Foreign Judgments

2018 ◽  
pp. 122-125
Author(s):  
V.C. Govindaraj
Keyword(s):  
Civil Procedure ◽  
Conflict Of Laws ◽  
Procedure Code ◽  
The Law ◽  
Substantive Law

A foreign judgement, even as a local judgement, should be assigned finality and decisiveness, if it is in conformity with the lex fori and, at the same time, does not ignore the applicable substantive law of the transaction. Hindu husbands, who go abroad either for higher studies or seeking lucrative jobs overseas, obtain a divorce for foreign courts in such of those states where domicile can be acquired by a make believe ‘six weeks’ or, as for that, a ‘three months’ stay. The concerned foreign courts grant divorce ignoring the law, that is, Hindu law, that governs their relationship. In order to circumvent such abuses, Section 13 of the Civil Procedure Code has to be suitably amended so as to curb divorce decrees granted by foreign courts in violation of rules of conflict of laws.

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.

Besondere Typen der Widerklage

2019 ◽  
Author(s):  
Annalena Hanke
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
Third Party ◽  
Procedural Law ◽  
Procedure Code ◽  
The Law

This highly significant work in terms of litigation practice critically examines the case law of Germany’s highest courts with regard to third-party counterclaims. In particular, it discusses the recognition of third-party counterclaims as an independent institution of procedural law. This work solves the problems that arise in this respect, above all the question of local jurisdiction, using the existing legally regulated instruments of procedural law. Due to the actual lack of the presupposed loophole in the regulations, it therefore calls into question both the analogous application of § 33 of Germany’s civil procedure code (Zivilprozessordnung) and the judicial development of the law in this area.

scholarly journals Recognition and Enforcement of Arbitration Awards in Kazakhstan

2018 ◽  
pp. 358-367
Keyword(s):  
Public Policy ◽  
New York ◽  
General Meeting ◽  
Civil Procedure ◽  
International Arbitration ◽  
Procedure Code ◽  
Recognition And Enforcement ◽  
The Law ◽  
The Republic ◽  
New York Convention

Arbitration, as an alternative way to resolve commercial disputes, has been used in Kazakhstan for more than twenty years. Arbitration Court is governed by Civil Procedure Code, The Law On Enactments and the Regulatory Resolution. The expansion of the list of documents in the Regulatory Resolution does not comply with the requirements of the New York Convention and therefore, the purpose of our study is to clarify it. The research institute of private law of the Caspian University together with Kazakhstan International Arbitration prepared proposals for making amendments and supplements to the Law On Arbitration and the CPC at the request of the Arbitration Chamber of Kazakhstan. Most of the proposals developed by us were approved and included in the Draft Law of the Republic of Kazakhstan On Amendments and Supplements to Certain Enactments of the Republic of Kazakhstan On Enhancing Protection of Title and Arbitration after discussion at the meetings of the General Meeting members of Arbitration Chamber of Kazakhstan. It was proposed to bringing in compliance with the New York Convention some paragraphs of the Art. 255 and the Art. 504 of CPC and a series of articles in the Law on arbitration. In this article also given answers to some questions of the arbitration court regarding corporate and marriage dispute, as well as an issue of contradiction public policy.

Einstweiliger Rechtsschutz in grenzüberschreitenden Schiedsverfahren

2021 ◽  
Author(s):  
Julia Mink
Keyword(s):  
Civil Procedure ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Cross Border ◽  
Arbitral Proceedings ◽  
Contractual Obligations ◽  
Substantive Law ◽  
Interim Measures ◽  
Rome I ◽  
Einstweiliger Rechtsschutz

The thesis focuses on the difficulties of determining the applicable law in interim proceedings in cross-border arbitral proceedings. First, it examines whether arbitral tribunals have a lex arbitri. Subsequently, the various possibilities of interim measures are described and the question is discussed whether arbitral tribunals have to refer to the Rome I Regulation or Section 1051 of the German Code of Civil Procedure in order to determine the applicable conflict of laws for contractual obligations. Then, it is analysed how the applicable substantive law is to be determined or how to proceed in case of non-determinability of such. Finally, the consequences of the application of a substitute law for the main proceedings are discussed.

scholarly journals O processo cautelar sobrevive no Código de Processo Civil de 2015?

2018 ◽  
Vol 1 (38) ◽  
Author(s):  
Fabio Resende Leal ◽  
Flávio Luis De Oliveira
Keyword(s):  
Ad Hoc ◽  
Civil Procedure ◽  
Historical Evolution ◽  
Porto Alegre ◽  
The Third ◽  
Procedure Code ◽  
Preliminary Injunction ◽  
The Law ◽  
Procedure Codes

O processo cautelar sobrevive no Código de Processo Civil de 2015? Does the precautionary process survive in the Civil Procedure Code of 2015? Fabio Resende Leal *Flávio Luis de Oliveira ** REFERÊNCIA LEAL, Fabio Resende; OLIVEIRA, Flávio Luis de. O processo cautelar sobrevive no Código de Processo Civil de 2015? Revista da Faculdade de Direito da UFRGS, Porto Alegre, n. 38, p. 234-256, ago. 2018. RESUMOABSTRACTEste artigo procura desmentir a afirmação, feita em doutrina, de que o processo cautelar desapareceu no Código de Processo Civil de 2015, propondo uma nova forma de definir tal espécie processual. O primeiro de seus cinco itens versa sobre os conceitos de ação e processo; o segundo, sobre os Códigos de Processo Civil de 1939, 1973 e 2015; o terceiro, sobre o sincretismo processual e a tutela cautelar na lei hoje em vigor. Adentrando ao cerne da discussão, o quarto item procura, a partir de situações processuais hipotéticas, demonstrar a possível sobrevivência do processo cautelar, enquanto que o quinto e último, para sustentar tal sobrevida, formula, a título de sugestão, um novo conceito de processo cautelar, a partir da preponderância dos atos preventivos que nele serão praticados, com inspiração em Pontes de Miranda. O método adotado foi pesquisar, além da legislação e sua evolução histórica, os principais autores processuais pátrios em cada um dos três grandes momentos legislativos vividos no Brasil. This article seeks to deny the doctrinal assertion that the precautionary process disappeared in the Civil Procedure Code of 2015, proposing a new way of defining that procedural species. The first of its five chapters deals with the concepts of action and process; the second, the Civil Procedure Codes of 1939, 1973 and 2015; the third, procedural syncretism and preliminary injunction in the law today in force. At the heart of the discussion, the fourth chapter seeks, based on hypothetical procedural situations, to demonstrate the possible survival of the precautionary process, while the fifth and last, in order to sustain such survival, formulates, as a suggestion, a new concept of process precautionary, starting from the preponderance of the preventive acts that will be practiced in it, with inspiration in Pontes de Miranda. The method adopted was to investigate, in addition to the legislation and its historical evolution, the main procedural authors of the country in each of the three great legislative moments experienced in Brazil. PALAVRAS-CHAVEKEYWORDSProcesso cautelar. Sobrevivência. Código de Processo Civil de 2015.Precautionary process. Survival. Code of Civil Procedure of 2015.* Doutorando em Direito pela Instituição Toledo de Ensino de Bauru. Graduação, Especialização e Mestrado em Direito pela Instituição Toledo de Ensino de Bauru. Advogado. Professor Adjunto da Universidade Paulista - Campus de Bauru. Professor da Pós-Graduação em Direito Universidade Paulista Interativa, Professor convidado do Centro de Pós-Graduação da Instituição Toledo de Ensino de Bauru e da Escola Superior da Advocacia da OAB/SP. Coordenador da Comissão OAB vai à Faculdade da OAB/Bauru. Membro do Tribunal de Ética e Disciplina da OAB/SP. Autor do livro A celeridade processual como pressuposto da efetividade dos direitos fundamentais (Curitiba: Juruá, 2011).** Flávio Luis de Oliveira Mestre (1999) e Doutor (2001) em Direito pela Universidade Federal do Paraná. Coordenou o Curso de Graduação em Direito do Centro Universitário de Bauru/SP, mantido pela Instituição Toledo de Ensino - ITE. Coordenou o Programa de Pós-graduação Stricto Sensu em Direito do Centro Universitário de Bauru/SP, mantido pela Instituição Toledo de Ensino - ITE. Tem experiência em gestão acadêmica e docência superior na área do Direito Processual Civil. Membro do Instituto Ibero-americano de Direito Processual. Membro do Instituto Brasileiro de Direito Processual. Membro do Centro de Estudos Avançados de Processo. Consultor Ad Hoc da Capes - Coordenação de Aperfeiçoamento de Pessoal de Nível Superior. Advogado. 

scholarly journals The Re-Codification of the Slovak Civil Procedure Code with a Special Emphasis on Remedial Measures

2013 ◽  
Vol 13 (1) ◽  
pp. 121-135
Author(s):  
Marek Števček ◽  
Dominika Malá
Keyword(s):  
Civil Procedure ◽  
Remedial Measures ◽  
Procedure Code ◽  
The Law

Abstract This analytical paper focuses on the ongoing works on the recodification of the law of civil procedure in Slovakia. Th e paper introduces and presents the most relevant changes to the Slovak Civil Procedure Code and offers the closer examination of the reform of remedial measures included in the re-codification proposal.

scholarly journals On The Issue about The Moment of Incurrence of Right of Cassation Appeal on Civil Cases in Republic of Bulgaria

2017 ◽  
Vol 23 (2) ◽  
pp. 175-180
Author(s):  
Atanas Ivanov
Keyword(s):  
Supreme Court ◽  
Civil Procedure ◽  
Procedure Code ◽  
The Supreme Court ◽  
The Law ◽  
Civil Cases ◽  
The Moment ◽  
The Right

Abstract The right of the party concerned to a cassation appeal is result of specific inspection performed by the Supreme Court of Cassation where examined is the presence of conditions, foreseen in art. 280, par. 1 of Civil-Procedure Code. The right of cassation, however, shall incur from the presence of appellate judgment [1], and not from the specific inspection of Supreme Court of Cassation. The cassation appeal is submitted when the resolution is void, impermissible or inaccurate. This is why the right of cassation appeal is presented and guaranteed by the law opportunity of an individual to oblige Supreme Court of Cassation to rule on the first stage of cassation proceeding - the proceeding on allowing the cassation appeal estimating the statutory criteria in art. 280 of Civil-Procedure Code.

Procedure

2019 ◽  
pp. 225-238
Author(s):  
V.C. Govindaraj
Keyword(s):  
The Other ◽  
Remedial Measures ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Other Hand ◽  
Foreign Law ◽  
The Law ◽  
Substantive Law

This chapter begins with a brief discussion of the jurisprudential distinction between substance and procedure. Substance relates to rights and obligations of the parties to a dispute, whereas procedure is the means employed to determine such rights and obligations. Matters of substantive law are governed by the lex causae (that is, the law that governs the cause of action), the law found applicable under the concerned country’s rules for the choice of law. Matters of procedure, on the other hand, are governed by the lex fori (that is, the law of the forum), the law of country where the action is brought. The chapter covers procedural matters of interlocutory character; remedial measures for enforcing a right; conflict of laws and the law of limitations; matters of enforcement; underlying norms and principles of stay of proceedings; and proof of foreign law.

scholarly journals The concept of “justice” in the legislation of Russia and France, implementation features

2019 ◽  
Vol 135 ◽  
pp. 04006
Author(s):  
Vera Borshcheniuk ◽  
Nina Semeryanova ◽  
Uliana Filatova ◽  
Valeriy Zhabskiy
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Civil Procedure ◽  
Effective Implementation ◽  
Judicial Practice ◽  
Procedure Code ◽  
Administration Of Justice ◽  
Balance Of Interests ◽  
Principle Of Justice ◽  
The Law

The relevance of the study is determined by the prevailing variety of approaches to understanding the essence of the concept of “justice”, which is characteristic of both Russia and France. Such variability leads to a persistent distortion of this concept in practice of law enforcement, which, in turn, affects the effectiveness of administration of justice. The aim of the authors is to study scientific theoretical views and practical issues associated with the implementation of the principle of justice in two states. In the work we used following methods: dialectics, analysis, synthesis, deduction, as well as the formal legal and comparative legal method.Based on the analysis of the doctrine, legislation and judicial practice of two states, Russia and France, the following conclusions are drawn. At present, “justice” is understood as a universal notion, which is not limited only by coverage of regulatory norms of the law, but is actively applied by judicial practice. The use of this concept allows the court to make fair decisions depending on specific circumstances of the case, thereby achieving a balance of interests of participants in the process by interpreting and clarifying the law, and in some cases by creating a new rule of law that allows the courts to ensure the effective implementation of the principle of justice. However, in order to avoid variability in understanding this notion, it is proposed to fix the concept of “justice” in the civil procedure code, this will reduce the percentage of judicial conflicts and will contribute to formation of a uniform judicial practice.

scholarly journals LIMITATION OF THE RIGHT TO REQUIRE ENFORCEMENT UNDER THE RULE OF THE NEW CIVIL PROCEDURE CODE OF AN ENFORCEMENT ORDER OBTAINED BEFORE ITS ENTRY INTO FORCE

2017 ◽  
Vol 11 (2) ◽  
pp. 13-27
Author(s):  
Carmen Adriana DOMOCOȘ
Keyword(s):  
Coercive Force ◽  
Civil Procedure ◽  
The State ◽  
The Other ◽  
Legal Provisions ◽  
Procedure Code ◽  
Other Hand ◽  
The Law ◽  
The Right ◽  
Court Of Appeal

In a case, the court of appeal have interpreted the provisions of the law regarding the enforceable judgments delivered at first instance, with the right of appeal, or those in respect of which the parties agreed to directly exercise the appeal, when those interested or harmed by the enforcement can require the cancellation of the enforcement documents drawn up by violation of the legal provisions. The jurisprudence is not unanimous to consider the enforceability of the final civil decision is, however, a temporary one, until it is confirmed by the court of appeal, and it is removed when the court of appeal gives a contrary approach. One of the roles of the limitation is to provide the security of legal relationships, because after the expiry of the limitation period the debtor is satisfied that it can no longer be enforced, and the creditor knows that he no longer benefits from the coercive force of the state in order to recover his debt. On the other hand, to oblige the creditor to enforce a temporarily enforceable decision, about which he has no certainty that it will be upheld on appeal, means violating the very principle of the security of legal relationships, which the legislator intended to protect.

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