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The Resilience of the Law of Performance Bonds: An Emphasis on Colombia

Neira-Pineda, Juan Camilo

[Thesis]. Manchester, UK: The University of Manchester; 2015.

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Abstract

This thesis proposes a new idea about the so-called “resilience of laws”, which was designed to protect the effectiveness of laws within civil law or common law jurisdictions against any change, i.e. social, legal, political, or economic, amongst others. Laws may initially be effective but become ineffective afterwards, and one possible cause may be such changes. Thus, the author states that any of the aforementioned changes may shock a non-resistant legal regime, turning it into an ineffective legal regime to the detriment of society. As a result, the thesis imposes new expectations of legislators and judges whereby they are expected, not only to provide society with effective laws, but with resilient laws. Resilience of laws, within the context of this research, comprises two features: i) static resilience, i.e. the ability of the law to resist the shock caused by a previous change; and ii) dynamic resilience, i.e. the capacity to recover the effectiveness of the law once it has been shocked, and the capacity to prevent a future scenario of ineffectiveness. To achieve the resilience of laws, the author explains how legislators and judges have to take into consideration previous challenging changes and shocks in order to later recover successfully the level of effectiveness, and to prevent ineffectiveness as a result of a similar future shock; this is aimed at having resistant laws, if possible. The thesis places emphasis on the evaluation of the level of static and dynamic resilience of the Colombian laws of performance bonds as an illustration of the notion of resilience of laws, based on the politico-economic changes that were implemented in that country in 1990 and 2002.