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The Research Project on the Principles of BRICS Commercial Contracts Law. An Introduction

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The Principles of BRICS Contract Law

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 102))

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Abstract

The chapter sets out the context and aim of the volume. It first investigates the history and meaning of the notion of BRICS—acronym for Brazil, Russia, India, China and South Africa—and then explains its potential as far as the law, and harmonization of commercial contract law in particular, is concerned. Finally, the chapter sheds light the goals and methodology of the research project on the Principles of BRICS Commercial Contracts Law, illustrating how it developed and what its next steps might be.

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Notes

  1. 1.

    The term BRICs was originally used in 2001 by Jim O’Neill, then chairman of Goldman Sachs Asset Management, in his publication Building Better Global Economic BRICs, Goldman Sachs, Paper No. 66, 30 November 2001, available at https://www.goldmansachs.com/insights/archive/archive-pdfs/build-better-brics.pdf. In the report O’Neill predicted, “the real GDP growth in large emerging market economies in 2001 and 2002 would exceed that of the G7”. The group met for the first formal summit in 2009. In 2010, South Africa joined the group so that it was renamed BRICS.

  2. 2.

    See the “Sanya Declaration”, Hainan, China, on April 14, 2011 where one reads: “The Heads of State and Government of Brazil, Russia, India and China welcome South Africa joining the BRICS and look forward to strengthening dialogue and cooperation with South Africa within the forum”. The official documentation is available at the “BRICS Information Center” of the University of Toronto, http://www.brics.utoronto.ca.

  3. 3.

    Source: BRICS Joint Statistical Publication, Johannesburg 2018, available at https://www.statssa.gov.za/wp-content/uploads/2018/11/BRICS-JSP-2018.pdf; and Sengupta (2019).

  4. 4.

    See Marr (2010).

  5. 5.

    See Scaffardi (2012).

  6. 6.

    On these potentials, amidst the economists, see e.g. Jones (2012); Nadkarni and Noonan (2012). In the legal scholarship literature one can see Neuwirth et al. (2017); Scaffardi (2014). According to Mancuso (2017), even though it is easier to show what BRICS is not (“it is neither simply a regular summit nor a simple international organization”), legal scholars should “try to understand the legal implications of it”. See also Bussani (2018); Carducci and Bruno (2014), stressing the necessity “to analyze the legal-institutional dimension of the BRICS phenomenon”.

  7. 7.

    See Scaffardi (2012). According to the Author, “what was once an aspiration of “emerging economies” is now creating a “legal network””.

  8. 8.

    The meeting was held in Yekaterinburg, Russia, on June, 16 2009. See official documents at http://www.brics.utoronto.ca/docs/090616-leaders.html.

  9. 9.

    The 2009 Joint Statement of the BRIC Countries’ Leaders, available at http://www.brics.utoronto.ca/docs/090616-leaders.html, reads: “The emerging and developing economies must have greater voice and representation in international financial institutions, whose heads and executives should be appointed through an open, trans- parent, and merit-based selection process. We also believe that there is a strong need for a stable, predictable and more diversified international monetary system”. The Preamble, n. 4 of the Joint Declaration, Brasilia, 2019, available at http://www.brics.utoronto.ca/docs/191114-brasilia.html, reads: “We welcome, among other achievements, the establishment of the Innovation BRICS Network (iBRICS); the adoption of the New Architecture on Science, Technology and Innovation (STI), which will be implemented through the BRICS STI Steering Committee, and the Terms of Reference of the BRICS Energy Research Cooperation Platform. We also welcome the holding of the BRICS Strategies for Countering Terrorism Seminar, the Workshop on Human Milk Banks and the BRICS Meeting on Asset Recovery. We commend the signature of the Memorandum of Understanding among BRICS Trade and Investment Promotion Agencies (TIPAs), and the establishment of the BRICS Women Business Alliance (WBA). We further appreciate the approval of the Collaborative Research Program for Tuberculosis, and other initiatives promoted by the 2019 BRICS Chairship”. On the evolving nature of BRICS, see also, Scaffardi (2012), 150, footnote 14.

  10. 10.

    In these terms, see the VI BRICS Legal Forum Declaration “Building Legal Capacity for New Rule Based World Economic Order” signed in Rio de Janeiro on October 16, 2019, available at https://bricslegalforum.org/wp-content/uploads/2019/10/Rio-de-Janeiro-Declaration.pdf.

  11. 11.

    Scaffardi (2012), 162.

  12. 12.

    The 2015 Strategy for BRICS Economic Partnership document signed at the 2015 BRICS Summit was held in Ufa (Russia); it is available at http://www.brics.utoronto.ca/docs/150709-partnership-strategy-en.html.

  13. 13.

    See the official documents at https://bricslegalforum.org/wp-content/uploads/2019/05/BRASILIA-DECLARATION-1st-Forum.pdf.

  14. 14.

    See the official document at https://bricslegalforum.org/wp-content/uploads/2019/05/CAPE-TOWN-DECLARATION-5th-Forum.pdf, particularly point. n. 8.

  15. 15.

    For a general view on the Legal Forum, see the official home page available at https://bricslegalforum.org/about/. In particular, see the document issued from the Conference held in Cape Town on 23–24 August, 2018, at https://bricslegalforum.org/wp-content/uploads/2019/09/BRICS-LF2018.-Book-of-Abstracts-Cape-Town.2018.-Final.16.9.2019.pdf, points n. 5, 6 and 10.

  16. 16.

    See https://bricslegalforum.org, where the Legal Forum is defined as an “opportunity for legal cooperation through unity and diversity”.

  17. 17.

    See the “New Delhi Declaration” of 2016, made by the BRICS countries for the third Legal Forum, available at https://bricslegalforum.org/wp-content/uploads/2019/05/NEW-DELHI-DECLARATION-3rd-Forum.pdf. Worth mentioning is also the BRICS Law Journal, founded in 2014 and published in Russia by the Tyumen State University and available at https://www.bricslawjournal.com.

  18. 18.

    The project started in 2014. See below, Section IV.

  19. 19.

    See https://bricslegalforum.org/wp-content/uploads/2019/05/BRICS-Legal-Forum-Programme-24-and-24-August-2018.pdf.

  20. 20.

    The above-mentioned classifications are obviously debatable, and applying them to BRICS may result even more problematic. A few examples can be brought forward in this respect. Russian company law has been highly influenced by Western law, mainly US company law (see Dedov and Molotnikov 2017, Nougayrède 2013). India displays great legal diversity and legal pluralism with various indigenous, Hindu and Islamic laws being applied in different contexts and fields (see, ex multis, Menski 2006, Lingat 1967). Modern Chinese law is commonly associated with the civil law legal family due to the great influence that European continental law exercised on its (official) legal development and on its codification activity preceded by detailed statutory law largely based on the Romano-Germanic model (on the influence exercised by German law on the development of Chinese law, using Japan and Taiwan as access doors, see Chen 2011). However, the strong presence of the socialist pattern and the common law influences deriving from the adoption of institutions from Hong Kong (on which see Chen 2009)—not to mention the deeply rooted sway of traditional law—could lead to Chinese law being considered as a hybrid mixed system, on which see Castellucci (2010).

  21. 21.

    Moreover, the Covid-19 pandemic obliged the Chinese authorities to postpone the official adoption of the Code which was originally scheduled for March 2020.

  22. 22.

    ‘The Common Core of European Private Law’ project was started in 1993 by Ugo Mattei and one of the authors of this paper. While receiving quite a substantial attention in the comparative law literature, the Common Core project has so far been involving more than three hundred scholars. For a more extensive and complete presentation of the project, see Bussani (2015); see also Bussani and Mattei (1997–1998), Bussani et al. (2009), Bussani and Mattei (2007), Bussani and Mattei (2003).

  23. 23.

    At Cornell, Schlesinger launched in 1957 his collective comparative research project on the ‘Formation of Contracts’, which resulted, in 1968, in the publication under his general editorship of two monumental volumes: Schlesinger (1968). See also Schlesinger (1957), Farnsworth (1969), Ehrenzweig (1968), Braucher (1970). For a discussion of Schlesinger’s (as well as Rodolfo Sacco’s) fundamental contributions to comparative law research, see Mattei (2001).

  24. 24.

    UNIDROIT has worked extensively in the area of contract law and adopted a variety of instruments intended to offer harmonised and effective rules to respond to the evolving needs of modern transactions. The UNIDROIT Principles of International Commercial Contracts (whose first edition dates back to 1994) constitute a non-binding codification or “restatement” of the general part of international commercial contracts law, providing a comprehensive set of rules dealing with all the most important topics in that matter. The latest edition of the UNIDROIT Principles was published in 2016 (full text available at https://www.unidroit.org/english/principles/contracts/principles2016/principles2016-e.pdf). See ex multis, Bonell (2009, 2018).

  25. 25.

    Indeed, another fundamental approach followed by the project is the dynamic comparative law methodology principally developed by Rodolfo Sacco during the last forty years. Sacco’s theory is based on the assumption that a list, albeit exhaustive, of all the reasons given for the decisions made by the courts is not the entire law and that the statutes or the definitions of legal doctrines given by scholars are not the entire law. Therefore, it is necessary to analyze the full, complex relationship among what he calls the ‘legal formants’ of a system, that is, all those elements that make up any given rule of law among statutes, general propositions, particular definitions, reasons, holdings and so on, to know what the law is. The theory is summarized in Sacco (1991).

  26. 26.

    For a full discussion of this issue see Mancuso (2017) 265 and ff.

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Authors and Affiliations

  1. University of Trieste, Trieste, Italy

    Mauro Bussani

  2. University of Macau, Macau SAR, People’s Republic of China

    Mauro Bussani

  3. University of Palermo, Palermo, Italy

    Salvatore Mancuso

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  1. Mauro Bussani
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  2. Salvatore Mancuso
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Correspondence to Mauro Bussani .

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Editors and Affiliations

  1. University of Palermo, Palermo, Italy

    Salvatore Mancuso

  2. University of Trieste, Trieste, Italy

    Mauro Bussani

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Bussani, M., Mancuso, S. (2022). The Research Project on the Principles of BRICS Commercial Contracts Law. An Introduction. In: Mancuso, S., Bussani, M. (eds) The Principles of BRICS Contract Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 102. Springer, Cham. https://doi.org/10.1007/978-3-031-00844-3_1

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