“Avoid Making Legal Assumptions”: The Perils of Relying on a “Governing Law” Clause and/or “Private International Law”

2017 ◽  
pp. 293-320
Keyword(s):  
International Law ◽  
Private International Law ◽  
Governing Law

30 South Korea

2018 ◽  
Author(s):  
Hong Suhn-Kyoung ◽  
Cheong Seong-Koo
Keyword(s):  
South Korea ◽  
International Law ◽  
Legal Framework ◽  
Civil Code ◽  
Private International Law ◽  
Cross Border ◽  
The Law ◽  
The Right ◽  
Insolvency Proceedings ◽  
Governing Law

This chapter discusses the law of set-off in South Korea, along with certain restrictions on the exercise of the right of set-off in insolvency proceedings. The legal framework for set-off in South Korea is based on the Civil Code. The courts have also generally supported set-off as a means of satisfying a claim or discharging debt. The Korean Private International Law does not expressly lay down the governing law for set-off. This governing law issue is commonly discussed under two scenarios: set-off is undertaken on the basis of a set-off agreement between the parties; and set-off is undertaken in the absence of an agreement. The chapter first considers the governing law of contractual and non-contractual set-off in South Korea before turning to set-off between solvent parties and set-off against insolvent parties. It also analyses issues arising in cross-border set-off.

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.

scholarly journals El conflicto de Ryanair: una lectura desde el Derecho internacional privado = The Ryanair conflict: a private international law perspective

2019 ◽  
Vol 11 (1) ◽  
pp. 372
Author(s):  
Pilar Juárez Pérez
Keyword(s):  
International Law ◽  
Labor Relations ◽  
Case Law ◽  
Temporary Employment ◽  
Private International Law ◽  
Home Base ◽  
International Jurisdiction ◽  
Cabin Crew ◽  
Governing Law ◽  
Employment Agencies

Resumen: Los conflictos que a lo largo de 2018 enfrentaron a la compañía aérea Ryanair y sus trabajadores –tripulantes de cabina y pilotos– han evidenciado la complejidad de la determinación de un lugar efectivo de trabajo en este tipo de relaciones laborales, suscitando también dudas en cuanto a su ley rectora. La jurisprudencia comunitaria no da una respuesta indubitada a estas cuestiones, y la jurisprudencia española no es unánime en cuanto a su propia competencia judicial para resolver estos litigios. Asimismo, la práctica de contratación de la aerolínea a través de empresas de trabajo temporal ha levantado dudas sobre la legalidad de esta modalidad contractual, susceptible de encubrir prácticas de cesión ilegal de trabajadores.Palabras clave: competencia judicial internacional, tripulación de cabina y pilotos, base de afec­tación, ley aplicable al contrato de trabajo, cesión ilegal de trabajadores.Abstract: The conflicts that faced the airline Ryanair and its workers -cabin crew and pilots- throughout 2018 have demonstrated the complexity of determining an effective place of work in this type of labor relations, raising doubts as well its governing law. Community case law does not provide an undoubted answer to these questions, and Spanish case law is not unanimous with regard to its own jurisdiction to resolve these disputes. Likewise, the practice of contracting the airline through temporary employment agencies has raised doubts about the legality of this contractual modality, which could con­ceal practices of illegal assignment of workers.Keywords: international jurisdiction, cabin crew and pilots, home base, illegal assignment of workers.

Foreign powers of attorney relating to real estate – the issue of the probative value of a document and the effectiveness of a legal act from the perspective of the land and mortgage registry court

2021 ◽  
Vol II (II) ◽  
pp. 27-49
Author(s):  
Paweł Czubik
Keyword(s):  
International Law ◽  
Hague Convention ◽  
Private International Law ◽  
Power Of Attorney ◽  
Bilateral Agreements ◽  
Probative Value ◽  
Cross Border ◽  
Bilateral Agreement ◽  
Governing Law

The role of foreign powers of attorney in contemporary legal and economic transactions is constantly growing. This is due to the widespread labour migration and, paradoxically, in the last year, also with difficulties in cross-border movement during the COVID-19 pandemic. In judiciary and notarial practice, the assessment of foreign documents, including powers of attorney, is a threestage process. Firstly, the court should pay attention to the probative value of a foreign document. In principle, it is equal to the probative value of a national document (Article 1138 of the Code of Civil Procedure). Only certain categories of documents require consular legalization. It is used when there is no bilateral agreement eliminating or reducing this requirement with the country where the document has been issued. In the case of many countries, legalization was replaced by the apostille clause provided for in the 1965 Hague Convention. Secondly, the court should analyse the formal effectiveness of the legal act, taking into account the principles derived from Article 25 of the 2011 Private International Law Act and, in some cases, bilateral agreements. Last but not least, thirdly, the court should examine the material effectiveness of the act. The governing law of the power of attorney may, pursuant to Article 23 of the Private International Law Act, be subject to the choice of law rule. This text is a guide for courts on how to deal with foreign powers of attorney in land and mortgage registry proceedings.

Part F Cross-Border Issues, 41 The Banker–Customer Contract in Private International Law

2015 ◽  
Author(s):  
Proctor Charles
Keyword(s):  
International Law ◽  
Portfolio Management ◽  
Customer Relationship ◽  
Private International Law ◽  
Applicable Law ◽  
Cross Border ◽  
Legal Nature ◽  
Governing Law ◽  
The Relationship ◽  
Gain Access

This chapter revisits the banker–customer relationship. The contractual nature of the relationship considered in Chapter 15 assumed that the bank was established in England and that its customer was also resident in the same country. However, that analysis is by no means of universal. Multinational companies, for instance, may need to have bank accounts in a number of different countries; wealthy individuals may opt to maintain accounts with banks in more advanced jurisdictions to gain access to portfolio management or other services. Banks may promote their services to overseas customers and wish to take security over assets situate outside England. How do these affect the legal nature of the banker–customer relationship? The chapter discusses the governing law of the banker–customer relationship; the effect and consequences of the applicable law; the law governing capacity and authority; and the situs of deposit obligations.

INHERITANCE BY CONTRACT IN PRIVATE INTERNATION LAW

2017 ◽  
Author(s):  
Daria Lytvynenko ◽  
◽  
Inessa Shumilo ◽  
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
International Law ◽  
State Regulation ◽  
Scientific Article ◽  
Private International Law ◽  
Legal Systems ◽  
Legal Basis ◽  
The World ◽  
Governing Law

The scientific article raises the issue of contractual inheritance regulation in private international law. Inheritance is defined as a guarantee of human property rights on the legal basis of many countries in the world, as an important institution of law which requires additional research due to foreign element complications. The article contains examples of how countries define and regulate this issue differently at the legislative level. The views of scientists have been considered and the concept of "inheritance statute" has been formed, which is characterized by its multifaceted composition. To determine it in international practice two approaches are used, which depend on the nature of the property, whether it is movable or immovable. Spain and Quebec have been analyzed as representatives of the application of different approaches. It has been emphasized that the inheritance of real estate is more understandable in contrast to the inheritance of movable property, which is complicated by different mechanisms of state regulation. Hereditary and obligatory statutes have been considered and explained. The article draws attention to the problem of splitting the inheritance statute in private international law, which is common in nature, because it is due to the existence of several possible legal systems to regulate such legal relations. It has been pointed out that this issue is a kind of gap in the establishment of relations with a foreign element and, accordingly, necessarily requires detailed study and research, and as a consequence, the separation of contractual inheritance statute at the regulatory level. This need is primarily due to the fact that there are difficulties in establishing the governing law caused by several statutes and connecting factors, because the imperfection of the connecting mechanisms prevents the establishment of contractual inheritance at the appropriate level.

scholarly journals Performing notarial duties in the process of conclusion of contracts whose subject matter is the acquisition of rights in REM in immovable property located abroad: A few remarks from the view of private International law

2020 ◽  
Vol 2 (2) ◽  
pp. 181-196
Author(s):  
Slavko Đorđević
Keyword(s):  
International Law ◽  
Subject Matter ◽  
Point Of View ◽  
The Other ◽  
Private International Law ◽  
Foreign State ◽  
Foreign Law ◽  
Notary Public ◽  
Governing Law ◽  
Domestic Law

This paper deals with certain issues of private international law that Serbian notaries public must resolve when performing notarial duties in the process of the conclusion of a contract whose subject matter is the acquisition of rights in REM in immovable property located abroad. The author first deals with the question of whether Serbian notaries public have international jurisdiction to perform notarial duties with regard to these contracts. After that and bearing in mind that the governing law for these contracts is, pursuant to Art. 21 of Serbian Private International Law Act (SPILA), the law of the foreign state in which the immovable property is located, the author tries to clarify whether the notary public applies the rules of this applicable foreign law on the form of the contract or must comply with lex fori (domestic) rules on the form (which are, from the point of view of Serbian notaries public, of procedural nature). Finally, the author explains how, from the point of view of private international law, the notary public should proceed when concluding the contracts on exchange of two immovables, one of which is located in Serbia and the other in a foreign country, given that in such case the conflict-of-law rule of Art. 21 SPILA refers to two applicable laws - Serbian (domestic) law and foreign law.

scholarly journals Nature of Mediation Clauses from the Point of View of Private International Law

2019 ◽  
Vol 19 (2) ◽  
pp. 224-238
Author(s):  
Miluše Hrnčiříková
Keyword(s):  
International Law ◽  
Point Of View ◽  
Private International Law ◽  
Popular Method ◽  
Cross Border ◽  
The Law ◽  
Substantive Law ◽  
Governing Law ◽  
Rome I ◽  
Legal Consequences

Summary Mediation as a popular method of ADR is more and more often used while solving cross border disputes. Although the mediation clauses are included into the commercial contracts almost automatically, no attention is paid to its validity, enforceability and other legal consequences. The article provides a study on the nature of mediation clauses that crucially influences the law governing validity of mediation clauses. It is the position of the author that mediation clauses are primary institutes of the substantive law and thus the governing law should be determined in accordance with the Rome I regulation.

In Search of the Holy Grail of the Conflict of Laws of Cultural Property: Recent Trends in European Private International Law Codifications

2020 ◽  
Vol 27 (3) ◽  
pp. 323-347
Author(s):  
Tamás Szabados
Keyword(s):  
International Law ◽  
National Level ◽  
Cultural Property ◽  
Private International Law ◽  
The European Union ◽  
Cultural Goods ◽  
Holy Grail ◽  
Conflict Of Laws ◽  
Recent Trends ◽  
Governing Law

AbstractMost private international laws do not address cultural property specifically but, instead, apply the general lex rei sitae rule also to artifacts. Legal scholarship has revealed the flaws of the rigid application of the lex rei sitae principle to cultural goods and has proposed alternative connecting factors, such as the lex originis principle, to prevent forum and law shopping in this field. Reacting to the criticisms, some of the more recent private international law codifications have decided on the adoption of specific rules on stolen and illegally exported cultural goods that combine the lex rei sitae and the lex originis rules and provide room for the parties’ autonomy. This article draws the conclusion that these more recent legislative solutions do not necessarily promote legal certainty and predictability with regard to the governing law and are far from being a Holy Grail for the conflict of laws of cultural property, whether on a national level or within the European Union.

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