scholarly journals CONFLICT OF LAWS ASPECTS OF INTERNATIONAL BONDS TRANSACTIONS

2021 ◽  
pp. 47-54
Author(s):  
O.I. Vygovskyy
Keyword(s):  
Legal Status ◽  
Common Law ◽  
International Capital ◽  
Conflict Of Laws ◽  
International Capital Markets ◽  
Applicable Law ◽  
Personal Attitude ◽  
Characteristic Features ◽  
Governing Law

Abstract. This article examines conflict of laws issues related to issue and circulation of international bonds at international capital markets. It covers characteristic features of international bonds as financial instruments used for raising capital from sophisticated investors which determine, in particular, peculiarities of solving conflict of laws issues. These issues include determination of the law applicable to the formal and essential validity of an international bond, the rights and liabilities as between the issuer and the holder of the international bonds, legal status of a holder of such bonds, the questions of whether a holder obtains full title from a transferor and how title is to be transferred, and whether the transferee obtains title subject to or free from any defects in title of the transferor. The author specifies possible solutions of this conflict of laws puzzle that may include different competing legal systems. He argues that in common law and some other jurisdictions the fundamental lex voluntatis principle may also be applicable to international bonds due to their contractual nature resulting in possibility to choose the governing law for the bonds. The conventional approach as to the proprietary issues of the bonds refers to the lex situs of these securities as the governing law for these issues. The conclusions formulated at the end of the article present the author’s personal attitude towards legal solution of the problems related to determination of the applicable law for international bonds. Key words: international bonds, conflict of laws, issuer, governing law, lex voluntatis.

7 Applicable Law and Jurisdiction

2021 ◽  
Author(s):  
Edelman Colin ◽  
Burns Andrew
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Applicable Law ◽  
The United Kingdom ◽  
Rome Convention ◽  
Starting Point ◽  
The Law ◽  
Contractual Obligations ◽  
Governing Law

This chapter explores the law applicable to reinsurance. Section 2(1) of the Contracts (Applicable Law) Act 1990 provides for the incorporation of the 1980 Rome Convention on the law applicable to contractual obligations into the law of the United Kingdom. Article 1(4) of the Convention expressly provides that reinsurance contracts, unlike contracts of insurance, are subject to the rules of the Convention. However, the Convention does not have retrospective effect and therefore only applies to contracts entered into after April of 1991 when the Convention came into force. For a contract concluded before that date, the determination of its proper law depended and still depends on common law principles. At common law, the starting point is to investigate whether the parties have expressly selected a body of law at the time of contracting or whether such selection can be implied from the express terms of the contract. If the court is unable to ascertain the governing law from the contract it will then look to determine with which system of law the contract has the closest connection.

Law Applicable to Unilateral Juridical Acts and Uniform Conflict-of-law Rules

2013 ◽  
pp. 1-15
Author(s):  
Monika Pauknerová
Keyword(s):  
International Law ◽  
Private International Law ◽  
European Regulation ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Technical Structure ◽  
Juridical Acts ◽  
Supranational Regulation ◽  
Conflict Of Law

Private international law smoothes the edges of civilian law and common law thanks to its specific legislative and technical structure. Conflict-of-law rules are considered to be neutral, and therefore more appropriate for unification, than substantive rules because countries are prepared to surrender their own individual solutions for the sake of uniform international or supranational regulation. This is evident in the successful unification of conflict-of-law rules at the global and European Union levels, as compared with the less common partial unifications of substantive rules. The paper illustrates several examples of unilateral legal acts in the European space, how diverse may be their substantive qualification in different legal systems, and what impacts these substantive differences may have upon the determination of the applicable law for obligations under European conflict-of-law rules. From the perspective of the conflict of laws, an issue remains open regarding what approach should be taken where a uniform legislative instrument – namely a European Regulation – fails to include a particular institution or act either expressly or impliedly.

Berücksichtigung statutsfremder Sicherheits- und Verhaltensregeln

2020 ◽  
Author(s):  
Florian Keßenich
Keyword(s):  
International Law ◽  
Point Of View ◽  
Private International Law ◽  
International Capital ◽  
International Capital Markets ◽  
Applicable Law ◽  
Liability Law ◽  
Legal Situation ◽  
Prospectus Liability

This study develops a consistent concept for the application of the special conflicts law rule of Art. 17 of the Rome II Regulation. The concept developed is subjected to a case study in cross-border prospectus liability law. The work is the first to demonstrate that Art. 17 of Rome II can be used to take into account the law of the marketplace in a methodologically convincing manner, and it thus makes a contribution not only to general private international law but also to international capital markets law. In particular, economic reasons demand a link to the marketplace where securities have been issued. However, according to the current legal situation, the different residence rights of the investors have to be applied. As a consequence, the applicable law is fragmented from the issuer’s point of view (mosaic principle). This inappropriate situation can be corrected with the help of Art. 17 of Rome II, and the study’s findings can be extended to other fields of law.

4. Contractual obligations

2016 ◽  
Author(s):  
Jonathan Hill
Keyword(s):  
General Principle ◽  
Common Law ◽  
General Rule ◽  
Eu Law ◽  
English Court ◽  
Applicable Law ◽  
Foreign Countries ◽  
Contractual Obligations ◽  
Governing Law ◽  
Rome I

This chapter deals with contract disputes which have foreign elements that come before the English court: one or both of the parties may be foreign; the making or performance of the contract may be connected with a number of foreign countries. In this type of case which law is the court to apply? The general principle is that every international contract has a governing law — known at common law as the ‘proper law’and under EU law as the ‘applicable law’. Subject to certain limitations, parties to a contract are free to choose the applicable law; if the parties fail to make a choice, the governing law is, as a general rule, the law of the country with which the contract is most closely connected. The remainder of the chapter focuses on the Rome I Regulation, including its scope and interpretation; determining the applicable law; the limits of the applicable law; articles 5 to 8; and choice of law aspects of various contractual issues.

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.

Law applicable to Distribution Contracts and Contracts of Sale – Relationship between Framework Agreement and Application Contracts

2018 ◽  
Vol 14 (2) ◽  
pp. 138-156
Author(s):  
Ewa Wójtowicz
Keyword(s):  
International Business ◽  
Distribution Networks ◽  
Specific Nature ◽  
Framework Agreement ◽  
Applicable Law ◽  
Sales Contracts ◽  
The Law ◽  
Governing Law ◽  
The Impact

Abstract Distribution networks are widely used in the international trade as a tool for bringing another party’s products on to the market. However, in international business relations it may be difficult to establish the governing law for distribution agreements and contracts of sale. This article analyses the rules for determining the law applicable to distribution agreements and determines the impact of these rules and the law applicable to a distribution agreement on the applicable law for the sales contracts formed under the agreement. The thesis of the article is that the specific nature of distribution agreements manifesting itself in a bond between distributorship (as a framework agreement) and contracts of sale (as the application contracts) has implications for the determination of the applicable law for the sales contracts.

APPLICATION THE PERSONAL STATUTE OF A LEGAL ENTITY IN CIVIL CASES

2021 ◽  
pp. 225-241
Author(s):  
Andrey I. Schukin ◽  
Keyword(s):  
Legal Status ◽  
Practical Importance ◽  
Economic Activities ◽  
Legal Entity ◽  
Applicable Law ◽  
National Jurisdiction ◽  
Legitimate Interests ◽  
Civil Cases ◽  
The Stability

The decisions and activities of legal persons have consequences in many states, some-times giving rise overseas to disputes arising out of contracts, torts. The foreign element in such cases raises a number of difficult questions related to the legal status of the subjects of these relations: whether a legal entity created under the laws of one state is recognized as such in another state where it is engaged in economic activities; the laws of which state determine the legal capacity of a foreign legal entity? - etc. The answers to these questions may be found by means of the personal statute of a legal entity (lex societatis). The personal statute of a legal entity (lex societatis) is commonly referred to as the law, determined on the basis of a conflict of laws rule, to be applied to the totality of relations related to the legal entity and complicated by a foreign element, or at least to the main part of such relations. The application of the personal statute of a legal entity is relevant in civil cases in which at least one of the parties is a foreign corporation. This statute has to be resorted to in the case of a dispute on the merits, as well as in a number of other cases: determining the legal status of the disputing parties at the stage of initiation of the case and its subsequent resolution, checking the powers of the parties' representatives, etc. The court must examine the legal status of the corporation as a party to the proceeding before deciding on the applicable law. The purpose of this article is to analyze the practice of application by Russian courts the personal statute of a legal entity in resolving a number of procedural issues related to the determination of the legal status of the disputing parties, the verification of the credentials of the parties' representatives. The article provides an analysis of the content of the mentioned conflict of law norm, which is designed to help courts in their activities. The improvement of the investment climate in the state, the attractiveness of the national jurisdiction for economic activity, the stability of the civil turnover in general depend on the effective protection of the rights and legitimate interests of participants in corporate conflicts through justice. The study of features of the judicial form of protection of violated rights and interests in the light of the foreign element is of enduring theoretical and practical importance.

The Uses of Putativity and Negativity in the Conflict of Laws

2005 ◽  
Vol 54 (4) ◽  
pp. 829-853 ◽  
Author(s):  
Elizabeth B Crawford
Keyword(s):  
Common Law ◽  
The Other ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Divine Intervention ◽  
Other Hand

Putativity is a useful concept in the conflict of laws, allowing reference to be made to an outcome which was intended to have come about, but which has failed, as a result of human actings or divine intervention. To apply to something which is imperfect a consequence which would arise if it were perfect is justifiable on the pragmatic grounds of convenience, speed, and cost—and thence, through the merit of certainty, to the satisfaction (perhaps) of party expectation, or at least to the forestalling of disappointment. Reference to the putative applicable law may be permissible therefore on the ground of enabling a resolution to emerge, the more so if the result of so doing commends itself to the disinterested observer and to one, at least, of the parties; on the other hand, the result may disappoint the reasonable expectations of both parties. Whatever the rationale, it can be observed that use of the device is authorized at common law, by statute, in Convention, and Regulation. But if one does not ask whether this methodological technique begs the question, one begs the question.

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