Ralf Michaels: The Detroit Principles as Global Background

INTRODUCTION:

The article which is being critically evaluated in this essay is, “Ralf Michaels, ‘THE UNIDROIT PRINCIPLES AS GLOBAL BACKGROUND LAW’ (2014) 19(4) Uniform Law Review 1-22”. In this essay the research objectives of the article will be seen which will be taking us through the actual study and research and will also tell us the actual purpose. Following this the research methodology of the article will be assessed which will show the data collection methods and ways and the purpose of the research study. After this the literature review of the article will be evaluated which will be followed by the research findings of the article. Finally, the essay will be concluded. The conclusion will state weather the research methodology used by the author ‘Ralf Michaels’ was relevant for their study or not.

RESEARCH OBJECTIVES:

The most important thing for any research proposal is defining the main objectives of the research proposal. What is the main point or purpose of the research? What are the research problems that research is focussing upon and, why? Research objectives are the statements which focusses upon the identification and description of variables and on finding the relationships of variables.[1] Ralf Michaels have developed a very and concise research objective for his study. ‘The general illustrations of the categories and the types of information that the researcher desires to obtain from the study is taken into consideration in research objectives’.[2] His study objective was that, the role played by the UNIDROIT Principles of International Commercial Contracts (PICC), which is along with the findings concerning the actual use of the Principles of International Commercial Contracts (PICC). Finally, the use of PICC in private international law, their use to interpret the Contracts for the International Sale of goods (CISG), their relationship with other non-State codifications, and their relationship with a possible global commercial code is discussed. The objectives main purpose is to mix the hypothesis with the main study, the study objectives should be clearly stated as they define the main aims of the research proposal.[3] And the article written by Ralf Michaels totally justifies it. In the beginning of the article the author is focussing on the role which PICC has played successfully and where it has not. This is followed by the author’s suggestion that characterizes the PICC as a non-State code, or even a non- State legal system–for example, a new lex mercatoria. Finally, the author tells about some implications and their use in private international law, the use of these implications to interpret the UN Convention on Contracts for the International Sale of Goods (CISG), their relationship with other non- State codifications, and their relationship with a possible global commercial code.

The research process is a systematic process which is made of patterns so that the data which is not required is not collected and it helps in solving the problem and it involves three main stages. These are: Planning, Data Collection, and Analysis.[4] Ralf Michaels also makes it clear to all the readers the clear research objective of his article by stating in the initial paragraphs that what he wants to say and his inclination towards the PICC and its uses in private international law and interpretation of CISG in international contracts of sale.

ARTICLES RESEARCH METHODOLOGY:

Research methodology is a way to systematically solve the research problem. The methodology may include publication research, interviews, surveys, and other techniques of research and both historical as well as present information is included. The research methodology should be good to get new ideas.[5] The researcher here has used the doctrinal research methodology for his article. Doctrinal research provides a systematic mixture of the rules that governs the legal category and analyses the relationship between the rules, explaining the area of difficulty.[6] Doctrinal research is concerned with the formulation of legal ‘doctrines’ through the analysis of legal rules.[7] The researcher in his article has used black letter approach by referring various books, comments and most importantly by referring the work of UNIDROIT and its principles and some other agencies like International Chamber of Commerce (ICC). In doctrinal research, there are systematic formulations of the law contexts. They clarify ambiguities within rules, place them in a logical and coherent structure and describe their relationship to other rules.[8] And per what has been observed in the article by Ralf Michaels he has also referred to a lot many Acts and statutes to make his argument to the point. He has used Part II on the uses of the PICC,[9] PICC as a global background law and PICC as a global commercial code[10] and applicability of PICC along with PICC as an applicable law in the absence of a choice. The dominance of the expository, doctrinal tradition in legal scholarship has already been noted. However, it is important to understand that this is not simply a single, isolated category of scholarship. Some element of doctrinal analysis will be found in all but the most radical forms of legal research. Here are some of the radical forms of research APPLIED (Professional constituency), PURE (Academic constituency), INTERDISCIPLINARY METHODOLOGY (Research about law) and the one which the author is using in the article is DOCTRINAL METHODOLOGY (Research in law).[11] Although law reform research appears as a separate category within. Its practitioners emphasise the importance of traditional legal analysis within their socio-legal work. Doctrinal analysis therefore remains the defining characteristics of academic legal research and the account which follows represents an attempt to describe the nature of the methodologies employed within it.[12] Ralf Michaels is also very adamant in his article by following the doctrinal research method. In his article where he just wants to give an idea about PICC and its various uses as background law as well in modern days which is used in interpretation of the commercial sale contracts and also the applicability of PICC. He tries to prove his point by strictly adhering to the black letter approach and using old laws and judgements and law acts and statutes.

The nature of legal research depends on the objectives of the researcher. The object may be to investigate the policy which the law should be seeking to implement. This type of research tends to be more theoretical and may require engagement with other disciplines, such as sociology, politics, economics, and philosophy. The doctrinal research methodology is made within the common law as a research method of the main practice. Doctrine is a mixture of various rules, principles, norms, and values. This is doctrinal research.[13] If, however, the same problem is viewed from the perspective of a principled analysis of the law, different questions would be asked. The starting point will be to determine what the relevant cases decide. After that the researcher will determine whether any relevant principles can be distilled from those cases, then identify the policy which underpins the principle and finally consider whether the law is right. One of the main purpose of a research is to make reasonable conclusions about the population under investigation from the results realized from a sample.[14] If the principle does not accurately reflect the policy then the law may be wrong and the researcher will consider other alternative solutions to the problem. This is a much more academic approach to doctrinal research, since it looks beyond the mere solution of the problem to the identification of a defensible rationale which underpins the detailed rules.[15]

Principles of the legal research methods are tailored to the needs of the researchers. Various issues like the participatory and community based research as well as empirical methods are also examined along with the principle approaches which are commonly used in the legal research. The emphasis is being put on how the research is being done instead of the what is being done. This has become the nature of legal research.[16] This also hinders the researchers from getting enough information on the topic under investigation.

The essential features of doctrinal research methods are that it involves the analysis of the legal concepts and in this research conventional sources of data are used. Doctrinal legal research focusses upon the data   which is collected from the cases, statues, legal concepts, law reports as well as relevant text books. Since, the doctrinal legal research is the research of the black letters of the law, therefore, the ascertainment of law is required and is necessary. The research of a doctrinal legal researcher is based on the secondary data which is relevant to his proposition. Doctrinal legal research is not about research about law but it is a research which is into law and legal concepts.[17] Ralf Michaels in this article ‘The Unidroit principles as global background law’ tries to use the same methodology by identifying the rule of law and describing the factual situation and then concluding with all the laws and the facts. The author who is disturbed with the fact that there is misuse of the comparative law as tool of law reform have tried the doctrinal research approach or the black letter approach as the methodology of the article.

ETHICAL ISSUES EXPLORED IN THE ARTICLE:

Ethics are the principles and guidelines which helps us in understanding and determining the things which are morally right and justifiable. Many ethical issues are widely differed in research. Some writers disagree on the points that weather they are ethically acceptable in social research or not. If there is any unethical research then it may be associated with a research methods, like the disguised observation and deception in experiments.[18] The ethical issues can be raised in all parts of the research like the definition, parts where the research objectives have been defined, where the hypothesis have been defined, part of the literature review, data collection points, data editing and cleaning, choice of the methods, conclusions, and recommendations and the referencing.[19] Research that poses potential harm, risk, or danger to the participant is not allowed, unless the benefit of the research outweighs the risks and full informed consent is given. Psychologists and their assistants are also responsible for conducting themselves ethically and for treating the participants in an ethical manner always.[20] Ethics apply at every stage of the research. The research is dependent on the goodwill as for the goodwill of the individuals and the respondents and their willingness to give the personal information. Trust is also a very important factor in ethics, as weather the decision makers trust the researchers to provide accurate information. Finally, comes the professionalism and confidentiality in ethics in research.[21] A research must be conducted in a safe an ethical manner. While carrying a research a researcher must ensure that the rights of the research subjects are not violated in any manner.[22]

There are few ethical considerations, which are as follows:

1. Informed Consent
2. Invasion of Privacy and confidentiality
3. Deception
4. Protection from harm
5. Data Protection
6. Affiliation and Conflict of Interest[23]

In the article by Ralf Michaels, he also strictly followed the ethical standards which made a significant contribution to the quality and integrity of the study. In the first part of his article Ralf Michaels also mentioned in the beginning of the article the author is focussing on the role which PICC has played successfully and where it has not. This is followed by the author’s suggestion that characterizes the PICC as a non-State code, or even a non- State legal system–for example, a new lex mercatoria. Finally, the author tells about some implications and their use in private international law, the use of these implications to interpret the UN Convention on Contracts for the International Sale of Goods (CISG), their relationship with other non- State codifications, and their relationship with a possible global commercial code. he totally has no intentions to criticize comparative law as an academic discipline nor he intends to put the doubt on the utility of development of comparative law. These statements by the author of the article proves that he strictly adheres to the ethical standards. Psychologists, as well as their assistants, are responsible for maintaining the dignity and welfare of all participants. This obligation also entails protecting them from harm, unnecessary risks, or mental and physical discomfort that may be inherent in the research procedure. Scientific research work, as all human activities, is governed by individual, community, and social values. Research ethics involve requirements on daily work, the protection of dignity of subjects and the publication of the information in the research.[24]

ARTICLES LITERATURE REVIEW:

Review of the literature is a summary as well as the critical analysis of the relevant article which is being researched and which is the topic that is being studied. The main aim of the literature review is to update the reader with the current present literature as well as the justification for future research in the area. A good literature review is one which collects and gathers information from various sources. The information is about a subject. A literature review should be structured perfectly and its structuring is very important to enhance the flow and readability of the review.[25]

There are a few types of literature review, these are:

1. Traditional or Narrative Literature Review
2. Systematic Literature Review[26]

Conducting a deep review of past studies serves three main functions[27]. It helps the researcher to make himself familiar with the content, conclusions, and methodology of past studies along with the problems or need of the research and to show the main issues which has a relevance with the study. In this way, the researcher can understand wide context of the research which is related to the specific issue, problem or need, along with this it also helps in avoiding duplication of the available research, particularly outdated or flawed research. Reviewing literature on the previous studies makes the researcher coming across the benefits and drawbacks of different methods and methodologies for research.

Literature reviews should “objectively report the current knowledge on a topic” and provide a summary of the best available research from previously published studies related to a specific topic. The synthesis of a literature reviewed provides an informed perspective or a comprehensive overview of the knowledge available on the topic. The detailed overview should be written in such a way as to provide clarity and promote understanding by the reader. Clinicians and researchers use literature reviews in decision making as well as to identify, justify and refine hypothesis and to recognize and avoid pitfalls in previous research. Literature reviews afford a means for validating assumptions and opinions and providing insight into the dynamics underlying the findings of other studies and they may offer more conclusive results than a single primary research study.

Some specific purpose of literature review is to – provide a theoretical framework for a specific topic under study. Then define relevant or key terms and important variables used for a study or manuscript development. Then to provide a synthesize overview of current evidence for practice to gain new perspective and support assumptions and opinions presented in a manuscript using research studies and so forth. Then to identify the main methodology and research techniques previously used and lastly to demonstrate the gap in the literature, pointing to the significance of the problem and need for the quality improvement project to be conducted.[28]

The literature review conveys the previous knowledge and facts to the reader, which are established on a topic. It also conveys the strengths and weaknesses of the topic to the reader. It updates the reader with the exact state of the research in a field and tells if there are any contradictions which may challenge the findings of the research studies. Literature review helps in improving the research methodologies as well as the tools which are used in the research investigation. It also provides the researchers with the knowledge about the problems which the previous researchers might have faced while studying the same topic.[29]

A literature review is an evaluative report of studies found in the literature related to your selected area.  The review should describe, summarize, evaluate, and clarify this literature. It should give a theoretical basis for the research and help you determine the nature of your own research. Select a limited number of works that are central to your area rather than trying to collect many works that are not as closely connected to your topic area.[30]

Hence in the article by Ralf Michaels, he has taken a care about the literature review and hence the issues, the methods, conclusions, and the methodology are done in a very systematic manner and in a very nice way and that shows the real success of his study.

FINDINGS OF THE RESEARCHER:

In the article ‘The Unidroit principles as global background law’ the author Ralf Michaels aims to try and tell the people the role played by the principles of UNIDROIT after so many years of existence, and that the role played is quite different from the one which was originally intended.The researcher also present nine facts and findings which were regarding the actual use of the PICC, which can be assessed based on published opinions, legislation, and scholarship. Then the researcher findings are used to suggest that the PICC should be viewed as a code or even a non-state law, instead it’s a restatement of global general contract law and its function is that of a background law. Finally, the researcher discusses implications of these findings for concrete questions: their use in private international law, their use to interpret the CISG, their relationship with other non-State codifications, and their relationship with a possible global commercial code. Ralf Michaels has made sure that all the findings are errorless which enhanced their validity and reliability. So therefore, here it can be said that the findings by the researcher are relevant and up to the mark.

CONCLUSION:

It can be now concluded that Ralf Michaels conducted a very nice and thorough research about the PICC as a principle, its uses and its applicability and functions. How it is used in interpreting CISG and its relation with other non-state codifications. He keeps his focus on the uses of PICC along with its applicability and its relation with other non-state codifications along with its importance in interpreting the CISG. Also, the success of the research can be accredit by the fine use the methodology by the researcher. Ralf Michaels was very optimistic to use the doctrinal approach or the so called black letter approach for his research. This methodology of research helped Ralf Michaels to gather all the facts from the cases and the laws from previous judgement and helped him to put his agreement forward in a very sensible and confident way. Due to the doctrinal research method, he was able to compare the laws and he was able to put forward what he wanted to say. The study design used by the researcher is also very commendable. Ralf Michaels always tried to explain his point by using and giving references from others work in the related field along with background laws and statues which made his research really interesting and also very strong. The researcher made five parts of his article along with sub parts to the main parts so that he can try to prove his point very nicely and with that five parts of the article he really managed to pull his article to good level of success. The ethical issues are also covered in the article and the researcher has done that very skilfully. Nowhere in the article we can pick up any bad words or the insults to anybody. The article was written very precise and satisfactory.

REFERENCE LIST:

<file:///storage/emulated/O/Download/Research_Methods_Session_04.pdf> accessed 8 January 2017

Bailey, F. 2014 “The Origin and Success of Qualitative Research,” International Journal of Market Research, vol. 56, no. 2, pp. 167-184

Can J Surg, ‘Research Questions, Hypothesis and Objectives’ (2010) 52(4) 280

Dr. Wanjohi J, ‘Research Objectives Presentation 26 June 2014 SPS’, (2014)

<http://www.businessdictionary.com/definition/research-methodology.html> accessed 10 January 2017

<http://www.lawteacher.ac.uk/docs/hitchinson-and-duncan.ppt> accessed 10 January 2017

Knight A and Ruddock L (eds), Advanced research methods in the built environment (Wiley-Blackwell (an imprint of John Wiley & Sons Ltd) 2008)

Chynoweth P, ‘Legal research in the built environment: A methodological framework’ (2011)

Ralf Michaels, ‘The UNIDROIT principles as global background law’ (2014) 19(4) Uniform Law Review 1-22

Chynoweth P, ‘Legal research in the built environment: A methodological framework’ (2011)

Duncan, N.J. & Hutchinson, ‘Defining and describing what we do: Doctrinal legal research’ (2012) 17(1) Deakin Law Review 83-84

Bryman, A. 2012, Social Research Methods. Oxford: OUP Oxford

Cahillane L and Schweppe J 9eds), Legal research methods: Principles and Practicalities (Clarus

Press 2016)

<http://www.academia.edu/15065282/Doctrinal_Legal_Research> accessed 11 January 2017

MaiJoy, ‘Ranjeeta Lamba’ (2 September 2011) <http:// www.slideshare.net/MaiJoy/research-methodology-ethical-issues-in-research-an-assignment> accessed 11 January 2017

‘A BRIEF HISTORY OF ETHICAL CONCERNS’, accessed 11 January 2017

Fouka G and Mantzorou M, ‘What are the Major Ethical Issues in Conducting Research? Is there a Conflict between the Research Ethics and the Nature of Nursing?’ 5(1) Health Science Journal 3-14

Cronin P, Ryan F, and Coughlan M, ‘Undertaking a literature review: A step-by-step approach’ (2008) 17(1) British Journal of Nursing 38-43

Lamb, D. 2013 “Research in the First Person: Reflection on the Research Experience Using a Research Journal,” Market & Social Research, vol. 21, no. 2, pp. 32-39.

Baker JD, ‘The purpose, process, and methods of writing a literature review’ (2016) 103(3) AORN Journal 265-269

Path N and Nursing path, ‘Niharika pedamallu’ (7 May 2013) https://www.slideshare.net/mobile/drjayeshpatidar/literature-review-in-research accessed 14 January 2017

‘Purpose of the literature review’, (2008) <http://library.queensu.ca/webedu/grad/Purpose_of_the_Literature_Review.pdf> accessed 14 January 2017

[1] <file:///storage/emulated/O/Download/Research_Methods_Session_04.pdf> accessed 8 January 2017

[2] Bailey, F. 2014 “The Origin and Success of Qualitative Research,” International Journal of Market Research, vol. 56, no. 2, pp. 167-184

[3] Can J Surg, ‘Research Questions, Hypothesis and Objectives’ (2010) 52(4) 280

[4] Dr. Wanjohi J, ‘Research Objectives Presentation 26 June 2014 SPS’, (2014)

[5] <http://www.businessdictionary.com/definition/research-methodology.html> accessed 10 January 2017

[6] <http://www.lawteacher.ac.uk/docs/hitchinson-and-duncan.ppt> accessed 10 January 2017

[7] Knight A and Ruddock L (eds), Advanced research methods in the built environment (Wiley-Blackwell (an imprint of John Wiley & Sons Ltd) 2008)

[8] Chynoweth P, ‘Legal research in the built environment: A methodological framework’ (2011)

[9] Ralf Michaels, ‘The UNIDROIT principles as global background law’ (2014) 19(4) Uniform Law Review 1-22

[10] ibid

[11] Chynoweth P, ‘Legal research in the built environment: A methodological framework’ (2011)

[12] ibid

[13] Duncan, N.J. & Hutchinson, ‘Defining and describing what we do: Doctrinal legal research’ (2012) 17(1) Deakin Law Review 83-84

[14]Bryman, A. 2012, Social Research Methods. Oxford: OUP Oxford

[15] ibid

[16] Cahillane L and Schweppe J 9eds), Legal research methods: Principles and Practicalities (Clarus Press 2016)

[17] <http://www.academia.edu/15065282/Doctrinal_Legal_Research> accessed 11 January 2017

[18] MaiJoy, ‘Ranjeeta Lamba’ (2 September 2011) <http:// www.slideshare.net/MaiJoy/research-methodology-ethical-issues-in-research-an-assignment> accessed 11 January 2017

[19] ibid

[20] ‘A BRIEF HISTORY OF ETHICAL CONCERNS’, accessed 11 January 2017

[21] MaiJoy, ‘Ranjeeta Lamba’ (2 September 2011) <http:// www.slideshare.net/MaiJoy/research-methodology-ethical-issues-in-research-an-assignment> accessed 11 January 2017

[22] ibid

[23] ibid

[24] Fouka G and Mantzorou M, ‘What are the Major Ethical Issues in Conducting Research? Is there a Conflict between the Research Ethics and the Nature of Nursing?’ 5(1) Health Science Journal 3-14

[25] Cronin P, Ryan F, and Coughlan M, ‘Undertaking a literature review: A step-by-step approach’ (2008) 17(1) British Journal of Nursing 38-43

[26] ibid

[27]Lamb, D. 2013 “Research in the First Person: Reflection on the Research Experience Using a Research Journal,” Market & Social Research, vol. 21, no. 2, pp. 32-39.

[28] Baker JD, ‘The purpose, process, and methods of writing a literature review’ (2016) 103(3) AORN Journal 265-269

[29] Path N and Nursing path, ‘Niharika pedamallu’ (7 May 2013) https://www.slideshare.net/mobile/drjayeshpatidar/literature-review-in-research accessed 14 January 2017

[30] ‘Purpose of the literature review’, (2008) <http://library.queensu.ca/webedu/grad/Purpose_of_the_Literature_Review.pdf> accessed 14 January 2017