race, sexual orientation or any other status related to the minority group. They can also be called bias crimes (Robinson, 2009). Hate crimes are unique in their nature and differ from other crimes due to the fact that people are targeted due to their identity. This form of discrimination infringes human rights and prevents people from fully enjoying the societal benefits that they are entitled to. Research has ascertained the fact that hate crimes trigger greater harm psychologically in comparison to other similar crimes that are carried out in the absence of prejudice. Hate crimes are responsible for creation of fear in the communities, groups and victims targeted and increases animosity between different communities preventing cohesion (Home office, 2009).
Hate crimes negatively affect people since they cause fear and anger due to the possibility of repeated attacks. They also promulgate depression and can worsen any existent health condition especially issues of mental health (Robinson, 2009). They cause financial burdens such as when people are forced to repair and replace vandalized property or take time off from work (Home office, 2009)  Sometimes the victims are forced not only to change their accommodation and personal appearance but also their daily patterns to avoid victimization.
History and Types of Hate Crime
America has been plagued by hate crimes since time immemorial. Since the times when slavery was allowed in America, many minority groups have been subjected to hate crimes due to the misconceptions of white supremacy. The segregation rules in the 1920s led to formation of groups such as the Ku Klux Klan (KKK) which carried out attacks on minority communities especially the African Americans, through vandalizing of synagogues, lynching and burning of crosses. All these hooliganism acts were carried out to maintain the notion of white supremacy. The government was seen as condoning these hate crimes since institutionalized racism was deeply entrenched in its systems. The first hate crime to be investigated by the FBI dates back in the early 1920s and it involved the KKK (Home office, 2009).
 The ethnic minorities have been the main target for most of the hate crimes since they are perceived to be the newest within the country despite the fact their families may have been present in the area for a long time. The minorities are always victims of anti-immigrant bias since there is always a recurrent preoccupation with nativism which consists of policies that favor the people born in America. The hate crimes are always generated by the fear that immigrants will take jobs belonging to the natives and lead them to more economic success. There also negative stereotypes that are associated with specific ethnic groups or persons belonging to a certain nationality which can lead to fueling of antagonism (APA, 2009).
The religious crimes have also been on the increase in America but they mostly are vandalism acts, not ruling out the prevalence of personal attacks. Most of the people religious attacks are normally directed towards the Jews according to the FBI. There are anti-semantic groups such as Swastika and SS Lightning Bolts that have targeted the Jews nationalists since the Second World War era. People belonging to other religions have not been spared by hate crimes since there has been a nationwide increase in the anti-Muslim crimes since 2001 (APA, 2009).This is attributed to the 911 terrorist attacks in New York which led to victimization and harassment of Muslims. The rise in Muslim nationality attacks were due to the resentment and anger  that the American people felt due to massive destruction of property and loss of lives resulting from the 911 terrorist attacks.
Violence that is gender based has been a historic and social problem with women being the predominant victims. Despite these acts not being classified as hate crimes until recently, women have been subjected to deviant acts such as rape and murder. Most violence committed against women is not merely a random encounter but mainly from former or current male partners (APA, 2009).  The victims are continually exposed to threats and fear and thus they live in terror and isolation. This can lead to long term effects such as depression and lowering the self-esteem of women involved. The empowerment of women in various fields recently, led to the increase in gender based violence since some men felt women were venturing into the male dominated fields.
Hate crimes based on sexual orientations have been on the increase since the era sexual liberty within the society. The sexual minorities composed of lesbians and gays have been experiencing most of the attacks since there are those negative attitudes and beliefs that have been coined around homosexuality (Herek, 2006). People who target lesbians and gays normally do so under the guise of enforcing social morals. They are those who take homosexuals to be sexual predators and they justify their attacks as aimed at protecting the society against such vices.
People with both physical and mental disabilities have been major victims of hate crimes since they are perversely stigmatized by most people in the community. Disabled people are subjected to various discriminatory practices and behaviors that invariably increase their risk of physical and sexual abuse (APA, 2009).The hate crimes are based on misplaced perceptions about disabled people who are seen as non-deserving, and non-equal members of the society. Assailants presume that disabled people make minimal contributions to the society but instead burden the society, thus it is quite okay to attack them.
Hate Crime Laws
There are many Acts that provide coverage to the hate crime offences which include the Religious and Racial Hatred Act of 2006, Criminal Justice Act of 2003, Disorder and Crime Act of 2008 which was amended By Anti-Terrorism, Crime and Security Act of 2001. There are also others such as Public Order Act of 1986 with part III Incitement to Racial Hatred and the Criminal Justice and Immigration Act of 2008. Despite all these Acts being in place, the most inclusive law to be passed on hate crimes took place in April 2009. The House of Representatives dominated by democrats gave an approval for the expansion of federal laws on hate crimes, a move that had been opposed by President Bush during his tenure (Ferraro, 2009).
The law that was in place limited the federal jurisdiction on hate crime, to national origin, religion, color and race assaults. The bill passed by the democrats recently broadened hate crimes by including assaults based on the sexual orientation of victims, physical or mental ability and gender identity (Ferraro, 2009). There was a requirement that the victim had to be engaged in an activity that was federally protected e.g. attending school for the crime to be classified as a federal hate crime. This outdated clause was lifted in the latest Federal Local Law Enforcement Hate Crimes Prevention Act of 2009 so as to ensure more justice for the victims of hate crimes (Johnson, 2009).
Hate Crime Cases
The enactment of hate crime laws is easy but enforcing and implementing them is quite hard. It is difficult to deter bias crimes through patrols since it is hard for the police to recognize them. Graffiti and vandalism are quite difficult to solve and most of the hate crimes that will be investigated, are those which involve serious violence. The investigation of violent bias crimes will not be handled any differently from other violent felonies by the police units (Potter, 2007).  The formation of specialized bias crime units has improved the response towards offenses of low levels such as graffiti, vandalism and harassment and hastened the investigation of violent felonies.
The prosecutors face a very challenging task in trials involving hate crime cases. It is hard to prove the bias motivation since it can lead to politicization and distraction of the jury. Jurors and judges likewise may be infuriated and offended by the hate crime charges, leading to impartial judgment based on emotions instead of logic. Hate crime trials involve admission of evidence that pertains to the characters, beliefs and values of the dependant which can look like an inquisition of the persons affiliations. Incarceration of hate crime offenders in prisons is not likely to fully rehabilitate them since racial biasness is predominant in prisons (Potter, 2007).  The solution lies in sensitizing people about respect for people racial, religious, sexual orientation, gender and disabilities so as to prevent the escalation of hate crimes.

Hate Crime Statistics
The adoption of the Hate Crime Statistics Act of 1990 has allowed the FBI to publish and gather hate crime statistics annually since 1992 (FBI, 2008). The FBI approximates that 30 percent of the hate crimes committed in 1996 and most other years targeted property with vandalism, robbery, setting fire, stealing and destruction of vehicles, stores, homes, and worship places being most widespread The FBI uses the Uniform Crime Reporting Program (UCR) to collect national data on hate crimes which is annually published. The collection of this data helps in improving the accuracy of hate crime statistics and identification of reporting practices (NCJS, 2003). This will go a long way in assisting the federal government to develop a better model for reporting and solving of hate crimes.
The 2001 statistics show that out of the 9721 bias incidents, 44.9 were out of racial prejudice, 21.6 percent were ethnicity and nationality biased, 18.8 were as a result of religious intolerance, 14.3 as a result of sexual orientation bias and 0.4 were from disability bias. This trend has continued being reported in the UCR making it clear that racial biasness is the leading trigger of hate crimes.  In 2008, the numbers of incidents that are bias motivated stood at 7783 according to the FBI (NCJS, 2003). The increased number in hate crimes can be attributed to the improved reporting across all states in America. The availability of data improves the accountability and awareness which mitigates immediate action, which will go a long way in curbing widespread community tensions. It will also encourage research into the causes of hate crimes since data is readily available.

The court was incorrect in dismissing the attempted murder charge.  While each state has a different statute, the basic tenet of each attempted murder statute is that the defendant intended the death of his or her target.  This forms the culpability level of the statute.  This level of culpability is imperative in the United States as well. The fact that the gun malfunctioned has no bearing because of Jacks intent to kill Bert. The fact that the gun had already been used to kill Pratt, shows the intent of a crime being committed.  The elements of a criminal act require the actus reus, which means the act itself (or lack thereof sometimes) and the mes rea, which means the requisite intent of a crime.  Here, Jack attempted to murder Bert by approaching the car, pointing the gun, and firing it at Bert.  The approach, point and fire constitute the act.  The mens rea is found in the acts that Jack committed.  Clearly, it was the intention of Jack to kill Bert as soon as he fired the gun.  His premeditation is demonstrated by the acts he did (walking and aiming) prior to firing the gun.  Here, there was a complete attempt to claim a life.  Impossibility is not an availing defense because a gun jamming is does not render the shot itself impossible.  Indeed, one could argue that the gun jamming was the accident.  Here, the prosecution should appeal the ruling of the court and the appellate division should reinstate the indictment.  Clearly, all of the elements of attempted murder have been met even in this scant fact pattern and the lower court erred in its ruling.

Search and seizures as a constitutional right is provided for in the Bill of Rights and guards individuals from what is considered as unreasonable searches and seizures by the authorities. This provision was ratified due to the abuse of writ of assistance which was a search warrant during the American Revolution. The Fourth Amendment of the United States constitution puts limitations to the police power when making arrests, searching individuals and their property, and when capturing objects and contrabands. Illegal searches usually occur when the police fail to get a warrant to conduct searches and seizures when the law requires that they should be having one (eJustice, 2009).
 The Fourth Amendment
    The Fourth Amendment to the federal constitution observes the rights of the people to feel secure and preserve their private life. The Fourth Amendment protects the individuals against the state for unwanted searches and seizures that might infringe on their rights as provided for in the constitution. However, the Amendment allows for searches and seizures when such practices are considered as being for a purpose. This implies that the law enforcement agents may have to go out of their way and ignore an individuals privacy. This can only happen when the police have gained a search warranty issued by the judge, andor based on the situation, the search is justifiable (Bergman, 2009). The warrant is used to legalize searches in a specific location, time, and in order to obtain specific evidence. The Fourth Amendment however, does not provide protection when there are no private issues of concern. There should be legitimate expectation of privacy in order for the Fourth Amendment to be effective. In 1961, the Supreme Court established the exclusionary law in which any evidence coming from an illegal search could not be used in a criminal prosecution. Another doctrine also states that, when evidence from an illegal search generates new evidence, then the generated evidence too cannot be accepted in a criminal prosecution (Collins, 2009).
Abuse of the Fourth amendment
    Unreasonable searches and seizures are on the increase in the United States of America. An inspection or examination of private property without a legal authority can be termed as an unreasonable search. These searches are mainly based on suspicions with the hope of finding drugs, illegal property, and evidence to be used against an individual in a criminal suit. The Fourth Amendment is supposed to cushion private citizens against such invasion of privacy but this is not usually the case. In 2005, the Supreme Court infamously ruled that cities could take homes from individual owners in order to put up strip malls. State governments have been notorious on confiscating automobiles disregarding the constitutional property rights. The cities have adopted a new technology to identify cars that had avoided paying the parking fees. The Automatic Number Plate Recognition (ANPR) technology has been implemented in many towns across the United States without a second thought on the margin of error that may occur. Many victims of the error have found their cars held for ransom by the city authorities. The amount due on many occasions does not even warrant the confiscation of ones car when you give it a value comparison (Diamond, 2005).
    The war on illicit drugs has posed a great challenge to the Fourth Amendment. A breach of the Fourth Amendment generally occur when the police conducting searches and seizures of individuals and their property on suspicion to catch drugs. These searches usually takes place on the streets or any other place, based on the suspicion of the police. Constitutional protections are slowly being eroded by the drug war considering that the tools of modern war on drugs do not pay attention to what the Fourth Amendment was meant to preserve. The habit of targeted searches inclined towards members of a particular race, nationality or ethnic group amounting to racial profiling are on the increase. It is a fact that drug use is not defined by race and yet in most instances the minority groups are the main target for the police seizures and searches. To add salt to the wound, the justice system appears to be racially inclined for the reason that the minority groups are punished with much harsher sentences compared to the majority whites (James  Valladares, 1997).
The civil asset forfeiture as a law enforcement practice also serves to violate the Fourth Amendment. This law allows for the seizures of money and property suspected of having been generated from illegal sources. Such property is usually retained by the authorities who might sell the assets and use the proceeds to finance other law enforcement efforts. The civil asset forfeiture is usually implemented without verifications of the alleged origins of such properties and neither is the suspected individual arraigned in court for trials. The civil asset forfeiture provides for a dangerous ground whereby enforcing this aspect of the law trashes the individual liberties as it allows for the seizure of private property.

The rising volumes of international trade and the globalisation trends contributing to it have made it necessary for increased regulations in international sales. The UN Convention of Contracts for the International sale of Goods (CISG) was put into effect as early as 1980. CISG was the culmination of efforts originating from the 1964 Hague Conventions of Uniform Law on the International Sale of Goods (ULIS) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF) involving twenty eights states. The regulation of international trade was further facilitated when in 1994, the International Institute for the Unification of Private Law (UNIDROIT) put forth its Principles of International Commercial Contracts or the UNIDROIT Principles. In the same year the European Contract Law Commission brought out its first part of the Principles of European Contract Law (PECL), followed by its complete version in 1998. Many people who participated in the creation of the CISG were also instrumental in drafting the UNIDROIT and the PECL.

The internationally drafted instruments CISG, UNIDROIT and the PECL have in them elements from civil and common law. The CISG reflected the interests and ideas prevailing in the legal systems of both, the developing and the developed economies. When parties are based at different contracting states, which come under the jurisdiction of the CISG, their contract is automatically subject to the provisions of the CISG unless stated otherwise. While the UNIDROIT Principles do not apply for domestic contracts, they are more detailed and specific with a broader application scope with regard to international contracts. UNIDROIT Principles are directed at providing an elaborate governing system applicable universally. In fact, the purpose or preamble to UNIDROIT emphasizes that it may be used to supplement or interpret international law instruments. The relevance of UNIDROIT on CISG is evident to a larger extent, where UNIDROIT covers issues also covered by the CISG its solutions are similar to that of CISG.  UNIDROIT Principles literally borrow or at least pick the substance of CISG provisions, while addressing similar issues 1. The PECL also has its objectives similar to the UNIDROIT Principles, except that the scope of application is different. The PECL articles are directed at providing contract laws in the EU, applicable when the parties agree to be governed by them. The UNIDROIT and PECL are in many ways Restatements of the provisions of the CISG, deriving their insights from the CISG texts and scholarly views of CISG. Also with regards to identical provisions with CISG, PECL sub-classification texts go deeper to make the implicit more explicit 2. However it needs to be emphasized here that it is not easy to identify and indicate precisely in which way the regimes converge or diverge. It is also impossible to point out through direct article-to-article comparison because regimes may have a single article to cover a particular issue or several articles to cover the same issue.  Vice Versa, regimes may also have a single article to address several issues or several articles to cover them.

Features of the instruments
Unlike the governmental bargaining and compromises associated with the formation of the CISG, the UNIDROIT Principles and the PECL emerged from the need for uniform laws in contracts. Divergent legal perspectives and doctrines were considered in the formation of the CISG leading to the adoption of consensus and solutions, bearing ambiguous terms and gaps in its interpretation. On the contrary the PECL and UNIDROIT were not obliged to consider all local regimes or laws of all countries3. Conflicting rules were incorporated by modifying them based on the effectiveness of the rule in the entire regime. These Principles can therefore be considered as better organised, unified and more consistent than the CISG. The magnitude of similarities between the PECL and UNIDROIT regimes, indicate the role as representing the main intentions of the international contract law.

 However PECL has a broader scope of application compare to UNIDROIT, as it encompasses contracts involving domestic dealings, consumers and merchants. Although PECL has a smaller geographic focus compared to UNIDROIT Principles, it presents a wider coverage of law. Yet the two principles are similar substantially since both strive towards being the general principles of contract governance. The growth in international transactions governed by the regulations of CISG, UNIDROIT and PECL, establish the need for fairness and harmony in international trade. These three instruments may be rightly said to supplement and leverage each other as in becoming more common than compete with each other. The two principles broadly support and promote the crux of CISG, while filling the gaps in it. Therefore the principles can be said to interpret the CISG while answering and resolving issues not addressed by CISG 4.

Though PECL and UNIDROIT have a more common approach, there are divergences between the two instruments. Provisions of UNIDROIT and that of PECL have differing content. Certain issues that are addressed in one are not considered in the other or vice versa. While some divergencies may appear technical in nature, some others have policy implications. Notable among the technical divergencies are the receipt rule in the UNIDROIT relating to all types of notices exchanged by the parties as specified by Art. 1.9(2) while the PECL dispatch rule Art. 1.303(4) relates to notices arising from non-compliance by a party. Similarly Art. 3.18 of UNIDROIT provide reliance damages when a party avoids contract, not considering whether the party has avoided the contract or not. But the PECL Art. 4.17 grants recovery of damages only when the contract has actually been avoided.  Among divergencies not having relevance to policy considerations are that while in the UNIDROIT Art. 5.7, when a third person cannot or would not fix the price, the price need to be reasonable, while the PECL Art. 6.106 (1) assume the parties have agreed to have the court appoint someone to determine the price. With regard to permanent impediments, Art. 71.7 (4) associates terminations to the actions and initiations of the parties while the PECL Art. 9.303 (4) provides for automatic termination in such cases.

When CISG is briefly compared to the UNIDROIT, it would be observed that many rules under CISG Part II concerning sales contract formation are similar to Chapter 2 of the UNIDROIT. Part III of the CISG pertaining to performance and non-performance or breach are considered in Chapter 5, 6 and 7 in UNIDROIT. It must be noted here that most of the provisions of UNIDROIT, which are not dealt with in the CISG, may still be applicable to it, without disturbing any of its other rules. CISG Art. 11 emphasizes that a contract for sale need not be concluded in writing nor do it have any other requirement pertaining to its form 5. Contracts can even be proved with witnesses and other means. Similarly Art. 1.2 of UNIDROIT too provides for the same. With regard to irrevocable offer, CISG Art. 16 and the UNIDROIT Art. 2.4 indicate that offers cannot be revoked unless indicated that it is revocable.

Perceiving deviations
While remedies are made available to a party when it is affected by the performance or non-performance of the other party, it is obviously an area where diverse legal systems focus on 6.  In recent years there is a growing demand for increased inclusion of specific performance in contracts. This fact is well reflected in UNIDROIT and PECL, which have introduced a more organised and coherent structure with regard to specific performances. While establishing the right to specific performances through UNIDROIT Articles 7.2.1 through 7.2.5 and PECL Articles 9.101 to 9.103, these ensure that remedial specific performances are beyond the discretion of the court.

The term breach of contract in CISG is similar in functionality to the term non-performance used in PECL and UNIDROIT. Article 7.1.1 of UNIDROIT perceives non-performance by a party as a failure to perform its contractual obligations including late or defective performance. PECL similarly sees non-performance as a failure to perform at the intended due time, be it early, late or never. Its article 1.301(4) describes non-performance holistically as a failure to cooperate to provide full effect to the contract. The CISG concept of breach of contract encompasses all failures by a party in fulfilling any of its obligations. Article 25 of CISG even sees breach of contract being fundamental, under certain conditions 7. The breach of contract doesnt take into consideration the grounds for exemption. The term failure to perform provided in article 79 and 80 related to exemption, also relate to any breach of contract. The harmonisation process in contract laws has taken a step ahead by defining non-performance in terms of performance failures and defects, along with exclusions.

Remedial approach in CISG
The remedial clauses of CISG largely correspond with all major legal regimes. The remedial clauses here are directed at providing remedies against specific performance, damages and contract avoidance. The remedies are provided under Part III for both, the buyer and seller under Arts. 45 and 61. The remedies available to the buyer are different from that available to the seller in two aspects. The seller cannot claim a reduction in price as a remedy and also there can be no substitute performance requiring the buyer to cure defective performance. Specific performance is made available to both the buyer (Art. 62) and the seller (Art. 46). Breaches by seller may give rise to buyers delivery, repair and substitute delivery. A breeching buyer may give rise to sellers right requiring the buyer to pay the price or take delivery or other obligations.

Apart from specific performance remedies, the right to claim damages is an important aspect of the CISG. Damages may at times be the only remedy to an affected party when providing relief for specific performance or avoiding of contract is not relevant. Damages or monetary compensation to an aggrieved party puts the party to a comfortable position as if the contract had been performed as agreed. The affected or aggrieved party therefore always has the right to seek damages apart from claiming specific performance or contract avoidance. These damages are directed not only at providing for the expenses but also compensating the loss of profit. The damages to be provided are regulated by Art. 74, which stipulates that the damages cannot exceed the loss as foresaw or should have by the breaching party 8. Article 77 requires the aggrieved to ensure mitigation of loss, while Art. 78 emphasize the right to receive interest in addition to damages.  

Avoidance of contract can be claimed under Articles 49 and 64 of the CISG. Contract avoidance brings an end to the performance obligations of the parties to each other. However, apart from the remedy of damages, avoidance can only be available when the breach is a fundamental one. The CISG has taken into consideration the environment of international goods sale, involving long distances, transportation costs and contract duration. The CISG intends to preserve contracts despite breaches. Thus the Articles 47 and 63 relevant to the popular Nachfrist Principle, provides options to the aggrieved party to give additional time for the breaching party to fulfil his commitments.

Remedial approach in UNIDROIT 
The remedial measures provided by UNIDROIT Principles can be said to be the major feature of the entire UNIDROIT Principles. The content of Chapter 7 reflects how the Principles works and their role in the emerging context of harmony in international trade law. Chapter 7 is closely associated with the decisions of the arbitral tribunals, court rulings and those of different legal institutions, emphasizing the fact that harmonisation of relevant international laws can contribute to implementation of improved laws. Like the Part III of the CISG, Chapter 7 is also systematically structured to facilitate performance and continuance of contract 9. The Section I is directed at contract continuance and termination continuance. Article 7.1.4 ensures cure by the non-performing party while Art. 7.1.5 provides for additional time for performing. These two articles are very instrumental to bring performance when the contract is faced with difficulties and headed to failure and termination. The Section 2 of Chapter 7 deals with the right to performance, commonly called as specific performance, which is a preferred remedy of many legal systems.  For instance the articles 7.2.1 and 7.2.2 directed at monetary obligation performance and non-monetary obligation performance respectively seek to ensure performance, although Art. 7.2.2 has exceptions. Here specific performance is excluded when a party having a right to performance could obtain the performance from another source, comparatively. The party can now terminate the contract and finalize a replacement transaction. Defective performances are dealt with Art. 7.2.3, which provides for repair and replacement.

The last resort or the right to termination is provided by Section 3 of Chapter 7, which is similar to the avoidance provisions of CISG. These provisions facilitate the aggrieved party to terminate the contract when the delivered performance is either too defective or too late that the aggrieved party cannot continue to use it to achieve its results.

Remedial approach in PECL
The remedial measures of PECL revolve around Chapters 8 and 9 and are available for non-performance depending on whether the non- performance is excused under Art. 8.108. This article excuses non-performance if it is proved to be due to reasons or impediments beyond its control, which was not anticipated at the time of contract. If the impediment is temporary, the excuse is provided only until such time. The non-performing party is bound to intimate the other party, the anticipated impediment and consequences at the earliest possible, it itself comes to know. The other party can claim damages for loss arising from non-receipt of such notice. When the non-performance is not excused under Art.8.108, the affected party may seek remedies as set out in Chapter 9. The aggrieved party can seek recovery of money due, claim specific performance, claim damages or even seek to suspend its own performance, through various provisions of Chapter Nine 10. It must be noted here that although Art. 8.108 provides exemptions, the aggrieved party may still seek remedies under Chapter 9, except claim performance or damages. However a party cannot avail remedies if it is responsible for the non-performance by the other party. Also remedies for non-performance is perceived to be excluded or restricted, unless doing do is unfair and against justice. A party is entitled to a termination of contract under Art. 9.301 when non-performance by the other party is fundamental. The aggrieved party may also terminate the contract due to delay under Art. 8.106.

Nachfrist
While the concept of Nachfrist providing for automatic time extension for fulfilling the obligations, reflects the CISG approach, it should be noted here that neither CISG Art. 47 or 63 provide for mandatory extension. Similarly UNIDROIT Principles Art. 71.5 and PECL Art. 8.106 too dont provide for automatic application of Nachfrist, which is evident from the use of the term may within the articles. Two important policy aspects with relevance to Nachfrist procedure as approached by CISG, PECL and UNIDROIT are

While the aggrieved party can claim specific performance, it is not obliged to provide additional time to the non-performing party to perform.

Termination is considered an act of the aggrieved party and not that of the court or mediator. When there is a fundamental non-performance, the aggrieved party is entitled to terminate the contract by giving a termination notice. Here too the aggrieved party is not obliged to grant additional time for performance

Nachfrist Principles as contemplated by the three regimes recognizes late performance as being very different from defective performance 11. Although late performance cannot be set right as lapsed time cannot be recalled, sometimes late performance may be preferred to non performance.  Articles 47 (1) of CISG, Art. 7.1.5 (1) of UNIDROIT and PECL Art. 8.106(1) enables the aggrieved party to provide additional time to the non-performing party to perform. Within this additional time, the aggrieved party may not seek any other remedy for non-performance as ruled by CISG Art. 47(2) and 63(2), Art. 7.1.5 (2) of UNIDROIT and PECL Art. 8.106 (2). Upon expiry of the permitted time and if performance has not been rendered, UNIDROIT Art. 7.1.5(2) specifies that the aggrieved party may seek any remedy available. Similarly PECL Art. 8.106 (2) makes available any remedy under Chapter 9 when the extended period has expired. 

The Nachfrist concept as reflected by the three instruments is that basically a contract cannot be avoided just because a performance is not delivered on time. Nachfrist is not projected as a remedy or a standalone cure in the three instruments but designed to fit well with the other remedies.

Force Majeure
Force majeure is generally considered an excuse for non-performance in contracts based on situations and circumstances. Force majeure can render a contract suspended partially or even completely. CISG, UNIDROIT and PECL define force majeure in terms of impediment although they may be categorised differently. The three instruments exonerates a party when its failure to perform its obligations, is due to conditions beyond its control. The CISG Art. 79, PECL Art. 8.108 and UNIDROIT Art. 7.1.7 is similar in reflecting flexibility in that it requires only relative impossibility to make it applicable. However it should be noted here that neither PECL nor UNIDROIT contain provisions on third persons like that provided by CISG Art. 79(2), although the term impediment is used similarly in PECL and UNIDROIT 12. The term impediment encompasses every event like natural occurrences, third party acts etc. PECL and CISG provide excuse for non-performance only for as long as the performance is impossible, while the UNIDROIT Principles makes available the excuse for a reasonable period. Notification of the force majeure is to be done to the aggrieved party in accordance with PECL Art. 8.108(3), CISG Art. 79(4) and UNIDROIT Art. 7.1.7(3) and all three fix the risk of late receipt or non-receipt of this communication on the sender. The non-performing party becomes responsible for damages arising from non-receipt of force majeure communication.

Although the UNIDROIT principles in general permit excuse, its Art. 7.1.7 (4) make important exceptions in evaluating claims associated with force majeure. The right to terminate contracts, requesting interest on money or withholding delivery are exempted. In comparison the CISG and PECL allow the aggrieved party any remedy during force majeure except to claim damages as specified by CISG Art. 79(5) or claim performance and damages under PECL Art. 8.102(2). A notable feature of the international commercial contracts is that they contain more specific and elaborate rulings with regard to force majeure, though they are not mandatory. The regulations associated with force majeure are mostly general, facilitating the parties to provide specificities as per their requirements.  

Responsibility for third party
A major difficulty sought to be addressed by the legal instruments is determining the responsibility of a party for failure of a third person. .  The third party is defined, as party that is legally independent of the party to the contract, not necessarily be economically independent. Most contracts have parties using third person or parties in fulfilling their contractual obligations. On most occasions the non-performance of a party may be attributed to the non-performance by a third party.  A similar stand is taken by CISG Art. 79(2) and PECL Art. 8.107 in that the party to the contract is responsible for the performance of the third party, ruling the relationship of the contract party and its third party as being irrelevant. However the CISG Art. 79(2) has conditions, although strict, for the exemption of the party which according to Art. 79(1) requires to be fulfilled even with respect to the third person. Therefore the clauses 1 and 2 of Art. 79 may seem misleading, but these are directed at addressing different situations. CISG may therefore be considered as being lenient with regard to third party non-performance. Nonetheless, being very comprehensive on third parties, the scope of establishing an impediment to seek exceptions is very restricted in CISG 13

Termination
Preventing termination of contract is a main intention of the GISG, achieved by preserving the validity of the contract, as long as it is feasible and can avoid economic waste. Offering the aggrieved party a reduction in price appropriate to its loss, delivering goods or providing additional times for performance are among the methods sought by CISG to preserve contracts. This principle is closely followed by both the PECL and UNIDROIT. However the right to termination is provided even when impediments faced by non-performing party are excusable. CISG Art. 79 (5) provides for a party to exercise any right except seeking damages. UNIDROIT extends the right to terminate contract to an aggrieved party when non-performance is excused or when the party is liable for non-performance. PECL too has similar provisions requiring the aggrieved party to provide a termination notice to the other party. The three instruments do not provide for automatic termination of contract. However PECL has a provision through Art. 8.106(4), which provides for automatic termination without notice. This is effective when the party is excused due to a complete and permanent impediment under Art. 8.108. Broadly speaking CISG rules that a party can terminate a contract when there is a fundamental non-performance, which is also reflected in UNIDROIT and PECL through their respective articles 7.3.1 (1) and 9.301(1). The major grounds for terminating a contract as per CISG, UNIDROIT and PECL are:

• Fundamental non-performance
• Anticipatory non-performance
• Fundamental non-performance with regard to partial shipment or a particular instalment.
• Inability to perform within a reasonably provided Nachfrist.

Given the vast domain covered by the instruments, a comparative analysis can only broadly speculate the similarities or differences, as they are drafted and organised differently. The three instruments in themselves strive to present fairness in complex international economic transactions, intending to offer whats due, as far as human perception and understanding is concerned. The complexity of the issues these instruments seek to resolve is evident from the fact that official commentaries are provided to UNIDROIT and the PECL. The comments and illustration making up the commentary attempt to explain the rationale behind it so that they are appropriately applied in practice. The PECL commentary too contains comments and illustrations to help explain the text. The three instruments highlight the requirement that they need to be interpreted in such way, its international character is maintained and there is uniformity in its application. The instruments may vary in the ways they perceive performance and the compensation they associate to it, but they all have a same goal the goal of justice.