5 Belgium

2018 ◽  
Author(s):  
Vermylen Marc
Keyword(s):  
Legal Framework ◽  
Civil Code ◽  
Court Order ◽  
Legal Concept ◽  
Cross Border ◽  
The Law

This chapter provides an overview of the law of set-off in Belgium. Set-off is a recognized legal concept in Belgian law and can occur in one of three ways: by operation of law (legal set-off), court order (judicial set-off), or agreement (contractual set-off). Under the Belgian Civil Code, set-off has been considered primarily not as a security technique but as a means of facilitating payments between two reciprocal debtors. After discussing the legal framework of set-off in Belgium, the chapter considers set-off between solvent parties. In particular, it explains legal set-off, judicial set-off, contractual set-off, and multilateral set-off. It then examines set-off in insolvency, taking into account legal set-off and contractual set-off against insolvent parties. Finally, it analyses isses arising in cross-border set-off.

8 Chile

2018 ◽  
Author(s):  
Armas M Marcelo
Keyword(s):  
Civil Code ◽  
Bankruptcy Law ◽  
Legal Concept ◽  
Contractual Arrangement ◽  
Cross Border ◽  
Before And After ◽  
The Law ◽  
The Right

This chapter examines the law of set-off in Chile, both before and after insolvency, as well as the alternatives for contractual set-off structures that may be agreed among two or more parties. In Chile, set-off was created as a legal concept primarily on the basis of practical considerations rather than juridical principles. The right to set-off may arise due to a contractual arrangement between the parties or by the operation of law, including the Chilean Civil Code. The chapter first considers set-off in Chile outside insolvency, focusing on set-off by operation of law and contractual set-off, before discussing set-off in insolvency. In particular, it explains the implications of a declaration of liquidation under Chilean Bankruptcy Law and its possible consequences for set-off rights. It also analyses issues arising in cross-border set-off.

30 South Korea

2018 ◽  
Author(s):  
Hong Suhn-Kyoung ◽  
Cheong Seong-Koo
Keyword(s):  
South Korea ◽  
International Law ◽  
Legal Framework ◽  
Civil Code ◽  
Private International Law ◽  
Cross Border ◽  
The Law ◽  
The Right ◽  
Insolvency Proceedings ◽  
Governing Law

This chapter discusses the law of set-off in South Korea, along with certain restrictions on the exercise of the right of set-off in insolvency proceedings. The legal framework for set-off in South Korea is based on the Civil Code. The courts have also generally supported set-off as a means of satisfying a claim or discharging debt. The Korean Private International Law does not expressly lay down the governing law for set-off. This governing law issue is commonly discussed under two scenarios: set-off is undertaken on the basis of a set-off agreement between the parties; and set-off is undertaken in the absence of an agreement. The chapter first considers the governing law of contractual and non-contractual set-off in South Korea before turning to set-off between solvent parties and set-off against insolvent parties. It also analyses issues arising in cross-border set-off.

18 Italy

2018 ◽  
Author(s):  
Curran Lisa
Keyword(s):  
Civil Code ◽  
Bankruptcy Law ◽  
Cross Border ◽  
Italian Law ◽  
The Will ◽  
The Law

This chapter discusses the law of set-off in Italy. Under Italian law, set-off is recognised as a mechanism for extinguishing an obligation. The Civil Code classifies set-off by operation of law, by intervention of the judge, or by the will of the parties. The Code also lays down particular rights of combination with regard to amounts credited and debited to current accounts, as well as specific rights of set-off with regard to balances of a plurality of accounts or other relationships between a bank and its customer. The chapter first provides an overview of legal and contractual set-off between solvent parties before analysing set-off against insolvent parties. It examines the relevant provisions of the Italian Bankruptcy Law and the question of voidable preferences with respect to set-off. It also looks at issues arising from cross-border set-off between solvent parties and cross-border set-off against insolvent parties.

10 Czech Republic

2018 ◽  
Author(s):  
Schweigelová Dana
Keyword(s):  
Czech Republic ◽  
Capital Markets ◽  
Legal Framework ◽  
Civil Code ◽  
The Czech Republic ◽  
Cross Border ◽  
Statutory Law ◽  
Regulatory Regimes ◽  
The Cross

This chapter provides an overview of the legal framework of set-off in the Czech Republic both outside and within the context of insolvency. In the Czech Republic, set-off rights are regulated exclusively by statutory law. General regulations on set-off arrangements are laid down in Sections 1982–1991 of the Czech Civil Code. Other laws relevant to set-off are the Business Corporations Act, the Capital Markets Act, the Financial Collateral Act, and the Act on Insolvency. The chapter first examines set-off between solvent parties, taking into account general regulations, specific regulations under the Business Corporations Act, contractual set-off involving multiple parties, and special regulatory regimes governing set-off in the Czech Republic. It then considers set-off between insolvent parties before concluding with an analysis of set-off issues arising in the cross-border context.

scholarly journals On the court jurisdiction in case of litigation between entrepreneurs

2019 ◽  
Vol 13 (1) ◽  
pp. 655-662
Author(s):  
Cristina Cojocaru
Keyword(s):  
Supreme Court ◽  
Legal Framework ◽  
Civil Code ◽  
High Court ◽  
Application Of Law ◽  
Territorial Jurisdiction ◽  
Specialized Courts ◽  
The Subject ◽  
The Law ◽  
Practical Implications

Abstract According to the Romanian legislation, the parties may agree in writing that the disputes concerning goods and other rights deriving from the non-performance of the contract be judged by other courts that, according to the law, would have territorial jurisdiction to hear the case, unless the competence of the court is exclusive. By decision no. 18/2016 the Romanian High Court of Cassation and Justice, through the competent division to judge the appeal in the interest of the law, decided that in matters of procedural substantive (material) jurisdiction of the specialized courts, the competence of the specialized courts is determined depending on the object or the nature of disputes such as those considered examples by art. 226 paragraph 1 of Law no. 71/2011 on the application of Law no. 287/2009 on Civil Code. Considering also this decision, the article aims to analyze the practical implications of another recent decision of the Romanian supreme court, namely Decision no. 561/2018, on the competence of the specialized court in litigations between entrepreneurs and, without claiming to cover extensively the subject, to offer a view on the Romanian current legal framework, on the court jurisdiction and the notion of professional, underlining the freedom of entrepreneurs or professionals of choosing the relevant court.

25 Portugal

2018 ◽  
Author(s):  
de Lemos Tiago Ferreira
Keyword(s):  
Civil Code ◽  
Cross Border ◽  
The Law ◽  
Contractual Rights

This chapter provides an overview of the law of set-off in Portugal, both outside and within the context of insolvency. In Portugal, the policy justification for set-off is based on the fact that it may be used to avoid reciprocal payments whenever legally possible. The Portuguese Civil Code regulates set-off as part of its rules on contractual rights and obligations, but does not regard set-off as creating any security right (either in rem or in personam), lien, pledge, charge, mortgage, or other similar right over any assets of the parties involved. The chapter first considers set-off between solvent parties, focusing on unilateral set-off and contractual set-off, before discussing set-off against insolvent parties. It examines the relevant provisions of the Portuguese Netting Law and concludes with an analysis of cross-border issues relating to set-off between solvent parties and set-off against insolvent parties.

14 France

2018 ◽  
Author(s):  
Hubert Olivier
Keyword(s):  
Civil Code ◽  
Bankruptcy Law ◽  
Cross Border ◽  
Eu Directive ◽  
The Law ◽  
Financial Obligations ◽  
Derivative Products ◽  
The Eu

This chapter examines the law of set-off in France and how the country's bankruptcy law may affect the effectiveness of set-off. In France, set-off has been reaffirmed by specific rules regarding the netting of derivative products or by the EU Directive on Financial Collateral Arrangements (Collateral Directive). Other laws with relevant provisions for set-off include the French Civil Code and the French Monetary and Financial Code. The chapter first provides an overview of set-off between solvent parties, focusing on legal set-off, contractual set-off, enhanced set-off of financial obligations, cash-pooling arrangements, and security interests. It then considers set-off against insolvent parties, taking into account issues relating to automatic stay, fraudulent transfers/suspect period, and set-off of financial obligations after opening of an insolvency procedure. It also discusses the key set-off provisions of the Collateral Directive before concluding with an analysis of the law applicable to set-off in a cross-border context.

4 Austria

2018 ◽  
Author(s):  
Tiefenthaler Stefan
Keyword(s):  
General Rule ◽  
Civil Code ◽  
Capital Maintenance ◽  
Legal Proceedings ◽  
Cross Border ◽  
General Rules ◽  
The Law ◽  
The Right ◽  
Insolvency Proceedings

This chapter provides an overview of the law of set-off in Austria. The right of set-off in Austria is governed by general rules found in sections 1438–1443 of the Austrian Civil Code. The Austrian Insolvency Code also outlines restrictions on and extensions of the right of set-off and various modifications to the general rules. The chapter first considers set-off between solvent parties, focusing on contractual set-off, capital maintenance and other restrictions, set-off in the context of legal proceedings, and statutory set-off. It then explains set-off against insolvent parties by discussing the extension of the right of set-off in insolvency, restrictions on the right of set-off in insolvency, exceptions to the general rule on set-off, claims arising by reason of the opening of insolvency proceedings, set-off and prohibition of creditor preferences, and avoidance and fraudulent transfers. Finally, it examines issues arising in cross-border set-off.

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.

26 Romania

2018 ◽  
Author(s):  
Jardine Bryan W
Keyword(s):  
Civil Code ◽  
Cross Border ◽  
Insolvency Regulation ◽  
The Law ◽  
Insolvency Proceedings

This chapter provides an overview of the law of set-off in Romania, both outside and within the context of insolvency. Under Romanian law, set-off is of two types: legal set-off, which arises by operation of law, and contractual set-off, which arises through a written agreement between parties. The rules for legal set-off are laid down in the Romanian civil code adopted by Law no. 287/2009 (the New Civil Code). The chapter first considers legal and contractual set-off between solvent parties before discussing set-off against insolvent parties. It explains bilateral set-off as well as financial collateral and challenge in insolvency proceedings. It also analyses the provisions of EU Regulations, EU Insolvency Regulation, and the New Civil Code that are relevant to cross-border set-off.

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