Foreign Rules Research Articles

Nonarbitrability and Mandatory Rules: Brothers, Not Twins

Notwithstanding the lack of clear legislative intent, Belgian judges have unilaterally prohibited the arbitration of exclusive distribution disputes, unless a specific Belgian pro-distributor statute was applied or unless similar substantive foreign rules were applied. However, in 2023, the Court of Cassation finally reversed its jurisprudence. Yet, the syllogism underlying this longawaited reversal remains unsatisfactory. It mistakenly equates a conflict-of-laws issue concerning mandatory rules with questions of nonarbitrability under international arbitration law. Such an overly simplistic assimilation is inappropriate in many respects. It dilutes the tailored legal standard applicable to international arbitration into a lesser question of applicable rules. It unduly prevents a subject matter from entering ratione materiae into the arbitration field. Upon closer examination, it conflates two substantively different gateways to arbitration: the nonarbitrability doctrine (Article V(2)(a) of the New York Convention) and the public policy exception (Article V(2)(b) thereof). In so doing, it needlessly erodes confidence in the arbitral process, which is based on parties’ autonomy, and violates the principles of judicial non-interference in international arbitral proceedings and of competence-competence. In essence, regardless of the pro-arbitration outcome in the case at hand, this flawed syllogism violates the New York Convention’s straightforward language and pro-arbitration ethos by potentially generating unnecessary, unforeseeable, and improper exceptions to arbitration.

Indigenous Rhythms in Mamang Dai’s The Black Hill

Indigenous rhythms are new genre which mainly focuses on tribal literature. Indigenous people are referred as tribal in India, are ethnic group of people whose members share a cultural identity that has been shaped by their geographical region and they generally regarded as the original inhabitants of a territory or region. Indigeneity displays a strong association between people and their rootedness to their surroundings, material or emotional connection to the land. The bioregionalist thinkers and practitioners help human beings to reconnect themselves with the land and places because they are part of them and without them survival is not possible. Mamang Dai belongs to Arunachal Pradesh, a state inhabiting Northeast India. Her novel The Black Hill captures the forgotten tales and terror of history in the Abor and Mishmi hills. The novel covers the time and space of both the pre-colonial and the post-colonial world. By this she gives a glimpse of the changing situations and atmosphere of the places which is an interesting part of the study. Land is considered as a precious asset, sacred and revered among the tribal people of Northeast India. The land is not simply a surface but it is a home and pride of the tribal people. Even before the period of colonization, different tribes were at war with each other because of land inheritance, fishing and hunting. The love for their native land which they called home is the first thing the people protected when the British troops migluns tried to take possession as unused underused or empty-areas of rational deficit. This study focuses on the land, folklore, language, presence of evil, status of women and resistance of foreign rules.

Eğitim Yönetiminde Örgütsel Kültürü Oluşturan Dinamiklerin Temel Öğelerinin İncelenmesi

The aim of this study is to examine the basic elements of the dynamics formed by the education culture. Criteria when evaluating organizational members, events, situations and values in the organization. These criteria express values. Organizational principles of good-bad, right-wrong are proportional to values. Organizational distinctions express the values of common thoughts and beliefs about what to do and what not to do. There may be values such as protection, savings, hard work, obeying the rules, and honesty in organizations. The organization creates the norms of behavior rules and criteria that it accepts by developing discrimination. Norms are also expressed as rules that are expected to comply with organizational rules. In case of non-compliance with the rules of the non-organizational organization, the sanctions are again determined by the norms. Norms, which contain more concrete expressions than values, guide people. The norms accepted by the organization's foreign rules are generally accepted by unwritten amateur organization members. General beliefs in organizations have an important room in achieving organizational goals. It is the beliefs at the beginning of the abstract elements that are not easy to direct and change the members of the organization. Beliefs are one of the factors that benefit from organizations. Beliefs provide incomplete integration by being a source of values. Hostility, loyalty, and similar beliefs outside the organization make the organization strong. Symbols can show concrete expressions such as clothes, objects, logos, flags or abstract expressions such as the chairman of the board of directors, the general manager in the life of the organization. The first areas where organizational culture will be seen in an organization are symbols. They are also areas of first impressions about organizations. It is also used to consider status within the group of symbols. The physical planning in the organizations, the layout of the office, the structure of the office show the distribution of power within the furniture organizations. Key Words: Educational Management, Organizational Culture, Basic Elements

Collision aspects of the implementation of the right to marriage in private international law

Regulation of relations of matrimony and family in international private law is one of the most difficult and intensively analyzed spheres in Ukrainian legal science. It is also important to pay attention to processes of unification and harmonization of this relations, that is happening now in Europe. It is essential to analyze and compare legislation of foreign countries in context of future implementation of some rules and institutes into national legislation. Any state is a warrant of the most of social rights, so it has an obligation to provide in legislative level mechanisms of protection of right of matrimony and family sphere. It is also more actual in context of increase of number of collisions of national and foreign rules that makes collision problems. Collision rules do not regulate relations of matrimony and family, they help to find connections with national law, that arise because of foreign element, so every state has its own national legislation, that regulates matrimony and family relations and in process of this regulation problems of collision happen. Compliance of requirements of legislation is always necessary for legal force of marriage, including marriage with foreign element. Collision rules of family law are quite a difficult institute of international private law, there are some rules of national law, that regulate this sphere, but there are also some collisions in matrimony relations, including realization of right for marriage. There are globalization and integration processes now, but there are some problems because of collisions, so states create conditions for regulation of relations of matrimony and family and understand necessity of approximation of national rules to international mechanisms, practice and processes of protection of rights and interests of participants of relations of matrimony and family.

“The Hardships of the Beginning”. The “Foreign Character” of Transylvanian Towns in the Interwar Press

Abstract The Union of 1918 stands in the Romanian historiography as the great event of the national history, the moment when Romanians who had been living for centuries under foreign rules came together in one united country. Despite the enthusiasm of those days, soon it became obvious that putting together areas with different histories, different backgrounds and different cultures was not such a simple process. The difficulties and the setbacks of the aftermath of the Great Union entered more recently the attention of the Romanian historiography, preoccupied for a long time rather on its significance for the nation than on its hardships. The present study addresses one of the issues debated in the interwar Romanian press, regarding the extent to which Transylvania was getting loose of its foreign marks and gaining a Romanian character.

EPC-contracts using in renewable energy: Legal and practical aspect

The relevance of the article is connected with the rapid growth of investor`s interest in the project implementation of renewable power plant construction, through the conclusion of so-called EPC-contracts because Ukrainian legislation can’t properly keep up to carry out legal regulation of the public relations, which forces business to use foreign jurisdiction rules or standard contract forms developed by specialized international organizations with a purpose for project implementation. The purpose of the study is clarification of the main features of the capital construction of renewable facilities in Ukraine through the conclusion of EPC- contracts and the problems of current adaptation of legislation according to the best world practices. The main research methods are comparative law research and logical law method, the first of which allows to compare and identify common and distinctive features which are inherent for Ukrainian law and provisions of EPC-contracts which were designed by International Federation of Consulting Engineers (hereinafter – FIDIC), the second one helps to logical study of the legal rules and avoidance of contradictions during conclusion and execution of contracts. The results of the study will be useful for practicing lawyers who support renewables power plant construction projects as well as for scientists who study public relations in the field of capital construction.

Foreign exchange intervention and monetary policy rules under a managed floating regime: evidence from China

ABSTRACT This paper investigates the consequences of foreign exchange (FX) intervention in monetary policy under a managed floating regime. Focusing on China’s FX intervention, we identify periods of strong and weak FX intervention using a Markov regime switching approach. We then evaluate quantity-based monetary policy rules using both regime switching reduced-form and structural estimations. In particular, monetary policy regimes obtained from the structural estimation match well with the previously identified intervention regimes. We find that the People’s Bank of China has significant exchange rate stabilization incentives during periods of strong FX intervention, and that the monetary policy rule depends on the state of FX intervention. Furthermore, our estimations point to a trade-off between the central bank’s internal and external policy targets in that strong FX intervention leads to weak responses to domestic GDP and inflation fluctuations.

The Restatement of Foreign Sovereign Immunity: Tutto il Mondo è Paese

Abstract Chapter 5 of the Restatement of the Law (Fourth): The Foreign Relations Law of the United States provides a systematic, discerning and accessible account of the US law of foreign sovereign immunity as laid down in the Foreign Sovereign Immunities Act (FSIA), accompanied by consistent comparative reference to the international and foreign domestic law of state immunity. From the perspective of a non-US reader, however, where Chapter 5 adds greater value in its own right is in the attention it pays in the comments and reporters’ notes to a range of preliminary issues of domestic law on the determination of which the provisions of the FSIA turn but that the latter do not regulate. These issues, although superficially peculiar to the US law of foreign sovereign immunity, arise similarly in connection with the corresponding international and foreign domestic rules. In this way, what are ostensibly the most particular aspects of Chapter 5 may be those of most universal interest.

Changing of Currency Exchange and Its Harmony with Accounting Iraq’s Rules and International Accounting

The aim of the study was how the harmony between the Iraqi accounting rules and international standards and is there a difference between rule and the standard, which has been the International Standard No. (21) the effects of changes in foreign currency exchange rates and conduct a comparative analysis with the Iraqi accounting rules rule number (4) the effects of changing prices in foreign currencies have reached your search several conclusions the most important of the existence of a gap between the accounting Qaeda applicable between the international standard requirements represented by failure to disclose the change in the classification of foreign operations and export rules Iraqi accounting without cause by sufficient explanations and cases of practical application of some processors contained therein leading to interpretations and opinions of personality.

Foreign direct investment rules in selected European countries – an overview

Purpose To provide an overview of the national foreign direct investment (“FDI”) screening mechanisms in place across Europe including in France, Germany, Italy, the Netherlands, Spain and the UK. Design/methodology/approach This article summarizes the key elements of the national FDI screening regimes of some of the leading European economies. This includes setting out the relevant investment thresholds, protected sectors, lengths of review periods, standstill obligations and potential sanctions in each jurisdiction. Findings Many of Europe’s leading economies are following the wider global trend towards stricter reviews of foreign investment ahead of the EU Screening Regulation coming into force in October 2020. However, the approach taken to FDI screening can vary significantly at a country level in terms of both process and substance and the applicable laws are evolving rapidly, not least as a response to concerns related to the impact of COVID-19. Practical implications Investors looking to make acquisitions in Europe will need to consider whether national FDI screening will apply to their proposed investments. Depending on the jurisdiction, FDI screening can introduce lengthy review periods and require detailed information gathering as well as uncertainty as to the final outcome. Potential investors also need to consider the risk of sanctions, including criminal sanctions, for non-compliance with the screening regimes. Originality/value This article offers a summary and comparison of national FDI screening regimes across Europe.

Reimagining Section 94.1: The Offshore Investment Fund Property Rule

In this article, the author contemplates how section 94.1 of the Income Tax Act (Canada), the offshore investment fund property (OIFP) rule, might be reimagined considering its inefficacy in the face of unique non-resident investment funds. By tracing the anti-avoidance origins of the rule, the author shows that the source of this inadequacy is an expectation overload rather than legislative failure. While the OIFP rule was introduced as a stop-gap designed only to tackle a certain kind of basic intermediation strategy, it is now tasked with the much grander objective of creating a level playing field with respect to the tax treatment of domestic and offshore investment funds. The author shows how this mismatch of aspiration and reality has created the opportunity for savvy investors to manipulate the "motive" test within the rule, and avoid its application, simply by proving themselves to have a sufficiently credible and pervasive alternative reason for investing in an offshore fund (for example, the unique expertise of its manager). The author postulates that this flaw is likely to become more frequently tested as funds specializing in novel asset classes (such as cryptocurrency funds) proliferate and grow. The article closes with the proposition that if the test at the centre of the rule is recast as a purely objective analysis, and certain other changes are made, section 94.1 can be transformed to apply a transaction-cost model that will deter undesirable intermediation attempts and ensure that Canada's revenue authorities get a cut of any profits from superreturn investment opportunities. The author draws on key elements of the ultimately abandoned foreign investment entity rules and certain anti-avoidance provisions from elsewhere in the Act to provide a conceptual foundation for the proposed amendments. He also seeks to demonstrate how revising the OIFP rule in this way will achieve a greater degree of capital export neutrality—a policy thread that runs through the Canadian approach to international taxation—by creating a more (though not wholly) level tax playing field, but without the crippling administrative burden and incomplete tax coverage that may accompany a more capital export neutrality-driven approach.

La Convention européenne des droits de l’homme et les conflits de lois : synthèse de dix ans de jurisprudence européenne

The European Court of Human Rights, whose jurisprudence is presented here, is not a court specialising in private international law. However it applies the norms deriving from the European Convention on Human Rights to applications by litigants complaining of any type of national legal rules, including the rules of private international law. There are cases decided by the European Court in all fields of private international law, out of which the cases relating to the field of choice of law are presented here. The cases decided during the last ten years can be classified in cases on the human rights control of (1) equality before the national rules of choice of law, (2) the public policy exception, (3) fraus legis, and (4) the methodological choice between the application, to a status acquired abroad, of the forum’s own rules of choice of law, or, alternatively, the method of recognition of the result of the application of the foreign rules of choice of law. The case-law of the European Court has had, on the whole, a moderate – and moderating – effect on national choice of law rules.

Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia

This paper provides a comparative overview of the laws on the recognition and enforcement of foreign judgments in ASEAN and Australia, China, India, Japan and South Korea. It considers the principles which are shared in common and the significant differences in the laws on foreign judgments in the region. This paper argues that the laws which are canvassed here share many principles, albeit the interpretation on certain aspects may differ. Though differences exist, the differences are becoming less sharp. Further, there is a practical need for harmonisation given the plans for closer economic integration in the region. This paper argues that harmonisation is possible and should be pursued.

Regulation, global governance and private international law: squaring the triangle

Regulatory rules are omnipresent today. Increasingly, they also influence private rights and obligations, from employment contracts to competition law and data protection. Private international law traditionally treats them with a certain reserve because they do not fit its paradigms of “neutral” and “interchangeable” rules of law. This article argues that it is time to change this attitude. Regulatory rules often protect global public goods, such as the environment, or shield against global bads, such as pandemics. Others serve aims shared between different countries, like the fight against money laundering and tax evasion. For these reasons, administrative authorities around the world cooperate in the enforcement of regulation. Private international law should open up its methodology to this new reality. After exploring the traditional ways in which regulation has been dealt with, this article makes concrete proposals for changes. Besides overcoming the “public law taboo”, these include the more liberal application of foreign public law and foreign overriding mandatory rules, the development of multilateral conflicts rules for areas permeated by regulation, the recognition of foreign administrative decisions, and the development of a global public policy.

Parallele Welten. Inwiefern Literaturwissenschaft und Sprachwissenschaft voneinander profitieren können

The essay starts with a discussion about language as the central medium of human communication. Language is the object of research within linguistics, that analyse its structure as well as its pragmatic and communicative character. But also literature and research in literature reflect about language, its prospects and also its limits of mutual understanding. Problems of communication often arise in intercultural environments, especially under the restraints of emigration or foreign rules. Nowadays problems increase because of tendencies of globalization, that require the learning of foreign languages, but also the acquaintance with foreign cultures. Under these circumstances foreign language teaching gets more and more important to procure intercultural communicative skills. Whereas the chances of literature appear to be rather limited on this field.

Foreign Trusts, the Panama Papers and the Shewan Report

The New Zealand tax system was until recently so structured as to allow foreigners to use the country as a tax haven. Specifically, it allowed them to use trusts established in New Zealand (referred to as “foreign trusts”) to avoid and evade the tax they would otherwise have had to pay in their home country. It would seem to have been possible, too, for foreigners to use such trusts for other illicit purposes, in particular money-laundering and financing terrorism. In April 2016 the publicity given to the Panama Papers attracted attention to this aspect of the New Zealand tax system. The government responded by appointing a distinguished accountant, John Shewan, to advise. He recommended that the law be changed and the government accepted his recommendations. This paper explains how the foreign trust rules work, and how the amending legislation was designed to preclude this form of abuse.

0169 Nationale Folklore und politischer Totenkult: Der Brüderfriedhof in Riga (1924-1936)

This article discusses symbolic forms and the association of folklore and politics in the Riga Brethren Cemetery (Brāļu Kapi). The iconographic and formal analysis of this memorial sheds light on its function as a place of worship for those who fell in action while fighting for the sovereignty of the Latvian people. Considering that Latvia suffered severely from different foreign rules over the past centuries, the memorial has contributed to strengthen nationalistic movements in Latvian society and has played an important role in nation-building. The cemetery’s landscape design as well as its large-scale monuments by the Latvian sculptor Kārlis Zāle (1888-1942) borrowed their themes from Latvian mythology. After investigating another major work of Zāle, the Freedom Monument in Riga, I analyse the main elements of the sculptural ensemble of the Brethren Cemetery. Eventually, I outline how the political circumstances have influenced the burial practices over the decades. With Latvia celebrating the centennial of its first proclamation of independence in 2018, the restoration of this memorial has been undertaken in recent years.

Legal Transplants and Their Impact on Kosovo's Legal System

Alan Watson once argued that a rule which is transplanted is different in its new home. For a poor village housewife 'bread' does not have the same meaning as for the wealthy Parisian businessman. The housewife has much less choice, is close to the source of supply, and bread plays a very different role in the family diet. Similarly, foreign legal rules transplanted to the legal system of Kosovo may have different results than in their legal system of origin. Kosovo is a country with a unique history of state-building. As a new state, Kosovo had to be built from scratch, which entailed a lengthy process of legal changes. Laws that were in force Kosovo before 1999 could not support the new developments in its economic and social order, especially the transition from a state-controlled economy to an open-market economy, thus Kosovo has relied heavily on foreign experience in drafting its legislation. Since 1999 Kosovo has received millions of Euros in legal aid from international organizations for the purpose of legal reform. However, this assistance may prove to be very costly for Kosovo as it implies importing foreign rules to Kosovo legislation. Therefore, the aim of this paper is to explore the impact of external factors on the development of Kosovar law. The paper will assess whether the transplanted law comports with the culture and tradition of Kosovo and whether the models are likely to fit with the adopting legal system? Is there a timeframe to determine on whether something foreign really “fits in” the local environment? By exploring the above I want to show the impact of legal transplants on the legal order of Kosovo and whether legal solutions that were effective in foreign countries can be effective in Kosovo too.

Name of the child in Serbian private international law

Rules of Serbian Private International Law pertaining to the name of the child, both those currently in force, and those that are proposed in the Draft Private International Law Code (2004) are discussed in this article in the light of the decisions of the Court of the EU in Garcia Avello and Grunkin-Paul. The main issue related to the name of the child with an international element is how to regulate the recognition of first and last names of Serbian nationals determined abroad. Currently, there is a unilateral conflict rule providing for application of mandatory norms of Serbian family law. That means that the current Serbian law does not allow recognition of the name of the Serbian child determined according to foreign law if the foreign rules are different than the Serbian applicable rules. The registrar is directed to request the parents to adapt the child's name to requirements of Serbian law, irrespective of the consequences, i. e. the possibility that the child will bear different names in different countries. The fact that the child may also be a national of that other country and habitually resident there, is of no consequence. The Draft PIL Act introduces significant changes by: providing for a possibility for parents to choose the applicable law in case of change of name so that they can choose between the laws of the child's various nationalities, and by providing for recognition of changes of name conducted in a foreign country if the child has been a habitual resident of that country for at least five years. The author argues for introduction of substantive rules into the future PIL Code, which would provide for a possibility of recognition of child's name determined in the country of his other nationality or of his habitual residence.

Australia's foreign investment approval regime: a new way forward

Australia's national interest is well-served by having a foreign investment regime that has the right balance between flexibility and certainty. One highly successful aspect of that policy has been the ability to use conditional approvals to ensure that applicants behave in a manner that is consistent with the national interest. The government's new legislation is an ambitious and important attempt to modernise the 40-year old foreign investment rules. We consider the new legislation successfully builds on the system including a conditional approval regime that has been improved to reflect best regulatory practices and support ongoing investment.