Irit Mevorach
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199544721
- eISBN:
- 9780191705564
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199544721.001.0001
- Subject:
- Law, Company and Commercial Law
Insolvency within multinational enterprise groups (MEGs) raises complex issues due to the foreign elements of the case and the multiplicity of debtors. The key problem is deciding to what extent and ...
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Insolvency within multinational enterprise groups (MEGs) raises complex issues due to the foreign elements of the case and the multiplicity of debtors. The key problem is deciding to what extent and in which ways should there be ‘linkage’ between the entities in the course of their insolvency in order to promote insolvency goals. Historically the issue has been neglected both in national and international regimes. However, new initiatives are currently developing. In order to deal with this issue this book provides a theoretical framework, suggesting a balance between Entity-Enterprise issues (drawn from company law theory and the problem of enterprise groups) and Universality-Territoriality issues (drawn from cross-border insolvency and conflict of laws theory). This is further assisted by a taxonomy describing prototypical scenarios of MEGs and their insolvency. The theoretical framework and prototypical scenarios are the basis for critical analyses of various tools for ‘linking’ between different components of MEGs in the course of their insolvency and the degree to which they fit with a series of insolvency goals. Thus, the book suggests a comprehensive approach for dealing with insolvency within MEGs which can be used not only within the current cross-border insolvency frameworks (e.g., UNCITRAL Model Law on Cross-Border Insolvency, EC Regulation on Insolvency Proceedings) but also as a definitive guideline for future reform. It argues that a global group-wide perspective for MEG insolvencies can be desirable if its application is limited to appropriate types of cases where unduly defeat of entity law and territoriality concerns can be minimized.Less
Insolvency within multinational enterprise groups (MEGs) raises complex issues due to the foreign elements of the case and the multiplicity of debtors. The key problem is deciding to what extent and in which ways should there be ‘linkage’ between the entities in the course of their insolvency in order to promote insolvency goals. Historically the issue has been neglected both in national and international regimes. However, new initiatives are currently developing. In order to deal with this issue this book provides a theoretical framework, suggesting a balance between Entity-Enterprise issues (drawn from company law theory and the problem of enterprise groups) and Universality-Territoriality issues (drawn from cross-border insolvency and conflict of laws theory). This is further assisted by a taxonomy describing prototypical scenarios of MEGs and their insolvency. The theoretical framework and prototypical scenarios are the basis for critical analyses of various tools for ‘linking’ between different components of MEGs in the course of their insolvency and the degree to which they fit with a series of insolvency goals. Thus, the book suggests a comprehensive approach for dealing with insolvency within MEGs which can be used not only within the current cross-border insolvency frameworks (e.g., UNCITRAL Model Law on Cross-Border Insolvency, EC Regulation on Insolvency Proceedings) but also as a definitive guideline for future reform. It argues that a global group-wide perspective for MEG insolvencies can be desirable if its application is limited to appropriate types of cases where unduly defeat of entity law and territoriality concerns can be minimized.
Nadja Alexander
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199653485
- eISBN:
- 9780191758270
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199653485.003.0002
- Subject:
- Law, Comparative Law, Private International Law
This chapter explores the private international law on mediation, which is an emerging dispute resolution field and the subject of considerable regulatory reform. It begins by exploring the role of ...
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This chapter explores the private international law on mediation, which is an emerging dispute resolution field and the subject of considerable regulatory reform. It begins by exploring the role of private international law in mediation and the extent to which harmonisation initiatives — as opposed to legal diversity — offer advantages or disadvantages to cross-border mediation law and practice. As applicable mediation law is often the same for cross-border and domestic applications, the chapter introduces a contemporary and broad definition of mediation law and offers a structure for thinking about the form and content of mediation law. Here multi-disciplinary factors shaping mediation law, such as political, economic, organisational and behavioural–psychological perspectives, are examined together with more traditional legal considerations. These and other factors add real-life texture to cross-border legal instruments relevant to mediation and are vital to achieve a balanced and informed perspective on the topic. International illustrations are presented throughout the chapter with specific sections on European and international instruments of private international law.Less
This chapter explores the private international law on mediation, which is an emerging dispute resolution field and the subject of considerable regulatory reform. It begins by exploring the role of private international law in mediation and the extent to which harmonisation initiatives — as opposed to legal diversity — offer advantages or disadvantages to cross-border mediation law and practice. As applicable mediation law is often the same for cross-border and domestic applications, the chapter introduces a contemporary and broad definition of mediation law and offers a structure for thinking about the form and content of mediation law. Here multi-disciplinary factors shaping mediation law, such as political, economic, organisational and behavioural–psychological perspectives, are examined together with more traditional legal considerations. These and other factors add real-life texture to cross-border legal instruments relevant to mediation and are vital to achieve a balanced and informed perspective on the topic. International illustrations are presented throughout the chapter with specific sections on European and international instruments of private international law.
Caroline Nicholas and Anna Caroline Müller
- Published in print:
- 2017
- Published Online:
- June 2017
- ISBN:
- 9780198795650
- eISBN:
- 9780191836961
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198795650.003.0006
- Subject:
- Law, Public International Law
This chapter considers policy measures to increase the participation of SMEs in government procurement and their potential economic and social policy benefits. It considers the scale and importance ...
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This chapter considers policy measures to increase the participation of SMEs in government procurement and their potential economic and social policy benefits. It considers the scale and importance of government procurement, and barriers to SME access to these markets. While some SME support policies are often considered to run counter to fundamental goals of government procurement (notably preference policies that may reduce competition and transparency), the chapter explains that many SME policies in fact support efficient and effective government procurement. It explores the synergies between such SME policies and measures designed to ensure cross-border access to government procurement markets. It considers relevant provisions in the WTO Agreement on Government Procurement and the UNCITRAL Model Law on Public Procurement, and concludes that their recent revisions to promote transparency and effectiveness in the pursuit of these policies are welcome, but that further work to ensure their effective application in practice is needed.Less
This chapter considers policy measures to increase the participation of SMEs in government procurement and their potential economic and social policy benefits. It considers the scale and importance of government procurement, and barriers to SME access to these markets. While some SME support policies are often considered to run counter to fundamental goals of government procurement (notably preference policies that may reduce competition and transparency), the chapter explains that many SME policies in fact support efficient and effective government procurement. It explores the synergies between such SME policies and measures designed to ensure cross-border access to government procurement markets. It considers relevant provisions in the WTO Agreement on Government Procurement and the UNCITRAL Model Law on Public Procurement, and concludes that their recent revisions to promote transparency and effectiveness in the pursuit of these policies are welcome, but that further work to ensure their effective application in practice is needed.
Hong-Lin Yu
- Published in print:
- 2011
- Published Online:
- September 2015
- ISBN:
- 9781845861070
- eISBN:
- 9781474406154
- Item type:
- book
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9781845861070.001.0001
- Subject:
- Law, Company and Commercial Law
This book provides a practical guide to the Arbitration (Scotland) Act 2010 together with comparative international case studies. It provides a thorough analysis of the Arbitration (Scotland) Act ...
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This book provides a practical guide to the Arbitration (Scotland) Act 2010 together with comparative international case studies. It provides a thorough analysis of the Arbitration (Scotland) Act 2010 (which provides a modern statutory framework for domestic and international arbitration in Scotland) and the most important current issues that are arising in the field of international commercial arbitration. It includes a number of highly relevant legal case studies that compare Scottish and international practice. These provide a practical insight into the various aspects of arbitration. It also includes a number of chapters on international practice. These cover UNCITRAL Model Law, UNCITRAL Arbitration Rules, institutional arbitration rules, and International Bar Association arbitration guidelines.Less
This book provides a practical guide to the Arbitration (Scotland) Act 2010 together with comparative international case studies. It provides a thorough analysis of the Arbitration (Scotland) Act 2010 (which provides a modern statutory framework for domestic and international arbitration in Scotland) and the most important current issues that are arising in the field of international commercial arbitration. It includes a number of highly relevant legal case studies that compare Scottish and international practice. These provide a practical insight into the various aspects of arbitration. It also includes a number of chapters on international practice. These cover UNCITRAL Model Law, UNCITRAL Arbitration Rules, institutional arbitration rules, and International Bar Association arbitration guidelines.
Andrew Murray
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199691661
- eISBN:
- 9780191738593
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199691661.003.0037
- Subject:
- Law, Public International Law
Of key importance to the challenge of cyberspace to all areas of law is the distinction between space and cyberspace. Space is the lawyer's natural environment. It represents our place in the ...
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Of key importance to the challenge of cyberspace to all areas of law is the distinction between space and cyberspace. Space is the lawyer's natural environment. It represents our place in the physical environment and is the cornerstone of our legal systems, domestic and international. Cyberspace is the global network of interdependent information technology infrastructures, telecommunications networks, and computer processing systems. How does the rule of law apply in cyberspace? If we are to have any hope of producing effective de facto jurisdiction for cyberspace content, international lawyers must first accept there is a distinction between space and cyberspace. Cyberspace may (when viewed from the space of the physical environment) look like a communications media. There are areas where international cooperation and perhaps even formalization of law through treaty obligations are likely to be successful. They include e-commerce where the UNCITRAL Model Law on Electronic Commerce has been extremely successful in bringing harmony and international recognition; intellectual property rights where a number of the World Intellectual Property Organization treaties and others such as the recently finalized Anti-Counterfeiting Trade Agreement have been or are likely to be effective; and a number of criminal law measures where the Council of Europe Convention on Cybercrime has been effective in providing cooperation on matters of illegal interception and computer-related fraud. However, if lawyers want to create de facto control over content it cannot be done through legal documents; it must be done through a web of terms and conditions of service and through Lessigian code-based solutions.Less
Of key importance to the challenge of cyberspace to all areas of law is the distinction between space and cyberspace. Space is the lawyer's natural environment. It represents our place in the physical environment and is the cornerstone of our legal systems, domestic and international. Cyberspace is the global network of interdependent information technology infrastructures, telecommunications networks, and computer processing systems. How does the rule of law apply in cyberspace? If we are to have any hope of producing effective de facto jurisdiction for cyberspace content, international lawyers must first accept there is a distinction between space and cyberspace. Cyberspace may (when viewed from the space of the physical environment) look like a communications media. There are areas where international cooperation and perhaps even formalization of law through treaty obligations are likely to be successful. They include e-commerce where the UNCITRAL Model Law on Electronic Commerce has been extremely successful in bringing harmony and international recognition; intellectual property rights where a number of the World Intellectual Property Organization treaties and others such as the recently finalized Anti-Counterfeiting Trade Agreement have been or are likely to be effective; and a number of criminal law measures where the Council of Europe Convention on Cybercrime has been effective in providing cooperation on matters of illegal interception and computer-related fraud. However, if lawyers want to create de facto control over content it cannot be done through legal documents; it must be done through a web of terms and conditions of service and through Lessigian code-based solutions.
Orsolya Toth
- Published in print:
- 2017
- Published Online:
- March 2017
- ISBN:
- 9780199685721
- eISBN:
- 9780191765711
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685721.003.0009
- Subject:
- Law, Company and Commercial Law, Private International Law
This chapter examines the lex mercatoria as the governing law in arbitration and evaluates the status quo by reviewing arbitral awards. It discusses the development of the conflict of laws in ...
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This chapter examines the lex mercatoria as the governing law in arbitration and evaluates the status quo by reviewing arbitral awards. It discusses the development of the conflict of laws in arbitration shaped by a tension between territorial conflicts rules and de-localized arbitration. The development has yielded increased party autonomy and arbitral discretion to apply a-national law, reflected for example in the UNCITRAL Model Law or the ICC Rules. Arbitrators have used the concepts of ‘implied negative choice’ or ‘voie directe’ to apply a-national law. The chapter discusses the Westinghouse case to illustrate implied negative choice. It argues that the application of the lex mercatoria depends on whether arbitrators are enthusiasts or sceptics of the concept, which undermines the certainty of the choice of law process. The problem remains that if we do not know what the lex mercatoria is, it is impossible to determine when and how it applies.Less
This chapter examines the lex mercatoria as the governing law in arbitration and evaluates the status quo by reviewing arbitral awards. It discusses the development of the conflict of laws in arbitration shaped by a tension between territorial conflicts rules and de-localized arbitration. The development has yielded increased party autonomy and arbitral discretion to apply a-national law, reflected for example in the UNCITRAL Model Law or the ICC Rules. Arbitrators have used the concepts of ‘implied negative choice’ or ‘voie directe’ to apply a-national law. The chapter discusses the Westinghouse case to illustrate implied negative choice. It argues that the application of the lex mercatoria depends on whether arbitrators are enthusiasts or sceptics of the concept, which undermines the certainty of the choice of law process. The problem remains that if we do not know what the lex mercatoria is, it is impossible to determine when and how it applies.
Orsolya Toth
- Published in print:
- 2017
- Published Online:
- March 2017
- ISBN:
- 9780199685721
- eISBN:
- 9780191765711
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685721.003.0005
- Subject:
- Law, Company and Commercial Law, Private International Law
This chapter examines the status of the lex mercatoria as autonomous law by discussing the concept of ‘a-national usage’. It is controversial whether the lex mercatoria is an autonomous legal system. ...
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This chapter examines the status of the lex mercatoria as autonomous law by discussing the concept of ‘a-national usage’. It is controversial whether the lex mercatoria is an autonomous legal system. The criteria of a ‘legal system’ are often determined arbitrarily and legal positivism ties law to the nation-state. The chapter argues that a paradigm-shift is needed to grasp ‘a-national law’. It selects Herbert Hart’s concept of law, who examines rules within a social group which enables the scrutiny of the international business community. Primary rules and secondary rules help the analysis of the factual existence and legal recognition of usages. Roy Goode’s discussion of trade usages facilitates our understanding of ‘a-national’ usage which need not be recognized by any domestic law, only by the arbitrator. Due to harmonization efforts under the UNCITRAL Model Law and the New York Convention, there are minimal restrictions on arbitrators in this respect.Less
This chapter examines the status of the lex mercatoria as autonomous law by discussing the concept of ‘a-national usage’. It is controversial whether the lex mercatoria is an autonomous legal system. The criteria of a ‘legal system’ are often determined arbitrarily and legal positivism ties law to the nation-state. The chapter argues that a paradigm-shift is needed to grasp ‘a-national law’. It selects Herbert Hart’s concept of law, who examines rules within a social group which enables the scrutiny of the international business community. Primary rules and secondary rules help the analysis of the factual existence and legal recognition of usages. Roy Goode’s discussion of trade usages facilitates our understanding of ‘a-national’ usage which need not be recognized by any domestic law, only by the arbitrator. Due to harmonization efforts under the UNCITRAL Model Law and the New York Convention, there are minimal restrictions on arbitrators in this respect.
