Talks And Negotiations

Aside

TALKS AND NEGOTIATIONS IN CYPRUS

1964-2014

Certain terms reverberate constantly around us for more than half a century and have become part and parcel of the vocabulary to which we are accustomed.

We often find them parochial or anecdotal, but still they bring to us an air of comfort and hope. Such is their power and utility, when we hear of ‘inter-communal talks’ or of ‘negotiations’ aiming at ‘a solution of the Cyprus problem’.

This article does not attempt to bring any more hope or hopelessness to a bleak state of affairs or ‘status quo’ but simply examines this issue from a different point of view.

We all seem to know very well what ‘talks’ and ‘negotiations’ are for us, and indeed we take them for granted. One little glimpse into this matter informs us that in reaching an agreement we pass through a number negotiation stages.

Let us start with the first stage. Here we have a preliminary stage. At this stage, there is no pro-contractual bond between the parties, but the parties are not completely alien to each other. They find themselves in a trust relationship.

In view of this relationship, a spirit of solidarity should prevail. The parties are bound to good faith behaviour between them. More specifically, in case of an offence during the negotiations known as ‘culpa in contrahendo’ the party causing damage is liable to rectify this damage. Pro-contractual responsibility is different from a binding proposal.

The Second stage: The preliminary stage comes to an end when a contract is made or when a preliminary agreement is reached.

First, by a preliminary agreement the parties undertake bi-laterally or unilaterally to make a future agreement containing a contract, which will be the final contract, either between them and/or between them and a third party.

Second, a preliminary agreement is different from an option.

The Third stage: The contractual point begins from the moment of reaching an agreement up to the moment of amortization of the contract.

The Fourth stage: The post-contractual stage comes last, in cases in which there are certain obligations between the parties emanating from the contract already implemented between them.

When negotiation is aiming to a compromise contract, as this has been admitted and declared repeatedly for the Cyprus problem, we must not forget that “by a compromise contract the parties dissolve by mutual concessions a dispute or uncertainty between them regarding a relationship governed by law.”

We should also not lose sight of the fact that compromise comprises rights the parties can dispose under ‘ius dispositivum’. Rights protected by public order rules are not liable to disposal as such. E.g. in the case of personality and property, we have absolute rights which everyone owes to recognize and to respect.

Even committing a suicide is not admissible, as life is an absolute right. After the legal abolition of servitude, resigning from the right of judicial protection, property and inheritance is not compatible with the notion of liberty.

Please see the enactment of the relevant law in Cyprus enforced as from 27 December 1879, Cap. 71.

Contract of Adhesion: In this type of contract the content of the contract as well as the terms provided therein do not emanate from liberal negotiations between the parties as equals. The terms of such a contract are set out in the form of general transaction terms unilaterally and beforehand in a stereotype text by the socially and economically stronger party, while the weaker party accepts or rejects in one word without having any margin to discuss or amend such terms.

In such cases, it is admitted that at least in theory the acceding party knows these terms at the decision making stage, when signing the contract, or paying for the ticket or coupon, as regards transport, theater and other services of similar nature.

Short term lecture

Quote

Please visit my lecture on Friday, 22nd November 2013 at 19:45 at

the PRESSE Café, Stavrou Avenue, Strovolos

‘Who did steal the people’s money?’ Do tell…

‘Who stole the people’s money?’ – This question comes from Thomas Nast’s cartoon in The New York Times after the outbreak of the Tammany Ring case in 1871.

This is only one of many examples of corruption due to the transferability of judges and one of the most monstrous. It arose from the squandering of public funds. This feat occurred with the complicity of the then temporary and transferable judges of the ‘State of New York’.

The entire New York bar was moved and protested actively against the continuation of a system that did not guarantee the proper administration of justice and resembled a perpetual threat against the interests of the citizens.

Without delay we were able to enjoy functionally independent and permanent courts as from 1876 under Article 83 of the ‘Ottoman Constitution’.*

However that was not a remedy once and for all times. New-fangled threats against our financial position make their appearance very often. As sovereignty in our island tends to diminish from both malevolent and benevolent motives we tend to pay inadequate attention to some vital institutions.

When we find ourselves at the edge of the cliff, only then we realize we are in a quite unsafe situation. One can cite many instances of theft of people’s money. Such had been the case with the failure of the stock exchange institution.

Now again, we rewrite an unprecedented crisis in our financial history. Even when we come to legal protection, we find out: we are gradually and persistently falling behind.

As long as contracting and property rights offer benefits and costs that may be fully internalized by participants in voluntary exchange, markets deliver outcomes that are socially rational.

However, when we come to the problem who can guarantee that players in voluntary exchange respect the institution of the market, we come to the paradox where it is individually rational to take advantage of the situation and not play by the rules, once the market is not protected by an external umpire who can ensure that its institutions are upheld and respected.

Individuals who find themselves in such a predicament realize they have no one else to blame but themselves for venturing into a highly risky environment.

The smooth operation of certain absolutely vital human institutions, such as fulfilment of contracts, the respect for mutual obligations and the preservation of property rights is facing severe setbacks.

This state of affairs does not contribute to the overcoming of our deep financial crisis but on the contrary encourages further corruption and mischief.

Governments employ taxation to pay for the umpire services which are public goods. Without such public goods social interaction tends to decline to anarchy or anomy.

Legal protection relies on decisions that conform to the law which we call just. While in the case of acts or decisions of the administrative authorities, we do not call them just, but lawful. In the contrary case, we call both decisions arbitrary.

Stealing people’s money is neither just nor lawful. While much has been said and done in the name of the welfare of society and social rights, very little attention has been paid to the regulatory part of the administration.

The regulatory administration is an equally indispensable part of a sovereign state: taking care of planning, acting together and ensuring the coordination, cooperation and organization of administrative units, it regulates the relations between them, prepares studies, plans and programs.

As the financial crisis takes momentum leading to further arbitrary outcomes, we are bound to wonder why the regulatory authorities did such a bad job.

Why they let the centre of gravity to be displaced. How they let the country’s financial equilibrium to be so badly disturbed. Such disturbance is a highly dangerous menace and a shock to our social order.

The natural consequence today is a social struggle to re-establish financial equilibrium and to ensure the minimum essential state functions. **

* See pages 86 and 88, ‘La Réforme Judiciaire’, Christodul J. Suliotis, 1890.

** See paragraph 14, ‘Polity and Cyprus’, Argyro Toumazou, 2012.