scholarly journals Remedies to Fraud in Documentary Letters of Credit: A Comparative Perspective / Opravné Opatrenia Pri Podvodoch S Dokumentárnymi Akreditívami: Komparatívna Perspektíva

2016 ◽  
Vol 5 (1) ◽  
pp. 1-13
Author(s):  
Hamed Alavi
Keyword(s):  
International Trade ◽  
Legal System ◽  
Current Paper ◽  
Comparative Perspective ◽  
Legal Systems ◽  
Letters Of Credit ◽  
Legal Frameworks ◽  
American Legal System ◽  
Article 5

Abstract Article 4 of the Unified Customs and Practices of Documentary Letters of Credit establishes the notion of autonomy principle by separating credit from underlying contract between account party and beneficiary. Article 5 by recognizing the autonomy principle confirms that effectuate the payment under credit, banks only deal with documents and not with goods. As a result, while documentary letters of credit are meant to facilitate the process of international trade, their sole dependency on compliance of presented documents to bank by beneficiary to actualize the payment will increase the risk of fraud and forgery in the course of their operation. Interestingly, UCP (currently UCP600) takes a silent status regarding the problem of fraud in international LC operation and leaves the ground open for national laws to provide remedies to affected parties by fraudulent beneficiary. National Laws have different approaches to the problem of fraud in general and fraud in international LC operation in particular which makes the access of affected parties to possible remedies complicated and difficult. Current paper tries to find answer to the questions of (i) what available remedies are provided to affected parties in international LC fraud by different legal systems? (ii) And what are conditions for benefiting from such remedies under different legal systems? In achieving its objective, paper will be divided in two main parts to study remedies provided by intentional legal frameworks as well as the ones offered by national laws. Part one will study the position of UCP and UNCITRAL Convention on Independent Guarantees and Standby Letters of Credit (UNCITRAL Convention) and remedies, which they provide to LC fraud in international trade. Part two in contrary will study available remedies to LC fraud and condition for access them under English and American legal system.

‘A kind of wild justice’: revenge and constitutional commentary in the Western

2018 ◽  
pp. 28-47
Author(s):  
Justin A. Joyce
Keyword(s):  
Legal System ◽  
Cultural Work ◽  
Legal Systems ◽  
Cultural Products ◽  
System A ◽  
American Legal System ◽  
Interdisciplinary Scholarship

This chapter engages with interdisciplinary scholarship on legal systems and revenge in order to argue that the Western, like other genres which seek to provide justifications for violence, has informed and been influenced by paradigmatic shifts in the American legal system. A fuller investigation into the style of the gunslinger's vengeance, this chapter argues, suggests a rather different relationship between cultural products and legal apparatuses than that suggested by critics who portray the Western revenger as a reactionary figure. The Western gunslinger is presented here instead as a progressive figure by reading the cultural work of the Western genre as a rhetorical thinking through of a set of interconnected conflicts and inconsistencies in American legal paradigms related to justifiable homicide and gun possession.

scholarly journals Risk Analysis in Documentary Letter of Credit Operation

2017 ◽  
Vol 0 (0) ◽  
Author(s):  
Hamed Alavi
Keyword(s):  
Risk Management ◽  
International Trade ◽  
Risk Analysis ◽  
Current Paper ◽  
Management Theory ◽  
Letter Of Credit ◽  
Legal Principles ◽  
Strict Compliance ◽  
Letters Of Credit

Abstract Documentary Letters of Credit are among most popular methods of payment used in international trade. They function as an irrevocable promise of issuing a bank to pay instead of an applicant buyer to a beneficiary seller under the condition that the beneficiary presents complying documents with terms and conditions of the credit to the bank. One of the reasons for the popularity of the LCs in international trade is shifting the payment risk from an individual buyer to a bank with a much stronger financial standing. However, LC operation in international trade is not free of risk. Despite the fact that two main principles of the Documentary Letter of Credit’s Operation (Principle of independence and principle of strict compliance) facilitate the process of international trade significantly, but still all parties involved in LC operation are supposed to be cautious about the existing risks relevant to their role in LC operation. Current paper tries to use legal principles of documentary credits and risk management theory in order to define existing risks to each party (beneficiary, applicant and bank) in international LC transaction and find an answer to the question of what are exposing risks for involved parties? For this purpose, the paper starts with an explanation of the two main principles of LC operation and moves forward with using the risk management theory to explain existing risks for each party in detail.

scholarly journals Fraud in documentary letters of credit: A comparative study of excising international legal frameworks

2017 ◽  
Vol 1 (1) ◽  
pp. 48-69
Author(s):  
Hamed Alavi
Keyword(s):  
Research Question ◽  
Legal Systems ◽  
Trade Finance ◽  
Main Research ◽  
Legal Nature ◽  
Long Time ◽  
American Law ◽  
Letters Of Credit ◽  
Legal Frameworks ◽  
Comparative Manner

Documentary letters of credit are among most popular trade finance instruments used in international business. Despite the fact that main purpose derived from application of documentary letters of credit is to reduce the risk of trade, their mere documentary nature makes them vulnerable to the problem fraud. There is a huge interest among legal scholars and academicians to analyse the nature of fraud in documentary letters of credit due to its important financial effect on smooth process of international trade and also diversified approach of different legal systems to this particular problem. However, majority of conducted studies are limited to most popular legal systems including British and American law. Need for studying the LC fraud in a comprehensive comparative manner among existing international legal frameworks is well noticed for long time. Due to their international nature, LC operation is subjected to substantial number of legal frameworks which most of them are either taking a silent position towards problem of fraud or do not show uniform approach to the it. In this paper, author tries to study di$erent sources of law in documentary letters of credit and their approach to the problem of fraud in a comparative manner. The main research question is what would be the position of fraud rule in applicable legal frameworks to the international LC operation and how do they approach the problem of fraud committed by beneficiary in documentary letters of credit? For this purpose, paper is divided into four main parts: After the introduction, second part will discuss the sources of law applicable to international LC transaction. Third section will analyse the legal nature of fraud in LC transaction. Fourth section will scrutinize the legal approach of different legal frameworks to fraud in documentary letters of credit and finally, the last section will sum up the discussion with concluding remarks.

scholarly journals Ang lo - American Common Law and the Implementation in Vietnam

2021 ◽  
Vol 37 (1) ◽  
Author(s):  
Nguyen Dang Dung ◽  
Nguyen Dang Duy
Keyword(s):  
Legal System ◽  
Common Law ◽  
Legal Systems ◽  
Anglo American ◽  
American Legal System

Due to characteristics of the socialist legal system, in the process of development and integration, Vietnam needs to absorb the advantages of other legal systems. The paper analyzes the features and advantages of sources of the Anglo-American legal system and lessons for Vietnam.

scholarly journals Apontamentos sobre o ordenamento jurídico na perspectiva do direito comparado

2021 ◽  
Vol 2 (1) ◽  
pp. 02-17
Author(s):  
Flávio Marcelo Rodrigues Bruno
Keyword(s):  
Legal System ◽  
Systematic Study ◽  
Comparative Method ◽  
Legal Order ◽  
Comparative Perspective ◽  
Legal Systems ◽  
Legal Rules ◽  
Comparative Methodology ◽  
Similarities And Differences ◽  
The Comparative Study

Os primeiros registros de comparação entre direitos distintos remetem a antiguidade, contudo, veio a firmar-se como um estudo sistemático somente em meados do Século XIX. Hodiernamente, é inquestionável a importância do método comparatista, para o aprimoramento dos Sistemas Jurídicos que regem as nações. Sendo este, uma fonte extremamente importante para o cotejo de semelhanças e diferenças entre normas, instituições, mecanismos etc., que poderão futuramente ser recepcionados por um determinado país. Pode-se afirmar, nesse contexto, que é importante a comparação entre realidades similares para evitar inoperabilidade ou mau funcionamento do conceito importado. Por exemplo, tem-se o caso do instituto da delação premiada que ao ser importada e recepcionada no ordenamento jurídico do país que o recepcionou desvirtuou-se de sua proposta inicial. Entende-se, portanto, que o estudo comparativo do direito é fundamental para a análise e compreensão das distintas famílias jurídicas, sendo um método indispensável para resolver situações de conflitos entre normas de países diferentes, assim como, para o aprimoramento das normas e mecanismos vigentes no país. Sob esta perspectiva, de auferir essencialidade à metodologia comparativa entre distintas concepções normativa, é que o presente trabalho tem por objetivo refletir sobre o ordenamento jurídico na perspectiva positivista kelseniana, verificar o sentido e a compreensão sobre a metodologia comparativa e dimensionar a importância da interface entre ordenamentos jurídicos na perspectiva comparada. Concluindo que não existem ordenamentos jurídicos porque há normas jurídicas, mas existem normas jurídicas porque há ordenamentos jurídicos distintos dos ordenamentos não jurídicos – perspectiva essencialmente comparativa.   The first records of comparison between distinct rights refer to antiquity, however, it came to be established as a systematic study only in the mid-nineteenth century. The importance of the comparative method is undoubtedly important for the improvement of the legal systems that govern nations. This is an extremely important source for the comparison of similarities and differences between norms, institutions, mechanisms, etc., which may be approved by a given country in the future. In this context, it can be stated that it is important to compare similar realities to avoid inoperability or malfunction of the imported concept. For example, there is the case of the institute of the awarding donation that when being imported and received in the legal system of the country that received it distorted its initial proposal. It is understood, therefore, that the comparative study of the law is fundamental for the analysis and understanding of the different legal families, being an indispensable method to resolve situations of conflicts between norms of different countries, as well as, for the improvement of the norms and mechanisms in force in the country. In this perspective, to gain essentiality to the comparative methodology between different normative conceptions, is that the objective of the present work is to reflect on the legal order in the positivist kelsenian perspective, to verify the meaning and the understanding about the comparative methodology and to dimension the importance of the interface between comparative perspective. Concluding that there are no legal systems because there are legal rules, but there are legal rules because there are different legal orders of non-legal systems - an essentially comparative perspective.

scholarly journals Documentary Letters of Credit, Legal Nature and Sources of Law

2016 ◽  
Vol 17 (31) ◽  
pp. 106-121 ◽  
Author(s):  
Hamed Alavi
Keyword(s):  
International Trade ◽  
Global Market ◽  
International Operation ◽  
Transportation Risk ◽  
Legal Questions ◽  
Legal Nature ◽  
Letters Of Credit ◽  
Economic Developments ◽  
Legal Frameworks ◽  
National Economies

AbstractThere is no doubt about risky nature of international trade. Such risk can be conceptualized as country risk, transportation risk, customer risk and etc. Documentary Letters of Credit (LC) are used as a method of payment in international business for many centuries in order to reduce risk of trade specially when parties are located in different countries and do not have precise information from financial standing of each other. In such occasion LC will reduce the risk of trade by shifting payment obligation from buyer as an individual to a payment guarantee of a bank as a legal entity in return for presentation of complying documents with terms of credit by seller. Familiarity with legal nature and different legal frameworks which govern the international operation of documentary letters of credit can facilitate the process of international trade for businessmen and boost national economies. However, lack of knowledge about them can impose huge losses on international traders. Situation will be more complicated when we understand that there are many internationally recognized legal frameworks which can affect the operation of LC and they get frequently updated in order to address technological and economic developments in global market. In this paper, author tries to answer questions regarding (i) what are international legal frameworks governing operation of documentary letters of credit? (ii) which areas of LC operation has been covered by them and (iii) how do they address the legal questions regarding international operation of documentary letters of credit?

A Philosophical Perspective on the Regulation of Business

1998 ◽  
pp. 70-75
Author(s):  
Barbara Wendling
Keyword(s):  
Legal System ◽  
Modern Society ◽  
Legal Systems ◽  
Philosophical Perspective ◽  
Philosophical Foundations ◽  
Application Of Law ◽  
Legal Traditions ◽  
Anglo American ◽  
American Legal System ◽  
And Behavior

The paper compares the Anglo-American and continental legal systems in parallel with a comparison of the philosophical foundations for each. The defining philosophical distinction between the two legal traditions (viz., the Anglo-American system is predicated on idealism and the continental system on materialism) is shown to influence the way in which criminal justice is handled by the two systems as applied to citizens, and how this influence is carried across to the regulation of business as applied to corporations. The idealistic (possibly theological) worldview inherent in the Anglo-American legal system explains its moral presumptions regarding human freedom, dignity, and responsibility, while the materialist worldview inherent in the continental legal systems explains its amoral assumptions about human motivations and behavior. I suggest that while the Anglo-American legal system may be justified in its moral philosophical presumptions as applied to citizens, the continental legal system, with its amoral assumptions, more accurately reflects corporations than citizens. Understanding how the philosophy behind the two legal systems influences the application of law in modern society can lead to improvements in public policy.

Forensic Evidence in Proving Crimes: Exploring the Legal Frameworks of Sharīʿah Bukti Forensik Bagi Membuktikan Jenayah: Menerokai Rangka Kerja Guaman Sharīʿah

2016 ◽  
Vol 13 (1) ◽  
pp. 220-247
Author(s):  
Sayyid Mohammad Yunus Gilani ◽  
K. M. Zakir Hossain Shalim
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Common Law ◽  
Legal Framework ◽  
New Method ◽  
Criminal Investigation ◽  
Forensic Evidence ◽  
Administration Of Justice ◽  
Legal Frameworks

AbstractForensic evidence is an evolving science in the field of criminal investigation and prosecutions. It has been widely used in the administration of justice in the courts and the Western legal system, particularly in common law. To accommodate this new method of evidence in Islamic law, this article firstly, conceptualizes forensic evidence in Islamic law.  Secondly, explores legal frameworks for its adoption in Islamic law. Keywords: Forensic Evidence, legal framework, Criminal Investigation, Sharīʿah.AbstrakBukti forensik adalah sains yang sentiasa berkembang dalam bidang siasatan jenayah dan pendakwaan. Ia telah digunakan secara meluas dalam pentadbiran keadilan di mahkamah dan sistem undang-undang Barat, terutamanya dalam undang-undang common (common law). Untuk menampung kaedah pembuktian baru ini dalam undang-undang Islam, artikel ini, pertamanya, konseptualisasikan bukti forensik dalam undang-undang Islam. Kedua, ia menerokai rangka kerja undang-undang untuk penerimaannya dalam undang-undang Islam.Kata Kunci: Bukti Forensik, Rangka Kerja Guaman, Siasatan Jenayah, Sharīʿah.

scholarly journals The Transplant of Trusts in Different Legal Jurisdictions: The Example of China

Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Giulia Terranova
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Original Model ◽  
People’S Republic Of China ◽  
Legal Institution ◽  
Legal Systems ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Trust Law

AbstractLegal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.

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