CONTRACTS & COMMERCIAL LAW eJOURNAL
"Characteristics of Arbitral Awards and Legal Aspects of Falsification Thereof"
GESSEL-KALINOWSKA vel Kalisz, Beata (ed.). The Challenges and the Future of Commercial and Investment Arbitration: Liber Amicorum Prof. Jerzy Rajski. Warsaw, Poland: Lewiatan & Wolters Kluwer, 2015, p. 272-291
ALEXANDER J. BELOHLAVEK, Independent
Arbitration has become an increasingly popular alternative method of dispute resolution, primarily employed in international commerce. From the procedural perspective, the issues most frequently associated with arbitration include: issues concerning the proper execution and validity of the arbitration agreement, or as applicable, the observance of the requirements for conducting arbitral proceedings and of fundamental procedural principles (asserted through the medium of a motion to set aside an arbitral award). Nonetheless, the scope of issues that our contemporary practice has to handle with respect to arbitration is substantially broader.
Let us imagine a situation in which an alleged creditor is confronted with an arbitral award, without being at all aware that arbitration has taken place. Impossible? Not in the least. It is not possible to exclude the possibility that an arbitral award will be used as a means of unlawfully eliciting particular performance, just like other deeds are not immune to attacks by falsifiers, including documents issued by state authorities. Indeed, this phenomenon is becoming more and more common in our current practice, even though the issue has only scarcely been dealt with in legal theory, which can certainly be attributed to the fact that parties make extensive use of arbitration. Arbitral awards are typically falsified in domestic arbitral proceedings, although cases with an international dimension are not unheard of either.
"The Limits of Free Will in the Creation of Contractual Obligations in Iran Civil Rights"
Journal of Novel Applied Sciences, 4 (2): 143-145, 2015
ABBAS RAHIMI, Islamic Azad University (IAU)
GHAZI , Payame Noor University
The principle of freedom of in our law has been declared by Article 10 of the Civil Code. Under this provision: "The private contracts to those who have signed it, if not contrary to law, are valid. So, except in cases where the law has created an obstacle placed in the way of influence, will those treaties governing their fate and free will to be the 'original' was. Current law, rule governing its former territory is lost, and the two sides agreed to another contract do not respect its past. It is a set of rules of contract growing, and some of them, such as a business or rental contract, no compromise in terms of the legal effects of marriage are important. Some contracts have such an important social figures, the law imposes on individuals them. It also requires a belief in the principle of contractual freedom individualist ideas about sovereignty "will" is not. Current law, all more or less accepted that the real rule of law, But practically respect to treaties has led use that "freedom of contract" is accepted as the true basis of the considerations of social and economic policy.
"Selected Case Law of Czech Republic on the CMR Convention and New Civil Law in Effect in Czech Republic as of 1 January 2014"
CYIL - Czech Yearbook of International Law, 2015, Vol. VI, pp. 231-325, JurisPublishing Inc., Huntington, New York
ALEXANDER J. BELOHLAVEK, Independent
The Czech courts do often deal with transportation matters. For example the Supreme Court of the Czech Republic decided on 28 March 2012 about the Scope of the CMR Convention. The court concluded that the Convention on the Contract for the International Carriage of Goods by Road (CMR Convention) shall apply to every contract for the carriage of consignments by road vehicles for remuneration, when the place of taking over the consignment and the place designated for delivery thereof, as specified in the contract, are situated in two different countries, of which at least one is a contracting party to the CMR Convention. The court concluded further in the same decision that a contract does not qualify as a contract of carriage if the person designated as consignor in the international consignment notes is not simultaneously the person or entity that ordered the carriage.
In another decision, namely in the judgment of 10 October 2012 the Supreme Court of the Czech Republic concluded that the CMR Convention does not regulate all issues related to international carriage by road. The Convention does not regulate the process of formation of the contract for carriage of things (consignment, goods) and its essential components. These issues, which are not regulated under the CMR Convention, must be examined according to domestic regulations as the governing substantive law determined according to the rules of private international law. The Convention on the Contract for the International Carriage of Goods by Road (CMR), binding on the Czech Republic, shall apply to a contract that entails the carriage of consignments by road vehicles for remuneration, when the place of taking over of the consignment and the place designated for delivery thereof, as specified in the contract, are situated in two different countries, of which at least one is a contracting party to the CMR Convention, irrespective of the states in which the registered office, place of business or place of residence of the parties is situated.27 If the parties entered into a contract of carriage,28 the liability for damage and losses incurred in the course of the carriage must be assessed according to the CMR Convention. Article 4 of the CMR Convention stipulates that the contract of carriage shall be confirmed by the making out of a consignment note. The absence, irregularity or loss of the consignment note shall not affect the existence or validity of the contract of carriage, which shall remain subject to the provisions of the CMR Convention. Article 9 of the CMR Convention stipulates that, unless proven otherwise, the consignment note shall be prima facie evidence of the making of the contract of carriage, the contents of the contract and the receipt of the consignment by the carrier. Information provided in the consignment note therefore establishes a refutable legal presumption regarding the existence or the contents of the contract of carriage, as applicable.
International Carriage of Goods by Road [CMR Convention] must be interpreted in conjunction with Article 29 of the CMR Convention. Article 3 of the CMR Convention stipulates that the carrier is responsible for the acts and omissions of their agents and servants, and of any other persons of whose services they make use for the performance of the carriage, as well as for the acts and omissions of the agents, servants and any other persons whose services are used by the carrier’s subcontractor or the subcontractor’s subcontractor, as long as such agents, servants or other persons are acting within the scope of their employment. Acts within the scope of one’s employment also include any acts of the person whereby he or she committed a criminal offence, thereby advancing only his or her own interests or the interests of a third party, not the interests of the carrier. In terms of Article 3 of the CMR Convention, the carrier is liable for the acts of their employees or, as applicable, persons of whose services they have made use in the carriage of the vehicle, even if these persons act contrary to the orders given by the employer; the reason is that the carrier is also liable for the proper choice of their employees or subcontractors, as applicable. The carrier is therefore also liable for any theft or embezzlement of goods, as the case may be, committed by the ‘persons used’ if the goods were entrusted to them in the performance of the contract of carriage. The carrier’s liability under Article 17(1) of the CMR Convention is strict liability. The carrier cannot be relieved of this liability by proving a lack of fault, but only by proving the existence of grounds for liberation. Liability for damage to the goods or losses caused during the carriage as a result of a criminal offence committed by the driver who participated in the theft of the goods rests with the carrier in compliance with Article 17(1) of the CMR Convention. Information provided in the consignment note establishes a refutable legal presumption regarding the existence or the contents of the contract of carriage, as applicable. This does not mean, however, that Section 610 of the Czech Commercial Code could not apply. Determination of the amount of damage under Article 23(2) and (3) of the CMR Convention is principally made by reference to the invoice (or any similar document) issued and submitted by the supplier (here the foreign supplier), without exceeding the limits of damages under Article 23(3) of the CMR Convention. When interpreting international treaties or agreements as the source of law, the national court may also invoke the case law of foreign courts that examined the same or a similar issue.
"The Treatment of Unfair Terms in the Process of Foreclosure in Spain. Mortgage Enforcement Proceedings in the Aftermath of the ECJ's 'Ruling of the Evicted'"
ZEuP: Zeitschrift für europäisches Privatrecht, Forthcoming
FERNANDO ESTEBAN DE LA ROSA, University of Granada
English Abstract: This article highlights the impact of the Aziz Ruling on Spanish legislation and judicial practice one year after it was delivered. Changes to formally adapt Spanish legislation to the doctrine of the Aziz Ruling have taken place through Act 1/2013. However, it is especially noteworthy that the judicial branch has sought to use the Aziz Ruling to bring about a deep reform of the system, applying de facto solutions without pre-existing legal norms, proposing progressive and ethical interpretations according to the doctrine established by the ECJ, and referring preliminary questions to the ECJ to counter new Spanish legislation.
German Abstract: Der vorliegende Beitrag untersucht die tatsächliche Bedeutung für die gesetzgeberische und richterliche Praxis der Entscheidung Aziz ein Jahr nach ihrem Erlass. Die formelle Anpassung des spanischen Rechts an die Anforderungen, die aus diesem Urteil entstammen, erfolgte mit Gesetz 1/2013. Gleichwohl muss besonders gewürdigt werden, dass die Richterschaft sich bemüht hat, anhand der Aziz-Rechtsprechung eine grundlegende Änderung des Systems durchzuführen, sei es durch die Anwendung von de facto-Lösungen oder durch den Vorschlag von fortschrittlichen und ethischen Lösungen auf Grundlage der vom EuGH etablierten Doktrin. Auch wurden dem EuGH zahlreiche Vorlagefragen gestellt, die die Unionsrechtskonformität der neuen spanischen Rechtsakte betreffen.
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Contracts & Commercial Law eJournal
William K. Townsend Professor of Law, Yale University - Yale Law School, Yale University - Yale School of Management
RANDY E. BARNETT
Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago Law School
CLAYTON P. GILLETTE
Max E. Greenberg Professor of Contract Law, New York University School of Law
ROBERT A. HILLMAN
Edwin H. Woodruff Professor of Law, Cornell Law School
AVERY W. KATZ
Milton Handler Professor of Law, Columbia University - Law School
RANDAL C. PICKER
Leffmann Professor of Commercial Law; Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory, University of Chicago - Law School
Sterling Professor of Law, Yale Law School
MICHAEL J. TREBILCOCK
Professor and Chair in Law and Economics, University of Toronto - Faculty of Law
Leo E. Gottlieb Professor of Law, Harvard Law School