Foreign Court Decisions Research Articles

Airmech Dubai LLC v. Maxtel International LLC, Court of Cassation of Dubai, Cassation No. 132/2012 Commercial, 18 September 2012 (Arabic Original)

"Article 238 of the Code of Civil Procedure provides that international conventions that have become enforceable legislation in the UAE by virtue of ratification shall apply as domestic law in the UAE to disputes concerning the enforcement of foreign court decisions and arbitral awards. The UAE agreed to accede to the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards. Therefore, its provisions are applicable to the present dispute." "The court's supervisory role when looking to recognize and enforce a foreign arbitral award is strictly to ensure that it does not conflict with the Federal Decree under which the UAE acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and satisfies the applicable procedural and substantive requirements of Articles 4 and 5 of the Decree." "The assumption is that arbitration procedures have been observed and the burden is upon the party alleging otherwise to prove his allegation. Article V of the New York Convention of 1958 places a burden of proof on the respondent who cannot simply deny or contest the documents presented by the claimant." "The prohibition on agreeing to usurious interest in any type of civil or commercial transaction under Article 409 of the Penal Code, and such agreement being void under Article 714 of the Civil Transactions Law, is limited to dealings between individuals without extending to dealings between individuals and corporate entities which can agree with other corporate entities or individuals to charge conventional interest."

Airmech Dubai LLC v. Maxtel International LLC, Court of Cassation of Dubai, Cassation No. 132/2012 Commercial, 18 September 2012 (English Translation)

"Article 238 of the Code of Civil Procedure provides that international conventions that have become enforceable legislation in the UAE by virtue of ratification shall apply as domestic law in the UAE to disputes concerning the enforcement of foreign court decisions and arbitral awards. The UAE agreed to accede to the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards. Therefore, its provisions are applicable to the present dispute." "The court's supervisory role when looking to recognize and enforce a foreign arbitral award is strictly to ensure that it does not conflict with the Federal Decree under which the UAE acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and satisfies the applicable procedural and substantive requirements of Articles 4 and 5 of the Decree." "The assumption is that arbitration procedures have been observed and the burden is upon the party alleging otherwise to prove his allegation. Article V of the New York Convention of 1958 places a burden of proof on the respondent who cannot simply deny or contest the documents presented by the claimant." "The prohibition on agreeing to usurious interest in any type of civil or commercial transaction under Article 409 of the Penal Code, and such agreement being void under Article 714 of the Civil Transactions Law, is limited to dealings between individuals without extending to dealings between individuals and corporate entities which can agree with other corporate entities or individuals to charge conventional interest."

Foreign Court Decisions, Arbitral Awards and Sovereignty in Russia

This chapter examines a number of theoretical difficulties related to the implementation, in Russia, of the decisions and awards of foreign courts and arbitral tribunals. Along with the normative conditions for recognizing and enforcing foreign decisions, the author draws attention to the educational background of legal professionals— especially judges—in Russia. It is suggested that the statist conception of law inherited from Soviet legal scholarship implicitly leads to the contemporary Russian legal doctrine of negating the obligatory force of decisions from foreign courts. In the opinion of the author, the core of this conception resides in the traditional concept of sovereignty, which excludes the direct effect of legal acts made by foreign states, private arbitration tribunals, and international organizations. Nevertheless, there have been signs of a change in the attitude of the Russian judiciary in several key rulings by commercial courts. The author concludes that one now can observe seeing tendencies indicative of the development of a different concept of law in the mentality of legal professionals in Russia.

Thoughts on Corporate Law Courses Structuring and Teaching Methods (In Korean)

During the 2010 academic year, I was fortunate enough to experience teaching corporate law and M&A courses to 2Ls. First of all, I did not buy the argument that as Korea is one of civil law jurisdictions, case method would not work in Korea. Such categorical rejection is not true to the reality and betrayal of policy goals for newly-chartered law schools. Socratic method focused on appellate court decisions in the United States can be modified to the peculiar situations in Korea. Appellate court decisions do not fit for class room discussions as they do not repeat the fact parts in most cases. Trial court decisions were collected. Court decisions are not comprehensive enough to cover all the major legal issues. Foreign court decisions were referenced. Statutes are in place. Judicial decisions are read together with statutory language. Administrative practices and new legislation are additional source for legal thoughts. For each class, one question with a set of facts was distributed for class room discussions based on judicial precedents and statutes, foreign and Korean. Writing projects were assigned to teams and individuals, which were reviewed and commented periodically. Video tapes were played from time to time. Guest lectures were arranged with I-banking firm, law firm and Financial Services Commission. Not everything was as planned. Most embarrassing phenomenon was no active class discussions. Thus, class room discussions should be more encouraged by all means. Writing projects should not be overloaded. Feedbacks should be immediate. Powerpoint slides should be activated. Judicial precedents should be more developed. Policy debates should be urged. As a big picture issue, corporate law courses can be diversified. One corporate law course for all type of students is fine while corporate governance, finance, M&A, and business association courses are to be designed for would-be core corporate lawyers.

Judicial Use of Foreign Law in Human Rights Cases: Illegitimate and Unacceptable Practice?

The use of foreign law by national courts when deciding cases that concern fundamental rights has provoked a debate on the legitimacy of the judiciary to resort to this practice. Indeed, many arguments have been made by legal scholars to support the proposition that judges should not take account of unincorporated international human rights instruments or the decisions of foreign courts when they decide cases that concern fundamental rights. This article puts these arguments to scrutiny, and discusses whether this judicial practice should be resorted to.

Switzerland: Switzerland ratifies the Hague Trust Convention on 20 December 2006

After running out of time on 19 December to debate the ratification of the Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition (Convention No. 30), the Lower House of the Swiss Federal Parliament on 20 December (the final sitting day prior to the Christmas break) approved the ratification of the Convention by the Federal Council. Parliament adopted bill 05.088 signed in final form on 20 December. Its principal objective is to make the necessary amendments to the Federal Law of 18 December 1987 on Private International Law, which will provide for rules on identifying the domicile or seat of a trust (Article 21) and—inter alia—special rules on the definition of a trust, jurisdiction and in particular the recognition of foreign court decisions (Articles 149a–e). Critically, the bill also amends the Federal Law of 11 April 1889 on Debt Enforcement and...

Judicial Globalization in the Service of Self-Government

For at least the past several decades, judges around the world have been looking beyond their own states' jurisprudence to international law and the decisions of foreign courts in order to apply domestic law. This widespread practice is part of a phenomenon that Anne-Marie Slaughter calls “judicial globalization.” The American judiciary, however, has exhibited a distinct diffidence toward the use of comparative and international law to decide domestic cases, a diffidence that extends to many elected officials as well… .Various defenses of the Supreme Court's reliance on international and comparative sources have been made, not least by some of the Supreme Court justices themselves. None of the defenses, however, have met the democratic objections head-on. Instead, justifications have mainly defended the general utility of referencing additional sources rather than the specific legitimacy of referencing sources from outside the U.S. legal system. The defenses to date fall short for at least two sets of reasons. They fail to grapple with legitimate concerns about the practice. In consequence, they offer no reasons for those opposed to this practice to reconsider their resistance.

Chapter 31. Proceedings in Cases Concerning Recognition and Enforcement of the Decisions of Foreign Courts and of Foreign Arbitral Awards

Chapter 31. Proceedings in Cases Concerning Recognition and Enforcement of the Decisions of Foreign Courts and of Foreign Arbitral Awards

At Law: America as Pattern and Problem

Since the days of Tocqueville, foreign observers have seen America as both a pattern and a problem. They still do, and in ways that illuminate the way law deals with bioethical issues both here and abroad. America was long exceptional in having a written constitution, in allowing its courts the power of judicial review, and in letting courts exercise that power to develop and enforce principles of human rights. Today, that pattern looks markedly less exceptional. After the Second World War, Germany and Japan were persuaded to adopt constitutions that included human rights provisions and that endowed courts with the power to interpret them. Since that time, a number of other countries--Canada, for example--have also moved closer to the American constitutional pattern. Many countries, however, have not been content to borrow American constitutional principles and practices. Their courts have also asserted their authority to develop and enforce principles of human rights in two other ways. First, courts in many countries have assumed jurisdiction over questions involving those rights by virtue of their duty to interpret treaties their countries have signed. Second, and strikingly, courts in many countries have come to see themselves as joint participants in the work of building an international body of human rights law. As my colleague Christopher McCrudden writes in his fascinating study of this development, is now commonplace for courts in one jurisdiction to refer extensively to the decision of other courts in interpreting human-rights guarantees.[1] This is where America has come to seem a problem to our foreign observers. For the United States has been irritatingly reluctant to sign these treaties, and American courts have been irritatingly unwilling to consult the decisions of foreign courts. Why? The reasons are--obviously--various. Foreign observers are not infrequently pleased to believe that Americans are irredeemably provincial. (What do you call someone who speaks two languages? Bilingual. What do you call someone who speaks one language? American.) And it is perfectly true that, while lawyers in many countries are likely to have had some instruction in a foreign law (and even to have studied in a foreign country--often the United States), American lawyers have generally not been so blessed. To be sure, Americans lawyers have less need. They work in the world's dominant economic power, one so vast that much more internal trade occurs within American boundaries than within any other industrialized country. American lawyers, to put the point differently, are more narrowly trained because--more than the lawyers in other countries--they can afford to be. Foreign observers also relish suggesting that America has resisted signing some international human rights treaties because it is hopelessly arrogant and cannot believe it has anything to learn about human rights from abroad. It is surely true that American foreign policy has in recent decades often seemed loftily confident of its mission to bring the wretched heathen to the human rights light. But the reluctance to sign such treaties has other, less evident, roots as well. For one thing, a number of international human rights agreements have grown out of regional (and particularly European) efforts at economic and political integration, efforts in which the United States has been, if anything, a competitor. More significantly, however, the government of the United States is--more than almost any foreign country's--federal. We confide many issues with human rights implications to the states, not the federal government. In addition, some Americans have opposed these treaties because they take them seriously enough to be uneasy about where judicial interpretation will take their provisions. That the American executive and legislative branches have not leapt to endorse human rights treaties may help explain why American judges have not felt encouraged to be guided by the developing international law of human rights that judges in many countries are creating. …

Decisions of Foreign Courts: Canada

Decisions of Foreign Courts: Canada

Decisions of Foreign Courts

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.

Further reform of enforcement proceedings in Ukraine: international standards and a foreign element

The article analyzes the problematic situations that occur in the current enforcement practice and which need to be resolved in the new legislation of Ukraine, in particular, the Law of Ukraine "On Enforcement Proceedings", the Civil Procedure Code of Ukraine and other normative acts that need to align and reflect the latest concepts of enforcement of decisions with foreign element. Issues raised regarding the need to introduce into the relevant legislation, court and practice on enforcement of judgments and other bodies of international standards of enforcement proceedings proposed by the Council of Europe.
 This article has for an object to educe only major problem questions in a modern executive production in an order to caution the origin of errors in the new release of this Law and define priorities in the international aspects of a force implementation of decisions. Fully obviously, that it is necessary to work on creation of international principles of executive process and the Ukrainian scientists can not lie up this problem.
 The current state of reform of Ukraine's legal system is characterized by that, what needs the deep rethinking and transformation plenty of normative acts, improvement of activity of practically all law enforcement authorities. It is considered a necessity to undertake substantial steps in direction of approaching of our state to the international standards and complex development of legislation taking into account considerable migration of population, eurointegration course, id est to strengthen regulation of legal relationships with a foreign element. In this connection appears a necessity to spare considerably anymore attention in the new release of Law of Ukraine "On Enforcement Proceedings"" of status of foreign subjects, including, foreign investors and protection of their rights on an investment, to strengthen and develop the question of a force implementation of foreign court decisions, and also represent in international agreements the simplified system of intergovernmental relations in the sphere of a force implementation of decisions and others like that. In the period of reforms these problem questions it more easily to affect, to discuss and represent in a legislation, than in the following to bring in corrections to the formed legislation.