Einstweiliger Rechtsschutz in grenzüberschreitenden Schiedsverfahren

2021 ◽  
Author(s):  
Julia Mink
Keyword(s):  
Civil Procedure ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Cross Border ◽  
Arbitral Proceedings ◽  
Contractual Obligations ◽  
Substantive Law ◽  
Interim Measures ◽  
Rome I ◽  
Einstweiliger Rechtsschutz

The thesis focuses on the difficulties of determining the applicable law in interim proceedings in cross-border arbitral proceedings. First, it examines whether arbitral tribunals have a lex arbitri. Subsequently, the various possibilities of interim measures are described and the question is discussed whether arbitral tribunals have to refer to the Rome I Regulation or Section 1051 of the German Code of Civil Procedure in order to determine the applicable conflict of laws for contractual obligations. Then, it is analysed how the applicable substantive law is to be determined or how to proceed in case of non-determinability of such. Finally, the consequences of the application of a substitute law for the main proceedings are discussed.

Parties

2021 ◽  
pp. 77-88
Author(s):  
European Law
Keyword(s):  
Civil Procedure ◽  
Foreign Nationals ◽  
Applicable Law ◽  
Cross Border ◽  
Legitimate Interest ◽  
Administration Of Justice ◽  
Substantive Law

This chapter examines the part of the European Rules of Civil Procedure which aims to ensure that the court is properly accessible to all persons who have a legitimate interest in bringing or defending proceedings, i.e., in vindicating or enforcing rights. Parties to litigation can be persons who are able to hold rights under substantive law. Lacking litigation capacity, parties must be represented according to applicable law. In appropriate cases, proceedings may be brought by several claimants or against several defendants as parties joined to the litigation. The court may order the consolidation of separate proceedings for the purpose of properly managing them. At any time after the commencement of proceedings, substitution or succession of a party by another person is possible if required by law or if it is necessary in the interest of good administration of justice. The chapter then considers cross-border issues, including the capacity of foreign nationals to be a party, as well as their litigation capacity.

EC Legislation on Conflict of Laws: Interactions and Incompatibilities between Conflicts Rules

1998 ◽  
Vol 47 (2) ◽  
pp. 439-445 ◽  
Author(s):  
Susanne Knöfel
Keyword(s):  
German Law ◽  
Comparative Approach ◽  
Member States ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
The United Kingdom ◽  
Rome Convention ◽  
Contractual Obligations ◽  
Substantive Law ◽  
The Impact

Formerly, EC activity in the area of private law used to be content with approximating member States' substantive laws in specified areas, and, therefore, eventual conflictual implications demanded considerable interpretative efforts. Modern Community legislation, however, increasingly complements the intended substantive-law harmonisation with provisions on conflict of laws. Given the existence of the (Rome) Convention on the Law Applicable to Contractual Obligations, implemented in the United Kingdom by the Contracts (Applicable Law) Act 1990, this new tendency, where it concerns areas falling within the Convention, raises complex questions on both legislative technique and policy. The Convention, in Article 20, expressly reserves the precedence of Community choice of law rules. However, merely to point to this priority rule appears to be too simple a solution as conflicts, before being solved, have to be defined, and that is what this article aims at. Further, as an analysis that deals with European law would be incomplete without taking into account the impact on member States' law, reference will be made to domestic English and, for the purposes of comparison, to domestic German law. The latter appears to qualify for such a comparative approach because, due to the Rome Convention already having been part of the domestic law for a considerable period, certain experience might be expected within that legal system in dealing with contract conflicts issues thereunder.

scholarly journals "Close Connection" Category in International Civil Procedure and in Conflict of Laws

Lex Russica ◽  
2021 ◽  
pp. 46-55
Author(s):  
L. V. Terentyeva
Keyword(s):  
Civil Procedure ◽  
Close Connection ◽  
Private Law ◽  
Court Order ◽  
Judicial Cooperation ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Cross Border ◽  
Legal Relationship ◽  
Judicial Procedures

The use of "close connection" in conflict of laws area and in international civil procedure preconditions the question whether it is possible to interpret it uniformly both as a basis for establishing the jurisdiction to resolve cross-border private law dispute, and as a basis for choosing the applicable law.When studying close connection within the framework of conflict-of-laws regulation, the author of the paper, along with the concept of "close connection" examines the concepts of "connection with only one country" and "the closest connection". The paper also discusses the concept of Proper law which, as a rule, in the Russian doctrine is identified with the category of close connection.Analysis of the close connection as the basis for establishing jurisdiction has led to the conclusion that it is necessary to apply a differentiated approach to determining the content of close connection within the framework of Conflict of Laws and international civil procedure. This assumption is based on the fact that when establishing jurisdiction to consider cross-border private law disputes on the ground of a close connection, a special task is solved to overcome the conflict of jurisdiction while observing the principle of equality between judicial procedures of different states, as well as the principle of international judicial cooperation. In addition, within the framework of the international civil procedure, the concept of “foreign element” preconditioning the manifestation of a close connection of the disputed legal relationship with the court of the state, can be endowed with additional content except the content attached to the foreign element within the framework of the conflict of laws, namely: obtaining evidence abroad; enforcement of a court order abroad, etc.

Civil and Commercial Cases in the EU: Jurisdiction, Recognition, and Enforcement, Applicable Law—Brussels Regulation, Rome I and II Regulations

2021 ◽  
pp. 264-288
Author(s):  
Julia Hörnle
Keyword(s):  
International Law ◽  
Private International Law ◽  
Applicable Law ◽  
Recognition And Enforcement ◽  
Scope Of Application ◽  
Special Rules ◽  
Contractual Obligations ◽  
Rome I ◽  
Brussels Regulation ◽  
The Eu

Chapter 8 examines the harmonized provisions on private international law in the EU. It discusses the conflict of law rules in civil and commercial matters contained in the Brussels Regulation on Jurisdiction and the Rome I Regulation (applicable law contracts) and Rome II Regulation (non-contractual obligations). It analyses their scope of application and the general and special rules of jurisdiction for contract and torts, and the law applicable to different types of contracts and non-contractual liability. It provides a general overview of the main aspects of private international law in the EU and how this applies in internet cases.

IV Trust Arbitration as a Matter of International Law, 19 Arbitrating Trust Disputes: Effect of the Hague Convention on the Law Applicable to Trusts and on Their Recognition

2016 ◽  
Author(s):  
von Segesser Georg
Keyword(s):  
Hague Convention ◽  
Conflict Of Laws ◽  
Binding Effect ◽  
Applicable Law ◽  
The Hague ◽  
The Law ◽  
Substantive Law ◽  
The Hague Convention ◽  
International Conventions ◽  
Selection Of

This chapter examines the effect of the Hague Convention on the Law Applicable to Trusts and on their Recognition (Hague Trust Convention) on the law applicable to the arbitration of trust disputes. It also considers the extent to which arbitrators can apply the conflict of laws rules of the convention in cases where the parties have not agreed that these rules should govern the issues in dispute. The chapter is organized as follows. Section II addresses the selection of the applicable substantive law by arbitral tribunals in cases where the parties have not agreed on the applicable law. Sections III and IV cover international conventions and, in particular the Hague Trust Convention, as sources for the selection of the applicable law. Section V deals with the validity and effect of arbitration agreements while Section VI considers the effects of a choice of-law-clause and the binding effect of such a clause for the arbitral proceedings. Section VII addresses the effect of specific conflict of laws rules of the Hague Trust Convention on the law applicable to the merits in international trust arbitration disputes.

Legal Regulation of Adjudication in Civil Code of the Russian Federation (Issues of Conflict Rules)

2015 ◽  
Vol 3 (5) ◽  
pp. 0-0
Author(s):  
Татьяна Лазарева ◽  
Tatyana Lazaryeva
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Legal Regulation ◽  
Civil Code ◽  
Private International Law ◽  
Conflict Of Laws ◽  
The Russian Federation ◽  
The Law ◽  
Contractual Obligations ◽  
Rome I

The article deals with conflict of laws regulation of transfer of creditor’s rights to another person (assignment of claims (cessions) and transfer of rights under the law) in terms of amendments to Part III of the Civil Code of the Russian Federation. The author notes that though amendments to the separate article on cession are not fundamental, the amendments of other articles of the Civil Code of the Russian Federation, concerning contractual obligations, do influence regulation of relations between the parties in assignment. The article pays special attention to the new conflict of law rule regulating the transfer of the creditor’s rights under the law. Relevant court practice is analyzed. On the basis of comparing legislations of specific countries, as well as norms of EC No. 593/2008 (‘‘Rome I’’) Regulation and EC No. 864/2007 (‘‘Rome II’’) Regulation the author draws the conclusion that despite some differences in conflict of laws regulation of the transfer of the creditor’s rights, in general the Russian rules comply with modern trends in private international law in the majority of European countries.

scholarly journals INTERNATIONAL CIVIL PROCESS AS AN INTEGRAL PART OF PRIVATE INTERNATIONAL LAW

2021 ◽  
Vol 9 (06) ◽  
pp. 259-262
Author(s):  
Akhmurodov Jakhongir ◽  
Keyword(s):  
International Law ◽  
Civil Procedure ◽  
Private Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Civil Process ◽  
Definition Of

This article examines various opinions regarding the international civil procedure as part of private international law and concludes that international civil procedure is directly related to the definition of applicable law, and that substantive regulation of private law relations complicated by a foreign element is generally impossible in practice without addressing both conflict of laws and procedural problems.

scholarly journals THE CONFLICT REGULATION IN THE IDENTIFICATION OF THE AUTHOR IN CROSS-BORDER RELATIONS

2017 ◽  
pp. 0-0
Author(s):  
Оксана Луткова ◽  
Oksana Lutkova
Keyword(s):  
General Rule ◽  
Contract Law ◽  
Civil Code ◽  
Conflict Of Laws ◽  
Party Autonomy ◽  
Applicable Law ◽  
Domestic Conflict ◽  
Freedom Of Contract ◽  
Cross Border ◽  
Conflict Regulation

The article deals with national approaches to the identification of the author: on the basis of “lex origins” in the framework of intellectual Statute (Portugal, Romania) or contrary to the Intellectual statute (Russia, USA), on the basis of “lex loci protectionis” (Austria, Germany, Belgium). The conclusion is drawn in respect of the use of collision formula «lex origins» to determine the author of the work as the most appropriate mechanism which leads to the solution of the problem of the initial authorship according to a single law, no matter which country’s court considered the dispute. The attention is paid to inaccuracies in the wording of the scope and to the connecting factor of the domestic conflict norm which selects the applicable law to govern the identification of authorship. In order to improve the domestic conflict regulation it is advisable to formulate in the Civil Code the general rule of conflict of laws that is applicable to identify the author / initial owner of the creation removing the indication that restricts the volume of rules in the Article 1256 p. 3 of the Russian Civil Code, adding to this norm the subsidiary connecting factor “lex loci protectionis” and retaining the general connecting factor “lex origins”. It is also proposed to include into the Russian Civil Code’s Article 1256 a special conflict of laws rule for determining the applicable law to identify the author / initial owner which would correlate with the principle of freedom of contract and would be based on the general connecting factor — “law of party autonomy” (lex voluntatis), and subsidiary connecting factor – “contract law of the country” (lex contractus) for the work for hire which has been created under the contract.

scholarly journals Deeply Analysis on French Rules of Conflict of Laws

2019 ◽  
pp. 1-15
Author(s):  
Desiree Roffee Ciss
Keyword(s):  
Social Life ◽  
Legal Issue ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Abstract Rule ◽  
The Law ◽  
Contractual Obligations ◽  
The Moment ◽  
The Individual

The law, in a general way, has the role of regulating life in society. From this same Law, several rights with branches facilitate their explanation and use in our social life to establish order. This being life in society could be seen as a kind of contract to the extent that it would be difficult for the individual to live without maintaining relationships with others. So, from the moment that there is this exchange between individuals there is what we could call contract. As we know, the contract is defined in law as an agreement by which one or more persons agree to one or more other persons to give, do or not to do something. It should also be specified that there are several kinds of contracts, but the one that will be the main focus of our development is the international contract. An international contract is understood to mean this contract, which, unlike the internal contract, presents an element of extraneity, in other words an international character. For example, a contract between two individuals of different nationality. The contract thus concluded, the contracting parties may indeed encounter difficulties that may arise at any time, most often due to non-compliance with the terms of the contract. These problems or disputes are often very difficult to resolve because the parties are from different origins, residing in different countries, or bound by commitments made in a country other than their country of residence, hence the existence of different laws. and the birth of what is called a conflict of laws. This being so, by conflict of laws is meant to be one of the main problems with private international law (the branch of law which deals with the settlement of disputes of private rights having at least an extraneous character). Thus, the question arises as to which law would be applicable in the event of a conflict of laws in the matter of contract, that is, how to choose or determine the applicable law in the course of a dispute with a foreign element? Thus, once the French judge is seized of the dispute, it will be necessary to find the law applicable to the questions of law asked. Assuming that the French judge can apply a foreign law, and that the various foreign laws with links to the litigation have a theoretical vocation to apply, were developed what are called conflict of laws rules which is an abstract rule, indirect (it does not solve the substantive question asked, but only to determine the law competent to resolve this substantive legal issue), and neutral (the substantive solution is not taken into account in the determination of the applicable law). In order to give answers to our questioning, we will focus on how to choose the law applicable to conflict of laws in matters of contract and this, in the light of French law, the Rome Convention of 19 June 1980 and the Rome 1 Regulation on the law applicable to international contractual obligations.

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