This chapter addresses the chronological paradox of customary international law (CIL). The paradox is that for a new customary rule to be created states must believe that the law already obligates the behaviour specified in that rule (opinio juris). However, the behaviour in question can only be legally required once that rule has been created. As a result, creating a new customary rule would be impossible, or at the very least an incoherent process. This chapter challenges this conclusion. In addressing the chronological paradox, it provides a coherent interpretation of the creation of new customary rules. It argues that the sense of legal obligation (opinio juris) emerges from the general principle of good faith. Good faith leads to legal obligations, which compel a subgroup of states to engage in specific behaviour. Then, as a result of this subgroup’s repeated behaviour, a new customary rule emerges, obligating the entire community of states to act accordingly. To explain the shift from good faith to legal obligations and from legal obligations to customary rules, the chapter draws on interpretivism, social ontology and contemporary research on constitutive rules.

Does the applicable law have an impact on the legal effects of contract terms? Is there a convergence between the common law and the civil law? To what extent does the principle of good faith influence the effects of a contract? Does arbitration ensure a uniform interpretation of contracts?

To what extent does soft law ensure harmonisation? Does it replace the governing law or does it complement it?

The author makes the case for a new understanding of the role of consent in international law. She begins by noting that the question of consent should be as central to international law as it is in other fields of law because legal norms give rise to power relations and impose constraints upon those to whom they apply, and those in power want these constraints to be accepted. Yet, the question of consent was, as the chapter claims, never raised in the classical era when State sovereignty made it possible for States to adopt international norms without their subjects’ consent. With the Enlightenment, however, the people’s consent through representation became the foundation of domestic law. Yet, most of the time, representation is, according to the author, formal and serves to justify the law as if it were produced by the general will. Because international law reflects the fickle concurrence of States’ wills, the world community’s law does not rely on popular consent. The world community is confronted with difficult challenges, and it needs, more than ever, norms that can meet this moment.

In other chapters, we examined how party autonomy shapes the parties’ contractual relations. Indeed, party autonomy is the cornerstone of the law of contracts and in general terms, the law intervenes in this process only sparingly with mandatory rules. In this chapter, we examine those circumstances where the civil law (both the CC and special laws) not only intervenes but invalidates the parties’ express consent on the ground that their agreement lacked good faith or imposed unfair terms on the weaker party. The imposition of good faith is equally justified by reference to public policy even if not expressly spelt out. This ‘parental’ regulation of contracts is not without contention and as the reader will come to realize, the contours of the application of good faith differ among jurisdictions, although our emphasis here is on the Qatari experience.

This chapter examines an important, yet relatively obscure dimension in the life cycle of a contract. Whenever the parties, upon formation, disagree about the meaning of a particular term, they will turn to the courts for clarification. Consequently, the courts must determine, but effectively interpret/construe the term in question in light of the contract as a whole. The CC sets out several interpretative tools that guide the courts in this process. These consist of literal interpretation, ascertainment of the parties’ common intention or their shared subjective understanding, as well as maxims such as the contra preferentem rule. Contractual interpretation under the CC is predicated on rules and principles typically associated with the civil law tradition, but there do exist several differences that are peculiar to the CC

The Vienna Convention on the Law of Treaties remains the yardstick for the interpretation of treaties. International tribunals generally base their decisions on Convention rules, although, as different areas of law with their own dispute settlement systems have developed, there are also particular approaches. The Convention rules are contained in Articles 31--33, and the chapter focuses on these. Each element of the general rule of interpretation in Article 31 and the supplementary means of interpretation in Article 32 is analysed, including the role of subsequent agreement or subsequent practice. Further sections summarise other supplementary means of interpretation and look at treaties in more than one language.

Following the publication of a U.S. News and World Report article about ICN’s CEO, Panic, entitled “Sex and the CEO” detailing the pharmaceutical company’s expansive cover-up of workplace sexual harassment, a shareholder, White, filed suit against Panic for breaching his fiduciary duty by using corporate funds to resolve sexual harassment claims. The feminist rewrite finds that Panic and ICN’s board failed to exercise valid business judgment and did breach their fiduciary duty. The lack of diversity on ICN’s all-male boardroom is noted as a factor that led to the acceptance of Panic’s workplace sexual harassment and the allowance of corporate funds to actively conceal it. The examination refuses to sanitize the legal analysis to only rules and processes and instead chooses to analyze the case for its full revealing facts. The rewritten opinion views ICN’s board’s repeated decision to use corporate funds to settle sexual harassment cases as a proof of the fact that the board did in fact have actual knowledge of the persistent sexual harassment of its employees by Panic. Using precedent available at the time of White v. Panic, the feminist rewrite is able to come to the conclusion, which has become more common twenty years later in the post-#MeToo world.

This chapter explores the potential for the revival of the common law of contract.The emphasis is on the possibility of judicial action to reverse some of the movements explored earlier in the work. Contract scholars with a more pragmatic or practical approach to the subject have long maintained that contract law must do more to distinguish different contracting contexts and to develop appropriate rule sets accordingly. The recent engagement with the concept of relational contracting demonstrates a judicial ambition (admittedly not shared by all) to create a more responsive, contextual and flexible contract law.The development of relational contracts is considered and critiqued in the chapter. Developments in other common law jurisdictions (notably the elaboration of an organising principle of good faith in Canada) are contrasted with English law. The chapter concludes that English law is unlikely to follow the lead of other common law countries in articulating good faith principles. Limitations on the litigation system in England are also examined.

Chapter 13 summarizes important findings and offer two recommendations to the Court with regard to how Article 13 could be developed: (1) The Court should engage in more and stricter procedural review by controlling and setting out requirements with regard to how domestic remedial authorities must consider whether the Convention has been violated. To this end, the Court should make more use of Article 13. The counterpart of the increased procedural review should be less substantive review. (2) The Court should engage in more principled and abstract reasoning concerning Article 13, in particular the required form of redress. More principled and abstract reasoning stands in contrast to concreteness. It provides guidance, but allows for flexible implementation in different domestic legal systems.

The award of the arbitrators in the Taba case has been subject to criticism on the grounds that the arbitrators based their decision on existing markers on the ground and refrained from examining when the markers had been placed and by whom and whether their siting was in accordance with the legal boundary. Nevertheless, it was a landmark case in that for the first, and so far only time, Israel and a neighbouring Arab State settled a border dispute by means of an international arbitration. States usually go to arbitration only on matters that they do not consider to be of fundamental importance and losing would not have far-reaching consequences. This is true of the Taba dispute, which involved a dispute of some 250 metres of shoreline.Professor Lapidoth summarises that for political and perhaps even psychological reasons the two parties attributed to this dispute much more weight than was objectively reasonable.

The WA has several common provisions which set out various obligations as to how the WA (and the Protocol as an integral part of the WA) is to be interpreted and applied. This chapter explores the duty of ‘good faith’ and the duty of ‘sincere co-operation’, which feature in Article 5 WA. This provides, in part, that the EU and the UK ‘shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement’. In addition, Article 5 provides that this obligation of good faith ‘is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation’.

The Australian approach to multi-tier dispute resolution and arb-med clauses may be described as one of progressive acceptance. Australian courts now generally recognise and give effect to negotiation and mediation clauses, where entered into as a prerequisite to litigation or arbitration. ‘Good faith’ negotiation clauses and ‘agreements to agree’ a future dispute resolution process are also increasingly accepted, although clauses which are futile or unconscionable will not be enforced.

The current regime for arb-med was introduced in Australia in uniform State and Territory domestic arbitration legislation from 2010 and is based on the Singapore and Hong Kong models. While a recent New South Wales decision reveals a willingness to support the process, concern exists about the strict requirement for party consent to a mediator continuing to act as arbitrator. There is currently no scope for parties to choose arb-med in an international arbitration seated in Australia.

This chapter assesses multi-tiered clauses from an English perspective. It retraces the developments in case law which established strict criteria regarding the enforceability of these clauses and alerts parties to numerous pitfalls in the drafting process. Furthermore, it discusses the English approach to good faith in negotiations which also has an impact on the drafting and interpretation of multi-tiered clauses.