Abstract
The position of the exceptio non adimpleti contractus in public international law as a response to the breach of a treaty is surrounded by uncertainty. This article offers an analytical ...examination of: i) the notion of the exceptio and its relationship to other responses to the breach of a treaty; ii) the question of its conditions of application; and iii) its character as a rule of international law. It argues that the exceptio is distinct both from responses pursuant to Article 60 of the Vienna Convention on the Law of Treaties (VCLT) and from countermeasures; however, there is uncertainty with regard to its conditions of application. The exceptio can be considered as a general principle of law and, as such, can fill gaps in the regulation of responses to the breach of a treaty. However, it remains unclear whether the exceptio constitutes a rule of customary international law.
Celotno besedilo
Dostopno za:
DOBA, IZUM, KILJ, NUK, ODKLJ, PILJ, PNG, PRFLJ, SAZU, UILJ, UKNU, UL, UM, UPUK
The high percentage of non-performance loan (NPL) may bring adverse impact to creditor (banks), the banking sector in general, and also to the economic and financial of the country. To overcome these ...conditions, Bank of Indonesia issued a policy regarding restructuring. Restructuring is an effort undertaken in the activities of credit to borrowers who have difficulty to meet its obligations. Banks engaged in lending has a restructuring program has been set on the credit policy of each bank, but still there are banks that ignore and do not do this loan restructuring seek in accordance with the procedure. This study is an empirical study that examines the juridical on the implementation of the rules concerning the restructuring of the debtor defaults on bank loans as well as obstacles in implementing the debt restructuring. This research is a descriptive research. Data sourced from primary data and secondary data. Data collection techniques used is literature study and interview techniques. Analysis conducted qualitative and descriptive analysis presented. Implementation of the provisions of the rescue loan restructuring and settlement of non-performing loans on bank credit has not been optimally applied to all borrowers who are having trouble paying even though they have the opportunity to carry out the payment. Inhibiting factors, among others, the rules concerning debt restructuring are scattered in various policy rules, regulations often change with a relatively large number of rules, the lack of a comprehensive understanding of this policy, an independent financial consultant is often overlooked involvement in debt restructuring, which is not good faith to implement agreement, the lack of information and initiatives in the debtor filed debt restructuring, customers who do not cooperative and giving false information about the source of income.
One of the oldest human activities is the trade of goods, services, money and other property values both within a country and abroad. Foreign trade business has an exceptional importance for ...socio-eco-nomic relations between countries. Each state independently regulates the trade of goods and services. However, no state economy is self-sufficient, so its need to join the international markets is quite justified. Through a mutual trade cooperation, states transfer the effects of the concluded agreements beyond their borders, and the need for the unification of certain norms is absolutely necessary, as well as the regulation of the issue of a breach of contractual obligation and compensation for damages as a consequence resulting from such a thing. Some countries have a fear of ratifying the international rules, because they think that the accepted solutions would be contrary to their national legislation. There is mentioned only one of the reasons for the states resistance, as well as the difficulties in achieving the unique acceptable solution. This paper analyzes the concept, the importance of foreign trade business for countries, then the rights and obligations of the contracting parties and the compensation for damage due to a breach of a contractual obligation by non-performance in the sales contract
Condictio indebiti, condictio causa data causa non secuta, condictio ob causam finitam, condictio ob turpem vel iniustam causam i, na koncu, condictio sine causa, tipični su kondikcijski zahtjevi ...koji tradicionalno pojednostavnjuju inače heterogen institut neopravdanog obogaćenja i čine ga pristupačnim ponajprije pravnim praktičarima. Zagovara se podjela na činidbene i nečinidbene kondikcije. Pretpostavka obogaćenja potvrðuje da se činidbenim i nečinidbenim kondikcijama ostvaruju različite zadaće te da se na njih primjenjuju različita pravna pravila.
The outbreak of COVID-19 has severely impacted the performance of contracts across the globe. In some situations, the outbreak may render the performance of contracts impossible as a result of ...governmental restrictions in the form of national lockdowns to curb the spread of the virus. In other situations, the pandemic may adversely impact the execution of contractual obligations by dramatically affecting the price of the performance and, thus, resulting in hardship or commercial impracticability, while in certain situations the pandemic may be legally construed to not affect the performance of a contract. In domestic contracts, the consequences of such non-performance would depend on the principles of national law. In comparison, agreements with a foreign element (international contracts) are likely to increase the complexity of deciding claims arising from the non-performance of contracts due to the COVID-19 outbreak. The rights and liability of the parties would chiefly depend on the law that will govern the agreement – which differs across the globe. Some contracts would include a force majeure clause to exonerate the parties from performance on the occurrence of an event such as a pandemic. The courts’ interpretations of such force majeure clauses similarly differ across the globe. The laws of some countries would excuse the parties from performing their contractual obligations even if the pandemic resulted in hardship. Others would strictly construe the terms of such clauses and would invalidate them if the occurrence of the pandemic did not make the performance impossible. This paper examines the non-performance of transnational contracts due to the COVID-19 outbreak when they are governed by Indian law. It highlights the situations when an international contract for the sale of goods or services whose performance has been allegedly hindered due to COVID-19 would (a) frustrate and (b) breach the agreement under Indian law. The paper provides a comparative analysis of Indian law with jurisdictions such as France, Germany, Austria, China, the United Kingdom, Australia and the United States to demonstrate that Indian law is not well equipped to deal with complex lawsuits arising due to the non-performance of contracts as a result of the pandemic.
There is extraordinary variation in how governments treat multinational corporations in emerging economies; in fact, governments around the world have nationalized or eaten away at the value of ...foreign-owned property in violation of international treaties. This even occurs in poor countries, where governments are expected to, at a minimum, respect the contracts they make with foreign firms lest foreign capital flee. In The Shield of Nationality, Rachel Wellhausen introduces foreign-firm nationality as a key determinant of firms' responses to government breaches of contract. Firms of the same nationality are likely to see a compatriot's broken contract as a forewarning of their own problems, leading them to take flight or fight. In contrast, firms of other nationalities are likely to meet the broken contract with apparent indifference. Evidence includes quantitative analysis and case studies that draw on field research in Ukraine, Moldova, and Romania.
Dealing with non-performers Elkan van Dijk; de Waal, André
Journal of strategy and management,
02/2020, Letnik:
13, Številka:
1
Journal Article
Recenzirano
PurposeNon-performance should be addressed urgently given the high associated costs: on average, 17 percent of management time is spent overseeing non-performing employees, thus distracting managers ...from important business issues and initiatives and, non-performers can reduce productivity by as much as 30–40 percent. Though many organizations recognize the importance of dealing effectively with non-performers, this remains difficult in practice for various reasons, including cultural aspects. The purpose of this paper is to answer the following question: What are some of the ways for managers in different national cultures to deal effectively with non-performers?Design/methodology/approachTo collect the necessary data, semi-structured interviews were conducted with managers of profit and non-profit companies in different countries. After the interviews were transcribed, key themes and patterns were identified by manual open coding. The collected data were disaggregated into conceptual units and provided with labels. After significant themes and issues were identified, axial coding was used to look for relationships between the data categories that had emerged from open coding.FindingsThere are two main culture-independent findings. First, clarity is needed when managers give assignments to and set expectations for employees. Thereafter, managers should monitor employee performance and give immediate feedback when employees make mistakes. Second, this feedback needs to take the form of true two-way dialogue between the manager and employees: the manager needs to listen to employees’ situation and what they want and need as development opportunities to progress. These findings in itself are not earth-shattering but still important for two reasons: the findings are culture-independent and can thus be seen as generic approaches for dealing with non-performers in many (most) cultural settings; and in practice the authors still see many managers ignoring these activities while dealing with non-performers, making them less effective than they could and should be. In this respect, the findings serve as a reminder not only of the fact that these activities still are the most effective in order to deal with non-performers, but also point out how important they are as they are effective in many cultural settings.Practical implicationsIn practical terms, the results should assist managers in various cultural settings to determine if there are non-performers in their organizations, identify the causes of their non-performance and apply interventions to effectively tackle the issue.Originality/valueThe research contributes to the literature by examining topics such as how to define non-performers, how they can be recognized from their behavior, what causes their non-performance and how national cultures influence the management of non-performers.
This study aims to examine the influence of banks' credit to SMEs on non-performing loans. Many studies find that access to financial sources has become an obstacle to the growth and sustainability ...of SMEs. This study uses theoretical and empirical approaches to support the study's hypothesis. Data are presented for 15 banks in Palestine, covering the period 2006 to 2016.The study uses empirical techniques regarding to examine the relationship between the variables. Evidence shows that encouraging banks to lend more money to SMEs through the use of a guarantee fund could decrease their risk. Thus, enhancing credit to SMEs could improve the growth and sustainability of these firms. The study recommending policymakers and bank's managers could develop their strategies according to SME's needing. Therefore, enhancing the growth in these firms and reducing the bank's risk. Furthermore, adopting the guarantee funds in developing countries could decrease the bank's risk, thus lending more to SME. The value of this paper comes from the importance of SME in the economic growth and development sustainability. Therefore, there is a need to convince banks to enhance SME credit through a guarantee fund and that extending this type of credit would positively influence banks' activities.
Written by Adam Kramer, a commercial barrister and academic, the second edition of the acclaimed The Law of Contract Damages is the most comprehensive and detailed treatment available of this ...important dispute resolution area. The first edition is regularly cited in the courts and academic literature, and this new edition has been substantially updated to take account of over 150 recent decisions. To aid understanding and practicality of use, the book is primarily arranged by the type of complaint, such as the mis-provision of services, the non-payment of money, or the temporary loss of use of property, but also includes sections on causation, remoteness and other general principles. At all points, the work gathers together the cases from all relevant contractual fields, both those usually considered—construction, sale of goods, charterparties, professional services—and those less frequently covered in general works—such as SPAs, insurance, and landlord and tenant. It also refers to tort decisions where relevant, including full coverage of professional negligence damages, and gives detailed explanation of many practically important but often neglected areas, such as damages for lost management time and the proof of lost profits. The book provides authoritative and insightful analysis of damages for breach of contract and is an essential resource for practitioners and scholars in commercial law and other contractual fields.
Much of international law, like much of contract, is enforced not by independent sanctions but rather through cooperative interaction among the parties, with repeat dealings, reputation, and a ...preference for reciprocity doing most of the enforcement work. Originally published in 2006, The Limits of Leviathan identifies areas in international law where formal enforcement provides the most promising means of promoting cooperation and where it does not. In particular, it looks at the International Criminal Court, the rules for world trade, efforts to enlist domestic courts to enforce orders of the International Court of Justice, domestic judicial enforcement of the Geneva Convention, the domain of international commercial agreements, and the question of odious debt incurred by sovereigns. This book explains how international law, like contract, depends largely on the willingness of responsible parties to make commitments.
PDF
