Palmer's fascinating study analyzes the ingrained tendency to prevent third party beneficiary actions through a historical account of privity of contract. Chapter I discusses the origins and historical questions surrounding the issue of privity. Chapter II covers the triumph of consideration in the formative period, 1500-1680. Chapter III outlines the expansion in the chancery phase, 1680-1800, and Chapter IV deals with the rise of the parties-only principle at law and equity during the 1800s.
Privity is an extensive analysis of the theoretical issues raised by the question of third-party rights in contract. More than just an examination of the practical problems of the Privity rule itself, it questions whether contract is to be seen as a matter of public regulation or private justice.
Privity of Contract offers a unique perspective of how the Contracts (Rights of Third Parties) Act 1999 works in practice. Issues covered include: the operation of the doctrine of privity prior to its repeal; the scope and impact of the 1999 Act; and the operation of the 1999 Act in the most important commercial contexts to which it is applicable. It also incorporates discussion and the text of the Law Commission reports, whose proposals produced the bill that ultimately passed into law.
Is privity of contract the reason why investor-state dispute settlement (ISDS) is open to critics, or could it contribute to solving the system’s legitimacy crisis? Privity of contract essentially means that a subject must be a party to a contract, in order to acquire rights and assume obligations, to sue and be sued under that contract. Privity of contract came to land on the shores of ISDS and this has at least on one occasion been described as an ‘original sin’. Arbitral tribunals often need to decide whether they have jurisdiction in cases where a party to the investment contract is not the claimant but a related entity, or not the central government, but a state agency or state-owned enterprise. In light of the deep interconnection between, on the one hand, the criticism today surrounding investment treaty arbitration – be it called judicial activism and regulatory chill, or be it called abuse of law and indirect claims – and, on the other hand, the domains where privity of contract applies, this book’s original and far-reaching analysis clearly lays out, via an in-depth examination of relevant case law, a possible use of the doctrine that can contribute to leading ISDS out of the crisis. The study’s conclusions respond with thoroughly researched authority to such key questions as the following: In which domains of international investment arbitration does the notion of privity of contract operate, and with what effects? How are states and arbitral panels reacting to the persisting unresolved issues raised by the increasing pertinence of this legal doctrine? What solutions are advisable in the midst of the current criticisms surrounding ISDS? The author finds that the doctrine of privity of contract finds application in heterogeneous scenarios, from decisions on jurisdiction where there are forum selection clauses in investment contracts or fork-in-the-road provisions in investment treaties, to consolidation, counterclaims and umbrella clause claims. She proposes a flexible interpretation of the doctrine of privity of contract as a guiding principle arbitral tribunals should consider along with other factors (inter alia the tightness of the relation between the investor and its subsidiary and the host state’s involvement in the organization and function of agencies or state-owned enterprises). The book’s thorough and extensive examination of investment arbitration case law draws comparisons with other international adjudicatory bodies and identifies the most actual and compelling unresolved legal issues. Appendices include lists of many of the arbitration cases, international judgments and national judgments discussed. As a constructive contribution to the current debate, this enquiry is an extraordinary achievement. No other study has conducted such thorough research on the application of privity of contract in investment treaty arbitration. It will be of great interest to arbitration lawyers, arbitrators, foreign investors, host states and scholars in all areas of international arbitration and dispute settlement.
This book, based on English law of contract, considers the development and present state of the doctrine of Privity of Contract with clear references to cases in other major common law jurisdictions (Australia, Canada, New Zealand and Singapore). The work opens with a history of development of the privity rule and its place in English up to the enactment of the Contract (Right of third parties) Act 1999. The books considers common law and statutory exceptions in detail as well as major statutory exceptions from other jurisdictions. There is also consideration of the operation of the rule with regard to exemption clauses and attempts to impose liabilities and burden on non-parties. A large section of the book considers the rights of a promise where the loss suffered by reason of a breach of contract has been incurred by a third party. The final chapters consider the position under the Contract (Right of third parties) Act 1999 and look at the international position, considering work undertaken by UNIDROIT. This book fills a gap for a more thorough examination of the law of privity and is written by two well-known and experienced authors on contract law.
In recent years there has been a flourishing body of work on the Law of Treaties, crucial for all fields within international law. However, scholarship on modern treaty law falls into two distinct strands which have not previously been effectively synthesized. One concerns the investigation of concepts which are fundamental to or inherent in the law of treaties generally - such as consent, object and purpose, breach of obligation and provisional application - while the other focuses upon the application of treaties and of treaty law in particular substantive (e.g. human rights, international humanitarian law, investment protection, environmental regulation) or institutional contexts (including the Security Council, the World Health Organization, the International Labour Organization and the World Trade Organization). This volume represents the culmination of a series of collaborative explorations by leading experts into the operation, development and effectiveness of the modern law of treaties, as viewed through these contrasting perspectives.
Privity of Contract offers a unique perspective of how the Contracts (Rights of Third Parties) Act 1999 works in practice. Issues covered include: the operation of the doctrine of privity prior to its repeal; the scope and impact of the 1999 Act; and the operation of the 1999 Act in the most important commercial contexts to which it is applicable. It also incorporates discussion and the text of the Law Commission reports, whose proposals produced the bill that ultimately passed into law.
