33 Switzerland

2018 ◽  
Author(s):  
Frick Jürg
Keyword(s):  
Legal Framework ◽  
Conflict Of Laws ◽  
International Jurisdiction ◽  
Cross Border ◽  
Swiss Law ◽  
The Law ◽  
The Cross ◽  
Substantive Law ◽  
Insolvency Proceedings

This chapter provides an overview of the law of set-off in Switzerland. Under Swiss law, set-off functions as a mechanism of substantive law that extinguishes two obligations to the extent of the smaller obligation. The basic legal framework for set-off is a unilateral act pursuant to Article 120 et seq of the Swiss Code of Obligations of 1911, as amended (CO). The chapter first considers the CO requirements for set-off between solvent parties as well as its mechanism and effects before discussing the legal framework applicable to set-off against insolvent parties. In particular, it examines the implications for mutuality of the distinction under Swedish law between the assets and liabilities of the estate and of the receivership. It also outlines the restrictions on set-off in the event of insolvency before concluding with an analysis of set-off issues in the cross-border context arising from conflict of laws, international jurisdiction, and insolvency proceedings.

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.

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.

Part III Europe, 14 Derivatives in Cross-Border Insolvency Proceedings

2017 ◽  
Author(s):  
Garcimartín Francisco
Keyword(s):  
Insolvency Law ◽  
Conflict Of Laws ◽  
Cross Border ◽  
Starting Point ◽  
Privileged Status ◽  
Substantive Law ◽  
Insolvency Proceedings

This chapter defines derivatives as a starting point and looks at how they work. Traditionally, they have enjoyed privileged status in an insolvency scenario, both at the substantive-law level and at the conflict-of-laws level. The chapter describes how the new resolution framework has reduced that privileged status and ‘re-routed’ those financial agreements to general principles of insolvency law, in particular as regards the ‘ipso facto clause’ and other termination rights, and explains its reasons. This raises the question of whether that privileged status must be kept and the resolution scenario must be qualified as an exception to it, or conversely whether this is just a first step to reconsidering the whole approach.

Part IV Transnational Insolvency, 17 Harmonization and Co-Operation in Cross-Border Insolvency

2015 ◽  
Keyword(s):  
Conflict Of Laws ◽  
Cross Border ◽  
Insolvency Regulation ◽  
The Status ◽  
The Law ◽  
Model Law ◽  
Insolvency Proceedings ◽  
The Eu

This chapter is devoted to cross-border principles. It begins with an examination of two sets of opposing principles: unity of proceedings versus plurality and universality or territoriality in the administration of the debtor's assets in insolvency. This is followed by an examination of two major instruments: the widely adopted 1997 UNCITRAL Model Law on Cross-Border Insolvency and the EU Insolvency Regulation (recast), approved in 2015 and incorporating numerous significant changes to the former EC Regulation. The Model Law is concerned with recognition of foreign insolvency proceedings, carrying with it an automatic stay of local proceedings, and the status of foreign administrators and duties of co-operation with foreign courts and foreign administrators. The EU Insolvency Regulation (recast) is primarily a conflict of laws regulation governing jurisdiction and the law applicable to insolvency matters.

Private International Law

2018 ◽  
Author(s):  
V.C. Govindaraj
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Application Of Law ◽  
Cross Border ◽  
Corrective Measures ◽  
The Supreme Court ◽  
The Law

In deciding cases of private international law or conflict of laws, as it is widely known, judges of the Supreme Court in India generally consult the works of renowned English jurists like Dicey and Cheshire. This volume argues that our country should have its own system of resolving inter-territorial issues with cross-border implications. The author critically analyses cases covering areas such as the law of obligations, the law of persons, the law of property, foreign judgments, and foreign arbitral awards. The author provides his perspectives on the application of law in each case. The idea is to find out where the judges went wrong in deciding cases of private international law, so that corrective measures can be taken in future to resolve disputes involving complex, extra-territorial issues.

scholarly journals An Urgent Suggestion to Pour Old Wine into New Bottles: Comment on “A New Jurisprudential Framework for Jurisdiction”

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 81-85 ◽  
Author(s):  
Cedric Ryngaert
Keyword(s):  
International Law ◽  
Data Protection ◽  
Legal Framework ◽  
The Internet ◽  
Technological Evolution ◽  
International Jurisdiction ◽  
Cross Border ◽  
Data Protection Law ◽  
Informed Reader ◽  
Previous Scholarship

Dan Svantesson is quickly establishing himself as a leading voice in the field or jurisdiction. Coming to this field from Internet and data protection law, he is surely well placed to criticize the current legal framework of international jurisdiction in light of technological evolution, which has made territoriality lose its salience as the cornerstone of jurisdiction. I myself have recently been characterized as one of the border guards of territoriality, on the basis of my earlier monograph on Jurisdiction in International Law. Accordingly, the informed reader might believe that I will severely criticize as iconoclastic such a proposal as Svantesson’s namely, doing away with territoriality as the very linchpin of jurisdiction. As it happens, however, I largely concur with Svantesson’s ideas, at least to the extent they apply to cross-border transactions via the Internet. In this contribution, I argue that the reality of a de-territorialized Internet necessitates jurisdictional rethinking, but that this rethinking in fact heavily relies on previous scholarship, predating the Internet era. The advent of the current era, however, has lent particular urgency to those earlier proposals.

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.

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 ASPECTS OF THE REGULATION OF CROSS-BORDER INSOLVENCY IN SOUTH AFRICA

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Howard Chitimira
Keyword(s):  
South Africa ◽  
Comparative Analysis ◽  
Future Prospects ◽  
Cross Border ◽  
The Cross ◽  
Overview Analysis ◽  
Insolvency Proceedings ◽  
International Instruments

This article analyses the regulation of cross-border insolvency under the Cross-Border Insolvency Act 42 of 20001 in order to examine the adequacy of such regulation as regards to the enforcement of insolvency proceedings in South Africa and other relevant jurisdictions. To this end, the paper provides an overview analysis of the regulation and/or enforcement of insolvency proceedings under the Cross-Border Insolvency Act. Moreover, where possible, the paper also provides a comparative analysis of selected aspects of the regulation and/or enforcement of insolvency proceedings under the Cross-Border Insolvency Act and those that are provided under the Insolvency Act 24 of 1936 and other related international instruments. This is done to expose the challenges and future prospects of the regulatory and enforcement framework under the Cross-Border Insolvency Act in South Africa.

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.

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