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FRANZ KAFKA (1883-1924)
Czech-born German-speaking writer whose posthumously published novels express the alienation of 20th century man. Kafka's nightmares of dehumanization, bureaucratic labyrinths, and totalitarian society have much in common with the works of George Orwell (Nineteen Eighty-Four, 1949; Animal Farm, 1955). Jorge Luis Borges has noted, that Zeno's paradox against motion and the arrow and Achilles are the first Kafkaesque characters in literature. Kafka's ill health was also an important biographical factor behind the fear of physical and mental collapse dramatized in such short stories as "Ein Hungerkünstler" (1924) and "Die Verwandlung" (1915, The Metamorphosis).
"As Gregor Samsa awoke one morning from uneasy dreams he found himself transformed in his bed into a gigantic insect..." (from "The Metamorphosis")
Franz Kafka was born in Prague, now in the Czech Republic but then part of Austria. His father was Hermann Kafka, an owner of a large dry goods establishment, and mother Julie (Löwy) Kafka, who belonged to one of the leading families in the German-speaking, German-cultured Jewish circles of Prague. Hermann Kafka was a domestic tyrant, who directed his anger against his son. Kafka also had three sisters, all of whom perished in Nazi camps. Often Kafka's stories dealt with the struggle between father and son, or a scorned individual's pleading innocence in front of remote figures of authority. In Letter to His Father (1919) Kafka admitted: "My writing was all about you; all I did there, after all, was to bemoan what I could not bemoan upon your breast. It was an intentionally long-drawn-out leave-taking from you."
Kafka grew up in an atmosphere of familial tensions and social rejection that he experienced as a member of Prague's Jewish minority. His attitude to his Jewish heritage was ambivalent. In a diary he wrote: ''What have I in common with Jews? I have hardly anything in common with myself and should stand very quietly in a corner, content that I can breathe.'' Kafka was educated at the German National and Civic Elementary School and the German National Humanistic Gymnasium. In 1901 he entered Ferdinand-Karls University, where he studied law and received a doctorate in 1906. During these years Kafka became a member of a circle of intellectuals, which included Franz Werfel, Oskar Baum and Max Brod, whom Kafka met in 1902. About 1904 Kafka began writing, making reports on industrial accidents and health hazard in the office by day, and writing stories by night. His profession marked the formal, legalistic language of his stories which avoided all sentimentality and moral interpretations – all conclusions are left to the reader.
Until his retirement Kafka worked at the insurance business (1907-23), first at an administrative position in a Prague branch of an Italian insurance company and then at the Workmen's Accident Insurance Institute of Prague. His work was highly valued at the company and during World War I his supervisors arranged for his draft deferment.
During his life Kafka had many girlfriends, many affairs, and a number of broken engagements. In 1912 he met Felice Bauer, a twenty-four-year-old businesswoman from Berlin. He warned her that life with him would mean ''a monastic life side by side with a man who is fretful, melancholy, untalkative, dissatisfied and sickly.'' Their relationship lasted for five years. Felice later moved to the United States, where she died in 1960. Kafka's first creative period started with such short stories as "Das Urteil" (The Judgment) and "Die Verwandlung", in which Gregor Samsa, a literary descendant of Gogol's Akakii Akakievich, wakes to find out that he has turned overnight into a giant insect. He remains trapped in his room by his petit bourgeois family. His father throws an apple core at Gregor, it rots, and Gregor dies.
World War I stopped Kafka's productivity as a novelist and short story writer, but he continued to write letters and diaries. In notebooks, which he started to keep in 1910, Kafka recorded his literary ideas, dreams, everyday occurrences and experiences. Theater and films he had seen were an important part of his life. After he had seen a Yiddish theater troupe perform in a café he wrote: "The sympathy we have for these actors who are so good, who earn nothing and who do not get nearly enough gratitude and fame is really only sympathy for the sad fate of many noble strivings, above all of our own."
In 1914 Kafka began his second novel, DER PROZESS (The Trial) and wrote the short story "In der Strafkolonie," which was one of the few works published in Kafka's lifetime. The Trial depicted the hopeless attempts of Josef K. to survive nightmarish events, that start at his breakfast table. "Someone must have been spreading lies about Josef K., for without having done anything wrong he was arrested one morning." Josef K. denies his guilt, and starts endless investigations of the court system. But there is no truth and he dies "like a dog." In the story "In der Strafkolonie" the truth is the function of an instrument of torture, a machine that kills its victims by writing the nature of their crime upon their body.
Kafka's characters are punished or threatened with punishment even before they have offended the authorities. "You may object that it is not a trial at all; you are quite right, for it is only a trial if I recognize it as such," one of the characters explains in The Trial. The book starts with the famous words: "Someone must have traduced Joseph K. for without having done anything wrong he was arrested one fine morning." Joseph K. encounters the merciless effects of law but no identifiable lawgiver, a theme Kafka further developed in the unfinished novel DAS SCHLOSS (1926, The Castle). In the final chapter two men - according to some critics symbols of his testicles - take Joseph away and execute him stabbing him through the heart.
In August 1917 Kafka discovered that he had contracted tuberculosis. He spent ten months with his sister Ottla in the Bohemian village of Zuerau. In 1919 he was hospitalized because of influenza. Kafka spent increasing periods of time on leave in various rural sanatoriums. He fell in love with Milena Jesenská, a twenty-four-year-old writer, who had translated some of his stories into Czech. After they separated she worked as a journalist and became a Resistance hero. Jesenská died in a German concentration camp in 1944. Later Margarete Buber-Neumann depicted her in Kafkas Freundin Milena (1963). Kafka's fear of sexuality was probably the main reason for his decision to leave Milena. He had written in 1913 in his diary "Der Coitus als Bestrafung des Glückes des Beisammenseins" and in the winter 1920-21 he stopped sending her regular letters.
After their relationship ended, Kafka wrote his last novel, The Castle, where K. arrives at a village, claiming to be a land surveyor. "The Castle hill was hidden, veiled in mist and darkness, nor was there even a glimmer of light to show that the castle was there." K. tries to obtain recognition of his status as the officially appointed land surveyor to the Castle, a mysterious domain that rules over the village. K wants to meet Klamm, the castle superior. His assistants, Arthur and Jeremiah, are not helping. K. makes love to the barmaid Frieda, a former mistress of Klamm. Frieda leaves K. when she discovers that he is merely using her.
"Aber auch Ihnen dürfte doch schon die Lückenlosigkeit der amtlichen Organisation aufgefallen sein. Aus dieser Lückenlosigkeit aber ergibt sich, dass jeder, der irgendein Anliegen hat oder aus sonstigen Gründen über etwas verhört werden muss, sofort, ohne Zögern, meistens sogar noch ehe er selbst die Sache zurechtgelegt hat, ja, noch ehe er selbstr von ihr weiss, schon die Vorladung erhält." (from Das Schloss)
Kafka retired in 1922 on a pension. Next year he met on the Baltic Dora Diamant, a twenty-five old woman from an Orthodox Jewish family, who worked in the kitchen of a holiday camp. Kafka's illness released him from the daily responsibilities of bourgeois life but also cut his income - his parents sent him provisions and money from Prague. Kafka, who wrote letters busily, was occasionally forced to send postcards because he did not have money for the letter post. His health rapidly deteriorated. In 1924 Kafka moved with Dora to the Kierling Sanatorium outside Vienna. When he proposed marriage and wrote to Dora's father, the reply was "no". However, later Dora described herself as "the wife of Franz Kafka." Dora survived Nazi Germany, Stalin's Russia, and World War II. She died in London in 1952.
Kafka spent in the sanatorium the last six weeks of his life. He suffered from thirst and in his last letter to his parents he recollects his childhood when he drank beer with his father during their visits to a bathing establishment. Kafka died of tuberculosis on June 3, 1924. His unfinished novel, DER VERSCHOLLENE (retitled Amerika), was published in 1927. Kafka never visited the United States but his protagonist, the 17-year-old Karl Rossmann, enters New York Harbor as an immigrant and sees the Statue of Liberty, who holds in her hand not a lamp but a sword. Karl's picaresque adventures lead him to a theater and to the company of other castaways. Walter Benjamin noted in 1934 in his essay on Kafka that "While in the earlier novels the author never addressed himself otherwise than with a mumbled initial, here he experiences a rebirth on a new continent with a full name." Kafka managed to write six chapters but it is open to discussions how he planned to end the novel.
As a Jew Kafka was isolated from the German community in Prague, but his friend and biographer Max Brod (1884-1968) did his best to promote Kafka's career as a writer. However, Kafka published only a few stories. During the last two and half years of his life Kafka finished some of his best works. Among them were "Ein Hungerkünstler", in which the hero is left to die unwatched in his unusual profession, and "Josephine, die Sängerin", in which the central character is a mouse, who sings - or squeaks. Kafka requested before his death that all his manuscripts should be destroyed. This was disregarded by Max Brod, who published the unfinished novels The Trial, The Castle, and America, classics of modern fiction.
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JURISDICTIONAL CARTAINTY IS ESSENTIAL IN INTERNATIONAL CONTRACTS
An unexpectedly large proportion of companies are dissuaded from going ahead with international contracts because of doubts about which national courts would resolve any dispute, an ICC survey disclosed today.Of 100 leading companies that took part in an ICC world survey, 40 said there had been occasions when a significant business decision had been determined by jurisdictional uncertainty. Companies participating in the survey together have more than three million employees.
The International Chamber of Commerce presented the survey's results to government officials drafting a proposed Hague Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.
Andrea Schulz, a senior official of the Hague Conference on Private International Private Law said: "We have certainly taken on board business concerns about the need for certainty and predictability in jurisdictional matters". The Hague Conference is the intergovernmental organization responsible for drafting the Convention.
Michael Hancock, the International business lawyer who represented ICC at the meeting with the Informal Hague Working Group, said: "This is far from an academic issue for business. The survey's results show that millions of jobs could be affected. Business needs predictability and certainty in international contracts.
"When two companies make a choice of a national court in a contract they have a good reason for doing so, and their choice must be respected. The commercial importance of confidence on this score is underlined by the exceptionally large proportion of respondents to the ICC survey who said their contractual decisions depend on it."
An ICC statement addressed to the negotiators in The Hague said: "Business' principal expectations are that the Convention will respect choice of national court and enforceability of judgments. ICC assumes that the Convention will only address choice of court provisions between businesses (B2B), an approach strongly supported by ICC as a means of achieving more predictability and certainty in international contracts within a reasonable time frame. "
ICC said the right of the court of choice to dismiss proceedings should be limited in order to improve the predictability of judgments.
Of more than 100 companies that took part in the ICC survey, 71 were large companies with more than 500 employees and many were major multinationals. One had as many as 400.000 employees on its payroll.
Among a series of questions on business practices on jurisdictional issues, the companies were asked: "Has any significant business decision of your company ever been determined by uncertainty regarding the court that would resolve disputes or the law that would apply to the contract?" While 60 respondents ticked the "no" box, the remaining 40 replied: "yes".
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BUSINESS HAILS HAGUE JURISDICTIONAL tTREATY DRAFT
The International Chamber of Commerce today said a draft treaty governing jurisdiction in cross-border business contract disputes was shaping up to give a boost to trade.Hailing the draft convention assembled last week by the 64 member governments of the Hague Conference on Private International Law, ICC Secretary General Maria Livanos Cattaui said: "The document that is now going forward for final negotiations is on the right lines."
Business experts support the decision to focus the convention on basic business-to-business needs for certainty regarding the choice of national court when a dispute arises and that national court judgments will be enforced.
A special government commission is now to negotiate the draft in The Hague in December, and once that hurdle is crossed, a full-scale negotiation known as a diplomatic conference is scheduled for next June.
Business has long maintained that the Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters would be beneficial in today's global economy with its proliferation of cross-border contracts.
The importance of jurisdictional certainty in international contracts was underlined by an ICC survey of 100 leading companies submitted to the government representatives negotiating the draft convention in The Hague.
Forty of the companies consulted said that there had been occasions when a significant business decision had been determined by jurisdictional uncertainty. Companies participating in the survey together have more than three million employees.
Michael Hancock of Salans in Paris, the international business lawyer who presented the survey findings to the Hague negotiators on behalf of ICC, said: "The draft now going forward satisfies the principal business expectations that the Convention will increase the respect given to agreements between businesses regarding choice of national court and enforceability of judgments."
He added that the predictability of judgments would be strengthened under the present draft by limiting the right of the national courts of choice to dismiss proceedings.
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STRONG NORDIC BUSINESS SUPPORT FOR UN CONVENTION
Businesses in Denmark, Finland, Norway and Sweden have joined forces through the International Chamber of Commerce (ICC) to urge their governments to fully ratify an international trade convention. Business people, lawyers and government officials will meet in Copenhagen on 24 February to discuss the issues involved.
The United Nations Convention on International Sale of Goods (CISG) establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods. The Convention entered into force in 1988 and has so far been ratified by 62 states across the globe.
Professor Jan Ramberg, a Swedish international trade law expert said: … The four Scandinavian states “ Denmark, Finland, Norway and Sweden “ have declared that they will not be bound by the second part of the Convention, which deals with contract formation. Furthermore, the Convention does not apply to inter-Nordic trade between the four countries.
Mr Ramberg, who also co-chairs ICC's Commission on Commercial Law and Practice added: … These Scandinavian exceptions create uncertainty not only for the local business community but for all traders doing business with companies in the Nordic countries. If a contract is governed by, for example, Finnish law, the provisions of the Finnish Contracts Act apply. Alternatively, if a contract is governed by the law of another signatory country, Part II of CISG may apply.
The uncertainty has caused companies to take action through their local ICC national committees and establish a meeting with government representatives on Thursday 24 February 2005 in Copenhagen. The meeting will take place at Børsen, which is believed to be the world's oldest stock exchange and is a historic Scandinavian symbol of international trade.
Key issues to be discussed at the meeting include:
- The reservations of the Scandinavian countries regarding Part II of CISG, which are rooted in a fear that CISG would be only partially successful;
- The isolation of the Scandinavian countries due to the world-wide success of CISG;
- Uncertainty created by the failure to accept Part II, as the applicable law on formation may make Part II applicable anyway;
- The harmful effects of uncertainty with respect to binding effect (offer and contract);
- The viewpoint that parties would be unlikely to seek to create certainty by clauses on applicable law before the contract has been made;
- Rules on formation of contracts under Scandinavian law are not superior to those of Part II of CISG;
- Rules on formation of contracts under Scandinavian law are inapt as a basis for electronic contracting (cf. First Opinion of CISG Advisory Council).
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ICC URGES GOVERNMENTS TO RATIFY HAGUE CHOICE OF COURT CONVENTION
Today(18 October 2007) the International Chamber of Commerce (ICC) began sending letters to the Ministers of Justice around the world urging countries to join the Hague Convention on Choice of Court Agreements. The Convention was adopted by consensus by the Twentieth Diplomatic Session of the Hague Conference on Private International Law on 30 June 2005 but is not yet in effect.
The Convention is designed to reduce the time and expense courts and businesses face when dealing with international jurisdictional issues and enforcement of foreign court decisions. The Convention requires courts to respect agreements regarding choice of courts made in business-to-business contracts.
Following the publication of the Explanatory Report on the Convention earlier this year, Mexico became the first State Party to the Convention on 26 September 2007 when it deposited its instrument of accession. One more ratification or accession will suffice to bring the Convention into force.
“The Convention should go a long way to reduce the workload of courts and the expense to businesses of long court battles over essentially procedural points,” said ICC Secretary General Guy Sebban. “That is why ICC has long been an active supporter of the Convention and is today calling on governments to act promptly to ratify the Convention.”
More information regarding the Convention, including the Explanatory Report and the status of signatures, ratifications and accessions may be found at http://www.hcch.net/index_en.php.
The text of the Convention itself may be found at http://www.hcch.net/index_en.php?act=conventions.text&cid=98
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GLOBAL SOURCING MADE EASY FOR SMALL BUSINESS
The International Chamber of Commerce on 17 April 2007 has published ICC Legal Handbook on Global Sourcing Contracts, the first comprehensive handbook to help small- and medium-sized companies navigate this process internationally.
The book responds to an unfilled need: as domestic competition increases, small businesses are searching for ways to raise efficiency through global sourcing. The process can be daunting for them.
“This handbook helps small companies build a better business plan for global sourcing. It covers all the important steps, from structuring requests for information, moving on to requests for proposals, to drafting contracts, evaluating suppliers and identifying possible loopholes,” said Michael Hancock, Co-Chair of ICC’s Task Force on Global Sourcing and a consultant at the law firm Salans.
Sourcing involves the transfer of a non-core business function or process to a specialized provider, and is an important way for an enterprise to concentrate on its core activities and reduce costs. But companies must be able to fairly evaluate the balance of risks, costs and performance of a potential new supplier before making a sourcing decision.
Taking that difficult first step − to request information on sourcing and inform employees of this initiative − can be made simpler by involving an outside agent, namely the local chamber of commerce. The local chamber can also supply lists of professionals in a given country, such as accountants, lawyers, surveyors and government licensing bureaus to help conclude a sourcing agreement.
Currently, few resources exist to help small businesses maneuver the comprehensive range of sourcing issues and opportunities. Responding to this need in the marketplace, ICC tapped its network of international business experts to produce the global sourcing handbook, which spells out the key issues in an easy-to-understand style for a non-legal business readership.
Through the years, ICC has built a reputation for its growing list of publications that provide business with practical tools not available elsewhere. The Global Sourcing task force is part of ICC’s Commission on Commercial Law and Practice which also produces the bestselling series of International Model Commercial Contracts.
ICC Legal Handbook on Global Sourcing Contracts is available for purchase from the online ICC Business Bookstore www.iccbooks.com .
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COMMERCIAL LAW
Commercial law (sometimes known as business law) is the body of law that governs business and commercial transactions. It is often considered to be a branch of civil law and deals with issues of both private law and public law.
Commercial law includes within its compass such titles as principal and agent; carriage by land and sea; merchant shipping; guarantee; marine, fire, life, and accident insurance; bills of exchange and partnership. It can also be understood to regulate corporate contracts, hiring practices, and the manufacture and sales of consumer goods. Many countries have adopted civil codes that contain comprehensive statements of their commercial law. In the United States, commercial law is the province of both the United States Congress, under its power to regulate interstate commerce, and the states, under their police power. Efforts have been made to create a unified body of commercial law in the United States; the most successful of these attempts has resulted in the general adoption of the Uniform Commercial Code.
Various regulatory schemes control how commerce is conducted. Privacy laws, safety laws (e.g., the Occupational Safety and Health Act in the United States), and food and drug laws are some examples.