3 The Arbitral Tribunal

2016 ◽  
Author(s):  
Rieder Markus S ◽  
Kreindler Richard
Keyword(s):  
German Law ◽  
State Court ◽  
Arbitral Tribunal ◽  
Form Part ◽  
Arbitral Proceedings ◽  
Ordre Public ◽  
The Right ◽  
Selection Of

This chapter examines the arbitral tribunal which resolves dispute by way of arbitration. It discusses the number of arbitrators, the procedure of appointing arbitrators, the selection of arbitrators, the challenge, termination of the office and replacement of arbitrators, as well as the arbitrator agreement — a topic that has more attention in Germany than in other jurisdictions. The study is important as the arbitral tribunal is one of the most important strategic steps in any arbitration. In most cases, the parties and their counsel to believe that picking the right panel is a preeminent precondition for achieving the desired outcome. The chapter describes how under German law, the principles of independence and impartiality of an arbitration are non-derogable cornerstones of any arbitral proceedings. Essentially, they form part of the German procedural ordre public which are considered indispensable constitutional requirements in order for arbitral proceedings to be equivalent to state court litigation.

scholarly journals FEATURES OF ESTABLISHING ARBITRABILITY IN THE COUNTREES OF THE ROMANO-GERMANIC LEGAL SYSTEM

2020 ◽  
Keyword(s):  
Legal System ◽  
German Law ◽  
State Court ◽  
Arbitral Tribunal ◽  
German State ◽  
Exclusive Jurisdiction ◽  
The Subject ◽  
State Financing ◽  
The Moment ◽  
The Right

The article is devoted to the analysis of the peculiarities of securing and regulating arbitrability in the countries of the Romano-Germanic legal system, as France, Sweden, Germany and Finland. It is established that arbitration is divided into objective and subjective, each of which has its own specific features in each country's legislation. It is emphasized that French arbitration law is one of the most pro-arbitration in Europe, in particular on matters of arbitrability and public order. Concerning the features of the Swedish regulation of arbitrability, it is stated that arbitrability is determined both by the law applicable to the arbitration agreement and by Swedish law. Unless the dispute is arbitral under one of the above jurisdictions, the arbitral tribunal may not have jurisdiction to hear that particular dispute. It is established that, since the problem of impossibility to enforce an arbitration agreement on a particular issue is, in fact, a problem of the validity of the contract, then the proper moment of verification of arbitrability is the moment of the conclusion of the parties to the arbitration agreement. If the dispute arose at the same time as the parties concluded the agreement and the parties could then settle it amicably, then such dispute shall be arbitrary. The position of the Finnish legislation on limiting the right of a party to an arbitration hearing to request the annulment / refusal of enforcement of an arbitral award on grounds not stated by the arbitral tribunal is analyzed. It has been established that, in the practice of the Finnish courts, there are no examples of restrictions on the right of parties who conclude commercial contracts involving budget (state) financing, to submit disputes from such contracts to the arbitral tribunal. It has been established that any property claim may be the subject of arbitration in Germany. German law reflects the concept of arbitrability, which provides for two conditions for admissibility of the dispute through arbitration: if the subject matter of the dispute does not fall within the exclusive jurisdiction of the German state court (objective arbitrability), and when the parties to the dispute entered into a valid arbitration subjective arbitrage).

6 The Arbitral Award

2016 ◽  
Author(s):  
Wolff Reinmar
Keyword(s):  
The Other ◽  
State Court ◽  
Arbitral Tribunal ◽  
Arbitral Award ◽  
Other Hand ◽  
Arbitral Proceedings ◽  
The One ◽  
German Court

This concluding chapter examines the arbitral award given at the outcome of the arbitration proceedings. It describes the different ways German arbitration law resolves the dispute — by decision of the arbitral tribunal and by settlement of the parties — and the rules which the arbitral tribunal applies when deciding on the merits and costs. Traditionally, arbitration is characterized by, on the one hand, largely flexible arbitral proceedings and, on the other hand, an outcome, the award that not only is tantamount to a state court judgment but also is equipped with restricted remedies and facilitated means of enforcement both domestically and internationally. In conformity with German court tradition, arbitral tribunals in Germany often encourage the parties to consider making a settlement. To facilitate enforcement of the terms of any such settlement, it may be recorded by the arbitral tribunal in the form of an award on agreed terms.

An Analysis of the Patterns of Code Switching in the Namibian Parliament

2019 ◽  
pp. 189-214
Author(s):  
Sussana Iipinge ◽  
Rewai Makamani ◽  
Selma Ashikuti
Keyword(s):  
Code Switching ◽  
High Frequencies ◽  
Purposive Sampling ◽  
Form Part ◽  
The Republic ◽  
The Right ◽  
Purposive Sample ◽  
Selection Of

This chapter examines patterns of code switching in the Namibian Parliament as represented in the volumes of parliamentary Hansards from 2015 to 2017. In this chapter, a sample of 10 issues of the Namibian parliamentary Hansards were selected. The selected Hansards constituted a representative purposive sample of the Hansards produced by the Parliament of the Republic of Namibia from 2015 to 2017. The selection of the Hansards to form part of the sample depended on the availability of hard copies of the selected issues. Using purposive sampling was important in choosing the right sample for the study as some Hansards had fewer instances of code switching than others. It was important to select those with high frequencies of code switching.

4 The Arbitral Proceedings

2016 ◽  
Author(s):  
Rieder Markus S ◽  
Kreindler Richard
Keyword(s):  
Money Laundering ◽  
Ad Hoc ◽  
German Law ◽  
Legal Framework ◽  
Arbitral Tribunal ◽  
Typical Structure ◽  
Step Model ◽  
Wide Range ◽  
The Subject ◽  
Arbitral Proceedings

This chapter addresses the legal framework applicable to proceedings before arbitral tribunals seated in Germany. On this basis, it first discusses the typical structure and frequent steps of arbitral proceedings. Regarding the initiation of arbitral proceedings, German law follows a three-step model consisting of: request for arbitration, constitution of the arbitral tribunal and initial pleadings by claimant (statement of claim) and respondent (statement of defence). German ad-hoc proceedings usually contain few mandatory formalities for the request for arbitration. Pursuant to the ZPO, its minimum contents are designation of the parties, designation of the subject matter of the dispute, and reference to the applicable arbitration agreement. The chapter concludes by examining a wide range of special situations, highlighting the steps taken by the German Institute of Arbitration (DIS) during events such as multi-party arbitration, as well as issues of fraud, money laundering, and corruption.

Der kartellrechtliche ordre public in der internationalen Schiedsgerichtsbarkeit

2021 ◽  
Author(s):  
Rüdiger Morbach
Keyword(s):  
Public Policy ◽  
Competition Policy ◽  
Competition Law ◽  
State Court ◽  
Legal Systems ◽  
Arbitral Award ◽  
Arbitral Proceedings ◽  
Ordre Public

When a state court has to decide whether to enforce or to set aside an arbitral award, it examines whether the enforcement of the award would violate fundamental principles of the forum - its public policy (ordre public). Competition law provisions that are part of these principles form the state's public competition policy. It comes into play not only during the review of the arbitral award, but affects the arbitral proceedings even before they are initiated. This thesis examines all these effects and their role in ensuring the compliance of arbitral awards with competition law. While it represents the outcome of a Franco-German dissertation project, it takes into account numerous other legal systems as well.

Ch.11 Plurality of obligors and of obligees, s.1: Plurality of Obligors, Art.11.1.8

2015 ◽  
Author(s):  
Meier Sonja
Keyword(s):  
The Other ◽  
Court Decision ◽  
State Court ◽  
Arbitral Tribunal ◽  
Legal Proceedings ◽  
Arbitral Proceedings

This commentary analyses Article 11.1.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the effects of the court's decision as to the liability to the obligee of one joint and several obligor. The obligee can commence judicial or arbitral proceedings against all the obligors together. In that case, the court decision will bind the obligee and all the obligors because they are all parties to the legal proceedings. Under Art 11.1.8(1), a decision by a tribunal (state court or arbitral tribunal) has no effect on the other obligors, neither on their obligations towards the obligee nor on the rights of recourse. This commentary explains the effects of a decision in favour of the obligee and in favour of the obligor.

Part III Dispute Resolution Under the Bermuda Form, 18 Commencement of the Arbitration

2018 ◽  
Author(s):  
Scorey David ◽  
Geddes Richard ◽  
Harris Chris
Keyword(s):  
Dispute Resolution ◽  
The Other ◽  
Arbitral Tribunal ◽  
Opposing Party ◽  
Similar Information ◽  
Arbitral Proceedings ◽  
Selection Of

This chapter discusses the procedures involved in the commencement of arbitration. Just as an arbitration agreement must be in writing, arbitral proceedings must also be commenced by way of a written notice unless the parties have agreed otherwise. The claimant's lawyers will usually commence proceedings by sending a formal notice of arbitration or request for arbitration — the precise nomenclature chosen is irrelevant. This advises the other party of a request to arbitrate, sets out the basis of the request, and appoints an arbitrator. A Bermuda Form arbitration could be validly commenced as easily by putting similar information in the form of a letter to the opposing party, or to their lawyers. The remainder of the chapter covers the selection of arbitrators, replacement of arbitrators, issues of jurisdiction of an arbitral tribunal, and court applications.

PROBLEM ASPECTS OF THE IMPLEMENTATION OF CRIMINAL PROCEDURAL NORMS OF PROTECTION OF THE VICTIMS FROM CRIME

2020 ◽  
pp. 72-76
Author(s):  
Яна Валерьевна Самиулина
Keyword(s):  
Preventive Measure ◽  
Criminal Procedure ◽  
Legal Rights ◽  
Criminal Proceedings ◽  
Effective Mechanism ◽  
The Russian Federation ◽  
The Individual ◽  
The Right ◽  
To Receive ◽  
Selection Of

В настоящей статье предпринята попытка исследовать отдельные проблемные аспекты института потерпевшего в российском уголовном процессе. В этих целях подвергнуты анализу правовые нормы, регламентирующие его процессуальный статус. Раскрываются отдельные пробелы уголовно-процессуального законодательства в сфере защиты законных прав и интересов потерпевшего. Автор акцентирует внимание на том, что совершенствование уголовно-процессуального законодательства в части расширения правомочий потерпевшего по отстаиванию своих нарушенных преступлением прав следует продолжить. На основании проведенного исследования действующего законодательства в части регламентации прав потерпевшего от преступления предлагается расширить перечень получаемых им копий постановлений, указанных в п. 13 ч. 2 ст. 42 УПК РФ. Автор предлагает включить в перечень указанной законодательной нормы право получения потерпевшим копии постановления об избрании конкретного вида меры пресечения, избранного в отношении подозреваемого (обвиняемого). Для создания действенного механизма защиты интересов потерпевших от преступления юридических лиц предлагаем ч. 9 ст. 42 УПК РФ изложить в следующей редакции: «в случае признания потерпевшим юридического лица его процессуальное право в уголовном процессе осуществляет представляющий его профессиональный адвокат». This article attempts to investigate certain problematic aspects of the institution of the victim in the Russian criminal process. For this purpose, analyzed the individual norms governing his procedural status. Separate gaps of the criminal procedure legislation in the sphere of protection of the legal rights and interests of the victim are disclosed. The author emphasizes that the improvement of the criminal procedure legislation in terms of the extension of the victim’s authority to defend his rights violated by the crime should be continued. On the basis of the study of the current legislation regarding the regulation of the rights of the victim of a crime, it is proposed to expand the list of decisions received by him, referred to in paragraph 13, part 2 of article 42 Code of Criminal Procedure. The author proposes to include in the list of the indicated legislative norm the right to receive the victim a copy of the decision on the selection of a specific type of preventive measure, selected in relation to the suspect (accused). To create an effective mechanism for protecting the interests of legal entities victims of a crime, we offer part 9 of art. 42 of the Code of Criminal Procedure of the Russian Federation shall be reworded as follows: «if a legal entity is recognized as a victim, his procedural right in criminal proceedings is exercised by the professional lawyer representing him».

Reproductive rights: Legal aspects of the right to sterilisation

Stanovnistvo ◽  
2001 ◽  
Vol 39 (1-4) ◽  
pp. 119-130 ◽  
Author(s):  
Hajrija Mujovic-Zornic
Keyword(s):  
Mental Health ◽  
Free Choice ◽  
Reproductive Rights ◽  
German Law ◽  
Legal Aspects ◽  
Penal Policy ◽  
Abortion Law ◽  
Legal Questions ◽  
The Right ◽  
Voluntary Sterilization

In this paper the author discusses the nature and importance of the right to reproduce, in particular the right to sterilisation. In the time past sterilization has been practiced only as a measure of penal policy or the prevention of mental health diseases. Today, mostly we can speak about the right to sterilization (especially reversible sterilization). The patient have a free choice to decide any method of contraception and that could be a voluntary sterilization (also called human, contraceptive, non-therapeutical in French law, and obliging in German law). Various legal questions about this right can be raised, in accordance of state of reproductive rights (how they are regulated by the law) and the protection of reproductive rights (especially the right of pregnant woman as a patient). Yugoslav law not yet has a complete regulation and adequate solutions in this area, except the abortion law. The primary gynecology care has contraceptive counseling, but concrete measures and education are insufficient. It cannot begin to give consistent answers to all of these questions without a coherent conception of the right to reproduce, which is the primary duty of legal experts.

scholarly journals The Impact of Alkaloid-Producing Epichloë Endophyte on Forage Ryegrass Breeding: A New Zealand Perspective

Toxins ◽  
2021 ◽  
Vol 13 (2) ◽  
pp. 158
Author(s):  
Colin Eady
Keyword(s):  
Seed Production ◽  
Health Issues ◽  
Abiotic Stressors ◽  
Livestock Health ◽  
The Right ◽  
The Impact ◽  
The Relationship ◽  
And Storage ◽  
Selection Of ◽  
Epichloë Endophyte

For 30 years, forage ryegrass breeding has known that the germplasm may contain a maternally inherited symbiotic Epichloë endophyte. These endophytes produce a suite of secondary alkaloid compounds, dependent upon strain. Many produce ergot and other alkaloids, which are associated with both insect deterrence and livestock health issues. The levels of alkaloids and other endophyte characteristics are influenced by strain, host germplasm, and environmental conditions. Some strains in the right host germplasm can confer an advantage over biotic and abiotic stressors, thus acting as a maternally inherited desirable ‘trait’. Through seed production, these mutualistic endophytes do not transmit into 100% of the crop seed and are less vigorous than the grass seed itself. This causes stability and longevity issues for seed production and storage should the ‘trait’ be desired in the germplasm. This makes understanding the precise nature of the relationship vitally important to the plant breeder. These Epichloë endophytes cannot be ‘bred’ in the conventional sense, as they are asexual. Instead, the breeder may modulate endophyte characteristics through selection of host germplasm, a sort of breeding by proxy. This article explores, from a forage seed company perspective, the issues that endophyte characteristics and breeding them by proxy have on ryegrass breeding, and outlines the methods used to assess the ‘trait’, and the application of these through the breeding, production, and deployment processes. Finally, this article investigates opportunities for enhancing the utilisation of alkaloid-producing endophytes within pastures, with a focus on balancing alkaloid levels to further enhance pest deterrence and improving livestock outcomes.

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