CHOICE OF LAW REGARDING THE VOLUNTARY ASSIGNMENT OF CONTRACTUAL OBLIGATIONS UNDER THE ROME I REGULATION

2011 ◽  
Vol 60 (1) ◽  
pp. 29-56 ◽  
Author(s):  
Trevor C Hartley
Keyword(s):  
Third Parties ◽  
The Other ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Other Hand ◽  
The Law ◽  
Contractual Obligations ◽  
Rome I ◽  
The Relationship

AbstractThe voluntary assignment of contractual (and non-contractual) obligations in conflict of laws is governed by article 14 of the Rome I Regulation. Under this, the validity of the assignment as between the assignor and assignee is governed by the law applicable to the contract between them (paragraph 1 of article 14). On the other hand, the assignability of the claim and the relationship between the debtor and the assignee are governed by the law applicable to the obligation assigned (paragraph 2 of article 14). Certain issues are, however, outside the scope of article 14 as it stands at present. These are the question of priorities between competing assignments (if the same obligation is assigned twice to different assignees) and the rights of third parties (mainly creditors of the assignor). This article examines the precise scope of the two existing paragraphs and considers the arguments that might be relevant in deciding what law should govern the issues at present not covered by either paragraph, a question that has become more pressing in view of the fact that negotiations will soon begin on a possible amendment of article 14 to deal with it.

Procedure

2019 ◽  
pp. 225-238
Author(s):  
V.C. Govindaraj
Keyword(s):  
The Other ◽  
Remedial Measures ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Other Hand ◽  
Foreign Law ◽  
The Law ◽  
Substantive Law

This chapter begins with a brief discussion of the jurisprudential distinction between substance and procedure. Substance relates to rights and obligations of the parties to a dispute, whereas procedure is the means employed to determine such rights and obligations. Matters of substantive law are governed by the lex causae (that is, the law that governs the cause of action), the law found applicable under the concerned country’s rules for the choice of law. Matters of procedure, on the other hand, are governed by the lex fori (that is, the law of the forum), the law of country where the action is brought. The chapter covers procedural matters of interlocutory character; remedial measures for enforcing a right; conflict of laws and the law of limitations; matters of enforcement; underlying norms and principles of stay of proceedings; and proof of foreign law.

THE LAW APPLICABLE TO PRODUCT LIABILITY: THE PRESENT STATE OF THE LAW IN EUROPE AND CURRENT PROPOSALS FOR REFORM

2005 ◽  
Vol 54 (2) ◽  
pp. 475-488 ◽  
Author(s):  
Thomas Kadner Graziano
Keyword(s):  
European Union ◽  
Present State ◽  
Product Liability ◽  
The Other ◽  
The European Union ◽  
Choice Of Law ◽  
The Law ◽  
Contractual Obligations ◽  
The Uk ◽  
Rome I

The choice of law-rules for contractual obligations is harmonized in the European Union and the system established by the Rome I-Convention has proved its merits.1 The choice of law rules for tortious or delictual liability, on the contrary, is still largely left to the national legislators and courts2 and they differ very much from one country to the other. Two Hague Conventions cover particular issues.3 Neither of them is in force in the UK.

Choice Of Law In Contract Under The Rome Convention: The Approach Of The Uk Courts

2004 ◽  
Vol 53 (2) ◽  
pp. 325-350 ◽  
Author(s):  
Jonathan Hill
Keyword(s):  
General Principle ◽  
The Other ◽  
Choice Of Law ◽  
The Core ◽  
Rome Convention ◽  
The Law ◽  
Contractual Obligations ◽  
The One ◽  
The Uk ◽  
The Relationship

The core provisions of the Rome Convention on the law applicable to contractual obligations are deceptively simple: a contract is governed by the law chosen by the parties (Article 3(1)); to the extent that the parties have not made a choice, a contract is governed by the law of the country with which it is most closely connected (Article 4(1)). However, within these provisions there are a number of problems. First, Article 3 provides that the parties’ choice may be either express or ‘demonstrated with reasonable certainty from the terms ofthecontract or the circumstances of the case’. This gives rise to potentially difficult questions about what constitutes an express choice and uncertainty as to the dividing line between, on the one hand, cases where the parties have made a choice (albeit not an expressone) and, on the other, cases where the parties have not made a choice at all. Secondly, the general principle in Article 4 is supplemented bya presumption (in paragraph 2), 1 which may, incertain circumstances, be disregarded (under paragraph 5). The operation of the presumption is problematic and the relationship between Article 4(2) and Article 4(5) controversial.

The Conflict of Laws and Unjust Enrichment

2021 ◽  
pp. 175-198
Author(s):  
Andrew Burrows
Keyword(s):  
European Union ◽  
The European Union ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Unjust Enrichment ◽  
The Past ◽  
The Law ◽  
The Relationship

This essay revisits the relationship between the conflict of laws and the law of unjust enrichment (or, more widely, the law of restitution) in light of shifts in the legal landscape over the past forty years. It considers the rules of jurisdiction and of choice of law applied by the English courts, accounting for the effects of the UK’s departure from the European Union.

Legal Regulation of Adjudication in Civil Code of the Russian Federation (Issues of Conflict Rules)

2015 ◽  
Vol 3 (5) ◽  
pp. 0-0
Author(s):  
Татьяна Лазарева ◽  
Tatyana Lazaryeva
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Legal Regulation ◽  
Civil Code ◽  
Private International Law ◽  
Conflict Of Laws ◽  
The Russian Federation ◽  
The Law ◽  
Contractual Obligations ◽  
Rome I

The article deals with conflict of laws regulation of transfer of creditor’s rights to another person (assignment of claims (cessions) and transfer of rights under the law) in terms of amendments to Part III of the Civil Code of the Russian Federation. The author notes that though amendments to the separate article on cession are not fundamental, the amendments of other articles of the Civil Code of the Russian Federation, concerning contractual obligations, do influence regulation of relations between the parties in assignment. The article pays special attention to the new conflict of law rule regulating the transfer of the creditor’s rights under the law. Relevant court practice is analyzed. On the basis of comparing legislations of specific countries, as well as norms of EC No. 593/2008 (‘‘Rome I’’) Regulation and EC No. 864/2007 (‘‘Rome II’’) Regulation the author draws the conclusion that despite some differences in conflict of laws regulation of the transfer of the creditor’s rights, in general the Russian rules comply with modern trends in private international law in the majority of European countries.

scholarly journals Kolizyjnoprawna problematyka skuteczności przelewu wierzytelności wobec osób trzecich — projekt rozporządzenia Parlamentu Europejskiego i Rady w sprawie prawa właściwego dla skutków przelewu wierzytelności wobec osób trzecich (COM(2018) 96 final)

2019 ◽  
Vol 25 ◽  
pp. 67-90
Author(s):  
Witold Kurowski
Keyword(s):  
Third Parties ◽  
Third Party ◽  
Habitual Residence ◽  
Eu Regulation ◽  
The Third ◽  
The Law ◽  
The Third Party ◽  
Contractual Obligations ◽  
Rome I

The question of which law should govern the third-party effects of assignments of claims was considered during the preparation of the Rome I Regulation. The European Commission’s proposal for the Rome I Regulation admitted the law of the assignor’s habitual residence as the law that should apply to the proprietary effects of assignments of claims. Finally, EU Regulation on the law applicable to contractual obligations did not include the issue of the third-party effects of the assignment. However, Article 27(2) of the Rome I Regulation required the European Commission to present a report on the question of the effectiveness of assignments of claims against third parties accompanied, if appropriate, by a proposal to amend the Rome I Regulation. Proposal for a Regulation on the law applicable to the third-party effects of assignments of claims (COM(2018) 96 final) is a response to this request. This paper analyses current draft of the new EU Regulation, the rules on determination of the third-party effects of assignments of claims (law of the assignor’s habitual residence and law of the assigned claim) and "super conflict rules" in specific cases. The author argues that the law of the assignor’s habitual residence remains the appropriate conflict rule for proprietary effects of assignments of claims.

Performance of Obligations as the Basis of Jurisdiction and Choice of Law (Lugano and Brussels Conventions Article 5(1) and Rome Convention Article 4)

1999 ◽  
Vol 68 (4) ◽  
pp. 379-396 ◽  
Author(s):  
Keyword(s):  
European Union ◽  
Point Of View ◽  
Brussels Convention ◽  
The European Union ◽  
Choice Of Law ◽  
Rome Convention ◽  
The Law ◽  
Contractual Obligations ◽  
Article 5 ◽  
The Relationship

AbstractWhen a dispute arises in connection with an international contract, it is necessary to clarify two matters: (i) the courts of which country are competent to decide on the dispute, and (ii) the law of which country applies to the merits of the dispute. Within the European Union, these matters are clarified, respectively, by the Brussels Convention on (i.a.) jurisdiction and by the Rome Convention on the law applicable to contractual obligations. The scope of application of the Brussels Convention is extended also to cover the EFTA Countries, through the Lugano Convention. The scope of the Rome Convention, on the contrary, does not reach beyond the European Union. This imbalance in the relationship between choice of forum and choice of law is particularly noticeable in Norway, which does not have a codified system of choice of law rules. The relationship between choice of forum rules and choice of law rules is highlighted in this article from the point of view of a specific connecting factor: the performance of the disputed obligation.

scholarly journals La representación parlamentaria en América latina. Las comisiones permanentes y los partidos en el congreso

2009 ◽  
Vol 47 ◽  
Author(s):  
Luisa Béjar
Keyword(s):  
Collective Action ◽  
Dominican Republic ◽  
The Other ◽  
Institutional Framework ◽  
Legislative Process ◽  
Main Argument ◽  
Other Hand ◽  
The Law ◽  
America Latina ◽  
The Relationship

RESUMEN: El principal argumento de este escrito es que la heterogeneidad de los diseños institucionales que prima en el campo electoral en América Latina (Carroll y Shugart, 2005) también se reproduce en el parlamentario. El perfil morfológico del sistema de comisiones propio de cada Congreso y el lugar que la ley les asigna en el proceso legislativo son prueba evidente de ello. Mientras el marco normativo de algunas legislaturas no deja lugar a dudas en cuanto a la intención de delegar en los partidos las decisiones encomendadas a estos cuerpos; en otros casos, ello ocurre en menor medida. En los casos formalmente ceñidos a una lógica de partido, por otra parte, se alientan esquemas de delegación de corte muy diverso. En este escrito se revisa el acomodo institucional del sistema de comisiones de la Cámara Baja en: Argentina; Bolivia; Brasil; Colombia; Chile; México; Paraguay; República Dominicana y Uruguay. En este sentido, el estudio examina tanto la importancia concedida a su trabajo, como algunos aspectos de su morfología que afectan la estructura de incentivos que acota el desarrollo del proceso legislativo. Asimismo, se analizan los procedimientos utilizados en cada Congreso para enfrentar los problemas de acción colectiva. Por último, se presentan algunas ideas para la elaboración de una futura taxonomía sobre la relación que guardan en la región los partidos y las comisiones permanentes del Congreso.ABSTRACT: The main argument of this paper is that the heterogeneity of the institutional framework that prevails in Latin America’s electoral field (Carroll y Shugart, 2005), also reproduces itself in the parliamentary one. This is proved by the morphologic profile of each Congress’ commission system and the place that the law assigns to the system. While some legislative frameworks clearly intend to delegate to parties the decisions entrusted to this bodies; in other cases, this takes place in a less important way. In the cases formally related with a party logic, on the other hand, diverse delegation schemes are encouraged. In this article we analyze the institutional framework of the commission systems of the low chamber in: Argentina; Bolivia; Brazil; Colombia; Chile; Mexico; Paraguay; Dominican Republic and Uruguay. In this sense, this work examines the importance given to their job and some aspects of its morphology that affect the structure of incentives that narrows the development of the legislative process. We also analyze the procedures used by each Congress to solve its problems of collective action. Lastly, some ideas for the elaboration of a future taxonomy on the relationship between parties and permanent commissions in the region are presented.

scholarly journals Death of the Breadwinner and the Continuation of the Duty of Spousal Support: Discrepancies and Inequalities for Different Categories of Surviving Partners

2020 ◽  
Vol 23 ◽  
pp. 1-19
Author(s):  
Elsje Bonthuys
Keyword(s):  
Financial Support ◽  
Spousal Support ◽  
Third Parties ◽  
The Other ◽  
Intimate Partners ◽  
Other Hand ◽  
The Law ◽  
The One

This note considers the extension of the duty of spousal support after the death of the breadwinner by comparing the rights of different categories of surviving maintenance claimants, who tend to be mostly women: widows of the deceased, unmarried intimate partners of the deceased and ex-wives and ex-partners of the deceased. Financial support can be provided from the deceased estate in the form of a right to share in the joint matrimonial estate, a right to intestate succession, a right to claim from the estate in terms of the Maintenance of Surviving Spouses Act and a right to claim for loss of support from third parties who who caused the death of the deceased breadwinner. Comparing different categories of women, it becomes clear that the law disproportionately benefits widows over other partners and that the rights of ex-spouses are being gradually eroded by the jurisprudence. There is also a discrepancy between rights to claim against deceased estates, which favours widows, on the one hand, and rights to claim against third parties, which is available to a far larger group of surviving maintenance claimants, on the other hand. The note analyses the gendered causes and consequences of these differences. 

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