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Wowerka, Arkadiusz. "Obce przepisy wymuszające swoje zastosowanie. Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 18 października 2016 r. w sprawie C-135/15 Republika Grecji przeciwko Grigoriosowi Nikiforidisowi." Problemy Prawa Prywatnego Międzynarodowego 25 (December 31, 2019): 91–106. http://dx.doi.org/10.31261/pppm.2019.25.05.
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This commentary examines the judgement of the CJEU of 18 October 2016 in case C-135/15 Republik Griechenland v. Grigorios Nikiforidis. The judgement in question concerns the issue of treatment of foreign overriding mandatory provisions under the Article 9(3) of Regulation No 593/2008. This topic is the subject to a great deal of controversy and academic discussion. The ECJ concluded that the mentioned provision must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum, but as not precluding it from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the Regulation. This interpretation is not affected by the principle of sincere cooperation laid down in Article 4(3) TEU. In this respect the judgement of CJEU brings significant clarification on the question, whether a court of the forum can have regard to foreign overriding mandatory provisions, which do not belong to the legal system of the country of performance of the contract on the level of the applicable substantive law. However, there are still questions arising under Article 9(3) of Rome I Regulation, which need to be clarified.
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Cordero Álvarez, Clara Isabel. "Incidencia de las normas imperativas en los contratos internacionales: especial referencia a las normas de terceros estados desde una aproximación europea = Overriding mandatory provisions in international contracts: a special reference to foreign overriding mandatory provisions from a European approach." CUADERNOS DE DERECHO TRANSNACIONAL 9, no. 2 (October 5, 2017): 174. http://dx.doi.org/10.20318/cdt.2017.3870.
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Resumen: Este trabajo analiza algunas cuestiones que plantea la aplicación de las leyes de policía en el ámbito del Derecho contractual de la UE. Por cuanto se refiere a las normas de este tipo de terceros Estados su aplicación resulta significativamente más compleja, en especial si analizamos su tratamiento en el Reglamento Roma I, mucho más restrictivo que su predecesor el Convenio de Roma de 1980. En este contexto la reciente sentencia del Tribunal de Justicia (Nikiforidis) resulta muy relevante, ya que abre la posibilidad a los Estados miembros para tomar en consideración normas de policía de terceros Estados como elemento fáctico en el marco de la lex contractus, sin sujetarla a las restricciones y condicionantes previstos en el art. 9.3.Palabras clave: leyes de policía, normas imperativas, Derecho contractual europeo, Reglamento Roma I, sentencia Nikiforidis.Abstract: This paper addresses some of the issues raised by the application of overriding mandatory provisions, from a European approach. With regard to foreign overriding mandatory provisions, their application is significantly more complex. This approach appears in European Contract Law, particularly regarding the treatment of this issue in the Rome I Regulation, which is much more restrictive than the Rome Convention of 1980. In this context, the recent case law of European Court of Justice (Nikiforidis case) is very significant. Since the judgment gives Member States the possibility to take into account foreign overriding mandatory provisions, as a factual element within the framework of the applicable law to the contract, outside the scope of article 9.3 of the Rome I Regulation.Keywords: overriding mandatory provisions, mandatory rules, European Contract Law, Rome I Regulation, Nikiforidis case.
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Kronenberg, Alexander. "Foreign overriding mandatory provisions under the regulation (EC) No 593/2008 (Rome I Regulation). Judgment of the European Court of Justice of 18 october 2016, case c-135/15 = Leyes de policía de terceros estados en el ámbito del reglamento (CE) No 593/2008 (Reglamento Roma I). Comentario a la STJUE de 18 de octubre de 2016, asunto c-135/15." CUADERNOS DE DERECHO TRANSNACIONAL 10, no. 2 (October 5, 2018): 873. http://dx.doi.org/10.20318/cdt.2018.4409.
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Abstract: The role and treatment of foreign overriding mandatory provisions in international contract law have been subject to academic discussions for a long time. This has not changed with the introduction of Article 9 of the Rome I Regulation. In the judgment discussed in this case note, the European Court of Justice addressed some of the contentious issues in relation to Article 9(3) of the Rome I Regulation. This note examines and evaluates the solutions found by the ECJ and puts them into context. It also points out some questions the ECJ did not discuss; these questions remain open for now but will need to be addressed in the future.Keywords: Article 9(3) Rome I Regulation, foreign overriding mandatory provisions, conflict-of-law level consideration, substantive law level consideration, principle of sincere cooperation.Resumen: El tratamiento de las leyes de policía de terceros estados en derecho de contratos internacionales ha sido objeto de la polémica desde hace tiempo. Esto no ha cambiado con la entrada en vigor del artículo 9 del Reglamento Roma I. Con la sentencia comentada el Tribunal de Justicia de la Unión Europea ha tratado algunas de la cuestiones debatidas respecto al artículo 9.3 del Reglamento Roma I. Este comentario analiza, evalúa y pone en contexto las soluciones encontradas por el TJUE. También aborda las cuestiones que no han sido comentadas por el TJUE; estas cuestiones permanecen abiertas por el momento pero deberán ser examinadas en el futuro.Palabras clave: leyes de policía de terceros estados, consideración en nivel conflictual, consideración en nivel sustantivo, principio de cooperación leal.
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Zachariasiewicz, Maria-Anna. "Metoda unilateralna w prawie prywatnym międzynarodowym. Uwagi na marginesie orzeczenia TSUE w sprawie C-135/15 Republika Grecji przeciwko Grigoriosowi Nikiforidisowi." Problemy Prawa Prywatnego Międzynarodowego 29 (December 29, 2021): 125–49. http://dx.doi.org/10.31261/pppm.2021.29.05.
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The article confronts the unilateral and multilateral methods in private international law. The author first identifies the basic differences between the two. She then moves to describe the instruments and concepts resulting from the unilateral method: the theories of the Statutists in the period between 12th to 19th centuries, the solutions offered by the so called new American school, the method of recognition of private situations crystallized in a foreign legal system, the rules governing the spatial scope of the EU provisions, including the regulations and the directives, and finally the paradigm of the overriding mandatory rules.
The second part of the paper provides a comment to the Nikiforidis case. The author makes a number of critical remarks with respect to the restrictive and rigid interpretation of Article 9(3) adopted by the CJEU. The argument is made that the more flexible and functional approach proposed by the Attorney General Maciej Szpunar in his Opinion should be preferred. Finally, the author makes her own proposition regarding the Nikiforidis case. She advocates a unilateral methodology that rejects the distinction between the overriding mandatory rules of the legis fori, legis causae and these of a third country.
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Surdykowska, Barbara. "Ochrona interesów publicznych w Rozporządzeniu Rzym I w kontekście zróżnicowania standardów pracowniczych w UE." Miscellanea Historico-Iuridica 20, no. 1 (2021): 305–22. http://dx.doi.org/10.15290/mhi.2021.20.01.15.
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The paper refers to the concept of public interest contained in Art. 9 of the Rome I Regulation. The author argues that in the light of the processes taking place on the labor market (such as the digitization of the labor market and employment via platforms) and problems with defining the scope of the directive on posted workers in the context of drivers of international transport, courts may treat national regulations in the field of labor law as overriding mandatory provisions. The main goal of the paper is to draw attention to the need to increase the interest in the doctrine of labor law in the sphere of the potential application of Art. 9 Rome I. With regard to employment issues, a question arises regarding the minimum wage applicable in a given country in conjunction with the issue of the freedom to provide services. The European Court of Justice referred to the issue of ensuring fair remuneration of employees as an important element of the “overriding general interest” justifying the restriction of the freedom to provide services. In the deliberations in the Mazzoleni judgment, the ECJ also emphasized that the application of the minimum wage of the country in which the service is performed may be a disproportionate burden, especially in a situation where the enterprise providing the services is located in the border territory and the work performed in the host country is temporary, short and part-time. An interesting issue is the “translation” of the considerations contained in the aforementioned judgment into the emerging employment through internet platforms. Some background for the above considerations is the fact that in the literature of private international law, among the overriding mandatory provisions, the most frequently indicated are anti-monopoly provisions, in the field of foreign exchange law, regarding the prohibition of import or export of certain goods, but this is also important from the point of view of the paper, more and more often regulations based on a private-law method of regulation. The paper also includes considerations regarding the concept of “public interest”.
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Remien, Oliver. "Commercial Agents, the Directive and European Private International Law." European Review of Private Law 28, Issue 3 (September 1, 2020): 529–39. http://dx.doi.org/10.54648/erpl2020030.
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The protection of commercial agents under Directive 86/653 in international cases raises questions of private international law. Here, several different fact situations are analysed: In, first, the normal single market case where commercial agent and principal both are active in Member States, Article 3 (4) Reg. Rome I assures protection of the commercial agent even where the law of a third country has been chosen by the parties. Where, second, the principal is from a third state but the commercial agent is active in the single market, the European Court of Justice (ECJ) in Ingmar has ruled that the protection according to the Directive applies. Its rules then should be considered as overriding mandatory provisions in the sense of Article 9 Reg. Rome I. Where, third, the protection provided for by the Directive has in Member State law been extended to commercial agents not covered by the Directive, this extended protection according to the UNAMAR judgment of the ECJ may under certain conditions override even the law of another Member State – and the Belgian Court of Cassation has actually decided in this sense. In the specific case, though, the result is odd and apparently helped to oust an arbitration clause. Fourthly, in case of an extra-EU commercial agent and an EU-principal, according to the ECJ case Agro the protection foreseen by the Directive need not necessarily be granted to the foreign commercial agent by the applicable Member State law. This, according to the ECJ, even is the case where the EU-provisions have been transplanted into the legal system of the third state where the commercial agent is active. It is shown that this is very questionable and that the third state rule can – similarly to Ingmar – be an overriding mandatory provision. The restrictive Article 9 (3) Reg. Rome I here poses some problems, which, however, can be overcome. The Belgian Enterprise Court in Ghent in fact used Article 7 Rome Convention
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Alhadidi, Ismaeel. "The Legal Status of the Convention on the Carriage of Goods by Sea in 1978 (Hamburg Rules) before the Jordanian Judge Compared to the French Judge." Jordanian Journal of Law and Political Science 14, no. 1 (March 30, 2022): 147–86. http://dx.doi.org/10.35682/jjlps.v14i1.338.
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This study aims to compare the legal status of the United Nations Convention on the Carriage of Goods by Sea (Hamburg, 1978) (Hamburg Rules) before the Jordanian judge with its legal status before his French homologue. It is illustrated that the Jordanian judge is bound by the provisions of the Convention since his country became a party to it in 2001. Therefore, the Jordanian judge cannot ignore the criteria of applicability prescribed in Article 2 of the Convention. In addition, when the two parties to the contract designate the Convention as a governing law, it becomes applicable ex proprio vigore. While the French judge finds a leeway when called to pronounce on the applicability of the Convention due to the fact that France did not accede to it. That is why he treats it as a foreign legislation. In fact, the French judge does not give efficacity to the Convention except if his private international law does. This happens mainly when the two parties to the contract of carriage of goods choose the Convention as the law governing their contract. Such an agreementcan be construed as a raise of the limits of the responsibility of the carrier and his obligations whose validity is recognized by the French judge’s legislation. Furthermore, the French judge can give effect to the agreement on the basis of the notion of foreign overriding mandatory rules since his private international law allows him to do so.
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Kozioł, Agata. "Glosa do postanowienia Sądu Najwyższego z dnia 23 marca 2016 r., sygn. akt: III CZP 112/15." Problemy Prawa Prywatnego Międzynarodowego 26 (June 29, 2020): 209–21. http://dx.doi.org/10.31261/pppm.2020.26.12.
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The role of art. 57 § 1 of Polish Family and Guardianship Code in proceedings concerning international divorce is disputed and gives rise to many questions concerning its nature. The provision, addressed to the Polish courts dealing with divorce cases, obliges the seized court to rule on fault of spouses in the breakdown of marriage. It may then seem to remain unclear if the court shall apply art. 57 § 1 when the law applicable to divorce does not state for fault based grounds for dissolution of marriage, while the legal order applicable to maintenance obligation between former spouses requires, among other prerequisites, that the fault of the former spouse obliged to alimony is declared in court proceedings.
This paper analyses the judgement of Polish Supreme Court from 23rd of March 2016, in which this issue was raised. The Author rejects the opinion of Supreme Court that the provision in question has a procedural nature. The view, that it constitutes an example of overriding mandatory provision should also be denied. As a provision of double nature: material and procedural, it should be applied by Polish courts as an instrument that enables to rule on fault in all those cases when applicable law provides for fault grounds for divorce; it should be also applied by foreign court deciding on dissolution of marriage when Polish law is applicable.
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Zgrabljić Rotar, Dora. "OVERRIDING MANDATORY PROVISIONS IN CROATIAN PRIVATE INTERNATIONAL LAW." Pravni vjesnik 37, no. 3-4 (December 2021): 81–100. http://dx.doi.org/10.25234/pv/13256.
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Overriding mandatory provisions are mandatory provisions that are applicable in situations with an international element. The author analyses overriding mandatory norms in the European private international law and in the Croatian national private international law. The definition of such norms provided in the 2017 Croatian Private International Law Act is almost a verbatim copy of the definition provided in the Rome I Regulation on the law applicable to contractual obligations. The 1982 Croatian Private International Law Act did not provide for a definition of overriding mandatory norms but it was uniformly accepted in the scholarly interpretations that those types of mandatory norms were accepted by the Croatian private international law system. Moreover, the 1982 PIL Act included a substantive family law provision, which was, in essence, an overriding mandatory provision. However, Croatian courts and practitioners have been reluctant to refer explicitly to an applied norm as an overriding mandatory one. The reasons behind that might be that that the courts were better acquainted with the public policy exception, since public policy was explicitly mentioned in the 1982 PIL Act, as well as in some other legal acts. In addition, the legislator does not explicitly note that a provision is an overriding mandatory one in the provision itself, which leads to the outcome that the courts and other practitioners are burdened with a complex task of interpretation of a provision they think might be an overriding mandatory one. The author aims at providing guidelines to facilitate that task.
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Bisping, Christopher. "THE COMMON EUROPEAN SALES LAW, CONSUMER PROTECTION AND OVERRIDING MANDATORY PROVISIONS IN PRIVATE INTERNATIONAL LAW." International and Comparative Law Quarterly 62, no. 2 (April 2013): 463–83. http://dx.doi.org/10.1017/s0020589313000055.
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AbstractThis article analyses the relationship of the proposed Common European Sales Law (CESL) and the rules on mandatory and overriding provisions in private international law. The author argues that the CESL will not achieve its stated aim of taking precedence over these provisions of national law and therefore not lead to an increase in cross-border trade. It is pointed out how slight changes in drafting can overcome the collision with mandatory provisions. The clash with overriding mandatory provisions, the author argues, should be taken as an opportunity to rethink the definition of these provisions.
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Lee, Phil-Bok. "International Transaction of Cultural Heritage and Overriding Mandatory Provisions - Focused on the Overriding Mandatory Provisions of lex originis -." Korea Private International Law Journal 27, no. 1 (June 30, 2021): 119–71. http://dx.doi.org/10.38131/kpilj.2021.6.27.1.119.
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Migliorini, Sara. "Quest-ce que sont les lois de police? Une querelle franco-allemande après la communautarisation de la Convention de Rome." European Review of Private Law 19, Issue 2 (April 1, 2011): 187–207. http://dx.doi.org/10.54648/erpl2011012.
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Abstract: Article 7(2) of the 1980 Rome Convention provided that nothing in the Convention shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract. The Rome Convention however did not define these 'overriding mandatory provisions'. The absence of a definition gave rise to a controversy between French and German courts. According to the latter, overriding mandatory provisions only protect public interests in a strict sense. However, French courts may consider a provision that exclusively protects the interests of the weaker party as an overriding mandatory provision. The definition of 'overriding mandatory provisions' provided in Article 9(1) Rome I fails to bring any real legal certainty. Since the controversy between the French and German courts essentially relates to the systematic relationship between overriding mandatory provisions and connecting factors protecting a weaker party in the Rome I Regulation, an intervention by the European Court of Justice will be necessary. Resume: L'Article 7(2) de la Convention de Rome sur la loi applicable aux obligations contractuelles laissait au juge la possibilité d'appliquer les lois de police du for, peu importe la loi désignée par la Convention même. Néanmoins, la Convention ne dé. nissait pas la catégorie des lois de police. Chaque juge pouvant appliquer ses propres critères de quail . cation des lois de police, une différence existait entre l'approche française et allemande à cette catégorie. D'une part, la jurisprudence allemande ne quali. ait de lois de police que les dispositions visant à protéger des intérêts strictement publics. D'autre part, la jurisprudence française n'hésitait pas à quali. er les dispositions protectrices des parties faibles comme de lois de police. La dé. nition de 'lois de police' contenue dans l'Article 9(1) du Règlement Rome I ne résout pas cette divergence. En effet, celle-ci découle principalement d'une divergence dans l'interprétation des rapports réciproques entre les lois de police et les critères de rattachement protecteurs des parties faibles. Partant, il revient à la Cour de justice d'intervenir pour trancher cette divergence.
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Żarnowiec, Łukasz. "Wpływ przepisów wymuszających swoje zastosowanie na rozstrzyganie spraw spadkowych pod rządami rozporządzenia Parlamentu Europejskiego i Rady (UE) Nr 650/2012." Problemy Prawa Prywatnego Międzynarodowego 25 (December 31, 2019): 43–65. http://dx.doi.org/10.31261/pppm.2019.25.03.
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Since August 17, 2015 the courts of the Member States of the European Union apply the conflict-of-laws rules adopted in the EU Succession Regulation (EU) in succession matters. From the Polish point of view, this constitutes not only the change of the rules applied for the purposes of determining jurisdiction and the applicable law, but also a new approach to the overriding mandatory provisions.
Contrary to other European instruments of private international law, the Succession Regulation neither uses the term “overriding mandatory provisions”, nor defines its meaning. Nevertheless, in Article 30 the Regulation provides for application — irrespective of the law applicable to the succession under its conflict rules — of the special rules of the State, where certain immovable property, enterprises or other special categories of assets are located, and which — for economic, family or social considerations — impose restrictions concerning or affecting the succession in respect of those assets, in so far as, under the law of that State, they are applicable irrespective of the law applicable to the succession.
The interpretation of this provision cause difficulties. It is not clear whether the concept of the special provisions embodied in Article 30 refers to the concept of overriding mandatory rules, well known in the European private international law, or whether it constitutes an original solution. Another controversial issue discussed in the paper is the relevance of the mandatory rules of the forum or the third State other than those mentioned in Article 30.
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Rodziewicz, Piotr. "Niejednoznaczne podstawy stosowania przepisów wymuszających swoje zastosowanie (przepisów koniecznego zastosowania)." Problemy Prawa Prywatnego Międzynarodowego 24 (June 30, 2019): 169–87. http://dx.doi.org/10.31261/pppm.2019.24.07.
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The article raises issues concerning legal basis for the application of the overriding mandatory rules. In the Polish doctrine there are two opposing concepts in terms of explanation of the legal grounds for application of overriding mandatory rules. Both theories do not have a universal dimension, in the sense that they do not sufficiently explain the basis for the application of domestic as well as foreign overriding mandatory rules, being part of lex causae or coming from a third state. The article presents arguments for and against the possibility of deriving the legal grounds for application of the overriding mandatory rules, with reference to submissions made to that effect in literature. The author makes also an attempt to formulate a concept complementary to the concept of an integrated conflict-of-law rule with the substantive law rule, boiling down to the assumption that the basis for application of overriding mandatory rule is a second degree conflict of laws rule allowing to apply a first degree conflict of laws rule integrated with the substantive rule.
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Siehr, Kurt. "Mandatory Rules of Third States From Ole Lando to Contemporary European Private International." European Review of Private Law 28, Issue 3 (September 1, 2020): 509–22. http://dx.doi.org/10.54648/erpl2020028.
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On 18 October 2016 the European Court of Justice, in the case Greece v. Nikiforidis, decided: ‘Article 9 (3) of the Regulation No. 503/2008 on the law applicable to contractual obligations must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum, but as not precluding it from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the regulation’. Ole Lando already anticipated this development when he dealt with this problem arising under the Rome Convention of 1980 on the law applicable to contractual obligations still in force in Denmark. Harmonization, contract law, European private law, restatements
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Aschauer, Christian, and Lukas Klever. "Overriding Mandatory Provisions and Arbitration: A Cadmean Victory for Commercial Agents?" European Review of Private Law 27, Issue 5 (October 1, 2019): 973–84. http://dx.doi.org/10.54648/erpl2019053.
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In a recent decision, the Austrian Supreme Court declared an arbitration clause invalid in the light of the European Court of Justice’s Ingmar decision since it was to be expected that the arbitral tribunal would not apply articles 17 and 18 of the Commercial Agents Directive. According to the Supreme Court’s reasoning, that is the case wherever the parties have chosen a lex causae for their main contract which does not contain provisions similar to articles 17 and 18 Commercial Agents Directive. In the view of the authors, such understanding of the commercial agents directive is neither required by the principle of effectiveness of EU law, nor is it justifiable under the regime of the New York Convention.
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Berends, André J. "Why Overriding Mandatory Provisions that Protect Financial Stability Deserve Special Treatment." Netherlands International Law Review 61, no. 01 (April 24, 2014): 69–106. http://dx.doi.org/10.1017/s0165070x14001041.
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Goñi Urriza, Natividad. "La ley aplicable a la forma en las donaciones internacionales. En torno a la STSJ Cataluña de 18 marzo 2019 = Applicable law to the form requirements of international gifts. Around the sentence of The High Court of Cataluña of 18 March 2019." CUADERNOS DE DERECHO TRANSNACIONAL 12, no. 1 (March 5, 2020): 586. http://dx.doi.org/10.20318/cdt.2020.5205.
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Resumen: La sentencia del Tribunal Superior de Justicia de Cataluña de 18 de marzo de 2019 resuelve sobre la validez de una donación entre esposos de un bien inmueble sito en Ingarö (Suecia). La sentencia se pronuncia sobre la aplicación al caso del Reglamento Roma I y del desplazamiento del art. 11CC como norma de conflicto aplicable a la validez formal de la donación, tampoco la considera ley de policía del foro.Palabras clave: requerimientos de forma, donaciones internacionales entre esposos, leyes de policía, Reglamento Roma I. art. 11CC. Abstract: The Judgment of the High Court of Cataluña of 18 March 2019 ruled on the formal validity of an international gift between spouses of a land situated in Ingarö (Sweden). The Judgment apply the Rome I Regulation and avoid the application of art. 11CC even as an overriding mandatory provision of the law of the forum.Keywords: form requirements, international gifts between spouses, overriding mandatory provisions, Rome I Regulation. art. 11CC.
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Franciosi, Laura Maria. "The Effects of COVID-19 on International Contracts: A Comparative Overview." Victoria University of Wellington Law Review 51, no. 3 (November 9, 2020): 413. http://dx.doi.org/10.26686/vuwlr.v51i3.6610.
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This article provides a timely consideration of the effect of COVID-19, and legislative measures taken to deal with it, on contractual liabilities. The relationship of COVID-19 events to the defences of force majeure and hardship are investigated by comparative analyses of several countries' laws as well as the issue whether the national lockdown measures can be qualified as "overriding mandatory provisions". The study is of both domestic contracts and international commercial contracts.
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Rühl, Giesela. "Commercial agents, minimum harmonization and overriding mandatory provisions in the European Union: Unamar." Common Market Law Review 53, Issue 1 (February 1, 2016): 209–24. http://dx.doi.org/10.54648/cola2016009.
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Merrett, Louise. "Posted Workers in Europe from a Private International Law Perspective." Cambridge Yearbook of European Legal Studies 13 (2011): 219–44. http://dx.doi.org/10.5235/152888712801752960.
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AbstractCases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.
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Merrett, Louise. "10 Posted Workers in Europe from a Private International Law Perspective." Cambridge Yearbook of European Legal Studies 13 (2011): 219–44. http://dx.doi.org/10.1017/s1528887000000859.
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AbstractCases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.
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Merrett, Louise. "Posted Workers in Europe from a Private International Law Perspective." Cambridge Yearbook of European Legal Studies 13 (2011): 219–44. http://dx.doi.org/10.1017/s1528887000002032.
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Abstract Cases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.
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Yan, Dong, and Yixuan Wu. "The labour disputes of Chinese posted workers in the B&R countries." Employee Relations: The International Journal 43, no. 1 (August 31, 2020): 209–25. http://dx.doi.org/10.1108/er-02-2020-0047.
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PurposeThis study aims to decrypt the efforts made by Chinese people's courts nationwide to protect the rights of Chinese posted workers in the Belt & Road (B&R) countries by investigating labour litigation cases with an extraterritorial application of Chinese labour law (under the “doctrine of overriding mandatory labour rules”).Design/methodology/approachThis study collected all labour litigation from 2014 to 2018 brought forward by Chinese posted workers in Chinese courts against Chinese enterprises regarding the performance of employment contracts in the B&R countries where Chinese labour laws were mandatorily applied under the doctrine of overriding mandatory labour rules. The study adopted a qualitive research approach to analyse the compiled cases to explore their characteristics and effects.FindingsThis study found that the volume of labour disputes in the B&R countries had a somewhat positive correlation to the amount of investment from China. However, this correlation was rather superficial when compared with the correlation to the type of industrial sector (e.g. the construction sector) and to the claim category (e.g. remuneration claims). Moreover, labour disputes in both the B&R countries and China shared a great deal of similarity with regard to their concentration in certain sectors and in certain types of claims. Therefore, mandatorily applying Chinese labour law could be convenient for Chinese workers returning from abroad who seek remedies and could allow Chinese judges to issue affirmative decisions regardless of the territory in which the worker was posted.Research limitations/implicationsThe cases collected by this study were limited to those filed in China by Chinese workers who were hired by Chinese enterprises and sent to work in the B&R countries and did not include those filed in the B&R countries by Chinese posted workers. Future research should therefore attempt to gather a broader range of labour disputes to further clarify the issues and need for labour protection for Chinese posted workers in the B&R countries.Practical implicationsThis study argues that the doctrine of overriding mandatory labour rules is not entirely unproblematic because it might arbitrarily rule out the standards set by foreign labour legislation that could be more favourable to workers or offer them greater protection. Therefore, giving judges a certain degree of discretion is imperative to allow them to apply foreign labour standards when they have been proven to benefit workers.Originality/valueApart from a handful of reports on individual cases, there have been very few empirical studies regarding the general picture of labour protection for Chinese posted workers in the B&R countries. This study has adopted a novel approach to collect information on labour disputes in the B&R countries and to facilitate a qualitative analysis to test the practical implications of the doctrine of overriding mandatory labour rules.
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Pavić, Vladimir. "Bribery and International Commercial Arbitration – the Role of Mandatory Rules and Public Policy." Victoria University of Wellington Law Review 43, no. 4 (December 1, 2012): 661. http://dx.doi.org/10.26686/vuwlr.v43i4.5016.
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Although designed to resolve private disputes, usually commercial in nature, arbitration may nevertheless encounter during its course allegations of impropriety and criminal behaviour. In the context of international commercial arbitration, the most common of those are allegations of bribery. However, tribunals may adjudicate only matters of private law and, should they establish existence of bribery, may draw only civil law consequences thereof. An additional problem in this respect is determining the body of rules that will be applicable in defining the very notion of bribery, since some aspects of bribery are almost universally prohibited, while the others are banned only in certain jurisdictions. In determining the law applicable to the matters of bribery, tribunals then face choice-of-law dilemmas. Each of the public policy techniques (overriding mandatory provisions, international and/or transnational) has its strengths and weaknesses.
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Starzhenetskiy, Vladislav V., and Yana A. Bagrova. "(Anti)Sanctions Clauses in International Commercial Contracts." Zakon 19, no. 7 (July 2023): 123–45. http://dx.doi.org/10.37239/0869-4400-2023-20-7-123-145.
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The article provides analysis of sanctions clauses in international commercial contracts. Such clauses are intended to regulate actions of the parties in the event of sanctions and corresponding legal consequences. In comparison to classic force majeure clauses sanctions clauses have a number of advantages and may serve several interrelated purposes, including securing compliance by the parties with mandatory rules that impose restrictions on certain economic activity, adaptation of the contract to new circumstances in the event of economic sanctions, regulation of termination of the contract, as well as the distribution of risks and costs incurred by the parties in connection with this. The authors explore the structure of sanctions clauses and their provisions, which cause difficulties in practice, diverse approaches to determining the scope of sanctions clauses in the context of extraterritorial sanctions and blocking statutes, different threshold for sanctions risks that activate the clause, spectrum of options to secure adaptation of contract provisions depending on the specifics of the sanctions regimes, standards of due care and endeavours that are expected from parties in the context of sanctions, conditions for termination of contracts and possibilities for the distribution of costs incurred, including the payment of indemnity. The article also discusses validity of sanctions clauses, their relationship with overriding mandatory rules and norms preventing circumvention of the law, considers the risks of asymmetric and disparity provisions. Particular emphasis is placed on the relationship of sanctions clauses with other sections of international contracts, in particular applicable law and dispute resolution clauses.
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Fras, Mariusz. "Overriding Mandatory Provisions in Insurance Law and the Conflict-of-laws Rules in the Motor Insurance Directive 2009/103/EC." Gdańskie Studia Prawnicze, no. 3(60)/2023 (September 15, 2023): 185–95. http://dx.doi.org/10.26881/gsp.2023.3.12.
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This commentary concerns the judgement of 31.01.2019 in the case of Agostinho da Silva Martins (C-149/18), in which the CJEU ruled on the relation of the provisions contained in the Motor Insurance Directive 2009/103/EC of 16.09.2009 to EU conflict-of-laws rules contained in the Rome II Regulation on the law applicable to non-contractual obligations.
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Ungerer, Johannes. "Explicit legislative characterisation of overriding mandatory provisions in EU Directives: Seeking for but struggling to achieve legal certainty." Journal of Private International Law 17, no. 3 (September 2, 2021): 399–420. http://dx.doi.org/10.1080/17441048.2021.1970702.
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Neupane, Suman, and Biwesh Neupane. "Board structure and institutional ownership at the time of IPO." Managerial Finance 43, no. 9 (September 11, 2017): 950–65. http://dx.doi.org/10.1108/mf-07-2016-0187.
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Purpose The purpose of this paper is to examine the impact of mandatory regulatory provisions on board structure and the influence of such board structure on institutional holdings. Design/methodology/approach The study uses unique hand-collected data set of Indian IPOs during the 2004-2012 period after the corporate governance reforms with the introduction of clause 49 in the listing agreements in 2001. Using OLS regression, the paper empirically analyses the determinants of board size and board independence at the time of the IPOs and the influence of such a board structure on shareholdings by domestic and foreign institutional investors. Findings The authors find that complying with mandatory regulatory provisions does not impede firms from structuring their boards to reflect the firms’ advising and monitoring needs. The authors also find that complying with provisions have positive implication for the firm, as firms with greater board independence appear to attract more foreign institutional investors. Originality/value To the authors’ best knowledge, this is the first study to examine the issue in a regime where regulation mandates the composition of the board of directors. The paper also extends the literature on institutional holdings by providing evidence on the impact of board structure on institutional ownership at a critical time in a firm’s life cycle when concerns for endogeneity for empirical investigations are weaker.
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Rammeloo, Stephan. "‘From Rome to Rome’ – Cross-border employment contract. European Private International Law: Intertemporal law and foreign overriding mandatory laws." Maastricht Journal of European and Comparative Law 24, no. 2 (April 2017): 298–322. http://dx.doi.org/10.1177/1023263x17709754.
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To what extent are Greek saving laws, resulting in payment cuts in the public sector (that is employment conditions), capable of overriding the applicable (German) law? A dispute arising from an employment relationship between the Greek Republic and an employee habitually carrying out work in Germany, gave rise to preliminary questions having regard to the temporal scope of EU Regulation No. 593/2008 (the ‘Rome I Regulation’)1 and, closely related thereto, the functional reach of Article 9(3) of that Regulation in respect of ‘foreign’ mandatory laws, in light of the principle of sincere cooperation enshrined in Article 4(3) TEU. An analysis of the Advocate General’s Opinion and the Court of Justice of the European Union’s (CJEU) ruling is followed by critical commentary and suggestions for future EU legislative amendments to the Rome I regime.
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Dickinson, Andrew. "Oiling the machine: overriding mandatory provisions and public policy in the Hague Principles on Choice of Law in International Commercial Contracts." Uniform Law Review 22, no. 2 (June 1, 2017): 402–21. http://dx.doi.org/10.1093/ulr/unx024.
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Ramirez, Laura Hernandez. "Implementation of Human Rights and the Mandatory Precedents in Foreign Trade, Legal Effectiveness: Mexico Case." Archives of Business Research 9, no. 12 (December 24, 2021): 153–64. http://dx.doi.org/10.14738/abr.912.11382.
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We make an analysis of the implementation of human rights and the mandatory precedent in matters of Mexican foreign trade, in an administrative and judicial context in the search for legal effectiveness with constitutional control, highlighting the implementation of human rights contained in treaties commercial, such as access to justice and prompt and expeditious;
We point out a recent case of human rights and foreign trade, with the implementation in the Mexican legal system, of the Free Trade Agreement Mexico United States Canada, before the Supreme Court of Justice of the Nation, as well as a possible proposal before the provisions of its Article 14.D.5, regarding the right of access to prompt and expeditious justice in investment matters, and avoiding the resolution of controversies before international arbitration panels that have been questioned.
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Akimova, I. V., K. B. Simakova, and A. A. Anpilogov. "Concretization or broader interpretation of the law? (New approaches to state regulation of foreign investment in strategic sectors of the economy)." Russian competition law and economy, no. 2 (June 30, 2020): 90–94. http://dx.doi.org/10.32686/2542-0259-2020-2-90-94.
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The article explores the new approaches of the Federal Antimonopoly Service to the application of certain provisions of the law on the control of foreign investment in business entities of strategic importance.The question of the correlation of the concepts of “control” and “the possibility of blocking decisions” was examined, as well as the problems of legal uncertainty re mandatory preliminary approval of a transaction in which a foreign investor plans to purchase shares of a business entity that is related to the strategic type of activity.The authors concluded that it is necessary and advisable to classify a business company as strategic based on legislation by its implementation of a type of activity that is adjacent to strategic.
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Novikov, Vladislav S. "Trusts under Civil Law Jurisdictions: Current Legislative Framework, Legal Doctrine and Case Law." Zakon 20, no. 3 (March 2023): 182–203. http://dx.doi.org/10.37239/0869-4400-2023-20-3-182-203.
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As of today, some civil law jurisdictions have adopted domestic trust legislation acknowledging a trust as a form of ownership. Several civil law jurisdictions have recognised foreign trusts in recent years as a regulatory and tax matter, in order to find and document the offshore assets of their taxpayers and other jurisdictions have adopted the Hague Trust Convention on the Law Applicable to Trusts and on Their Recognition 1985, simplifying the construction and recognition of foreign trusts, because the Convention imports specific conflict of law provisions into the law of the countries that have adopted it. In the other civil law jurisdictions that have not adopted the Trust Convention, the election of law made by the settlor will generally be recognised if their laws authorise an election. Notwithstanding the fact that an election of a foreign law or a foreign forum is made in the trust deed, the court is going to turn to its domestic laws and among other things to its own conflict of law provisions to determine the validity of the election made. The construction and recognition of foreign trusts will rely uniquely on case law in a jurisdiction where there is no conflict of law provisions for trusts. In all civil law jurisdictions transfers in trust are generally void to the extent they deprive an heir of her forced share or a spouse of her share in a community property, if the trust violates rule against perpetuities or any other mandatory provision of domestic legislation. In light of the aforementioned, the aim of the article is to show that сivil law jurisdictions search for new ways to afford the benefit of trusts in a variety of settings.
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Rebrysh, Bohdan, and Natalia Maskayeva. "International Universal Unification of the Conflict-of-Law Regulation of Cross-Border Unfair Competition." Russian Law Journal 7, no. 2 (May 30, 2019): 101–27. http://dx.doi.org/10.17589/2309-8678-2019-7-2-101-127.
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This article puts forward that there are diverse and sound grounds preventing the universal treaty regulating comprehensively the issues of legal protection from crossborder unfair competition by substantive norms from being worked out in the near future. The development of the universal unification of the conflict-of-law rules on the law applicable to the private relations arising out of unfair competition as a possible alternative is also proposed and substantiated. The authors give some possible reasons for the absence of such a treaty and demonstrate the results that have been achieved so far in this field. The concept of the Draft of the relevant Convention is drawn up. The conclusion is made that the latter needs to be centered on the lex mercatus as a single connecting factor (due to its advantages of predictability, account of the interests of the state where the effected market is situated etc.). Furthermore, the Convention should not provide for party autonomy, should set forth the detailed rules for the legal characterization of the basic terms of the Convention, including the scope of the applicable law as well as the public policy clause and the norms on the overriding mandatory provisions.
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Barreda, Naivi Chikoc. "Entre la lex causae et les lois de police de la lex fori: quelle alternative pour la protection du logement familial dans le règlement « régimes matrimoniaux »?" European Review of Private Law 27, Issue 3 (June 1, 2019): 583–615. http://dx.doi.org/10.54648/erpl2019029.
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The law applicable to the matrimonial property regime under Regulation 2016/1103 governs all the property relations between the spouses and with regard to third parties including the rules providing for the protection of the family home. The choice of law rules of the Regulation are based on the principle of party autonomy and on the need to ensure the predictability of the applicable law, to the detriment of the links connecting the current situation of the spouses with the law intended to govern it. Against the background of an increasing cross-border mobility, the connecting factors of the objective conflict rule, fixed at the time of the conclusion of the marriage, prove to be unsuitable with regard to the protective rules of the family home whose implementation would command the application of the law having the closest connection to the real situation of the spouses. In this context, the exceptional mechanisms consisting in the escape clause and in the overriding mandatory provisions of the lex fori are also inadequate to ensure the effectiveness of the protective measures of the family home under the lex situs.
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Kachmazova, A. V. "FOREIGN EXPERIENCE OF CRIMINALIZATION OF ACTS, RELATED TO NON-EXECUTION OF COURT ORDERS." Law Нerald of Dagestan State Universit 34, no. 2 (2020): 128–32. http://dx.doi.org/10.21779/2224-0241-2020-34-2-128-132.
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A comparative analysis of foreign criminal legislation in this area contributes to a full understanding of the social and legal nature of crimes that infringe on the mandatory execution of court decisions. A comparative study of these provisions makes it possible not only to objectively assess the existing legal regulation of criminal liability for failure to comply with a court order, but also to develop ways to optimize it. The article presents the results of a comparative legal study of the criminal legislation of foreign States on liability for non-execution of a court order. It is concluded that criminal legal counteraction to non-execution of a court order is carried out in the prevailing majority of foreign countries. At the same time, a number of States have criminalized a wider range of acts in the field of enforcement of court orders. The author focuses on the features of legal regulation in this area, which can be productively used in modern Russian criminal legislation
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Ovchinnikova, Oksana V. "PRODUCTION OF REMOTE INVESTIGATIVE ACTIONS: EXPERIENCE OF FOREIGN COUNTRIES." LEGAL ORDER: History, Theory, Practice 38, no. 3 (November 17, 2023): 87–91. http://dx.doi.org/10.47475/2311-696x-2023-38-3-87-91.
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The article discusses the prospects for expanding the practice of conducting remote investigative actions during pre-trial proceedings. The author analyzes the legislative structure of Article 189.1 of the Code of Criminal Procedure of the Russian Federation, notes the formulations that prevent its effective implementation. A comparative legal analysis with similar provisions of the legislation of foreign countries is carried out, novelties of foreign legislation that can be used to improve Russian pre-trial proceedings are noted. The author proposes to simplify the procedure for conducting interrogations of participants in criminal proceedings using video conferencing, providing for the possibility of using video communication technologies in the criminal procedure legislation. The article points out the need to comply with additional procedural guarantees in this case, which may include mandatory video recording of the course of the investigative action, the possibility of recording the results of the investigative action in the form of a video file and (or) an electronic document certified with an electronic signature. The provisions of the criminal procedure legislation of the Republics of Kazakhstan, Belarus, India, Estonia, Armenia, which provide for fixing the circumstances to be proved in a criminal case not only in paper, but also in electronic form, are considered. Based on the analysis of the experience of the above-mentioned foreign countries, it is noted that the introduction of such practices in pre-trial criminal proceedings in the Russian Federation is significantly hindered by the lack of a Unified state information System providing for the possibility of storing criminal cases in electronic form, the procedure for the test introduction of such a system at the regional level is proposed.
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Puckett, A. Lynne, and William L. Reynolds. "Rules, Sanctions and Enforcement Under Section 301: At Odds with the WTO?" American Journal of International Law 90, no. 4 (October 1996): 675–89. http://dx.doi.org/10.2307/2203997.
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Section 301 of the Trade Act of 1974 permits the United States Trade Representative (USTR) to investigate and impose sanctions on countries whose trade practices are found to be unfair to U.S. interests. It reaches beyond the General Agreement on Tariffs and Trade (GATT), to give the United States unilateral power to penalize countries that threaten American interests. Section 301 can be used to enforce United States rights under multilateral and bilateral trade agreements, as well as to remedy unreasonable, unjustifiable or discriminatory foreign trade practices that restrict or burden U.S. trade. It contains both mandatory and discretionary provisions and specific timetables for action by the USTR.
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Geringer, Stefanie. "Substance carve-out and function-risk analysis in the ATAD’s CFC rule as two sides of the same coin: Strengths and limits of a uniform concept of abuse." Common Market Law Review 60, Issue 1 (February 1, 2023): 141–72. http://dx.doi.org/10.54648/cola2023006.
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When the European Union lawmakers introduce two implementation options for a mandatory anti-abuse rule – as they have done under the controlled foreign company (CFC) rule of the Anti-Tax Avoidance Directive (ATAD) – there is a real risk that these provisions will be attributed materially different abuse tests. This could call into question the assumption of a uniform EU concept of abuse materializing in the general principle of prohibition of abuse, and sow the seeds for additional forms of undesirable tax planning strategies. This article shows that the abuse tests of both implementation options of the ATAD’s CFC rule prescribe an identical abuse test and that beyond the limits of the harmonization effect, a single concept of abuse applies to all CFC situations as long as the scope of EU corporate tax law is affected. Anti-Tax Avoidance Directive, controlled foreign company rule, uniform concept of abuse
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Zaborovskyy, V. "Regarding the expediency of introducing mandatory insurance of civil liability of a lawyer." Uzhhorod National University Herald. Series: Law 2, no. 74 (February 10, 2023): 130–36. http://dx.doi.org/10.24144/2307-3322.2022.74.55.
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This article is devoted to the disclosure of questions regarding the expediency of introducing into the national legislation a provision on the insurance of the civil liability of the lawyer, in particular, through the prism of voluntariness or obligation to establish it.
Within the scope of this article, different approaches of domestic and foreign scientists regarding the advantages and disadvantages of the lawyer's civil liability insurance institute were investigated. The points of view of legislators of foreign countries regarding the necessity of voluntary or mandatory nature of its consolidation are also analyzed.
The position is argued, according to which, first of all, taking into account the fact that for most foreign countries civil liability insurance of lawyers is actually an everyday norm that ensures the proper functioning of the legal profession as a whole, we consider it expedient to enshrine provisions on this type of insurance at the legislative level in Ukraine as well.
Attention is focused on the fact that the introduction of the lawyer's civil liability insurance institute is directly aimed at protecting his interests, but this institute also plays an important role in defending the interests of the lawyer's clients, who constantly need professional legal assistance in the implementation of their rights and legitimate interests.
To achieve the goal, the author used methods characteristic of legal science. The research was conducted primarily using the system-structural and comparative-legal method, as well as the dialectical method of learning legal reality.
Based on the conducted research, the author concludes that the introduction of this institute should establish additional guarantees of providing professional legal assistance by a lawyer at the appropriate level in order to ensure the realization of the rights and legitimate interests of his clients.
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Akimova, I. V., and K. B. Simakova. "Novels in the field of control over foreign investments in strategic sectors of the economy." Russian competition law and economy, no. 3 (September 30, 2019): 30–35. http://dx.doi.org/10.32686/2542-0259-2019-3-30-35.
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The article explores a new legal mechanism that extends the authority of the Federal Antimonopoly Service to control the implementation of foreign investments not only to business entities of strategic importance, but also to any other Russian business entities that, according to the antitrust authority, are of key importance to the Russian economics. The problems of legal uncertainty regarding the mandatory prior coordination with the antimonopoly regulator of a transaction involving a foreign investor have been identified to differentiate legal consequences for violation of the provisions of special legislation depending on the actual presence of a threat to the defense and security of the Russian Federation. It is concluded that it is necessary and advisable to classify it as a business entity by virtue of its implementation of a type of activity that is adjacent to a strategic one (which is part of the technological process of a strategic type of activity as an integral part of it).
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Ayers, Benjamin C., Casey M. Schwab, and Steven Utke. "Noncompliance with Mandatory Disclosure Requirements: The Magnitude and Determinants of Undisclosed Permanently Reinvested Earnings." Accounting Review 90, no. 1 (July 1, 2014): 59–93. http://dx.doi.org/10.2308/accr-50853.
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ABSTRACT We develop estimates of a firm's foreign earnings designated as permanently reinvested (PRE) and the unrecorded deferred tax liability (TAX) associated with PRE that are independent of whether a firm explicitly discloses this information. We then investigate firms' noncompliance with Accounting Standards Codification (ASC) 740 provisions that require financial statement disclosure of PRE and either the tax associated with PRE or a statement that calculating the tax is not practicable. We find that a nontrivial portion of firms do not comply with the PRE disclosure requirements and that the amounts of undisclosed PRE and the related tax are substantial in magnitude. Cross-sectional evidence suggests managers opportunistically choose when to disclose PRE and TAX and that compliance with PRE disclosure requirements increased following the American Jobs Creation Act of 2004, which increased incentives to disclose PRE. JEL Classifications: M40; M41; H25; K34. Data Availability: Data used in this study are available from public sources identified in the paper.
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Lando, Ole, and Peter Arnt Nielsen. "The Rome I Regulation." Common Market Law Review 45, Issue 6 (December 1, 2008): 1687–725. http://dx.doi.org/10.54648/cola2008117.
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This article describes the most significant features of Regulation (EC) No 593/2008 on the Law Applicable to Contractual Obligations that will enter into force on 17. December 2009 (the Rome I Regulation). The Regulation will replace the Rome Convention on the same subject–matter. The authors approve of the “fine-tuning” of the provision regulating the parties’ rights to choose the applicable law. They welcome the provision on the law applicable in absence of an agreed choice. Though radically different from the corresponding provision of the Rome Convention it will satisfy the need for predictability. The new provisions on transports of carriage and insurance contracts are also discussed. The authors find the provision on the application of foreign international mandatory provisions very useful. However, they regret that the Regulation does not allow courts to apply the lex mercatoria in international disputes on an equal footing with national law. They also emphasize the need for a choice–of–law rule on jurisdiction agreements, which has not been provided in the Regulation.
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Bortnik, O. G., and T. V. Stepanenko. "Peculiarities of consideration of court cases related to the limitation of jurisdictional immunity of the state." Analytical and Comparative Jurisprudence, no. 4 (September 14, 2023): 130–36. http://dx.doi.org/10.24144/2788-6018.2023.04.20.
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The article examines the issue of defining the specifics of the procedure for consideration of civil cases by a court of claims against a foreign state, which are related to the limitation of the jurisdictional immunity of the state. The authors analyzed the content of the European Convention on State Immunities of 1972 and the UN Convention on Jurisdictional Immunities of States and Their Property of 2004, the provisions recognized by international and national courts as reflecting norms of customary international law. Attention is drawn to the fact that, in addition to defining the form in which the state may waive immunity, the list of categories of cases in which the state does not enjoy immunity in the court of another participating state, the specified international acts also establish the procedural rules for the trial of relevant cases, in particular requirements for mandatory informing of a foreign state about a lawsuit filed against it and the results of its consideration. It is noted that by the norms of customary international law, in the case of non-application of the jurisdictional immunity of the defendant foreign state, one of the mandatory components of the procedure for consideration of the claim against the defendant foreign state by the court is the proper notification of the defendant foreign state about the allegations presented to it and about the results of their consideration by the court. Failure to comply with the above procedural requirements may create obstacles to the further implementation of court decisions in relevant cases regarding the possibility of applying these court decisions for enforcement on the territory of other states. It is noted that in cases of compensation for damage caused to the life, health, and property of natural persons because of the armed aggression of the Russian Federation, the position of the Civil Court of Cassation as part of the Supreme Court on the lack of need to notify the defendant country of legal proceedings on the relevant claims is controversial. Attention is drawn to the fact that the relevant practice of national courts is carried out in violation of the rules of formal, substantive, and procedural justice institutionalized by the international community, limits the legitimate interests of persons who have suffered damage from military aggression, transferring their rights to the status of legitimate expectations, as it can have negative consequences for the implementation of judicial decisions, taking into account the analyzed provisions of international law. A conclusion was drawn on the need to settle the issue of notification of the respondent state in cases of compensation for damage caused to the life, health, and property of individuals because of the armed aggression of the Russian Federation.
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Sidik, Jafar, Deny Haspada, and Imam Jahrudin Priyanto. "Peningkatan Pemahaman Bahasa Asing pada Perjanjian Akta Notaril Bagi Anggota Ikatan Notaris Indonesia Kabupaten Bandung." Jurnal Pengabdian Tri Bhakti 3, no. 1 (June 30, 2021): 57–68. http://dx.doi.org/10.36555/tribhakti.v3i1.1710.
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Although now the contract is mandatory in Indonesian according to Law no. 24 of 2009, notaries still have to understand notary deeds in foreign languages. In fact, if necessary, be able to make notary deeds using foreign languages. This is necessary to improve the qualifications as a legal apparatus in the field of notarization and land affairs. Moreover, there are quite a lot of notaries in Bandung Regency. Based on data from the Bandung Regency Regional Revenue and Financial Management Service (Dispenda), as of June 2020, there were 418 PPAT (Land Deed Maker Officials) and based on the Notary Portal of Bandung Regency as of June 2020 there were 397 notaries. In accordance with Law no. 2 of 2014 concerning Amendments to Law no. 30 of 2004 concerning the Position of Notary (UUJN), the notary is authorized to make authentic deeds regarding all actions, agreements, and provisions required by laws and regulations and/or those desired by those with an interest to be stated in an authentic deed, guaranteeing the certainty of the date of making the deed, keep the deed, provide a copy and an excerpt of the deed. From the inventory of problems, many notaries do not understand the legal consequences when a notary makes a contract or agreement in the form of a notary deed in a foreign language. It should be noted that a contract or agreement made in the form of a notary deed in a foreign language has certain legal consequences, namely the notary deed is not an authentic deed, but as an underhand deed. In addition, the notary deed has the potential to be filed for cancellation or declared null and void through the state judiciary. The solution is, socialization or legal counseling has been held to notaries regarding the legal umbrella or legal basis for the mandatory use of the Indonesian language in contracts or agreements, either under hand or in the form of a notary deed.
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Альмурзаева, П. Х., and Л. С. Ибаева. "Analysis of intensive technologies of teaching foreign languages in foreign and russian pedagogy." Management of Education, no. 9(67) (June 30, 2023): 204–12. http://dx.doi.org/10.25726/p8882-9453-4332-v.
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Статья посвящена исследованию проблем психологического обеспечения интенсивного обучения иностранному языку. Авторы отмечают, что в психолого-педагогической науке ведется поиск способов и методов, которые бы позволили повысить темпы обучения, не снижая его качества. Одним из путей реформирования процесса обучения иностранному языку в высшей школе является его интенсификация, акцент на практическом владении языком с учетом индивидуально-психологических особенностей студентов. В статье проанализированы работы отечественных и зарубежных ученых по теме исследования. Зарубежные методы и технологии интенсивного обучения иностранным языкам опираются преимущественно на основные положения бихевиоризма и когнитивизма, а отечественные – на принципы суггестопедагогического и деятельностного подходов. Благодаря напряженной работе в условиях военного времени, соблюдению обязательных требований технического характера (продолжительность занятий составляла не менее 25 часов в неделю, в количественном отношении группы состояли из 5-7 человек и комплектовались по результатам тестирования и др.), успехи армейских курсов были весьма значительными. В послевоенные годы данный подход подлежал экспериментальной проверке в школах и колледжах. Но этот подход не получил широкого распространения, поскольку имел ряд недостатков. The article is devoted to the study of the problems of psychological support for intensive teaching of a foreign language. The authors note that in psychological and pedagogical science, a search is being made for ways and methods that would increase the pace of learning without reducing its quality. One of the ways to reform the process of teaching a foreign language in higher education is its intensification, emphasis on practical knowledge of the language, taking into account the individual psychological characteristics of students. The article analyzes the work of domestic and foreign scientists on the research topic. Foreign methods and technologies of intensive teaching of foreign languages are based mainly on the main provisions of behaviorism and cognitivism, while domestic ones are based on the principles of suggestive-pedagogical and activity approaches. Thanks to hard work in wartime conditions, observance of mandatory technical requirements (the duration of classes was at least 25 hours a week, in quantitative terms, groups consisted of 5-7 people and were recruited according to test results, etc.), the success of army courses was very significant. In the postwar years, this approach was subject to experimental testing in schools and colleges. However, this approach was not widely used because it had a number of disadvantages.
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Kalyuzhny, S. S. "PRINCIPLES AND FEATURES OF INDOOR PLANT EXPOSURE IN BOTANICAL GARDEN." Landscape architecture in the globalization era 3 (2023): 35–44. http://dx.doi.org/10.37770/2712-7656-2023-3-35-44.
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This article examines the world and Russian levels of organization of collections and the principles of their display in Botanical Gardens. Naturally, in addition to the goals of preserving biodiversity by the botanical gardens of the world on a global scale, the mandatory presence of collections and exhibitions of plants according to various presented characteristics related to the collection and stock territories of the Botanical Garden. The specialized collections of BS are considered from the point of view of museum work and acquisition, where different levels of formation are distinguished. The main provisions and techniques used in modern botanical gardens are covered. The experience of foreign gardens is summarized and the features of exhibiting at university and academic institutions are considered. Unfortunately, the trend of acquisition and collecting in Russia, where the principle of “collection for the sake of collection” prevails in traditional botanical gardens
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Bouček, Vilim. "Smjernice u postlisabonskom europskom međunarodnom privatnom pravu." Zbornik Pravnog fakulteta u Zagrebu 72, no. 3 (June 30, 2022): 799–826. http://dx.doi.org/10.3935/zpfz.72.3.02.
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This paper discusses the application of the EU directive as a source of European private international law with an emphasis on the post-Lisbon period in private international law of the member states. After presenting the main features of a directive in private international law, such as the legal basis for those “measures” in secondary legislation, types of directive, their structure, purpose and the effects of a directive, the author points out the special importance of the directive expressed in the Ingmar and Unamar cases of the Court of Justice of the European Union. In both cases the legal framework was Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents. In the Ingmar case of 2000, although lacking a (unilateral) conflict of law rule, the Court gave, by interpretation, the position of an unwritten (or hidden) conflict of law rule to a substantive law provision of the Directive. At the same time the Court determined that the provisions of Articles 17 to 19 are to be regarded as mandatory rules for the purposes of private international law. For the former EC legal order it was essential that a principal established in a non-member country (USA), whose commercial agent acts within the EC, cannot evade those provisions by freely choosing un-harmonized applicable law. In 2013 Court of Justice of the European Union was again asked to deal with Council Directive 86/653/EEC of 18 December 1986 but in the new Unamar case with parties from Bulgaria (principal) and Belgium (commercial agent). Again, the Court confirmed the mandatory character of Articles 17 and 18 of the Directive and applied also Art. 7(2) of the Rome Convention of 1980. In his ruling it took into consideration the provisions of Art. 9(1) of the Rome I Regulation in which there is a definition of overriding mandatory provisions. Taking into account the terms of the mandatory provisions, but this time also consistent with the wording of Article 9(1) of the Rome I Regulation of 2008, the Court concluded that the law chosen by the parties to a commercial agency contract may be rejected by the court of another Member State before which the case has been brought in favor of the law of the forum, owing to the mandatory nature in the legal order of that Member State, only if the court of the forum state held it to be crucial to grant the commercial agent protection, going beyond that provided for by the directive, thus taking account of the nature of such mandatory provisions. From June 1988 to today (2021) the EEC, the EC and the EU adopted a considerable number of directives as measures for the approximation of national law dealing mostly with consumer, but also employment and insurance issues, setting forth conflict rules. These sector-specific rules (or special conflict rules for certain (consumer) contracts) from the second-generation directives based on unilateral conflict rules prevail over the conflict rules of the Rome Convention of 1980 (Art. 20) and the Rome I Regulation of 2008 (Art. 23) in relation to particular matters, lay down conflict-of-law rules relating to contractual obligations. This situation creates a “labyrinth” of legal sources dealing with conflict-of-law rules on the national, (ex international) and on the European level. The described fragmentation of a situation where conflict-of-law rules are depressed among several instruments and where there are differences between those rules, contrary to Recital 40(1)-1) Rome I Regulation, has not been avoided. But at the same time the Rome I Regulation did not exclude the possibility of including conflict-of- rules with regard to particular matters (Recital 40(1-2) Rome I Regulation). At the end of this paper the author answered one additional question: How to solve the problem of the lack of coordination between the Rome I Regulation of 2008 and other provisions of EU law, including national laws implementing those acts? The first step may be to give a narrow interpretation of Art. 23 of the Rome I Regulation and to give precedence only to special EU conflict-of-law rules in relation to a particular matter. Stricto sensu it means, all provisions in the consumer directives which provide that, if a contract has a direct link to the territory of one or more Member States, EU law will apply, even if the parties have chosen the law of a third country, should not (always) be regarded as choice of law rules. Such a consideration has the potential to exclude the application of Art. 23 of the Rome I Regulation and rather apply Article 3(4) or 9(2) of Rome I. An example of such “conflict-of-law rule” is Article 22(4) of Consumer Credit Directive 2008/48 EC of 23 April 2008 on credit agreements for consumers (OJ EU L 133/66). The second step is to reopen the lost political battle from 2008 of the European Parliament for a general precedence of all EU internal market law. Thirteen years after Rome I was adopted we have some additional arguments in favor of applying the general principle of supremacy in EU law without breaching “the proper functioning of the internal market” (Recital 40(2) of the Rome I Regulation). The first argument is general, known as the process of communitarization. Its result is not just Rome I (without Article 23) but also Directive 2011/83/ EU of 25 October 2011 on consumer rights, which is a new legal act in the post-Lisbon period of the EUPIL and among consumer directives should be seen as lex posterior. It is not for the first time that in such kind of Directive there is no unilateral conflict rule with the aim to protect all EU values by applying EU law. But the relevant provision lays down that the consumer should not be deprived of the protection granted by that Directive, and that, where the law applicable to the contract is that of a third country, Regulation Rome I should apply in order to determine whether the consumer retains the protection granted by that Directive (Recital 58 of the Directive on consumer rights). Taking into consideration all above mentioned arguments, the author concludes: in the third decade of the 21st century the post-Lisbon legal practice regarding special EU conflict-of-law rules relating to particular matters contained in EU Directives on consumer protection should no longer prevail. The application of the Directives with or without a unilateral conflict rule in a situation with an international element should instead be safeguarded through the application of the provisions of Articles 3(4) and Art. 6(2) for consumer protection, and Article 9(2) of the Rome I Regulation of 2008 in order to determine whether the consumer retains the protection granted by that Directive.
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Serdiukov, O. "REQUIREMENTS FOR GAMBLING ORGANIZERS: FOREIGN AND DOMESTIC EXPERIENCE." Scientific Notes Series Law 1, no. 12 (October 2022): 281–86. http://dx.doi.org/10.36550/2522-9230-2022-12-281-286.
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Gambling as a form of economic activity exists in almost all countries of the world. Only the question of the form of its implementation is relevant: it can be an illegal activity, or an activity permitted by law in one or another country. Gambling is a very profitable business. For example, from January to October 2021, the gross revenue from games in the United States of America was 43.43 billion dollars [2]. Income from gambling is an important source of replenishment of the state budget of each country, which is why most states have legalized this type of activity by establishing mandatory gambling licensing and established requirements for gambling organizers. The article carries out a systematic analysis of the provisions of the legislation on gambling in a number of foreign countries, compares their experience and the basics of the mechanism of implementation of this activity in Ukraine. In particular, through the systematization of the elaborated regulatory legal acts on gambling in foreign countries, the main features of three models of conducting gambling business - British, American and European - were highlighted and outlined. The method of comparing models of gambling organizations makes it possible to highlight aspects of the national model that need improvement by adopting foreign experience. The most controversial is the prohibition of foreign representatives from conducting activities related to the organization of gambling in Ukraine, since such a ban significantly reduces the percentage of revenues to the state budget from the activities of world-famous gambling giants. The article examines the main aspects of the regulation of gambling in Ukraine and the world in the context of requirements for their organizers. The domestic and foreign models of regulation of the organization of the gambling industry were analyzed and their problematic aspects and positive practices were highlighted.