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1
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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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McCahery, Joseph A. "The Case Against Reform of the Takeover Bids Directive." European Business Law Review 22, Issue 5 (October 1, 2011): 541–57. http://dx.doi.org/10.54648/eulr2011029.
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Does the Takeover Bids Directive need revision? The answer to this question will most likely affect the Commission's assessment of the Directive in 2011 and could initiate its revision. Proponents of such a revision urge the Commission to redress the shortcomings of the Directive's implementation in two ways: 1) revising the mandatory provisions of the Directive making them less easily avoidable; and 2) creating new provisions that would weaken incumbent managers' lock on control that would make corporate control more contestable. In this short essay, however, we show that the Commission's opt-out strategy has proved, in practice, to be remarkably popular with Member States and does not need any further discussion.
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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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Karasahin, Yasin Alperen. "Contractual Time Limits to Commence Arbitration." Journal of International Arbitration 37, Issue 2 (April 1, 2020): 209–56. http://dx.doi.org/10.54648/joia2020011.
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Arbitration and multi-tier dispute resolution clauses may contain a time limit to commence arbitration. The expiry of such a time limit could have different legal results. First, it could make the arbitration clause ineffective. Second, it could extinguish the claim or prevent its enforcement through legal proceedings. In the latter case, the contract provision about the time limit would have to be examined with regard to its compliance with mandatory provisions of the law applicable to limitation periods. Even the determination of the law applicable to limitation periods causes considerable difficulty. It is another difficult issue to determine which provisions of the law applicable to limitation periods are mandatory and, if so, whether the contract provision complies with the limits of the law. Once it is established that the contract provision is valid, the acts necessary to prevent the expiry of the time limit would have to be examined. limitation period, preclusion period, extinctive prescription, time bar, commencement of arbitration, mandatory rule, jurisdiction, applicable law, interpretation, validity.
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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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Jensen, Robert. "Journalists and the Overtime Provisions of the Fair Labor Standards Act." Journalism & Mass Communication Quarterly 73, no. 2 (June 1996): 417–26. http://dx.doi.org/10.1177/107769909607300212.
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News media owners and workers have been struggling over whether journalists are professionals under federal law and exempt from mandatory overtime payments. Owners argue that journalists are professionals and need not be paid overtime; journalists disagree. This article reports on recent case law, which supports the journalists' position, and suggests a more detailed examination of the meaning of “professional” beyond the law is needed.
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Megliani, Mauro. "Changing Currency Under a Monetary Union: Some Remarks." European Business Law Review 29, Issue 4 (July 1, 2018): 577–88. http://dx.doi.org/10.54648/eulr2018022.
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This paper analyses the problems related to the change of currency in the case of the withdrawal of a Euro country from the single currency. Following withdrawal, the withdrawing state recovers the sovereign power over its own currency and is entitled to depreciate or revaluate it. The rules of conversion between the new and the old currency are given by the lex monetae. However, when the two currencies co-exist it is dubious what lex monetae applies to the obligations incurred before the withdrawal. This problem may be resolved by having recourse to the criterion of the proper law of contract. Nevertheless, when the proper law is not that of the withdrawing country the rules of conversion may still come into play in the form of overriding mandatory rules of the withdrawing country.
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Nikšić, Saša. "Pisani oblik ugovora i drugih pravnih poslova." Zbornik Pravnog fakulteta u Zagrebu 72, no. 1-2 (June 1, 2022): 299–328. http://dx.doi.org/10.3935/zpfz.72.12.08.
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The notion of the written form of contracts and other legal transactions is analyzed in this paper. Historical development of formal legal transactions as well as the comparative law dimension of the form of contracts and other legal transactions are briefly addressed. The possibilities to acknowledge the legal effects of the written form in the case of electronic declarations of will are also analyzed. A particular emphasis is placed on different possibilities to interpret the relevant provisions of the Civil Obligations Act regarding the fulfillment of requirements for the written form if a contract is concluded electronically. The provisions of the German BGB are also discussed because of the fact that German law is to a larger extent adapted to the electronic declaration of will (declaration of will in electronic form and declaration of will in text form). A part of the paper relates to situations in which the parties to a contract agree that they shall conduct their business exclusively in written form. Although the provisions on the written form are of a mandatory nature, considering that they regulate conditions for the validity of contract, when the parties to a contract agree that a certain contract must be in writing, they actually exploit the freedom of contract principle. This fact should be borne in mind when parties agree that any modifications to or rescission of a contract must be in writing. If this is the case, the will of the parties should be taken into the account, because it is in accordance with the pacta sunt servanda principle, and there are no mandatory provisions that would nullify such an agreement. Naturally, the validity of such agreements can be challenged if they are contrary to the good faith principle or the prohibition of the abuse of right principle.
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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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Malagurski, Branislav. "Mandatory and Default Rules in Serbian Company Law." Bratislava Law Review 4, no. 1 (August 31, 2020): 79–92. http://dx.doi.org/10.46282/blr.2020.4.1.172.
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The matter of company law in Serbia is regulated by the Law on Companies, which does not contain the general provision defining whether it is based on the freedom of will, unlike the Law on Obligations, which defines so. Even therefrom, it can be concluded that the rules of the Law on Companies are in general mandatory. Such conclusion only confirms the exception-provision which defines that founders of the LLC their mutual relations and their relations with the Company regulate freely, unless by this Law otherwise defined. So, only the rules regulating mutual relations of founders and their relations with the LLC are default, unless otherwise provided in particular case. Other rules of the company law in Serbia are in general mandatory. However, even when the provisions regulating certain matter being mandatory, it does not mean that there is absolutely no space for deviations, like in below described cases of special duties, for example. But such deviations do not necessarily mean that the rules from which it is deviated are default ones.
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Artemenko, E., and Yu Chernov. "Administrative Responsibility for Violations of the Legislation of the Russian Federation on Audit." Bulletin of Science and Practice 9, no. 12 (December 15, 2023): 292–96. http://dx.doi.org/10.33619/2414-2948/97/39.
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The norms of the Federal Law of the Russian Federation no. 307-FZ of December 30, 2008 On Auditing Activities provide for the obligation of organizations that belong to the category established by law to conduct an audit annually. In case of refusal to conduct an audit, or in case of violation of the terms of the audit, liability is provided. For the absence of a mandatory audit, the provisions of the Federal Law On Auditing Activities provide for penalties.
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Amiroel Oemara Syarief and MERINA PRATIWI. "IMPLEMENTASI HUKUM POSITIF TERHADAP PENETAPAN WASIAT WAJIBAH BERDASARKAN KEWENANGAN HAKIM PENGADILAN AGAMA." JURNAL HUKUM DAS SOLLEN 6, no. 2 (December 30, 2021): 62–85. http://dx.doi.org/10.32520/das-sollen.v6i2.1780.
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This study aims to provide guidance to religious court judges with their authority in deciding the heirs who are entitled to a mandatory will. So far, mandatory wills are only given to children and adoptive parents, but in its development, mandatory wills can be given to other parties other than adopted children and adoptive parents, including non-Muslim heirs. The method in this study is a normative juridical method. The results of the study explain that the mandatory will is regulated in the Compilation of Islamic Law where the rules are not clearly regulated by the KHI. To resolve the issue of mandatory wills, judges are authorized by law to resolve cases that enter the judiciary by making legal discoveries of cases that do not yet have permanent legal force, such as by carrying out historical understanding seen in a concrete case in which case the case already has regulations. legally binding, but the regulation must be interpreted in its implementation. Interpretation is tried by studying the origin of the formation of a legal decision, including the origin of its provisions or the origin of the formation of laws. Then it is done by means of a sociological understanding that prioritizes the interests of the purpose of a regulation through a concrete event in the related official regulations. In practice, judges can interpret unclear provisions based on community demands, as well as laws and regulations that are synchronized with social ties and situations that occur. In addition to the two methods used by judges to make legal findings to create laws that are not found in existing regulations, judges can do reasoning or argumentation. The argumentation procedure consists of argumentum per analogium, argumentum a contrario, and legal narrowing.
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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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Ellis, Rosetta E. "Mandatory Arbitration Provisions in Collective Bargaining Agreements: The Case against Barring Statutory Discrimination Claims from Federal Court Jurisdiction." Virginia Law Review 86, no. 2 (March 2000): 307. http://dx.doi.org/10.2307/1073917.
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Novović, Miloš. "Arbitrability of Data Protection Disputes: Personal Data, Personalized Justice?" European Review of Contract Law 19, no. 3 (September 1, 2023): 215–38. http://dx.doi.org/10.1515/ercl-2023-2012.
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Abstract This article explores the interplay between international arbitration and data subject compensation claims under the General Data Protection Regulation (GDPR). The analysis focuses on the validity and enforcement of arbitration agreements and the resulting awards. The article argues that despite potential skepticism, arbitration can offer significant benefits to data subjects, and that compensation claims under the GDPR should be considered arbitrable under the New York Convention and CJEU case law. The article further argues that EU courts have a duty to refer disputes to arbitration, and that the mandatory provisions of EU law have limited means of interfering with this duty. Furthermore, it establishes that the misapplication of GDPR provisions does not automatically justify the denial of arbitral award recognition. The article argues that this is a natural extension of trust traditionally shown to arbitrators, and that such trust should not be easily cast aside.
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Donahey, M. Scott. "California and Arbitrator Failure to Disclose." Journal of International Arbitration 24, Issue 4 (August 1, 2007): 389–413. http://dx.doi.org/10.54648/joia2007027.
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California statutes contain some of the most stringent standards for arbitrator disclosure found anywhere. While those standards are not applicable to international arbitration, the statutory provision requiring mandatory vacatur of an award for failure to disclose is. California case law currently provides that a general choice of law provision calling for the application of California law includes the application of California procedural law, including its unique arbitration provisions. Parties are advised to specifically exclude California arbitration law when agreeing to a California choice of law provision and to enforce their arbitration agreement and any ensuing award in federal, rather than California State, court.
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Sidkin, Stephen. "Territory Reduction, Repudiation and the Commercial Agents’ Regulations." Business Law Review 28, Issue 1 (January 1, 2007): 2–4. http://dx.doi.org/10.54648/bula2007001.
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Certain provisions in an agency agreement, such as an ability by the principal to reduce the territory or market covered by an agent, arguably have the effect of eroding the value of the agency. This article considers the recent case of Vick v Vogle-Gapes [2006] EWHC 1579 (QB) and the extent to which such behaviour by the principal is constrained by the Commercial Agents (Council Directive) Regulations 1993 (“the Regulations”), with particular regard to the mandatory compensation provisions and the obligation on the principal to act in good faith. The case shows an inclination in the English courts to construe the Regulations and the concept of good faith in accordance with a common law analysis of repudiatory breach.
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Moen, Bryton M. P. "A Tale of Two Countries: Constitutionalizing the Mandatory Minimum Sentence." Manitoba Law Journal 44, no. 5 (January 13, 2022): 149–64. http://dx.doi.org/10.29173/mlj1295.
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Mandatory minimum sentences have always played a role in Canadian criminal law, and indeed, in the common law of the United Kingdom (UK). Parliament, especially in recent years, drastically expanded the use of mandatory minimum sentencing, calling for higher sentences to be imposed on offenders. This has resulted in a corresponding increase in challenges to the constitutionality of that legislation, specifically alleging that the impugned mandatory sentences infringe an individual’s right to be free from cruel and unusual treatment or punishment. However, these challenges are often based on an imagined offender, or a reasonable hypothetical, rather than the offender before the court. The UK also imposes mandatory minimum sentences, including for firearms offences. Moreover, the mandatory sentences in the UK call for significantly more severe sentences than the sentences that Canadian courts struck down as being cruel and unusual punishment. This article, therefore, looks at the firearms laws of the UK and how they have structured the mandatory minimum sentence for firearm offences. The provisions in the UK mandating minimum sentences for particular offences contain an “escape clause” which permits judges to deviate from the mandatory minimum sentence in “exceptional circumstances.” As a result, judges in the UK must deal with the offender and the facts of the case before them, rather than a reasonable hypothetical scenario. This article argues that Parliament’s incorporation of similar language in Canadian sentencing provisions would have two salutary effects: (1) placing the emphasis on the offender before the court, thereby eliminating the reasonable hypothetical and (2) restoring the role of Parliament in providing guidance on sentences while preserving the role of the judiciary to craft a sentence for each offender which does not violate our constitutional principles.
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Gragl, Paul. "Kant and Strasbourg on Mandatory Vaccinations." European Convention on Human Rights Law Review 3, no. 2 (March 15, 2022): 220–62. http://dx.doi.org/10.1163/26663236-bja10037.
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Abstract Mandatory vaccination raises important questions of human rights, especially if moral norms are given effect in legal provisions. I argue – assuming the safety and efficacy of vaccines – that we are under a moral obligation to vaccinate. Although Kant himself was hostile towards vaccinations, his Categorical Imperative exhorts us to respect the autonomy and dignity of others, and if these ‘others’ are the most vulnerable members of society who cannot be vaccinated for medical reasons, we can only protect them by vaccinating ourselves. The ECtHR (implicitly) follows this reasoning in its case law, particularly in its most recent relevant decision, in Vavřička, in which it maintained that even though mandatory vaccination interferes with certain Convention rights, this can be justified in terms of social solidarity and the weighing of interests. We consequently see that in this context, the echr system is very much in line with Kant’s notion of morality.
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Supriyadi, Supriyadi, and Widyatmi Anandy. "Dinamika Penanganan Pelanggaran Administrasi." Jurnal Adhyasta Pemilu 3, no. 2 (December 6, 2021): 141–58. http://dx.doi.org/10.55108/jap.v3i2.15.
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Bawaslu is an institution that is given the authority to resolve election / election administration violations. The nature of Bawaslu's decisions and recommendations for administrative violations must be followed up by the KPU and its officials, this is confirmed in the provisions of Article 462 of Law No. the administration issued by Bawaslu is not obeyed by the institution implementing the decision / recommendation. Identification of problems: first, what is the nature of mandatory norms in the provisions of the Election / Pilkada Law? Related to follow-up on decisions / recommendations of Bawaslu Administrative Violations? Second, how is the Compliance with the Decision / Recommendation of Administrative Violation of Bawaslu? Third, what factors influence compliance with Bawaslu Administrative Violation Decisions / Recommendations? This research is a normative juridical study with a focus on analyzing decisions / recommendations for administrative violations of Bawaslu. in this study using a statutory approach, a case approach, and a conceptual approach. The data sources used are primary, secondary and tertiary data. The research results and conclusions. First, the "mandatory" norm in the construction of Article 462 of the Election Law and Article 139 paragraph (2) of the Election Law is imperative (order / force). Second, the KPU institutionally still has an attitude of indifference
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Barrios, Pablo Lizarreta. "Halal Certification and Labelling Requirements and the TBT Regime: A Case Study of the Indonesian Halal Act 33/2014." Legal Issues of Economic Integration 45, Issue 3 (August 1, 2018): 271–87. http://dx.doi.org/10.54648/leie2018015.
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In October 2014 Indonesia introduced the Halal Act, a legal instrument that aims at protecting Muslim consumers by requiring products to show mandatory information concerning their Halalness. The regulation is contentious as regards its compatibility with the WTO TBT Agreement, given the fact that its provisions are mandatory and that for a product to be considered Halal in Indonesia it must comply with the Fatwa issued by the Ulama Council of Indonesia. While the TBT Agreement acknowledges the right of WTO members to pass regulations that pursue legitimate objectives at the level they consider appropriate, at the same time it encourages members to do so in a way that does not create unnecessary obstacles to trade. This paper focuses on the issue of practice of religion and trade obstacles, exploring the latitude of WTO panels to adjudicate on such politically sensitive choices and the consequences of the lack of uniform international standards for trade in Halal products.
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Andhov, Marta, and Bergþór Bergsson. "Equal Pay and EU Public Procurement Law – Case Study of Mandatory Icelandic ÍST85 Standard." Nordic Journal of European Law 4, no. 1 (August 26, 2021): 1–24. http://dx.doi.org/10.36969/njel.v4i1.23178.
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From 2018, it became mandatory to obtain the Icelandic Equal Pay Standard (ÍST85) for all companies with 25+ employees annually operating on the Icelandic market. It has been unclear to what extent – if any – the ÍST85 can be applied in public procurements. This article analyses whether the ÍST85 is compliant with the relevant European Union internal market law, particularly public procurement law. The growing intensity of nudges to include and verify social elements in public procurements can be observed throughout the EU. The analysis of the Islandic case study bears relevance as it can be applied to the EU Member States and other EEA/EFTA States, contemplating similar approaches in their procurements. Section 1 introduces ÍST85. Section 2 analyses the relationship between EEA and EU law, showcasing that this article's analytical outcomes provide lessons applicable beyond Iceland. Section 3 examines how equal pay is regulated under EU law. Section 4 conducts an internal market analysis of ÍST85 compliance by examining the Treaties provisions on free movement. Section 5 introduces the EU public procurement law and examines ÍST85 compliance with Directive 2014/24/EU. Section 6 tests the application of ÍST85 to the Posted Workers Directive. Section 7 concludes the article.
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Manfredi, Simonetta, and Lucy Vickers. "Pensioning off the mandatory retirement age: implications for the higher education sector." Legal Studies 33, no. 2 (June 2013): 289–311. http://dx.doi.org/10.1111/j.1748-121x.2012.00247.x.
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This article considers the implications for higher education (HE) of the removal of the retirement age in 2011. It starts with an exploration of findings from empirical research which looked at the use of the retirement provisions of the 2006 Age Regulations in the UK HE sector. It highlights a number of concerns identified as a result of that research relating to retirement practices in HE and considers how these might apply given the recent abolition of a mandatory retirement age. The article uses a legal empirical approach to explore how the law would apply to any employer in HE attempting to justify continued use of mandatory retirement. It also examines other options such as the use of incentives to retire, the use of flexible working and the increased use of performance management. The article begins with an introduction to the main findings of the research, before turning to consider the current case-law relating to the legality of retirement provisions, including the recent Supreme Court decision in Seldon v Clarkson Wright and Jakes, and the legal implications of alternative options for managing extended working lives.
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Cuyvers, Armin, and Stefaan Van den Bogaert. "Money for nothing: The case law of the EU Court of Justice on the regulation of gambling." Common Market Law Review 48, Issue 4 (August 1, 2011): 1175–213. http://dx.doi.org/10.54648/cola2011046.
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In a series of recent judgments, the Court of Justice has developed its approach to games of chance and online gambling. It has made it clear it will not use the EU free movement of services provisions to liberalize the internal market for games of chance. Member States are given a remarkable discretion to regulate gambling services. To this end, the Court applies its standard test for restrictions very flexibly, including even an interesting moral strand, on the basis of overriding reasons in the general interest and objectives of combating fraud and gambling addiction. The remaining scrutiny is essentially left to the national courts. As far as the award of licences is concerned, the requirements of transparency are applied more strictly, which may have a significant impact on market access. This contribution provides a thorough analysis of the EU framework now in place for games of chance. In addition, it proposes some general guidelines for the needed political, legislative activity at the EU level. Such activity could enhance both revenue and Member State control over gambling services, whilst allowing cooperation between them to achieve their individual objectives.
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Adesina Okoli, Chukwuma Samuel, Abubakri Yekini, and Philip Oamen. "The Igiogbe Custom as a Mandatory Norm in Conflict of Laws: An Exploration of Nigerian Appellate Court Decisions." African Journal of International and Comparative Law 31, no. 3 (August 2023): 396–415. http://dx.doi.org/10.3366/ajicl.2023.0455.
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Under the Igiogbe custom of the Bini Kingdom of Edo State Nigeria, the eldest surviving son exclusively inherits the ancestral home of his deceased father. This custom is a mandatory norm in conflict of laws. Litigation on the custom has been described as a matter of life and death. There is a widely shared view among academic writers, practitioners, and judges that this customary law is absolute. Contrary to this popular view, this work argues that the Igiogbe custom can be displaced by statute and other customary or religious laws. To substantiate this position, this article examines all the reported appellate court decisions on the Igiogbe custom and other connected principles. It is often taken for granted that every Bini man is subject to customary law, thereby leading to the overriding application of the Igiogbe custom. Recent developments in case law suggest otherwise. There is a conflict of personal law question that is often ignored in most litigation concerning the Igiogbe. Careful consideration of this question can potentially lead to the application of other systems of succession law (statutory, religious, and other customary laws) other than the Igiogbe custom. Besides, these conflict of laws techniques and constitutional human rights norms can be used to strike the appropriate balance between competing interests and reasonable legitimate expectations of the deceased and their heirs.
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Maliszewska-Nienartowicz, Justyna. "The Right of a Child to Contact Relatives in Cross-Border Situations – Comments Based on EU Legal Regulations and the Case Law of the CJEU." Białostockie Studia Prawnicze 27, no. 3 (September 1, 2022): 177–91. http://dx.doi.org/10.15290/bsp.2022.27.03.10.
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Abstract The article presents EU legal regulations and decisions of the Court of Justice of the European Union (CJEU) relating to one of the most important rights of children, which is their right to direct contact with their parents and other people close to them. Difficulties may be encountered in cross-border situations when the child moves to another Member State or to a third country. In the first case, EU regulations apply, in particular Art. 24 of the EU Charter of Fundamental Rights and the Council Regulation 2019/1111. They are complemented by the case law of the CJEU, which interprets the terms they contain, e.g. the right to personal contact with the child. Its decisions recognise the best interests of the child as an overriding principle. At the same time, the Court tries to adapt existing EU legal provisions to social realities related not only to increased mobility, but also to changes in the structure of the family itself (patchwork families, single-parent families, etc.).
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Black, Gillian. "Protecting Privacy in Divorce Actions: Article 8 and the Need for Law Reform." Edinburgh Law Review 23, no. 3 (September 2019): 332–59. http://dx.doi.org/10.3366/elr.2019.0572.
Full textAbstract:
This article makes the case for reform of divorce law by demonstrating that the current provisions in the Divorce (Scotland) Act 1976 are not compliant with Article 8 ECHR. Scots law's mix of fault and no fault provisions requires the mandatory disclosure of often highly personal and intimate details in order to establish adultery, behaviour, or non-cohabitation. This statutory requirement to disclose private and personal information to the state, to fulfil the test for irretrievable breakdown of the marriage, constitutes an invasion of the spouses’ privacy. The article then goes on to show that such invasion cannot be justified as necessary in a democratic society, in terms of Article 8 jurisprudence. Consequently, reform is required to ensure that Scots divorce law is ECHR compliant. The final section sets out a proposal to transform divorce law in Scotland into a no-fault notification procedure, removing the damaging and invasive process currently in force.