scholarly journals Prawo właściwe dla skutków przelewu wierzytelności w stosunku do osób trzecich. Uwagi z perspektywy międzynarodowego prawa upadłościowego

2019 ◽  
Vol 24 ◽  
pp. 47-75
Author(s):  
Wojciech Klyta
Keyword(s):  
Third Parties ◽  
Third Party ◽  
Insolvency Law ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
The Third ◽  
The Right ◽  
Insolvency Proceedings ◽  
Rome I ◽  
Foreseeable Risk

The claims are rights in personam but the assignment of claims has a hybrid nature. Abolishing the “nomina ossibus inhaerent” rule has increased commercial significance of the assignment of claims. However, the contemporary legal situationleaves parties with great legal uncertainty, as to the question under which circumstances does the cross — borders assignment is valid. A recent judgment of the CJEU of 9 October 2019 (C — 548/18) in case BGL BNP Paribas SA v. TeamBank AG Nürnberg has augmented this uncertainty. The Luxemburg Court ruled that: “Article 14 of the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 (‘Rome I’) must be interpreted as not designating, directly or by analogy, the applicable law concerning the third-party effects of the assignment of a claim in the event of multiple assignments of the claim by the same creditor to successive assignees”. In this situation, one would highly welcome an attempt to establish a new set of conflict of laws rules relating to the law applicable to third — parties effects of the assignment of claims. This attempt has recently been made by the European Commission in its Report “on the question of the effectiveness of an assignment or subrogation of a claim against third parties and the priority of the assigned or subrogated claim over the right of another person”, dated 29 September 2016. In the present article, the author reviews the most important propositions formulated in the conflicts’ doctrine through the “lens” of the international insolvency law. Multiply provisions of the Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) — despite many judgments of the CJEU in this area — also lack certainty. Insolvency is a foreseeable risk, but without clear rules concerning the third parties’ effects of the assignment of claims, it may become unenforceable for the creditors of the assignor.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

scholarly journals Kolizyjnoprawna problematyka skuteczności przelewu wierzytelności wobec osób trzecich — projekt rozporządzenia Parlamentu Europejskiego i Rady w sprawie prawa właściwego dla skutków przelewu wierzytelności wobec osób trzecich (COM(2018) 96 final)

2019 ◽  
Vol 25 ◽  
pp. 67-90
Author(s):  
Witold Kurowski
Keyword(s):  
Third Parties ◽  
Third Party ◽  
Habitual Residence ◽  
Eu Regulation ◽  
The Third ◽  
The Law ◽  
The Third Party ◽  
Contractual Obligations ◽  
Rome I

The question of which law should govern the third-party effects of assignments of claims was considered during the preparation of the Rome I Regulation. The European Commission’s proposal for the Rome I Regulation admitted the law of the assignor’s habitual residence as the law that should apply to the proprietary effects of assignments of claims. Finally, EU Regulation on the law applicable to contractual obligations did not include the issue of the third-party effects of the assignment. However, Article 27(2) of the Rome I Regulation required the European Commission to present a report on the question of the effectiveness of assignments of claims against third parties accompanied, if appropriate, by a proposal to amend the Rome I Regulation. Proposal for a Regulation on the law applicable to the third-party effects of assignments of claims (COM(2018) 96 final) is a response to this request. This paper analyses current draft of the new EU Regulation, the rules on determination of the third-party effects of assignments of claims (law of the assignor’s habitual residence and law of the assigned claim) and "super conflict rules" in specific cases. The author argues that the law of the assignor’s habitual residence remains the appropriate conflict rule for proprietary effects of assignments of claims.

scholarly journals Kolizyjnoprawna problematyka skuteczności przelewu wierzytelności wobec osób trzecich Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 9 października 2019 r. w sprawie BGL BNP Paribas SA c/a TeamBank AG Nürnberg (C‑548/18)

2020 ◽  
Vol 26 ◽  
pp. 223-236
Author(s):  
Witold Kurowski
Keyword(s):  
European Union ◽  
Third Party ◽  
The European Union ◽  
Conflict Of Laws ◽  
The Third ◽  
Common Opinion ◽  
The Law ◽  
The Third Party ◽  
Rome I ◽  
The Eu

The question of the law applicable to the third-party effects of assignments of claims is widely discussed in the doctrinal debates. In common opinion, the existing European conflict-of-laws regulations do not provide for a rule governing this issue. In the case BGL BNP Paribas SA v. TeamBank AG Nürnberg (C‑548/18), the Court of Justice of the European Union confirmed this gape of the Rome I Regulation.The gloss presents the justification of the European Union Court’s judgment, the reasons for the lack of the uniform conflict-of-laws regulation, and the consequences of this state. It also analyses briefly the European Commission’s proposal for the EU Regulation concerning the law applicable to the third-party effects of assignments of claims (COM(2018) 96 final), as a response to this situation. Finally, it examines the appropriate conflict-of-laws rules for proprietary effects of assignments of claims (the law of the assignor’s habitual residence and the law of the assigned claim).

Ch.5 Content, third party rights and conditions, s.2: Third party rights, Introduction to Section 5.2 of the PICC

2015 ◽  
Author(s):  
Vogenauer Stefan
Keyword(s):  
Third Parties ◽  
Third Party ◽  
Basic Rule ◽  
Conflict Of Interests ◽  
The Third ◽  
The Creation ◽  
The Third Party ◽  
Triangular Relationship ◽  
The Right ◽  
Default Rules

Section 5.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) deals with contracts in favour of third parties. It covers the creation of a third party right by way of contract and includes the basic rule that provides for the validity and enforceability of contracts in favour of third parties and states the requirements for bringing a third party right into existence. It also defines the rights and duties of the parties in the triangular relationship arising from a contract in favour of a third party. These provisions provide default rules for the conflict of interests typically arising between the three parties involved. Section 5.2 also discusses the defences of the promisor, the extent of the original parties' power to modify or revoke the third party's right, and the right of the third party to renounce the benefit conferred upon it.

scholarly journals Changing the past: retroactive choice of law and the protection of third parties in the European regulations on patrimonial consequences of marriages and registered partnerships = Cambiando el pasado: elección retroactiva de la ley aplicable y protección de terceras partes en los reglamentos europeos sobre los efectos patrimoniales de los matrimonios y de las uniones registradas.

2018 ◽  
Vol 10 (1) ◽  
pp. 7
Author(s):  
Lukas Rademacher
Keyword(s):  
Third Parties ◽  
Third Party ◽  
Choice Of Law ◽  
Applicable Law ◽  
The Past ◽  
Retroactive Effect ◽  
European Regulations ◽  
Legal Position ◽  
The Right ◽  
Property Regime

Abstract: Two forthcoming EU Regulations are going to address, inter alia, the law applicable to the patrimonial consequences of marriages and registered partnerships. Under the Regulations, spouses and partners will not only be able to choose the applicable law but they are also granted the right to give their choice of law retroactive effect. Although the patrimonial consequences of marriages and partnerships are of relevance primarily to the spouses and registered partners, they may also directly affect the legal position of third parties. The aim of this paper is to identify and analyze the risks for third parties inherent in a retroactive change of the applicable law and the measures implemented in the Regulations to safeguard third party interests.Keywords: matrimonial property regime, partnership property regime, applicable law, choice of law, retroactivity, third parties.Resumen: Dos Reglamentos europeos regirán, entre otras cosas, la ley aplicable a los efectos patrimoniales de los matrimonios y de las uniones registradas. Según los Reglamentos, los cónyuges y los miembros de la unión además de poder elegir la ley aplicable tienen la posibilidad de dotar esta elección de efecto retroactivo. Aunque los efectos patrimoniales de los matrimonios y de las uniones registradas tienen relevancia ante todo para los cónyuges y los miembros de la unión registrada, pueden afectar directamente a la posición jurídica de terceras partes. El objetivo de este artículo es identificar y analizar los riesgos para terceros inherentes a un cambio retroactivo de la ley aplicable y las medidas implementadas en los Reglamentos para salvaguardar los intereses de terceras partes.Palabras clave: régimen económico matrimonial, efectos patrimoniales de las uniones registradas, ley aplicable, elección de la ley aplicable, retroactividad, terceras partes.

Relaxations of Contractual Privity and the Need for Third Party Rights in Chinese Contract Law

2018 ◽  
Author(s):  
Chen Lei
Keyword(s):  
Direct Action ◽  
Contract Law ◽  
Third Party ◽  
Chinese Law ◽  
The Third ◽  
Right Of Action ◽  
The Law ◽  
The Third Party ◽  
The Right

This chapter examines the position of third party beneficiaries in Chinese law. Article 64 of the Chinese Contract Law states that where a contract for the benefit of a third party is breached, the debtor is liable to the creditor. The author regards this as leaving unanswered the question of whether the thirdparty has a right of direct action against the debtor. One view regards the third party as having the right to sue for the benefit although this right was ultimately excluded from the law. Another view, supported by the Supreme People’s Court, is that Article 64 does not provide a right of action for a third party and merely prescribes performance in ‘incidental’ third party contracts. The third view is that there is a third party right of action in cases of ‘genuine’ third party contracts but courts are unlikely to recognize a third party action where the contract merely purports to confer a benefit on the third party.

Contracts for the Benefit of Third Parties Under the Taiwan Civil Code

2018 ◽  
Author(s):  
Sheng-Lin JAN
Keyword(s):  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Legal Relationship ◽  
The Third Party ◽  
Privity Of Contract

This chapter discusses the position of third party beneficiaries in Taiwan law where the principle of privity of contract is well established. Article 269 of the Taiwan Civil Code confers a right on the third party to sue for performance as long as the parties have at least impliedly agreed. This should be distinguished from a ‘spurious contract’ for the benefit of third parties where there is no agreement to permit the third party to claim. Both the aggrieved party and the third party beneficiary can sue on the contract, but only for its own loss. The debtor can only set off on a counterclaim arising from its legal relationship with the third party. Where the third party coerces the debtor into the contract, the contract can be avoided, but where the third party induces the debtor to contract with the creditor by misrepresentation, the debtor can only avoid the contract if the creditor knows or ought to have known of the misrepresentation.

ELECTRONIC MONITORING OF SENTENCED PERSONS IN SLOVAK LEGAL PRACTICE

2020 ◽  
Vol 10 (6) ◽  
pp. 13-30
Author(s):  
JAROSLAV KLÁTIK ◽  
◽  
LIBOR KLIMEK
Keyword(s):  
Electronic Monitoring ◽  
Slovak Republic ◽  
Legal Practice ◽  
Fourth Section ◽  
Applicable Law ◽  
The Third ◽  
The Right To Privacy ◽  
Good Investment ◽  
Civil Proceedings ◽  
The Right

The work deals with practical issues of electronic monitoring of sentenced persons in the Slovak Republic. It is divided into seven sections. The first section deals with applicable law - the Act No. 78/2015 Coll. on Control of the Enforcement of Certain Decisions by Technical Instruments. The second section analyses types of the control of the enforcement of decisions and their use. The third section introduces the requirements for the control. The fourth section briefly introduces the application of the system in civil proceedings. The fifth section points out at the interference of the control with the right to privacy. The sixth section answers the question if the system was a good investment or a wasting of money. The last seventh section introduces recommendations for policymakers and legal practitioners.

scholarly journals TANGGUNGJAWAB BLU TRANSJAKARTA TERHADAP PIHAK KETIGA DALAM HAL TERJADI KECELAKAAN MENURUT UU NO. 22 TAHUN 2009 TENTANG LALU LINTAS DAN ANGKUTAN JALAN

2014 ◽  
Vol 14 (3) ◽  
Author(s):  
Elfrida R Gultom
Keyword(s):  
Public Service ◽  
Public Transport ◽  
Third Parties ◽  
Third Party ◽  
Service Agency ◽  
Transportation Services ◽  
The Public ◽  
The Third ◽  
The Third Party ◽  
Ticket Prices

The objective of Busway development is to provide transportation services faster, safer, comfortable, and affordable for people in Jakarta. Ticket prices are subsidized by the local government busway. Busway given special line, however could not be separated from the accident. In a carriage, in the event of an accident then apply provisions of Law No. 22 of 2009 on Traffic and Transportation. If there is a loss that hit the third party then setting responsibilities Public Service Agency TransJakarta Busway to third parties refer to the provisions of Article 194 paragraph (1) which determines that the public transport companies are not responsible for any losses suffered by third parties, unless the third party may prove that the loss is caused by the fault of public transport company. Under these provisions, if the third party wants to sue for damages, ketigalah party must prove the fault of the carrier, the claim is based on the basis of tort or on the basis of error set forth in Article 1365 of the Civil Code which stipulates that any action unlawfully harming others, require the person who carries the loss offset. Keywords: transport, the responsibility of the carrier, a third party, transport law

scholarly journals The partial waiver of the rights and partial invalidation of rights to the invention

2021 ◽  
pp. 51-59
Author(s):  
Petro Borovyk
Keyword(s):  
Legal Protection ◽  
Third Parties ◽  
Legal Certainty ◽  
Utility Model ◽  
Patent Owner ◽  
The Third ◽  
Utility Models ◽  
The Law ◽  
State Registration ◽  
The Right

Borovyk P. The partial waiver of the rights and partial invalidation of rights to the invention. In view of changes in the Law of Ukraine «About protection of rights for inventions and utility models» introduced according to the Law No. 816-IX as of 21.07.2020, it is implied that a patent owner can waive rights provided by a state registration of an invention (utility model) fully or partially, and a court can render the rights for the invention (utility model) invalid fully or partially. The partial waiver of the rights or rendering the rights invalid causes a number of issues on a rather frequent basis, in particular, regarding a certain procedure of defining the entire scope of rights according to the patent and a portion of these rights. Since the scope of rights is defined by claims, the partial waiver of the rights or the partial rendering the rights invalid substantially represents a change of the scope of rights, which are defined by the claims as published. The patent may be granted for a group of inventions. In such case, the scope of rights shall be defined by the claims that comprise several independent claims. Here, the partial waiver of the rights for the invention may be carried out by waiving one or several independent claims at the discretion of the patent owner or by rendering one or several independent claims invalid by the court. Therewith, the scope of rights that is defined during conduction of an examination for another invention of the group of inventions, which are mentioned in a single protection document (patent), is not changed. The partial waiver or the partial rendering the rights for the invention invalid for the claims having one independent claim is a more problematic case. A key aspect of this problem is an influence of the proposed amendments of the claims onto the scope of rights for the invention and its correspondence with the requirements for granting a legal protection. More specifically, it is an establishment of a fact of reduction of the scope of rights when introducing the proposed amendments into the independent claim and examination of a new version of the independent claim for compliance with the requirements of patentability. An important aspect also lies in establishment of a balance of interests of the patent owner and third parties. The patent owner will receive a mechanism of implementation of the right for protection of allowable embodiments of the invention, while the third parties will receive a right for a legal certainty by means of an analysis of the scope of rights of the new version of the claims. The article discloses grounds for waiving the rights for the invention and the mechanism for implementation of the waiver under the legislation in force both for the case of the group of inventions and for the partial waiver or the partial rendering the rights for the invention invalid with the claims having one independent claim. Keywords: scope of rights, independent and dependent claims, amendment to claims, proceedings

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