Judicial Sale Research Articles

Towards the International Unification of Maritime Law on Recognition and Enforcement of Judicial Sales of Ships

Towards the International Unification of Maritime Law on Recognition and Enforcement of Judicial Sales of Ships

A NEWCOMER TO MARITIME LAW: THE BEIJING CONVENTION ON THE INTERNATIONAL EFFECTS OF JUDICIAL SALES OF SHIPS

AbstractOn 7 December 2022, the United Nations General Assembly adopted a treaty known as the Beijing Convention governing the recognition abroad of the international effects of judicial sales of ships. This article explores the rationale for a specific Convention on this issue, and its interaction with other relevant international conventions. It then analyses the recognition approach adopted by the Convention and evaluates its potential strengths and weaknesses. While some provisions might need further consideration, the overall conclusion is that the Beijing Convention has the potential to strengthen the legal certainty of the purchaser's title obtained via this sale mechanism and thus help debt recovery. Although common law jurisdictions might find it at odds with some of their features, the expected benefits from ratifying it seem to outweigh these issues and are already prompting a steady number of signatures, including those of China, the European Union and Singapore.

Convention on the Int'l Effects of Judicial Sales of Ships (U.N.)

The United Nations General Assembly adopted the United Nations Convention on the International Effects of Judicial Sales of Ships at its 47th plenary meeting on December 7, 2022 (the Convention). Known as the “Beijing Convention on the Judicial Sale of Ships,” the Convention opened for signature at a ceremony held in Beijing, PRC, on September 5, 2023. By its terms, the Convention will enter into force 180 days after the date that it is ratified, accepted, approved, or otherwise acceded to by at least three states. With strong backing from the maritime community, it is expected that the Convention will enter into force by 2024.

Securing the clean title of ships: The prospects and achievements of the Convention on the International Effects of Judicial Sales of Ships

The Convention on the International Effects of Judicial Sales of Ships (hereinafter “the Convention”), was adopted in December 2022. Its aim was to ensure the cross-border effects of the judicial sale of ships to secure their clean titles and to enhance the confidence of both purchasers and financiers. The Convention was the latest effort by the maritime community to broaden the scope of cross-border judicial and shipping cooperation; the deployment of a repository to this end has been an innovation in the digital era. The text of the Convention is acceptable, both in terms of judicial procedure and ship registration, and there have been no fundamental difficulties in implementing the Convention due to the balance that has been achieved between the Convention and domestic laws. The Convention's entry into force is promising; however, the attitude of top flags of registration and popular ship arrest forums will largely decide the success and future prospects of the Convention. A further development inspired by the repository established under the Convention, is the exploration of innovations in the international online system regarding the service of legal documents abroad.

Draft Convention on the Judicial Sale of Ships: A Chance for the Revolutionary Use of the Internet for Notification and Other Issues

Draft Convention on the Judicial Sale of Ships: A Chance for the Revolutionary Use of the Internet for Notification and Other Issues

The Scope of Application of the UNCITRAL Instrument on the Judicial Sale of Ships

The Scope of Application of the UNCITRAL Instrument on the Judicial Sale of Ships

Judicial Sales of Ships – A Rocky Road to Unification

Judicial Sales of Ships – A Rocky Road to Unification

PARA NÃO DIZER QUE NÃO FALEI DO CRIME DE LESA PÁTRIA DE TEMER: os Decretos 9.309, 9.310 e 9.311/2018

A quebra das regras democráticas que culminaram na impostura de Michel Temer à presidência da república é analisada a partir de um fator gerador, o contexto de oportunidade de classe para os grandes invasores das terras públicas no Brasil. Embora a desenvoltura dos latifundiários travestidos de capitalistas e vice versa não seja tratada como uma novidade, depreende-se que a sua intensificação ao longo dos governos do Partido dos Trabalhadores resultou de uma opção política orientada para a renúncia às transformações estruturais ante a perspectiva de mediação de conflitos inconciliáveis como o são aqueles que opõem saqueadores do bem comum ao restante da sociedade. Os decretos que liquidam a grilagem premiando os grileiros são o ponto culminante da gestão territorial temerária do Estado que, ao invés de coibi-la, a vem favorecendo desde a instauração dos marcos introdutórios do regime de propriedade privada. O critério da compra em hasta pública como condição para a obtenção das terras públicas simultaneamente à proibição das posses foram a maneira de bloquear de fato os acessos potencialmente incompatíveis com o monopólio de classe, mas os bloqueios de direito graças aos atos de Temer são entendidos como ônus de longa duração que mais cedo ou mais tarde terão que ser confrontados pela sociedade.

Egzekucja przez zarząd „para pago” w prawie hiszpańskim

W niniejszym opracowaniu poddano analizie jeden ze sposobów egzekucji świadczeń pieniężnych w hiszpańskim prawie egzekucyjnym – zarząd „para pago”. Jest to alternatywna względem sprzedaży licytacyjnej forma egzekwowania wierzytelności. W rozwoju historycznym instytucja ta obowiązywała również w dawnym prawie o postępowaniu cywilnym z 1881 r., a następnie przeniesiono ją do obowiązujących przepisów z 2000 r., przy czym w nowym kształcie prawnym. Istotą zarządu „para pago” jest zaspokojenie należności z dochodów uzyskiwanych z majątku dłużnika, który zajęto w toku egzekucji. Rozwiązania prawa hiszpańskiego są interesujące z punktu widzenia obowiązujących w prawie polskim przepisów o egzekucji przez zarząd przymusowy nad przedsiębiorstwem lub gospodarstwem rolnym dłużnika.

Sobreendividamento familiar, hipoteca sobre a casa de morada de família e pacto comissório

Starting from the thematic concerning the causes and origins of the family overindebtedness phenomenon (1), the text that follows focuses on the resort to bank credit as financing instrument for the family residence acquisition and its guarantee (2). In a default situation concerning the borrower’s obligations the mortgage foreclosure will take place in general terms, in which the family residence is neither free from attachment nor subsequent judicial sale (3). The forfeiture agreement as an accessory clause to the mortgage; its prohibition in Portuguese law and respective ratio; the prohibition’s subsistence logic in the present and the eventual paradigm change concerning the forfeiture agreement (4). Conclusion (5).

Heading towards Cape Town? Some remarks on the preparation of a future Protocol to the Cape Town Convention with respect to ships and maritime equipment

The Cape Town Convention, prepared under the auspices of the International Institute for the Unification of Private Law, is a remarkable success in the field of the unification of private law. Particularly, the Aircraft Protocol thereto has significantly facilitated international aircraft financing. Unsurprisingly, given the parallels between ship and aircraft financing, there are initiatives to prepare a further Protocol to the Cape Town Convention with respect to ships and maritime equipment. This idea, however, is not uncontroversial. Some doubt that a future Maritime Protocol would fit the existing legal framework of ship financing and that it would meet the needs of market participants. This article discusses some specific aspects regarding the preparation of such a Maritime Protocol. After providing some background to the ongoing debate, it examines the possible relationship between a Maritime Protocol to the Cape Town Convention and a possible future Convention on the recognition of judicial sales of ships currently prepared by the Comité Maritime International. It finds that the Maritime Protocol and a Convention on Foreign Judicial sales of ships could serve as complementary instruments that would jointly facilitate shipowners access to credit. In a second step, this article discusses some concerns with respect to a future Maritime Protocol. A closer look is taken at the controversial issue of maritime liens that is perceived to have hindered previous attempts at unification. A possible Maritime Protocol to the Cape Town Convention would provide a flexible regime of maritime liens that strikes a balance between policy interests of Member States and creditors’ interests in securing their investment. Finally, a Maritime Protocol would offer a flexible regime of remedies on insolvency. Therefore, this article concludes that the preparation of a Maritime Protocol would manifestly simplify the legal framework of ship financing.

CSR in banking in emerging markets – stakeholder perspective

Subject area This case considers the attitudes of stakeholders in a risk management challenge of a major foreign bank operating in an emerging market country in the Mediterranean region. The case provides insights into the task facing an international organisation trying to operate in a sociallyresponsible way in a developing economy, where operating conditions are quite different from the head office environment. Study level/applicability The case is designed for MBA and MSc students studying corporate social responsibility (CSR), international business, emerging markets, country risk (and related subjects). Case overview The case discusses the implications of the actions of a negligent/possibly dishonest lawyer in undermining an international bank's risk management systems. The lawyer did not register the sale of a house, causing it to be repossessed by the bank, thinking that the property still belonged to the vendor, who had allowed a large overdraft to accumulate. By chance, the repossession of the house and subsequent forced judicial sale was averted, but to ensure undisputed ownership the real owner of the house was left with heavy legal bills. There were several players possibly at fault here: the lawyer; the bank; the vendor; the local courts; and the real estate agents (who recommended the dishonest lawyer to the purchaser in the first place). Expected learning outcomes These include a clearer understanding of the different stakeholder perspectives, and a greater appreciation of the challenges of doing business for aWestern multinational company now operating in emerging markets worldwide. Social implications The concept of CSR in emerging markets is very different from the way CSR is viewed in more developed ones – posing several challenges for international companies (especially banks) in the way they operate. Making assumptions of ethical ways of doing business can cause great problems, as discussed in this case – especially in the way that different stakeholders are impacted. Supplementary materials Teaching notes are available for educators only. Please contact your library to gain login details or email support@emeraldinsight.com to request teaching notes.

Financing Intellectual Property Under Federal Law: A National Imperative

This is the first of two companion articles on intellectual property secured financing. This one discusses how the federal intellectual property statutes provide a comprehensive solution for perfecting security interests in copyrights, patents and federal trademarks. The companion article, Financing Intellectual Property Under Revised Article 9: National and International Conflicts, discusses state law. Although some argue that intellectual property security interests should be perfected using only the state UCC system, when pressed they have been unable to answer the most basic question of secured financing law: if the debtor later transfers to a bona fide purchaser, who owns the information when the secured creditor forecloses, the subsequently filing federal bona fide purchaser or the state foreclosure sale purchaser? As this question demonstrates, using state filing to perfect a security interest in a federal copyright, patent or trademark makes the security interest either commercially worthless or a public fraud. In every information financing there are four separate items of collateral in which a lender should perfect. UCC priority rules are incapable of dealing with all four in a commercially efficient manner. The federal information statutes can. This article explains why. It begins with the evolution of intellectual property financing under federal and state law, both pre- and post-Code. It covers royalty financing and how it differs from account financing. The article examines the basic differences between the horizontal financial model Article 9 adopted with the floating lien, and the vertical financing model needed for intellectual property. It discusses the crucial concept of chain of title, why statutorily it does not exist for tangible property but why it is essential for intellectual property. It also rebuts the claim that searching for prior liens using only the state UCC filing is efficient, giving an example of an inexpensive federal search that would cost millions using only the state registers. Some practitioners say a state UCC filing should at least trump a creditor, meaning a bankruptcy trustee. The article discusses why, for more than two centuries, preemptive federal law and state enforcement of judgment law has said lien creditors do not and cannot exist for intellectual property. It digests the enforcement of judgment laws in more than 20 states that say a writ of levy or attachment - the essential prerequisite for lien creditor status - does not extend to intangible information. Instead, a creditor must reach intellectual property by appointing a receiver and proceeding to judicial sale, i.e. becoming a bona fide purchaser under both state and federal law. The article discusses why the strong arm power requires treating a bankruptcy trustee as a bona fide purchaser under the federal intellectual property statutes, not a lien creditor. Finally, the article digests the judicial decisions that have, bewilderingly, come to different conclusions about the meaning of the nearly identical priority language in the Copyright Act, Patent Act, and Lanham Act. The article concludes with suggested clarifications to federal law to remedy the confusion.

UCC: Secured Transactions: Judicial Sales: Purchaser at Judicial Sale Takes Property Subject to Unperfected Security Interest of Which He Has Knowledge

UCC: Secured Transactions: Judicial Sales: Purchaser at Judicial Sale Takes Property Subject to Unperfected Security Interest of Which He Has Knowledge

The Role of the Judicial Sale in Preventing Uneconomical Parcellation of Inherited Land

The Role of the Judicial Sale in Preventing Uneconomical Parcellation of Inherited Land

Right to Withdraw Bid in Bankruptcy Sale: Bankruptcy. Judicial Sale. District Court Finds No Contract Prior to Court Confirmation and Permits Bidder to Withdraw

Right to Withdraw Bid in Bankruptcy Sale: Bankruptcy. Judicial Sale. District Court Finds No Contract Prior to Court Confirmation and Permits Bidder to Withdraw

Execution. Judicial Sales. Sheriff's Discretion to Sue Defaulting Purchaser. Defense of Satisfaction of the Judgment Creditor

Execution. Judicial Sales. Sheriff's Discretion to Sue Defaulting Purchaser. Defense of Satisfaction of the Judgment Creditor

Judicial Sales: Right to Set Aside a Successful Bid

Judicial Sales: Right to Set Aside a Successful Bid

Real Property. Right of Purchaser at Inoperative Judicial Sale to Recover for Improvements

Real Property. Right of Purchaser at Inoperative Judicial Sale to Recover for Improvements

Judgments. Vendee of Land Acquired by Party to Record at Judicial Sale Held Not a Bona Fide Purchaser

Judgments. Vendee of Land Acquired by Party to Record at Judicial Sale Held Not a Bona Fide Purchaser