Business & Contracts
MISSION The Research Group Business & Contracts (BuCo) aims at exploiting the synergies in research between the scholars of the Faculty of Law with expertise in general contract law and in business contracts, commercial transactions and business organizations, with the overall aim to stimulate research on all possible topics concerning business contracts (including business engagements by unilateral declaration of will). BuCo focuses on the specifics of business contracts, compared to common civil contracts, as a result of the specific context in which these contracts are concluded, with the final aim of making (comparative) reports, identifying and analyzing specific practices. The purpose is to integrate the research work from theorists and practitioners related to business contracts, with the overall goal to better understand the practices, develop richer theories that incorporate a realistic and pragmatic conception of legal institutions, and of the observed behavior of economic actors as regards business contracts, and to use these new frameworks to analyze and criticize existing legal frameworks and business practices and to propose possible improvements. Collaborations not only concentrate on primary work in contract theory, but also empirical study of existing institutions and contracting behaviors. Due to the ongoing internationalization and globalization process, business contracts are for a substantive part concluded in an international context (e.g. international sales contracts, international cooperation contracts, cross boarder M&A, documentary credits and guarantees, ...). These contracts give rise to specific questions of international law as well as of international private law. The activities of BuCo include the study of international practices. RESEARCH POLES Although they are in principle governed by general principles of civil law and common contract law, business contracts are subject to a set of rules based on (i) business practices developed to satisfy the specific needs of business actors, and (ii) specific laws and regulations, the development of which has increased over the past years. Some of these laws and regulations provide for more freedom in contractual relations between business partners, whereas in other cases these specific rules tend to restrict a business actor's liberty to contract, with a view to protecting the contracting partner of the business actor or avoiding certain unacceptable or undesirable consequences of certain practices and activities. BuCo focuses its activities on 5 research poles. 1. Impact of business context on contracts In the context of this research pole, general questions and issues related to business contracts are studied such as e.g.: - Specifics of contracts in business relations ("B2B" relations): Do economic actors contract differently than purely private parties and why? - How does the law protect business partners when negotiating and drafting contracts? - Efficiency and necessity of the distinction to be made on the basis of the capacity of the contract partner (company, salesman, consumer, public entity); efficiency of the regulation on the business activities (law & economics approach); - Differences in approach between civil law countries and common law, fundamentals supporting such approach and economic efficiency; - Universal principles applicable to all business contracts, regardless of the legal system to which they are subject; - Examination of the specific clauses generally introduced in the usual contracts in deviation of general contract law and influence of international business practices; - Impact of budgetary constraints (e.g. ESA95) on the introduction of new contract techniques into Belgian (public) law : Private Finance Initiative, Design Build Finance Maintain, contractual PPP etc. and the renewed attention for risk allocation and management with the public (awartinding) authorities. 2. Liberty of will and freedom to contract Over the past decennia, the Belgian and European legislators have increasingly regulated certain aspects of business contracts to avoid distortion in the market or to protect certain contract parties. In this respect the following issues are under attention of BuCo: - Which future for liberty of will and freedom to contract? - Evaluation of the Directive on consumer rights and economic impact. - Evolution of certain principles of consumer protection as general principle? - Efficiency and impact of mandatory law provisions on the business context; - Freedom to contract from an anti-discrimination law perspective. 3. Business practices regarding certain clauses or contracts This research pole regroups all research in respect of: - business practices around common clauses - most common business contracts (sales of movable goods, manufacturing contracts, outsourcing, service provision contracts, intermediation...) - securities documentation ((bank) guarantees, sureties, pledge agreements, clearing & settlement agreements, ...) 4. Specific issues related to doing business and family law Concluding business contracts requires specific attention for matters of family law. Business operated by family enterprises also give rise to specific issues. The members of BuCo dedicated to this research pole examine these particularities. 5. Corporate contracts Corporate contracts such as share purchase agreements, assets purchase agreements, agreements in respect of reorganization operations (merger, transfer of business divisions, due diligence (precontractuele phase), joint venture agreements vs. common subsidiaries, contracts in the framework of IPO's, are governed by the principles of common law, but due to the involvement of companies, specific questions of company law are also involved. The members of BuCo dedicated to this research pole examine these particularities. 6. Business contracts in a specific regulated environment In a regulated environment, business contracts often contain specific clauses that are a translation of the specific regulated environment or that take into account the fact that the concerned business activity is subject to regulation by a public authority. For certain sectors, specific types of contracts are commonly used or are imposed by regulation. One can think of e.g. the following sectors: - Banking & Insurance (sepa, credit facilities or loan agreements facilities, financial products, insuance agreements) - Public services (public procurement, concessions, subsidy agreements, policy agreements, PPP, PFI, DBFM; ...) - Essential facilities sector (electricity sector, gas sector, telecom sector ...) - Transport sector (Aviation,...) In these regulated contexts questions arise regarding e.g. the impact of the far-reaching regulation on the freedom to contract, the efficiency of intervention of public authorities in the common interest and more generally the efficiency of regulation in these sectors (law and economics approach).