Governing Law of Sovereign Bonds

2018 ◽  
Author(s):  
Hayk Kupelyants
Keyword(s):  
Sovereign Debt ◽  
Choice Of Law ◽  
Sovereign Bonds ◽  
Domestic Debt ◽  
The Law ◽  
Governing Law

Chapter 4 examines the law applicable to sovereign domestic bonds in the absence of a choice of law provision. It is commonly believed that the domestic debt is necessarily governed by the law of the sovereign. The chapter challenges that premise by arguing that the law of the creditor should apply instead on the ground that the creditor is the party providing the characteristic performance. The chapter examines the possibility of escaping the governing law in favour of, among others, the law of the sovereign debtor. Lastly, the chapter examines the applicability of mandatory provisions in sovereign debt litigation.

4 Governing Law of Sovereign Bonds

2018 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
Sovereign Debt ◽  
Choice Of Law ◽  
Sovereign Bonds ◽  
Domestic Debt ◽  
The Law ◽  
Governing Law

Chapter 4 examines the law applicable to sovereign domestic bonds in the absence of a choice of law provision. It is commonly believed that the domestic debt is necessarily governed by the law of the sovereign. The chapter challenges that premise by arguing that the law of the creditor should apply instead on the ground that the creditor is the party providing the characteristic performance. The chapter examines the possibility of escaping the governing law in favour of, among others, the law of the sovereign debtor. Lastly, the chapter examines the applicability of mandatory provisions in sovereign debt litigation.

Part III International Arbitration Agreements: Issues and Perspectives, 8 The Dangers of Neglect: Governing Law of Arbitration Agreements

2016 ◽  
Author(s):  
Kaplan Neil ◽  
Boltenko Olga
Keyword(s):  
International Arbitration ◽  
Choice Of Law ◽  
The Subject ◽  
The Law ◽  
Governing Law

This chapter argues that the issue of the law applicable to arbitration agreements has been neglected to such a tremendous extent that even the major arbitral institutions fail to include the choice of law provisions in their model arbitration clauses. As a result of that oversight, very rarely do the parties include the choice of law provision in their arbitration agreements, and many arbitrations degenerate into unnecessary debates as to which law applies. The time has come for parties to select explicitly the law that will govern their arbitration agreement, and perhaps more importantly, for the institutions to recommend that the parties select the law to govern their arbitration agreements. The various approaches offered by arbitration practitioners on the subject are discussed.

Sovereign Defaults Before Domestic Courts

2018 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
New York ◽  
Sovereign Debt ◽  
Relative Ease ◽  
Sovereign Bond ◽  
Sovereign Bonds ◽  
State Immunity ◽  
Domestic Courts ◽  
Sovereign Defaults ◽  
Governing Law

The monograph examines sovereign debt litigation before the English and New York courts. English and New York courts are the two main jurisdictions customarily chosen to resolve sovereign debt disputes. The book sets out parties’ litigation choices at various stages of proceedings and provides the legal background against which parties to a sovereign bond may wish to negotiate. The defining characteristic of the monograph is that it examines sovereign debt litigation through the prism of private law. The monograph clearly grounds its analysis in the law as it exists, rather than purely policy-oriented reasoning (albeit it keeps a critical eye on the reasoning of the courts). The monograph concentrates on diverse litigation tactics and arbitrage strategies available to bondholders and sovereign debtors that appear before the English courts. In most cases, private creditors may obtain summary judgments with relative ease. That said, often serious issues arise at the stages of assumption of jurisdiction, determination of the governing law of sovereign bonds or substantive resolution of the claims in English proceedings. Similarly, the enforcement of sovereign bonds against the assets of the sovereign often presents serious obstacles, most significantly the doctrine of State immunity. The book offers an exhaustive account of litigation tactics available to bondholders and sovereign debtors alike. The book is unique in the breadth of its coverage. It examines issues of jurisdiction and choice of law at the preliminary stages of litigation, substantive challenges of various sorts to sovereign debt restructurings and to the repayment of bonds on merits, and enforcement of final judgments against the State and its assets in the post-judgment phase.

Sovereign Defaults Before Domestic Courts

2018 ◽  
Author(s):  
Hayk Kupelyants
Keyword(s):  
New York ◽  
Sovereign Debt ◽  
Relative Ease ◽  
Sovereign Bond ◽  
Sovereign Bonds ◽  
State Immunity ◽  
Domestic Courts ◽  
Sovereign Defaults ◽  
Governing Law

The monograph examines sovereign debt litigation before the English and New York courts. English and New York courts are the two main jurisdictions customarily chosen to resolve sovereign debt disputes. The book sets out parties’ litigation choices at various stages of proceedings and provides the legal background against which parties to a sovereign bond may wish to negotiate. The defining characteristic of the monograph is that it examines sovereign debt litigation through the prism of private law. The monograph clearly grounds its analysis in the law as it exists, rather than purely policy-oriented reasoning (albeit it keeps a critical eye on the reasoning of the courts). The monograph concentrates on diverse litigation tactics and arbitrage strategies available to bondholders and sovereign debtors that appear before the English courts. In most cases, private creditors may obtain summary judgments with relative ease. That said, often serious issues arise at the stages of assumption of jurisdiction, determination of the governing law of sovereign bonds or substantive resolution of the claims in English proceedings. Similarly, the enforcement of sovereign bonds against the assets of the sovereign often presents serious obstacles, most significantly the doctrine of State immunity. The book offers an exhaustive account of litigation tactics available to bondholders and sovereign debtors alike. The book is unique in the breadth of its coverage. It examines issues of jurisdiction and choice of law at the preliminary stages of litigation, substantive challenges of various sorts to sovereign debt restructurings and to the repayment of bonds on merits, and enforcement of final judgments against the State and its assets in the post-judgment phase.

A re-examination of the conflict rules governing the validity of international contracts

2020 ◽  
Vol 7 (2) ◽  
pp. 41-59
Author(s):  
Prince Obiri-Korang
Keyword(s):  
International Law ◽  
Common Law ◽  
Careful Examination ◽  
Private International Law ◽  
Choice Of Law ◽  
Judicial Decisions ◽  
Legitimate Interest ◽  
The Law ◽  
Governing Law

Generally, under choice of law, the issue of uncertainty associated with the determination of the governing law of international contracts is quite clear. The level of this uncertainty, however, increases when dealing with questions about which law governs the validity of such contracts. Like other areas of private international law, matters concerning validity present several unique challenges both in theory and in practice, making it the most complicated topic in private international law literature. In fact, the uncertainty in this area has led to a situation where different rules are applied by different states, without taking into consideration the link that should exist between the state whose law becomes applicable and the function that the law is expected to serve – determining the validity of a contract. This article attempts to contribute to existing literature on choice of law questions regarding the validity of international contracts and also provides solutions, based on the underlying principles of private international law of contract that effectively address the uncertainty in this area of law. The article submits that the law that governs the validity of an international contract must, at all times, be one that has a legitimate interest in matters concerning the legality or otherwise of such contracts. In this regard, the article strongly opposes the theory that the parties’ intention determines the law that governs the validity of their contract. After a careful examination of literature and landmark judicial decisions in both civil law and common law jurisdictions, the article concludes that the lex loci solutionis is the appropriate law to determine matters relating to the validity of international contracts.

The International Investment Arbitrator’s Duty to Apply the Law

2018 ◽  
Vol 17 (1) ◽  
pp. 160-177
Author(s):  
Joshua Karton
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Settlement System ◽  
Choice Of Law ◽  
Primary Constraint ◽  
Investment Treaty ◽  
The Law ◽  
Investment Treaties ◽  
Dispute Settlement System ◽  
Governing Law

Abstract This article explores the sources, nature, and implications of an arbitrator’s duty to decide according to the governing law in investor-state arbitrations. It advances a contractarian conception of arbitral authority in investor-state arbitration, whereby the agreement of the states parties to the investment treaty is the source of both the arbitrator’s power to make decisions and the primary constraint on that power: the duty to apply the law. It argues that the choice of law provisions in investment treaties have a constitutional character for arbitral tribunals, such that a failure to apply the chosen law constitutes an excess of the tribunal’s powers which, if manifest, justifies annulment or non-enforcement of the award. The article concludes by considering the implications of this contractarian theory of arbitral powers and duties for arbitrators, disputing parties, and states seeking to reassert control over the investor-state dispute settlement system.

scholarly journals CHOICE OF ISLAMIC LAW AS THE GOVERNING LAW IN ISLAMIC FINANCE CONTRACTS: THE UNITED KINGDOM AND NIGERIAN PERSPECTIVES

2017 ◽  
Vol 25 (1) ◽  
Author(s):  
Kareem Adebayo Olatoye ◽  
Abubakri Yekini
Keyword(s):  
United Kingdom ◽  
Islamic Law ◽  
Islamic Finance ◽  
Unique Problem ◽  
Party Autonomy ◽  
The United Kingdom ◽  
Muslim Majority ◽  
The Law ◽  
Governing Law

The globalisation of Islamic finance has brought the adjudication of Islamic finance disputes before non-Muslim courts and arbitral tribunals in Europe, America and elsewhere. Expectedly, the issue of the validity of the selecting Islamic law as the governing law of an Islamic finance contract often arises before these courts and tribunals. The article seeks to address the attitude of the United Kingdom and Nigerian courts to this unique problem. The thesis of the paper is that while the parties’ reasonable expectations in having their Islamic finance contracts governed by the Shari’ah may be met in Nigeria and by extension in other Muslim-majority countries, the contrary is the case in the United Kingdom and Europe where the courts do not generally favour the application of Islamic law. The paper advocates that the doctrine of the proper law of contract should be extended to Islamic finance by upholding Islamic law as the law selected by the parties (on the basis of party autonomy) or alternatively, as the system of law with which an Islamic finance transaction is most closely connected.

Part 2 National and Regional Reports, Part 2.3 Australasia: Coordinated by Brooke Marshall, 42 New Zealand: New Zealand Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Hook Maria
Keyword(s):  
New Zealand ◽  
International Law ◽  
General Position ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Legislative Reform ◽  
The Hague ◽  
The Law

This chapter examines the choice of law rules that determine the law applicable to international contracts in New Zealand, comparing them to the Hague Principles. Private international law in New Zealand is still largely a common law subject, and the choice of law rules on international commercial contracts are no exception. The general position, which has been inherited from English common law, is that parties may choose the law applicable to their contract, and that the law with the closest and most real connection applies in the absence of choice. There are currently no plans in New Zealand for legislative reform, so the task of interpreting and developing the choice of law rules continues to fall to the courts. When performing this task, New Zealand courts have traditionally turned to English case law for assistance. But they may be willing, in future, to widen their scope of inquiry, given that the English rules have long since been Europeanized. It is conceivable, in this context, that the Hague Principles may be treated as a source of persuasive authority, provided they are consistent with the general principles or policies underlying the New Zealand rules.

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