The Role of Judicial Discretion in Commercial Disputes: Penalty Clause Issues

Enas Mohammed Alqodsi, Anna Serebrennikova, Raissa Orsayeva

Research output: Contribution to journalArticlepeer-review

Abstract

Nowadays, many problems caused by the imperfection of the legislation exist in applying the penalty clause category in commercial contracts. Many of them stem from belonging to different legal systems. With varying understandings of penalty clauses across jurisdictions and an uncertainty element in the inclusion of a penalty clause in contracts, the role of judicial discretion in resolving a dispute often becomes the deciding factor in dispute resolution. This research paper analyzes current trends related to judicial discretion's role in commercial disputes and the difficulties associated with implementing a penalty clause from a theoretical and legal point of view. The problem of this study is due to the existence of a number of discrepancies in the understanding of the penalty clause in different jurisdictions and an element of uncertainty when including a penalty clause in commercial contracts, as well as convergence processes in contract law. The paper considers theoretical and doctrinal approaches to understanding the penalty clause as a legal category and the role of judicial discretion in regulating penalties within contractual legal relations. In practical terms, the study interests lawyers practicing economic and corporate law.

Original languageEnglish
Article number04523062
JournalJournal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume16
Issue number2
DOIs
Publication statusPublished - May 1 2024

Keywords

  • Contracts
  • Contractual obligations
  • Discretionary powers
  • Liquidated damages
  • Penalty clause

ASJC Scopus subject areas

  • Civil and Structural Engineering
  • Safety, Risk, Reliability and Quality
  • Engineering (miscellaneous)
  • Law

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