Choice of Law Rules

2016 ◽  
Author(s):  
Ian F Fletcher
Keyword(s):  
Member State ◽  
Basic Principle ◽  
Member States ◽  
Choice Of Law ◽  
Eu Regulation ◽  
The Law ◽  
Insolvency Proceedings

This chapter outlines the uniform rules of choice of law which are applicable to all proceedings governed by the original EC/EU Regulation on Insolvency Proceedings. It emphasizes Articles 4–15, which contain these rules. The uniform rules indicate, as between various Member States and also in relation to third states whose laws may potentially be applicable in a given situation, which state’s law shall govern. In most cases, the rules contemplate a choice only between the laws of different Member States. Article 4 expresses the basic principle of lex concursus which states that the law of the Member State in which proceedings are opened is to be applied, and shall determine their effects. The Article also states thirteen particular matters which these laws govern. The chapter concludes with a summary of particular changes once the RR comes into effect.

Enhanced Cooperation and European Tax Law

2021 ◽  
Author(s):  
Caroline Heber
Keyword(s):  
Member State ◽  
Internal Market ◽  
State Aid ◽  
Entire Group ◽  
Eu Law ◽  
Negative Effects ◽  
Member States ◽  
State Laws ◽  
Cooperation Mechanism ◽  
The Law

The enhanced cooperation mechanism allows at least nine Member States to introduce secondary EU law which is only binding among these Member States. From an internal market perspective, enhanced cooperation laws are unique as they lie somewhere between unilateral Member State laws and uniform EU law. The law creates harmonisation and coordination between the participating Member States, but it may introduce trade obstacles in relation to non-participating Member States. This book reveals that the enhanced cooperation mechanism allows Member States to protect their harmonised values and coordination endeavours against market efficiency. Values which may not be able to justify single Member State’s trade obstacles may outweigh pure internal market needs if an entire group of Member States finds these value worthy of protection. However, protection of the harmonised values can never go as far as shielding participating Member States from the negative effects of enhanced cooperation laws. The hybrid nature of enhanced cooperation laws—their nexus between the law of a single Member State and secondary EU law—also demands that these laws comply with state aid law. This book shows how the European state aid law provisions should be applied to enhanced cooperation laws. Furthermore, the book also develops a sophisticated approach to the limits non-participating Member States face in ensuring that their actions do not impede the implementation of enhanced cooperation between the participating Member States.

Functionalism

2021 ◽  
pp. 17-32
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
Member State ◽  
International Law ◽  
International Organizations ◽  
Member States ◽  
Institutional Rules ◽  
Contractual Relationship ◽  
The Law

Functionalism is conventionally considered the mainstream paradigm of the law of international organizations: organizations are agents of their member states by the means of a contractual relationship; the law created by international organizations is purely international law; the institutional veil is characterized by a crystallin transparency; the autonomy of the organization is minimal and only granted by a rigid conferral of competences and few implied powers; the conduct of member states acting in the institutional forum is relevant as a matter of international law. This chapter introduces the historical roots of this conceptualization and elaborates why under this perspective the rules of the organizations are purely international law. It describes the flaws of this theory, discussing the breach of institutional rules by the organization and the adoption of countermeasures against a wrongful act committed by a member state.

7. The Direct Jurisdiction of the Court of Justice

2019 ◽  
pp. 208-248
Author(s):  
Nigel Foster
Keyword(s):  
Member State ◽  
European Commission ◽  
Judicial Review ◽  
Competition Law ◽  
Member States ◽  
Eu Regulation ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
The Right ◽  
Interim Measures

This chapter considers the actions commenced before the Court of Justice. These include actions by the European Commission and other member states against a member state (Articles 258–60 TFEU); judicial review of acts of the institutions (Article 263 TFEU); the action against the institutions for a failure to act (Article 265 TFEU); actions for damages (Articles 268 and 340 TFEU); and the right to plead the illegality of an EU regulation (Article 277 TFEU). The chapter also considers interim measures under Articles 278 and 279 TFEU and enforcement actions arising from the Commission enforcement of EU competition law against individuals.

scholarly journals Recurso extraordinario en el estado de origen. Comentario a la sentencia del Tribunal de Justicia de la Unión Europea, de 17 diciembre 2015, Imtech Marine, c-300/14 = Review in exceptional cases in the member state of origin. Judgment of the Court (fourth chamber) of 17 december 2015, Imtech Marine, case c-300/14

2017 ◽  
Vol 9 (2) ◽  
pp. 702
Author(s):  
Juliana Rodríguez Rodrigo
Keyword(s):  
Member State ◽  
Legal Systems ◽  
Member States ◽  
European Court ◽  
Palabras Clave ◽  
Recognition And Enforcement ◽  
The Law

Resumen: El artículo 19 del Reglamento 805/2004, relativo al título ejecutivo europeo, es el precepto objeto de estudio por parte del Tribunal de Justicia en esta sentencia. En este artículo, el legislador europeo regula el recurso extraordinario contra la resolución por la cual se emite el título ejecutivo europeo. En este sentido, el precepto indicado establece la necesidad de que exista esta posibilidad de revisión de la resolución, en los casos en los que el deudor haya permanecido en rebeldía forzosa durante el procedimiento que ha dado lugar a la misma, y como requisito para que pueda ser certificada como título ejecutivo europeo la mencionada resolución. En relación con este artículo 19, el Tribunal de Luxemburgo aclara, entre otras cuestiones, que no es obligatorio para los Estados miembros del Reglamento regular en sus ordenamientos el recurso al que alude el precepto. Sin embargo, en el caso de que no exista esa posibilidad de revisión conforme a la legislación del foro, la resolución no podrá ser certificada como título ejecutivo europeo. Todo lo cual no significa que aquella no pueda circular por la Unión Europea, lo puede hacer, pero siempre que se acoja a otras normas aplicables en la materia, como el Reglamento 1215/2012.Palabras clave: título ejecutivo europeo, recurso extraordinario.Abstract: Article 19 of Regulation 805/2004, creating the European Enforcement Order, is the precept studied by the European Court in this judgment. In this article, the European legislator regulates the extraordinary appeal against the decision by which the European enforcement order is issued. The indicated article establishes the need for this possibility of revision of the resolution, in cases in which the debtor has remained in forced rebellion during the procedure, and as a requirement for that the resolution may be certified as the European Enforcement Order. In relation to this article 19, the Luxembourg Court clarifies, among other things, that it is not compulsory for the Member States to regulate in their legal systems this review. However, in the event that there is no such possibility of revision under the law of the forum, the resolution can not be certified as a European Enforcement Order. In these cases, the creditor may instead choose the system of recognition and enforcement under Regulation (EC) No 1215/2012 or other European instruments.Keywords: European Enforcement Order, review in exceptional cases.

Part VI The Law of Property, 34 Insolvency

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
European Union ◽  
The European Union ◽  
Choice Of Law ◽  
International Jurisdiction ◽  
The Law ◽  
Insolvency Proceedings

This chapter examines insolvency in the context of the European Union Regulation on insolvency proceedings (recast). The recast Regulation, which will apply to insolvency proceedings opened after 26 June 2017, deals with public collective insolvency proceedings. It distinguishes between main insolvency proceedings and secondary insolvency proceedings when it comes to international jurisdiction. This chapter begins with a discussion of the main insolvency proceedings jurisdiction and secondary insolvency proceedings jurisdiction, along with checks on jurisdiction and the extent of jurisdiction. It then considers the general choice of law rule contained in the Regulation, along with the recognition of insolvency proceedings. It also looks at issues arising from the insolvency of groups of companies and their members.

EU comitology reform could politicise regulation

2017 ◽  
Keyword(s):  
Member State ◽  
European Commission ◽  
Interest Group ◽  
European Parliament ◽  
Member States ◽  
Content Type ◽  
Eu Regulation ◽  
Regulatory Decisions ◽  
The Eu ◽  
Final Reform

Subject Proposed reform of the EU comitology procedure. Significance The little-known ‘comitology’ procedure plays a key role in EU regulation. In recent years, this process has been breaking down as member-state expert representatives in comitology committees often abstain from voting, forcing the European Commission to take controversial decisions on its own (and accept any blame for them). In response, the Commission has proposed reforms that would pressure member states to take a position on (and hence political ownership of) controversial regulatory decisions. Impacts Government representatives, interest-group representatives and corporate lobbyists will be most affected by comitology reform. Despite adding transparency and avoiding blame-shifting to Brussels, the reforms would probably not help the EU’s image with citizens. The European Parliament might demand -- as part of any final reform package -- an increase in its involvement in the comitology process.

Redeeming Art. 13 of the European Insolvency Regulation

2014 ◽  
Vol 1 (1) ◽  
pp. 58-74
Author(s):  
Oscar Couwenberg ◽  
Grietje T. de Jong
Keyword(s):  
Member State ◽  
Financial Distress ◽  
Corporate Restructuring ◽  
Forum Shopping ◽  
Choice Of Law ◽  
European Insolvency Regulation ◽  
Insolvency Regulation ◽  
The Law

This contribution focuses on the interaction between three phenomena: corporate restructuring, choice of law, and transaction avoidance. In this context, scholars have criticised Art. 13 of the European Insolvency Regulation for providing a possibility for forum shopping. This article enables firms to declare the law of the eu Member State where the provisions on transaction avoidance allow for the most freedom to take restructuring measures applicable to contracts. Literature on company restructuring shows that a combination of restructuring measures – usually additional credit for additional conditions and/or collateral - helps companies overcome financial distress. We argue that rules on transaction avoidance should take this balance into account when voidance is demanded. Using the example of Dutch and German rules on transaction avoidance, we argue that the German rules are more accommodative than the Dutch rules. Therefore, firms may benefit using the German rules on transaction avoidance rather than the Dutch rules.

Identities of States in International Organizations

2015 ◽  
Vol 12 (2) ◽  
pp. 293-318 ◽  
Author(s):  
Ramses A. Wessel ◽  
Ige F. Dekker
Keyword(s):  
Member State ◽  
International Organizations ◽  
Crucial Role ◽  
General Introduction ◽  
Member States ◽  
International Responsibility ◽  
The Law ◽  
Further Development

In academic debates on the responsibility of international organizations and their member States the different identities of States play a crucial role. However, apart from the difficulty to clearly separate ‘State’ and ‘member State’ identities, it is even more complex to distinguish between the different roles ‘member States’ may have in the framework of international organizations. As a general introduction to this special forum, this essay aims to clarify the different identities and roles States may have in relation to international organizations, especially in the context of the responsibility of international organizations. As the subsequent contributions reveal, the law on the international responsibility of international organizations takes account of the possible responsibility of their members. By mapping the different identities States may have in different settings, this contribution argues that such differentiations may be crucial for the further development of adequate international rules on the responsibility of international organizations and their members.

Constitutionalism

2021 ◽  
pp. 33-48
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
Member State ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Member States ◽  
The Law

Constitutionalism emerged as a reaction to functionalism to rebut the international nature of the relation between organizations and member states: member states are organs of the organization when they act in the fulfilment of its purposes; the law created by international organizations is purely internal law; the institutional veil is characterized by an impermeable opacity; the autonomy of the organization is maximal; the conduct of a member state acting in the institutional forum is not relevant as a matter of international law. This chapter describes the historical roots of this conceptualization and posits why under this perspective the rules of the organizations are internal law of each particular organization. Afterwards, it describes the flaws of this theory discussing the problems arising in terms of the principle of lex specialis and concerning the attribution of conduct to an international organization.

Informalism

2021 ◽  
pp. 49-63
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
Member State ◽  
International Law ◽  
International Organizations ◽  
Civil Service ◽  
Administrative Law ◽  
Legal Systems ◽  
Member States ◽  
Internal Relation ◽  
The Law

Informalism comprises the theories that frame the law produced by international organizations in shades of normativity: member states and international organizations are integrated in heterarchical relationships primarily governed by politics; the law created by international organizations belongs to hybrid legal systems; the institutional veil is characterized by degrees of transparency depending on the internal relation of power; the conduct of a member state acting in the institutional forum is alternatively relevant or not relevant as a matter of international law, depending on the internal relation of power. This chapter describes the historical roots of this conceptualization and elaborates why under this perspective the rules of the organizations are considered as a matter of degrees of legality. Afterwards, it describes the flaws of this theory focusing on the law of the international civil service and on global administrative law.

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