Hasil untuk "Private international law. Conflict of laws"

Benjamin Katzenberg, Ananya Kuthiala

This essay is part of an ongoing dialogue on INTERPOL’s role in international law and global governance. It argues that INTERPOL’s 2025 General Agreement on the Privileges and Immunities of the ICPO-INTERPOL (General Agreement)1 reflects a remarkable development in the multilateral recognition of international organizations.

Narcisa Galeș, Dumitrița Florea

Foreign law in private international law means the law of a State other than the State of the court seised, which may be applicable to a legal relationship with foreign elements (i.e. a relationship with links with several States). In other words: when a case has elements of a connection with more than one State (e.g. different citizenships of the parties, place of conclusion of the contract in another State, property located in another country), the court deciding the dispute must determine which law applies. That law may be: its own law (lex fori) - the law of the State where the case is heard - or the foreign law - the law of another State, indicated by the rules of private international law as applicable to the legal relationship. Foreign law governs the substance of the legal relationship (e.g. validity of the contract, its effects, contractual liability). The Romanian court must identify, know and apply it as if it were its own law (subject to public policy). It should be noted that foreign law is not optional - if the conflict rules refer to it, the court is obliged to apply it. The application of foreign law in private international law means that the court of one State applies, on the merits of the case, the law of another State, as indicated by its conflict rules. The essential characteristics of the application of foreign law are: it is mandatory - the court applies the foreign law as its own law, if the conflict rules designate it; the court is required to establish and prove the content of the foreign law; the application is made in compliance with domestic public policy (if the foreign law contravenes fundamental principles, it is set aside); it does not concern procedure - it remains governed by the law of the forum (lex fori). We conclude briefly that the application of foreign law is the use of the legal rules of another State to settle the substance of a legal relationship with foreign elements.

هادی آذری

تأکید چندبارة دیوان بین‌المللی دادگستری بر پایبندی به رویه‌قضایی خود از یک طرف، و مطرح‌شدن نقض مواد متعدد عهدنامة مودت ۱۹۵۵ در دو دعوای برخی اموال ایران و نقض‌های ادعایی عهدنامة مودت از طرف دیگر، این سؤال را به ذهن متبادر می‌کند که یافته‌های دیوان در رأی ماهوی ۳۰ مارس ۲۰۲۳ در دعوای برخی اموال، چه تأثیری بر نتیجة دعوای نقض‌های ادعایی خواهد داشت. این تأثیر احتمالی از دو جهت قابل بررسی است. نخست از جهت ایرادات مقدماتی، سپس از لحاظ موضوعات ماهوی. از آنجا ‌که ایرادات مقدماتی نوعاً موضوعات و مباحث حقوقی را مطرح می‌کنند، احتمال تبعیت دیوان از یافته‌های قبلی خود در این موارد در مقایسه با موضوعات ماهوی بیشتر است.

Violeta Danziger, Mirta López González

En este artículo se busca  dar a conocer la reciente experiencia, implementación e impacto que tuvieron los Comités de Prevención y Solución de Conflictos Mario Juliano[1] como dispositivos en materia de Justicia restaurativa dentro de unidades del Servicio Penitenciario Federal de la República Argentina, donde se encuentra alojada la población joven adulta. Desde una perspectiva socio-antropológica y jurídica se pretende indagar sobre el  propósito y la implicancia que tienen los dispositivos de Justicia restaurativa dentro del ámbito penitenciario, relevar y visibilizar a la población joven adulta que se encuentra alojada en las unidades penales y describir y analizar en qué consiste la puesta en funcionamiento de los Comités destinados específicamente a los jóvenes adultos. This article aims to present the recent experience, implementation, and impact of the Mario Juliano[2] Conflict Prevention and Resolution Committees as Restorative Justice mechanisms within prison units of the Federal Penitentiary Service of the Argentine Republic, where the young adult population is housed. From a social, anthropological, and legal perspective, the aim is to inquire into the purpose and implications of restorative justice mechanisms within the penitentiary environment, to survey and make visible the young adult population that is housed in prisons, as well as to describe and analyze the implementation of the Committees specifically designed for young adults. [1] Mario Juliano fue Juez Penal, Director Ejecutivo de la Asociación Pensamiento Penal e integrante del Comité de Prevención y Solución de Conflictos del penal de Mar del Plata, mejor conocida como cárcel de Batán, Provincia de Buenos Aires. Mirta López González es quién implementó los Comités de Prevención y Solución de Conflictos que funcionan actualmente en las unidades penitenciarias de Ezeiza y Marcos Paz, es también quien está a cargo de la coordinación de los mismos. [2] Mario Juliano was a Criminal Judge, Executive Director of the Asociación Pensamiento Penal and member of the Conflict Prevention and Resolution Committee of the Mar del Plata prison, better known as Batán prison, Province of Buenos Aires. Mirta López González is the person who implemented the Conflict Prevention and Resolution Committees currently operating in the penitentiary units of Ezeiza and Marcos Paz, and is also in charge of their coordination.

Juan Pablo Scarfi

The Institut de Droit International (IDI) and the International Law Association (ILA) have bequeathed complex and contradictory legacies to the Americas. This essay explores both the resonances and the dissonances that the formation of the IDI, and to a lesser extent, the ILA, had in the institutionalization of the modern discipline of international law in the Americas. On the one hand, the IDI's establishment as an elite Eurocentric organization with a missionary imperial approach to the promotion and reform of international law, generated resonances across the Americas, inspiring the creation of the American Institute of International Law (AIIL). On the other hand, the AIIL emerged as a reaction to the IDI, insofar as the former promoted juridical values based on the idea of American international law and a distinctive sense of U.S. and continental legal exceptionalism. The essay argues that the institutionalization of international law in the Americas was both inspired by the Eurocentric imperial and elitist legal approach promoted by the IDI, and the desire to forge a distinctive Western Hemispheric counterpart: a continental American international law.

Seyyed Hasan Hosseini Moghaddam, Setareh Ayoubi, Mehdi Taleghan Ghaffari

Today, online stores sell goods and services through online contracts, exchanging emails with the other party, or filling out a specific form on the website by one party. Online contracts may be executed by presenting the terms of the contract to one party and then asking the applicant to click on the words "I agree" or something similar. The number of consumers who use online platforms to fulfill their shopping needs has increased, and online stores have responsibilities for the intermediary role and the platform they provide for online buying and selling. From the legal point of view, two types of contractual or non-contractual responsibilities can be considered for these stores. Currently, these types of internet businesses are very popular among users, but in any case, we should look for a space to increase the security of this type of service and secure it, while taking care of and protecting consumer rights; because at present, with the very wide growth of this type of websites and online stores in different fields, we have witnessed the provision of services in the fields of sports, culture and leisure, electronic devices such as audio and visual devices, household, personal and office, real estate and land, vehicles, services and training, supplies and business, and even recruitment and employment or expression of job opportunities, etc. Since online platforms often act as "gateways to control and limit interactions in a system", the first question is whether online platforms and online stores can still be considered simply as intermediaries or should they be suppliers. The second question is whether platforms, as dominant channels in the market, may be held liable to their customers for infringements caused primarily by platform suppliers. Finally, the third question is whether there is a necessary connection between the first and second questions, namely that the platform operator may be held liable to its customers while it may not be treated as a mere intermediary, it may be treated as a supplier of goods and services provided by Platform Providers. Regarding the activity of online stores and their responsibility for their actions or others, it cannot be assumed that they are not absolutely responsible. The important issue is that in online shopping, the buyer makes a transaction that the seller has not seen closely, therefore, the necessity of such purchases, due to its nature, requires more support from the buyer. Because in such transactions, the buyer does not have detailed information about the seller of the goods, their credit, and the transaction, and the burden of the purchase risk is on the shoulders of the buyer. For this reason, as well as for the specialization of the subject and its great application and importance, in this research, an attempt will be made to examine the civil liability of online stores in the laws of Iran and the European Union. In relation to the foundations of civil responsibility of online stores, the theory of fault should be accepted as the main basis of civil responsibility in the laws of Iran and the European Union. In fact, where the providers of their Internet services and goods commit harmful acts, their liability is still based on fault. However, regarding the responsibility of internet sellers, you can also refer to other bases. The important thing about online stores is that concluding a sales contract through the internet in this category of stores should not create doubt that online stores are not subject to the general rules of civil liability. On the contrary, it should be stated that such stores are subject to general rules regarding civil liability rules; because buying or selling through online stores differs from traditional contracts in only a few specific cases; the most important of which is the method of concluding a contract. In other words, except for a few minor cases, in other cases, buying from an online store is not much different from buying from a real store; therefore, in relation to the civil liability of online stores, two types of liability can be realized, contractual and non-contractual liability. This type of separation in civil liability has been accepted both in the civil law of Iran and in the civil law of the European Union. On the other hand, in order to realize the civil liability of online stores in two areas of contractual and non-contractual liability, certain conditions are necessary. So in the field of contractual liability, the existence of a valid contract, breach of contract, and the existence of damage caused by the breach of contract are necessary, and in the field of non-contractual liability of the online store, the occurrence of loss, harmful action and the relationship of causation is necessary. It is suggested that cyberspace and internet stores are very suitable for millions of jobs. On the other hand, the Internet is a useful tool for marketing various services. In this regard, the creation of up-to-date and applicable laws as well as the amendment of existing laws are more important than ever. For this reason, it is suggested that, especially in Iranian law, laws in the field of online stores should be formulated in a specific way, and in these laws, the civil liability of this type of store should be determined clearly, inspired by the principles of civil responsibility and not limited to accepting one of the opinions and principles. Laws that, in addition to preventing the occurrence of computer crimes, should provide the opportunity for legal internet businesses to operate and grow, and this means that the laws are fair. In addition to the definition of platforms, the law that is developed for this purpose should include the providers and users of the internet platform for the purpose of electronic commerce, the law that is formulated for this purpose must state the criteria and criteria accepted in the legal analysis, of course, a mechanism for the purpose of floating the bon and the ability to generalize the criteria. Claims between parties (both platform, supplier, and user) should be considered. Also, the cases where the rules related to transactions do not respond to the new needs are written and govern the relations of the parties.

Tatiana Scaranello Carreira

O presente artigo aborda a importância da adoção de métodos de solução de controvérsias em matéria tributária, com o intuito de pacificar entendimentos dos Estados Contratantes da Convenção Modelo da OCDE acerca de assuntos tão sensíveis que afetam consideravelmente os investimentos. A partir da análise do art. 25 da Convenção Modelo da OCDE, o qual prevê expressamente a possibilidade da adoção do procedimento amigável e da arbitragem tributária pelos Estados Contratantes nos tratados internacionais sobre bitributação celebrados, conclui-se sobre a necessidade de o Brasil avançar nessa seara. Além da análise aprofundada quanto ao previsto na norma da OCDE, no que tange ao Direito Tributário Internacional é indispensável conhecer a posição estadunidense, através de seu órgão, o IRS, analisando como a arbitragem tributária foi adotada pelos Estados Unidos da América em Convenções sobre Dupla Tributação, em especial a firmada com a Alemanha. Por fim, destaca-se Portugal, cujo modelo de adoção da arbitragem tributária por sua legislação interna é objeto de estudo por diversos tributaristas brasileiros que afirmam ser um modelo a ser seguido pelo Brasil.

Patrícia Branco, João Pedroso

Portugal, with circa 10 million inhabitants, has almost 800 young people, aged 16-24 years, serving prison sentences. The majority comes from low-income families living in sensitive urban areas of Lisbon and Oporto, with low levels of education, and many are Afro-Portuguese or come from African Portuguese-speaking countries. These young people are thus identified with the neighbourhoods where they live, portrayed as violent and problematic. The narratives from the actors of the justice system we interviewed suggest that such depiction results from a set of plural disruptions – social, legal, and institutional – leading to the selectivity and criminalisation of this group of young people. We thus call them the “damned of inclusion” since the plurality of exclusions affecting them hasn’t been addressed holistically by the social inclusion programs created in the last decades. Since these young men are “caught under the radar”, there seems to be a criminal reaction from the law, the judicial practices and the prison system – which turns into a normalizing response.

Nikitas E. Hatzimihail

To better appreciate present-day private international law and its future prospects and challenges, we should consider the history and historiography of the field. This book offers an original approach to the study of conflict of laws and legal history that exposes doctrinal lawyers to historical context, and legal historians to the intricacies of legal doctrine. The analysis is based on an in-depth examination of Medieval and Early Modern conflict of laws, focusing on the classic texts of Bartolus and Huber. Combining theoretical insights, textual analysis and historical perspectives, the author presents the preclassical conflict of laws as a rich world of doctrines and policies, theory and practice, context and continuity. This book challenges preconceptions and serves as an advanced introduction which illustrates the relevance of history in commanding private international law, while aspiring to make private international law relevant for history.

Iris Sportel

This paper focuses on cultural, religious, or ethnic claims made by family members in court cases against state institutions in the Netherlands. Based on an analysis of court judgements, I explore claims-making in cases regarding children from minority families in various fields of law. In the literature, such claims are often discussed in the context of the so-called cultural defence, where perpetrators of crimes make cultural claims to avoid or lessen punishment. However, family members may also make claims for exceptions of state policies, demand accommodation of particular practices, or to challenge discrimination by state institutions. The paper shows how Dutch courts are reluctant to engage with such claims, and often leave them out of court judgements entirely. I argue that this lack of engagement with cultural, religious, or ethnic claims should be understood in the context of general Dutch discourses of colour-blindness and assimilation of migrant minorities.

Richard L. Garnett

Internationalism has long been regarded as an important goal of any national conflict of laws system. The three main branches of the subject – jurisdiction, choice of law and recognition and enforcement of foreign judgments – should be developed in a manner sympathetic to the needs of international trade and interaction and allow for recognition of foreign interests. In exceptional cases, however, local public policy should also be available to protect private rights. Internationalism is a major theme in the recent book, The Conflict of Laws in New Zealand. This article assesses the state of internationalism in New Zealand conflict of laws and the contribution of the book to the issue.

Lachlan Forrester

The common law world continues to grapple with how to properly characterise equitable doctrines in private international law. There has been extensive criticism of the existing approach to characterisation and choice of law for equity which favours separately characterising equitable obligations and applying the lex fori. Within this broader discourse, a debate is beginning to emerge around issues involving both equitable obligations and immovable property. In this early debate, two schools of thought have developed with respect to the proper characterisation and choice of law for implied or resulting trusts over immovable property. The first approach, advanced primarily by the courts, characterises the trust as an equitable obligation governed by the lex fori. The second approach, primarily endorsed by commentators, characterises the trust as an issue of immovable property governed by the lex situs. This paper, upon evaluating the lex fori and the lex situs against the underlying objectives of choice of law, rejects both approaches as unfit for purpose. Instead, it advocates a new approach to the characterisation and choice of law for resulting trusts. This paper proposes that resulting trusts be governed by the proper law of the relationship. This conception would align with the approach taken to express trusts under the Hague Trusts Convention and most effectively provides for consistency and clarity while upholding the reasonable expectations of the parties.

Modern international hydrocarbons turnover is becoming more autonomous and decentralized. This process is facilitated not only by the introduction into contractual practice of such network technologies as smart contracts and blockchain platforms, but also by the wide dissemination of sources of non-governmental regulation (lex petrolea). In the context of the network paradigm of private international law, the classic problem of conflict of laws is exacerbated. The author considers the conflict-of-laws aspects of the use of smart contracts based on blockchain technology in cross-border oil and gas transactions, taking into account the fact that the use of computer algorithms does not create a new contract, but is only a special form of transaction. Such “automated” transactions in the oil and gas sector involving multiple jurisdictions create uncertainty in their legal regime. In the absence of a comprehensive substantive legal regulation, and in connection with the phenomenon of lex petrolea, the conflict-of-laws method of regulation predominates. The author shares his reasoning concerning the possibility of extending the application of Regulation No. 593/2008 of the European Parliament and the Council of the European Union “On the Law to be Applicable to contractual obligations (Rome I)” to smart contracts. The author concludes that existing regulation is quite applicable to smart contracts in cross-border oil and gas transactions. Another question is whether the law, which is applicable by virtue of a conflict-of-laws rule, provides for an appropriate substantive basis. To date, special legislation on smart contracts has been passed in only several American states. It is predicted that in the future, private international law will not only determine the law applicable to smart contracts, but will also be a guide to disseminating the positive experience of legal regulation of smart contracts in different countries.

omid rashidi, Eisa amini, rabia eskini

Totally Arbitration is divided to Voluntary Arbitration Clause and Compulsory Arbitration Clause. Arbitration Clause as a rule Has Contractual Nature .If The Content Of Arbitration Clause For The Reason Ambiguity Has Been Needed To The Interpretation And Arbitrator To Intended Detection Of Common Intention Of The Parties ,Having No Alternative Must To Interpret Of The Content Of Arbitration Clause ,Upon The Principles And Rules of Interpretation Of Contract .But Legislator In Some Cases Imposed On Will Of The Parties Of Contract ,Accepted Of The Arbitration Clause Or Referring Of Claims To The Jurisdiction Of Arbitral Tribunal And Contractual Nature Of Arbitration Clause Has Been Extinguished Or Limitation .In These Cases If Content Of The Arbitration Clause Faced With Ambiguity And Necessitate Of Interpretation, Arbitrator Must Intended To Detection Of The Legislator Will ,Upon The Principles And Rules of Interpretation Of statutes And Discussion Of Detection Of Natural Will And Common Intention Is Ceased .In This Article Interim Of Making Clear Nature And Criterion Of Distinction Of The Compulsory Arbitration Clause ,Causes And Grounds Of Independent Arbitration Clause Necessity From Basic Contract Present By Application Analysis And State Of Some Cases In The Law Of Iran.

A. Briggs

This book provides a survey and analysis of the rules of private international law as they apply in England. Written to take account of the various possible outcomes of the Brexit process, it goes as far as is possible to make sense of the effect this will have on English private international law. The volume covers general principles, jurisdiction, and the effect of foreign judgments; the law applicable to contractual and non-contractual obligations; and the private international law of property, of adults (the increasingly complex law of children is described in bare outline), and of corporations. This new edition of the text organizes the existing material in light of European legislation on private international law, reflecting the way in which an accurate representation of English private international law required it to be seen as European law with a common law periphery, instead of common law with European legislative influences. As at the time of writing—and probably for some time to come—the consequences of Brexit are a mystery, the attempt is made to describe the various possible shapes which the subject will assume in the future.

Réka Markovich

Álvaro Santos

A backlash against the post-Cold War order of liberal globalization has taken hold in the rich North Atlantic countries. Concerns about wages, working conditions, and economic opportunity are central to the critique of international trade agreements of the last three decades. While labor rights have progressively been included in trade agreements, they have done little to reshape workers’ well-being and workplace conditions. The new United States-Mexico-Canada Agreement (USMCA) may signal a pivot to a new model requiring reforms of domestic labor law and other issues important to workers. However, there is much more to be done to rebalance the power between capital and labor in trade agreements. In addition, for the United States and other rich countries, reform at home may be equally important.

V. C. Govindaraj

This chapter examines the ‘vested or acquired rights’ theory of Professor A. V. Dicey in England and Professor J. H. Beale in the United States, which is traceable to Ulrich Huber (1635-94), a Dutch jurist-cum-judge. Huber’s formulations in respect of the binding force of law in general and conflict of laws in particular is derived from the sovereignty of states which, according to him, is unlimited and absolute. This view is in keeping with Hobbesian theory of sovereignty of states. The chapter aims to impress upon the Indian legal fraternity that it is high time to reorient their attitude and approach to conflict of laws or private international law.

Facundo Pérez-Aznar

In an article published concurrently in the Journal of International Economic Law, I reach many of the same conclusions as Simon Batifort and J. Benton Heath regarding the use of most favored nation (MFN) clauses to import substantive provisions from other treaties. However, although our conclusions are similar, our reasoning differs in several important respects. In my view, the reasons why MFN clauses cannot be used to import treaty provisions have more to do with the nature of these clauses than their specific text. MFN clauses are primary rules that require performing a comparison and determining whether there is a breach of the provision, and this produces legal effects that run against any attempt at importation. In addition, it is not possible or desirable to interpret MFN clauses in isolation from general international law. Stephan Schill is also correct that Batifort and Heath cannot disclaim the normative implications of their effort to shift the debate over MFN clauses. But Schill confuses the legal effects of MFN clauses with a policy consideration (multilateralization) and misreads the interpretative background that must be considered when applying MFN clauses. Schill also mistakes multilateralization via arbitral interpretations of MFN clauses for true multilateralism, which is the product of states working together in multilateral fora. That distinction matters, too, for Schill's solution might provoke a state-led backlash that will undermine the very multilateralism he seeks to promote.