32 Sweden

2018 ◽  
Author(s):  
Stambolovski Zoran
Keyword(s):  
Case Law ◽  
Applicable Law ◽  
Cross Border ◽  
Contractual Arrangements ◽  
The Law ◽  
The Right

This chapter discusses the law of set-off in Sweden. Set-off in Sweden has developed through case law and legal commentary although legislation has been considered necessary in certain areas such as bankruptcy. The legal landscape of set-off can be divided into two sets of principles, those applying outside bankruptcy and those applying in bankruptcy. The chapter first considers set-off between solvent parties, focusing on set-off after a transfer of the principal claim, contractual arrangements, and set-off as security interests. It then examines set-off against insolvent parties, with emphasis on restrictions regarding the right of set-off in bankruptcy, recovery of set-off effected before bankruptcy, and close-out netting. It also analyses cross-border issues with respect to applicable law for set-off outside bankruptcy, applicable law for set-off in bankruptcy, and the conditions for cross-border set-off under Swedish law.

The law and practice of customary arbitration in Nigeria: Agu v. Ikewibe and applicable law issues revisited

1997 ◽  
Vol 41 (2) ◽  
pp. 201-214 ◽  
Author(s):  
Virtus Chitoo Igbokwe
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Applicable Law ◽  
Divergence Of Opinion ◽  
The Social ◽  
The Supreme Court ◽  
Open Debate ◽  
The Law ◽  
Enforcement Mechanisms ◽  
The Right

“Reservations about any concept do not automatically discredit it but allow for healthy and open debate to take place… the discussions that can arise from any such criticism, constructive or otherwise, can often lead to a greater awareness of the values of the system and ways in which it can be strengthened and made more effective in the interests of the general public.”This article critically examines the controversies surrounding the law and practice of customary arbitration in Nigeria against the background of the decision of the Nigerian Supreme Court in Agu v. Ikewibe. The case law on customary arbitration is briefly reviewed with a view to demonstrating that prior to the Agu case, there existed a divergence of opinion among judges on some fundamental principles of the law and practice of customary arbitration in Nigeria, particularly with respect to the right of the parties to withdraw at any stage of the arbitration proceedings or even after the award is rendered. The article disagrees with the views of some judges and learned scholars that theres no distinction between customary arbitration and other consensus-oriented dispute resolution methods such as negotiation and conciliation. In disagreeing with these views, it is argued that in distinguishing customary arbitration from negotiation or conciliaion, the nature of the decision-making process should be of paramount consideration. It will further be argued that the binding nature or enforcement of the decisions of a judicial or quasi-judicial body differs from society to society. These enforcement mechanisms should not be divorced from the social relationships existing in a particular society. In conclusion, the article endorces the decision of the Supreme Court in Agu v. Ikewibe as the correct restatement of the law and practice of customary arbitration in Nigeria.

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.

COHABITANTS IN PRIVATE LAW: TRUST, FRUSTRATION AND UNJUST ENRICHMENT IN ENGLAND, GERMANY AND CANADA

2013 ◽  
Vol 62 (3) ◽  
pp. 629-665 ◽  
Author(s):  
Anne Sanders
Keyword(s):  
Intimate Relationships ◽  
Case Law ◽  
Private Law ◽  
Party Autonomy ◽  
Unjust Enrichment ◽  
Legislative Action ◽  
The Law ◽  
Canadian Provinces ◽  
The Right ◽  
English Canadian

AbstractNeither in England, nor in Germany, nor in all Canadian provinces, does the law provide specific rules for the redistribution of property for unmarried cohabitants after the breakdown of their relationship. Instead, courts apply the law of trusts, contract and unjust enrichment with an eye to the characteristics of intimate relationships, as, for example, in decisions like the EnglishJones v Kernott([2011] UKSC 53) and the CanadianKerr v Baranow(2011 SCC 10). This article compares English, Canadian, and German case law and evaluates it both from a doctrinal perspective and as a part of a general approach towards cohabitation. The article concludes with an appeal for legislative action that strikes the right balance between party autonomy and protection of the weaker party.

scholarly journals El derecho de acceso a la información pública como derecho fundamental:una valoración del debate doctrinal a propósito de la ley de transparencia = The right of access to public information as fundamental right:an assessment of the doctrinal debate c

2014 ◽  
pp. 349
Author(s):  
Göran Rollnert Liern
Keyword(s):  
Public Information ◽  
Case Law ◽  
Freedom Of Information ◽  
International Treaties ◽  
Spanish Constitution ◽  
Information Set ◽  
The Law ◽  
Parliamentary Procedure ◽  
The Right ◽  
Right Of Access

La tramitación parlamentaria de la Ley de Transparencia ha reabierto el debate doctrinal sobre el acceso a la información pública como derecho fundamental. El trabajo hace una valoración de los argumentos utilizados en la discusión, en particular de la jurisprudencia nacional sobre este derecho y de su posible integración en la libertad de información del art. 20.1 d) CE interpretándolo conforme a los tratados internacionales y atendiendo a las recientes sentencias del TEDH dictadas en 2009 y 2013.The parliamentary procedure of the Law of Transparency has reopened the doctrinal debate on access to public information as a fundamental right. The paper gives a valuation of the arguments used in the discussion, in particular the national case-law on this right and the possible integration thereof in the freedom of information set in article 20.1 d) of the Spanish Constitution interpreting it according to international treaties and taking into account the recent judgments of the ECHR established in 2009 and 2013.

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.

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.

scholarly journals Private Prosecutions in Mauritius: Clarifying Locus Standi and Making the Director of Public Prosecutions more Accountable

2017 ◽  
Vol 10 (1) ◽  
pp. 1-34
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
African Countries ◽  
Locus Standi ◽  
Statutory Requirement ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
The Right

Case law shows that private prosecutions have been part of Mauritian law at least since 1873. In Mauritius there are two types of private prosecutions: private prosecutions by individuals; and private prosecutions by statutory bodies. Neither the Mauritian constitution nor legislation provides for the right to institute a private prosecution. Because of the fact that Mauritian legislation is not detailed on the issue of locus standi to institute private prosecutions and does not address the issue of whether or not the Director of Public Prosecutions has to give reasons when he takes over and discontinues a private prosecution, the Supreme Court has had to address these issues. The Mauritian Supreme Court has held, inter alia, that a private prosecution may only be instituted by an aggrieved party (even in lower courts where this is not a statutory requirement) and that the Director of Public Prosecutions may take over and discontinue a private prosecution without giving reasons for his decision. However, the Supreme Court does not define “an aggrieved party.” In this article the author takes issue with the Court’s findings in these cases and, relying on legislation from other African countries, recommends how the law could be amended to strengthen the private prosecutor’s position.

scholarly journals Applicable Law to Transnational Personal Data: Trends and Dynamics

2020 ◽  
Vol 21 (6) ◽  
pp. 1283-1308
Author(s):  
Jie (Jeanne) Huang
Keyword(s):  
Data Protection ◽  
Personal Data ◽  
Chinese Media ◽  
Applicable Law ◽  
Personal Data Protection ◽  
Regional Coordination ◽  
The Law ◽  
Model Law ◽  
The Right ◽  
The Eu

AbstractThe recent COVID-19 outbreak has pushed the tension of protecting personal data in a transnational context to an apex. Using a real case where the personal data of an international traveler was illegally released by Chinese media, this Article identifies three trends that have emerged at each stage of conflict-of-laws analysis for lex causae: (1) The EU, the US, and China characterize the right to personal data differently; (2) the spread-out unilateral applicable law approach comes from the fact that all three jurisdictions either consider the law for personal data protection as a mandatory law or adopt connecting factors leading to the law of the forum; and (3) the EU and China strongly advocate deAmericanization of substantive data protection laws. The trends and their dynamics provide valuable implications for developing the choice of laws for transnational personal data. First, this finding informs parties that jurisdiction is a predominant issue in data breach cases because courts and regulators would apply the law of the forum. Second, currently, there is no international treaty or model law on choice-of-law issues for transnational personal data. International harmonization efforts will be a long and difficult journey considering how the trends demonstrate not only the states’ irreconcilable interests but also how states may consider these interests as their fundamental values that they do not want to trade off. Therefore, for states and international organizations, a feasible priority is to achieve regional coordination or interoperation among states with similar values on personal data protection.

The State of the Law on Euthanasia in Kenya

2020 ◽  
Vol 8 (1) ◽  
pp. 1-14
Author(s):  
Moni Wekesa ◽  
Martin Awori
Keyword(s):  
Empirical Studies ◽  
Case Law ◽  
The State ◽  
Right To Die ◽  
Criminal Offence ◽  
Dual Effect ◽  
Current State ◽  
The Law ◽  
State Of Affairs ◽  
The Right

The general position of the law on euthanasia worldwide is that all states recognise their duty to preserve life. Courts in various jurisdictions have refused to interpret the 'right to life' or the 'right to dignity' to also include the 'right to die'. Instead, they have held that the state has a duty to protect life. Three categories can however be noted. At one extreme are those countries that have totally criminalised any appearance of euthanasia. In the middle are countries that prohibit what appears to be active euthanasia while at the same time tolerating 'dual-effect' treatment and withdrawal of artificial feeding. At the other extreme are countries that allow euthanasia. Even in this last category of countries, there are stringent guidelines embedded in the law to prevent a situation of 'free for all'. Anecdotal evidence, some empirical studies and case law seem to suggest that euthanasia goes on in many countries irrespective of the law. Euthanasia is a criminal offence in Kenya. However, there have been no empirical studies to ascertain whether euthanasia goes on in spite of the law. This article surveys the current state of the practice of euthanasia globally and narrows down to elaborate on the state of affairs in Kenya.

The International Tribunal for the Law of the Sea and General International Law

2007 ◽  
Vol 22 (3) ◽  
pp. 351-367 ◽  
Author(s):  
Michael Wood
Keyword(s):  
International Law ◽  
Case Law ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Applicable Law ◽  
The Law

AbstractAfter addressing some preliminary points, the presentation first stresses the importance of distinguishing clearly between jurisdiction and applicable law. Then it considers how a court or tribunal whose jurisdiction ratione materiae is largely con fined to the interpretation and application of a particular treaty may nevertheless refer to general international law. The author suggests six possible ways in which recourse may be had to general international law and analyzes the case-law of the International Tribunal for the Law of the Sea in that regard. He then points out the relevance of expertise in general international law for the composition of the Tribunal. By way of conclusion, the author suggests that when any court or tribunal acting under a limited conferral of jurisdiction has recourse to general international law, it should—in the interest of transparency and so as to avoid the appearance of an excess of jurisdiction— explain the basis on which it is doing so. In his view, the Tribunal has made an important contribution to the law of the sea and to certain issues of general international law while acknowledging that the law of the sea can only be properly understood within the context of international law as a whole.

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