bluuebunny/crossref_metadata_2025 huggingface dataset:
Irony and sarcasm in follow-ups of metaphorical slogans
Authors: Musolff Andreas
Published: June 2017

In public political discourse, figurative expressions used by one participant are often followed up and ‘countered’ by other participants through ironical allusions, comments and altered quotations aimed at denouncing the original version or deriving a new, contrarian conclusion from it. What is the relationship between metaphor and irony in such cases: are they independently processed and then added to each other in the overall interpretation or are they integrated into a ‘blended’, context-dependent implicature? Using data from a corpus documenting the long-running political debate in Britain about the nation’s place at the heart of Europe, this paper investigates the interplay of metaphor, irony and sarcasm in comprehension processes. It is argued that the latter two involve speaker-hearer-shared awareness of aspects of the ‘discourse history’ of the slogan, including a default version of the metaphor, which in the case of sarcasm, is recontextualised in a contrasting scenario (e.g. that of a dead, rotting, diseased heart) with the aim of insulting or disqualifying the echoed or pretended ‘preceding’ speaker.
Investigating sarcasm comprehension using eye-tracking during reading
Authors: Țurcan Alexandra , Filik Ruth
Published: June 2017

This chapter tests the hypothesised effects of various factors on sarcasm processing. In an eye-tracking experiment, participants read texts ending in either literal or sarcastic and familiar or unfamiliar remarks, either echoing a previous contextual utterance or not. Results indicated that (1) the effect of utterance literality was observed in the later processing stages when sarcasm was more difficult to process than literal language, (2) utterance familiarity also affected processing, and (3) echoing an antecedent made comments faster to read. A novel finding was that echoing an antecedent made sarcastic comments as easy to process as literal equivalents – a result not easily explained within any of the frameworks under investigation here. Implications for theories of sarcasm comprehension are discussed.
“The people” in populist discourse
Authors: Chilton Paul
Published: June 2017

At the centre of populism is a problem of meaning. We could simply say it is a semiotic problem, but I would like to go further, and say that it’s a cognitive problem, one intrinsic to the human nervous system. It is a characteristic of our species that becomes highly active and significant in group action at certain social and historical conjunctures. The problem is the meaning of the word people, which on most accounts is centrally important for making out what the phenomenon called “populism” is about. It is unhelpful to say the word is meaningless or vague, because clearly something is going on in the minds of its users and their hearers. That something is not simply about denoting an entity; it is about activating a mental effect.
Language growth in child Emirati Arabic
Authors: Ntelitheos Dimitrios , Idrissi Ali
Published: June 2017

This study calculates developmental indices of language growth in Emirati Arabic based on a two-year longitudinal corpus collected from six Emirati children.1 The target indices include Mean Length of Utterance in morphemes and words (MLUm and MLUw), utterance-per-turn counts (UoT), type-token-ratio (TTR) and an index of vocabulary diversity (D). Spearman correlation tests show significant correlations between MLUm, MLUw and age. A slightly weaker correlation is found between age and D, while no correlation is found with TTR. Finally, a strong correlation is found between age and UoT. The results provide an important new data point in the body of knowledge about language growth, and show that language acquisition displays similar developmental patterns for linear morphological processes across languages.
Key concepts in the history of creole studies
Authors: Bakker Peter
Published: June 2017

This chapter serves as a brief introduction to creole studies. It mostly deals with issues that are discussed in the book, but not exclusively. It starts with an introduction of terminology, and key terms are printed in CAPITALS. The second part presents a number of observations and claims that have been made more or less explicitly in creole literature. Some key sources are given, and arguments are discussed briefly. This background knowledge should enable the reader to interpret the subsequent chapters, and take an informed position on the basis of the results presented there. We end by discussing a number of issues that could become important in the future of creole studies.
Methods
Authors: Bakker Peter , Sippola Eeva , Borchsenius Finn
Published: June 2017

This chapter provides an overview of the phylogenetic models used in this book. In the introduction, we present the aims and limitations of the chapter and clarify some basic concepts. After presenting the steps of linguistic phylogenetic analyses, we proceed to explain the different data types that are examined in this book, such as lexical and typological features, and describe how these are coded. In the final sections, we discuss the resulting network and tree models and how to interpret the graphic representations built using linguistic data. In short, this chapter enables the reader to interpret the graphs and to assess the validity of the results.
Creole typology I
Authors: Bakker Peter , Daval-Markussen Aymeric
Published: June 2017

This chapter provides an overview of structural properties of creole languages based on widely different languages and spoken in a broad geographic range. We discuss phonology, morphology, syntax and lexicon. Phonologically, creoles tend to have average properties. Creoles are generally not endowed with a rich morphological apparatus, for instance contextual inflection is largely absent, but compounding, reduplication and some derivational processes are common. Syntactically, creoles are quite diverse in their nominal structures. Preverbal markers are common in the verb phrase. A relatively fixed constituent order is found in the basic transitive sentence, mostly SVO. These creole properties are compared with a sample of non-creole languages. The results suggest that lexically, creoles seem to be less mixed than European languages.
West African languages and creoles worldwide
Authors: Daval-Markussen Aymeric , Friis Bøegh Kristoffer , Bakker Peter
Published: June 2017

In creole studies, there has been a long tradition of discussing the respective contributions of African languages in the genesis of creoles spoken primarily in the Atlantic and the Indian Oceans. Creolists have often assumed that the African languages that contributed to the creation of creoles were typologically rather uniform (e.g. Singler 1988). Very few studies have compared more than a handful of languages when searching for African influences in creoles (e.g. Parkvall 2000). In this chapter, we investigate the claim that the African languages involved in the colonial settings, and hence in the creation of various creole languages, were typologically homogeneous. Moreover, we assess the extent to which a selection of proposed stable features is shared (i) between creoles with and without African influence, (ii) between creoles and West African languages known to have influenced these creoles, and finally, (iii) between creoles and their lexifiers.
The simple emerging from the complex
Authors: Goldshtein Yonatan
Published: June 2017

This chapter examines the system of nominal number in Juba Arabic. Its complexity is compared with its superstrate language, Sudanese Arabic, and its substrate, the Nilotic language Bari. It also compares its similarity with a number of creoles, Nilotic languages and Arabic dialects. Both Arabic and Nilotic languages are notorious for their complex systems of nominal number, making Juba Arabic an interesting case for the study of creole complexity. Following Bakker et al. (2011), I use computational phylogenetic tools to look at the linguistic similarity of the languages under examination. The findings show that Juba Arabic is simpler than its constrates, and that it is more similar to unrelated creoles than the languages from which it emerged.
Dutch creoles compared with their lexifier
Authors: Bakker Peter
Published: June 2017

In this chapter, we compare lexical and grammatical data from three Dutch-based creoles: Virgin Islands Creole Dutch, Berbice Creole and Skepi Dutch of Guyana. We consider the lexicons, as well as phonological and typological patterns, and both synchronic and diachronic comparisons are made. Typologically, Berbice Creole appears closer to Dutch than the other two creoles, but lexically it is the farthest from Dutch. For some of the analyses, phylogenetic software was used to visualize connections and distances between each of the creoles and the lexifier Dutch. The conclusion is that the three creoles came into being independently. From a diachronic perspective, the documented forms of Virgin Islands Creole Dutch show mostly a gradual move away from Dutch and toward a more creole-like profile in the 20th century.
Lexicalization patterns in core vocabulary
Authors: Levisen Carsten , Aragón Karime
Published: June 2017

The study of semantic domains is important for creolistics, given the complex label-meaning configuration in creoles vis-à-vis the European lexifiers. Due to the lexical semantic creativity in the creolization process as well as the subsequent developments and contacts with lexifiers, substrates, and other contact varieties, each domain seems to have its own history, its own configuration. Comparing words in four different semantic domains, we contrast the labels and lexicalizations of social concepts, body-part terms, environmental concepts, and abstract categories, with an anchor in core categories in conceptual semantics. Based on findings from cross-linguistic investigations into core vocabularies: semantic molecules and semantic primes, we study the lexicalizations of the following meanings in creoles: ‘children’, ‘women’, ‘men’, ‘mother’, ‘father’, ‘wife’, ‘husband’ (social molecules), ‘head’, ‘eyes’, ‘ears’, ‘mouth’, ‘nose’, ‘hands’, ‘legs’ (body-part molecules), ‘sun’, ‘sky’, ‘ground, ‘water’, ‘fire’, ‘day’, ‘night’ (environmental molecules), and ‘not’, ‘maybe’, ‘can’, ‘because’, ‘if’, ‘very’ and ‘more’ (semantic primes – abstract concepts). We utilize phylogenetic networks to compare and contrast lexicalization patterns between domains. Our study suggests that these core semantic-conceptual constructs tend to cluster with their lexifiers, but that there are important differences across domains – the label-meaning configurations of the social domain stand out as the most diverse, and the environmental domain as the most homogenous.
The semantics of Englishes and Creoles
Authors: Levisen Carsten , Priestley Carol , Nicholls Sophie , Goldshtein Yonatan
Published: June 2017

This chapter provides a lexical-semantic comparison of a selection of Englishes and English-related creoles in the Australia-Pacific area. Faced with the conundrum in sociolinguistic classificatory practice and its contested categories: “language”, “creole”, “dialect”, “variety”, and “English(es)”, we will attempt to circumvent the problematic of metavocabulary by taking a new, two-pronged approach. Firstly, we rely on semantic primes, simple words meanings such as I, you, people, body, big, small, know, think, see, hear as our comparandum, and compare and contrast the lexicalizations of these basic meanings across our sample. Secondly, we utilize phylogenetic networks for visualizing our results and as a tool for forming new hypotheses. Our results provide counter-evidence to the claim that Melanesian and Australian creoles are “varieties of English”. In our sample, we find three basic types of relations. “Shared-core” types (Australian English v. New Zealand English); “closely related core” types (Hawai’i Creole v. Anglo Englishes); and “distantly related core” types (Tok Pisin v. Anglo English, Kriol v. Anglo English, or Yumplatok v. Anglo English). We measure our results against Scandinavian languages in order to explore the language-dialect question, and against Trinidadian – a Caribbean creole, in order to explore the extent of lexical-semantic areality. We conclude that current sociolinguistic metavocabulary is inadequate for representing the complexity of the new ways of speaking in the Australia-Pacific region, and we suggest a principled areal-semantic investigation of words based on semantic principles.
Assessment of valence, arousal and subjective frequency of the use of a battery of affective words related to death / Evaluación de la valencia, activación y frecuencia subjetiva de uso de una batería de palabras afectivas relacionadas con la muerte
Authors: Fernández-Alcántara Manuel , Martí-García Celia , Cruz-Quintana Francisco , Pérez-García Miguel , Catena-Martínez Andrés , Pérez-Marfil Mª Nieves
Published: June 2017

This study presents the values of valence, arousal, subjective frequency of use and degree of relationship with death of 125 words of an affective nature, assessed by university students and including words related to death ( N = 65). The values of these words were found to be different to words of pleasant, unpleasant and neutral natures.
Distribution, Density, and Size of Migratory and Fluvial Sculpins in Relation to Barriers in Puget Sound Lowland Streams
Authors: Tabor Roger A. , Waterstrat Frithiof T. , Lantz Daniel W. , Berge Hans B. , Liermann Martin C.
Published: June 2017

We examined the effects of potential barriers on populations of migratory sculpins (Coastrange Sculpin Cottus aleuticus and Prickly Sculpin C. asper) and fluvial sculpins (Riffle Sculpin C. gulosus, Shorthead Sculpin C. confusus, and Torrent Sculpin C. rhotheus). Barriers can alter sculpin distribution because migratory sculpins have pelagic larvae that drift downstream to calm waters and juveniles and adults migrate upstream. We compared sculpin populations upstream and downstream of a barrier in 19 lowland streams in the Puget Sound region, Washington. Within each stream, we examined the farthest downstream barrier that would be most likely to impact the upstream movements of migratory sculpins. All study streams had populations of migratory sculpins in stream reaches downstream of the barrier. In 8 of the 19 streams with a barrier, at least one species of fluvial sculpin was also present. We also documented the relative distribution of migratory sculpins and fluvial sculpins in one reference stream without a barrier. In all streams examined, the density of migratory sculpins upstream of the barrier was lower than that downstream of the barrier and the differences were statistically significant. In 12 of the 19 streams, migratory sculpins were not present upstream of the barrier. In streams with fluvial sculpin populations, fluvial sculpins were usually rare downstream of barriers and were statistically less abundant than upstream of the barrier. The migratory sculpins collected upstream of barriers were statistically larger than those collected downstream of barriers. In the reference stream, migratory sculpin species dominated the lower stream reaches and were gradually replaced by fluvial sculpin species in more upstream reaches. Overall, barriers appear to have an important effect on the distribution of both migratory sculpins and fluvial sculpins, which should be taken into account when assessing habitat modifications and fish communities in Puget Sound lowland streams.

Received November 4, 2016; accepted March 25, 2017 Published online June 12, 2017
Approximate energies and thermal properties of a position-dependent mass charged particle under external magnetic fields
Authors: Eshghi M , Mehraban H , Ikhdair S M
Published: June 2017

We solve the Schrödinger equation with a position-dependent mass (PDM) charged particle interacted via the superposition of the Morse-plus-Coulomb potentials and is under the influence of external magnetic and Aharonov–Bohm (AB) flux fields. The nonrelativistic bound state energies together with their wave functions are calculated for two spatially-dependent mass distribution functions. We also study the thermal quantities of such a system. Further, the canonical formalism is used to compute various thermodynamic variables for second choosing mass by using the Gibbs formalism. We give plots for energy states as a function of various physical parameters. The behavior of the internal energy, specific heat, and entropy as functions of temperature and mass density parameter in the inverse-square mass case for different values of magnetic field are shown.
Ch.1 The Constitutional Framework
Authors: Loraine Sievers , Sam Daws
Published: June 2017

This introductory chapter presents the background and definition of the framework used in Security Council operations. The UN Charter had been ratified in haste in 1945, though there soon arose difficulties in interpretation and procedure as regards a document that is essentially a living institution. Consequently, much of the practice established by the Security Council in relation to the interpretation of its Provisional Rules of Procedure developed during those early decades. Practice was generally laid down on a case-by-case basis, sometimes without complete consistency, until there seemed to be consensus on most of the procedural points at issue. Since the end of the Cold War, while skirmishes over procedure among Council members still occasionally occur, more often the procedural matters taken up by the Security Council have been in connection with its relations with non-Council Member States and working methods which would enhance the Council's efficiency.
Ch.9 Relations with other organs and entities
Authors: Loraine Sievers , Sam Daws
Published: June 2017

This chapter explores the partnerships between the Security Council and other international entities. In particular, the Council shares a progressive and multi-faceted relationship with the General Assembly, which possesses certain similar but distinct powers from that of the Council and establishes the broad outlines for how these two bodies interact with each other. The Security Council also works in tandem with the Economic and Social Council; the Trusteeship Council; the International Court of Justice; the agencies, funds, and programmes of the United Nations; the International Atomic Energy Agency; the International Criminal Court; special courts, tribunals, and investigative panels; and regional and subregional organizations, such as the African Union, the European Union, among others.
Multi-locus and long amplicon sequencing approach to study microbial diversity at species level using the MinION™ portable nanopore sequencer
Authors: Benítez-Páez Alfonso , Sanz Yolanda
Published: June 2017

The miniaturized and portable DNA sequencer MinION™ has demonstrated great potential in different analyses such as genome-wide sequencing, pathogen outbreak detection and surveillance, human genome variability, and microbial diversity. In this study, we tested the ability of the MinION™ platform to perform long amplicon sequencing in order to design new approaches to study microbial diversity using a multi-locus approach. After compiling a robust database by parsing and extracting the rrn bacterial region from more than 67000 complete or draft bacterial genomes, we demonstrated that the data obtained during sequencing of the long amplicon in the MinION™ device using R9 and R9.4 chemistries were sufficient to study 2 mock microbial communities in a multiplex manner and to almost completely reconstruct the microbial diversity contained in the HM782D and D6305 mock communities. Although nanopore-based sequencing produces reads with lower per-base accuracy compared with other platforms, we presented a novel approach consisting of multi-locus and long amplicon sequencing using the MinION™ MkIb DNA sequencer and R9 and R9.4 chemistries that help to overcome the main disadvantage of this portable sequencing platform. Furthermore, the nanopore sequencing library, constructed with the last releases of pore chemistry (R9.4) and sequencing kit (SQK-LSK108), permitted the retrieval of the higher level of 1D read accuracy sufficient to characterize the microbial species present in each mock community analysed. Improvements in nanopore chemistry, such as minimizing base-calling errors and new library protocols able to produce rapid 1D libraries, will provide more reliable information in the near future. Such data will be useful for more comprehensive and faster specific detection of microbial species and strains in complex ecosystems.
New approach for modelling size selectivity in shrimp trawl fisheries
Authors: Larsen Roger B , Herrmann Bent , Sistiaga Manu , Brinkhof Jesse , Tatone Ivan , Langård Lise
Published: June 2017

In the deep sea trawl fishery targeting shrimp (Pandalus borealis) and other cold-water shrimp species, fishers often use a Nordmöre sorting grid ahead of a small mesh codend to avoid bycatch. However, small fish can pass through the grid and are subsequently retained in the codend. This makes shrimp size selection complex and the size-dependent curve for both the shrimp and the bycatch species often exhibits a bell-shaped signature. In this study we developed a new model and method to estimate size selection in this fishery, conducted fishing trials in the Northeast Barents Sea, and applied the new method to quantify the individual and combined size selection of the Nordmöre grid and codend for deep water shrimp and two bycatch species. The size selectivity for both bycatch species showed the expected bell-shaped signature with low retention probability of very small and larger fish. The Nordmöre grid had high passage probability for all sizes, although it decreased slightly for the largest shrimps. The smallest shrimps were released by the codend.
Italian Constitutional Justice in Global Context
Authors: Vittoria Barsotti , Paolo G Carozza , Marta Cartabia , Andrea Simoncini
Published: June 2017

This is the first book published in English to provide to an international audience a comprehensive examination of the Italian Constitutional Court (ItCC) and its principal lines of jurisprudence, historical origins, current engagement with transnational European law, organization, and procedures. In global constitutional dialogue, the voice of the ItCC has been entirely absent due to a relative lack of both English translations of its decisions and of focused scholarly commentary in English. The ItCC represents one of the strongest and most successful examples of constitutional judicial review, and is distinctive in its structure, institutional dimensions, and well-developed jurisprudence. Moreover, the ItCC has developed a unique voice among global constitutional actors in its adjudication of a broad range of topics from fundamental rights and liberties to the allocations of governmental power and regionalism. The goal of this book is to elevate Italian constitutional jurisprudence into an active participant role in global constitutional discourse and describe the “Italian style” in global constitutional adjudication. The authors have carefully structured the work to allow the ItCC’s own voice to emerge: it presents broad syntheses of major areas of the Court’s case law, provides excerpts from notable decisions in a narrative and analytical context, addresses the tension between the ItCC and the Court of Cassation, and situates the development, character, and importance of the ItCC’s jurisprudence in the larger arc of global judicial dialogue.
I The Constitutional Court, 1 The Historical Development of Italian Constitutional Adjudication
Authors: Vittoria Barsotti , Paolo G Carozza , Marta Cartabia , Andrea Simoncini
Published: June 2017

One of the remarkable facts of constitutional judicial review in Italy is the way in which it was grafted onto a tradition of law that had been very inhospitable to any such practice prior to the mid-twentieth century. The development of this unprecedented institution and the factors that contributed to its success not only assist the reader to understand the subsequent contours and character of the Constitutional Court but also provide a number of very useful insights and lessons for other jurisdictions seeking to establish or consolidate new and fragile systems of constitutional adjudication. This chapter traces that history and identifies those features.
II Constitutional Jurisprudence, 4 Key Rights and Freedoms
Authors: Vittoria Barsotti , Paolo G Carozza , Marta Cartabia , Andrea Simoncini
Published: June 2017

Every constitutional system today presents major controversies and encounters significant challenges in the protection and guarantees of fundamental rights, and for that reason they constitute the most lively subject of transnational constitutional dialogue. The Italian Constitutional Court has a highly developed body of jurisprudence on fundamental rights, starting with its very first decision examining the validity of Fascist laws limiting freedom of expression. This chapter provides a broad overview of some of the constitutional principles that ground fundamental rights in Italian constitutional law, such as human dignity and equality, and then presents the Court’s case law in a selected set of problem areas: personal liberty; freedom of religion; protection of the family; reproduction; social rights; immigration. These are areas with which many other constitutional systems are struggling, and the Italian Court’s particular way of conceptualizing and addressing these issues provides a welcome new voice in the global dialogue.
II Constitutional Jurisprudence, 5 Powers and Conflicts
Authors: Vittoria Barsotti , Paolo G Carozza , Marta Cartabia , Andrea Simoncini
Published: June 2017

By presenting the Court’s principal lines of case law regarding the allocation of powers in the Italian constitutional system, this chapter explores the constitutionally regulated relationships among the President, Executive, Parliament, and Judiciary. It reveals that rather than a “separation of powers” in the conventional sense of contemporary constitutional models, the Italian system is best described as instituting a set of reciprocal “relations of powers” with the Constitutional Court as the “judge of powers” that maintains and guarantees these interrelationships of constitutional actors. The chapter explores this role of the Constitutional Court in its relations with both Parliament and the President of the Republic, as well as the Court’s regulation of the relationship between the President and the Executive.
II Constitutional Jurisprudence, 6 Regionalism
Authors: Vittoria Barsotti , Paolo G Carozza , Marta Cartabia , Andrea Simoncini
Published: June 2017

Italy has a unitary rather than a federal state, and thus the constitutional system has evolved toward an increasingly complex and dynamic set of interactions between the national government and the several regions of Italy. The Court’s case law dramatically reflects that shift where disputes regarding the allocation of authority between regional and national states account for a sharply increasing proportion of the Constitutional Court’s work. This chapter presents that body of jurisprudence and thereby offers helpful points of reference and comparison for the many other constitutional systems around the world grappling with the challenges of drawing a healthy balance between local autonomy and national unity.
1 Introduction to the Colombian Constitution of 1991 and the Constitutional Court
Authors: Manuel José Cepeda Espinosa , David Landau
Published: June 2017

This chapter gives background to the reader regarding the creation of the Colombian Constitution of 1991 and the Colombian Constitutional Court. It covers the history of judicial review in Colombia before 1991, the debates regarding the creation of the Constitutional Court at the 1991 Constitutional Convention, and the core features of the 1991 Colombian Constitution. It also explains the organization and powers of the Court, its dominant theory of interpretation, and the evolving judicial role in the Colombian political and social context. The information in this chapter is essential for the reader to understand core concepts and context for the cases explored in the rest of the volume.
Part One The Constitutional Court, 2 The Role of the Constitutional Court
Authors: Manuel José Cepeda Espinosa , David Landau
Published: June 2017

This chapter presents concepts that are essential to understanding the role and functioning of the Colombian Constitutional Court. It covers the aggressive role conception of the Court in a context in which there is significant political distrust because of the dysfunctionality and corruption of some political institutions in the Colombian context. It also covers the efforts of the Court to create a system of precedent in a civil-law context, as well as its jurisprudence on the constitutional block, where the Court has incorporated core precepts of international law into the Colombian constitutional order. The purpose of this chapter is to give the reader case law needed to understand the work of the Court throughout the rest of this volume.
Part Two Rights, 4 Equality
Authors: Manuel José Cepeda Espinosa , David Landau
Published: June 2017

This chapter reviews the Colombian Constitutional Court’s jurisprudence on equality. In accordance with the constitutional text, the Court has developed a substantive conception of equality, one that allows and even encourages special measures on behalf of historically disadvantaged groups. This case law is of particular importance given the historically stratified and unequal nature of Colombian society. This chapter reviews the Court’s jurisprudence legalizing same-sex marriage, allowing gender quotas on behalf of female public officials, and requiring that the Bogota authorities take steps to make the public transportation system handicapped-accessible. In all of these cases, the Court has taken steps toward the achievement of substantive equality on behalf of the historically disadvantaged.
Part Three The Separation of Powers, 9 The President: Problems of Executive Overreach
Authors: Manuel José Cepeda Espinosa , David Landau
Published: June 2017

As in much of Latin America, the Colombian president has historically been extremely powerful. The 1991 constitutional designers sought to achieve greater balance in the separation of powers, in part by weakening presidential power. This chapter considers the Court’s attempts to limit executive discretion and protect against excessive amalgamations of executive power. Even in areas where presidents have historically enjoyed almost plenary power, such as national security, the Court has attempted to place limits on presidential power. Most significant in this regard is the Court’s aggressive and successful jurisprudence limiting presidential use of states of exception. The Court has imposed jurisprudential criteria limiting states of exception to true and unexpected social and political crises, thus greatly reducing its historical role in day-to-day Colombian life and forcing political institutions to confront most problems under a situation of normality.
Ch.3— On Close-Out Netting
Authors: Marcel Peeters
Published: June 2017

This section of the noter-up complements Transnational Securities Law by Thomas Keijser and discusses updates which relate to close-out netting. These include the following subject areas: Close-out netting and Financial Stability Board (FSB).
1 The Prerogative in Foreign Affairs
Authors: F A Mann
Published: June 2017

The conduct of foreign affairs is an executive act of government in which neither the Queen nor Parliament has any part. It is the Government which represents the State and determines its policy, though Parliament has the right and the power to control the Executive, to withhold confidence in it, to refuse to grant the financial resources required to carry out its decisions, and thus to deprive the Government's foreign policy of efficacy. Hence the Government must be certain that its foreign policy has the support of Parliament. The affairs which the Crown conducts comprise the whole catalogue of relations with foreign nations which includes the declaration of war and peace, of belligerency and neutrality, and the recognition of foreign States and of their extinction. The law can control the conduct of foreign affairs if and in so far as the prerogative has been superseded by legislation, but even where this has happened there usually remains a residue of prerogative power vested in the Executive.
The use of the PICC in arbitration
Authors: Scherer Matthias
Published: June 2017

This commentary focuses on Preamble II of the UNIDROIT Principles of International Commercial Contracts (PICC), with particular emphasis on the use of the PICC in arbitration. It discusses the application of the PICC as the lex contractus, including the agreement of the parties on their contract being governed by the PICC; references to general principles of law, lex mercatoria, or usages; application of the PICC when the parties have not chosen any law to govern their contract; and choice of law other than the PICC. It also addresses the use of the PICC to supplement or interpret the contract law; the use of the PICC by arbitral tribunals in situations not dealt with in the Preamble; the role of the PICC where arbitrators decide ex aequo et bono; challenge and enforcement of arbitral awards based on the PICC rather than on a domestic law; and application of the PICC to arbitration agreements.
Authors: Cuniberti Gilles
Published: June 2017

This commentary focuses on Article 1.5, which recognizes that the UNIDROIT Principles of International Commercial Contracts (PICC) are, with some exceptions, default rules that may be modified and, indeed, excluded, by the parties. In other words, the parties may exclude the application of the PICC or derogate from or vary the effect of any of their provisions, except as otherwise provided in the Principles. Art 1.5 does not mention any formal requirements for excluding or modifying the PICC. Thus, in accordance with Art 1.2 PICC, it must be concluded that exclusion or modification of the PICC may be either express or implied. Art 1.5 covers complete exclusion of the application of the PICC, derogation from or variation of particular provisions of the PICC, providing for the application of several legal regimes, and mandatory provisions of the PICC.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 1.7, which obliges the parties to a contract to ‘act in accordance with good faith and fair dealing’. The imposition of this duty corresponds to a global trend towards an increasing role for the standard of good faith in contract law that has been emerging for several decades. To a certain extent, the UNIDROIT Principles of International Commercial Contracts (PICC) help to reinforce this trend. Art 1.7 spells out the scope of the obligation to act in accordance with good faith and fair dealing; standard of good faith and fair dealing, including ethical standard and standard employed ‘in international trade’; consequences of failure to act in accordance with good faith and fair dealing; and burden of proof.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 1.11, which sets out some definitions of key terms of the UNIDROIT Principles of International Commercial Contracts (PICC), namely, ‘court’, ‘place of business’, ‘obligor’, ‘obligee’, and ‘writing’. The definitions are largely self-explanatory. The drafters' preference for the term ‘court’ as referring to both state courts and arbitral tribunals may, at first, seem somewhat misleading but this is justified by the intention of avoiding unduly heavy language. The terms ‘obligor’ and ‘obligee’ are unfamiliar to most users but they are useful for identifying the obliged party and the entitled party, irrespective of the nature of the performance due.
Authors: Zuloaga Rios Isabel
Published: June 2017

This commentary focuses on Article 2.1.15 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning negotiations in bad faith. Art 2.1.15 establishes liability for pre-contractual conduct in general terms. It stipulates that a party is free to negotiate and is not liable for failure to reach an agreement. However, a party who negotiates or breaks off negotiations in bad faith is liable for the losses caused to the other party. In particular, it is bad faith for a party to enter into or continue negotiations when intending not to reach an agreement with the other party. This commentary also discusses the consequences of failure to observe the principle of good faith and fair dealing, with particular emphasis on damages and the right to request performance of the obligation to negotiate in good faith, along with exclusion or limitation of liability and burden of proof.
Authors: Krebs Thomas
Published: June 2017

This commentary focuses on Article 2.2.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning agents acting without, or exceeding their, authority. Art 2.2.5 stipulates that where an agent acts without authority or exceeds its authority, its acts do not affect the legal relations between the principal and the third party. However, where the principal causes the third party reasonably to believe that the agent has authority to act on behalf of the principal and that the agent is acting within the scope of that authority, the principal may not invoke against the third party the lack of authority of the agent. This commentary discusses apparent authority and its requirements and consequences, along with the burden of proof relating to apparent authority.
Authors: Huber Peter
Published: June 2017

This commentary focuses on Article 3.2.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning remedies for non-performance. Art 3.2.4 solves the notorious conflict between the rules on mistake and the rules on non-performance in favour of the latter. It stipulates that a party is not entitled to avoid the contract on the ground of mistake if the circumstances on which that party relies afford, or could have afforded, a remedy for non-performance. This commentary discusses the requirements for exclusion of the right of avoidance for mistake, consequences of non-performance, and burden of proof relating to non-performance.
Authors: du Plessis Jacques
Published: June 2017

This commentary focuses on Article 3.2.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning threat as a reason for invalidity. Under Art 3.2.6, a party may avoid the contract when it has been led to conclude the contract by the other party's unjustified threat which, having regard to the circumstances, is so imminent and serious as to leave the first party no reasonable alternative. In particular, a threat is unjustified if the act or omission with which a party has been threatened is wrongful in itself; or it is wrongful to use it as a means to obtain the conclusion of the contract. This commentary discusses the requirements for the threat, the consequences of the threat, threats involving third parties, and exclusion of liability for threat.
Authors: Huber Peter
Published: June 2017

This commentary focuses on Article 3.2.11 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning notice of avoidance. Under Art 3.2.11, the right of a party to avoid the contract is exercised by notice to the other party. The purpose of Art 3.2.11 is twofold. First, it makes clear that avoidance of the contract for mistake, fraud or threat will not operate ipso facto, but will have to be declared by the mistaken (defrauded, or threatened) party. Secondly, it makes clear that there is no need for court intervention and that the mistaken (defrauded, or threatened) party may avoid the contract simply by making a unilateral declaration. This commentary discusses the scope of application of Art 3.2.11, how to give notice to the other party, and whether the other party has a duty to reply to the notice.
Authors: Huber Peter
Published: June 2017

This commentary focuses on Article 3.2.16 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning damages. Art 3.2.16 adopts a ‘neutral’ approach to the issue of damages by simply stating under which conditions a claim for damages may arise and what kinds of damages are recoverable. It does not distinguish between the case where the avoiding party seeks damages and the inverse case where the other party seeks damages. Irrespective of whether or not the contract has been avoided, the party who knew or ought to have known of the ground for avoidance is liable for damages so as to put the other party in the same position in which it would have been if it had not concluded the contract. This commentary discusses the liability of the party entitled to avoid and of the other party in cases where contract is avoided and not avoided, along with the allocation of the burden of proof.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 4.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning relevant circumstances, factors, aspects, or criteria that are to be used in establishing the intention of the parties or the understanding of reasonable persons. Relevant circumstances that are important in contractual interpretation include words used by the parties, internal context of the contract, preliminary negotiations between the parties, practices established between the parties, subsequent conduct of the parties, nature and purpose of the contract, meaning commonly given to terms and conditions in the trade concerned, usages, and policy arguments. This commentary also discusses the weight of the relevant circumstances and the burden of proof of the party that wishes to rely on a relevant circumstance in support of a particular interpretation.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 4.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the contra proferentem rule. According to the contra proferentem rule, in cases of doubt contractual terms are to be interpreted against the party supplying them. Art 4.6 can be understood as an attempt to prevent bad drafting from the outset and to educate the parties to pay attention to the drafting process. This commentary discusses the requirements for the contra proferentem rule, with particular emphasis on irremediable ambiguity and contract terms supplied by one party. It also considers contractual interpretation against the supplier and the burden of proof of the party wishing to rely on an interpretation against another party under Art 4.6.
Authors: Vogenauer Stefan
Published: June 2017

This commentary focuses on Article 5.2.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the renunciation of a beneficiary's right. The rationale of Art 5.2.6 is to protect a person who is not a party to a contract against the unwanted conferral of a right by the contracting parties. It corresponds to the maxim that even benefits may not be imposed on another: beneficia non obtruduntur. As Art 5.2.6 is intended to protect third parties, the promisee and the promisor should not be permitted to exclude or derogate from it as they wish. Art 5.2.6 is therefore one of the provisions of the PICC in which the mandatory character is implicit. This commentary discusses the consequences of renunciation and the burden of proof relating to renunciation.
Authors: Atamer Yesim
Published: June 2017

This commentary analyses Article 6.1.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning payment by funds transfer. According to Art 6.1.8, payment may be made by a transfer to any of the financial institutions in which the obligee has an account. In case of payment by a transfer, the obligor's obligation is discharged when the transfer to the obligee's financial institution becomes effective. From the moment the funds transfer to the obligee's financial institution becomes effective, the obligation becomes extinct and the obligor's liability for loss or delay ends. This commentary discusses place of performance for fund transfers,, time when the obligation is discharged, timely performance, countermand, and delay or loss in the process of transferring funds.
Authors: Schelhaas Harriet
Published: June 2017

This commentary analyses Article 7.1.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the definition of non-performance. Article 7.1.1 defines non-performance as ‘failure by a party to perform any of its obligations under the contract, including defective performance or late performance’. Non-performance under Art 7.1.1 also includes violations of accessory obligations, such as a duty of confidentiality or the duty to co-operate, including the accessory obligations of the aggrieved party. This commentary discusses reasons for non-performance, the concept of ‘default’, the relationship between non-performance and non-conformity, vicarious liability for contractual obligations, and the burden of proof relating to non-performance.
Authors: Schelhaas Harriet
Published: June 2017

This commentary analyses Article 7.1.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning interference by the other party. Art 7.1.2 deals with the situation known as mora creditoris — the obligee's failure to perform its duty to co-operate in order to allow the performance of the other party. It also addresses the situation in which the obligor's failure to perform is not due to a lack of co-operation by the obligee, but to another event for which the obligee bears the risk. The obligee that is responsible for the other party's resulting failure to perform is estopped from invoking non-performance. Art 7.1.2 is thus a particular instance of the general principle of the prohibition of venire contra factum proprium. This commentary also discusses partial interference, legal consequences of failure to perform, and the burden of proof relating to interference.
Authors: Schelhaas Harriet
Published: June 2017

This commentary analyses Article 7.1.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the non-performing party's right to cure its non-performance. Under Art 7.1.4, the non-performing party is allowed to cure its non-performance. The aggrieved party is obliged to allow cure if it has no legitimate interest in refusing. If the non-performing party offers cure, the remedies of the aggrieved party are only available after the other party has had a second chance to perform or cure its performance. This commentary discusses the requirements with respect to cure by non-performing party, the right of the non-performing party to cure its non-performance even after a notice of termination by the aggrieved party, and legal consequences of cure.
Authors: Huber Peter
Published: June 2017

This commentary analyses Article 7.3.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning notice of termination. Under Art 7.3.2, termination of the contract has to be made by notice to the other party and sets a time limit for giving notice in certain cases of breach. The provision serves two objectives: first, it aims to prevent the aggrieved party from speculating on market fluctuations by postponing its decision on whether or not to terminate and, secondly, it allows the non-performing party to avoid any losses due to uncertainty as to whether the aggrieved party will terminate the contract. This commentary also discusses time limits for the exercise of the right to terminate and the burden of proof concerning notice of termination.