Suchergebnisse

The law applicable to arbitral proceedings in general, and to investor-State arbitral disputes in particular, has always been a conundrum. This is for a simple reason: arbitral proceedings are detached from any national legal system. Given this, the question raised is how to let arbitrators determine the applicable law for the dispute. The solution provided by arbitral clauses enacted within arbitral rules of procedures, or investment treaties, are slightly different. Namely, the freedom conferred upon the arbitral tribunal to determine the applicable law, absent any party's choice, has raised much debate among both academics and the jurisprudential praxis. This paper aims to reopen the debate on the lex applicable in investor-State dispute settlements. After providing some historical background on arbitral proceedings, along with the interpretation and application given to ICSID Convention art. 42.(1), the analysis will then show that the recent arbitral praxis has had to tackle a third set of laws. Reference will be made to European union law, questioning whether and how arbitral tribunals should apply European law in disputes arising out of so-called intra-EU BITs or the Energy Charter Treaty. Some conclusions on the relationship between international and European law will then be attempted.

As a process of raising monetary contributions from a large number of persons, crowdfunding may take many forms: from traditional benefit events and television fundraising campaigns to increasingly popular internet platform fundraising. The online environment in which the newest forms of CF emerge facilitates its unprecedented ability to cross borders and attract persons from various countries. This having been said, the same environment complicates legal assessment. The issues that inevitably arise in cross-border dealing are particularly intricate: which court decides and which law applies? At the outset, one must differentiate between various types of CF models. Furthermore, the tripartite structure of the CF model involving the specialised internet platforms adds another layer of complexity because the conflict of laws analysis demands the preliminary identification of legal relationships and their legal characterisation. Finally, there is a constant debate about whether investors may be legally characterised as consumers or not, which may significantly affect conclusions on jurisdiction and applicable law. In answering these questions, the author considers national and supranational legal instruments containing provisions on international jurisdiction and applicable law, with the focus on the EU ones. In the course of legal analysis, the interpretational principles set by the Court of Justice of the European Union will be taken into account. Since no such principle is directly related to the internet-based CF, they need to be assessed in terms of their relevancy and potential to be used as starting points in analogical reasoning. Besides drawing a clearer image about the conflict of laws issues for participants in CF, the aim of this article is also to assess the validity of some of the legal terms under which these participants join the CF process.

This book examines the law, national and/or international, that arbitral tribunals apply on the merits to settle disputes between foreign investors and host states. In light of the freedom that the disputing parties and the arbitrators have when designating the applicable law, and because of the hybrid nature of legal relationship between investors and states, there is significant interplay between the national and the international legal order in investor-state arbitration. The book contains a comprehensive analysis of the relevant jurisprudence, legal instruments, and scholarship surrounding arbitral practice with respect to the application of national law and international law. It investigates the awards in which tribunals referred to consistency between the legal orders, and suggests alternatives to the traditional doctrines of monism and dualism to explain the relationship between the national and the international legal order. The book also addresses the territorialized or internationalized nature of the tribunals; relevant choice-of-law rules and methodologies; and the scope of the arbitration agreement, including the possibility of host states presenting counterclaims in investment treaty arbitration. Ultimately, it argues that in investor–state arbitration, national and international law do not only coexist but may be applied simultaneously; they are also interdependent, each complementing and informing the other both indirectly and directly for a larger common good: enforcement of rights and obligations regardless of their national or international origin.

Nowadays, in the era of globalization a new world order is created where business and people from different part of the word trade products and services. These commercial transactions cross each other's legislations while raising numerous legal issues. As known, in fact, one of the major problems in commercial transaction between parties operating in different countries is to determine the applicable law to the contract considering the will, often conflicting, of each of the contracting parties to impose its national law. It is important to give consideration to what may happen in the event of a dispute arising under the contract or difficulty in interpreting it. The difficulties of knowing exactly which commercial legislation will apply to the contract is something that creates a barrier and unrest in the market. The issue of determining the applicable law is even more complicated if we refer to an international leasing agreement where we initially have to determine the legal nature of this complex operation. What criteria will be used to determine the applicable law? Does the peculiarity of this operation and in particular the contractual links influence the process of identifying the applicable law or on the contrary, these aspects of substantive law do not affect the normal operation of the conflict rules? Financial leasing as an unitary agreement case can it be subjected to more than one national law, or should be subject to a single law?