7 The Applicable Law in International Financial Disputes

2015 ◽  
Author(s):  
Dalhuisen Jan H
Keyword(s):  
Public Policy ◽  
International Finance ◽  
Building Blocks ◽  
Legal Order ◽  
Private Law ◽  
Financial Instruments ◽  
International Arbitration ◽  
Applicable Law ◽  
Financial Transactions

This chapter discusses the following topics: challenges concerning the applicable law in international financial transactions; the powers of international arbitrators, the delocalization issue, the emergence of a transnational commercial and financial legal order and its meaning for international arbitration and applicable law; the operation of transnational private law; the building-blocks of private law in international finance; public policy concerning financial instruments; and the applicable law clause in the P.R.I.M.E. Finance arbitration rules.

scholarly journals Public Policy Interests and Algorithm for Determining the Law Applicable to Private Law Relations Complicated by a Foreign Element

2021 ◽  
Vol 16 (4) ◽  
pp. 184-192
Author(s):  
A. A. Shulakov
Keyword(s):  
Public Policy ◽  
Law Enforcement ◽  
Public Order ◽  
Private Law ◽  
Law And Order ◽  
Applicable Law ◽  
Cross Border ◽  
Enforcement Officer ◽  
Law Enforcement Officer ◽  
The Law

The study contains a step-by-step algorithm for determining the law applicable to private cross-border legal relations. The algorithm is developed based on legislation, law enforcement practice and doctrine. The initial rule of the sequential execution of the stages (steps) of the algorithm is a mechanism in which the determination of the law applicable to the legal relationship at one of the stages excludes the subsequent stages of the algorithm. Public policy interests dictate the rules for determining the law to be applied to private law relations complicated by a foreign element. The establishment by the legislator and law enforcement officer of the closest connection between the interests of conflicting public orders (legal orders) with elements of cross-border legal relations is the basis for the process regulation in the Russian Federation. At the first, second and third stages of the algorithm, the interests of the domestic public order (law and order) dominate. At the fourth stage of the algorithm, public interests in the part not regulated by super imperative norms are correlated with the agreement of the parties on the choice of the applicable law. At the fifth — eighth stages of the algorithm, the law enforcement officer is guided by the rules established by the legislator taking into account the interests of public orders that are conflicting in cross-border legal relations. At the last, ninth stage of the algorithm, the applicable law is established by the judge based on the closest connection between the interests of public order (law and order) with elements of crossborder legal relations.

5 Applicable Law

2017 ◽  
Author(s):  
Kim Joongi
Keyword(s):  
New York ◽  
Default Rule ◽  
Private Law ◽  
International Arbitration ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
International Private Law ◽  
The Law ◽  
New York Convention

This chapter focuses on the choice and enforcement of applicable law in arbitration agreements. In international arbitration cases, Article V(1)(a) of the New York Convention provides that the validity of an arbitration agreement should be first determined under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. Hence, if the parties have not chosen the applicable law for an arbitration agreement, ‘the default rule’ is that the law of the place of arbitration shall apply. This chapter addresses the question as it applies to Korea and considers cases where conflict or a misapplication of the law is in effect. Moreover, it also covers several cases in which courts have applied the Act on International Private Law (AIPL), Korea’s conflict-of-laws statute, to determine the applicable law.

Torts and Other Wrongs

2019 ◽  
Author(s):  
John Gardner
Keyword(s):  
Public Policy ◽  
Distributive Justice ◽  
Strict Liability ◽  
Private Law ◽  
Moral Significance ◽  
Reasonable Person ◽  
Reasonable Person Standard ◽  
The Law

Torts and Other Wrongs is a collection of eleven of the author’s essays on the theory of the law of torts and its place in the law more generally. Two new essays accompany nine previously published pieces, a number of which are already established classics of theoretical writing on private law. Together they range across the distinction between torts and other wrongs, the moral significance of outcomes, the nature and role of corrective and distributive justice, the justification of strict liability, the nature of the reasonable person standard, and the role of public policy in private law adjudication. Though focused on the law of torts, the wide-ranging analysis in each chapter will speak to theorists of private law more generally.

scholarly journals Of Higher Intentions and Lower Expectations

2015 ◽  
Vol 2 (3) ◽  
pp. 187-211
Author(s):  
Michael Bohlander
Keyword(s):  
Public Policy ◽  
Building Blocks ◽  
Survey Questionnaire ◽  
Research Project ◽  
Islamic Jurisprudence ◽  
Legal Thinking ◽  
Main Instrument ◽  
Case Based

The author had planned to work on a monograph related to the potential of using the maqāṣid in Islamic jurisprudence, uncoupled from their religious foundations, as a tool for the conversation with secular law and legal thinking, which by and large has shed its own religious roots and proceeded to an ethics-driven approach based on public policy or interest, and/or systemic logical coherence. The premise of the research project was that lawyers largely think the same thoughts and that they use different building blocks to construct rather similar-looking houses. The main instrument of the research was a survey questionnaire with a series of case-based scenarios sent to a number of Islamic scholars to provide the answers to the scenarios from the Shari’ah perspective. The survey failed in its entirety, so the research turned into an attempt to find the reasons for the failure. This paper will set out reflections on why it went wrong.

I now pronounce you ‘null and void’: manner of determination and the applicable law under the New York Convention

2021 ◽  
Author(s):  
Stefan Pislevik
Keyword(s):  
New York ◽  
International Arbitration ◽  
Applicable Law ◽  
New York Convention

Abstract The phrase ‘null and void, inoperative or incapable of being performed’ contained in Article II(3) of the New York Convention has attracted relatively little attention in the international arbitration community. It nonetheless retains the potential to have a significant impact on arbitration agreements. This article considers the meaning of ‘null and void’ and highlights the current varied understandings and applications of this term, before re-iterating support for an application of an internationally neutral understanding of the term. What this article seeks to ultimately achieve is to provoke further consideration of the terms ‘null and void’, with a view to ensuring greater clarity and uniformity in its understanding and application in the long term.

THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS AND INVESTMENT TREATY ARBITRATION: A LIMITED RELATIONSHIP

2015 ◽  
Vol 64 (4) ◽  
pp. 905-933
Author(s):  
Jarrod Hepburn
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Applicable Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Domestic Law ◽  
Investment Treaty Arbitration

AbstractThe UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers the use of the Principles by investment tribunals on questions of both domestic law and international law. It suggests that reference to the Principles can play an important legitimating role on questions of domestic law, but that this should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

PERKEMBANGAN FINANCIAL TECHNOLOGI (FINTECH) BERDASARKAN PERSPEKTIF EKONOMI ISLAM

2021 ◽  
Vol 4 (2) ◽  
Author(s):  
Hendra Kusuma ◽  
Wiwiek Kusumaning Asmoro
Keyword(s):  
Literature Review ◽  
Economic System ◽  
Daily Life ◽  
Legal Principles ◽  
Applicable Law ◽  
Library Research ◽  
Start Up ◽  
Islamic Economic ◽  
Financial Transactions ◽  
Financial Technology

This research is a library research. The method used in this research is Library Research or literature review, which collects data from literature and other sources that support and are related to the discussion of this study. The results of this study are: (1) There are 5 major roles of Start-up Financial Technology, namely, First financial transactions become more practical and safer. Second, it can advance the development of bitcoin. Third, it can improve people's lives. Fourth, it can build banking infrastructure as a solution to increase people's purchasing power. Fifth, can remove loan sharks. (2) The relevance of Financial Technology in today's development, it is very clear that its relationship in the daily life of the community, which provides convenience for the needs of the community in conducting financial transactions, such as payments, buying and selling of shares, borrowing and other transactions through technology. (3) Financial Technology is not contradictory to the Islamic economic system as long as it follows the legal principles of a contract, and meets the conditions and principles as well as the applicable law.

Financial Instruments and the Capital Markets

2019 ◽  
pp. 47-64
Author(s):  
Alan N. Rechtschaffen
Keyword(s):  
Capital Markets ◽  
Regulatory Compliance ◽  
Financial Instruments ◽  
Federal Regulation ◽  
Secondary Markets ◽  
Financial Transactions ◽  
Digital Assets

This chapter begins with a discussion on the capital markets. It compares primary and secondary markets, and long-term versus short-term marketplaces. This is followed by a case study on the auction rate securities (ARS) market. The second section discusses financial instruments, covering the types of financial instruments (equity-based financial instruments, debt-based financial instruments, derivatives, cryptocurrency and digital assets), and the distinction between debt and equity, and federal regulation. The final section deals with the role of the attorney. It discusses competent representation, the duty to advise the client, drafting financial instruments, regulatory compliance, and the issuance of opinion letters to clients regarding the implications of financial transactions.

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