Suchergebnisse

The arbitration law, relevant judicial interpretations and international treaties -- Arbitration agreements -- Foreign arbitration, arbitration with a foreign element and domestic arbitration -- The applicable law -- Limitation periods in arbitration -- Requests for arbitration, acceptance of proceedings and the defence -- Objections to jurisdiction -- Counterclaim -- Mechanisms for multi-party arbitration -- Preservation of property -- Preservation of evidence -- Interim injunctions in arbitration -- Representation -- Arbitral tribunal -- Evidence -- The hearing -- Arbitral award -- Enforcement of arbitral awards -- Judicial review over arbitration -- Med-arb -- Interim measures ordered by emergency arbitrator or arbitral tribunal

The phenomenon of litigation funding is not new – it can be seen since the ancient times, however, has not been applicable for a long time in both civil and continental law countries. As society matures, attitudes to judicial and alternative dispute resolution have also changed. There is a tremendous breakthrough in the third-party funding in the international arbitration, therefore, the most problematic issues of this institute are analyzed. The purpose of this master thesis is to reveal the influence of the third-party funding in the arbitration on the management of conflicts of interest and the obligation to disclose the fact of funding, the reimbursement of arbitration costs and their security and to submit proposals to the Lithuanian legislator on the possible regulation of the third-party funding in arbitration in order to ensure an effective arbitration process. Taking into account the fact that the funder of arbitration proceedings is neither a party to the arbitration agreement, nor a party to the arbitration proceedings, there is a lack of legal certainty on whether the participation of such subject may cause conflict of interest, and whether the legal costs, success fee, and expenses related to the funding may be reimbursed by the losing party. Moreover, the natural question arises whether the arbitrators have the right to oblige the third-party funder to directly reimburse the costs of the losing party or to order a security for costs. After analysis of foreign law, arbitration rules of permanent arbitration bodies, doctrine, case law and arbitration practice, it was concluded that in the context of institute of third-party funding in the arbitration, the conflicts of interest between the third-party funders and the arbitrators may arise, and in order to avoid this, it is necessary to disclose the fact of the third-party funding to the parties and arbitrators. Likewise, the arbitrators, who have a discretionary power over the allocation of arbitration costs shall award legal costs to the losing party if the funded party is obliged by the funding agreement to reimburse the legal costs to the third-party funder. Financing costs incurred by the third-party funder may be awarded if they meet the necessity and reasonableness requirements. The success fee from the losing party shall not be awarded, whereas such costs do not meet the above-mentioned requirements. Furthermore, the mere fact of third-party funding is not and cannot be a sufficient ground to award the security for costs of opposing party, since the arbitrators must also take into consideration other circumstances such as: the terms of the funding agreement, merits of the claim, prospects of success of the dispute, the financial capacity of the funded party and its alteration since the moment of entering into the arbitration agreement.

The phenomenon of litigation funding is not new – it can be seen since the ancient times, however, has not been applicable for a long time in both civil and continental law countries. As society matures, attitudes to judicial and alternative dispute resolution have also changed. There is a tremendous breakthrough in the third-party funding in the international arbitration, therefore, the most problematic issues of this institute are analyzed. The purpose of this master thesis is to reveal the influence of the third-party funding in the arbitration on the management of conflicts of interest and the obligation to disclose the fact of funding, the reimbursement of arbitration costs and their security and to submit proposals to the Lithuanian legislator on the possible regulation of the third-party funding in arbitration in order to ensure an effective arbitration process. Taking into account the fact that the funder of arbitration proceedings is neither a party to the arbitration agreement, nor a party to the arbitration proceedings, there is a lack of legal certainty on whether the participation of such subject may cause conflict of interest, and whether the legal costs, success fee, and expenses related to the funding may be reimbursed by the losing party. Moreover, the natural question arises whether the arbitrators have the right to oblige the third-party funder to directly reimburse the costs of the losing party or to order a security for costs. After analysis of foreign law, arbitration rules of permanent arbitration bodies, doctrine, case law and arbitration practice, it was concluded that in the context of institute of third-party funding in the arbitration, the conflicts of interest between the third-party funders and the arbitrators may arise, and in order to avoid this, it is necessary to disclose the fact of the third-party funding to the parties and arbitrators. Likewise, the arbitrators, who have a discretionary power over the allocation of arbitration costs shall award legal costs to the losing party if the funded party is obliged by the funding agreement to reimburse the legal costs to the third-party funder. Financing costs incurred by the third-party funder may be awarded if they meet the necessity and reasonableness requirements. The success fee from the losing party shall not be awarded, whereas such costs do not meet the above-mentioned requirements. Furthermore, the mere fact of third-party funding is not and cannot be a sufficient ground to award the security for costs of opposing party, since the arbitrators must also take into consideration other circumstances such as: the terms of the funding agreement, merits of the claim, prospects of success of the dispute, the financial capacity of the funded party and its alteration since the moment of entering into the arbitration agreement.

The phenomenon of litigation funding is not new – it can be seen since the ancient times, however, has not been applicable for a long time in both civil and continental law countries. As society matures, attitudes to judicial and alternative dispute resolution have also changed. There is a tremendous breakthrough in the third-party funding in the international arbitration, therefore, the most problematic issues of this institute are analyzed. The purpose of this master thesis is to reveal the influence of the third-party funding in the arbitration on the management of conflicts of interest and the obligation to disclose the fact of funding, the reimbursement of arbitration costs and their security and to submit proposals to the Lithuanian legislator on the possible regulation of the third-party funding in arbitration in order to ensure an effective arbitration process. Taking into account the fact that the funder of arbitration proceedings is neither a party to the arbitration agreement, nor a party to the arbitration proceedings, there is a lack of legal certainty on whether the participation of such subject may cause conflict of interest, and whether the legal costs, success fee, and expenses related to the funding may be reimbursed by the losing party. Moreover, the natural question arises whether the arbitrators have the right to oblige the third-party funder to directly reimburse the costs of the losing party or to order a security for costs. After analysis of foreign law, arbitration rules of permanent arbitration bodies, doctrine, case law and arbitration practice, it was concluded that in the context of institute of third-party funding in the arbitration, the conflicts of interest between the third-party funders and the arbitrators may arise, and in order to avoid this, it is necessary to disclose the fact of the third-party funding to the parties and arbitrators. Likewise, the arbitrators, who have a discretionary power over the allocation of arbitration costs shall award legal costs to the losing party if the funded party is obliged by the funding agreement to reimburse the legal costs to the third-party funder. Financing costs incurred by the third-party funder may be awarded if they meet the necessity and reasonableness requirements. The success fee from the losing party shall not be awarded, whereas such costs do not meet the above-mentioned requirements. Furthermore, the mere fact of third-party funding is not and cannot be a sufficient ground to award the security for costs of opposing party, since the arbitrators must also take into consideration other circumstances such as: the terms of the funding agreement, merits of the claim, prospects of success of the dispute, the financial capacity of the funded party and its alteration since the moment of entering into the arbitration agreement.

The phenomenon of litigation funding is not new – it can be seen since the ancient times, however, has not been applicable for a long time in both civil and continental law countries. As society matures, attitudes to judicial and alternative dispute resolution have also changed. There is a tremendous breakthrough in the third-party funding in the international arbitration, therefore, the most problematic issues of this institute are analyzed. The purpose of this master thesis is to reveal the influence of the third-party funding in the arbitration on the management of conflicts of interest and the obligation to disclose the fact of funding, the reimbursement of arbitration costs and their security and to submit proposals to the Lithuanian legislator on the possible regulation of the third-party funding in arbitration in order to ensure an effective arbitration process. Taking into account the fact that the funder of arbitration proceedings is neither a party to the arbitration agreement, nor a party to the arbitration proceedings, there is a lack of legal certainty on whether the participation of such subject may cause conflict of interest, and whether the legal costs, success fee, and expenses related to the funding may be reimbursed by the losing party. Moreover, the natural question arises whether the arbitrators have the right to oblige the third-party funder to directly reimburse the costs of the losing party or to order a security for costs. After analysis of foreign law, arbitration rules of permanent arbitration bodies, doctrine, case law and arbitration practice, it was concluded that in the context of institute of third-party funding in the arbitration, the conflicts of interest between the third-party funders and the arbitrators may arise, and in order to avoid this, it is necessary to disclose the fact of the third-party funding to the parties and arbitrators. Likewise, the arbitrators, who have a discretionary power over the allocation of arbitration costs shall award legal costs to the losing party if the funded party is obliged by the funding agreement to reimburse the legal costs to the third-party funder. Financing costs incurred by the third-party funder may be awarded if they meet the necessity and reasonableness requirements. The success fee from the losing party shall not be awarded, whereas such costs do not meet the above-mentioned requirements. Furthermore, the mere fact of third-party funding is not and cannot be a sufficient ground to award the security for costs of opposing party, since the arbitrators must also take into consideration other circumstances such as: the terms of the funding agreement, merits of the claim, prospects of success of the dispute, the financial capacity of the funded party and its alteration since the moment of entering into the arbitration agreement.

For each subject of business relationship is important to know the subject of the arbitration agreement validity / invalidity factors and the regulatory environment of the arbitration agreement and the arbitration process enshrined in the national law. Taking into consideration the active debates of national legal community on the proposals for the Republic of Lithuania Commercial Arbitration Law submitted to the Lithuanian Parliament, the purpose of this work is to analyze and determine the regulation stipulated in the Republic of Lithuania Law on Commercial Arbitration including the arbitration agreement form and content requirements and the regulatory and practical application in the legal practice of the Republic of Lithuania compared to the foreign legal practice containing deep traditions of the arbitration proceedings within them. This research is intended to assess whether current regulatory determined in the Republic of Lithuania Law on Commercial Arbitration correspond with actual local and international business relations and foreign modern regulatory framework regarding arbitration agreement application. The main research objects of this work are major legal backgrounds of the arbitration agreement invalidity which are stipulated in the Republic of Lithuania Law on Commercial Arbitration. However the definition of the research object is exclusively related to the evaluation of substantive law only and because of this the procedural matters of arbitration agreement invalidity will not be analyzed.

For each subject of business relationship is important to know the subject of the arbitration agreement validity / invalidity factors and the regulatory environment of the arbitration agreement and the arbitration process enshrined in the national law. Taking into consideration the active debates of national legal community on the proposals for the Republic of Lithuania Commercial Arbitration Law submitted to the Lithuanian Parliament, the purpose of this work is to analyze and determine the regulation stipulated in the Republic of Lithuania Law on Commercial Arbitration including the arbitration agreement form and content requirements and the regulatory and practical application in the legal practice of the Republic of Lithuania compared to the foreign legal practice containing deep traditions of the arbitration proceedings within them. This research is intended to assess whether current regulatory determined in the Republic of Lithuania Law on Commercial Arbitration correspond with actual local and international business relations and foreign modern regulatory framework regarding arbitration agreement application. The main research objects of this work are major legal backgrounds of the arbitration agreement invalidity which are stipulated in the Republic of Lithuania Law on Commercial Arbitration. However the definition of the research object is exclusively related to the evaluation of substantive law only and because of this the procedural matters of arbitration agreement invalidity will not be analyzed.

The master thesis "Void Arbitration Agreement" analyses the recognition of void arbitration agreement in accordance with case law as well as international and national legislation. The purpose of the master thesis is to evaluate the legislation in force, drawing attention to the fundamental theoretical and practical problems of void arbitration agreement, and to propose possible solutions. Compared to Western Europe, the United States and Canada, arbitration as a method of dispute resolution in Lithuania is not as popular. It is however growing in popularity amongst commercial entities as alternative method of dispute resolution. It is known that a valid arbitration agreement is required when trying to achieve dispute resolution in arbitration regardless of whether the arbitration is international or local, ad hoc or institutional. Moreover, the void arbitration agreement is one of the grounds of setting aside the arbitral award or refusing the recognition or enforcement of the foreign arbitral award. In order to analyse the issue of invalidity of arbitration agreement further, the master thesis is divided into four parts. The first and second parts of the thesis are more theoretical in nature. They focus on the problems of interpretation and application of the notion of the arbitration agreement. Furthermore, they discuss the most important principles and categories of the arbitration agreement. The institute of nullity of a contract and the differences between absolutely voidable (null) and relatively voidable (disputable) contracts are also investigated. In the third and fourth parts the author analyses in detail such grounds of invalidity of the arbitration agreement as non-arbitrability of the dispute, incapacity of the parties of the arbitration agreement, defective form and content of the arbitration agreement. Moreover, the principle of the autonomy of the arbitration clause in relation to the main contract and the impact of nullity of main contract on the validity of arbitration agreement is analysed. And then to complete the master thesis an exhaustive analysis of Lithuanian case law and the application and interpretation of current legislation by the courts follows. The fourth part specifically focuses on the challenges faced to validate the arbitration agreement in the arbitration and the national court. In summary, the analysis of the legislation and case law reveals that Lithuanian courts regularly apply the principle in favor contractus to the validity of arbitration agreement. However, some contradictions of the case law can be seen; the legislation on arbitration agreement is not always applied in consistent and uniform way. In conclusion, some recommendations on the improvement of the existing legislation and solving practical problems are provided.

The master thesis "Void Arbitration Agreement" analyses the recognition of void arbitration agreement in accordance with case law as well as international and national legislation. The purpose of the master thesis is to evaluate the legislation in force, drawing attention to the fundamental theoretical and practical problems of void arbitration agreement, and to propose possible solutions. Compared to Western Europe, the United States and Canada, arbitration as a method of dispute resolution in Lithuania is not as popular. It is however growing in popularity amongst commercial entities as alternative method of dispute resolution. It is known that a valid arbitration agreement is required when trying to achieve dispute resolution in arbitration regardless of whether the arbitration is international or local, ad hoc or institutional. Moreover, the void arbitration agreement is one of the grounds of setting aside the arbitral award or refusing the recognition or enforcement of the foreign arbitral award. In order to analyse the issue of invalidity of arbitration agreement further, the master thesis is divided into four parts. The first and second parts of the thesis are more theoretical in nature. They focus on the problems of interpretation and application of the notion of the arbitration agreement. Furthermore, they discuss the most important principles and categories of the arbitration agreement. The institute of nullity of a contract and the differences between absolutely voidable (null) and relatively voidable (disputable) contracts are also investigated. In the third and fourth parts the author analyses in detail such grounds of invalidity of the arbitration agreement as non-arbitrability of the dispute, incapacity of the parties of the arbitration agreement, defective form and content of the arbitration agreement. Moreover, the principle of the autonomy of the arbitration clause in relation to the main contract and the impact of nullity of main contract on the validity of arbitration agreement is analysed. And then to complete the master thesis an exhaustive analysis of Lithuanian case law and the application and interpretation of current legislation by the courts follows. The fourth part specifically focuses on the challenges faced to validate the arbitration agreement in the arbitration and the national court. In summary, the analysis of the legislation and case law reveals that Lithuanian courts regularly apply the principle in favor contractus to the validity of arbitration agreement. However, some contradictions of the case law can be seen; the legislation on arbitration agreement is not always applied in consistent and uniform way. In conclusion, some recommendations on the improvement of the existing legislation and solving practical problems are provided.

Analysis of this Master's Paper is developed in three directions: firstly, the author summarized the issues of the international and national criminal law. Attention is drawn to the place of the international treaties in the Lithuanian law, focusing on the national criminal law implications of such treaties; attempting to determine the possibility of direct application of the treaties in the criminal law. The author concludes that international treaties regulating the matters that are relevant to criminal justice should be transferred to national laws. The second part of the Paper analyses the significance of the treaties on the protection of universal human rights and freedoms, such as the Universal Charter on Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHRFF) and of the conventions adopted by the United Nations Organization in general, to the criminal law of Lithuania. The author does not aim at defining the importance of the particular rules of law to the national criminal law, and distinguishes instead the trends of the national criminal law implications. Analyzing the ECPHRFF, the author emphasizes the special character of this international treaty also drawing attention to the problem of interaction between the blanket dispositions constructed in the Lithuanian criminal law and the principle of nullum crimen sine lege guaranteed by the Convention. The Master's Paper concludes that implementation of the international legal acts guaranteeing the protection of personal rights in terms of criminal law of Lithuania is being implemented with sufficient accuracy. In the final part of the Master's Paper the relevance of the European Union (EU) law with regard to the national criminal law is summarized. In the first instance the author draws attention to the issue of relevance of the primary EU law to the national criminal law, which practically has not been analyzed by the Lithuanian scientists. Analyzing separate types of the secondary legislation passed by the EU authorities, in the first instance the features of each legal act – regulation, directive, decision, framework decision, general actions, recommendations, opinions, guidelines and conventions – are distinguished. The author aims at disclosing the manner in which the features of each secondary legal act of the EU influence the national criminal law. Also, the possibilities of the direct application of regulations, directives and decisions in the national law are elaborate. The author concludes that it is the secondary legislation by means of which the criminal law of the Member States is being approximated, whereas appropriate implementation of the secondary legislation of the EU, as a rule, requires corrections of the criminal law.

Analysis of this Master's Paper is developed in three directions: firstly, the author summarized the issues of the international and national criminal law. Attention is drawn to the place of the international treaties in the Lithuanian law, focusing on the national criminal law implications of such treaties; attempting to determine the possibility of direct application of the treaties in the criminal law. The author concludes that international treaties regulating the matters that are relevant to criminal justice should be transferred to national laws. The second part of the Paper analyses the significance of the treaties on the protection of universal human rights and freedoms, such as the Universal Charter on Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHRFF) and of the conventions adopted by the United Nations Organization in general, to the criminal law of Lithuania. The author does not aim at defining the importance of the particular rules of law to the national criminal law, and distinguishes instead the trends of the national criminal law implications. Analyzing the ECPHRFF, the author emphasizes the special character of this international treaty also drawing attention to the problem of interaction between the blanket dispositions constructed in the Lithuanian criminal law and the principle of nullum crimen sine lege guaranteed by the Convention. The Master's Paper concludes that implementation of the international legal acts guaranteeing the protection of personal rights in terms of criminal law of Lithuania is being implemented with sufficient accuracy. In the final part of the Master's Paper the relevance of the European Union (EU) law with regard to the national criminal law is summarized. In the first instance the author draws attention to the issue of relevance of the primary EU law to the national criminal law, which practically has not been analyzed by the Lithuanian scientists. Analyzing separate types of the secondary legislation passed by the EU authorities, in the first instance the features of each legal act – regulation, directive, decision, framework decision, general actions, recommendations, opinions, guidelines and conventions – are distinguished. The author aims at disclosing the manner in which the features of each secondary legal act of the EU influence the national criminal law. Also, the possibilities of the direct application of regulations, directives and decisions in the national law are elaborate. The author concludes that it is the secondary legislation by means of which the criminal law of the Member States is being approximated, whereas appropriate implementation of the secondary legislation of the EU, as a rule, requires corrections of the criminal law.