In some cases, to discover the facts, foreign arbitral tribunals need to obtain evidence from third parties located outside the arbitral tribunal's seat and in another country's territory. Sometimes ...due to the lack of general jurisdiction and authority, they have to use the judicial assistance of the national courts of foreign countries. In many advanced legal systems, including the American legal system, this authority is provided for the courts to assist the international arbitral tribunals in providing evidence to foreign arbitral tribunals to obtain evidence, including testimony and submission of documents, judicial assistance and acceptance of representation. The present study aims to answer these questions with a descriptive-analytical method, judicial assistance of national courts in acquiring evidence for foreign arbitration courts and accepting judicial representation based on which legal rules are possible. Moreover, based on international commercial arbitration law, do the national courts of Iran have the possibility of providing judicial assistance and accepting judicial representation in acquiring evidence from arbitration courts whose headquarters are outside the country's territorial territory? Since in most countries, the discourse of arbitration involves two distinct systems consisting of domestic and international arbitration, in this study, only the International Commercial Arbitration Law was approved in 1376, and the international arbitration rules of some countries have been discussed. The provisions of domestic arbitration, except for a cursory glance, are ignored in the second part so that the field of research stays in the international arbitration system
Przepisy wprowadzone ustawą z dnia 4 listopada 2022 r. o zmianie ustawy o Kra- jowym Rejestrze Sądowym, ustawy – Kodeks postępowania cywilnego oraz ustawy – Kodeks spółek handlowych stanowią pierwszy ...etap implementacji Dyrektywy Parlamentu Europejskiego i Rady (UE) 2019/1151 z dnia 20 czerwca 2019 r. Regula cje te mają za zadanie przede wszystkich ułatwić funkcjonowanie przedsiębiorców w sferze obrotu gospodarczego. Pomimo szerokiego zakresu uregulowań tzw. pakietu prawa spółek w Dyrektywie 2019/1151 uznać należy, że sama ustawa implementująca nie ma charakteru rewolucyjnego. Wynika to z faktu, że większość uregulowań w niej zawartych jest już z powodzeniem stosownych w Polsce, zaś wprowadzone zmiany mają przede wszystkim charakter porządkujący polski system prawny oraz ułatwiający dostęp do informacji o przedsiębiorcach. Niniejszy artykuł ma za zadanie przedstawić zmiany ustawowe polegające na wdrożeniu do polskiego porządku prawnego uregulowań wchodzących w skład tzw. pakietu prawa spółek oraz zakres implementacji oraz podjąć próbę oceny zasadności ich wprowadzenia.
Orderly international community and international law are determined by a national court. Essentially, the national court must be competent to maintain the balance between the national interest which ...based on the national sovereignty as well as the provisions of international law within the framework of peaceful coexistence. This article reviews the role of national courts in creating and developing the customary international law. As it turns out in practice, however, it has certain weaknesses, particularly in view of the accountability and legitimacy aspects of its establishment. This purpose could be achieved if national courts were able to maintain a balance between the national interest based on the sovereignty of State on the one hand and the provisions of international law on the other. The function of the national court was to maintain a balance between international law and national law.
The purpose of this study is to highlight the importance of the CJEU's referral with preliminary questions, but also to sound an alarm about the laxity with which some national courts allow such ...requests. We also wish to point out that more and more national courts tend to send requests for preliminary questions to the CJEU which actually appear to be asking for guidance from the Court on the national dispute and not for clarification or interpretation of the Treaties or European law. In order to achieve the objectives of this approach, using the comparative and logical method, we shall analyse the specific legislation, the relevant case law of the Court of Justice of the European Union as well as the practice of national courts. The starting point for the analysis shall be the provisions of Article 267 of the Treaty on the Functioning of the European Union, through which we shall analyse the conditions for the admissibility of a reference for a preliminary ruling. We shall also highlight the importance of the role of the national court in analysing the usefulness of the referral to the CJEU, in relation to the subject matter of the dispute, as there is no obligation per se to refer. We have proposed this scientific approach as an observation of the superficiality with which national courts are increasingly granting requests for referral to the CJEU, without a rigorous analysis of both the express conditions of Article 267 TFEU and the usefulness of a possible response from the Court in the specific case.
This article, based on fieldwork conducted in 2016 at the French national Court of Asylum (CNDA), explores reflections on the role and position of interpreters in the examination of asylum ...applications. Interpreters occupy a position that is at once an interstitial position – that is, at the crossroads of the social worlds of judges and claimants – and a ‘bastard’position, in the sense that, although they are indispensable, their legitimacy is never fully established. To grasp the full ambiguity and complexity of their position, on the one hand, the article aims to shed light on the trajectories and working conditions of interpreters as actors in this system whose legitimacy is fragile, yet who play an essential bridging role between the institutions and the foreigners seeking their protection. On the other hand, it seeks to identify and explore other factors, beyond the codification of the role within highly standardized hearings, which may influence the ways interpreters carry out their missions in practice, in both speech and behavior.
(Series Information) European Papers - A Journal on Law and Integration, 2021 6(2), 955-965 | European Forum Insight of 9 October 2021 | (Table of Contents) I. Premessa. - II. La proposta di ...riformulazione dei criteri CILFIT. - III. Analisi delle tre condizioni proposte dall'Avvocato Generale Bobek. - IV. Alcune considerazioni critiche. - V. Conclusioni: analogie e dissimilitudini con la procedura consultiva ai sensi del Protocollo n. 16 alla CEDU. | (Abstract) In its opinion of 15th April 2021 in case C-561/19, Consorzio Italian Management and Catania Multiservizi (ECLI:EU:C:2021:291) AG Bobek proposed to revise the CILFIT criteria which famously concern the duty of the National courts of last instance to request a preliminary ruling. After a brief analysis on the controversial relationship between discretion and duty to request a preliminary ruling, this Insight focuses critically on the three cumulative conditions under which, according to AG Bobek, national judges of last instance have a duty to refer and, in particular, on the condition concerning the existence of a general issue of interpretation of EU law. In the last section, the Insight argues that this condition would downgrade the binding effect of a preliminary ruling and would make it similar to the advisory opinions envisaged by Protocol n. 16 to the European Convention of Human Rights.
What motivates national judges to be either active in the preliminary reference procedure by expressing opinions in the requests they send to the Court of Justice or passive by not voicing their ...views? This Article sheds light on how national judges perceive the possibility of framing the cases they refer to the Court, for instance, by expressing an opinion in defence of the challenged national law. Based on interviews with Swedish judges, this Article shows that the respondents express opinions to provide the Court with information and to influence the development of EU law. The Article also uncovers what motivates national judges not to express opinions. These three previously untheorised motivations are: 1) protecting one's reputation, 2) respecting the division of competences between the Court and national courts and 3) upholding the impartiality of the courts. Furthermore, the findings indicate that high court judges in particular are opposed to the inclusion of opinions in a request. In contrast, most of the interviewed lower court judges view the inclusion of opinions in the requests as practically mandatory. This Article proposes that this difference in attitudes towards opinions between high and low court judges originate from variations in professional norms regarding what constitutes appropriate behaviour.
Determining the law applicable to arbitrability is of paramount importance because the procedures taken by the legal system are very different. In this way, some systems principally recognize any ...disputes eligible for referral to arbitration, while some other legal systems have put an emphasis on the general inapplicability of arbitrability to the disputes and only accepts it in a few exceptional cases. The remainder of legal systems have taken a position in the middle of these two theories. Therefore, it is clear that determining the applicable and governing law can also pinpoint the ultimate arbitrability (or not) of the case. The main challenge of this research is to examine the law governing the practice of arbitration and how proceeds the arbitrability at the courts of arbitration. At the end of this study, it will be known that there are several criteria for determining the law governing arbitrability, including the lex fori, the law of the parties’ agreement, the law of the place of enforcement of the award, and the law of one or both of the parties. By the way, today transnational law principles seems to gain more importance. Each of these criteria has its own advantages and disadvantages. Moreover, the norms of human rights have also led to developments in the recognition and enforcement of foreign arbitration awards, in such a way that the tenets of human rights (in the domain of the recognition and enforcement of foreign arbitration awards) have also led governments to recognize acquired rights in foreign countries.
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