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Unmasking some challenges associated with the enforcement of issue estoppel in South African commercial-related disputes with reference to Prinsloo NO v Goldex 15 (243/11) [2012] ZASCA 28 (28 March 2012)

Author(s): Howard Chitimira,Tapiwa Victor Warikandwa / Language(s): English Issue: Special/2018

Estoppel is generally aimed at promoting equity and fairness in litigation by preventing a person (asserter) from resiling or asserting something contrary to what was implied by a previous action, conduct or statement of that person or by a previous pertinent judicial determination regarding such action, conduct or statement. Accordingly, issue estoppel could be defined to include instances where a person is prevented from relitigating or raising a particular issue in a cause of action that was previously decided by afinal judgement of a competent court between the same parties in future cases that have a different cause of action involving such parties. In other words, res judicata prevents there-litigation of a dispute that was previously decided by a final judgement of a competent court between the same parties (idem actor) or persons (eadem persona) for the same relief, thing or right (eadem res) on the same ground or same cause of action (eadem causa petendi) in future cases involving such parties or their privies. Issue estoppel and res judicata are closely interrelated. For instance, both issue estoppel and res judicata have similar requirements. Nonetheless, issue estoppel and res judicata are relatively different intheir application. Accordingly, issue estoppel may only be employed as a defence in appropriate instances where it is justifiable for the court to dispense with the strict application of the requirements of res judicata. Having said this, it must be noted that issue estoppel and res judicata have been confusingly and inconsistently employed in many South African cases to date. Such confusion is mostly found in relation to the relaxation of the three-fold requirements of res judicata and the application of issue estoppel. Given this background, this article exposes certain challenges that are associated with the practical enforcement of issue estoppel in South Africa with reference to Prinsloo NO v Goldex 15(243/11) [2012] ZASCA 28 (28 March 2012).

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Competition versus cooperation – new approaches on the energy market considering aspects of competition law

Author(s): Adrian D. Tanţău,Ana-Maria Iulia Şanta / Language(s): English Issue: 17/2018

The common energy policy of the European Union is a current topic on the agenda of European institutions, reflected in package “Clean Energy for All Europeans”, proposed by the European Commission. Despite several harmonization attempts, the consensus needed for a common policy and for an Energy Union has not been reached yet. One possible element why we still do not have a common energy market is the lack of competition in the energy sector. In this context, the present research paper analyzes to what extent competition can be a key-factor in ensuring the modernization of the energy sector. Aspects of competition law which are relevant for building a common energy market are highlighted in the present research paper. Furthermore, the present article raises the question how important cooperation is, searching the proper balance between competition and cooperation. The present article uses an interdisciplinary research method, combining the analysis of primary and secondary European law, of legal instruments and provisions, considering the teleological method, with the assessment from a business and economics point of view. Case law and case studies from Member States of the European Union provide best practice models for the energy sector and present an international comparative perspective.

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Příkazní smlouva, Smlouva o zprostředkování, Smlouva komisionářská

Author(s): Karel Marek / Language(s): Czech Issue: 2/2017

Agency agreement with the agent undertakes to procure a matter of principal. The agent will leave the principal all the benefits of Affairs. The provision of Section 2430 through 2443 Civil Code shall apply as appropriate to cases involving an obligation to arrange a certain matter at another person ́s expanse under other provisions of this Act, unless these provisions indicate otherwise. The Brokerage contract, the broker (intermedialy) undertakes that leads to a particular contract conclusion with a third person, and the lead is the provider agrees to pay a Commission. Under a commission agent's agreement, the commision agent undertakes to arrange certain business matters for the principal in their own name but at the principal's expense, and the principal undertakes to pay them a commision.

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Taxa de clawback. Context și reglementare (I)

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Taxa de clawback. Context și reglementare (I)

Author(s): Gabriela Dănilă / Language(s): Romanian Issue: 3/2018

The clawback tax is a parafiscal tax introduced in the Romanian tax system in 2009 being subsequently “refined” by a self-regulation in 2011 (Government Emergency Ordinance no. 77/2011) in an economic context characterized by an acute financial crisis, the state being forced to find new ways to support the costs of the public health system. This tax would be paid quarterly by every medicines producer so they contribute directly to the health budget financing with a percent from the profit margin obtained by commercializing compensated medicines which exceeded the amount allocated by the national scheme from the National Insurance Fund.

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THE COMMISSION CONTRACT IN THE PUBLIC PROCUREMENT SYSTEM

Author(s): Ana-Maria Gaspar / Language(s): English Issue: XVIII/2019

This article aims at making an incursion in the field of public procurement, an area of interest in the practice of both contracting authorities and economic operators.The entry into force of the new legislative package at both European and national levels has generated a series of contradictions in the specialized practice, and on the background of these contradictions the contracting authorities interpret a legal provision differently, which can be detrimental to the community.By this article we have aimed to underline the importance of concluding a commission contract by the contracting authorities and to show why the law of public procurement should be modified so that such a contract could be concluded.

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Comparaţie între dispoziţiile Legii societăţilor şi ale Codului civil privitoare la capitalul social

Author(s): Smaranda Angheni / Language(s): Romanian Issue: I/2013

The provisions of the New Civil Code are the common law regarding the members’ contributions in the framework of society, in general. Representing the common law, of course, there are legal rules, rules of principle. Thus, in art. NCC 1883, the legislature provided contributions scheme, distinguishing between companies with legal personality, in which case, the amount entering the assets of the company, and companies without legal personality, where contributions became co-ownership partners, unless expressly, associations agreed that contributions go into common use. All contributions form registered capital, legal and economic concept that has to be analyzed both in the context of the Civil Code and in terms of company law, now Companies Act (no. 31/1990).

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Administratorul special în procedura insolvenţei

Author(s): Carmen Pălăcean / Language(s): Romanian Issue: I/2013

Law no. 85/2006 defines the special administrator as appointed representative by the general meeting of shareholders / associates debtor's legal to carry on, in the name and on behalf of the debtor, acts of management necessary in periods of proceedings when the debtor is allowed to manage work and represent in case the interests of shareholders / associates during the period in which the debtor was raised the right of administration. The law does not stipulate any condition that must meet the person who acquires special administrator quality. As a result, may be designated as such, any natural or legal person associated or non-associated member of the governing bodies or not, whether insolvency practitioner other than the administrator or liquidator appointed in the case. Thus, in this function may be assigned one of the existing operators, or may be nominated a specialist in crisis situations.

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Politica legislativă în domeniul concurenţei. Noi perspective în reglementarea naţională şi europeană

Author(s): Diana Ungureanu / Language(s): Romanian Issue: I/2013

As European Competition Commissioner Neelie Kroes acknowledged in a public speech, both consumers and traders lose millions of euros every year as a result of violation of competition rules. These individuals are entitled to an efficient system that complements the enforcement of competition policy by public authorities.Facilitating the introduction of actions for damages for the violation of competition rules will not only strengthen the enforcement of competition policy but will make it more accessible for consumers and traders who have suffered losses as a result of the infringement of competition rules to be able to cover them.The European Commission has analyzed the conditions under which parties may bring actions for damages before the courts of the Member States for breach of competition rules.In most Member States, actions for damages are extremely limited, with competition policy being applied mainly by competition authorities.In December 2005, the European Commission published a Green Paper and a working document on actions for damages for breaches of EC competition rules.In April 2008, the White Paper on damages actions for breaches of the EC competition rules was adopted with a view to obtaining in each Member State the minimum effective protection of the right to compensation for victims under Articles 101 TFEU and 102 TFEU, as well as conditions of equality and greater legal certainty within the European Union.

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Consideraţii privind natura juridică a contractului de consumaţie

Author(s): Camelia Spasici / Language(s): Romanian Issue: I/2013

The contract is based on consuming the most important institution of civil law, namely the contract. Consumption contract is subject of dispute in the literature, especially in terms of its legal nature.The question is whether the contract doctrine of consumption is legal operation as understood in civil law contract or is a new concept. Answering this question under a contract consummation outstanding views is not only a legal institution, a legal instrument goal, and not an agreement within the meaning of civil law. This type of contract is not present only as a legal instrument of submission of legal operations.After consulting several opinions on the legal nature of the contract consuming conclusion reached is that the contract can be found only in the form of a special contract (a sale, a loan, a lease, etc.) in which parts are professionals and consumers, and that apply for special provisions. So we can not talk about a contract namely consumption, only about a sale of consumption.

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Politica legislativă în domeniul societăţilor (foste “comerciale”) – privire critică

Author(s): Cătălin Oroviceanu / Language(s): Romanian Issue: I/2013

The current article aims to briefly explore the manner in which the Romanian legislator chose to behave in regulating companies. Besides the new terminology, the article presents, on the one hand, the deficiencies of the normative process with respect to companies and, on the other hand, the lacks of the normative acts, deriving from the wrong or insufficient understanding of companies by the legislator.

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Dreptul preferenţial de subscripţie al acţionarilor la majorarea capitalului social

Author(s): Alexandra Gabriela Rolea / Language(s): Romanian Issue: I/2013

Nowadays, private investors are confronted with serious financial challenges. Therefore, business decisions have to be made quickly, however taking into consideration the relevant legal provisions and their long-term implications on the company that they run. Frequently, an amendment of the company's articles of association is required, whether there is an increase or reduction of the registered capital, an alteration of the company’s objects clause or legal status, a merger or a downsizing, etc. The increase of the registered capital through new contributions or by compensating the liquid and matured claims on the company with its own shares requires that the shareholders' preferential right to subscribe the newly issued shares is observed and restricted or suppressed only under the mandatory provisions stipulated by Company Law and Capital Market Law. Any resolution of the Extraordinary General Meeting of Shareholders or of the delegated administrative or management body on capital increase made in violation of the preferential right of subscription is annullable. Consequently, the topic of this article is extremely relevant for both the juridical and economic doctrine and for a lawful corporate governance. In dealing with the above-mentioned issues, the author begins with the notion and legal characters of the preferential right of subscription, its holders, the price and period within which the right may be exercised. Following this, the study examines the legal consequences of the exercise of the right and its withdrawal or restriction under the relevant legal provisions. The article also refers to its trading inside or outside a regulated market and to the special situation of the privatization of the company. Finally, a last short section of the paper is dedicated to the legal action in annulment of the resolution on capital increase made in violation of the shareholders' preferential right of subscription. The conclusions of the study list the main circumstances in which an in-depth knowledge of the statutory provisions on this topic is necessary to both management bodies and shareholders of the company.

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Transferul de întreprindere – de la principii legale la transpunere practică

Author(s): Olguta-Dana Totolici,Luiza-Adriana Tomesc-Dinu / Language(s): Romanian Issue: I/2013

The Directive 2001/23/EC was transposed into national law by Law no. 67/2006. Although the Romanian law broadly follows the basic principles of the Directive, the transposition was not very clear, leaving room for interpretation and raising practical difficulties upon the implementation. In the absence of a relevant case law of the Romanian courts, the practical clues can be obtained from the case law of the European Court of Justice.The most relevant aspects concerning the practical implementation refer to the qualification of an operation as transfer of undertaking, the transfer to the transferee of the transferor’s rights and obligations arising from the individual employment contracts of the transferred employees, and/or from a collective bargaining agreement applicable at the transferee level at the transfer date, and the prohibition from dismissing the employees on the ground of the transfer itself.With reference to the first issue Law no. 67/2006 does not take over the Directive’s definition of an operation as transfer of undertaking, but gives a much more restrictive definition thereof, and thus entails the recourse to the criteria established by the European Court of Justice in order to ascertain whether a given transaction can be regarded as a transfer or not.With reference to the second one, neither the Law no. 67/2006 nor the Directive offer many clues pertaining to how to treat the particular cases of transfer of rights and obligations, and the compliance with the provisions of the collective bargaining agreement. The specialized literature has attempted to offer a few solutions, however these will be ultimately established by the case law, which at this time is scarce and does not always offer a correct interpretation, and consistent with the Directive.The third matter is, in its turn, controversial and difficult, and although there are some considerations of the European Court of Justice that might offer guidance, the matter will be always susceptible of interpretations in the favor of reintegration and transfer of the dismissed employee, without certain evidence referring to the economic arguments having underpinned the dismissal.

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Aspecte teoretice privind noţiunea de consumator în legislaţia română

Author(s): Mihaela Georgiana Iliescu / Language(s): Romanian Issue: I/2013

This study aims to examine the concept of "consumer" in the light of existing legal definitions mainly in Romanian law, in order to crystallize the scope of this concept which, unfortunately, is susceptible to various interpretations of doctrine. The importance of this analysis is obvious, clarifying aspects of incomplete or unclear on the meaning of the concept of the consumer being the answer to general practitioners and theorists alike: Who is the beneficiary of law belonging to this new branch of law - for the consumer? A single answer to this question will certainly lead to a correct application of regulations specific to the consumer.

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Asocierea în participație potrivit noului Cod civil

Author(s): Smaranda Angheni / Language(s): Romanian Issue: II/2014

Until the repeal of the Romanian Commercial Code of 1887, repeal made by Law no. 287/2009 for the enactment of the New Civil Code, the legislator in art. 251- 256 of the Commercial Code regulated the joint venture operation, from which resulted without any doubt that this legal transaction had a commercial nature. Thus, a trader or a commercial company granted one or more persons or even a company participation to the benefits or losses generated by one or more transactions or even to the whole commerce activity (art. 251 Commercial Code). Due to the fact that joint ventures didn't acquire legal capacity thus didn't have the status of legal subject distinctive of the legal capacity of each associate, this legal transaction was embraced by traders being common in their activity, named either "association contract" or "joint venture contract" or even "collaboration contract"1. Clearly, when the contract wasn't named "joint venture contract" and the legal ground wasn't indicated, the courts, depending on the content of the contract, established from case to case, its legal ground2. The arguments on which this conclusion stands are, firstly, of systematic interpretation, of ordering (setting) the legislative texts and, secondly, according to their content. Currently, the Civil Code in art. 1949-1954 regulates the joint venture transaction, text that is to be completed with art. 1881-1889 Civil Code in which are regulated the general provisions in the matter of the association contract.

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Consideraţii asupra arbitrajului internaţional. Noua reglementare în dreptul român

Author(s): Carmen Pălăcean / Language(s): Romanian Issue: II/2014

Arbitration has represented a modality of solving the civil law disputes since Antiquity. Beginning with the 20th century, arbitration has become the preferred form for solving the disputes deriving from the international trade operations. The disputes are submitted to be solved, according to the parties’ agreement, to some arbitrators designated for certain cases or to some permanent institutions of arbitration, which have the duty to judge the dispute and to pronounce a decision, which the parties commit to execute. The insertion in a contract of the arbitration clause entitles the interested party, in case of dispute, to ask for its resolution by the means of arbitration, being excluded thus the competent courts.

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Aspecte practice privind controlul de legalitate exercitat de judecătorul sindic în procedura insolvenței

Author(s): Cătălina Georgeta Dinu / Language(s): Romanian Issue: II/2014

The insolvency proceeding is a judicial procedure which is currently regulated by Law no.85/2006. To conduct this special procedure the legislature has determined that it is applied by the procedure, which is the bankruptcy judge, receiver, liquidator and the courts. Bankruptcy judge is a magistrate - judge designated to fulfil this function by the leadership tribunal. General substantive jurisdiction belongs, in the first instance, in the insolvency, to the courts, and regarding judicial remedies, it belongs to the courts of appeal. Judgment in the matter of insolvency is represented by two levels of jurisdiction that is the court of first instance, which falls within the jurisdiction of the court and of the bankruptcy judge and the judgment in appeal, as the case falls to the court of appeal. Where the court has established a specialized court - a commercial court, the court of first instance jurisdiction in insolvency matters belongs to this specialized court where the bankruptcy judge exercises this function. General territorial jurisdiction in the matter is drawn by the debtor's insolvency as it is registered in the trade register, at the time of the request for opening of insolvency proceedings. The judicial administrator and /or the judicial liquidator are insolvency practitioners, liberal profession being regulated by Government Emergency Ordinance nr.86/2006. The bankruptcy judge’s duties are strictly regulated by the law of insolvency, exercising exclusive control of legality of acts and operations performed by the judicial administrator and/or liquidator or by the other participants in the insolvency procedure such as special administrator of the debtor, creditors entitled to participate in the insolvency proceedings, the creditors of the debtor, debtor's creditors committee, etc .

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THE RIGHTS AND OBLIGATIONS OF MEMBERS OF THE EUROPEAN ECONOMIC INTEREST GROUPING

Author(s): Carmen-Nicoleta Bărbieru / Language(s): English Issue: III/2015

Acquiring under the terms laid down in the Regulation No.2137/1985, i.e. by the Law No.161/2003 concerning the measures to ensure the transparency in the exercise of the public dignities, of the public positions, and in business, the prevention and sanction of the corruption by a public or private entity, or by a natural person of the membership of an European economic interest group generates for them a number of rights and obligations. These ones, unlike the rights and obligations that arise under a mutually binding contract are not correlative. The rights arising in the person of the European economic interest group members following the acquisition of a group membership are both non-patrimonial nature rights and patrimonial ones. Regarding the obligations of the group members they are specific obligations of membership of a legal structure, and obligations to third parties, too.

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IS THE VIRTUAL GOODWILL A LEGAL REALITY OR NOT?

Author(s): Mădălina Irena Voiculescu / Language(s): English Issue: III/2015

The domain name and the web site represent the adress, or better said the shop window of any cyber-trader. These elements make the trader visible and also help him attract clients, by using the electronic commerce (e-commerce). Knowing that, can we take into consideration a trade fund (goodwill) as far as the cyber-trader is concerned? If the answer is affirmative, what are its elements? As far as the clientele is concerned, it is traditionally considered the key element, the essence of goodwill, as it reflects in the trader’s turnover. Without this element, any goodwill is out of the question, we can only find isolated elements which are not connected. In order to consider any cyber-trader as having a virtual goodwill, we should first check the existence of a clientele, and after we should also determine whether this clientele belongs to the trader that chose the internet as a trade market (space). Taking into consideration the electronic commerce, the nature of goodwill and its elements, like the clientele or the website, is complex, and it requires both protection and freedom.

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CONTROVERSIAL ASPECTS OF THE ADMINISTRATOR’S DUTY OF CONVENING A GENERAL MEETING OF SHAREHOLDERS AND THE CONSEQUENCES OF BREACHING IT. SOLUTIONS OF JUDICIAL PRACTICE

Author(s): Carmen Todică / Language(s): English Issue: III/2015

Starting from the ambiguous provisions of the Companies Act no. 31/1990 regarding the obligation to convene the general meeting of shareholders, our study captures some controversial issues arising in judicial practice regarding the date of convocation, the place of convening, who initiated the convening and the competent body to perform it as well as the content of the convener, initiating the consequences of not complying with the obligation-civil and penal liability of the administrator, as well as the wrong solution issued by the courts in cancelling the decision of the general meeting, in the context of the lack of a legal text containing expressly such a sanction.

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THE APPLICATIONS OF UNPREDICTABILITY IN THE MATTER OF SECURITIES

Author(s): Aida Diana Dumitrescu / Language(s): English Issue: III/2015

An apparently new legal institution, “ unpredictability” supports multiple applications, including applications in the area of securities, applications who, by their impact on the individual, but also on the business environment in its entirety, are of great interest for national economic security.

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