Law applicable to merits of the arbitration dispute (an overview of the English, Swiss and French arbitration laws)

Due to the plethora of international elements of a contract to arbitrate, i.e. nationalities of the parties, nature of the transaction and the legal background of the arbitrator, questions of law applicable to the substance of the dispute are always at stake. In the course of arbitral proceedings, issues of law applicable to the arbitral dispute are raised after a concise examination of the law applicable to the arbitration agreement, namely whether the parties have consented to arbitrate the subject-matter in issue and the law applicable to the arbitral procedure. The present study draws upon the principle of party autonomy, in both theoretical and practical aspects in the context of the freedom of contract principle. It further considers the restrictive role of mandatory rules upon the above principle. Light shall also be shed on the current trends of international mandatory rules and public policy as discussed in ICC awards by experienced arbitrators and solely developed within the ambit of international commercial arbitration. Furthermore, a consistent examination of possible choices of law and rules of law such as a-national rules i.e. lex mercatoria and general trade usages will sketch the existing variety of possibilities in choice of law both on the parties and lawyers leading arbitrations. The last Section will independently examine an absence of choice of law, and several doctrines which envisaged the stance of the three distinguished European arbitral systems: English, Swiss and French.

The German Kommanditgesellschaft auf Aktien (limited partnership with shares)

An overview of the German law governing limited partnership companies with shares (Kommanditgesellschaft auf Aktien). The author outlines: the historical background, applicable rules of law, formation, structure, organisation and financial provisions of a KGaA

Germany and Spain lead changes towards international insolvencies in Europe

With the Council regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings, that came into effect May 31, 2002 the European Union has introduced a legal framework for dealing with cross-border insolvency proceedings. In order to achieve the aim of improving the efficiency and effectiveness of insolvency proceedings having cross-border effects within the European Community, the provisions on jurisdiction, recognition and applicable law in this area are contained in a Regulation, a Community law measure which is binding and directly applicable in Member States. The goals of the Regulation, with 47 articles, are to enable cross-border insolvency proceedings to operate efficiently and effectively, to provide for co-ordination of the measures to be taken with regard to the debtor’s assets and to avoid forum shopping. The Insolvency Regulation, therefore, provides rules for the international jurisdiction of a court in a Member State for the opening of insolvency proceedings, the (automatic) recognition of these proceedings in other Member States and the powers of the ‘liquidator’ in the other Member States. The Regulation also deals with important choice of law (or: private international law) provisions. The Regulation is directly applicable in the Member States3 for all insolvency proceedings opened after 31 May 2002

The applicable law in the Caribbean Single Market

The Honourable Mr Justice Rolston F. Nelson (Caribbean Court of Justice and former IALS Inns of Court Fellow) examines the status and work of regional courts which exist as offshoots of regional economic communities, with particular reference to CARICOM. He considers the conundrum of the regional court that while it is a supranational body created by international law agreements and applying international law, it purports to prescribe a uniform local law for the limited geographic area of its jurisdiction based on considerations legal and economic peculiar to that geographic area

Breaking New Ground in Spain: A General Description of the Spanish Employment System

[Excerpt] This introductory summary of employment law in Spain focuses primarily on labor law, but also addresses basic aspects of social security law and immigration law, all of which are closely related. This summary is not intended to be comprehensive of the myriad of rules and regulations applicable to employment relationships in Spain, but it is intended to provide a general overview of the basic obligations employers have to employees and the fundamental legal issues that can arise in employment relationships in Spain

The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body

The debate about the simultaneous applicability of international humanitarian law and human rights law also affects human rights treaty bodies. The article first considers the difficulty for a human rights body in determining whether international humanitarian law is applicable; second, it examines the problems in practice in applying the lex specialis doctrine and the question of derogation in this particular context. The author finally outlines the impact of the debate as to the extent of extraterritorial applicability of human rights law

The role of the Russian Federation in the Pridnestrovian conflict: an international humanitarian law perspective

Pridnestrovie, a de facto state within the territory of the Republic of Moldova, declared itself independent in September 1990, a declaration that was followed by an armed conflict between Moldova and Pridnestrovie in 1992. To date no settlement has been achieved between the conflicting parties. The situation is complicated by the fact that the Soviet Union and subsequently the Russian Federation has been involved in the conflict in various ways. This article seeks to analyse the conflict from an international humanitarian law perspective. The involvement of the Soviet Union and the Russian Federation in the conflict is of great significance because third-party involvement, depending on the level of involvement, has the potential to change the categorisation of a conflict from a non-international armed conflict to an international armed conflict. This in turn impacts on the number and nature of international humanitarian law provisions applicable to the conflict situation. As international humanitarian law provides protection to those fighting in and those caught up in a conflict, it is important to investigate which international humanitarian law provisions could be applicable. The article offers an assessment of the categorisation of the Pridnestrovian conflict, focusing on the role of the Soviet Union and Russian Federation, and the consequent implications for the application of international humanitarian law

Breaking New Ground in Germany: Work Visa and Labour Law Aspects

[Excerpt] The purpose of this booklet is to provide a summary of the laws and procedures applicable to anyone who enters Germany and takes up employment. It does not explore all issues in detail.The law is correct as of April 1, 2006

Breaking New Ground in Hungary: Summary of Selected Provisions of the Hungarian Labour Legislation

[Excerpt] Hungarian labour law has gone through significant changes in the last decade and become one of the most developing areas of Hungarian law. Since the end of the communist regime, the labour law legislation has had to cope with the challenges of the new social and economic system. As a result of Hungary’s accession to the EU in 2004, Hungarian labour law has been almost fully harmonized with the applicable EU laws. Employee protection rules, the general principle of anti-discrimination work force lending, and provisions concerning working from home have also become part of the Labour Code

Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy

Analyzing a conflict of laws requires thinking both about the scope of potentially applicable law and about priority, or choice, among potentially applicable laws. The Restatement (Second) of Conflict of Laws, published in 1971, contains little guidance on how, or in what order, courts are to address these two inquiries. The draft Restatement (Third), in contrast, differentiates clearly the respective roles of the two analytical elements. It characterizes the resolution of a choice-of-law question as a two-step process. First, the scope of the relevant states’ internal laws must be determined, in order to ascertain which states’ laws might be used as a rule of decision. Second, if more than one state’s law might be used as a rule of decision, and those laws conflict, it must be decided which law is given priority. The draft defines “internal law” to include restrictions on the geographic scope of the law. However, there are two questions the draft does not answer clearly. First, is the definition of internal law meant to include only express restrictions on scope? Second, absent explicit indications of legislative intent, how is the scope of a law to be determined? In particular, should courts employ a presumption against the extraterritorial application of state law? This article begins by analyzing the role of the presumption against extraterritoriality in supplying implied restrictions on the scope of law. It considers the role of the presumption in both international and interstate conflicts of laws, and argues that the Restatement (Third) should differentiate clearly between those two contexts. It then turns to the question whether geographic scope restrictions should properly be considered part of a state’s internal law. The paper analyzes that question through the lens of a common problem: a contract dispute involving a transaction or event that falls outside the scope of the law chosen by the parties to govern their agreement. On the basis of that analysis, it concludes that forthcoming sections will need to address the implications of the draft’s categorical treatment of legislative scope