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.

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.

9 China

2018 ◽  
Author(s):  
Liew Chin-Chong ◽  
Zhou Ying
Keyword(s):  
Contract Law ◽  
Bankruptcy Law ◽  
Over The Counter ◽  
Cross Border ◽  
Otc Derivatives ◽  
The Law ◽  
The Right ◽  
Banks Set

This chapter examines the applicability of the law of set-off in China in cases involving solvent parties and against a party subject to a bankruptcy proceeding. It first explains statutory set-off under the Chinese Contract Law and contractual set-off between solvent parties before discussing set-off against insolvent parties, focusing on the relevant provisions of the Bankruptcy Law and requirements for insolvency set-off. It also considers the procedures for exercising the right to insolvency set-off, set-off right in the context of close-out netting in cross-border over-the-counter (OTC) derivatives transactions, restrictions on unfair preference for creditors and set-off, restrictions on banks' set-off rights against deposits, and set-off vis-a-vis clearing houses. The chapter concludes with an analysis of cross-border issues arising in set-off between solvent parties and against insolvent parties.

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.

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.

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.

21 Mexico

2018 ◽  
Author(s):  
Perezalonso Pablo
Keyword(s):  
Financial Derivatives ◽  
Bankruptcy Law ◽  
Cross Border ◽  
Security Interest ◽  
The Law ◽  
The Right ◽  
Formal Requirements ◽  
Security Agreements

This chapter discusses the law of set-off in Mexico. Under Mexican law, the right of set-off is a form of payment of obligations by which cross-claims may be extinguished up to the amount of the smaller claim. Set-off is not treated as a security interest in Mexico. In order for a set-off to be valid, it is not necessary to satisfy the formal requirements for security interests including executing specific security agreements such as security trusts, pledges, or mortgages. The chapter first considers set-off between solvent parties, focusing on automatic set-off and contractual set-off, before analysing set-off against insolvent parties. In particular, it examines the relevant provisions of the Bankruptcy Law with respect to outstanding obligations resulting from financial derivatives, reportos, and securities lending transactions, along with the retroactivity period for such transactions. Finally, it looks at set-off issues in a cross-border context.

1 Introduction

2018 ◽  
Author(s):  
Johnston William ◽  
Werlen Thomas ◽  
Link Frederick
Keyword(s):  
Dispute Resolution ◽  
Conflict Of Laws ◽  
Contractual Arrangement ◽  
Cross Border ◽  
The Law ◽  
The Right

This book discusses the law of set-off in thirty-four jurisdictions and the different approaches used to deal with the right of set-off where parties are solvent, where a party is insolvent and where parties operate across borders. Set-off refers to the right to reduce or fully discharge a monetary obligation owed by a debtor against a claim owed to the debtor such that only the balance remains. The right to set-off may arise due to a contractual arrangement between the parties or by the operation of law, including insolvency or bankruptcy laws. Set-off has emerged as an important tool in the negotiation of financial and commercial contracts and in dispute resolution. This introduction provides an overview of set-off, with a particular focus on set-off between solvent parties and set-off against insolvent parties. It also considers conflict of laws and cross-border issues arising in set-off against solvent parties and insolvent parties.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

KEPEMILIKAN DAN PENGUASAAN OBJEK JAMINAN FIDUSIA APABILA TERJADI SENGKETA WANPRESTASI DALAM PERJANJIAN KREDIT

2020 ◽  
Vol 8 (1) ◽  
pp. 78
Author(s):  
Dija Hedistira ◽  
' Pujiyono
Keyword(s):  
Economic Benefits ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
Analysis Method ◽  
The Law ◽  
The Right

<p>Abstract<br />This article aims to analyze the ownership and mastery of a fiduciary collateral object, in cases that often occur today, many disputes between creditors and debtors in fiduciary collateral agreements are caused because creditors assume that with executive rights as fiduciary recipients, the fiduciary collateral object legally owned by creditors and creditors the right to take and sell fiduciary collateral objects when the debtor defaults unilaterally, as well as the debtor who considers that the fiduciary collateral object is owned by him because the object is registered on his name, so that the debtor can use the object free as  giving to a third party or selling the object of fiduciary guarantee unilaterally. the author uses a normative <br />juridical approach, and deductive analysis method based on the Civil Code and fiduciary law applicable in Indonesia, Law No. 42 of 1999 concerning Fiduciary Guarantees. The conclusion of the discussion is the ownership of the object of the Fiduciary Guarantee is owned by the debtor in accordance with the Law, mastery of the object of collateral controlled by the debtor for economic benefits, the procedure of execution The object of Fiduciary Guarantee is carried out in accordance with the Fiduciary Guarantee Act, an alternative mediation in resolving the dispute. There needs to be clarity in the use of language in making a law, so as not to conflict with each other between Article one and the other Articles.<br />Keywords: Ownership; Mastery; Object of Fiduciary Guarantee; Debtor; Creditors.</p><p>Abstrak<br />Artikel ini bertujuan untuk menganalisis tentang kepemilikan dan penguasaan suatu objek jaminan fidusia, dalam kasus yang saat ini sering terjadi, banyak sengketa antara kreditur dan debitur dalam perjanjian jaminan fidusia disebabkan karena kreditur beranggapan bahwa dengan adanya hak eksekutorial sebagai penerima fidusia, maka objek jaminan fidusia tersebut secara sah dimiliki oleh kreditur dan kreditur berhak mengambil dan menjual objek jaminan fidusia saat debitur cidera janji<br />(wanprestasi) secara sepihak, begitupun dengan debitur yang menganggap bahwa objek jaminan fidusia tersebut dimiliki olehnya karena objek tersebut terdaftar atas namannya, sehingga debitur dapat mempergunakan objek tersebut secara bebas seperti menyerahkan kepada pihak ketiga atau menjual objek jaminan fidusia tersebut secara sepihak. penulis menggunakan pendekatan yuridis normatif, dan metode analisis deduktif yang didasarkan pada Kitab Undang-Undang Hukum Perdata<br />dan hukum jaminan fidusia yang berlaku di Indonesia, Undang-Undang No. 42 Tahun 1999 tentang Jaminan Fidusia. Kesimpulan pembahasan adalah Kepemilikan Objek Jaminan Fidusia dimiliki oleh debitur sesuai Undang-undang, penguasaan objek jaminan dikuasai debitur untuk manfaat ekonomis, prosedur eksekusi Objek Jaminan Fidusia dilakukan sesuai dengan Undang-Undang Jaminan Fidusia, alternatif secara mediasi dalam menyelesaikan sengketa yang terjadi. Perlu ada kejelasan dalam<br />penggunaan bahasa pada pembuatan suatu Undang-Undang, agar tidak saling bertentangan antar Pasal satu dengan Pasal yang lainnya. <br />Kata Kunci: Kepemilikan; Penguasaan; Objek Jaminan Fidusia; Debitur; Kreditur.</p>

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