Academic literature on the topic 'Identification of the overriding mandatory provisions'

This chapter outlines the conduct of the tribunal and the parties during arbitration proceedings. In general, an arbitral tribunal must conduct the arbitration in accordance with the procedure agreed by the parties. If it fails to do so, the award may be set aside, or refused recognition and enforcement. However, the freedom of the parties to dictate the procedure to be followed in an international arbitration is not unrestricted. The procedure must comply with any mandatory rules and public policy requirements of the law of the juridical seat of the arbitration. It must also take into account

The unification of the conflict-of-law rules in matters of matrimonial property regimes at EU level seeks to mitigate differences in substantive law in particular legal systems. The aim of this contribution is to analyse the doctrine of overriding mandatory provisions and consider the applicability of the public policy exception, which limit the application of the law otherwise applicable determined in compliance with the unified conflict-of-law rules. The question author addresses in this paper is whether these institutes of the general part of private international law provide for sufficient safeguards to protect the fundamental values and public interests of the forum law in matters of matrimonial property regimes.

Cooperatives in the EU Member States are subject to the provisions of the Council Regulation 1435/2003. However, cooperative legislation is different among the EU states and most countries have specific rules applicable to cooperatives. There are some steps for setting up a cooperative, which are summarized in: Identification of a common economic goal for potential members, decision about the number of members recruited, their rights and responsibilities, determination of business feasibility, development of a business plan, preparation of legal papers and implementation of the business plan. In many European countries, cooperatives can have a legal status either as a cooperative society with limited or unlimited liability, as an economic interest grouping or as a joint-stock company. Most EU Member have no mandatory provision regarding the minimum capital stock or the minimum number of members for setting up a cooperative.

This contribution provides a comparative study of the position of overriding mandatory rules in regional, supranational and international conflicts instruments, in particular the Rome I Regulation on the Law Applicable to Contractual Obligations (2008) and the proposed African Principles on the Law Applicable to International Commercial Contracts (2020). COVID-19 regulations are referred to as an unequivocal example of overriding mandatory provisions in the context of the disruption of international commerce. The application of the proper law of the contract, the lex fori and the law of the country of performance, as well as the application of the legal systems of other countries are considered. Although strongly influenced by the corresponding provision in the Rome I Regulation, it is suggested that article 11 of the African Principles provides more clarity. The African Principles constitute the sole instrument which explicitly mentions that the overriding mandatory rules of the proper law of the contract are applicable in principle. The African Principles clarify that, for the purposes of the application of the law of the country of performance, any substantial performance under the contract is relevant (that is, both the characteristic and the monetary performance). The African Principles expressly include the country of commencement, continuation and completion of the performance in determining the content of the notion of the law of the country of performance. In respect of the application of the overriding mandatory rules of legal systems other than the lex fori, the proper law and the law of the country of performance, the African Principles reflect a via media between the opposing positions in the Rome I Regulation and its predecessor, the Rome Convention on the Law Applicable to Contractual Obligations (1980): in exceptional circumstances, the overriding mandatory rules of another legal system may be applied, provided that such law has a manifestly close connection to the particular situation. As the doctrine of overriding mandatory rules can be better explained from a unilateralist rather than a Savignian conflicts paradigm, it is argued that American-style comparative interest or impairment analysis could provide valuable ideas in respect of the exercise of the discretion of a court in cases of the cumulation of overriding mandatory rules. Finally, the submission is made that the law applicable to the contract should govern the effect of an overriding mandatory rule on contractual liability, unless the provision itself stipulates the consequences.

This paper deals with the exceptions from the parties’ choice of applicable law for commercial contracts, which may occur if: (a) chosen foreign law violates domestic ordre public; (b) parties intentionally create the circumstances which enable them to choose foreign law in order to evade the mandatory provisions of domestic law (fraus legis); (c) the overriding mandatory provisions need to be applied to commercial contracts. After explaining the boundaries of parties’ right to choose the law applicable to commercial contracts, author analyses each of the mentioned exceptions from the point of view of Serbian private international law.