CHOICE OF LAW-NOTICE OF ASSIGNMENT

2001 ◽  
Vol 60 (1) ◽  
pp. 1-58
Author(s):  
Pippa Rogerson
Keyword(s):  
Choice Of Law ◽  
Cross Border ◽  
Investment Trust ◽  
Intellectual Interest ◽  
The Law ◽  
Practical Implications ◽  
The Way

IT is not often that those of us who toil in one of the remotest vineyards of legal academe are rewarded. Choice of law questions over intangible property rarely seem to trouble the courts, though there are many issues of considerable intellectual interest which also raise hugely important practical implications. Maybe the area is just too difficult or perhaps all concerned are crossing their fingers that the harsh winds of a judgment will not rock the vine and bruise their fine crop (illustrated by angst following Macmillan Inc. v. Bishopsgate Investment Trust plc (No. 3) [1996] 1 W.L.R. 387). Questions such as the way in which notice must be given to an insurer when the benefit of the policy is assigned must be an everyday practicality. The consequences of giving notice improperly ought to keep some people awake at night. When so much business is done cross-border it seems astounding that the choice of law rule is almost untouched by judicial pronouncement since Le Feuvre v. Sullivan (1855) 10 Moo. P.C. 1; 14 Eng. Rep. 389, Lee v. Abdy (1886) 17 Q.B.D. 309 and the like over one hundred years ago. Raiffeisen Zentralbank Osterreich AG v. Five Star General Trading LLC [2000] 1 All E.R. (Comm) 897 raised precisely this issue. Is the notice to be given in the manner required by: (i) the lex fori; (ii) the law of the contract of assignment of the benefit of the insurance; (iii) the lex situs of the policy; or (iv) the law of the contract of insurance? Is this question proprietary or contractual?

31 Spain

2018 ◽  
Author(s):  
Herrera Antonio
Keyword(s):  
Royal Decree ◽  
Choice Of Law ◽  
Cross Border ◽  
Spanish Law ◽  
Assignment Of Credit ◽  
The Law ◽  
Financial Transactions

This chapter discusses the law of set-off in Spain. Under Spanish law, set-off represents a means of extinguishing an obligation between a debtor and a creditor. Set-off occurs mainly as a form of payment rather than a guarantee. The chapter first considers set-off between solvent parties, focusing on the requirements of statutory set-off, set-off in case of assignment of credit rights, and set-off as a mechanism for creating security interests. It then examines set-off against insolvent parties, with emphasis on the scope of the prohibition set out in Article 58 of the Insolvency Act regarding set-off against an insolvent debtor and whether there are exceptions to this prohibition. The chapter also analyses set-off in financial transactions subject to Royal Decree Law 5/2005, along with cross-border situations relating to set-off against insolvent parties and choice of law with respect to set-off between solvent parties.

3 Australia

2018 ◽  
Author(s):  
Paterson Ian
Keyword(s):  
Credit Risk ◽  
Payment Systems ◽  
Choice Of Law ◽  
Cross Border ◽  
The Law

This chapter discusses the law of set-off and netting in Australia as well as the key restrictions on the availability of set-off under Australian law. In Australia, set-off and netting arrangements are often used as a means of reducing operational and credit risk. In the context of reducing credit risk involving financial rights and obligations (for example, deposits and loans), set-off and netting arrangements depend on one or more of: contract, section 553C of the Corporations Act 2001, and the Payment Systems and Netting Act 1998 (Netting Act). The chapter first considers set-off between solvent parties and set-off against insolvent parties before explaining set-off under section 553C of the Corporations Act. It also examines issues that may arise in cross-border transactions under Australian law with respect to the availability of set-off in section D of the Corporations Act, with emphasis on the choice of law and set-off in insolvency.

Set-Off Law and Practice

2018 ◽  
Keyword(s):  
Financial Sector ◽  
Legal Analysis ◽  
Choice Of Law ◽  
Banking And Finance ◽  
The Third ◽  
Cross Border ◽  
New Material ◽  
The Law ◽  
Financial Firm

The third edition of this guide covers the application and practice of the law of set-off in over thirty jurisdictions spanning Europe, Asia and the Americas. Each chapter explains the principles of the law of set-off in the jurisdiction concerned, and provides a comparative guide for banking and finance lawyers wishing to establish the pitfalls of set-off in a foreign jurisdiction. Every chapter has been updated to contain new material specifically devoted to cross-border aspects, including analysis of choice of law issues. Fully updated legal analysis is also provided, with an emphasis on how set-off may be used as security and the application of insolvency set-off: taking into account new legal developments in the various jurisdictions and reflecting recent changes to legislation in the financial sector relating to bank and other financial firm resolution.

scholarly journals Libertad de testar y libertad de elegir la ley aplicable a la sucesión = Freedom of testation and freedom of choice of the law applicable to the succession

2018 ◽  
Vol 10 (2) ◽  
pp. 376
Author(s):  
Josep María Fontanellas Morell
Keyword(s):  
Legal Certainty ◽  
Freedom Of Choice ◽  
Estate Planning ◽  
Choice Of Law ◽  
Applicable Law ◽  
Cross Border ◽  
Directorate General ◽  
The Law

 Resumen: De entre las aportaciones del Reglamento 650/2012, relativo a las sucesiones transfron­terizas, sobresale la introducción de la elección de la ley sucesoria por parte del causante. Para justificar la institución y su inclusión en el instrumento europeo es fácil imaginar una suerte de correlación natural entre la libertar de testar existente en Derecho civil y la posibilidad de designar la ley aplicable propia de las herencias internacionales. Con todo, la doctrina prefiere invocar la seguridad y previsibilidad que la professio iuris proporciona en la planificación de la sucesión. No es ésta, sin embargo, la línea que está siguiendo la jurisprudencia registral española, pues, en sus resoluciones, se ha basado más en la libertad de testar que en la seguridad jurídica.Palabras clave: sucesión mortis causa, libertad de testar, sucesiones internacionales, elección de la ley sucesoria, elección tácita, seguridad jurídica.Abstract: Among the features of Regulation 650/2012, on cross-border successions, the introduc­tion of the testator’s choice of the succession law stands out. In order to justify the institution and its inclusion in the European instrument, it is easy to imagine a kind of natural correlation between the free­dom of testation, granted by national law, and the possibility to select the applicable law which is charac­teristic of international inheritances. Nevertheless, scholars tend to invoke the security and predictability that professio juris provides in the estate planning. Yet resolutions stemming from Directorate General for Registries and Notary Affairs are based more on the freedom of testation than on legal certainty.Keywords: succession upon death, freedom of testation, cross-border successions, choice of law, tacit choice of law, legal certainty

Characterisation of Breach of Confidence as a Privacy Tort in Private International Law

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Michael Douglas
Keyword(s):  
International Law ◽  
Private Information ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Unique Character ◽  
The Way

Certain kinds of breach of confidence may be characterised as torts, at least for the purposes of Australian private international law, in respect of rules of jurisdiction and choice of law. When a breach of confidence involves a misuse of private information, a tortious characterisation is appropriate. This view is consistent with appellate authority recognising the unique character of equitable jurisdiction. The article begins by considering debates concerning the juridical basis of breach of confidence, and its metamorphosis into the tort of misuse of private information. The very existence of that debate indicates that breach of confidence may intelligibly have more than one character. The substantive principles of breach of confidence inform the way that cross-border problems ought to be resolved in private international law. The remainder of the article considers characterisation in respect of long-arm jurisdictional rules, and then in respect of choice-of-law rules.

scholarly journals Homing Devices in Choice of Tort Law: Australian, British, and Canadian Approaches

2006 ◽  
Vol 55 (4) ◽  
pp. 839-878 ◽  
Author(s):  
Reid Mortensen
Keyword(s):  
United Kingdom ◽  
Tort Law ◽  
Choice Of Law ◽  
Cross Border ◽  
The United Kingdom ◽  
Comprehensive Survey ◽  
The Law ◽  
Appeal Courts ◽  
Do So

AbstractSince 1994, Canada, the United Kingdom and Australia have adopted new choice of law rules for cross-border torts that, in different ways, centre on the application of the law of the place where the tort occurred (thelex loci delicti). All three countries abandoned some species of the rule inPhillips v Eyre, which required some reference to the law of the forum (thelex fori) as well as thelex loci delicti. However, predictions were made that, where possible, courts in these countries would continue to show a strong inclination to apply thelex foriin cross-border tort cases—and would use a range of homing devices to do so. A comprehensive survey and analysis of the cases that have been decided under the Australian, British and Canadianlex loci delictiregimes suggests that courts in these countries do betray a homing instinct, but one that has actually been tightly restrained by appeal courts. Where application of thelex foriwas formally allowed by use of a ‘flexible exception’ in Canada and the United Kingdom, this has been contained by courts of first appeal. Indeed, only the continuing characterization of the assessment of damages as a procedural question in Canada and the United Kingdom, seems to remain as a significant homing device for courts in these countries.

scholarly journals FORMA CZYNNOŚCI PRAWNEJ W PRAWIE PRYWATNYM MIĘDZYNARODOWYM

2017 ◽  
Vol 5 (2) ◽  
pp. 67
Author(s):  
Jadwiga Pazdan
Keyword(s):  
International Law ◽  
Decisive Role ◽  
Legal Action ◽  
Private International Law ◽  
Choice Of Law ◽  
Mutual Relation ◽  
The Law ◽  
Polish Law ◽  
Contractual Relation ◽  
The Way

Form of Legal Act in Private International LawSummaryThe form of a legal act in private international law is usually governed by particular conflict rules. Such provisions define the scope of their application. The aim of conflict rules is to indicate territorial application of different legal systems. That function fixes the approach while determining the way of understanding the notion of a „form” in private international law. The appropriate approach is the autonomic qualification. That is why I admit that the form in private international law is nothing else that the way of submission and incorporation of the declaration of will, being a component of a legal act.According to art. 12 of Polish Act on private international law from 1965 (1965 Act), the form of a legal act is governed by the law proper for that act (the first rule), however, it is sufficient to fulfill the conditions of the law of the country where the legal act is undertaken (the second rule).Lex causa, relevant to the form of a legal act (art. 12 section 1 of 1965 Act), may be indicated not only by means of conflict rules based on objective factors of alien, but also by the choice-of-law clause (if a choice of law is not forbidden). Nevertheless, a choice of law regarding solely the form of a legal act is not acceptable. The choice of law for the form of a legal act cannot be justified by the permissibility of a partial choice of law, which is supposed to be a choice relative to that part of legis causae, which is taken into consideration while determining the conditions required for the form of a particular legal act, on the base of art. 12 section 1 1965 Act. Although, there is no fragment of the legis causae applied in the scope of the form, there is complete lex causae or divided into segments (in the case of a complex or simple choice of law). The form cannot constitute such a segment. It has its own status.The second rule is subsidiary to the first one.The mutual relation of these two rules has subsequent consequences: 1 lex loci actus may be applied only when the conditions of lex causae were not fulfilled;2 the answer to the question if the legis loci actus constitutes the proper law for the form of a legal act is dependent on the fact whether during the performance of the legal act the requirements resulting from that law were fulfilled;3 when the conditions regulated by both lex causae as well as lex loci actus were not fulfilled, it is to lex causae to decide about the consequences (sanctions) of non-fulfillment of the requirements relating to the form;4 lex loci actus cannot be replaced by the Polish law by the virtue of art. 7 of 1965 Act, when the content of the law binding on the territory where the legal action was undertaken cannot be determined;5 the transmission and remission, based on the conflict rules binding in that country where the legal act was undertaken, is not allowed;6 the requirements of legis loci actus are also fulfilled when there are no special requirements relating to the form. The legal act will be valid in such a situation although the requirements relating to the form, resulting of lex causae, were not fulfilled.The place where the legal act is performed understood as the factor of alien in art. 12 section 2 of 1965 Act must be interpreted in the light of autonomic qualification. The decisive role should be granted to the place where an event which brought (or should have brought) to the performance of a legal act had happened while the contractual relation has been formed.De lege ferenda, I am opting for the maintenance of both rules in Polish law, however, their position should be equal. In case of discrepancy of the effects the preference should be granted to those more favorable for the legal act (the solution in favorem negotii).

23 New Zealand

2018 ◽  
Author(s):  
Ross Jonathan
Keyword(s):  
New Zealand ◽  
Current Account ◽  
Choice Of Law ◽  
Personal Property ◽  
Cross Border ◽  
The Law

This chapter provides an overview of the law of set-off in New Zealand, both outside and within the context of insolvency. There are numerous statutes in New Zealand that regulate set-off and are applicable in particular circumstances. Set-off may be divided into current account set-off, independent (or legal) set-off, transaction (or equitable) set-off, and contractual set-off. The chapter first considers these types of set-off between solvent parties, along with set-off in relation to competing security interests under the Personal Property Securities Act 1999 (PPSA), before discussing set-off against insolvent parties. In particular, it explains insolvency set-off in liquidation, set-off in voluntary administration, netting insolvency set-off in liquidation and voluntary administration, and statutory management set-off. It also analyses issues arising from cross-border set-off, including the choice of law and cross-border application of PPSA.

scholarly journals Sector Inquiry into Cross-Border E-Commerce: Challenges and Practical Implications for European Union Completion Law

2017 ◽  
Vol 7 ◽  
pp. 235-248
Author(s):  
Artur Szmigielski
Keyword(s):  
European Union ◽  
Competition Law ◽  
Online Markets ◽  
Dynamic Nature ◽  
Competition Analysis ◽  
Cross Border ◽  
Traditional Competition ◽  
Practical Implications ◽  
The Way

The aim of this article is to show what the practical implications are regarding the Commission inquiry into e-commerce sector launched on 6 May 2015. Because of their specific and dynamic nature, the application of competition law to online markets may prove challenging. Therefore, the focus will be also directed to challenges that could be faced when anti-competitive practices in e-commerce sector are strictly enforced. The question is whether traditional competition analysis may be sufficiently able to reflect the way in which competition takes place on digital markets.

Prawne aspekty eutanazji w Holandii

2016 ◽  
Vol 14 (3) ◽  
pp. 243-253
Author(s):  
Grzegorz Stefanowicz
Keyword(s):  
The Netherlands ◽  
Assisted Suicide ◽  
Public Authority ◽  
Dutch Society ◽  
On Demand ◽  
Limited Length ◽  
The Law ◽  
Death On Demand ◽  
The Way

This article undertakes to show the way that has led to the statutory decriminalization of euthanasia-related murder and assisted suicide in the Kingdom of the Netherlands. It presents the evolution of the views held by Dutch society on the euthanasia related practice, in the consequence of which death on demand has become legal after less than thirty years. Due attention is paid to the role of organs of public authority in these changes, with a particular emphasis put on the role of the Dutch Parliament – the States General. Because of scarcity of space and limited length of the article, the change in the attitudes toward euthanasia, which has taken place in the Netherlands, is presented in a synthetic way – from the first discussions on admissibility of a euthanasia-related murder carried out in the 1970s, through the practice of killing patients at their request, which was against the law at that time, but with years began more and more acceptable, up to the statutory decriminalization of euthanasia by the Dutch Parliament, made with the support of the majority of society.

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