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'n Vergelyking van die oorgrens-insolvensiewetgewing van Suid-Afrika met die van die Verenigde State van Amerika / Etienne Gerhard FourieFourie, Etienne Gerhard January 2012 (has links)
Due to economic globalisation and integration, as well as the global economic downturn since 2008, the appearance of cross-border insolvencies have increased dramatically. This increase in cross-border insolvencies has led to a demand for a general and fair system to administer cross-border insolvencies globally. In 1997 United Nations Commission on International Trade Law (UNCITRAL) promulgated the Model Law on Cross-Border Insolvency to act as an aide to countries in globally administering cross-border insolvencies in a uniform way. South Africa, and the United States of America (USA), subsequently accepted this Model Law approach into their respective national legislation. South Africa did this through the Cross-Border Insolvency Act 42 of 2000 (CBIA) and the USA by way of Chapter 15 of the United States Bankruptcy Code. The CBIA is, however, not currently in operation as the Minister of Justice has not yet designated countries to which the CBIA will apply. Chapter 15 is, however, effective and operational in the USA.
The two theories that underlie cross-border insolvencies – universalism and territorialism – have been further refined in the theories of modern universalism and modern territorialism. Supporters of modern universalism hailed the acceptance of the Model Law into the national legislation of countries as a victory over modern territorialism as the characteristics of modern universalism can be found throughout the Model Law. Modern universalism is, however, seen as theory which endangers the interests of local creditors as it favours universal administration of assets. However, modern territorialism is, on the other hand, acknowledged to protect the interests of local creditors. Therefore an investigation into the application of Chapter 15 by the courts of the USA will indicate if the interests of local creditors are sufficiently protected under this so-called modern universalistic approach and, if indeed so, how this is achieved. As the CBIA is neither operational nor effective in South Africa, cross-border insolvencies are governed by the common law and the precedents set down in case law. Writers and case law indicate that South Africa uses a system that can be described as between pure territorialism and modern territorialism. It can therefore be accepted that South Africa currently protects the interests of its local creditors sufficiently. The question then arises if, when South Africa made the CBIA effective and operational, would local creditors‟ interests still be sufficiently protected? As the CBIA and Chapter 15 are both based on the Model Law, they are basically identical in most aspects. Therefore an investigation into the application of Chapter 15 will also indicate if the CBIA will sufficiently protect the interests of local creditors.
This dissertation thus attempts, through an investigation of the applications lodged under Chapter 15, to indicate that the USA still succeeds in protecting the interests of its local creditors. The USA achieves this through utilising mechanisms made available through Chapter 15 itself. Consequently this dissertation shows that South Africa can make the CBIA operational, while still sufficiently protecting the interests of its local creditors. / Thesis (LLM (Import and Export Law))--North-West University, Potchefstroom Campus, 2013
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La réception par le droit Iranien de la loi type de la CNUDCI sur l’arbitrage commercial international / The receipt by Iranian Law of the UNCITRAL model law on international commercial arbitrationMehdi Pour, Mohammad 14 December 2017 (has links)
De nos jours, les activités et les relations d'affaires sont beaucoup plus larges et complexes qu'auparavant. L'extension de cet espace, nécessite que les différends relatifs aux affaires commerciales soient réglés dans des systèmes efficaces adaptés à la nature des litiges de ce domaine, c'est-à-dire, rapidement, de manière précise et par des experts. C'est pour quoi, au cours des dernières décennies, les législations des pays relatives à l’arbitrage ont été actualisées, et les conventions internationales dans ce domaine connaissent une large réussite. Les pays recherchant à transformer leur législation sur l’arbitrage commercial disposent d’un modèle législatif apprécié et intéressant fourni par la loi type sur l’arbitrage commercial international ; il a été adopté en 1985 par la CNUDCI et constitue aujourd’hui une référence pour réaliser une unité juridique dans le domaine de l’arbitrage commercial international. Les transformations des régimes juridiques nationaux ont débuté assez tôt dans certains des pays développés tels la France, la Suisse et la Belgique, tandis qu’elles ont été entamées assez tardivement dans d’autres pays, tels ceux en voie de développement dont l’Iran. En Iran, l’arbitrage a toujours été admis et pratiqué ; néanmoins, la procédure civile iranienne présentait encore des insuffisances, et dévoila encore davantage de défauts concernant l’arbitrage international. En conséquence, les parties iraniennes aux contrats internationaux ne pouvaient convaincre les parties étrangères à accepter l’Iran en tant que place d’arbitrage. C’est en accord avec les évolutions législatives mondiales que l’Iran aussi, tout en se joignant à la Convention de New York de 1958, réforma sa législation sur l’arbitrage commercial international, en adoptant en 1997 une loi sur l’arbitrage commercial international rédigée en adoptant le modèle législatif proposé par la CNUDCI. Cette loi marqua une évolution marquante dans la législation iranienne vu qu’elle institua d’importantes règles alignées sur les tendances récentes du droit de l’arbitrage international. Malgré cela, certains praticiens y découvrirent des défauts et des lacunes, réclamant ainsi une réforme nécessaire pour rendre le droit iranien réellement attractif. Néanmoins, la loi iranienne de 1997 n’a jamais fait jusqu’à ce jour l’objet d’une étude scientifique systématique. L’examen des droits d'autres pays tels que : la français, la belge et l'anglais sur l’arbitrage commercial international, ainsi que l’étude d’autres sources pertinentes, permettra d’identifier et d’analyser en profondeur les lacunes et de proposer des remèdes. / Nowadays, the business relations are much broader and more complex than before. The extension of this area of activities requires the disputes arising out of business relationships to be resolved through the effective systems aligned with the nature of this area, i.e. the promptness, accuracy and expertise. Hence, over the last few decades, the national laws relating to the arbitration have been developed, and international conventions in this field achieved a great deal of success.The countries seeking to reform their legislation on commercial arbitration can adopt the well-known model law provided by the UNCITRAL Model Law on International Commercial Arbitration which has been adopted in 1985 by UNCITRAL and is now a reference for the realization of a legal system in the field of international commercial arbitration. Changes in national legal regimes began relatively early in some of the developed countries such as France, Switzerland and Belgium, while they were initiated fairly late in other countries, such as developing world, including Iran.In Iran, arbitration has always been admitted and practiced; nevertheless, the civil procedure in Iran was inadequate in this area, and revealed even more defects concerning international arbitration. Consequently, Iranian parties to international contracts could hardly convince their foreign parties to accept Iran as the seat of arbitration.It was in line with global legislative developments that Iran, while joining the 1958 New York Convention, has reformed its legislation on international commercial arbitration by adopting a law on commercial arbitration in 1997 in accordance with the model law proposed by UNCITRAL. This law marked a significant development in Iranian legislation as it established important rules aligned with recent trends in the law of international arbitration. Despite this, the practitioners discovered some defects and shortcomings. That’s why they call for a reform necessary to make Iranian law truly attractive. Nevertheless, the Iranian law of 1997 has never been subject of a comprehensive study so far. Examination of the laws of other countries such as French, Belgian and English on international commercial arbitration, as well as the study of other relevant sources, will pave the way to identify and analyze in depth the gaps and propose remedies.
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Modelagem do agente de contrato eletrônico na fase de formação de contratos no sistema de comércio inteligente (ICS) considerando a lei modelo sobre comércio eletrônico / MODELING OF THE ELECTRONIC CONTRACT AGENT IN THE PHASE OF CONTRACT FORMATION IN THE SYSTEM OF INTELLIGENT COMMERCE (ICS) CONSIDERING THE LAW MODEL ON ELECTRONIC COMMERCETrinta, Valeska Rogéria Vieira 22 June 2007 (has links)
Made available in DSpace on 2016-08-17T14:53:03Z (GMT). No. of bitstreams: 1
Valeska Trinta.pdf: 905357 bytes, checksum: f3c91470c3f5586469d4ecfac4057fdc (MD5)
Previous issue date: 2007-06-22 / The present work treats the real concerns on the law model about electronic
commerce UNCITRAL and its impact in the modeling of the electronic contract agent
in the phase of contract formation in the System of Intelligent Commerce (ICS). It is
presented as object of study the ICS inside the context of the phase of contract
formation. The literature revision approaches innumerable aspects related to the
modeling of the electronic contract agent in the phase of contract formation in the ICS
considering the law model on electronic commerce. It has as objective generality to
present the modeling of the electronic contract agent in the phase of contract
formation in the ICS. It approaches the question on contracts in its liberal
interpretation, law appraised, describes the requirements of the contract and what it
comes to be contract formation. It deals with electronic contracts, it presents its
concept, as well as, it describes the question of the validity of electronic contracts. It
describes the ICS, detaches the multiagent boarding, it approaches the question on
the communication between agents and describes the cycle of life of the electronic
commerce in the ICS. It describes the contract agent, discourses on the ontologies.
Finally, the modeling of the contract agent of the ICS, with the cases of use and
diagrams that had been defined from the purchase modalities that they had been
specified that they are electronic proclamation or auction reverse and a purchase
standard in the B2B environment. As well as, it describes the contributions and the
quarrel of the results of the research. / O presente trabalho parte das preocupações reais sobre a lei modelo sobre
comércio eletrônico UNCITRAL e o seu impacto na modelagem do agente de
contrato eletrônico na fase de formação de contratos no sistema de comércio
inteligente ICS. Apresenta-se como objeto de estudo o Sistema de Comércio
Inteligente ICS (ICS) dentro do contexto da fase de formação de contratos. A revisão
de literatura aborda aspectos relacionados à modelagem do agente de contrato
eletrônico na fase de formação de contratos no ICS considerando a lei modelo sobre
comércio eletrônico. Tem como objetivo geral apresentar a modelagem do agente de
contrato eletrônico na fase de formação de contratos no ICS. Aborda a questão
sobre contratos em seu sentido lato, juridicamente conceituado, descreve os
requisitos do contrato e o que vem a ser formação de contrato. Trata dos contratos
eletrônicos, apresenta seu conceito, assim como, descreve a questão da validade
dos contratos eletrônicos. Descreve o ICS, destaca a abordagem multiagente,
aborda a questão sobre a comunicação entre agentes e descreve o ciclo de vida do
comércio eletrônico no ICS. Descreve o agente de contrato eletrônico, discorre sobre
as ontologias. Trata da modelagem do agente de contrato eletrônico do ICS, com os
casos de uso e diagramas que foram definidos a partir das modalidades de compra
que foram especificadas que são pregão eletrônico ou leilão reverso e uma compra
padrão no ambiente B2B. Por fim, apresenta as contribuições e a discussão dos
resultados da pesquisa.
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電子提單相關法律課題之研究蔡淑華 Unknown Date (has links)
傳統的貿易主要以書面往來處理交易相關作業,藉由直接交付、電話、電報、傳真、郵寄等方式傳遞貿易文件,此種作業花費相當的時間與成本,且時有錯誤發生,或是單據晚於貨物到達,造成貨物提領不便的情形。
本論文重點在探討國際貿易流程中物流運送部份的無紙化所遭遇的困難,除第一章緒論介紹研究動機與範圍外,第二章則是介紹國際貿易流程,藉以發現書面作業的缺失,並經由瞭解國際間實施貿易電子化的情形,對照反映我國電子化環境的不足;第三章介紹船貿文件在實務上運作的情況,及國際間因應物流無紙化所創設的電子交易市集,並對上述情況加以評析;第四章探討船貿文件實施電子化在現代法律制度下衍生的法律課題;第五章則藉著探討國際間因應運送服務電子化立法方向的發展,尋求運送法律的出路;第六章則在綜合歸納本文之研究發現,提出建議與結論,作為日後研究可能的方向。
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The competence of the foreign representative in cross-border insolvency matters : a comparison between South Africa and Australia / Ella MoutonMouton, Ella January 2014 (has links)
The world is continuously becoming a smaller and smaller place. It has become a
global community of sorts merely divided by imperceptible borders that are easily
transversed by ever-evolving technological advances in the fields of business,
travel, communication and such, each regulated by its own set of domestic laws and
regulations. Hordes of South Africans immigrate to Australia annually due to, among
others, economic and political uncertainty. These ex-patriots generally leave behind
assets and creditors in South Africa whilst acquiring new ones wherever they choose
to establish themselves. This serves as basis for potential future cross-border
insolvency issues. Furthermore, entities such as companies trading internationally,
and multinational companies with branches and offices in more than one state, have
property and creditors in many different jurisdictions. Should such a company be
liquidated, it would give rise to questions of jurisdiction, the procedures to be
followed, the appointment of a liquidator(s) and the distribution of assets, to name a
few.
The absence of a universal cross-border insolvency law leaves room for much
uncertainty and confusion. What is of importance for purposes of this research is to
clarify all prevailing uncertainties regarding the rights and obligations of the foreign
representative and the foreign creditor in cross-border insolvency matters. The
foreign representative is the person or entity appointed to administer the
reorganisation or liquidation of the insolvent debtor’s assets in a foreign proceeding.
The inconsistency in cross-border insolvency regulations between South Africa and
Australia has the consequence that there is no guarantee that a foreign creditor in
one state will be treated the same as a foreign creditor in terms of the domestic laws
of the other, as the Model Law aims to do. The situation would have been
significantly less complicated had the South African Cross-Border Insolvency Act been in force at present and had Australia been designated as a state to which this
Act would apply. In that case, the treatment of foreign representatives and foreign
creditors would be of a reciprocal nature.
This dissertation attempts, through an investigation of the South African and
Australian domestic insolvency laws, to ascertain the position of the foreign
representative and foreign creditors pre and post incorporation of the Model Law.
Consequently this dissertation compares the legal positions of these parties in terms
of South African and Australian national insolvency legislation. / LLM (Import and Export Law), North-West University, Potchefstroom Campus, 2014
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The competence of the foreign representative in cross-border insolvency matters : a comparison between South Africa and Australia / Ella MoutonMouton, Ella January 2014 (has links)
The world is continuously becoming a smaller and smaller place. It has become a
global community of sorts merely divided by imperceptible borders that are easily
transversed by ever-evolving technological advances in the fields of business,
travel, communication and such, each regulated by its own set of domestic laws and
regulations. Hordes of South Africans immigrate to Australia annually due to, among
others, economic and political uncertainty. These ex-patriots generally leave behind
assets and creditors in South Africa whilst acquiring new ones wherever they choose
to establish themselves. This serves as basis for potential future cross-border
insolvency issues. Furthermore, entities such as companies trading internationally,
and multinational companies with branches and offices in more than one state, have
property and creditors in many different jurisdictions. Should such a company be
liquidated, it would give rise to questions of jurisdiction, the procedures to be
followed, the appointment of a liquidator(s) and the distribution of assets, to name a
few.
The absence of a universal cross-border insolvency law leaves room for much
uncertainty and confusion. What is of importance for purposes of this research is to
clarify all prevailing uncertainties regarding the rights and obligations of the foreign
representative and the foreign creditor in cross-border insolvency matters. The
foreign representative is the person or entity appointed to administer the
reorganisation or liquidation of the insolvent debtor’s assets in a foreign proceeding.
The inconsistency in cross-border insolvency regulations between South Africa and
Australia has the consequence that there is no guarantee that a foreign creditor in
one state will be treated the same as a foreign creditor in terms of the domestic laws
of the other, as the Model Law aims to do. The situation would have been
significantly less complicated had the South African Cross-Border Insolvency Act been in force at present and had Australia been designated as a state to which this
Act would apply. In that case, the treatment of foreign representatives and foreign
creditors would be of a reciprocal nature.
This dissertation attempts, through an investigation of the South African and
Australian domestic insolvency laws, to ascertain the position of the foreign
representative and foreign creditors pre and post incorporation of the Model Law.
Consequently this dissertation compares the legal positions of these parties in terms
of South African and Australian national insolvency legislation. / LLM (Import and Export Law), North-West University, Potchefstroom Campus, 2014
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âLetters of credit with focus on the UCP 600 and the exceptions to the principle of autonomy with emphasis on the âfraud ruleâ under the laws of the USA, the UK and the RSAâMueller, Frank Roland Hans January 2013 (has links)
No description available.
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âLetters of credit with focus on the UCP 600 and the exceptions to the principle of autonomy with emphasis on the âfraud ruleâ under the laws of the USA, the UK and the RSAâMueller, Frank Roland Hans January 2013 (has links)
No description available.
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Letters of credit with focus on the UCP 600 and the exceptions to the principle of autonomy with emphasis on the âfraud ruleâ under the laws of the USA, the UK and the RSAMueller, Frank Roland Hans January 2013 (has links)
No description available.
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Letters of credit with focus on the UCP 600 and the exceptions to the principle of autonomy with emphasis on the âfraud ruleâ under the laws of the USA, the UK and the RSAMueller, Frank Roland Hans January 2013 (has links)
No description available.
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