Sense and Sensibility (for Lawyers)

IMG_5707During the first lecture of the popular Comparative Contract Law course here at the Maastricht University Faculty of Law, MEPLI’s Jan Smits – the course coordinator – starts off by cautioning the first year students. He states that when one commences the study of law, they will inevitably start seeing the world through “legal goggles” where everything and anything we see could become a potential legal issue: A banana is no longer just a fruit, but a tort waiting to happen and every promise is a fundamental breach in disguise. Implied in his admonition is that as we embark on the study of law, it is important for us to maintain our sensibility and to hold on to our common sense with a kungfu grip.

The Harvard Professor v. The Chinese Restaurant

As we become more involved and intimate with the law, however, it is inevitable that some of us start to lose our grip on this notion of sensibility. A legal dispute that has received some viral attention recently illustrates this case and point.

The dispute is about a Harvard Business School professor (with a BA, JD and PhD all from Harvard) ordering some Chinese delivery. The restaurant’s website listed an old menu (with cheaper prices), which failed to reflect the increased price in their new menu. This meant that there was a $4 discrepancy between what the professor (who ordered online) expected to pay and what the restaurant charged him. The issue between the disputing parties, in essence, is about what the restaurant should do to remedy the situation.

My first question to the dear reader is, who do you sympathize with more: The “victim” (the Harvard law professor who was “cheated” out of $4 and is now on a vigilante crusade against the restaurant) or the “accused” (the family owned Chinese restaurant that is simply trying to make ends meet, but did not have the resources necessary to keep their website constantly up to date).

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Pilot Program on International Commercial Mediation

BoomPremiUM, in collaboration with MEPLI, is currently searching for motivated Master students with an interest in mediation (or ADR in general) to take part in a pilot program on International Commercial Mediation*. This program will run from January 2015 – June 2015 (approximately 150 hours of commitment in total) and should be considered as an extracurricular activity that can be managed in addition to the student’s regular course work.

With regards to content, this program will offer students the opportunity to gain market-oriented skills through workshops taught by international experts on mediation along. The students will also have the chance to take part in mediation simulations, where they will receive hands-on coaching and in-depth feedback on their performance.

If you are interested, please apply by sending an email to: catalina.goanta@maastrichtuniversity.nl AND mark.kawakami@maastrichtuniversity.nl prior to the deadline (3 December 2014 at 5:00pm). Your email should contain the following items in the attachment:

  • Your current CV,
  • A motivation letter indicating why you are interested in the program, and
  • Your answer to the following question: “If you could have three items while being stranded on a deserted island, what would they be?”

The motivation letter and the answer to the short question combined must not exceed one A4 (single-sided).

We look forward to seeing your applications and working together with you as we attempt to develop a practical mediation program here at Maastricht University. We are in the process of organising a Kick-Off Meeting on 5 December 2014, where the selected members will be invited for a meet-and-greet, where further information will be provided.

* Please note that no ECTS points will be available for this activity at this time. However, as the program will be part of the PremiUM Experience, certificates will be issued upon the completion of the course, not to mention the significant benefits that come with participating in PremiUM

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Fear and Loathing in Asia: Grappling with Withdrawal Rights

 

photo (41)Something happened to me over the summer and I’m still not quite sure how I feel about it. It all started when I was given the opportunity to present at the East China University of Political Science and Law (“ECUPL”) alongside fellowMEPLIers, Jan Smits, William Bull, Jiangqiu Ge, Catalina Goanta and Willem Loof. The topic of my short (and relatively mundane) talk was regarding consumer protection and withdrawal rights in the EU vis-à-vis China’s newly amended Consumer Protection Code [中华人民共和国消费者权益保护法].[1]

After highlighting some germane aspects of the EU’s Consumer Rights Directive (2011/83/EU), I gave my usual spiel about how “consumers are not weak and through collaborative consumer protection, they can protect themselves”. For this talk, I added a bit about how “mandatory withdrawal rights reduce party autonomy and the opportunity for consumers to haggle for a cheaper price, thus reducing the parties’ freedom to contract.”[2] Essentially, I (along with my Chinese counterpart Dr. Wenjie Zhao) advocated for keeping general withdrawal rights optional rather than mandatory (as is the case in the EU and China for most online purchases). My argument sounded reasonable enough at the time (if I may say so myself), but after the conference, while visiting Japan, I started to question some of the things that I had said during the conference and here is why…

 

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This is Why We Can’t Have Nice Things: Gastronomic Blackmailers & Companies That Abuse Non-Disparagement Clauses

Gastronomical Blackmailers

Ever since writing about the Screen Shot 2013-09-17 at 2.59.00 PM.pngcollaborative consumer protection mechanism, I have been curious about the actual utility of various
consumer based feedback mechanisms. To play my part, I have been writing my own feedbacks on sites like TripAdvisor and Booking (though they pale in comparison to exchanges like the one on the right). There are growing concerns, however, about how these mechanisms can be abused by both consumers and businesses. For example, according to Martin Couchman, the Deputy Chief Executive of the British Hospitality Association, many customers are abusing the collaborative consumer feedback mechanisms to blackmail businesses: “People threatening restaurants and hotels with bad TripAdvisor reviews to extort free things is a problem which has been growing.”[1] Long story short, customers are threatening and holding businesses (especially in the horeca sector) hostage, demanding freebies and comps in exchange for a good review.

 

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A Call to Academic Activism: Notes from Menno Kamminga’s Farewell Seminar on Business & Human Rights

 

Christopher Avery, the Founding Director of the Business and Human Rights Resource Centre gave a heartwarming tribute to Menno Kamminga – whose celebrated tenure here at Maastricht University is nearing its end – during the seminar on “Activism and Scholarship in International Law”.[1] While discussing the “business and human rights” aspect of international law during the event, which also served as a farewell seminar for Kamminga, Avery highlighted four major challenges that we should all be aware of when discussing business and human rights:

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