Part II A View Through Illustrative Contracts and Harmonizing Instruments, 15 Transactions in Securities

2015 ◽  
Keyword(s):  
Legal Framework ◽  
Regulatory Framework ◽  
Property Law ◽  
International Treaties ◽  
Insolvency Law ◽  
Conflict Of Laws ◽  
Paper Form ◽  
The Hague ◽  
The Law

Chapter 15 examines the transnational legal framework for intermediated securities. It describes the shift from a world in which securities were primarily held and traded in paper form to a market in which they are held in immobilized or dematerialized form and traded through intermediaries. This shift required changes to national and regional legislation and resulted in the adoption of two international treaties: the Hague and Geneva Securities Conventions. The chapter pays attention to aspects of property law, the law of obligations, insolvency law, conflict of laws, and the regulatory framework for intermediated securities. Particular information is provided on financial collateral transactions and close-out netting.

The law applicable to third-party effects of assignment and the conflict rules for insolvency according to EU law

2019 ◽  
Vol 24 (4) ◽  
pp. 664-684
Author(s):  
Christian Heinze ◽  
Cara Warmuth
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Third Party ◽  
Legislative Process ◽  
Insolvency Law ◽  
Ongoing Debate ◽  
Good Opportunity ◽  
Insolvency Regulation ◽  
The Law ◽  
The Eu

Abstract In March 2018, the European Commission issued its proposal for a regulation on the law applicable to third-party effects of assignments of claims, aiming to put an end to the ongoing debate on this issue and the legal uncertainty associated with it. On the basis of the Commission’s decision in favour of the application of the law of the assignor’s habitual residence, this article discusses the consequences of the Proposal under European Union (EU) insolvency law. For that purpose, the coherence of the Proposal with the Insolvency Regulation will be examined, first in general and then in more detail. The analysis comes to the result that the Commission’s objective of aligning the Proposal with the legal framework of the Insolvency Regulation has predominantly been well achieved. The authors point out remaining minor inaccuracies that may be clarified in the further legislative process or by later case law. It is concluded that, from the perspective of international insolvency law, the proposed uniform conflict-of-laws rule at the EU level offers a good opportunity to promote legal certainty with regard to cross-border assignments of claims in the future.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 59 Costa Rica: Costa Rican Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Chan Anayansy Rojas ◽  
París Mauricio
Keyword(s):  
Costa Rica ◽  
International Law ◽  
Costa Rican ◽  
Private International Law ◽  
International Treaties ◽  
Commercial Arbitration ◽  
The Hague ◽  
The Law ◽  
Local Courts ◽  
Article 5

This chapter assesses Costa Rican perspectives on the Hague Principles. Costa Rica does not have a systematic and codified system that regulates conflicts of law, usually known in Costa Rica as private international law (PIL). Instead, the main sources of PIL in Costa Rica are: (i) international treaties; (ii) the Civil Code, the Code of Civil Procedures, and other domestic laws; and (iii) the Law on International Commercial Arbitration. In general, Costa Rica’s private international law regime, applicable to international commercial contracts, allows for parties to select the law of their choice as long as it does not breach public policy or harm a third party’s interest. According to Article 5 of the Organizational Law of the Judiciary, courts cannot excuse themselves from exercising their authority or from ruling in matters of their competence for lack of a rule to apply and they must do so in accordance with the written and unwritten rules. Unwritten rules refer to the general principles of law, usages and practices, and case law, according to the hierarchical order of their legal sources. Such rules serve to interpret, integrate, and delimit the field of application of law. Therefore, the local courts have limited themselves to only apply domestic law and have consequently restrained themselves from applying the Hague Principles or other soft law instruments as a persuasive authority source.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 39 United Arab Emirates: Emirati Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Bälz Kilian
Keyword(s):  
International Law ◽  
United Arab Emirates ◽  
Civil Code ◽  
International Standards ◽  
Federal State ◽  
Private International Law ◽  
International Treaties ◽  
Federal Law ◽  
The Hague ◽  
The Law

This chapter presents Emirati perspectives on the Hague Principles. The United Arab Emirates (UAE) are a federal State that was established in 1971. Private international law, civil procedure, and arbitration all are federal matters that are covered by federal laws. Private international law is codified in a section of the UAE Civil Code (Federal Law No 5 of 1985) that deals in Articles 10 to 28 with ‘The application of the law regarding the place’. The section also contains the conflict of law rules applicable to international commercial contracts. The statutory provisions of the Civil Code are, in practical terms, the most important source of law when determining the law applicable to an international contract in the UAE. According to Article 22 of the Civil Code, international treaties, to the extent they apply, override the provisions of municipal law. Moreover, Article 23 of the Civil Code provides that in the absence of any statutory provision, ‘the [general] principles of private international law’ shall apply. This provides the UAE courts with the option to make reference to international standards such as the Hague Principles.

Hague Conventions on Private International Law

2019 ◽  
pp. 239-272
Author(s):  
V.C. Govindaraj
Keyword(s):  
International Law ◽  
Hague Convention ◽  
Active Member ◽  
Private International Law ◽  
Conflict Of Laws ◽  
World Community ◽  
Child Abduction ◽  
The World ◽  
The Hague ◽  
The Law

The world has to acknowledge the contribution the Hague Conference on Private International Law has hitherto made and continues to make in its endeavour to obtain from the world community approval and acceptance of the outcome of its efforts to unify rules of conflict of laws. India has become an active member of the Hague Conference. This chapter discusses the recognition of decrees of divorces and judicial separation and maintenance obligations; child custody and child abduction; the law relating to succession; the law relating to service of summons abroad; Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, 1961; and Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters, 1970.

8 Close-Out Netting and Safe Harbours

2020 ◽  
Keyword(s):  
Credit Risk ◽  
Legal Framework ◽  
Legal Issues ◽  
Early Termination ◽  
Insolvency Law ◽  
The Law ◽  
Safe Harbours ◽  
Multiple Jurisdictions

This chapter studies the early termination of collateral transactions. It is in this context that the transactions must prove their worth, i.e. must show they indeed reduce or limit the credit risk the collateral taker runs on the collateral provider. To achieve this result, contractual techniques have been developed that have subsequently been sanctioned and protected by the law. The chapter looks at the legal framework regulating those contractual techniques. However, the early termination of collateral transactions and the enforcement by the collateral taker of its rights in the assets provided as collateral involve specific legal issues. The majority of collateral transactions provide for 'close-out netting' as a way of enforcement; close-out netting thus replaces traditional enforcement of security interests, such as public auction. In addition, the termination of collateral transactions, and close-out netting in particular, in multiple jurisdictions is protected by 'safe harbours', i.e. shielded from insolvency law rules that would otherwise be applicable.

IV Trust Arbitration as a Matter of International Law, 19 Arbitrating Trust Disputes: Effect of the Hague Convention on the Law Applicable to Trusts and on Their Recognition

2016 ◽  
Author(s):  
von Segesser Georg
Keyword(s):  
Hague Convention ◽  
Conflict Of Laws ◽  
Binding Effect ◽  
Applicable Law ◽  
The Hague ◽  
The Law ◽  
Substantive Law ◽  
The Hague Convention ◽  
International Conventions ◽  
Selection Of

This chapter examines the effect of the Hague Convention on the Law Applicable to Trusts and on their Recognition (Hague Trust Convention) on the law applicable to the arbitration of trust disputes. It also considers the extent to which arbitrators can apply the conflict of laws rules of the convention in cases where the parties have not agreed that these rules should govern the issues in dispute. The chapter is organized as follows. Section II addresses the selection of the applicable substantive law by arbitral tribunals in cases where the parties have not agreed on the applicable law. Sections III and IV cover international conventions and, in particular the Hague Trust Convention, as sources for the selection of the applicable law. Section V deals with the validity and effect of arbitration agreements while Section VI considers the effects of a choice of-law-clause and the binding effect of such a clause for the arbitral proceedings. Section VII addresses the effect of specific conflict of laws rules of the Hague Trust Convention on the law applicable to the merits in international trust arbitration disputes.

scholarly journals Prosecuting Piracy at the High Seas: the Experience of Malaysia

2018 ◽  
Vol 26 (2) ◽  
pp. 307
Author(s):  
Muhammad Hameedullah Md Asri ◽  
Md Khalil Ruslan
Keyword(s):  
International Law ◽  
Geneva Convention ◽  
Legal Framework ◽  
International Treaties ◽  
Sovereign State ◽  
High Court ◽  
United Nations Convention ◽  
The Law ◽  
To Come ◽  
The Right

The development of the law on piracy under two major international treaties; the Geneva Convention, 1958 and the United Nations Convention on the Law of the Sea, 1982 has witnessed great acceptance and application of the law with many coastal states have crafted specific anti-piracy law as a manifestation of their commitments to the international treaties. However, up until today, Malaysia has yet to come out with a single and unified statute against piracy despite being a member to both treaties. The law is scattered in a different set of documents and carried out by various agencies that are responsible to each respective law. It is argued that given this is the position in Malaysia, the prosecution of piracy would be a critical problem for the law enforcement. In this paper, we address this concern by looking at both Malaysian legal framework as well as the experience of the country against international piracy, particularly the case of Bunga Laurel. The findings suggest that there are more than twenty Acts that might be used against piracy. As a sovereign state under the international law, Malaysia also has the right to resort to principles of international law for the apprehension and prosecution of high sea pirates. To this effect, the case of Bunga Laurel has really manifested the successful application of Malaysian law by the High Court of Malaya against international piracy. The paper concludes that the absence of a single anti-piracy law is not necessarily an obstacle, but instead an advantage with great choice of law available for the prosecution in this country.

Modern Approaches to Private International Law and Conflicting Provisions on Legal Aid in Civil Cases

2020 ◽  
Vol 27 (1) ◽  
pp. 177-188
Author(s):  
Iryna Dikovska
Keyword(s):  
International Law ◽  
Hague Convention ◽  
Private International Law ◽  
International Treaties ◽  
Legal Aid ◽  
Conflict Of Laws ◽  
Eu Member States ◽  
The Law ◽  
Contractual Obligations ◽  
The Right

Part of the legal aid treaties between Ukraine and other states contains rules concerning conflict of laws. Where those that determine the law applicable to contractual obligations, family, and hereditary relations are not in line with current approaches to determining the law applicable to the specified groups of relations. The purpose of the paper is to uncover the differences between the regulation of conflict of laws in private relations in the legal aid treaties between Ukraine and some EU countries and the modern approaches to the regulation of conflict of laws in such relations, contained in other sources of private international law; an explanation of how to solve conflicts between legal aid treaties and other international treaties; outlining the main areas of improvement of rules concerning conflict of laws in legal aid treaties. The methods of the study were comparative, dialectical, and Aristotelian, which allowed to identify the problems of regulation of conflict of law in legal aid treaties and to draw conclusions for their elimination. Application of these methods allowed to find out that lex loci contractus is most often used to regulate contractual obligations in the absence of an agreement of the parties on the choice of applicable law. The agreement between Ukraine and Romania does not provide for the choice of the law for contractual obligations. Legal aid treaties imperatively determine the law applicable to the property relations of the spouses. They apply a dualistic approach to determining the right to inherit. It has been established that competition between the rules of this Convention and the rules of legal aid treaties between Ukraine and Poland and Ukraine and Estonia should be decided in favour of the Hague Convention. It is proposed to amend the legal aid treaties concluded between Ukraine and the EU Member States: the rules concerning conflict of laws, which define the law applicable to contractual, family, and hereditary relations should be revised using the relevant EU regulations as a model.

34 Turkey

2018 ◽  
Author(s):  
Başgöz Aslı ◽  
Akmenek Yalın ◽  
Durmaz Bora
Keyword(s):  
Legal Framework ◽  
Bankruptcy Law ◽  
Actual Performance ◽  
Conflict Of Laws ◽  
Cross Border ◽  
Contractual Arrangements ◽  
The Law ◽  
As If

This chapter examines the law of set-off in Turkey, both outside and within the context of bankruptcy. It considers the legal framework of set-off under Turkish law, along with its mechanisms, requirements, limitations, and consequences under the Turkish Code of Obligations, the Turkish Execution and Bankruptcy Law, and contractual arrangements. Under Turkish law, set-off does not provide for the actual performance of an obligation. Rather, it is a mechanism for extinguishing an obligation as if performed in exchange for a counterclaim. The chapter first considers the requirements for set-off between solvent parties, the consequences of set-off outside bankruptcy, and contractual set-off. It then discusses the legal framework for set-off against insolvent parties as well as the restrictions and objections to set-off. It also analyses conflict of laws issues arising in cross-border set-off.

scholarly journals Protection against Sexual Violence in the Colombian Legal Framework: Obstacles and Consequences for Women Victims

2021 ◽  
Vol 18 (8) ◽  
pp. 4171
Author(s):  
Sandra M. Parra-Barrera ◽  
Nieves Moyano ◽  
Miguel Ángel Boldova ◽  
María del Mar Sánchez-Fuentes
Keyword(s):  
Human Rights ◽  
Sexual Violence ◽  
Women Victims ◽  
Personal Development ◽  
Well Being ◽  
Legal Framework ◽  
Regulatory Framework ◽  
Negative Consequences ◽  
International Treaties ◽  
Gender Based Violence

Sexual violence is a type of gender-based violence (GBV), as it is one of the different types of violence that is exerted against women. Sexual violence infringes fundamental human rights, and denies women’s dignity and self-determination, personal development, and well-being. Despite international treaties and a regulatory framework that legally protects Colombian women against sexual violence, it is necessary to know the effectiveness of this regulatory framework in Colombia. Therefore, the main objective of this research is to examine criminal legislation on crimes of sexual violence in Colombia with a dual purpose: first, to analyze procedural guarantees for women victims of sexual violence; second, to determine obstacles for victims of sexual violence in accordance with the legal framework. We used a legal interpretation method to perform an analysis and interpret the law. The results found that, although sexual violence is considered a type of crime, procedural guarantees are not effective as victims encounter serious obstacles with negative consequences, such as the violation of fundamental human rights.

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