Take-down policy If you believe that this document breaches copyright please contact us providing... more Take-down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim.
Traditionally, property law is considered to be an area where unification or even harmonisation i... more Traditionally, property law is considered to be an area where unification or even harmonisation is scarcely achievable, given the fundamental disparities between the various legal traditions. Particularly the differences between common law and civil law are often seen as too wide and too deep to overcome. This is what might be called the conventional wisdom. During the conference “Aspects of property law in a comparative and historical perspective”, held in Maastricht on 10 November 2000, the question arose whether this still is the correct view were property law to be analysed from a historically comparative viewpoint.
Part One: General Report. The Use of Comparative Law by Courts U. Drobnig. Part Two: National Rep... more Part One: General Report. The Use of Comparative Law by Courts U. Drobnig. Part Two: National Reports. Australia. The use of Comparative Law by Courts: Australian Courts at the Crossroads Jianfu Chen. Canada (I). The Use of Comparative Law by Common Law Courts in Canada H.P. Glenn. Canada (II). L'utilisation du droit compare par les Tribunaux -- Rapport Canadien P. Viau. European Union. L'utilisation de la methode comparative par la cour de justice des communautes europeennes C.N. Kakouris. France. L'utilisation du droit compare par les Tribunaux -- Rapport Francais R. Legeais. Germany. The Use of Foreign Law by German Courts U. Drobnig. Greece. L'utilisation du droit compare par les tribunaux helleniques P. Agallopoulou, C. Deliyanni-Dimitrakou. Iceland. Application of a Comparative Method by Icelandic Courts H.E. Sigurbjornsson. Israel. The Use of Comparative Law by Israeli Courts R. Sanilevici. Japan. The Use of Foreign Law by Courts in Japan K. Nishino. Luxembour...
General Reports of the XVIIth congress of the …, 2007
Page 1. 1 E-government: A Comparative Study of the Multiple Dimensions of Required Regulatory Cha... more Page 1. 1 E-government: A Comparative Study of the Multiple Dimensions of Required Regulatory Change* Corien Prins ... belong to government itself or to civil society. This general report brings together and discusses the various e-government developments ...
: Although civil law and common law show growing convergence in the area of contract and tort law... more : Although civil law and common law show growing convergence in the area of contract and tort law, still a large divergence can be seen in the area of property law. The most important explanation for this divergence is the historical development of these two legal systems. However, as a result of economic integration unification of property law seems to become unavoidable, especially with regard to security interests. In this article property law is analysed from a comparative and historical viewpoint, taking into account the close connection between the law and economic reality.
To combat the spread of the COVID-19 virus, e-health has taken a sudden leap forward. Already use... more To combat the spread of the COVID-19 virus, e-health has taken a sudden leap forward. Already use cases were studied to see if by means of advanced IT tools, particularly e-health applications (apps), patients could be monitored from their homes so they did not need to visit a hospital for frequent checks. The corona pandemic gave rise to the rapid development of tracing (and/or tracking) e-health apps, which allow quickly finding the source of an infection as well as others who might have been infected because they were in the close vicinity of someone who became ill. The development and widespread use of these apps makes it even more urgent than it already was to answer questions regarding to whom the data gathered through such apps belong and what belonging means. Can the owner of the mobile device be considered the “owner” of the data, what does “ownership” then mean, do other stakeholders (such as health care providers, public health authorities) also have a claim to “ownership”?
: The most frequent method by which companies borrow money takes the form of debentures, which ar... more : The most frequent method by which companies borrow money takes the form of debentures, which are usually accompanied by a charge on the company’s assets. One of the features of the company law which applies in Common Law countries, and which distinguishes it from that which prevails in most codified law systems on this issue, is the distinction made between the “fixed charge” and the “floating charge”. Fixed charges normally take the form of legal mortgage over specified company assets, e.g. its land and buildings. A charge may also be fixed on the company’s present and future book debts, which prevents the company from using the debts without the consent of the chargee. On the other hand, companies may also give a lender a “floating charge”, being an equitable charge on some or all of the present and future property of the company. Normally such a charge relates to those assets which are constantly changing, such as the company’s stock-in-trade. The company thus remains free to deal with the assets as it sees fit in the course of its business. The floating charge only becomes attached to an item if and when the charge “crystallizes”, whereupon it becomes a fixed charge on all the current assets which it covers. A charge crystallises where the company is about to be wound up or in such other conditions as are specified in the trust deed or debentures – e.g. failure by the company to pay the agreed interest or to redeem the debentures as agreed. In the majority of cases, the category to which a particular charge belongs is clear beyond reasonable doubt; however, there are some charges which admit of some doubt in this respect. It was precisely such a borderline charge which is the subject-matter of the case under review, which landed before the Privy Council from the New Zealand Court of Appeal. Here, a company granted a charge over its uncollected book debts, which left it free to collect them and use the proceeds in the ordinary course of its business, but prevented the company from assigning or from factoring them. The underlying debenture was expressed in such a way as to create a fixed charge over the book debts. When the company went into receivership, the only assets available for distribution to creditors were the proceeds of the book debts which were outstanding when the receivers were appointed. The question arose whether the right of the company to collect the debts and deal with their proceeds free from security meant that the charge on the uncollected debts, although described in the debenture as being fixed, was nevertheless a floating charge until it crystallised through the appointment of the receivers. It was argued by the receivers that the charge was fixed and that the proceeds were accordingly payable to the company’s bank, acting as the holder of the charge. However, of the charge was a floating charge at the time when it was created, then, through the combined effects of Schedule VII to the Companies Act 1993 and Section 30 of the Receiverships Act 1993, the proceeds were payable to the employees and the Inland Revenue Commissioner as preferential creditors. The judge at first instance ruled that the charge in question was a fixed charge. However, this decision was reversed by the Court of Appeal (New Zealand). The receivers appealed to the Privy Council. The question to be settled on appeal was whether a charge over the uncollected book debts of a company which left the latter free to collect them and use the proceeds in the ordinary course of its business was a fixed or a floating charge. The Council dismissed the appeal. It traced the history of the floating charge from its inception to the present day, paying particular attention to charges over book debts, and arrived at the following conclusions: (a) the characteristics of the floating charge as specified by Romer LJ in the landmark decision of Re Yorkshire Woolcombers Association
In this paper I will examine some fundamental aspects of European property law. Do European prope... more In this paper I will examine some fundamental aspects of European property law. Do European property law traditions share a common model of property law and, if this question is answered affirmatively, could this model be a foundation upon which European harmonisation and unification measures can be based? My thesis will be that the European property law traditions share a "classical" model of property law. A critical first analysis of this classical model will be offered, followed by an evaluation of the model from the perspective of an evolving European property law.
Hardly any other European Union regulation that I know in the area of private law has, almost fro... more Hardly any other European Union regulation that I know in the area of private law has, almost from its inception, been the cause of so much unclarity and a constant stream of legal proceedings than the Succession Regulation. Although the cases brought before the Court of Justice of the European Union (hereinafter: ‘CJEU’) seem to be of a rather technical nature, looking under their technical surface it becomes slowly apparent that the CJEU’s case law threatens to become a battleground in today’s growing tensions between what should remain within the sovereign decision of Member States and what could be done together at a European level. The Succession Regulation aims to create a unified regime in cases of international successions, applying one legal system to the whole of an estate wherever the assets are located, based on a person’s last habitual residence. Although a testator may deviate from this by choosing the law of his/her nationality, in a majority of cases, so it was thought during the drafting stage, the law of a person’s last habitual residence will apply and that law will also be decisive for which
Take-down policy If you believe that this document breaches copyright please contact us providing... more Take-down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim.
Traditionally, property law is considered to be an area where unification or even harmonisation i... more Traditionally, property law is considered to be an area where unification or even harmonisation is scarcely achievable, given the fundamental disparities between the various legal traditions. Particularly the differences between common law and civil law are often seen as too wide and too deep to overcome. This is what might be called the conventional wisdom. During the conference “Aspects of property law in a comparative and historical perspective”, held in Maastricht on 10 November 2000, the question arose whether this still is the correct view were property law to be analysed from a historically comparative viewpoint.
Part One: General Report. The Use of Comparative Law by Courts U. Drobnig. Part Two: National Rep... more Part One: General Report. The Use of Comparative Law by Courts U. Drobnig. Part Two: National Reports. Australia. The use of Comparative Law by Courts: Australian Courts at the Crossroads Jianfu Chen. Canada (I). The Use of Comparative Law by Common Law Courts in Canada H.P. Glenn. Canada (II). L'utilisation du droit compare par les Tribunaux -- Rapport Canadien P. Viau. European Union. L'utilisation de la methode comparative par la cour de justice des communautes europeennes C.N. Kakouris. France. L'utilisation du droit compare par les Tribunaux -- Rapport Francais R. Legeais. Germany. The Use of Foreign Law by German Courts U. Drobnig. Greece. L'utilisation du droit compare par les tribunaux helleniques P. Agallopoulou, C. Deliyanni-Dimitrakou. Iceland. Application of a Comparative Method by Icelandic Courts H.E. Sigurbjornsson. Israel. The Use of Comparative Law by Israeli Courts R. Sanilevici. Japan. The Use of Foreign Law by Courts in Japan K. Nishino. Luxembour...
General Reports of the XVIIth congress of the …, 2007
Page 1. 1 E-government: A Comparative Study of the Multiple Dimensions of Required Regulatory Cha... more Page 1. 1 E-government: A Comparative Study of the Multiple Dimensions of Required Regulatory Change* Corien Prins ... belong to government itself or to civil society. This general report brings together and discusses the various e-government developments ...
: Although civil law and common law show growing convergence in the area of contract and tort law... more : Although civil law and common law show growing convergence in the area of contract and tort law, still a large divergence can be seen in the area of property law. The most important explanation for this divergence is the historical development of these two legal systems. However, as a result of economic integration unification of property law seems to become unavoidable, especially with regard to security interests. In this article property law is analysed from a comparative and historical viewpoint, taking into account the close connection between the law and economic reality.
To combat the spread of the COVID-19 virus, e-health has taken a sudden leap forward. Already use... more To combat the spread of the COVID-19 virus, e-health has taken a sudden leap forward. Already use cases were studied to see if by means of advanced IT tools, particularly e-health applications (apps), patients could be monitored from their homes so they did not need to visit a hospital for frequent checks. The corona pandemic gave rise to the rapid development of tracing (and/or tracking) e-health apps, which allow quickly finding the source of an infection as well as others who might have been infected because they were in the close vicinity of someone who became ill. The development and widespread use of these apps makes it even more urgent than it already was to answer questions regarding to whom the data gathered through such apps belong and what belonging means. Can the owner of the mobile device be considered the “owner” of the data, what does “ownership” then mean, do other stakeholders (such as health care providers, public health authorities) also have a claim to “ownership”?
: The most frequent method by which companies borrow money takes the form of debentures, which ar... more : The most frequent method by which companies borrow money takes the form of debentures, which are usually accompanied by a charge on the company’s assets. One of the features of the company law which applies in Common Law countries, and which distinguishes it from that which prevails in most codified law systems on this issue, is the distinction made between the “fixed charge” and the “floating charge”. Fixed charges normally take the form of legal mortgage over specified company assets, e.g. its land and buildings. A charge may also be fixed on the company’s present and future book debts, which prevents the company from using the debts without the consent of the chargee. On the other hand, companies may also give a lender a “floating charge”, being an equitable charge on some or all of the present and future property of the company. Normally such a charge relates to those assets which are constantly changing, such as the company’s stock-in-trade. The company thus remains free to deal with the assets as it sees fit in the course of its business. The floating charge only becomes attached to an item if and when the charge “crystallizes”, whereupon it becomes a fixed charge on all the current assets which it covers. A charge crystallises where the company is about to be wound up or in such other conditions as are specified in the trust deed or debentures – e.g. failure by the company to pay the agreed interest or to redeem the debentures as agreed. In the majority of cases, the category to which a particular charge belongs is clear beyond reasonable doubt; however, there are some charges which admit of some doubt in this respect. It was precisely such a borderline charge which is the subject-matter of the case under review, which landed before the Privy Council from the New Zealand Court of Appeal. Here, a company granted a charge over its uncollected book debts, which left it free to collect them and use the proceeds in the ordinary course of its business, but prevented the company from assigning or from factoring them. The underlying debenture was expressed in such a way as to create a fixed charge over the book debts. When the company went into receivership, the only assets available for distribution to creditors were the proceeds of the book debts which were outstanding when the receivers were appointed. The question arose whether the right of the company to collect the debts and deal with their proceeds free from security meant that the charge on the uncollected debts, although described in the debenture as being fixed, was nevertheless a floating charge until it crystallised through the appointment of the receivers. It was argued by the receivers that the charge was fixed and that the proceeds were accordingly payable to the company’s bank, acting as the holder of the charge. However, of the charge was a floating charge at the time when it was created, then, through the combined effects of Schedule VII to the Companies Act 1993 and Section 30 of the Receiverships Act 1993, the proceeds were payable to the employees and the Inland Revenue Commissioner as preferential creditors. The judge at first instance ruled that the charge in question was a fixed charge. However, this decision was reversed by the Court of Appeal (New Zealand). The receivers appealed to the Privy Council. The question to be settled on appeal was whether a charge over the uncollected book debts of a company which left the latter free to collect them and use the proceeds in the ordinary course of its business was a fixed or a floating charge. The Council dismissed the appeal. It traced the history of the floating charge from its inception to the present day, paying particular attention to charges over book debts, and arrived at the following conclusions: (a) the characteristics of the floating charge as specified by Romer LJ in the landmark decision of Re Yorkshire Woolcombers Association
In this paper I will examine some fundamental aspects of European property law. Do European prope... more In this paper I will examine some fundamental aspects of European property law. Do European property law traditions share a common model of property law and, if this question is answered affirmatively, could this model be a foundation upon which European harmonisation and unification measures can be based? My thesis will be that the European property law traditions share a "classical" model of property law. A critical first analysis of this classical model will be offered, followed by an evaluation of the model from the perspective of an evolving European property law.
Hardly any other European Union regulation that I know in the area of private law has, almost fro... more Hardly any other European Union regulation that I know in the area of private law has, almost from its inception, been the cause of so much unclarity and a constant stream of legal proceedings than the Succession Regulation. Although the cases brought before the Court of Justice of the European Union (hereinafter: ‘CJEU’) seem to be of a rather technical nature, looking under their technical surface it becomes slowly apparent that the CJEU’s case law threatens to become a battleground in today’s growing tensions between what should remain within the sovereign decision of Member States and what could be done together at a European level. The Succession Regulation aims to create a unified regime in cases of international successions, applying one legal system to the whole of an estate wherever the assets are located, based on a person’s last habitual residence. Although a testator may deviate from this by choosing the law of his/her nationality, in a majority of cases, so it was thought during the drafting stage, the law of a person’s last habitual residence will apply and that law will also be decisive for which
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