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Extension of Arbitration Clauses over Non-signatories

Author(s): Slavomir Halla / Language(s): English Publication Year: 0

Consent, the final frontier. International commercial arbitration is deemed to be a dispute resolution mechanism embedded in consent of the parties involved. Presentation of such a mutual understanding is done through an arbitration agreement. Therefore, it is often quoted that the arbitration is a creature of such a contract. However, the aim of this paper is to analyse whether its contractual, indeed consensual, nature is the only element which the courts use to identify the subjects who may compel or must be compelled to arbitrate disputes, or whether they employ other considerations as well.

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The Interpretation of Contracts in ICC Arbitration

Author(s): Pavlína Janečková / Language(s): English Publication Year: 0

In international commercial disputes it could be more difficult to determine the real and common will of both parties by reference to a single applicable national law (especially if there was no choice of law). In arbitration there is a larger space for the approach different from the approach of the state courts, because arbitrator’s position is different from that of state courts, which are bound to apply the conflict of laws rules. Opposite to that the international arbitrator often does not have lex fori and he can apply a system of rules different from the national law which would be applied according to the conflict of laws rules.

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Remuneration of insolvency practitioners in reorganization proceedings as a possible inspiration for preventive restructuring?

Author(s): Klára Vítková,Ondřej Zezulka / Language(s): English Publication Year: 0

The draft law on preventive restructuring transposing Directive (EU) 2019/1023 envisages creating the profession of restructuring practitioner. The aim of the article is to offer recommendations for the forthcoming legislation, which is to regulate the calculation of remuneration for this new profession. The article deals with the procedural position and tasks of the restructuring practitioner in preventive restructuring and compares them with the activities of the insolvency practitioner within the reorganization. Based on the similarities and differences, the article examines whether the existing model of remuneration of insolvency practitioner in the reorganization (monthly fee) can be considered a suitable inspiration for the planned decree on the remuneration of the restructuring practitioner. The recommendations de lege ferenda are also based on the analysis of alternative remuneration models (including the German transposition norm).

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Position and role of internal audit within the business group controlling mechanisms

Author(s): Jiří Bálek / Language(s): English Publication Year: 0

The aim of this paper is to define the position and the role of the internal audit within the controlling mechanisms of a business group as these are supplementary to supervisory functions. In some jurisdictions, internal audit forms an essential function with respect to the corporate governance. However, powers of the internal audit body or function are affected and vary due to its position in various legal structures. Within the EU (and Swiss) legislative framework, internal auditing provides independent assurance that governance and internal control processes are operating effectively. As a controlling mechanism, internal audit is in general more efficient if established under the powers of the statutory body than entrusted with the supervisory body. The supervisory powers of internal audit on the group level in the various possible legal structures set forth by the law are, however, mostly dependent on the recognition of the internal audit powers by the local group entities.

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Business law: collaborative economy vs. participatory economy in the digital age

Author(s): Nicolae Pană / Language(s): English Publication Year: 0

The general objective of the postdoctoral paper is to develop a multidisciplinary and cross-sectional study to highlight the role of artificial intelligence in the globalization of democracy and the opportunities offered by technological progress related to the legal phenomenon as a matter of fact. At the same time, the study includes an analysis of the risks to which enterprises and public authorities are subjected in the context of using new technologies and the impact that legal vulnerabilities may have on the calculation of management risks reported through artificial intelligence applications. This article is an integral part of the author's research in the postdoctoral program within ASE Bucharest - Faculty of Law and is focused on the fact that the collaborative economy and participatory economy are major challenges of democracy in general and participatory democracy. Following the analysis of these two concepts, we tried to emphasize the importance of digital processes in the process of globalization of democracy. The author used for this study among the usual research methods, the empirical approach corroborated with the historical approach that underlined the practical relevance of the theses proposed by well-known authors in the field. Among the results and implications, we mention the dissemination of knowledge of concepts and their analysis to the academic community and beyond, and the study can be useful in calibrating and improving management processes both in private/joint ventures and in local and central public authorities.

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Provisional measures concerning security for costs and security for claim in international commercial arbitration

Author(s): Sofia Cozac / Language(s): English Publication Year: 0

This paper is an analysis from a theoretical and case law perspective of the admissibility conditions for interim measures for security of arbitration costs and for security of claim. These types of interim measures belong to the category of interim measures that are less common in arbitral practice. However, according to recent statistics, applications for interim measures have increased exponentially in recent years. It is therefore important that the rules governing them are well-known by both parties as well as arbitrators, so that they can be correctly used in these situations. The major benefit is that the party requesting such measures will be protected from the possible insolvency of the other party. In other words, a party making unmeritorious claims who is also in a precarious financial situation could be discouraged by such a measure from pursuing possible bad faith claims. However, arbitral tribunals should carefully weigh the granting of such measures in order not to financially block the party initiating arbitral proceedings who may also be in a precarious financial situation due to the damaging actions of the party requesting such measures. Such a measure could amount to a denial of justice in international law, preventing the claimant's access to courts. What is essential in such a claim is for the arbitral tribunals to carry out detailed analysis, by balancing the interests of both parties in an attempt not to block the claimant's access to justice. This is why these types of requests are very rarely admitted, and only for sound reasons, as we will further demonstrate in the upcoming lines.

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Book X ("Trusts") of the Draft Common Frame of Reference (DCFR): subject of doctrinal discussions and model of inspiration for the legislator of the Republic of Moldova

Author(s): Irina Digori / Language(s): English Publication Year: 0

The Draft Common Frame of Reference (DCFR) project is a comprehensive work to harmonize the rules of private law in the European area. Although it has not gained legal force at European level, the project has undeniable value for the development of private law and can serve as a model for legislators in different states. This has already happened in the case of modernization of the Civil Code of the Republic of Moldova. For the matter of trusts, in DCFR was allocated a separate book - Book X ("Trusts"), which was the basis for the regulation of the institution "fiducia" in the Civil Code of the Republic of Moldova. The purpose of this article is to analyze the assessments and criticisms that have been brought to Book X of DCFR, but also to assess the extent to which the legislator of the Republic of Moldova has followed the model of these rules. Thus, the discussions in the doctrine regarding the strengths and weaknesses of Book X are revealed, the sources of inspiration of the DCFR authors are analyzed and the way in which the institution of "fiducia" in the Civil Code of the Republic of Moldova follows the DCFR trust model is presented. Some comparative observations are also made with reference to the "fiducia" in the Romanian Civil Code.

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The governance of groups under Albanian company law: what can be changed?

Author(s): Jonida Rystemaj / Language(s): English Publication Year: 0

Corporate groups are an emerging business structure that deserves further elaboration. They are much more encountered in an international context. To reflect this reality, company groups are given special attention in the Albanian company law. The introduction of a detailed regulation for corporate groups was a novelty for the Albanian company law, back in 2008 when it was passed. The experts engaged in drafting the law opted for two categories of company groups which were considered distinct and provided for different legal consequences for each category. This article aims at elaborating governance issues of these groups recognized by the Albanian legislation through an analytical approach of the provisions. First an introduction of the groups and the regulation in the ACL will take place. Then specific considerations as regards governance issues will be further elaborated in order to pinpoint any need for further improvement. Finally, the article concludes with a set of recommendations of what can be changed towards a better organization and governance of groups in Albania.

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Considerations on the acquisition of ownership rights over the assets of the company deregistered by the sole shareholder, foreign citizen belonging to a third state

Author(s): Cristina Cojocaru / Language(s): English Publication Year: 0

The dissolution and liquidation of a company always has consequences in terms of its assets. After the satisfaction of the company's creditors and the payment of its debts, the remaining assets belong to the shareholders, according to the relevant legislation. However, the case where the partner is a foreign national of a third country, not a Member State of the European Union, and the assets left after the deregistration of the company are land, is a specific situation that has been analyzed by the High Court of Cassation and Justice in a recent case. Although the legislation applicable to companies recognizes the right of shareholders over the assets remaining after the deregistration of a company, the situation of the lands is particular, considering the overriding applicable constitutional provisions, as well as the treaties to which Romania is a party. The existence of reciprocity in the matter of acquiring the right of ownership over land is essential and relevant in an action for establishing the right to property, even for a foreign citizen who has the quality of shareholder in a company established on the Romanian territory.

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Perspectives on the joint venture agreement in business law

Author(s): George-Bogdan Ionita / Language(s): English Publication Year: 0

This research aims to objectively analyze the applicability of the joint venture agreement in the business sphere. Determining the need to use such a legal mechanism in the field of contractual relations is an important starting point for presenting the specific elements but also its functioning mechanism. Thus, it will proceed to the analysis of the current regulation of the Civil Code as well as the practical applicability of this legal mechanism in various fields of law. In carrying out this research, works from the current specialized doctrine as well as current judicial practice were used.

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Some notes on the commercial concession contract

Author(s): Sónia de Carvalho / Language(s): English Publication Year: 0

The concession contract, to which the majority of legal scholars recognize the legal nature of a framework contract, is a commercial contract, which establishes a complex and long lasting contractual relationship, under which the grantor undertakes to sell to the concessionaire, and the latter to buy from him, for resale, a certain quantity of goods, assuming the risk of marketing the goods. The integration of the dealer, who acts on its own behalf and in its own name, in the grantor's network, is ensured by the compliance with certain obligations, relating to commercial policy and promotional and after sales services, under the control and supervision of the grantor. The concession contract started out as a sales contract concluded between the producer and the trader, who acted in his own name and for his own account, characterised by the existence of an exclusivity clause in favour of the latter, provided that he undertook to purchase a certain quantity of products. This negotiating scheme has, however, undergone alterations as a result of the greater integration of the distributor in the network of the licensor, resulting from the complex web of rights and duties around the parties, with emphasis on the transformation of the exclusivity clause, hitherto considered a social type element, into one of several possible clauses of the contract. Considering that we are dealing with a legally atypical, but socially typical contract, it is necessary to point out the most relevant clauses of the contract, which are essential to sustain that this contract belongs to distribution contracts, an autonomous category. The supply chain crisis currently experienced worldwide following the Pandemic COVD 19 and the role that this contract can play in the commercial distribution, by allowing the manufacturer to achieve greater efficiency in the distribution of its products, justifies the analysis of the main features of this contract.

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Legal regime of competition in Croatia

Author(s): Ovidiu Horia Maican / Language(s): English Publication Year: 0

Croatia has implemented EU’s competition rules. Competition Act lays down the competition rules and establishes the competition regime in Croatia. It also regulates work of the Croatian Competition Agency. The Competition Act defines the rules and methods for promoting and protecting competition. On paper, competitive equality is enforced with respect to market access, credit and other business operations. In practice, however, state-owned enterprises (SOEs) and government-designated “strategic” firms may still receive preferential treatment. The Croatian Competition Agency is the country’s competition watchdog, determining whether anti-competitive practices exist and punishing infringements. It has determined in the past that some subsidies to SOEs constituted unlawful state aid.

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Influencers: the path from consumers to professionals

Author(s): Aura-Elena Amironesei / Language(s): English Publication Year: 0

The concept of ‘influencer’ stands at the confluence of law, economy, marketing, sociology and psychology, being in a continuous grinding, generated by the development of social media tools and the diversification of the activities that can be carried out on social media. The influencer has crystallized his presence within the virtual environment, as he started to use social media from the position of a consumer. At the moment, he evolved into an entity that shirks the national imperative legal provisions and has a series of attributes which cannot characterise any other existing and conceptualised entity. The uniqueness of the influencer, along with his constant developing characteristics, have led to several difficulties in the process of regulating his activity. Nevertheless, the time that has passed since their emergence on the market is more than sufficient for providing the possibility of describing the influencers and confining them within a legal regime. Our analysis focuses on the compatibility between the status of a professional, as it is regulated in the Romanian law, and the status of influencer. Then, we will briefly discuss the possible consequences, determined by the compatibility, on the activity of the influencer and on his digital content.

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Translation of arbitral awards in the procedure for the recognition and enforcement of foreign arbitral awards. Conditions and assumptions

Author(s): Crenguţa Leaua,Radu-Mihai Necula / Language(s): English Publication Year: 0

The purpose of the article is to examine the manner in which the regulation of the applicant's ability to submit a certified translation for compliance with a foreign arbitral award responds to the legislative desire to facilitate the recognition and enforcement of foreign arbitral awards in Romania. It is approached the hypothesis in which the defendant disputes the accuracy of the translation or the court ex officio considers that the translation submitted to the case file presents certain ambiguities. In this case, the question arises as to whether it is necessary to file a translation by a certified translator in the case file or whether it is sufficient in that case to submit a translation by a party. The article also examines whether or not the provisions of the Code of Civil Procedure are more favorable or unfavorable than the provisions of the New York Convention (1958) with regard to the translation of foreign arbitration awards.

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The EU Green Deal and the future of the EU business law - scenarios for legal evolution

Author(s): Oleg Zaichuk,Yuri Zaichuck / Language(s): English Publication Year: 0

The ongoing transition away from fossil fuel presented a number of challenges for the EU and its legal profession. According to the EU official statistics, the EU is on its way toward becoming the first carbon neutral region of the planet. However, even Germany is struggling to generate enough electricity from its renewables and actively pursuing "strategic alternatives". The EU is actively looking into introducing a so-called carbon adjustment on its border to create a level field for its own companies. However, at the same time, the EU is heavily dependent on exporting its goods to the very same countries which actively resist EU's plan to charge the carbon border duty on their ex- ports to the EU while EU's competitiveness and share of the world's trade is slowly but inexorably falls behind the rest of the world. The future of the EU business law and the outcome of the EU green transition depends on the speed of the technological progress which is highly uncertain. It is this evolution of technology which would determine the future of the EU business law whether EU's political actors accept it or not.

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Term of office as an indicator of independence of the antitrust authority in the implementation of the ECN+ Directive: experiences of Polish law and of the Polish antitrust authority

Author(s): Rafał R. Wasilewski / Language(s): English Publication Year: 0

Whether in the European Union or elsewhere in the world, there is no universal model an antitrust authority could be patterned against. Instead, administrative, judicial and mixed bodies are present. For the proper performance of the functions entrusted to them, it is necessary to ensure that these bodies remain free from political influence. The need for such independence of antitrust authorities is clear from the ECN+ Directive, which Member States are required to implement. In the article, an attempt was made to assess whether the provisions of the ECN+ Directive introduce specific requirements as to the term of office for officeholders in antitrust bodies and examine what solutions have been adopted to this end in Polish law. The Polish antitrust authority is the President of UOKiK, which is currently an office without term. However, in the course of implementing the ECN+ Directive, different solutions have been designed, establishing that this authority should indeed operate against a fixed-term model. On the basis of historical legal acts, current normative acts, draft bills and the findings derived from the literature and case-law, the question should be answered whether term of office is an indicator of the independence of an antitrust authority. The research methods adopted to this end are the dogmatic and historical-legal approach.

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Substantial and procedural rules in the perspective of Directive no. 2019/1023 of the European Parliament and of the Council on preventive restructuring frameworks

Author(s): Cristian Drăghici / Language(s): English Publication Year: 0

Since 2011, a series of measures have been adopted by European Union, with the initial purpose to harmonizing of the very specific aspects of substantial law of insolvency, including restructuring, but also regarding the company law. The enforcement of Regulation (EU) 2015/848 on insolvency proceedings aimed solving the conflicts of jurisdiction in cross-border insolvency proceedings and ensuring the recognition of insolvency decisions on the territory of the Union. However, the Regulation did not seek to harmonize the substantial law of insolvency in the Member States. Even though in some Member States, including our country, the Commission's Recommendation was received as a useful proposal to undertake insolvency reforms (adoption of Law 85/2014 regarding the insolvency and insolvency prevention procedures in Romania), it did not succeed in generating uniform changes in all Member States to facilitate the rescue of companies in financial difficulty and to enable entrepreneurs to benefit from a second chance. The Recommendation did not have the expected effects because its partial implementation, even at the level of countries where real reforms have been made regarding the insolvency law. In this context, this study aims at an analysis of insolvency prevention procedures in our country, reported to the Directive of the European Parliament and of the Council, on preventive restructuring frameworks.

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Вътрешните имуществени отношения в едно неперсонифицирано цяло

Author(s): Polya Goleva / Language(s): Bulgarian Publication Year: 0

In Bulgaria, the subject of research were the internal property and non-property relations in the legal entity – departments, companies, non-profit legal entities, political parties and other associations of two or more persons, which the law declares as legal entities, but has not addressed attention to impersonal communities, to associations of people and means with a view to achieving a certain goal (commercial, economic, ideal, political, religious, etc.). There is a gap in our theory that I do not intend to fill, but I intend to establish what is specific in the property relations between the members of this community and whether it can be summarized. Is there anything specific, different in the property relations that arise within an impersonal whole and whether it has an advantage or disadvantage compared to the property relations that exist within a personified whole.

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Търговска сделка VS Административен договор - инструменти за имуществено разместване на блага

Author(s): Zhana Koleva / Language(s): Bulgarian Publication Year: 0

The subject matter of the present study is the commercial transaction, on one hand, and the administrative contract, on the other hand. They are both considered the fundamental instruments for the property transfer of goods. In both cases, the contracting parties are a trader and an administrative body, which gives rise to a dispute. Because in these cases the doctrine debates contract types and applicable law, some contradictory statements are discussed. Based on the philosophy behind the current regulation, the author presents his own vision of the difference between contracts under discussion.

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+Имуществени отношения при сключване на договор за продажба от разстояние

Author(s): Vanya Zhelyazkova / Language(s): Bulgarian Publication Year: 0

The development of modern technologies and the growth of Internet consumption create more opportunities for business and consumers. In today’s digital environment, the increasing importance of distance and off-premises contracts is evident. The transactions between the parties happen without either of them having to meet in person. This article covers issues related to the subject matter, the parties, the property rights and obligations in concluding distance contracts within the European Union and Bulgaria. The article discusses the main legal requirements (content of the contract, scope, mandatory details) and restrictions (administrative penalties, objectives) in the preparation of this type of contract. The different types of contracts for sale and provision of services at distance and their specifics are also presented. The legal framework is presented with an emphasis on consumer protection.

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