Author: Andreas Maurer
Publisher: Mohr Siebeck
Release Date: 2012
English summary: Largely unnoticed by the law, the maritime trade sector has developed private mechanisms of norm-making, adjudication, and enforcement which can be called transnational law. In this context especially the participation of stakeholders provides legitimation of privately made norms and standards in international maritime trade. German description: In der Rechtswissenschaft werden unter den Stichworten aNeue Lex Mercatoria und aTransnationales Recht seit Jahrzehnten Konzepte eines globalisierten Rechts jenseits des Nationalstaats diskutiert. Weitgehend unbeachtet von derartigen Debatten hat die Seehandelsbranche aufgrund ihrer eigenen Internationalitat die Globalisierung bereits seit langem tatsachlich vollzogen. Der grenzuberschreitende Seehandel hat dabei Institutionen im Bereich von Rechtsetzung, Rechtsprechung und Rechtsdurchsetzung entwickelt, die aufgrund privater Setzung ein transnationales Seehandelsrecht begrunden. Regeln entstehen dabei in Verfahren, die unter breiter Beteiligung von allen Interessentragern des Seehandels zustande kommen. Diese dienen als Beispiel fur die Legitimation eines transnationalen Rechts, das mit staatlichem Recht interagiert und so einen hybriden Rechtskorper - eine Lex Maritima - bildet.
Author: José López Miralles
Publisher: Editorial Cultiva Libros S.L.
Release Date: 2014-02-05
Genre: Literary Collections
En este breve ensayo monográfico, su autor, Francisco José López Miralles, marino mercante y licenciado en Derecho, con amplia experiencia en las cuestiones de la mar adquirida como oficial, jefe de máquinas e inspector de flota en diversas navieras nacionales y extranjeras a lo largo de más de cuarenta y dos años de ejercicio profesional, examina la tendencia actual a la escisión del Derecho marítimo privado del Derecho mercantil, con quiebra del clasicismo iniciado en las Ordenanzas de Bilbao de 1737 y fielmente seguido después en los Códigos de comercio de 1829 y 1885, mediante una convenida confusión del Derecho marítimo público y el Derecho marítimo privado en aras al establecimiento de un Derecho marítimo general como rama dogmáticamente separada, concluyendo que la dificultad esencial, claramente opuesta a la integración científica pretendida, reside en el hecho de cómo superar la carencia de un concepto unitario de Derecho marítimo, ya que en la dicotomía entre el fin y el objeto material constituido por el buque radican dos concepciones distintas: Si atendemos al destino del buque mercante, es decir, a su explotación comercial, tradicionalmente unida a la función privada del transporte por mar, deberemos conceptuarlo como parte especial de un Derecho mercantil particular y universal, muy atento a la “lex maritima” aplicable internacionalmente al tráfico; el criterio delimitador será por tanto el fletamento como acto típico del comercio marítimo ejercido en masa, con dedicación profesional, ánimo de lucro y habitualidad por el naviero. Si por el contrario nos fijamos prioritariamente en el elemento material, en su impacto sobre el entorno y en los sujetos responsables de la operación náutica de los ingenios más dispares por mares abiertos o bajo jurisdicción nacional, deberemos encuadrarlo como “tertium genus” en un Derecho de carácter complejo público-privado de la navegación marítima o “ius navigationis”, en el cual el peso relativo de las regulaciones públicas incidirá con mayor o menor vehemencia según la valoración subjetiva otorgada por los publicistas a los riesgos potenciales inevitablemente unidos a la progresión del tráfico comercial y extracomercial por vía marítima.
Author: Aaron Xavier Fellmeth
Publisher: Oxford University Press
Release Date: 2009
Over 2,300 entries with etymology and extensive cross-references to other terms Includes examples of usage in context to supplement the definitions of Latin terms and phrases Provides the modern pronunciation, classic pronunciation, and context of meaning for each Latin term As knowledge of Latin continues to diminish, the constant use of this language in cases, textbooks, treaties and scholarly works baffles law students, practitioners, and scholars alike. Most of the Latin terms commonly used by international lawyers are not included in some of the more popular law dictionaries. Terms and phrases included in modern dictionaries usually offer nothing more than a literal translation without sufficient explanation or context provided. Guide to Latin in International Law provides a comprehensive approach and includes both literal translations and definitions with several useful innovations. Included is not only the modern English pronunciation but also the classical or "restored" pronunciation. Its etymology is more complete than the leading law dictionary on the market, and the definition for each term includes examples used in context whenever helpful. Each entry is also cross-referenced to related terms for ease of use. The editors make clear that the understanding of Latin is a critical skill for practitioners who hope to acquire and understand sources of law and each other. Readership: Law students, practitioners, and scholars, both domestically and internationally, unfamiliar with legal terms originating in Latin
Author: Wim Blockmans
Publisher: Taylor & Francis
Release Date: 2017-02-17
The Routledge Handbook of Maritime Trade around Europe 1300-1600 explores the links between maritime trading networks around Europe, from the Mediterranean and the Atlantic to the North and Baltic Seas. Maritime trade routes connected diverse geographical and cultural spheres, contributing to a more integrated Europe in both cultural and material terms. This volume explores networks’ economic functions alongside their intercultural exchanges, contacts and practical arrangements in ports on the European coasts. The collection takes as its central question how shippers and merchants were able to connect regional and interregional trade circuits around and beyond Europe in the late medieval period. It is divided into four parts, with chapters in Part I looking across broad themes such as ships and sailing routes, maritime law, financial linkages and linguistic exchanges. In the following parts - divided into the Mediterranean, the Baltic Sea, and the Atlantic and North Seas - contributors present case studies addressing themes including conflict resolution, relations between different types of main ports and their hinterland, the local institutional arrangements supporting maritime trade, and the advantages and challenges of locations around the continent. The volume concludes with a summary that points to the extraterritorial character of trading systems during this fascinating period of expansion. Drawing together an international team of contributors, The Routledge Handbook of Maritime Trade around Europe is a vital contribution to the study of maritime history and the history of trade. It is essential reading for students and scholars in these fields.
Author: Walter Mattli
Publisher: OUP Oxford
Release Date: 2014-07-17
Genre: Political Science
Most literature on international arbitration is practice-oriented, technical, and promotional. It is by arbitrators and largely for arbitrators and their clients. Outside analyses by non-participants are still very rare. This book boldly steps away from this tradition of scholarship to reflect analytically on international arbitration as a form of global governance. It thus contributes to a rapidly growing literature that describes the profound economic, legal, and political transformation in which key governance functions are increasingly exercised by a new constellation that include actors other than national public authorities. The book brings together leading scholars from law and the social sciences to assess and critically reflect on the significance and implications of international arbitration as a new locus of global private authority. The views predictably diverge. Some see the evolution of these private courts positively as a significant element of an emerging transnational private legal system that gradually evolves according to the needs of market actors without much state interference. Others fear that private courts allow transnational actors to circumvent state regulation and create an illegitimate judicial system that is driven by powerful transnational companies at the expense of collective public interests. Still others accept that these contrasting views serve as useful starting points of an analysis but are too simplistic to adequately understand the complex governance structures that international arbitration courts have been developing over the last two decades. In sum, this book offers a wide-ranging and up-to-date analytical overview of arguments in a vigorous nascent interdisciplinary debate about arbitration courts and their exercise of private governance power in the transnational realm. This debate is generating fascinating new insights into such central topics as legitimacy, constitutional order and justice beyond classical nation state institutions.
Author: Jolien Kruit
Publisher: Paris Legal Publishers Uitgeverij Paris
Release Date: 2017-02-16
General average is considered to be one of the most uniformly regulated topics of maritime law. This study concludes that this perception is flawed. The invariably applicable York-Antwerp Rules do not provide a full regime, whereas their applicability is generally contractual only. As a result, questions arise as to which law applies to general average obligations, how the applicable national law is to be determined (taking into consideration the impact of the European Rome I and II Regulations), and what is provided in the national regimes. In addition, questions arise as to what the influence is of contractual provisions set out in contracts for the carriage of goods by sea and general average security forms, and how the various sources interact. This study contains an in depth assessment of these questions.
Author: Mert Elcin
Release Date: 2010-08
International commercial contracts in the context of increasing globalization of the national markets have posed some of the most difficult questions of the legal theory as developed since the emergence of nation states; those are, whether it is possible or desirable to allow international commercial contracts to be governed by the law merchant or, in its medieval name, lex mercatoria, a body of rules which has not been derived from the will of sovereign states, but mainly from transnational trade usages and practices, and to what extent those rules should govern transnational transactions. The traditional approach of legal positivism to the questions maintains that law governing contracts containing a foreign element should be a national law which will be determined according to choice of law rules. However, the particularities of cross border trade yield unsatisfactory results when the rules essentially designed for the settlement of domestic disputes or national laws pertaining to international economic relations, but developed under the influence of a certain legal tradition, are tried to be applied. New solutions are needed to overcome the special problems of international trade between merchants from different legal systems. In that regard, while the international commercial arbitration which has been freed from the constraints of the domestic laws is an important step, the courts generally applying the principle of party autonomy which allows parties to designate the law that will apply to their transactions have proved insufficient due to the positivistic influence on the conflict of laws rules of most countries which has limited parties' choice of law to the national substantive laws. The problems created by those inconsistencies and divergences have been felt more strongly in the European Community which constitutes an internal market by integrating the national markets of Member States into a single one. The present paper is an attempt to search for answers to those questions with a special emphasis on the situation in the European Community on the basis of the idea that law as a servant of social need must take account of the far reaching and dramatic socio-economic changes.
Author: Marc Huybrechts
Publisher: Intersentia nv
Release Date: 2000-09-26
Both volumes present an in depth analysis of actual marine insurance relative to hull insurance, cargo insurance and P&I insurance. The impact of European law on marine insurance and, more specifically, European Competition Rules in relation to P&I insurance are covered. In addition, specific issues such as the future Belgian Marine Insurance statute and the Antwerp Marine Policy are dealt with. The subjects are covered in a broad comparative law perspective, combining practice and theory. Also topics such as the ISM code and its relation to marine insurance and the position of classification societies and quality insurance are considered.
Author: David Osborne
Publisher: CRC Press
Release Date: 2016-09-13
Thought to be the most comprehensive guide to English law relating to ship mortgages, the second edition of The Law of Ship Mortgages has been highly anticipated. This fully-updated and complete explanation provides practitioners with a practical, commercially-based, and definitive guide to the English law of ship mortgages as well as important related areas such as conflict of laws and insolvency. The authors, being seasoned practitioners themselves, bring their practical experience to bear on a number of difficult and developing areas of the law, such as: mortgagees’ duties, liability to charterers, conflicts of laws, work-outs and cross border insolvency. New to this edition: In-depth analysis of noteworthy cases such as The WD Fairway litigation, PK Airfinance v Alpstream, and Tropical Reefer and Anton Durbeck v DNB Enhanced coverage of issues such as security interests in ships, priority, and third party involvement Completely revised and reordered content, to better reflect practitioner needs Written with practitioners in mind, this new edition will be extremely useful to legal professionals working in any jurisdiction that is involved in international ship finance, as well as post-graduate students and academics.
Author: Michael A. Helfand
Publisher: Cambridge University Press
Release Date: 2015-07-02
Non-state law is playing an increasing role in both public and private ordering. Numerous organizations have emerged alongside the nation-state, each purporting to provide their members with rules and norms to govern their conduct and organize their affairs. The nation-state increasingly finds itself sandwiched, between two broad and contrasting categories of non-state law. The first - law above the state - captures legal systems that function across the territorial borders of nation-states. The second category - law below the state - includes forms of local customary, religious, and indigenous law. As these forms of non-state law persist and proliferate alongside the nation-state, the relationship between state and non-state law becomes more complex, multifaceted, and tense. This volume addresses this relationship considering whether and to what extent state and non-state law can coexist and how each form of law seeks to influence as well as transform the other.
Author: David D. Caron
Publisher: Oxford University Press
Release Date: 2015-11-12
International arbitration has developed into a global system of adjudication, dealing with disputes arising from a variety of legal relationships: between states, between private commercial actors, and between private and public entities. It operates to a large extent according to its own rules and dynamics - a transnational justice system rather independent of domestic and international law. In response to its growing importance and use by disputing parties, international arbitration has become increasingly institutionalized, professionalized, and judicialized. At the same time, it has gained significance beyond specific disputes and indeed contributes to the shaping of law. Arbitrators have therefore become not only adjudicators, but transnational lawmakers. This has raised concerns over the legitimacy of international arbitration. Practising Virtue looks at international arbitration from the 'inside', with an emphasis on its transnational character. Instead of concentrating on the national and international law governing international arbitration, it focuses on those who practise international arbitration, in order to understand how it actually works, what its sources of authority are, and what demands of legitimacy it must meet. Putting those who practise arbitration into the centre of the system of international arbitration allows us to appreciate the way in which they contribute to the development of the law they apply. This book invites eminent arbitrators to reflect on the actual practice of international arbitration, and its contribution to the transnational justice system.
Author: Matej Avbelj
Publisher: Bloomsbury Publishing
Release Date: 2018-01-11
For almost a decade the European Union has been stuck in a permanent crisis. Starting with domestic constitutional crises, followed by an imported financial crisis, it has evolved into a fully formed political crisis. This book argues that none of the crises are exclusively internal to the EU and the responses to date, which have taken inward looking approaches, are simply inadequate. Resolution can only come when the EU engages more fully with transnational law. This highly topical book offers an innovative dual focus on both transnational and EU law together. It sets out the relationship between the two frameworks by exploring practical concrete problems that transnational law has posed to the EU. These problems are explored from the perspective of four key tenets of both systems, namely the rule of law, democracy, the protection of human rights, and justice. It does this by advancing the theoretical framework of principled legal pluralism. In so doing it offers clear normative guidance as to how the relationship between EU and transnational law should be developed and fostered.
Author: David J. Bederman
Publisher: Cambridge University Press
Release Date: 2010-08-16
A central puzzle in jurisprudence has been the role of custom in law. Custom is simply the practices and usages of distinctive communities. But are such customs legally binding? Can custom be law, even before it is recognized by authoritative legislation or precedent? And, assuming that custom is a source of law, what are its constituent elements? Is proof of a consistent and long-standing practice sufficient, or must there be an extra ingredient - that the usage is pursued out of a sense of legal obligation, or, at least, that the custom is reasonable and efficacious? And, most tantalizing of all, is custom a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today? This volume answers these questions through a rigorous multidisciplinary, historical, and comparative approach, offering a fresh perspective on custom's enduring place in both domestic and international law.