Suchergebnisse

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.

This study examines the adoption of arbitration for the definitive solution of conflicts between Brazilian Public Administration and its citizens. Despite strong sociological reasons against adopting the institute in Brazil, surprisingly, legal scholars assimilated it with ease. Dogmatic reasons, however, prevent its adoption. The thesis that it is possible when it comes to the secondary interest is untenable, as the secondary interest is only valid when it coincides with the primary one. The unavailability of the public interest was circumvented by explicit legislative authorization term. It is impossible to circumvent the supremacy of the public interest over the private one, which prevents removing the judiciary from having the final word prerogative on the interpretation of matters of the public interest. Therefore, all laws that authorize administrative arbitration are unconstitutional. ; Este estudio trata sobre la adopción del arbitraje para la solución definitiva de los conflictos entre la Administración Pública brasileña y la administrada. A pesar de las fuertes razones sociológicas en contra de la adopción del instituto en Brasil, sorprendentemente la comunidad jurídica lo asimiló con facilidad. Sin embargo, razones dogmáticas impiden su adopción. La tesis de que es posible cuando se trata de interés secundario es insostenible, ya que el interés secundario solo es válido cuando coincide con el primario. La indisponibilidad del interés público se eludió mediante autorización legislativa expresa. Es imposible eludir la supremacía del interés público sobre el privado, lo que impide que el poder judicial tenga la prerrogativa de dar la última palabra en la interpretación de los asuntos relacionados con el interés público que deben descartarse. Por lo tanto, todas las leyes que autorizan el arbitraje administrativo son inconstitucionales. ; Este estudo versa sobre a adoção da arbitragem para solução definitiva de conflitos entre a Administração Pública brasileira e o administrado. Apesar de fortes razões ...