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Extension of Arbitration Clauses over Non-signatories

Author(s): Slavomir Halla / Language(s): English Publication Year: 0

Consent, the final frontier. International commercial arbitration is deemed to be a dispute resolution mechanism embedded in consent of the parties involved. Presentation of such a mutual understanding is done through an arbitration agreement. Therefore, it is often quoted that the arbitration is a creature of such a contract. However, the aim of this paper is to analyse whether its contractual, indeed consensual, nature is the only element which the courts use to identify the subjects who may compel or must be compelled to arbitrate disputes, or whether they employ other considerations as well.

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The Interpretation of Contracts in ICC Arbitration

Author(s): Pavlína Janečková / Language(s): English Publication Year: 0

In international commercial disputes it could be more difficult to determine the real and common will of both parties by reference to a single applicable national law (especially if there was no choice of law). In arbitration there is a larger space for the approach different from the approach of the state courts, because arbitrator’s position is different from that of state courts, which are bound to apply the conflict of laws rules. Opposite to that the international arbitrator often does not have lex fori and he can apply a system of rules different from the national law which would be applied according to the conflict of laws rules.

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EA Order – A Powerful Tool or Just a Piece of Paper?

Author(s): Miloslav Kabrhel / Language(s): English Publication Year: 0

The ICC Rules underwent several changes with their 2012 amendments. One of them are the emergency arbitrator provisions which provide for a whole new type of interim measure – the EA order. As it is a new way of obtaining interim measure, its exact legal status remains unclear, especially with regards to its possible enforcement under the New York Convention or national legislation. Therefore, this paper will firstly address the issue whether the EA order is – as suggested by several authorities – a specific type of contract, or can be considered a judicial decision.

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Pre-contractual Liability and International Commercial Arbitration

Author(s): Tomáš Kozárek / Language(s): English Publication Year: 0

Pre-contractual liability (culpa in contrahendo) is a challenging and demanding institute of law by itself. It is not recognized in every legal order in the world and the construction of it can vary across nations. This situation can become even more complicated, when we start to think about pre-contractual liability in connection to international commercial arbitration. Is it even possible to solve the problem of existence of the pre-contractual liability in arbitration? In case of positive answer, what is subsequently the applicable law? The aim of this paper is to find the answers to these questions with the help of ICC awards database and available literature.

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On Participation and Non-participation of Third Parties in Arbitration under Substantive Law Rules

Author(s): Bartłomiej Panfil / Language(s): English Publication Year: 0

The paper deals with mechanisms well-established in civil litigation which may face the real obstacles in arbitration due to its contractual nature and its implications. Third party joinder and intervention are procedural mechanisms which have very important goals ensuing from substantive law. Thus, their application shall be made with their consequences borne in mind. The author focuses on third parties participation in arbitration in capacities other than parties to it, i.e. side intervenor or similar and presents some remarks on third party notice of arbitration and on substantive law provisions providing an obligation to inform third person about the very fact of a dispute and its resolution.

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Rediscovering Competence – competence in Latvia: International Impact

Author(s): Liene Pierhuroviča / Language(s): English Publication Year: 0

The 28 November 2014 judgment of the Constitutional Court of Latvia has re-defined the notion of competence – competence of arbitral tribunals in Latvia and the division of jurisdiction between state and arbitration courts in disputes regarding the effect of arbitration agreement. The challenge of arbitration agreements at state courts, which until the judgment was virtually impossible, has now been given the green light. This marks an important step ahead towards internationally settled standards for the Latvian legal regulation of arbitration which has continually been criticized for lack of adherence there to.

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Investor´s Nationality as a Condition Ratione Personae in International Investment Arbitration under ICSID Convention

Author(s): Soňa Ondrášiková / Language(s): English Publication Year: 0

This paper focuses on exploring how nationality of an investor (either natural or legal person) plays a crucial role in establishing ratione personae jurisdiction of arbitration tribunal in investment disputes. The paper examines two current challenges in assessing the jurisdiction ratione personae: i) specific cases when an investor (natural person exercising effective control in the investment structure) is holder of nationalities, one of them being a nationality of a host state and ii) the so-called nationality planning, which refers to planning a structure of a legal entity (ownership and shareholder structure) so that the entity can benefit from the most suitable investment protection regime.

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Resolution of Cross-border Disputes between Consumers and Financial Services Providers

Author(s): Katarzyna Górecka / Language(s): English Publication Year: 0

Legal issues of financial services are distinctly unclear for most consumers. Measures that are adopted by the European Union in the area of financial services are not always sufficient to prevent consumers from disputes. Apart from regulating minimum standards of the offered services or providing consumers with protection against unfair terms in financial contracts, there is another challenge. What consumers also need is to ensure effective cross-border alternative dispute resolution. While contracts with providers from another Member State are getting more and more popular because of freedoms of internal market, consumers may still have problems with pursuing their claims in case of dispute. It is possible to overcome this problem due to cross-border initiatives inter alia FIN-NET.

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Online Dispute Resolution and the Latest Development of UNCITRAL Model Law

Author(s): Pavel Loutocký / Language(s): English Publication Year: 0

The influence of modern technologies (especially of the Internet) has been enormous in last two decades. It had crucial impact mainly on the swift growth of cross-border electronic commerce. Traditional judicial mechanisms were unable to offer proportionate solutionto deal with e-commerce disputes. Such situation had opened up an area for Online Dispute Resolution. Online Dispute Resolution rules are however being developed ad hoc recently. The necessity to unify this shattered area was foreseen by the UNCITRAL which had charged Working Group III with creation of the model law.

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Evidence Taking in International Commercial Arbitration: A Clash of Legal Cultures

Author(s): Slavomir Halla / Language(s): English Publication Year: 0

Taking of evidence represents a crucial step in any legal proceeding. Nation allaws on procedure commonly contain a detailed list of rules relating to evidence taking and their evaluation. However, if one considers international commercial arbitration such a list does not exist. Among various reasons, one is simple a different point of origin when the court or tribunal assesses evidence and the scope of its taking.

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Case Law of the National Courts Regarding the “Non-signatories”

Author(s): Miloslav Kabrhel / Language(s): English Publication Year: 0

The notion of “non-signatories” has been recently heavily discussed in the area of international commercial arbitration. The aim of this paperis to analyse selected case law of the national courts regarding this topic and to describe the approach these institutions took to it during the recognition and enforcement proceedings.

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European Public Policy and International Commercial Arbitration

Author(s): Iva Šimková / Language(s): English Publication Year: 0

European public policy could be described as a summary of core values of EU law. It is a legal category derived mostly from case law of the Court of Justice. The exact determination of European public policy still remains an open question. According to CJEU case law European public policy creates a part of national public policies of Member States and needs to be considered while annulling and refusing recognition of arbitral awards.

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Book X ("Trusts") of the Draft Common Frame of Reference (DCFR): subject of doctrinal discussions and model of inspiration for the legislator of the Republic of Moldova

Author(s): Irina Digori / Language(s): English Publication Year: 0

The Draft Common Frame of Reference (DCFR) project is a comprehensive work to harmonize the rules of private law in the European area. Although it has not gained legal force at European level, the project has undeniable value for the development of private law and can serve as a model for legislators in different states. This has already happened in the case of modernization of the Civil Code of the Republic of Moldova. For the matter of trusts, in DCFR was allocated a separate book - Book X ("Trusts"), which was the basis for the regulation of the institution "fiducia" in the Civil Code of the Republic of Moldova. The purpose of this article is to analyze the assessments and criticisms that have been brought to Book X of DCFR, but also to assess the extent to which the legislator of the Republic of Moldova has followed the model of these rules. Thus, the discussions in the doctrine regarding the strengths and weaknesses of Book X are revealed, the sources of inspiration of the DCFR authors are analyzed and the way in which the institution of "fiducia" in the Civil Code of the Republic of Moldova follows the DCFR trust model is presented. Some comparative observations are also made with reference to the "fiducia" in the Romanian Civil Code.

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The EU Green Deal and the future of the EU business law - scenarios for legal evolution

Author(s): Oleg Zaichuk,Yuri Zaichuck / Language(s): English Publication Year: 0

The ongoing transition away from fossil fuel presented a number of challenges for the EU and its legal profession. According to the EU official statistics, the EU is on its way toward becoming the first carbon neutral region of the planet. However, even Germany is struggling to generate enough electricity from its renewables and actively pursuing "strategic alternatives". The EU is actively looking into introducing a so-called carbon adjustment on its border to create a level field for its own companies. However, at the same time, the EU is heavily dependent on exporting its goods to the very same countries which actively resist EU's plan to charge the carbon border duty on their ex- ports to the EU while EU's competitiveness and share of the world's trade is slowly but inexorably falls behind the rest of the world. The future of the EU business law and the outcome of the EU green transition depends on the speed of the technological progress which is highly uncertain. It is this evolution of technology which would determine the future of the EU business law whether EU's political actors accept it or not.

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Term of office as an indicator of independence of the antitrust authority in the implementation of the ECN+ Directive: experiences of Polish law and of the Polish antitrust authority

Author(s): Rafał R. Wasilewski / Language(s): English Publication Year: 0

Whether in the European Union or elsewhere in the world, there is no universal model an antitrust authority could be patterned against. Instead, administrative, judicial and mixed bodies are present. For the proper performance of the functions entrusted to them, it is necessary to ensure that these bodies remain free from political influence. The need for such independence of antitrust authorities is clear from the ECN+ Directive, which Member States are required to implement. In the article, an attempt was made to assess whether the provisions of the ECN+ Directive introduce specific requirements as to the term of office for officeholders in antitrust bodies and examine what solutions have been adopted to this end in Polish law. The Polish antitrust authority is the President of UOKiK, which is currently an office without term. However, in the course of implementing the ECN+ Directive, different solutions have been designed, establishing that this authority should indeed operate against a fixed-term model. On the basis of historical legal acts, current normative acts, draft bills and the findings derived from the literature and case-law, the question should be answered whether term of office is an indicator of the independence of an antitrust authority. The research methods adopted to this end are the dogmatic and historical-legal approach.

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Substantial and procedural rules in the perspective of Directive no. 2019/1023 of the European Parliament and of the Council on preventive restructuring frameworks

Author(s): Cristian Drăghici / Language(s): English Publication Year: 0

Since 2011, a series of measures have been adopted by European Union, with the initial purpose to harmonizing of the very specific aspects of substantial law of insolvency, including restructuring, but also regarding the company law. The enforcement of Regulation (EU) 2015/848 on insolvency proceedings aimed solving the conflicts of jurisdiction in cross-border insolvency proceedings and ensuring the recognition of insolvency decisions on the territory of the Union. However, the Regulation did not seek to harmonize the substantial law of insolvency in the Member States. Even though in some Member States, including our country, the Commission's Recommendation was received as a useful proposal to undertake insolvency reforms (adoption of Law 85/2014 regarding the insolvency and insolvency prevention procedures in Romania), it did not succeed in generating uniform changes in all Member States to facilitate the rescue of companies in financial difficulty and to enable entrepreneurs to benefit from a second chance. The Recommendation did not have the expected effects because its partial implementation, even at the level of countries where real reforms have been made regarding the insolvency law. In this context, this study aims at an analysis of insolvency prevention procedures in our country, reported to the Directive of the European Parliament and of the Council, on preventive restructuring frameworks.

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Вътрешните имуществени отношения в едно неперсонифицирано цяло

Author(s): Polya Goleva / Language(s): Bulgarian Publication Year: 0

In Bulgaria, the subject of research were the internal property and non-property relations in the legal entity – departments, companies, non-profit legal entities, political parties and other associations of two or more persons, which the law declares as legal entities, but has not addressed attention to impersonal communities, to associations of people and means with a view to achieving a certain goal (commercial, economic, ideal, political, religious, etc.). There is a gap in our theory that I do not intend to fill, but I intend to establish what is specific in the property relations between the members of this community and whether it can be summarized. Is there anything specific, different in the property relations that arise within an impersonal whole and whether it has an advantage or disadvantage compared to the property relations that exist within a personified whole.

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Търговска сделка VS Административен договор - инструменти за имуществено разместване на блага

Author(s): Zhana Koleva / Language(s): Bulgarian Publication Year: 0

The subject matter of the present study is the commercial transaction, on one hand, and the administrative contract, on the other hand. They are both considered the fundamental instruments for the property transfer of goods. In both cases, the contracting parties are a trader and an administrative body, which gives rise to a dispute. Because in these cases the doctrine debates contract types and applicable law, some contradictory statements are discussed. Based on the philosophy behind the current regulation, the author presents his own vision of the difference between contracts under discussion.

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+Имуществени отношения при сключване на договор за продажба от разстояние

Author(s): Vanya Zhelyazkova / Language(s): Bulgarian Publication Year: 0

The development of modern technologies and the growth of Internet consumption create more opportunities for business and consumers. In today’s digital environment, the increasing importance of distance and off-premises contracts is evident. The transactions between the parties happen without either of them having to meet in person. This article covers issues related to the subject matter, the parties, the property rights and obligations in concluding distance contracts within the European Union and Bulgaria. The article discusses the main legal requirements (content of the contract, scope, mandatory details) and restrictions (administrative penalties, objectives) in the preparation of this type of contract. The different types of contracts for sale and provision of services at distance and their specifics are also presented. The legal framework is presented with an emphasis on consumer protection.

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The Fragrance of Cyber World 2080: A Perfume Forecast

Author(s): Cienna Geunyoung Kim / Language(s): English Publication Year: 0

With COVID-19 causing people to work in a non-face-to-face mode, more of us have become aware of future forms of workspaces: a contactless workspace. With unprecedented methods of human engagement emerging, the perfume industry faces the need to evolve. This paper predicts the developing needs of next-generation perfume consumers and introduces survival tactics perfume businesses should adopt to catch up with the fast-paced changes. This study includes two surveys on 180 working adults. In these surveys, respondents spoke on their pre-pandemic and post-pandemic habits of using perfume, specifically their frequency of perfume use and preference of fragrance products categorized by fragrance type, scent duration, product form, and price. Results revealed that working in an isolated space has increased the liking for lighter scents, short-lived scents, perfume oils, single-use packaging, and lower price over heavier scents, long-lasting scents, fragrances and colognes, bottle packaging, and higher price. It showed from the study that the increased prevalence of private workspaces drove perfume from being a supplement for better social connections to being an investment for relaxation, satisfaction, and higher self-esteem. This paper includes a prototype - a sample “future perfume” - created based on these findings to propose what a perfume product might look like in a neo-workspace. This paper aims to investigate new consumer demand targeting the perfume industry and contribute to research on industrial adaptation and futurology.

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