Articles de revues sur le sujet « Private and procedural international law »
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Berlingher, Remus Daniel, et Daniela Cristina Cret. « Procedural Aspects Regarding International Arbitration ». Studia Universitatis „Vasile Goldis” Arad – Economics Series 25, no 2 (1 juillet 2015) : 1–9. http://dx.doi.org/10.1515/sues-2015-0008.
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Abstract Socio-economic changes have led to significant changes with regard to the institutions regulated by the 1865 Code of Civil Procedure and other laws, such as Law no. 105/1992 on the regulation of private international law. Among the institutions that have undergone these reconfigurations in the regulation of the Code of Civil Procedure, which entered into force in 2013, one that stands out is arbitration. Our study will analyze the main aspects of private international law arbitration: arbitration agreement, the arbitral tribunal, the proceedings in the matter, as well as the recognition and enforcement of foreign arbitral awards
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Гетьман-Павлова, Ирина, et Irina Getman-Pavlova. « Procedural Conflict-of-Laws Rules in Private International Law and International Civil Procedure ». Journal of Russian Law 6, no 3 (2 mars 2018) : 1. http://dx.doi.org/10.12737/art_2018_3_8.
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Parisi, Francesco, Daniel Pi et Alice Guerra. « Access to evidence in private international law ». Theoretical Inquiries in Law 23, no 1 (1 février 2022) : 77–96. http://dx.doi.org/10.1515/til-2022-0004.
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Abstract This Article analyzes the interaction between the burden of proof and evidentiary discovery rules. Both sets of rules can affect incentives for prospective injurers to invest in evidence technology (i.e., ex ante investments that increase the quantity and quality of evidence in case an accident occurs). This interaction becomes acutely important in the private international law setting, where jurisdictions are split on the question whether the burden of proof should be treated as a substantive or procedural matter. When a tort occurs in Europe, but the case is litigated in American courts, treating the burden of proof as a procedural matter preserves the complementarity of incentives created by the burden of proof and evidentiary rules. Conversely, treating the burden of proof as a substantive matter creates a mismatch in incentives created by the burden of proof and evidentiary rules.
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Jakhongir, Akhmurodov. « INTERNATIONAL CIVIL PROCESS AS AN INTEGRAL PART OF PRIVATE INTERNATIONAL LAW ». International Journal of Advanced Research 9, no 06 (30 juin 2021) : 259–62. http://dx.doi.org/10.21474/ijar01/13007.
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This article examines various opinions regarding the international civil procedure as part of private international law and concludes that international civil procedure is directly related to the definition of applicable law, and that substantive regulation of private law relations complicated by a foreign element is generally impossible in practice without addressing both conflict of laws and procedural problems.
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Galuschenko, Herman. « Establishing the content of foreign law through international treaties ». Ukrainian Journal of International Law 3 (30 septembre 2020) : 81–85. http://dx.doi.org/10.36952/uail.2020.3.81-85.
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In the article, the author gives the main mechanisms of establishing the content of foreign law, which are applied in most states – namely, briefly stated rules of civil procedural codes or special laws on private international law. The author focuses on the fact, that an additional source for mechanisms of establishing and clarifying content of foreign law are also international agreements, in particular – bilateral agreements on legal assistance, which states conclude between themselves to establish cooperation in order to resolve civil and criminal cases.It was found out, that in most countries, the legislator, despite the existence of civil procedural law and law on private international law, singles out international treaties, allowing to apply clear and effective mechanisms to establish the content of foreign law. This practice is not a new phenomenon in the science of private international law.
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Schwartze, Andreas. « Enforcement of Private Law : The Missing Link in the Process of European Harmonisation ». European Review of Private Law 8, Issue 1 (1 mars 2000) : 135–46. http://dx.doi.org/10.54648/264255.
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Civil procedure is a key element of any system of private law. Nevertheless in the European Union harmonisation of private law is dominated by directives concerning substantive rules while coordination of national procedural standards is lacking. Therefore significant differences in direct and indirect costs of judicial remedies remain throughout the internal market and are weakening the four freedoms. Because an escape to private arbitration is unwanted the projects to harmonise procedural standards in the field of private law should be pushed forward. Conventions on international rules of civil procedure, fragmented pieces of procedural 'directification' and the smoothening of technical problems is not enough. European Principles of Civil Procedure should be prepared as an option for individuals, courts and legislators and should in the first line be applied by a future European Union Court specialised in private law matters.
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Petersen, Clement Salung. « Treaties in Domestic Civil Litigation : Jura Novit Curia ? » Nordic Journal of International Law 80, no 3 (2011) : 369–402. http://dx.doi.org/10.1163/157181011x581236.
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AbstractMany international treaties regulate relations between states and private individuals (vertical treaty rules) and transnational relations between private individuals (transnational treaty rules), and domestic civil litigation often plays an important role in the enforcement of such rules. The actual impact of treaty rules in domestic civil litigation depends inter alia on the procedural principles governing the judicial application of law. In the European legal tradition of civil law, these principles are often expressed by the Latin adages “jura novit curia” (the court knows the law) and “da mihi factum, dabo tibi jus” (give me the facts, I give you the law). This article analyses how such procedural principles affect the obligations of domestic courts to apply vertical and transnational treaty rules in civil litigation and how, at the same time, international law can influence these domestic procedural principles in ways which create a complex relationship between international law and domestic civil procedure law.
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Penades Fons, Manuel. « The effectiveness of EU law and private arbitration ». Common Market Law Review 57, Issue 4 (1 août 2020) : 1069–106. http://dx.doi.org/10.54648/cola2020716.
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This article examines the impact of the principle of effectiveness of EU law on private arbitration. It uses the frame of post-award litigation to demonstrate that the relationship between these two normative orders is transversal and potentially very disruptive. This is evidenced by the alteration of the burden of proof in post-award actions, the irrelevance of the loss of the right to object, the widening of judicial review over awards that violate EU public policy, and the possibility to scrutinize errors of EU mandatory law concerning the merits of the case. The result is the weakening of the finality of awards and the replacement of the principle of procedural autonomy of Member States by European procedural primacy.
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Meshel, Tamar. « Procedural Cross-Fertilization in International Commercial and Investment Arbitration : A Functional Approach ». Journal of International Dispute Settlement 12, no 4 (21 octobre 2021) : 585–616. http://dx.doi.org/10.1093/jnlids/idab024.
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Abstract This article examines the potential for beneficial procedural cross-fertilization between internationalcommercial and investment arbitration from a functional perspective. The article argues that botharbitration regimes share a ‘private’ dispute resolution function of resolving specific disputes, butonly investment arbitral tribunals also exercise a ‘public’ law-making function of developing the lawapplicable to the resolution of disputes. The article considers two recent procedural developmentsin international arbitration rulesjoinder of third parties and publication of arbitral awardsin thelight of these private and public functions. It argues that joinder, as an efficiency-enhancingmeasure, can lead to beneficial cross-fertilization between commercial and investment arbitrationbecause it reinforces the ‘private’ dispute resolution function shared by both regimes. In contrast,the default publication of arbitral awards, to the extent that it is intended to be systematic and createinformal precedent, is appropriate in investment but not in commercial arbitration because onlyinvestment arbitral tribunals exercise a ‘public’ law-making function that justifies and stands tobenefit from this practice. In this regard, the article rejects three rationales for default publication ofinternational commercial arbitral awards: improving consistency/predictability, enhancingtransparency and developing transnational commercial law. The article concludes that crossfertilizationbetween investment and commercial arbitration can be valuable so long as it concernstheir shared private dispute resolution function. However, attempting to develop internationalcommercial arbitral practice in the shadow of the public law-making function of investment arbitraltribunals may result in counterproductive practices and undermine the proper functioning ofinternational commercial arbitration as a whole.
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Meshel, Tamar. « Procedural Cross-Fertilization in International Commercial and Investment Arbitration : A Functional Approach ». Journal of International Dispute Settlement 12, no 4 (21 octobre 2021) : 585–616. http://dx.doi.org/10.1093/jnlids/idab024.
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Abstract This article examines the potential for beneficial procedural cross-fertilization between internationalcommercial and investment arbitration from a functional perspective. The article argues that botharbitration regimes share a ‘private’ dispute resolution function of resolving specific disputes, butonly investment arbitral tribunals also exercise a ‘public’ law-making function of developing the lawapplicable to the resolution of disputes. The article considers two recent procedural developmentsin international arbitration rulesjoinder of third parties and publication of arbitral awardsin thelight of these private and public functions. It argues that joinder, as an efficiency-enhancingmeasure, can lead to beneficial cross-fertilization between commercial and investment arbitrationbecause it reinforces the ‘private’ dispute resolution function shared by both regimes. In contrast,the default publication of arbitral awards, to the extent that it is intended to be systematic and createinformal precedent, is appropriate in investment but not in commercial arbitration because onlyinvestment arbitral tribunals exercise a ‘public’ law-making function that justifies and stands tobenefit from this practice. In this regard, the article rejects three rationales for default publication ofinternational commercial arbitral awards: improving consistency/predictability, enhancingtransparency and developing transnational commercial law. The article concludes that crossfertilizationbetween investment and commercial arbitration can be valuable so long as it concernstheir shared private dispute resolution function. However, attempting to develop internationalcommercial arbitral practice in the shadow of the public law-making function of investment arbitraltribunals may result in counterproductive practices and undermine the proper functioning ofinternational commercial arbitration as a whole.
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Kang, Eun-Hyeon. « Overview of the Revised Act on Private International Law Related to the International Jurisdiction of Kinship and Inheritance Relationship ». Korea Association of the Law of Civil Procedure 26, no 3 (31 octobre 2022) : 233–78. http://dx.doi.org/10.30639/cp.2022.10.26.3.233.
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The revised act on private international law was promulgated on January 4, 2022, by passing the plenary session of the National Assembly on December 9, 2021, and is implemented on July 5, 2022. This revision of private international law is intended to materialize Article 2 of the past private international law (Act No. 13759, before being fully amended as of January 4, 2022, hereinafter referred to as 'past private international law') about international judicial jurisdiction.
Many attempts have paid off, and this amendment contains new details and details of international judicial jurisdiction to the extent that it is a new enactment of the law. One thing to keep in mind when determining the international jurisdiction in domestic cases is that the person at procedural inferiority must be protected. In particular, in domestic non-litigation cases where there is no other party, the review must be made in terms of guaranteeing the basic procedural rights of persons who will become warded persons or minors who are not formal parties but are the actual parties who will receive the effect of the trial directly. Each case should be reviewed to determine the existence of international jurisdiction.
Since the revised private international law stipulates more political jurisdiction, especially in domestic cases, after the amended law goes into effect in the future, private international law is first applied to determine the existence of international judicial jurisdiction, and the In cases where the exercise is inappropriate, the case will be resolved in a way that faithfully embodies the idea of the distribution of international jurisdiction in individual cases by not exercising the jurisdiction as an exception. Through this, it is expected that the predictability of the court and the parties in international domestic cases can be greatly improved, and it is expected that it will greatly contribute to guaranteeing legal stability in the process. However, since international jurisdictional rules change with the times and circumstances, it is necessary to reexamine the international jurisdictional rules in the future.
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Panagopoulos, George. « Substance and Procedure in Private International Law ». Journal of Private International Law 1, no 1 (avril 2005) : 69–92. http://dx.doi.org/10.1080/17536235.2005.11424289.
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Illmer, Martin, et Ben Steinbrück. « U.S. Discovery and Foreign Private Arbitration : The Foreign Lawyer’s Perspective ». Journal of International Arbitration 25, Issue 3 (1 juin 2008) : 329–43. http://dx.doi.org/10.54648/joia2008024.
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For many years U.S. case law has effectively ruled out judicial assistance in the taking of evidence for foreign private arbitration according to 28 U.S.C. section 1782. In 2004, however, the U.S. Supreme Court ruled that section 1782 applies to all foreign and international tribunals if they act as adjudicatory bodies. In the wake of this decision two district courts granted discovery orders in aid of foreign arbitration proceedings. After these judgments concerns were raised in the United States that the application of section 1782 to foreign private arbitration would lead to a procedural disparity between U.S. parties and non–U.S. parties, since for U.S. parties the access to information and evidence in foreign countries is usually much more limited than in the United States. This article demonstrates that these fears are unfounded. It shows that a flexible and well–balanced application of section 1782 to private international arbitration in line with the U.S. Supreme Court’s interpretation and strong policy considerations does not affect the discovery dynamics of international arbitration. To the contrary, it is the only mechanism to grant access to evidence located in the United States, thus ensuring the procedural equality in the taking of evidence in international arbitration.
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Singh, Nituja, Faheem Khan et Anushka Singh. « Matrimonial Causes & ; Choice of Law under Private International Law ». VEETHIKA-An International Interdisciplinary Research Journal 8, no 2 (30 juin 2022) : 18–24. http://dx.doi.org/10.48001/veethika.2022.08.02.005.
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The institution of marriage is succumbed to yield many causes giving birth to legal action arising from this single relation called ‘marriage’. From time immemorial people have been interacting across the border and hence there have been marriages between individuals crossing the territorial boundary of country. Every country has its own legal system usually different from the legal system based on distinguish cultural, religious or political identity. In this situation if a dispute out of marriage will arise wherein parties are from different legal systems, the court will have to decide about according to which particular law and legal system such conflicting situation relating to marriage would be adjudicated. Private international law is a path to guide judicial courts encountering such situations and this paper is all about how judges have to exercise jurisdiction and private international law and further according to which set of law/s such matrimonial disputes/causes should be addressed.
Person having different domicile, residence or nationality may enter into matrimonial relationship. At the time of marriage no one speculate any matrimonial dispute but emotion, relation and compatibility between emotion and relation is quite different things. Therefore, there is always risk/chance of fractions in every marriage. If parties to marriage are from the same legal system, then their dispute will be adjudicated according to their local substantive and procedural laws of their land. But, if such parties to marriage belong from different legal systems and further if they have married away from their own place viz. a third country, then the jurisdiction and the law to be applied in matrimonial disputes would be looked from the lenses of the private international law.
Thereafter these relations can also culminate into matrimonial disputes which take its legal effect through various matrimonial causes. This research paper mainly aims to analyse the various matrimonial causes present in a matrimonial dispute involving a foreign element which shall come under private international law and various choices oflaw rules, with special emphasis on nullity of marriage. This paper shall also briefly discuss the concept and validity of marriage. This paper shall analyse the concept of matrimonial causes in conflict of law through the Indian perspective. As India is a common law country which is of a shared British heritage and developed in England so the various concepts as aforementioned shall also include comparison with the English law. This paper shall conclude with authors’ observations and suggestions.
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Selmani, Bashkim. « New Perspectives on Contractual Law in the Context of Real Contracts in the Systems of International Contemporary (Roman) Law ». European Journal of Interdisciplinary Studies 1, no 3 (30 décembre 2015) : 142. http://dx.doi.org/10.26417/ejis.v1i3.p142-151.
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This scientific paper aims at exploring and establishing whether national legal gaps or possible issues within the differences in the international contractual law of the European Union’s member countries and non-EU member countries can result in possible difficulties. In case there are legal problems and difficulties or practical concerns in this field, should the functioning of the internal trade and legal function through its interpretation hinder the process between the contracting parties in the event of entering a contract of international and interstate character within the law of obligations, and in cases of entering a contract, during its interpretation, while determining the rights and obligations or during other legal issues which have to do with the implementation of international private law and European international private law. Viewed from this angle, we need to consider the national and international private contractual law in the aspect of harmonization of the contractual law which may result in inconsistencies on a European level and broader. This would present an obstacle which restricts the fundamental legal-private rights of citizens as an advantage of individuals. They consist of three parts: personal relations between citizens, property relations between persons entitled as property trustees, as well as the procedural law which regulates the protection of subjective rights of personal and ownership nature. In practice, these face more difficulties in the private international law and European private international law, for example in: rules on property, ownership, real rights on other people’s belongings, liabilities and heritage in international character and elements.
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Selmani, Bashkim. « New Perspectives on Contractual Law in the Context of Real Contracts in the Systems of International Contemporary (Roman) Law ». European Journal of Interdisciplinary Studies 3, no 1 (30 décembre 2015) : 142. http://dx.doi.org/10.26417/ejis.v3i1.p142-151.
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This scientific paper aims at exploring and establishing whether national legal gaps or possible issues within the differences in the international contractual law of the European Union’s member countries and non-EU member countries can result in possible difficulties. In case there are legal problems and difficulties or practical concerns in this field, should the functioning of the internal trade and legal function through its interpretation hinder the process between the contracting parties in the event of entering a contract of international and interstate character within the law of obligations, and in cases of entering a contract, during its interpretation, while determining the rights and obligations or during other legal issues which have to do with the implementation of international private law and European international private law. Viewed from this angle, we need to consider the national and international private contractual law in the aspect of harmonization of the contractual law which may result in inconsistencies on a European level and broader. This would present an obstacle which restricts the fundamental legal-private rights of citizens as an advantage of individuals. They consist of three parts: personal relations between citizens, property relations between persons entitled as property trustees, as well as the procedural law which regulates the protection of subjective rights of personal and ownership nature. In practice, these face more difficulties in the private international law and European private international law, for example in: rules on property, ownership, real rights on other people’s belongings, liabilities and heritage in international character and elements.
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Gorence, Brianna. « The Constructive Role of General Principles in International Arbitration ». Law & ; Practice of International Courts and Tribunals 17, no 3 (10 décembre 2018) : 455–98. http://dx.doi.org/10.1163/15718034-12341389.
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AbstractIn international arbitration, treaty standards, such as fair and equitable treatment (FET), general procedural norms, such as due process, and excuses for suspension of performance, such as the exceptio defense, draw on general principles of international law to clarify their interpretation and application. This article will (1) show what general principles of international law are, how they form and how they are distinct from general principles in domestic, public and private law systems; (2) illustrate their role with specific attention to their unique application in different international law contexts; (3) use the examples of FET, procedural norms and suspension of performance to show how general principles of international law are used in international arbitration; (4) warn against their inattentive, sloppy or haphazard use and application; and (5) ultimately highlight the benefits of incorporating general principles in international arbitration while proposing a precise methodology for their use.
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Kryvoi, Yarik. « Private or public adjudication ? Procedure, substance and legitimacy ». Leiden Journal of International Law 34, no 3 (4 juin 2021) : 681–703. http://dx.doi.org/10.1017/s0922156521000224.
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AbstractThis article identifies the essential differences between public and private adjudication and their implications for the legitimacy and efficiency of dispute resolution institutions, as well as the rule of law. Public adjudication comes at a significant cost for the taxpayers but helps secure a consistent body of case law, promotes public policy goals, and allows third parties to know the rules of conduct in advance to prevent undesirable activities. This article shows that procedural rules of these institutions (regardless of whether the procedure is called adjudication or arbitration) differ when it comes to the appointment of adjudicators, their professional background, and how long they serve. Public and private institutions consistently follow different approaches to transparency and confidentiality of proceedings, the application of primarily substantive rules or principles to resolve disagreements, and the extent to which decisions can be reviewed internally or externally. By examining the procedural rules and practices of selected institutions, the article asserts three main claims. First, the choice of public or private adjudication is likely to lead to different procedural outcomes, including the cost of the process and the duration. Second, the legitimacy of any dispute resolution system must rest on both procedural and substantive aspects, while in reality these two are often viewed in isolation. Finally, the article shows how institutions could learn from each other to become more efficient and strengthen their legitimacy.
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Tomczak, Tomasz. « Hipoteka polska a hypothèque prowincji Quebec. Porównanie z perspektywy prawa prywatnego międzynarodowego ». Przegląd Prawa i Administracji 112 (2 août 2018) : 209–32. http://dx.doi.org/10.19195/0137-1134.112.14.
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A PRIVATE INTERNATIONAL LAW COMPARATIVE STUDY OF THE POLISH ‘HIPOTEKA’ AND QUEBEC’S ‘HYPOTHEQUE’Polish hipoteka and Quebec’s hypotheque constitute security rights which are commonly used in their legal systems to secure contractual obligations of various type. Both have been extensively elaborated in legal doctrine and case-law; although mainly from the perspective of the national substantive and procedural law. In times of increased human and capital mobility, more and more conflicts concerning legal issues regarding these institutions may arise. Therefore, this article focuses on the private international law perspective and refer to the substantive law of Poland and Quebec only in scope necessary for private international analysis. It shows how institutions such as hipoteka or hypotheque shall be treated by the Polish or Quebec courts in cases having a foreign element and what conflict of laws problem may arise in reference to them.
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GUAN, WENWEI. « IPRs, Public Health, and International Trade : An International Law Perspective on the TRIPS Amendment ». Leiden Journal of International Law 29, no 2 (29 avril 2016) : 411–40. http://dx.doi.org/10.1017/s092215651600008x.
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AbstractThis article critically examines the dynamics between public health, intellectual property, and international trade in the context of the TRIPS Amendment and its theoretical implications in international law. The article suggests that international efforts in the TRIPS 2003 Waiver and 2005 Amendment addressing public health concerns have not been very successful due to the birth defect of TRIPS, i.e., hoping a private-rights-in-nature regime could accommodate public interests in health concerns. TRIPS’ birth defect further reveals itself in post-TRIPS development and contributed to the failure of the TRIPS Waiver and Amendment due to the resulting practice fragmentation and procedural hurdles in domestic compulsory licensing administration. Moreover, the TRIPS Amendment raised a fundamental theoretical issue, i.e., how the WTO as an international organization in public international law can regulate compulsory licensing of intellectual property rights as private rights – in particular the proprietary right to remuneration – while recognizing that TRIPS grants no positive rights. The paper suggests that the key to the issue is the treatment of private rights in public international law. It is submitted that the TRIPS Amendment has no legal basis in international law due to its unwarranted intrusion into members’ domestic affairs and individuals’ private proprietary rights. The article thus calls for alternative thinking about the TRIPS Amendment, in particular to leave administration of compulsory licensing fully with domestic authorities as it is in the Paris Convention.
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Martonyi, János. « Ferenc Mádl and International Economic Law ». Central European Journal of Comparative Law 2, no 2 (20 novembre 2021) : 167–79. http://dx.doi.org/10.47078/2021.2.167-179.
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Ferenc Mádl, while rising to the ranks of the outstanding Hungarian statesmen who served their country unconditionally, remained a scholar with exceptional knowledge and a unique academic life. In the 1970s, he was the first to recognise that even the broadest interpretation of the field of private international law could not cope with the expansion and transformation of international economic relations in the world and in our country. Reality had gone beyond the given framework of thought, „the facts had rebelled”, a new system and new solutions were needed. A new discipline, international economic law was born to meet the needs of theory, education and practice. The new field of law not only sensed the changes in reality and the interconnections between different areas of reality, but also anticipated the future. Decades later, Ferenc Mádl comprehensively summarised the most important legal consequences of economic, political and social changes and demonstrated the role of law in these changes. In the field of international economic relations, changes have continued to accelerate, new issues and new dilemmas have emerged, including in the area of foreign investment, where public law meets private law, international law meets national law, substantive law meets procedural law. These – and many other exciting new topics – remain best located, cultivated and taught in the field of international economic relations 'invented' by Ferenc Mádl.
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Magdenko, Alexandr D., et Alexandr Yu Tomilov. « Correlation of International and Domestic Law : Procedural and Legal Problems ». Pravosudie / Justice 3, no 3 (28 septembre 2021) : 189–205. http://dx.doi.org/10.37399/2686-9241.2021.3.189-205.
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Introduction. Despite the multiplicity of works on the relationship between international and domestic law, this problem remains relevant, since due to changes in public relations, the understanding of the functioning of the rules of law changes. This concerns the problem of the influence of international law on the process of changes in civil procedure legislation. This issue also complicates the active phenomena of the globalisation of public relations, and the requirement of unification of legal relations, both in the public and private legal spheres. National communities have an interest in this. At the same time, the processes of borrowing and unification under the influence of international law in the civil procedure sphere have their own distinctive feature. They always give priority to national legal systems, which does not exclude, (due to the intensive convergence of different communities), the manifestation of elements of borrowing from the norms of international law. Theoretical BasIs. Methods. The main research methods are comparative legal and historical. The study analyses the relationship between international and national law in the framework of civil procedure relations, taking into account the effect of globalisation. Results. An analysis of the current nature of the relationship between international and domestic law allows us to conclude that the globalisation processes contribute to the convergence of these two legal systems. The modern interpretation of the Constitution in the light of the legal positions of the Constitutional Court marked a departure from the traditional Russian dualistic understanding of the problem of the relationship between international and domestic law in the direction of moderate monism. Discussion and Conclusion. The analysis of the impact of globalisation processes on the mechanism of implementation of international law in the field of civil procedure legislation is carried out. The obtained results and conclusions allow us to determine the features and nature of the current relationship between international law and national law in the framework of civil procedure relations.
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Kleinheisterkamp, Jan. « OVERRIDING MANDATORY LAWS IN INTERNATIONAL ARBITRATION ». International and Comparative Law Quarterly 67, no 4 (12 septembre 2018) : 903–30. http://dx.doi.org/10.1017/s0020589318000295.
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AbstractOverriding mandatory laws present one of the most pervasive and delicate problems of international arbitration because they affect party autonomy in both its substantive and procedural dimensions. The tension between these concepts both in theory and in practice is a classic emanation of the public–private divide, which is particularly problematic in international and transnational settings. This tension is even stronger in the context of economic integration and regulation, such as in the EU Internal Market. This article revisits and conceptualizes the operation of overriding mandatory laws in the context of arbitration from the perspectives of conflict of laws, public law, and EU law. Drawing on the principles of effectiveness and proportionality, it proposes a practical rather than a theoretical solution to the dialectical relationship between private and public interests in legal certainty.
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Mataija, Mislav. « Leveraging Trade Law for Governance Reform : The Impact of the WTO Agreement on Technical Barriers to Trade on Private Standard-Setting ». European Review of Private Law 27, Issue 2 (1 avril 2019) : 293–317. http://dx.doi.org/10.54648/erpl2019017.
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Private product standards are products of private law, but are affected by international trade law in various ways. This article examines the impact of World Trade Organization (WTO) law, and in particular of the Agreement on Technical Barriers to Trade (TBT), on the governance of private standard-setting bodies. An overview of the ways in which WTO law can apply to private standards bodies is provided. Then, the article looks at the procedural avenues through which the measures of those bodies can be challenged on the basis of TBT law. Third, it asks where the potential impact of TBT law on the governance of standards bodies is greatest. The article concludes that a meaningful impact of WTO law on the governance of private standard-setting bodies is less likely to be found in direct enforcement, and that indirect mechanisms might be more fruitful. Among them are the reliance on the influence of States over private standards bodies in the case of standards that are co-opted in public law or ‘juridified’; the incentives provided by the TBT rules on international standards; and the leveraging of TBT rules through voluntary acceptance by standards bodies, private law adjudication, or even private enforcement.
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Shymon, S., et O. Lupalo. « The right of a person to the secret of correspondence : issues of public law and private law terminology ». Uzhhorod National University Herald. Series : Law 1, no 72 (16 novembre 2022) : 118–25. http://dx.doi.org/10.24144/2307-3322.2022.72.20.
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The article addresses the problems of public law and private law terminology in the field of secret correspondence. There are any differences and conflicts in the application of terms in international legal acts and in the national legislation of Ukraine were revealed. It was found out that the constitutional right of a person to the secrecy of correspondence, phone conversations and correspondence is the only right, which should be called the right to secrecy of correspondence. In the field of public law, a person's right to secrecy of correspondence is protected by establishing prohibitions, forms and measures of responsibility for their violation. In the field of private law, protection of the right to secrecy of correspondence is carried out by defining the positive content of this right and granting a person specific powers to implement it.
According to the norms of constitutional and criminal legislations, the object of the right to secrecy is the exchange of letters, telephone conversations and correspondence, while in the norms of civil legislation such an object is "correspondence", which covers all types and means of communication used by a person, including telephone conversations, any exchange of letters, etc.
In the texts of regulatory legal acts, the terms "private life" and "personal life" are used as identical. At the same time, the norms of criminal procedural law establish the «right to communication», which is not found in the norms of civil legislation, nor in the doctrine of private law, where the "right to privacy" is widely used. According to international law, secrecy of correspondence is an element of the right to privacy, but this idea is not embodied in the provisions of the legislation of Ukraine, where the right to secrecy of correspondence is protected as an independent right of a person. The right of a person to secrecy of correspondence in its content is related to the concept of a person's private life and is undoubtedly an element of his private life. Therefore, regardless of the content of the correspondence, the privacy of each person's correspondence must be protected to the same extent as the right to respect for private life is protected.
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Haak, W. E. « A Private (International) Law Intermezzo in the Law of Criminal Procedure ». Netherlands International Law Review 39, S1 (octobre 1992) : 105. http://dx.doi.org/10.1017/s0165070x00035397.
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Tavender, E. D. D. « Considerations of Fairness in the Context of International Commercial Arbitrations ». Alberta Law Review 34, no 3 (1 mai 1996) : 509. http://dx.doi.org/10.29173/alr655.
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This article addresses the contrast between the procedural fairness protections that are built into common law judicial practice and the lack of such safeguards in international commercial arbitration. Canvassing a variety of jurisdictions and international arbitration rules, the author concludes that procedural rights in international arbitration are never guaranteed and are at best extremely variable. The solution to such systemic problems is to write procedural requirements into any international commercial agreement so that in the event of a dispute there is some consensus about how the arbitration will be conducted. Schedule I is a table that explains the general operation of the various statutory instruments that regulate international commercial arbitration. Schedule II is an example of the type of drafted provisions that two private parties might consider grafting onto an international commercial agreement.
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Ribeiro, Geraldo Rocha. « An essay on the divide between procedural and substantive law within the scope of European Private International Law ». Boletim de Ciências Económicas 57, no 3 (2014) : 3023–70. http://dx.doi.org/10.14195/0870-4260_57-3_14.
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Muzyczka, Karolina. « Protection of private property expropriation ». ASEJ Scientific Journal of Bielsko-Biala School of Finance and Law 22, no 2 (3 juillet 2018) : 35–44. http://dx.doi.org/10.5604/01.3001.0012.4668.
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The basic law related to real estate/property is the right of ownership. It is the basic institution of property law in Poland and together with property ownership and the right of inheritance, is constitutionally protected. The provisions of the Constitution of the Republic of Poland of 1997, which set the standards for protection of property rights, are heterogeneous. This results both from their location in the basic law and from the wording. There are provisions in the form of constitutional principles, provisions expressing subjective rights, as well as provisions providing procedural guarantees for the implementation of the former. This multitude of forms creates some interpretative difficulties, the resolution of which is often dealt with by the Constitutional Tribunal. The considerations in the paper are based on various research methods, especially on the dogmatic and legal method. The author discusses achievements of jurisprudence and doctrine with respect to property rights, regulations of the Constitution, expropriation in civil law, judicature of the Polish Constitutional Tribunal and other Polish courts as well as acts of international law e.g. the jurisprudence of the European Court of Human Rights.
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Malacka, Michal. « The Singapore Mediation Convention and International Business Mediation ». International and Comparative Law Review 22, no 2 (1 décembre 2022) : 179–96. http://dx.doi.org/10.2478/iclr-2022-0021.
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Summary The article deals with the International Business Mediation and Singapore Mediation Convention on enforcing cross-border mediated settlement agreements. Mediation, as an alternative dispute resolution method, is widely preferred by parties with disputes in many countries. For this reason, in relation to ADR methods including mediation, both in Anglo-American Law and in Continental European Law, various technical and legal arrangements have been made. Mediation Laws in the EU have become one of the regulations bringing out rules that are in conformity with the new developments reflected also in the Singapore Convention on Mediation. Harmonisation initiatives in the EU and in the global world are not confined to intergovernmental activities. The same is also currently ongoing in the field of unification. Also, the private business sector, less restricted by jurisdictional boundaries, is increasingly driving harmonisation in mediation practice and law. As applicable national mediation law is often the same for cross-border and domestic applications, the Singapore convention introduces a contemporary definition of mediation procedural law and offers positive factors that shape it globally. Relevant national and international aspects are presented throughout the first part of this study, with specific sections on international business mediation and international instruments of private international law.
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Panasiuk, Olexandr, Larysa Grynko et Anna Prokhazka. « The right to private communication using telecommunication means : National and international legal aspects of protection ». SHS Web of Conferences 68 (2019) : 01021. http://dx.doi.org/10.1051/shsconf/20196801021.
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Today's challenges dictate the need to strengthen the national and international legal mechanisms for the protection of personal data and the right to private communication. However, considered rights are not absolute. Legitimate restriction of guaranteed rights is possible, since these means of communication are a powerful tool in the investigation and disclosure of hard/very hard crimes, including transnational ones, especially considering the terrorist threats to Ukraine and other European countries. The possibility of restricting human rights, arising from the guarantees enshrined in the European Convention on Human Rights and consistently enshrined in the ECHR, demands from the state the least compulsory guarantee while interfering with the rights of individuals – to act “in accordance with the law”. Law protection of personal data and right to privacy are researched in the context of peculiarities of conducting investigative (search), secret investigative (search) and other procedural actions in criminal proceedings, which concern access to some telecommunication means (e.g., smartphones). Taking into account different functional purposes of technical means of telecommunication, access and collecting of evidence contained therein, should be carried out on a case-to-case basis, in a different procedural form, considering specifics of telecommunication technologies in each particular case.
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Less, Steven. « International Administration of Holocaust Compensation : The International Commission on Holocaust Era Insurance Claims (ICHEIC) ». German Law Journal 9, no 11 (1 novembre 2008) : 1651–92. http://dx.doi.org/10.1017/s2071832200000614.
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The most important change in public international law over the past century has been a re-direction of its focus exclusively on states to a broadened scope of subjects including, most importantly, individual human beings. This shift in the status of individuals may be directly traced to the widely acknowledged need, in the aftermath of the Second World War, for a more adequate response to the Holocaust and other large-scale atrocities than that offered by traditional international law. Substantive concerns led to the development of human rights law. Victims' demands for compensation or restitution for the material injuries caused by genocidal Nazi persecution spurred a parallel procedural revolution. The innovation lay in national and international recognition of individuals' rights to assert such claims on their own behalf against their own governments, foreign states and foreign private entities.
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Wiater, Patricia. « Access to Justice : A Comparison of the Procedural Status of Private Litigants in International Economic Law ». German Yearbook of International Law 63, no 1 (1 janvier 2022) : 833–36. http://dx.doi.org/10.3790/gyil.63.1.833.
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Vanhamme, Jan, et Koen Lenaerts. « Procedural Rights of Private Parties in the Community Administrative Process ». Common Market Law Review 34, Issue 3 (1 juin 1997) : 531–69. http://dx.doi.org/10.54648/138938.
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Cengiz, Firat. « ANTITRUST DAMAGES ACTIONS : LESSONS FROM AMERICAN INDIRECT PURCHASERS' LITIGATION ». International and Comparative Law Quarterly 59, no 1 (janvier 2010) : 39–63. http://dx.doi.org/10.1017/s0020589309990030.
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AbstractThis article aims to draw policy lessons from the American indirect purchasers' litigation experience for the design of the European private antitrust regime in the light of the European Commission's White Paper on damages actions. The article shows that in multi-level polities procedural aspects of antitrust litigation and judicial cooperation are as crucial as the substantive standards for the success of private enforcement regimes. From this perspective the article criticizes the White Paper for the lack of procedural assessment and urges the Commission to give due consideration to procedural standards and mechanisms of judicial cooperation before taking any legislative action.
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Đorđević, Slavko. « Performing notarial duties in the process of conclusion of contracts whose subject matter is the acquisition of rights in REM in immovable property located abroad : A few remarks from the view of private International law ». Revija Kopaonicke skole prirodnog prava 2, no 2 (2020) : 181–96. http://dx.doi.org/10.5937/rkspp2002181d.
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This paper deals with certain issues of private international law that Serbian notaries public must resolve when performing notarial duties in the process of the conclusion of a contract whose subject matter is the acquisition of rights in REM in immovable property located abroad. The author first deals with the question of whether Serbian notaries public have international jurisdiction to perform notarial duties with regard to these contracts. After that and bearing in mind that the governing law for these contracts is, pursuant to Art. 21 of Serbian Private International Law Act (SPILA), the law of the foreign state in which the immovable property is located, the author tries to clarify whether the notary public applies the rules of this applicable foreign law on the form of the contract or must comply with lex fori (domestic) rules on the form (which are, from the point of view of Serbian notaries public, of procedural nature). Finally, the author explains how, from the point of view of private international law, the notary public should proceed when concluding the contracts on exchange of two immovables, one of which is located in Serbia and the other in a foreign country, given that in such case the conflict-of-law rule of Art. 21 SPILA refers to two applicable laws - Serbian (domestic) law and foreign law.
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Glinski, Carola, et Peter Rott. « Private Enforcement of the Public Interest and the Europeanisation of Administrative Law – The Trianel Judgment of the ECJ ». European Journal of Risk Regulation 2, no 4 (décembre 2011) : 607–15. http://dx.doi.org/10.1017/s1867299x00001690.
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The EU has taken influence on the administrative laws of the Member States by introducing elements of public information, participation of stakeholders and private enforcement, and environmental law was the frontrunner of this development. The same tendency can be observed at the international level, culminating in the adoption of the Århus Convention in 1998. This has created tensions with traditional administrative law systems that have strongly relied on public authorities to produce the correct outcome whilst severely restricting private participation and private access to justice. The Trianel case, dealing with the protection of habitats against a coal power plant, demonstrates the need for fundamental adjustment of German administrative law, and it may lead to subsequent changes of the modalities of administrative procedural law in order to really allow the private enforcement of the public interest (authors’ headnote).
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Zholdasova, Shakhnoza. « SOME ISSUES OF LEGAL REGULATION OF THE INSTITUTION OF SETTING THE CONTENT OF FOREIGN LAW (BASED ON UZBEKISTAN LEGISLATION) ». International Journal of Advanced Research 9, no 06 (30 juin 2021) : 263–67. http://dx.doi.org/10.21474/ijar01/13008.
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This article analyzes some theoretical and practical issues of setting the content of foreign law. In accordance with the analysis conducted, the author considers that further improvementof the national law of the Republic of Uzbekistan in respect of application and setting the content of foreign lawwould be expedient. In particular, the author suggests that the Civil Procedural Code of the Republic of Uzbekistan should be supplemented with relevant norms, with considerationofadoptionof the separate Law On Private International Law.
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Krans, Bart. « EU Law and National Civil Procedure Law : An Invisible Pillar ». European Review of Private Law 23, Issue 4 (1 août 2015) : 567–87. http://dx.doi.org/10.54648/erpl2015038.
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Abstract: The Europeanization of national civil procedure law consists out of several pillars. The influence of the European Convention on Human Rights (ECHR) is well known. A second pillar of the European influence on civil procedure law is the growing number of European regulations concerning the crossroads of civil procedure law and private international law. This article focuses on the Europeanization of national law by a third, ‘invisible pillar’. The European influence in the ‘invisible pillar’ concerns many topics, such as ex officio application law, burden of proof, means of proof, costs, the free choice of a lawyer, the threshold amount exempt from seizure and arbitration. The first part of this invisible pillar follows from the role of national civil procedure law in enforcing EU law. The European Court leaves the procedural law to the national courts. The second area of the invisible pillar concerns procedural rules in Directives. A close look at several Directives reveals that the list of procedural topics touched upon by Directives is far from small. Directives contain procedural rules relevant for various capita of the civil procedure law of the Member States. This article seeks to shine some light on parts of this pillar by examining three topics: ex officio application, costs and the free choice of a lawyer, and legal expenses insurance. These examples serve to demonstrate that this area covers a wide variety of topics. Three problems relating to this invisible pillar will be identified: uncertainty, external differences, and internal differences.
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Kaczmarczyk, Michal, et Joanna Lam. « Sociology of Commercial Arbitration : Tools for the New Times ». Journal of International Arbitration 36, Issue 6 (1 décembre 2019) : 693–726. http://dx.doi.org/10.54648/joia2019035.
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In this study, the authors argue for a more refined methodology in research on commercial arbitration. Drawing on new developments in international commercial arbitration, they seek to create a typology of various aspects of legal conflict resolution and, as a consequence, to increase the relevance of empirical work on this topic. The article identifies three key areas of tensions, which generate new developments in commercial arbitration and cannot be addressed from the perspective of the existing sociological paradigms. First, the tension between procedural formality and flexibility can be observed, as reflected in the well-established judicialization trend, combined with a recent renewed interest in mediation and ‘soft’ hybrid procedures. Second, the confluence of global and local factors (as seen in the American and Asian ‘waves’ in arbitration) affects, inter alia, the professional culture of arbitration practitioners. Finally, the tension between public and private interests and values, which influences procedural preferences and solutions in the field of commercial arbitration, can be identified.
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Bakumenko, Vasily. « Asymmetric Jurisdiction Clauses : Grounds for Validity Within Different Jurisdictions ». Russian Law Journal 8, no 3 (2 septembre 2020) : 84–115. http://dx.doi.org/10.17589/2309-8678-2020-8-3-84-115.
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The article is devoted to the comparative analysis of asymmetric jurisdiction clauses in international procedural law. The paper focuses, firstly, on a detailed analysis of the national and international approaches to the nature and interpretation of asymmetric jurisdiction clauses within international civil procedure, and, secondly, on the rules on interpretation, validity and enforcement of such clauses under different jurisdictions and private international law in general. After examining the accumulated case law and theoretical material, particular attention is paid to the issue that currently there is a number of different grounds for recognition of asymmetric jurisdiction clauses as valid. Although Russian courts tend to invalidate such clauses, the issue has not been unambiguously resolved and requires reconsideration of the established approaches in light of the recent trends on international level. Thus, particular attention is paid to the highly problematic and contradictory aspects of unilateral dispute resolution provisions under the general principles of law, including autonomy, mutuality and equality of the parties. The article proposes to reconsider the most typical arguments for invalidating such clauses, both in terms of substantive and procedural principles. Analysis of these issues is of key theoretical and practical importance for the effective evolution of modern arbitration and litigation practices not only in Russia but all over the world.
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Brake, Benjamin, et Peter J. Katzenstein. « Lost in Translation ? Nonstate Actors and the Transnational Movement of Procedural Law ». International Organization 67, no 4 (octobre 2013) : 725–57. http://dx.doi.org/10.1017/s002081831300026x.
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AbstractIn recent years U.S. legal norms and practices reconfigured important elements of how law is thought of and practiced in both common and civil law countries around the world. With specific focus on the spread of American procedural practices (class action and pretrial discovery), this article applies a transactional view of law that emphasizes the private practice of law and nonstate actors. Such an approach highlights important aspects of world politics overlooked by traditional analyses of international legalization, conventionally understood as the direct spread of law by and among states. We find that the movement of law is a dynamic process involving diffusion, translation, and the repeated transnational exchanges of legal actors. Through our examination of this process, we offer insights into how aspects of American law moved into unlikely jurisdictions to reshape legal theory, pedagogy, procedure, and the organizing structure of the legal profession.
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Costa, José Augusto Fontoura. « Sobre Corvos e Ornitorrincos : Arbitragem Estrangeira e Internacionalno Direito Brasileiro ». Revista Brasileira de Arbitragem 8, Issue 29 (1 février 2011) : 60–73. http://dx.doi.org/10.54648/rba2011003.
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ABSTRACT: This article discusses the concepts of international arbitration and foreign award from the perspective of Brazilian Law. Statutory law and doctrinal classifications are used to understand the place reserved to the notion of private international and transnational arbitration in Brazil, as well as to explain the regime of recognition and enforcement of foreign arbitral awards in the Brazilian statute of arbitration (Lei nº 9.307/1996) and the New York Convention of 1958. The conclusions show that in Brazilian law the categorization of a specific arbitration as international or merely domestic does not produce relevant effects and, on the other hand, the differentiation between foreign and national awards is fundamental to determine the procedural regime of recognition and enforcement.
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PETERS, ANNE. « Does Kosovo Lie in the Lotus-Land of Freedom ? » Leiden Journal of International Law 24, no 1 (11 février 2011) : 95–108. http://dx.doi.org/10.1017/s0922156510000622.
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AbstractThis paper finds that the ICJ's Kosovo Advisory Opinion reached the right result, but in a methodologically not fully satisfactory way. It examines five aspects that underpin the opinion: the temporal (purely ex post) perspective; the Court's equation of legal conformity and non-prohibition and the idea of a deliberate silence of international law; the applicability of the Lotus principle that was evoked by numerous states in the proceedings; the structural analogies between international law and private, criminal, or public law; and the oscillation between legal positivist and jusnaturalist paradigms. Finally, the paper argues in favour of procedural requirements for the international lawfulness of secession, and claims that this approach is compatible with the findings of the Advisory Opinion.
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MOSCHEN, Valesca Raizer Borges, et Luiza Nogueira BARBOSA. « HACIA EL ACCESO TRANSNACIONAL A LA JUSTICIA : UN ANÁLISIS DE LA CONSONANCIA ENTRE LOS PRINCIPIOS TRANSJUS Y EL CÓDIGO DE PROCESO CIVIL BRASILEÑO CPC/2015 ». Revista Juridica 2, no 55 (11 avril 2019) : 77. http://dx.doi.org/10.21902/revistajur.2316-753x.v2i55.3385.
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RESUMENLa fluidez de las fronteras ocasionada por la movilidad de los factores productivos promueve, cada vez más, la transnacionalización de los conflictos. La estructura hermética del derecho procesal civil es puesta en jaque frente a la necesidad de acceso global a la justicia. La armonización del derecho internacional privado, en materia del derecho procesal civil, se vuelve fundamental para la eficacia transfronteriza de derechos. Como instrumento de tal armonización, los principios ASADIP sobre el Acceso Transaccional a la Justicia (TRANSJUS) se insertan en la búsqueda por la promoción de la justicia transnacional efectiva. El actual paper objetiva investigar en qué medida el recién sistema procesal brasileño se compatibiliza con el modelo ASADIP de framework rules. PALABRAS CLAVE: Principios Asadip sobre el acceso trasnacional a la justicia; TRANSJUS; Proceso Civil Internacional; Derecho internacional Privado. ABSTRACTThe fluidity of borders caused by the mobility of productive factors promotes the transnationalization of conflicts. The hermetic structure of civil procedural law is questioned by the need for global access to justice. The harmonization of private international law, in terms of civil procedural law, becomes fundamental for the crossborder effectiveness of rights. As an instrument of such harmonization, the ASADIP principles on Transactional Access to Justice (TRANSJUS) are inserted in the search for the promotion of effective transnational justice. The current paper aims to investigate to what extent the new Brazilian procedural system is compatible with the ASADIP model of framework rules. KEYWORDS: Asadip principles on transnational access to justice; TRANSJUS; International Civil Procedure; Private International Law. RESUMO A fluidez das fronteiras gerada pela mobilidade dos fatores produtivos promove, cada vez mais, a transnacionalização dos conflitos. A estrutura hermética do direito processual é então posta em xeque frente à necessidade de acesso global da justiça. A harmonização do direito internacional privado, em matéria de direito processual civil é fundamental para a eficácia transfronteiriça de direitos. Como instrumento de tal harmonização, os princípios ASADIP sobre o Acesso Transnacional à Justiça (TRANSJUS) encontram-se no caminho de promoção de uma justiça transnacional efetiva. O presente artigo tem como objetivo investigar em que medida o recente sistema processual brasileiro compatibiliza-se com o modelo de framework rules da ASADIP.PALAVRAS-CHAVE: Princípios ASADIP sobre o Acesso Transnacional à Justiça; TRANSJUS; Processo Civil Internacional; Direito Internacional Privado; Direitos processuais fundamentais.
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Dornis, Tim W. « Peter Hay, Advanced Introduction to Private International Law and Procedure ». European Review of Private Law 28, Issue 4 (1 octobre 2020) : 981–85. http://dx.doi.org/10.54648/erpl2020059.
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van der Zee, Eva. « Disciplining Private Standards Under the SPS and TBT Agreement : A Plea for Market-State Procedural Guidelines ». Journal of World Trade 52, Issue 3 (1 mai 2018) : 393–414. http://dx.doi.org/10.54648/trad2018018.
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This article shows that, although private standards could fall within the scope of the Sanitary and Phytosanitary(SPS) or Technical Barriers to Trade(TBT) Agreement, the responsibility of WTO Members to effectively ensure that private standard-setters are not more trade-restrictive than necessary is limited under the respective frameworks. Other mechanisms, rooted in a commercial disguise, would be more effective as they could incentivize private standard-setters to comply with the WTO legal system. It is argued that WTO Members worried about the trade-restrictive nature of private standards should draft procedural guidelines in collaboration with intergovernmental organizations(IGOs) and private multi-stakeholder standard-setting bodies. Such procedural guidelines should be aimed at simplifying the certification process and making it easier for farmers and producers to comply with the private standard.
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Potapenko, Andrii V., Svitlana A. Pylypenko, Vitalii M. Korolenko et Iryna S. Melnyk. « Implementation of International Standards for Determining an Efficient Civil Law Remedy by a National Court ». International Journal of Criminology and Sociology 10 (31 décembre 2020) : 412–22. http://dx.doi.org/10.6000/1929-4409.2021.10.49.
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The article is devoted to studying the effectiveness of protection of violated, unrecognised or disputed rights, freedoms or interests of individuals, rights and interests of legal entities, the interests of the state in civil proceedings. The purpose of the article is to study how to implement international standards for determining an efficient civil law remedy by the court: (based on the case-law of the European Court of Human Rights and national case law). Clarification of the essence of novels of substantive and procedural law in determining the court's effective way to protect private law as the final judicial procedure of the right to judicial protection was by comparative law, methods of analysis, modelling and synthesis with the implementation of related elements of classical methods of protection and reception of the best acquisitions of legal systems of foreign countries, norms of the Convention of the case-law of the European Court of Human Rights (from now on – ECtHR). The dialectical method of cognition and the qualitative empirical method were also the main ones, by means of which the legal nature of the category "efficiency" and "determination by the court of an effective way of protection of private law and interest" were clarified.
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Hayward, Benjamin. « New Dog, Old Tricks : Solving a Conflict of Laws Problem in CISG Arbitrations ». Journal of International Arbitration 26, Issue 3 (1 juin 2009) : 405–36. http://dx.doi.org/10.54648/joia2009022.
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Parties to international sale of goods transactions often exercise their rights to choose a governing law and refer disputes to arbitration. Where their choice is incomplete, as is the case where the Contracts for the International Sale of Goods (CISG) is chosen, complex conflict of laws problems can arise, including disputes over the governing limitation period. While such disputes are traditionally resolved using conflict of laws methodologies, this article argues a superior solution can be achieved through procedural law. Through a simple discretion, arbitral tribunals may apply the limitation period from either the International Institute for the Unification of Private Law (UNIDROIT) Principles 2004 or the UN Limitation Period Convention. Such an approach makes determination of the governing limitation period a simpler process, allowing parties to focus their attention on what they are really concerned with—the merits.
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Pauker, Saar A. « Substance and procedure in international arbitration ». Arbitration International 36, no 1 (1 mars 2020) : 3–66. http://dx.doi.org/10.1093/arbint/aiaa005.
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Abstract The distinction between substance and procedure in private international law has been subject to extensive debates among national courts and scholarly writings. The basic theme that procedural issues are governed by the lex fori, and substantive issues are subject to the lex causae, is widely accepted, although the boundaries between substance and procedure are not always clear. This article examines the application of the distinction between substance and procedure in the area of international arbitration, as regards both commercial cases and investment treaty disputes. It is argued that the distinction between substance and procedure has significant ramifications in international arbitration. The central (though not the only) aim of this distinction refers to the determination of the rules to be applied to borderline issues, such as evidentiary matters, interest, and limitation rules. Arbitral tribunals should have a considerable level of discretion in drawing the distinction. Specified points of guidance are suggested for common grayzone questions. Although the general principles concerning the substance/procedure distinction are similar in investment treaty arbitration and international commercial arbitration, material points of difference, such as the key role of public international law, may somewhat narrow the investment treaty tribunals’ discretion in respect of drawing the distinction.