ELTE Law Journal

Legitimacy Concerns regarding the Application of Soft Law in International Arbitration in Connection with the Independence and Impartiality of Arbitrators

Barbara Bazánth — Thu, 14 Dec 2023 00:00:00 +0000

The growing body of soft law instruments in the field of arbitration may provide us with numerous positive outcomes; however, its application has also gathered a substantial amount of criticism. The present article addresses concerns of legitimacy voiced in today’s arbitral practice and the possible negative consequences of the excessive application of soft law in arbitration. In order to put these concerns into a more concrete perspective, the article discusses these legitimacy questions, focusing on soft law regarding issues of conflicts of interest and the impartiality and independence of arbitrators, and provides the reader with an outlook for the international acceptance and applicability of the International Bar Association’s Guidelines on Conflicts of Interest in International Arbitration.

Legal Analysis of Export Subsidies under the Agreement of Subsidy and Countervailing Measures

Shady Mawad — Thu, 14 Dec 2023 00:00:00 +0000

Export subsidies, for several decades now, have attracted significant attention due to their undesirable impacts on international trade. In the Uruguay Round 1994, the World Trade Organization (WTO) generated the Agreement on Subsidies and Countervailing Measures (ASCM) which contains global rules to regulate the different types of subsidies and to offset their adverse effects on other WTO Members. This paper, through its three sections, therefore aims to provide a legal analysis of the provisions of export subsidies contained in Articles 3 and 4 of the ASCM. By doing so, this paper answers the question of whether the ASCM is sufficient to cease the distortive effect of the export subsidy. To that end, doctrinal legal research has been conducted through analysis of the black letter of law and the case laws. In conclusion, the ASCM succeeded in giving the export subsidies per se prohibited nature, either in law or in fact. Unfortunately, the mere repayment of the amount of the subsidy is not always a sufficient remedy. As such, punitive countermeasures must be introduced to implement remedial provisions and to deter export subsidies.

Preface to the Contributions on the Change of Parties in Contract Law

Péter Gárdos — Thu, 14 Dec 2023 00:00:00 +0000

Transfer of Contracts under Hungarian Law

Péter Gárdos — Thu, 14 Dec 2023 00:00:00 +0000

The paper explores how the transfer of contracts has evolved in Hungarian law. Even though the Civil Code of 1959 did not include rules on the transfer of contracts, the courts acknowledged that legal succession in the position of a contracting party is possible by way of a trilateral contract, where all rights under the original contract are assigned and all debts are assumed. The new Civil Code of 2013 incorporated some rules that developed in the case-law of the courts, but these rules have led to uncertainties. These can all be traced back to the fundamental question of how the transfer of contract can be described, whether it is a novation, an assignment together with an assumption of debt or whether it is a sui generis legal institution. This paper argues that the transfer of contract can be described as a transfer of all rights and the assumption of all debts under a contract. A law based on this interpretation can fulfil the needs of all parties involved and can fit into the system of the Hungarian Civil Code.

Transfer of Contracts under German Law

Jan Lieder — Thu, 14 Dec 2023 00:00:00 +0000

The paper analyses the historical development of the transfer of contracts under German Law, regarding the principle of succession for the assignment of claims and the assumption of debts and the influence of the German Federal Court of Justice on the transfer of shares in a company. It also provides a dogmatic framing of the subject and shows the prerequisites for a valid transfer of contracts under German Law. Additionally, the paper outlines the protection of succession in contract law and how the Draft Common Frame of Reference codified the transfer of contracts. Finally, the author argues for the statutory addition of a third variant, of private assumption of debt, which is effective without the creditor’s consent.

Assignment of Contracts: Italian Law and the UNIDROIT Principles of International Commercial Contracts in Parallel

Roberta Peleggi — Thu, 14 Dec 2023 00:00:00 +0000

In contemporary business relations, the possibility for one party to a contract to transfer all of its rights and obligations under the contract to a third party by way of a voluntary act is of great utility. While the possibility to do this generally exists in jurisdictions across Europe, the rules by which it must be done can differ under the relevant national laws, not to mention the fact that a specific legal regime is not articulated in most civil codes. Against this background, this paper compares the approaches taken in Italian law and the uniform rules elaborated at an international level in the UNIDROIT Principles of International Commercial Contracts.

In Memoriam Jürgen Basedow (1949–2023)

Lajos Vékás — Thu, 14 Dec 2023 00:00:00 +0000