Archive for ‘Dominicans in the News’

April 19, 2011

Dominica historian and social scientist, Dr. Lennox Honeychurch, achieves $500,000 award for excellence

[Dr. Edward Lestrade, Dominica News Contributor]

DA Vibes Newspaper: At a well-attended ceremony in Trinidad  on the 9th of April 2011, Dr. Lennox Honeychurch, a distinguished Dominica-born historian and social scientist, was awarded the Anthony N Sabga Caribbean Award for Excellence which carries a $500,000 prize.

Lennox was born in Dominica in 1952 and attended the St. Mary’s Academy secondary school. I attended the school with him and knew him then as one of the most popular, participative and studious members of the school.

Later on in life, Lennox won a scholarship to Oxford University and there he gained a D.Phil (Doctor of Philosophy) at the university’s  St. Hughes’ College. Thereafter, he could have gone anywhere in the world to further his career, but instead,  chose to return to his cherished island home country of Dominica, which he has served tirelessly and with great enthusiasm for all of his life thus far.

I met Lennox a few years ago in his birth town of Portsmouth where he was lecturing overseas students on the rich cultural heritage of Dominica. Then, his enthusiasm and eloquence in respect to all matters concerning Dominica were visible aspects of his delivery and had kept his audience practically spell-bound.

Lennox, in his acceptance speech, is quoted by DA Vibes newspaper as saying that instead of choosing to emigrate to more developed countries: “to wake at 6 am, in the cold, and then to take the subway in New York, or the Tube in London, to get to work”, Caribbean people should, like him,  opt to stay at home to realise, as he has done, the potential of their islands.

Lennox has authored many books, of which: ‘The Caribbean People’ is the most popular in the region.

The Anthony N Sabga Foundation is unique in the Caribbean and serving to promote excellence in the arts, sciences and public/ civic contributions, it give annual/ bi-annual prizes for those it considers to be meriting in the fields.  The foundation is owned by the ANSA McAL Group of companies. Since 2006 the awards have been given twice yearly, but this year was the first time the awards were made yearly.  According to the Foundation, the move was principally a function of the current world recessionary climate and also to allow it to devote more time to finding deserving candidates.

My personal congratulations to Lennox is: “Well done Lennox, a prize extremely well-deserved for all you are doing for Dominica”.

April 11, 2011

European business and the recognition and enforcement of foreign judgments in China


[Dr. Edward Lestrade, Law Contributor, first published in European Newsletter, Thomson/ Reuters, October 2008]

The states of the European Union (‘EU’) comprise China’s biggest commercial partner and trade between it and the EU states is continuing upward. However, recent times have brought about an increasing  number  of  commercial  cross-border  disputes  between  the  Chinese  business  domiciles and traders in the EU states.  As such, this commentary is to give business people and lawyers an overview of the recognition and enforcement of the judgments of EU states/ foreign courts by Chinese courts.  The commentary also looks at the relative risks and the issues involved for EU traders in judgments enforcement in China.

EU Trade with China – opportunities and issues

According  to  the  China’s People  Newspaper,  since  2004,  the  EU  has  been  China’s  biggest commercial partner. Furthermore, the EU regards China as its second biggest trading partner which, coincidentally, enjoys the fastest growing export market in the world.  The importance of China for the  EU  is  borne  out  by  it  being  the  EU’s  most  significant  source  of  technology  imports  and  an important source of foreign  direct  investment.  In  2007,  bilateral  trade  between  China  and  the European Union reached 356.15 billion USD which represents increases of more than 20 percent per annum since 2003.

The  increasing  incidence  global  trade  and the  massive  growth  of  EU  investments  and  trade  with China have brought about a corresponding increase in cross-border litigations involving EU states’ foreign  judgments  upon  Chinese  domiciles.

Many  of  these  cross-border  disputes  are  decided  by arbitration in accordance with the New York Convention, to which most EU countries and China are  signatories.  However,  even  though  agreements  have  arbitration  clauses,  a  local  (Chinese)  national court may still have to deal with questions concerning the extent of their coverage. In that respect,  increasingly,  for  foreign  parties  engaged  in  disputes  with  Chinese  domiciles,  a  major problem is to secure the recognition and enforcement of an EU court’s decision by a Chinese court in respect of distress upon assets located and held in China. The main reason for the problem is that China has signed only a few treaties concerning judicial-assistance/ recognition and enforcement of foreign  court  judgments  and  does  not  otherwise  readily  recognize  such  judgments.  Therefore  for foreign parties wishing to claim against Chinese domiciles, commencing proceedings in a foreign court/  their  home  court  would  not  appear  to  be  good  decision  especially  where  the  assets  of  the Chinese  party  are  located  in  China.  However,  ever  where a  Chinese court  grants  recognition and enforcement  of  a  foreign  court’s  decision,  there  would  still  be  severe  hurdles  to  overcome  to achieve the actual recovery of the judgment debt – these are addressed later on in this article.

Generally, due to the above factors, the enforcement of foreign judgments in China appears to have been  very  difficult  in  the  past  few  years.    Corruption/  transparency  issues,  inadequate,  or  non-existent statistics on the matters and the absence of a case-reporting system in China has made it  even more difficult for foreigners to appreciate the scale of the risks upon them in dispute scenarios involving foreign judgments upon Chinese parties.

From  the  informal  reports  of  lawyers  and  business  people  involved  in  disputes  with  Chinese domicles, it would seem that a significant number of judgments (including domestic ones) are never enforced.  The factors affecting this appear to be:-

1)  a judiciary that is not independent and aspects of state interference in the judicial process;
2)  the  nature  of  protectionism  in  China  –  the  prevalence  of  the  State’s  involvement  in commercial undertakings;
3)  inefficient judgment enforcement/ collection systems;
4)  lack  of  understanding  of  foreign  legal  systems  by  Chinese  courts.  For  example,  EU judgment  creditors  would  be  unwise  to  take  for  granted  that  Chinese  law protects  their interests in the same manner as EU law.  The reality is that most will face an unreceptive, or uninformed Chinese  court  when  applying  for  recognition  of  the  EU  state’s  judgment  in China.  It  would  be  quite  customary  for  the  Chinese  court  to  decide  that  there  was  no personal jurisdiction over the judgment debtor and/ or that the compensation awarded by the
foreign court was excessive.

Chinese Foreign Judgments Enforcement Law and Application Procedure

Foreign judgments enforcement law in China is principally governed by its Law of Civil Procedure (‘CPL’), Ch.XXIX of which the principal Articles are: 267,268 and 269.

By  Art.267  a  legally  effective  judgment  or  ruling  made  by  a  foreign  court  requires  the  Chinese court to recognise and effect it. Applications for enforcement may be made by an applicant direct to a relevant intermediate people’s court, or by a foreign court according to treaty requirements, or on the basis of reciprocity.

Art.268 provides that applications that do not contradict Chinese law, or its sovereignty, security, social and public interests will be recognised and validated for enforcement in China.

Art.269  covers  the  general  principles  for  the  recognition  of  foreign  arbitral  awards  which  have similar  provisions  to  Art.268.    In  addition  to  the  provisions  of  the  CPL,  the  recognition  and enforcement of foreign judgments are also governed by its Supreme People’s Court’s Opinion on the Application  of  the  Civil  Procedure  Law  of  the  People’s  Republic  of  China  (‘Opinion  on  CPL’) which guides lower courts on enforcement matters.

In accordance with Arts.267 and 268 of the CPL generally, applications are normally initiated in an intermediary court where the judgment debtor has a permanent residence, or where their assets are located. But, there is no clear guidance on this procedure by either the CPL, or the Opinion on the CPL.

By  Art.318  of  the  Opinion  on  CPL,  where  there  is  a  common  international  treaty  in  place  by  the People’s  Republic  of  China  and  country  of  the  foreign  court,  or  where  the  principle  of  reciprocity between  these  two  countries  exists,  the  application  for  recognition  and  enforcement  of  the  foreign judgment  must  be  directed  to  the  intermediate  court  of  the  People’s  Republic  of  China  which has jurisdiction over the case. In the alternative, diplomatic channels must be used for the applications, or the  applicant  can  apply  to  the  relevant  intermediary  court  for  case  to  be  started  afresh  and  then  the intermediary court will decide on the merits in accordance with Chinese law. Where neither treaty, nor reciprocity  aspects  are  present,  diplomatic  channels  fail  and  the  applicant does not pursue the restarting of the  case  in  the  relevant  intermediary  court,  the  application  will  be  rejected  by  the intermediary court.

General Grounds for Refusal of Enforcement

The foreign judgment will be normally refused by the Chinese court where:-

1) Recognition and enforcement of the foreign judgment would cause harm to Chinese sovereignty, security,  and/or  public  policy.  Neither  the  CPL  nor  the  Opinion  on  CPL,  defines  “security”  or “public  policy.”  However,  there  have  been  no  studies  that  have  indicated  that  this  provision  has been used unfairly by the Chinese courts in respect of foreign judgment enforcement matters;
2)  Where  the  intermediary court  considers  that the foreign judgment  is made by an incompetent foreign court as judged under relevant international treaties and local laws;
3) The foreign judgment is ineffective under the law of the foreign country;
4) The defendant was not properly served;
5)  A  judgment  of  a  Chinese  court  is  in  effect,  or  process  concerning  the  same  cause  of  action
between the parties.

Chinese Execution of Foreign Judgments

For the foreign creditor’s judgment to be enforced by the Chinese intermediary court, the judgment must be deemed by that court to have been given by a competent foreign court. That is to say, a foreign  court  that  had  proper  jurisdiction  over  the  proceedings  involving  the  Chinese  judgment debtor.

China  is  a  civil  law  country  which  follows  the  same  pattern  of  legal  systems  obtaining  in  most European Union states. However, due to the ascendency of European Union law in respect to the national laws of the EU states which process involves many facets unfamiliar to a pure civil systems (eg., the precedentiary and overriding legal effect of decisions of EU courts/ EU primary law, etc., aspects of a common law system (bearing in mind the memberships of the countries of the United Kingdom),  familiarity  on  the  part  of  the  Chinese  court  cannot  be  assumed.  As  such  a  long, comprehensive and tedious presentation may be need to be made to the Chinese court to explain why  it  should accept  that  the  system  of  law  obtaining  in the  EU  would give  an  EU  state’s  court competency to decide  the matter.

Generally,  for  the  foreign  applicant,  the  CPL’s  Ch.2  (2)  “Territorial  Jurisdiction,”  sets  out  some rules  concerning  jurisdiction  and  forum,  but  does  not  give  complete  guidance  on  the  matter. However,  by  the  CPL’s  Art.24  up  to  Art.33,  generally,  a  Chinese  court  will  accept  personal jurisdiction over a foreign party who is a Chinese domicile, or foreign country resident, where the defendant is a Chinese domicile. Where an applicant brings proceedings in a forum other than the defendant’s  domicile  or  residence,  the  Chinese  court  will  look  for  some  connection  between  the dispute and the forum and if there is none, will be likely to reject the application.

Enforcement/ Collection of Judgment Debts in China

Foreign judgments tend to be executed in the same way as domestic judgments as this aspect is not specifically covered by the CPL, or the Opinion of CPL. Execution Officers, operating under the administrative processes established by the courts as part of the enforcement regime, are principally responsible for the enforcements/ collections. As such, they send notices of execution etc., ordering judgment debtors to comply with the judgment.

Non-compliance after the specified time results in the intermediary court compelling the required compliance which can be achieved as follows:-

1)  Execution  officers  may  direct  inquiries  to  the  debtors’  bank  and  freeze  and  transfer  the balance of the bank accounts;
2)  The   Execution   Officers   may   also   garnish   the   debtors’   income,   or   confiscate   and subsequently  auction  the  judgment  debtors’  assets,  bar  certain  exemptions  (eg.,  basic personal items).  However, by the CPL and Opinion on CPL, any judgment, or the start of the execution process does not establish any charge, or lien on the judgment debtor’s assets.
3)  Penalties are also levied on the judgment debtors in accordance with the CPL where money is  not  paid  up  voluntarily  in  the  specified  time  of  the  intermediary  court’s  order  of enforcement. These penalties are normally double the accrued interest of the unpaid amount.

The time limit to apply for execution of a domestic judgment is normally one year. It is six months for matters between commercial enterprises and those time limits are usually non-negotiable from the intermediary court’s perspective. The CPL and Opinion on CPL does not provide for time limits for foreign judgment enforcement applications and it can be taken that the same rules that apply for domestic judgments obtain for foreign judgments.

Generally, the Chinese legal system provides very little help in enabling the collection of judgment debts where a foreign judgment is recognised and ordered for enforcement by it. For example, no assistance by the court is given to the process in terms of assisting the collection of the judgment debts by enabling searches, etc. for the assets of the judgment debtor. Applicants and their lawyers are  effectively  locked  out  of  the  judgment  enforcement/  collection  process  which  is  essentially court-driven. The Chinese judge or the execution officer is exclusively authorised by law in respect of  the  serving  of  notices,  identifying  and  locating  the  judgment  debtor’s  property  and  distressing
such property.

The  problem  in  respect  of  enforcement/  collection  in  China  is  further  compounded  by  execution officers  and  the  courts  being  often  impeded  in  the  carrying  out  of  their  responsibilities  by  high workloads, lack of money and resources, poor working conditions and also the lack of economic, or other  incentives  to  do  their  work  efficiently.  Despite  that,  judgment  creditors  or  their  lawyers, without specific permission of the Chinese court, which is not normally given, have no legal right to take  any  action  outside  those  taken  by  the  execution  officer  and  the  Chinese  court  to  pursue  the judgment debt.

In  particular,  there  are  no  provisions  under  Chinese  law  for  fraudulent  conveyance.  So  where  a judgment debtor sells off assets so as to frustrate the collection process, nothing as such can be done by  the  applicant,  or  their  lawyers.  Secondly,  the  aspect  of  the  ‘piercing  of  the  corporate  veil’ whereby the foreign judgment creditor could pursue others, such as a parent company, or those who may be using a business entity as a shield to perform illegal, or fraudulent activities. As such the collection of judgment debts is tortuous processes which in many cases end up with the judgment debtor having spent considerable sums to get the judgment awards and then ending up with nothing
in their pocket to show for that.

Futures

China,  as  an  important  trading  nation  for  the  EU,  needs  to  empower  its  courts  and  laws  to  provide adequate protection for its trading partners. It needs to establish a judgment debt collection regime that will give its trading partners more confidence in dealing with Chinese traders by allowing them more rights  to  pursue  those  involved  in  fraudulent  trading  where  they  have  been  negatively  affected.

Its failure to  do  so,  allows  a  situation  that is  likely  to  get  seriously  out  of hand  and  create  unsustainable trading relations with the EU in the long run.

Generally, it is not sufficient for the state to have laws that permit the execution or punishment of those guilty  of  criminal  conduct  which  result  in  trading  losses  for  foreign  traders.  Foreign  traders  want confidence that if they lose money by bad deals with Chinese traders and are awarded compensation by a court under due process, they will be entitled to realistic and effective assistance of the Chinese courts so as to achieve their compensatory awards awarded properly by a competent court in their home state. Such a regime  will  also  send  a  serious  deterrent  message  to  fraudulent,  or  non-conforming  traders  that  their defaults not only harm them in the long run, but do  major harm to Chinese as a major emerging and important world trading nation.

Although  China  has  agreed  with  some  EU  countries,  such  as  France  and  Romania  for  the  mutual recognition  and  enforcement  of  judgment  by  way  of  ‘judicial  assistance’  treaties,  the  essence  of  the problem is realistic enforcement – collection of the judgment debt. That is the essential matter which it needs to deal with right now.

Currently, the situation is unsatisfactory as a Chinese defaulting trader can dissipate  assets  to  avoid  the  judgment  debt  with  no  redress  available  for  the  EU  applicant  trader/ judgment creditor.

The  process  towards  legal  modernisation  of  the  foreign  judgment  recognition,  enforcement  and collection regime in China has started though and bearing in mind China’s world trading ambitions, is likely to continue at a brisk pace. For example, China has now acceded to the Hague Convention on the Service  Abroad  of  Judicial  and  Extrajudicial  Documents  in  Civil  or  Commercial  Matters.  The convention  though,  does  not  involve  recognition  and  enforcement  of  foreign  judgments,  however,  it gives  an  excellent  boost  to  its  enforcement  regime  for  the  enforcement  of  foreign  judgments  as  it permits the serving of process concerning foreign judgments on relevant Chinese domiciles which is an important part of the recognition of foreign judgments process in China. Secondly, China is a member of  Hague  Private  International  Law  Conference  and  is  currently  participating  in  the  drafting  of  the Convention  on  Jurisdiction  and  Enforcement  of  Foreign  Judgments  in  Civil  and  Commercial  Matters which  is  projected  to  become  effective  soon.  This  convention  when  effected  and  if  accepted  by  the major trading nations will establish a uniform and efficient way for the recognition and enforcement of the commercial judgments in the contracting states.

[This article is based on the law and regulatory scene obtaining in 2008. It is not intended to provide legal advice and should not be relied upon as such]

April 4, 2011

Dominica national, law professional and financier, Dr. Edward Lestrade, achieves top rankings at SSRN

[Victor Misr, Dominica News Contributor]

Dominica citizen, lawyer and financier, Dr. Edward Lestrade, in April 2011 became one of the top 30,000 authors at the Social Science Research Network (‘SSRN’) achieving a ranking of 3227 based on numbers of papers that have been downloaded by academics, economists and lawyers.

More than 4000 of his papers have been downloaded  and many have been cited in numerous leading journals.

The Social Science Research Network was named the world’s Number 1 Open Access Repository by the Ranking Web of World Repositories in January 2011.  It was developed by a small group of scholars for the fast distribution of learned papers in the social sciences and humanities and now leads in the fields of economics, finance, accounting, management, and law.  Its president and CEO is Gregg Gordon. The universities participating in SSRN include:-

  • Harvard
  • Columbia
  • Princeton
  • Yale
  • Oxford
  • Notre Dame
  • Cambridge
  • Edinburgh
  • Bond

and many more leading universities of the world.

Dr. Lestrade was born in Roseau, Dominica and is a Dominica and British citizen. He is president of the Online International Arbitration Court (‘OIAC’), a unique 100% online international arbitration court and associate director of the law and business services firm, LLAGROUPEUROPE. He has qualifications in law, psychology/ psychotherapy, journalism and health. His work in the relevant fields gained him fellowships of:-

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In addition, he has been a contributing author for the publisher, Thomson Reuters, having co-authored books like: Guide to Europan Company Laws (3rd Edn.) and ‘Doing Business in Europe’. He has also taught law as a professor at leading universities in Europe and has been a consulting lawyer for firms such as Deloitte and Linklaters as well as the Government of New Zealand.  Before entering legal practice, Dr. Lestrade served in the Royal Air Force as an airman and in law enforcement as an Executive Officer of HM Customs and Excise. He is a contributing editor/moderator and one of the founders of International Times of Dominica.

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A complete list of Dr. Lestrade’s papers which are available as free downloads on the SSRN website follow:-

(1) DRAFTING ARBITRATION CLAUSES IN INTERNATIONAL AGREEMENTS – A GUIDE FOR EUROPEAN LAWYERS
Stable short-form URL for this paper:
http://ssrn.com/abstract=943930

Dr. Edward Lestrade, OIAC

This paper currently has:
619 TOTAL DOWNLOADS
118 DOWNLOADS IN THE LAST 12 MONTHS
2,431 TOTAL ABSTRACT VIEWS
0 CITATIONS from papers in the SSRN eLibrary (you can access the links to papers citing this paper by clicking on the “Citations” tab on the SSRN public abstract page of this paper)

12,263 is the RANK of this paper, based on TOTAL DOWNLOADS out of 268,029 total full text papers on SSRN.
13,200 is the RANK of this paper by DOWNLOADS IN THE LAST 12 MONTHS.
113,666 is this paper’s RANK by CITATIONS.

The abstract was first released for public viewing on 11/12/2006.
It is Classified in the following SSRN abstracting journals:
– Behavioral & Experimental Economics
– Contracts & Commercial Law eJournal
– ERN: Behavioral Economics (Topic)
– ERN: Political Economy (Topic)
– European Economics eJournal, Archives of Vols. 1-12, 1997-2007
– European Economics: Political Economy & Public Economics eJournal
– European Public Law: National eJournal
– International Economic Law eJournal
– LSN: Dispute Resolution (Topic)
– Legal Writing eJournal
– Negotiation & Dispute Resolution eJournal
– Political Economy (Topic)
– Public Choice & Political Economy eJournal, Archives of Vols. 1-9, 2000-08


(2) SUCCEEDING IN NEGOTIATION – A PRACTICAL GUIDE
Stable short-form URL for this paper:
http://ssrn.com/abstract=929310

Dr. Edward Lestrade, OIAC

This paper currently has:
510 TOTAL DOWNLOADS
119 DOWNLOADS IN THE LAST 12 MONTHS
1,317 TOTAL ABSTRACT VIEWS
0 CITATIONS from papers in the SSRN eLibrary (you can access the links to papers citing this paper by clicking on the “Citations” tab on the SSRN public abstract page of this paper)

16,295 is the RANK of this paper, based on TOTAL DOWNLOADS out of 268,029 total full text papers on SSRN.
13,021 is the RANK of this paper by DOWNLOADS IN THE LAST 12 MONTHS.
113,666 is this paper’s RANK by CITATIONS.

The abstract was first released for public viewing on 09/11/2006.
It is Classified in the following SSRN abstracting journals:
– Delaware Journal of Corporate Law
– Negotiation & Dispute Resolution eJournal
– Negotiation Applications
– Negotiation Processes & Communications
– Negotiation Processes & Communications eJournal


(3) MODEL INFORMATION TECHNOLOGY CONTRACT TERMS AND SYSTEMS IMPLEMENTATION CONTRACTS IN EUROPE
Stable short-form URL for this paper:
http://ssrn.com/abstract=909781

Dr. Edward Lestrade, OIAC

This paper currently has:
392 TOTAL DOWNLOADS
47 DOWNLOADS IN THE LAST 12 MONTHS
2,183 TOTAL ABSTRACT VIEWS
0 CITATIONS from papers in the SSRN eLibrary (you can access the links to papers citing this paper by clicking on the “Citations” tab on the SSRN public abstract page of this paper)

23,242 is the RANK of this paper, based on TOTAL DOWNLOADS out of 268,029 total full text papers on SSRN.
44,052 is the RANK of this paper by DOWNLOADS IN THE LAST 12 MONTHS.
113,666 is this paper’s RANK by CITATIONS.

The abstract was first released for public viewing on 06/20/2006.
It is Classified in the following SSRN abstracting journals:
– Contracts & Commercial Law eJournal
– ERN: Firm Behavior (Topic)
– ERN: Market Structure (Topic)
– ERN: Other IO: Empirical Studies of Firms & Markets (Topic)
– IO: Empirical Studies of Firms & Markets


(4) TAX TREATY SHOPPING – PERSPECTIVES FROM LATVIA
Stable short-form URL for this paper:
http://ssrn.com/abstract=929311

Julija Petkevica, LLM, Lestrade Law Associates LLC
Dr. Edward Lestrade, OIAC

This paper currently has:
318 TOTAL DOWNLOADS
51 DOWNLOADS IN THE LAST 12 MONTHS
2,068 TOTAL ABSTRACT VIEWS
0 CITATIONS from papers in the SSRN eLibrary (you can access the links to papers citing this paper by clicking on the “Citations” tab on the SSRN public abstract page of this paper)

30,188 is the RANK of this paper, based on TOTAL DOWNLOADS out of 268,029 total full text papers on SSRN.
40,315 is the RANK of this paper by DOWNLOADS IN THE LAST 12 MONTHS.
113,666 is this paper’s RANK by CITATIONS.

The abstract was first released for public viewing on 09/11/2006.
It is Classified in the following SSRN abstracting journals:
– LSN: Treaties & Other Sources of International Law (Topic)
– Public International Law eJournal
– Tax Law: International & Comparative Tax eJournal


(5) MARKET PROTECTION IN EUROPE AND ANTI-DUMPING LAW
Stable short-form URL for this paper:
http://ssrn.com/abstract=971187

Dr. Edward Lestrade, OIAC

This paper currently has:
299 TOTAL DOWNLOADS
73 DOWNLOADS IN THE LAST 12 MONTHS
1,134 TOTAL ABSTRACT VIEWS
0 CITATIONS from papers in the SSRN eLibrary (you can access the links to papers citing this paper by clicking on the “Citations” tab on the SSRN public abstract page of this paper)

32,461 is the RANK of this paper, based on TOTAL DOWNLOADS out of 268,029 total full text papers on SSRN.
26,022 is the RANK of this paper by DOWNLOADS IN THE LAST 12 MONTHS.
113,666 is this paper’s RANK by CITATIONS.

The abstract was first released for public viewing on 03/23/2007.
It is Classified in the following SSRN abstracting journals:
– Antitrust: Antitrust Law & Policy
– Antitrust: Antitrust Law & Policy eJournal
– European Public Law: EU eJournal
– LSN: Anti-Dumping Laws (Topic)
– Law & Society: International & Comparative Law eJournal


(6) THE IMPACT OF THE EUROPEAN UNION’S DEVELOPMENT AID POLICIES

Stable short-form URL for this paper:
http://ssrn.com/abstract=981686
Dr. Edward Lestrade, OIAC
This paper currently has:
244 TOTAL DOWNLOADS
38 DOWNLOADS IN THE LAST 12 MONTHS
877 TOTAL ABSTRACT VIEWS
0 CITATIONS from papers in the SSRN eLibrary (you can access the links to papers citing this paper by clicking on the “Citations” tab on the SSRN public abstract page of this paper)

41,149 is the RANK of this paper, based on TOTAL DOWNLOADS out of 268,029 total full text papers on SSRN.
55,125 is the RANK of this paper by DOWNLOADS IN THE LAST 12 MONTHS.
113,666 is this paper’s RANK by CITATIONS.

The abstract was first released for public viewing on 04/21/2007.
It is Classified in the following SSRN abstracting journals:
– CGN: Continental Europe (Topic)
– Corporate Governance & Economics eJournal
– Corporate Governance: International/Non-US eJournal
– Development Economics
– Development Economics eJournal
– ERN: Economic Growth (Topic)
– Emerging Markets: Economics
– European Economics eJournal, Archives of Vols. 1-12, 1997-2007
– European Economics: Macroeconomics & Monetary Economics eJournal
– Political Economy (Topic)
– Public Choice & Political Economy eJournal, Archives of Vols. 1-9, 2000-08
– SEIN Social Impacts of Business eJournal, Archives of Vols. 1-3, 2007-2009
– SIB: Social Impacts Related to Finance (Topic)
– SIFIN: International Capital Flows (Sub-Topic)


(7) THE DEVELOPING SECURITIZATION MARKET IN THE BALTICS AND CENTRAL AND EASTERN EUROPE
Stable short-form URL for this paper:    http://ssrn.com/abstract=1018915

Dr. Edward Lestrade, OIAC
Janis Naciscionis, Dean of the Faculty of Law, Turiba Business School

This paper currently has:
229 TOTAL DOWNLOADS
18 DOWNLOADS IN THE LAST 12 MONTHS
973 TOTAL ABSTRACT VIEWS
0 CITATIONS from papers in the SSRN eLibrary (you can access the links to papers citing this paper by clicking on the “Citations” tab on the SSRN public abstract page of this paper)

44,167 is the RANK of this paper, based on TOTAL DOWNLOADS out of 268,029 total full text papers on SSRN.
103,463 is the RANK of this paper by DOWNLOADS IN THE LAST 12 MONTHS.
113,666 is this paper’s RANK by CITATIONS.
The abstract was first released for public viewing on 10/04/2007.
It is Classified in the following SSRN abstracting journals:
– Banking & Financial Institutions
– Banking & Financial Institutions eJournal
– Banking & Insurance
– Banking & Insurance eJournal
– ERN: Other European Economics: Macroeconomics & Monetary Economics (Topic)
– Emerging Markets: Economics
– European Economics: Macroeconomics & Monetary Economics eJournal
– European Finance
– European Finance eJournal
– Monetary Economics
– Monetary Economics eJournal


(8) UNFAIR TERMS IN CONSUMER CONTRACTS AND EUROPEAN UNION CONSUMER RIGHTS PROTECTION LAW
Stable short-form URL for this paper:
http://ssrn.com/abstract=1259959

Dr. Edward Lestrade, OIAC

This paper currently has:
199 TOTAL DOWNLOADS
51 DOWNLOADS IN THE LAST 12 MONTHS
1,091 TOTAL ABSTRACT VIEWS
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51,327 is the RANK of this paper, based on TOTAL DOWNLOADS out of 268,029 total full text papers on SSRN.
40,315 is the RANK of this paper by DOWNLOADS IN THE LAST 12 MONTHS.
113,666 is this paper’s RANK by CITATIONS.

The abstract was first released for public viewing on 08/29/2008.
It is Classified in the following SSRN abstracting journals:
– Consumer Law eJournal
– ERN: Regulation (European) (Topic)
– ERN: Regulation (IO) (Topic)
– European Economics: Microeconomics & Industrial Organization eJournal
– European Public Law: EU eJournal
– IO: Regulation, Antitrust & Privatization
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(9) COMPETITION REGULATION IN LATVIA & EUROPEAN UNION LAW
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Dr. Edward Lestrade, OIAC

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(10) THE FINANCIAL CRISIS IN CENTRAL & EASTERN EUROPE AND IMPLICATIONS FOR WESTERN ECONOMIES
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Dr. Edward Lestrade, OIAC

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(11) THE CYBERCRIME PHENOMENON AND LATVIAN CYBERCRIME LAW
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(12) EUROPEAN UNION DESIGN PROTECTION LAW AND DESIGN PROTECTION IN EUROPE
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Dr. Edward Lestrade, OIAC

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(13) MANAGING REAL ESTATE OWNERSHIP RISKS IN EUROPE AND THE BALTICS
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Dr. Edward Lestrade, OIAC

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– Real Estate
– Real Estate eJournal
– Risk Management
– Risk Management eJournal
– Urban Economics & Regional Studies (Forthcoming)


(14) PUBLIC PROCUREMENT REGULATION IN LATVIA AFTER EUROPEAN UNION ACCESSION
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Dr. Edward Lestrade, OIAC

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– European Public Law: EU eJournal
– Institutional & Transition Economics eJournal, Archives of Vols. 1-12, 1997-2008


(15) EUROPEAN UNION STATES AND THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN CHINA
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Dr. Edward Lestrade, OIAC

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– LSN: Dispute Resolution (Topic)
– PSN: International Law: Rule-Making & Rule Interpretation; International Courts (Topic)
– PSN: International Trade Policy (Topic)
– Political Economy: International Political Economy eJournal
– Political Institutions: International Institutions eJournal


(16) COMPANY LAW SHOPPING AND THE REGULATION OF COMPANIES IN THE EUROPEAN UNION
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Dr. Edward Lestrade, OIAC

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– LSN: Corporate Law (Topic)
– Legislation & Statutory Interpretation
– Legislation & Statutory Interpretation eJournal


(17) MODERNISING GERMAN LIMITED LIABILITY COMPANIES AND THE NEW GERMAN LAW RELATING TO GMBH’S AND ON THE FIGHTING OF ABUSES (‘MOMIG’)
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Dr. Edward Lestrade, OIAC

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– IO: Firm Structure, Purpose, Organization & Contracting eJournal
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– IO: Regulation, Antitrust & Privatization eJournal
– Organizations & Markets eJournal, Archives of Vols. 1-13, 1994-2009


(18) TRADING WITH THE USA AND THE UN CONVENTION FOR THE INTERNATIONAL SALE OF GOODS
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Dr. Edward Lestrade, OIAC

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– ERN: Internal & External Contracting & Transaction Costs (Topic)
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– IO: Firm Structure, Purpose, Organization & Contracting eJournal
– International Trade
– International Trade eJournal
– PSN: International Institutions & Law: Compliance (Topic)
– PSN: International Trade Policy (Topic)
– Political Economy: International Political Economy eJournal
– Political Institutions: International Institutions eJournal


(19) POLAND’S BUSINESS LAW MODERNISATION OF 2008
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Dr. Edward Lestrade, OIAC

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– Entrepreneurship & Law eJournal
– European Public Law: National eJournal
– LSN: Corporate Law (Topic)


(20) LATVIA’S NEW LAW ON TOBACCO CONTROL AND HUMAN RIGHTS LAW
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Dr. Edward Lestrade, OIAC

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– Public Health Law & Policy


(21) THE IMPLEMENTATION OF THE WATER QUALITY DIRECTIVE IN LATVIA
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Dr. Edward Lestrade, OIAC
Vita Sliede, MJur, Attorney at Law, Lestrade Law Associates LLC

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– ERN: Environmental Studies (Topic)
– Environmental Economics
– Environmental Economics eJournal
– Environmental Law & Policy eJournal
– Environmental Law & Policy eJournal, Archives of 1997-2009
– European Economics: Agriculture, Natural Resources & Environmental Studies eJournal
– European Public Law: National eJournal
– Health Economics
– Health Economics eJournal


(22) THE REGULATION OF LAWYERS IN LATVIA
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Dr. Edward Lestrade, OIAC

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– Institutional & Transition Economics eJournal, Archives of Vols. 1-12, 1997-2008
– Law, Institutions & Development eJournal
– Legal Ethics & Professional Responsibility eJournal
– New Institutional Economics


(23) MODERNISING DEBT MANAGEMENT – LATVIA’S NEW INSOLVENCY LAW OF 2008
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Dr. Edward Lestrade, OIAC

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– ERN: Debt; Debt Management (Topic)
– ERN: Urban Markets (Topic)
– European Finance
– European Finance eJournal
– FEN Professional & Practitioner Journal – Forthcoming
– Monetary Economics
– Monetary Economics eJournal
– Political Economy: Budget, Deficit, & Debt eJournal
– Public Economics: National Budget, Deficit, & Debt eJournal
– Real Estate
– Real Estate eJournal
– Urban Economics & Regional Studies eJournal


(24) OPPORTUNITIES FOR FOREIGN INVESTORS IN THE REAL ESTATE MARKET IN ITALY
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Dr. Edward Lestrade, OIAC

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– ERN: Urban Markets (Topic)
– Urban Economics & Regional Studies eJournal

(25) DEATH BY SMOKING IN THE UK AND EUROPE AND THE PROTECTION OF THE EUROPEAN COURT OF HUMAN RIGHTS
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Dr. Edward Lestrade, OIAC

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– Comparative Law eJournal
– European Public Law: National eJournal
– Public Health Law & Policy
– Public Health Law & Policy eJournal


(26) PATENT LAW AND INNOVATIONS IN LATVIA
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http://ssrn.com/abstract=1018906

Dr. Edward Lestrade, OIAC
Vita Sliede, MJur, Attorney at Law, Lestrade Law Associates LLC
Lana Lapina, affiliation not provided to SSRN
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– Emerging Markets: Economics
– European Economics: Microeconomics & Industrial Organization eJournal
– European Public Law: National eJournal
– IO: Productivity, Innovation & Technology


(27) EUROPEAN UNION DESIGN PROTECTION LAW AND DESIGN PROTECTION IN EUROPE
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Dr. Edward Lestrade, OIAC
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– Intellectual Property Law eJournal, Archives of 1997-2010


(28) RIGA – A DYNAMIC CITY OF CHANGE IN THE BALTICS
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Dr. Edward Lestrade, OIAC

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(29) PROBLEMS, SOLUTIONS AND LATVIAN LAWYERS
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http://ssrn.com/abstract=1018703

Dr. Edward Lestrade, OIAC

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(30) TAX COMPLIANCE, PUNISHMENT AND EXTRADITION RISKS FOR US COMPANY OWNERS IN EUROPE
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http://ssrn.com/abstract=1412962

Dr. Edward Lestrade, OIAC

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(31) THE ‘PROTECTION’ RACKET IS BACK, BUT THIS TIME ITS ON THE INTERNET
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http://ssrn.com/abstract=1795374

Dr. Edward Lestrade, OIAC

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The abstract was first released for public viewing on 03/29/2011.
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– Cyberspace Law eJournal
– Negotiation & Dispute Resolution eJournal
– White Collar Crime eJournal.

March 21, 2011

California attorneys Jay Adkisson and Chris Riser implicated in blackmail attempt upon Dr. Edward Lestrade and LLAGROUPEUROPE LLC

[News Source: Complaints Board]

It has been reported that a focused blackmail campaign and racist attack has been made upon Dr. Edward Lestrade and his firm LLAGROUPEUROPE by California attorneys Jay Adkisson and Chris Riser.

It seems that when the attorneys were uncovered by Dr. Lestrade to be pretending that one of them, Chris Riser, was licensed to practise as a UK solicitor, when he has never been licensed to do so, they set upon an intensive cyberbullying and racist campaign to discredit him and his firm and to get him to pay them to stop.

They have posted numerous comments about Dr. Lestrade and his firm on their site: Quatloos/ Quatloosia and on similar message boards which aim to discredit Dr. Lestrade and his firm. The comments range from saying that his qualifications are false and that his firm is ‘bogus’.

However, at the same time, their ‘reputation management associates have approached Dr. Lestrade and his companies demanding up to $30, 000 for the harassment to stop. Since then, we have been informed that attorneys have told Dr. Lestrade that he had better pay up, or their harassment will escalate and he will have to pay more money to get it to stop.

We have been informed that the FBI have been alerted and an investigation upon the two is in process.

Our news contributor contacted Mr. Adkisson for comments. Mr. Adkisson was asked why he and his partner had decided to mount this campaign against Dr. Lestrade and LLAGROUPEUROPE and whether it was race, or blackmail motivated.

Mr. Adkisson said: ” What we do against scumbags and Nigerian scammers like Dr. Lestrade is our business. We are attorneys licensed by the State of California and are in good standing. We can do what we like and there is nothing you, or he can do about it. We will continue until he does the right thing to stop us continuing”.

When he was asked what the ‘right thing’ was, he terminated the conversation. We can only assume that this refers to the demand from his associates that Dr. Lestrade pay the blackmail money.

In the meantime, we have checked out Dr. Lestrade and his firm LLAGROUPEUROPE and found:-

LLAGROUPEUROPE

  • the company is properly set up and authorised by the state of Wyoming as a project funding, arbitration court and international law services company;
  • it operates mainly out of the USA via representing offices in various countries – mainly Europe;
  • its telephone lines are automated as it operates internationally, but messages are dealt with quickly and its clients have direct contact with responsible associates;
  • all its lawyers and legal counsel are professionally qualified;
  • it has managed multi-million dollar financings in the past as is able to do so via lending syndicates established with reputable financiers;
  • we have not found anyone who has paid any due diligence fees to the company and has failed to get a result;
  • OIAC – Online International Arbitration Court is  functioning as a 100% online arbitration court set up under the rules of the New York Convention and the laws of the USA and its judgments are recognisable in all contracting states (including the USA).

Dr. Edward Lestrade

If you are a victim of a blackmail, racist, or cyberbullying campaign by Jay Adkisson and/ or Chris Riser, please inform your local FBI office and do complain to the Bar of California where they are members. Alternatively, please send the information to International Times of Dominica which will circulate it to the proper authorities on your behalf.

[Cyberbullying & Race Contributor]

March 16, 2011

iToD Daily – bringing 24/7 hot news direct to your laptop

March 16, 2011

Article: Guide to Drafting Arbitration Clauses in International Agreements

Dr. Edward Lestrade is President of the Online International Arbitration Court and his ‘Guide to Drafting Arbitration Clauses in International Agreements’ is one of the top 10 downloads in its class in the Social Science Research Network. It is reproduced here.

Increasingly, in Europe, the parties to international commercial agreements are specifying arbitration as the primary means of dispute resolution. The main reason for that it seems, is the perception that the high costs involved in the traditional national court dispute resolution processes, can be avoided where arbitration is chosen as the means of resolving disputes under the agreement.  Secondly, it is felt that the matter can be decided informally and quickly by experts as opposed to a judge in a national court who may, or may not be an expert in the field of the issues concerned. Whilst there are some merits in this kind of thinking, it is becoming increasingly apparent to parties to such  agreements, especially in the new European Union states where alternative dispute resolution methods have not been widely practised in the past, that the careful and skilful drafting of the arbitration clause are crucial to the avoidance of some serious problems concerning its effectiveness.  As such, this article intends to provide a background summary and a  checklist for drafters to assist them in the construction of the desirable and effective contents of arbitration clauses in agreements that primarily concern international commerce.

International Law Governing Arbitral Agreements – brief background

The dominant treaty for the recognition and enforcement of foreign arbitral  awards is ‘The Convention on the Recognition and Enforcement of Foreign Arbitral Awards’ (it is also termed: The New York Convention; the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards; and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards). It was signed in 10 June 1958 and entered into force, 7 June 1959. Its contracting states comprise most countries active in international trade and include: the USA, UK and most of Europe.

The Convention applies to the recognition and enforcement of arbitral awards made in the territory of a foreign state. It applies to non-domestic arbitral awards in the foreign state.  Of course, there are other international conventions applying to foreign state enforcement of arbitral awards (eg., UNICITRAL Model Law on International Commercial  Arbitration, 1985), however, the New York Convention is the  dominant treaty for the recognition and enforcement of foreign arbitral awards and as such, this article will focus on those agreements relative to its scope.  Generally, the New York Convention provides for an arbitration award in a contracting state to be freely enforced in any other contracting state, but for only certain, limited defences such as:-

Legal incapacity of a party to the arbitration agreement
⇒ Invalidity of the arbitration agreement under its governing law
⇒ Procedural impropriety and unfairness in the proceedings
⇒ Out of scope decisions by the arbitrator, or where such decisions are  conditional on matters outside the scope of the arbitration
⇒ The arbitral award has not yet become binding on the parties, or has been suspended, dismissed, or otherwise by a competent authority in the seat of the arbitration, or in accordance with the law of the arbitration agreement
⇒ The matter to be decided upon by the arbitrator was not capable of  resolution by arbitration
⇒ Enforcement would be contrary to public policy.

Constructing the Arbitration Clause

Enforceability

Firstly, the parties must also ensure that the award granted by the tribunal will enforceable. Therefore checks should be made that the country where enforcement is likely to be sought is a contracting state to the New York Convention, or other treaty which provides for the enforcement of foreign arbitral awards.

Arbitration Clause to be in Writing

The Convention and most arbitration courts require that the arbitration agreement  is to be contained in a written document signed by the parties. As such oral arbitration clauses are not effective.

Choice of Law

In international commercial agreements, there will be at least 2 jurisdictions  involved. A simple example is: Seller A company is located in Germany; Buyer B company is located in the UK. As the parties are in different jurisdictions, they are free to choose which law will govern their agreement. This aspect does not change if they choose to submit to arbitration as opposed to the traditional national court procedures. In addition, drafting must have regard to the distinction between procedural and substantive law in the arbitration agreement.

That is because the procedural and substantive law governing the agreement does not have to be under the same system of law.  However, generally, they are the same and where the parties do not make this  distinction, then the choice of law will apply to both aspects of law in the arbitration. Where the parties do not specify a choice of law, then this matter will be left to the arbitrator who will have regard to the default rules of the arbitration court/ institution where this applies and of the applicable treaty in force.  Provisions could also be made in the agreement to allow the arbitrator to make  such interlocutory decisions relating, say to the giving of security to cover the expected costs of either of the parties.

Extent of Court Intervention.

It may become necessary for a party, or the parties to approach a court within the  territory of the seat of the arbitration for the purposes of obtaining an interlocutory, or interim order. Therefore, the extent to which this is permitted should be specified in the agreement. However, it should be noted that the rules of most arbitral institutions provide for the circumstances where such a national court may intervene, but these standard provisions may not suit the parties and the drafter is encouraged to examine such rules prior to accepting them as the  as the default rules.

Choice of Procedural Rules

Ad Hoc, or Institutional Arbitration

Generally, the parties will need to decide whether the arbitration procedure will  be ‘Ad hoc’, or ‘Institutional’. Where the arbitration is ‘Ad hoc’, the parties themselves decide on the procedure of arbitration proceedings. Where institutional arbitration is chosen, the procedure set by the relevant institution. However, the parties are free to vary them where the institution is agreeable.  Where the parties have chosen institutional arbitration, the place of arbitration is usually the seat of the institution. However, in ad hoc arbitration, the parties are able to decide that the arbitral proceedings may be conducted wherever they wish. The parties may choose from a wide selection of rules of procedure, including those of the national jurisdiction. The rules of the arbitral institution can be used either specifically, or by default (depending on the provisions of the agreement for arbitration services), or in amended form by the parties.

The drafter of the rules clause should be a lawyer familiar with the rules of the  more reputable arbitral courts/ or institutions and also the procedural rules of the national courts which may have review jurisdiction over the dispute, and the procedural rules of the place/ country where the arbitration is seated.

Language of the proceedings

It is important to specify the language of the proceedings. This is especially important in international settings so as to provide for coherence in the proceedings.

Specification of the Place and Nature of the Arbitration

An arbitration clause should be certain where and how disputes will be resolved.  Where the arbitration clause is valid, and the ensuing dispute is within its scope and determinable by arbitration, then either party is able to obtain the intervention of a national court to stay any proceedings initiated by the opposing party in  contradiction of the arbitration agreement. If the parties fail to agree on a place of arbitration, then the arbitrator is able to choose the seat on their behalf, but will need to consider: the implied intention of the parties, convenience of the parties, choice of law by the parties, and other similar factors.

Generally, the procedural rules of the place of arbitration dictate the procedure of  the arbitration and collateral issues. As such, the drafter should ensure that the seat of the arbitration is specific in the arbitration clause as failure to do so often causes delays in the start of the arbitration process. It could also be used by a  party reluctant to the arbitration, to stall and delay the arbitration process. Upon specifying the seat, it is crucial to determine what assistance the local  courts would be prepared to give to the arbitral tribunal, by way of securing evidence, issuing subpoenas for witnesses if required, granting orders for the inspection of property, and other such matters relevant to the settlement of the dispute.  The drafter should be aware that confidentiality issues should be addressed in the agreement as the procedural rules regarding proceedings generally do not automatically cover this issue.

Parties to be aware of ‘No Appeal’ from Arbitrator’s Decision

The drafter should ensure that the parties are aware that the arbitrator’s award  will be final and binding on them, with a very limited right of appeal or review.  But, different national legal systems do have differing views in this regard. In addition, those states that have signed the New York Convention, have very little scope to review international arbitration awards, and are compelled to order a stay of all proceedings contravening the provisions of international arbitration clauses.

Appointment of the Arbitrator

The various arbitration institutions provide for the procedures for the appointment  of arbitrators. As such, the drafter must be familiar with the appointment procedures these institutions. The default scenario is that where this is not specified in the arbitration clause, the rules of the institution will prevail. However, the parties are also free to select the arbitrators by specifying their own procedures provided, where an institution is engaged, the institution is amenable to that. The parties should also agree on the number of arbitrators, as certain institutions provide that in the absence of such agreement, the parties will be assumed to have chosen three arbitrators and of course, the more arbitrators, generally, the more costly the proceedings are.

Costs of Arbitration

The costs of the arbitration are largely dependent on the type of arbitration  procedure selected and on the institution chosen. So the drafter should make some price comparisons prior to the selection of an institution.

Scope of Arbitral Clause in respect of the Parties Concerned with the Agreement

In agreements where there is likely to be more than one party to a transaction,  for example, where sub-contractors are concerned, it will be useful to provide for all parties to the agreement to be the arbitration clause.

The drafter should also provide for multiple arbitrations concerning the same cause of action or to the  same subject matter, to be able to be consolidated into a single hearing.

Eisemann’s Arbitration Clause Drafting Criteria

Frederic Eisemann who served as Secretary General of the ICC International  Court of Arbitration proposed certain criteria as essential in respect of the functions of an arbitration clause.  The first should specify compulsory consequences for the parties with regard to  the procedure for dispute resolution within their agreement.

These consequences would include the obligation to submit the dispute to arbitration, the procedures for so doing and to regard the arbitrator’s award as final and binding.  The second criterion excludes the intervention of a state’s court in the settlement  of a dispute, prior to the decision of the arbitrator. However, it may be useful to provide for a certain level of state court’s intervention where, for example, interlocutory relief is required and its award is beyond the authority of the  arbitrator, or arbitration court. This could refer to: the issuing of subpoenas; searching, or freezing orders, etc.

The third criterion provides to give the arbitrators authority to resolve the disputes  under the agreement. These powers could include the authority to make various procedural and interim orders.

The fourth envisages the putting in place of a system that provides of the  optimum conditions for effective and speedy determination of the arbitration which can be enforced by a state’s court.

Eisemann’s ‘Pathological Clauses’

According to Eisemann, bad clauses are “pathological”. For example, often the  description of the seat of the arbitration is incorrect. The effect of this clause may result in a collateral dispute regarding the seat of the arbitration which would need to be resolved by the arbitrator or by a court – all this will certainly add to  the costs of the arbitration. Other frequent errors are the failure of the arbitral clause to specify issues concerning the applicable procedural rules, the number of arbitrators and the applicable substantive law.  The ‘pathologens’ can be used  by a defaulting party to delay the arbitral process.

Care should be taken in limiting the application or the scope of the arbitration unnecessarily. For example: ‘issues arising out of the performance of the agreement are to be referred to arbitration’ – this would have the effect of specifying only ‘performance’ issues for arbitration. Whereas: ‘all disputes arising in connection with the agreement’ would have a complete scope.

When an appointing authority (for the arbitration court, or arbitrator) care must be  taken to ensure that the appointing authority is able (and willing) to make the  appointment.

Again, it is important to determine whether the appointing authority will require and receive any fees for its appointment role and in that case how the  fees will be met. Such defects would mean that the parties would need to have the issues decided by a state court – again adding unnecessary costs to the arbitral clause.

Generally, pathogens can be resolved upon application to a state court, however,  there are costs and delays which will normally lessen the efficacy of the choice of dispute resolution via arbitration.  Finally, it is important for drafters to appreciate that arbitration agreements need  to contain detailed and clear provisions about how the dispute will be resolved.  Failure to do so can result in significant delays where a party is reluctant to co-operate in the dispute-resolution process.

Summary

Drafters of arbitration clauses should bear in mind Eisemann’s principles.  Imprecision and any ambiguity should be scrupulously avoided. Clauses should be kept simple without being vague. The place of the arbitration should be
chosen carefully. Due consideration should be given to who the arbitrators will be  – their nationality, qualifications and status. That is especially relevant in jurisdictions where corruption is prevalent.

The drafter should check that the enforcing court is a party to the relevant  arbitration treaty and of its track record in the enforcement of arbitral awards. A single language should be chosen for the arbitration – the English language is
probably the most effective where various nationalities are involved.  Furthermore, the clause should be tested against a worst-case scenario and a most unamenable environment. The drafter should be aware of the default rules of the arbitration court and also the reputation and integrity of the court, or arbitrator.

Where model clauses are used, it should be ensured that the model clause is effective and sufficient for the particular needs of the parties and the  arbitration

It is important to specify the applicable law of the arbitration as if this matter is  silent, then generally the arbitrator is able to decide on both the procedural and substantive law of the arbitration and this could lead to a disadvantage to a party and an advantage to the other.

In order for arbitration clause to serve its purpose, the parties themselves should  pay adequate attention to the wording of the arbitration clause. The arbitration clauses should be drafted depending on the type, scale and complexity of the  possible dispute, the location, language and culture of the parties, the  advantages and disadvantages of the respective substantive and procedural laws. Generally, it is very difficult to specify which of the particular elements of the  arbitration clause the most important one is. Each of them complement each other and is dependent on others, however, it is hoped that this article will give drafters a wider perspective for the efficiency of arbitration clauses in  international commercial agreements.

March 15, 2011

G.O.N Emanuel, distinguished Dominica ex-Chief Magistrate under attack

Dominica Central Newspaper makes a poignant tribute to this active 85 year old Dominican – a distinguised UK and Caribbean lawyer, ex-judge and Chief Magistrate of Dominica and WW2 Royal Navy veteran.

Unfortunately, GON Emanuel is now under attack in his own country, by whom-no-else than the very powers that be.  A recent attack was made on his life (no comment from the PM whose attorney was his ex-law firm partner and who he is claiming stole over 6M ECD from his firm).

It will be interesting to see how this all unfolds, many leading Dominicans are worried about law and order on the island and widespread civil unrest if the current government does not come clean over its involvement in the affair. Many are saying the PM Skerritt should resign now and hand the investigation of this case which is sure to involve widespread government corruption to international law enforcement agencies. GON’s nephew, Dr. Edward Lestrade, himself a lawyer, is taking a keen interest in developments and has offered assistance to Mr. Emanuel.

[Dominica Contributor]

March 13, 2011

“I will shoot your ass” – Dominica Director of Audit says to politician

It seems that Dominica politicians will need to invest in bullet-proof trousers following a recent event when the country’s Director of Audit, Clarence Christian, threatened to ‘shoot the ass’ of the Dominica Freedom Party‘s (‘DLP‘) deputy leader.

Dominica News Central reports that the incident is alleged to have taken place in 2009. Dominica politician, Michael Astaphan , deputy leader of the country Dominica Freedom Party (‘DLP’), said that after a radio talk show interview which was critical of the island’s Audit Director, Clarence Christian, he was threatend to be shot ‘in the ass’ by Mr. Christian.

Astaphan told Dominica News Central“Yesterday on our Freedom and You Programme, we were discussing crime, corruption and security in Dominica. The issue of persons working in the public service not following the act as it relates to politics came up. I made mention on the programme that the Dominica Labour Party (DLP) seems to be corrupt at its core because they are allowing certain practices to go on, contrary to the rules and regulations of the Public Service Act. I mentioned that the Director of Audit is a card holding member of the DLP and he took offence to that… I was outside talking to a few members and he passed by. When I went to my car, he made a second round and he threatened me by telling me ‘I am warning you, do not call my name on your programme’. When I asked him if that was a threat, he said he would take a gun and shoot our ass. Those were his words. He made a direct threat on my life”.

Mr. Astaphan is reported to have approached the police about the incident and said: “I went to the police and I reported the matter because I cannot understand how somebody holding a public office, who is suppose to be independent of the political system could be in violation of the rules is threatening me like that. This is not good governance practices at all at all at all”.

Apparently Mr. Christian had gone into hiding as all attempts to contact him had failed.

[Dominica Contributor]

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March 1, 2011

Steaming hot ‘Cadence- lypso’ and the rise of a pop music legend

Julie Mourillon is the creator of the new sound craze, Cadence-lypso, which is igniting the Caribbean, French and niche European music scenes. Cadence-lypso is a  fusion of Dominican and Caribbean/ Latino rhythms and has totally revolutionized the music scene in its genre and is now the main dance music of Dominica, Martinique, Guadeloupe and other French Creole Caribbean islands.

Born and raised in the Caribbean island of Dominica, Julie started getting involved in music very early in life playing with top Dominican bands of the early seventies and quickly became one of the top guitarists on the island. In 1973, he teamed up with several Dominican musician friends and moved to the neighbouring French island of Guadeloupe where they created the Group EXILE ONE and pioneered Cadence-lypso.

In 1975, Julie moved to Paris with his EXILE ONE colleagues. That same year he recorded his first solo album ‘Rock Your Bones’. The hit track ‘Pays a Moin’ shot up to number one in Dominica and other Caribbean islands. A number of musical experiences followed including the making of his own band ‘Emphasis’ and later, teaming up with some of his old colleagues giving birth to the group ”Roots of Exile”. Together, they launched a new beat dubbed Island Boogie, a fusion of cadence- lypso and North American funk and soul and toured Africa and Europe. In 1984, Julie went truly solo as a main act and since then has released 15 albums including 2 reggae albums, unleashing hits such as Aniece, Ecoutez, Piman Cho, Julianna, Trodding On, Jump Up Party, Keep the Feeling and Need U2Nite. In the following years, Julie toured Africa, Europe, the  USA, the Caribbean and the Pacific. Very much in demand as a session musician he has worked with top rap and reggae acts in Paris and Africa including Alpha Blondy as well as with top Jamaican musicians such as Cat and Rugs of Third World and more recently, superstar Jimmy Cliff.

Now, Julie’s music is being distributed by Jet Star Music, a worldwide record distribution company based in London.  ‘Jump Up Party’ is the newest offering of Julie Mourillon. It demonstrates his versatility as a composer, writer and singer. As its name suggests, it is a party album with great ambience and Julie is dishing out hot spicy Caribbean music: soca, bouyon, cadence-lypso and merengue.

Julie’s new album is scheduled for release in spring 2011 and a preview can be heard on http://www.myspace.com/juliemourillon. He is planning a tour of Russia and the Baltics scheduled for later on this year.

[Music & Arts Contributor]

February 17, 2011

Sovereignty for sale – $27 million China loan for Dominica’s Presidential Palace

So why is a country which has 40% of its citizens living below its poverty line, has a growth of less than 3% with exports of around $94 million against imports of over $300 million and an external debt of more than $220 million, seeking to borrow $27 million from the Chinese government for the building of a Presidential Palace for the country?

Sounds fishy, or as they say in Dominica, is there ‘bobol’ about? Well fishy it seems to be and as for bobol, read on.

1) The Caribbean islands and Dominica, in particular, are in dire straits. They are quite frankly desperate for money as foreign aid has practically dried up. Former aid partners – USA, UK and the EU – are struggling to contain their own problems which have been brought about by the global financial crisis. The islands need investment from anyone willing to give it and the Chinese are well aware of that.

2) But why a loan for the building of a Presidential Palace?  Well, Dominica is one of Caribbean islands which has recognised China‘s ‘One China’ principle vis-a-vis Taiwan. As such, it has been rewarded with an aid package from the Chinese of more than $122 million. The public package is for the building of a new stadium, roads, schools and hospital, but the private package could be worth a lot more to the government it is rumoured.  The Dominica government argues that borrowing millions of dollars from China for construction of a new Presidental Palace will not indebt Dominica as if it can’t pay the debt back (which is more or less certain), the Chinese will write it off, which is their custom.

3) The Caribbean islands and Dominica, in particular, are no-hopers economically.  All of the islands have trade deficits that are getting bigger and bigger year by year and as such they can be easily persuaded by generous grants, some might say ‘bribes’,  to back China’s ‘One China’ principle with regard to Taiwan. The Chinese offer lending conditions which are perceived to be not too onerous as the Chinese are aware that their ‘loans’ are practically grants as they are very unlikely to be repaid and the agreements’ texts normally state no conditions.  Furthermore, there are various fringe benefits for Dominica government officials like fully paid official visits to China etc.

China’s ‘economic evasion’ and the rise of democratic unrest and corruption in Dominica

Prime Minister Skerritt of Dominica is a controversial figure. He is staunchly pro-China on the island and has angered locals by his failure to explain how he became a millionaire from his time in office when his state salary is around $5000 per month.  Also his ex-lawyer, Stephen Isidore is under investigation and a court case is pending for him to explain how $6 million disappeared from the accounts of his former partner’s firm, Mr.G.O.N. Emanuel. Furthermore, Mr.Emanuel, was subject to a hitherto unexplained murder attempt via firebombing of his house last December. So far no arrests have been made and there is concern on the island with regard to the deafening silence from Mr. Skerritt on the matter and the lack of action by the police, especially as Mr. Emanuel is a distinguished lawyer and former Chief Magistrate of Dominica.

Mr. Skerritt has also initiated prosecutions of members of the opposition and a former prime minister of Dominica for public order offences during peaceful protests voicing concern about the rule of law and democracy on the island. In addition, Mr. Skerritt is currently taking libel proceedings against a journalist who had asked him to explain his sudden rise to wealth. Sounds familiar?

As no strangers to autocratic rule, the Chinese are sure to be heartened and not frightened by such bold actions from Mr.Skerritt.  However, they should tread carefully as dictatorial rule historically does not sit well in the Caribbean and the wave of ‘people power’ taking place in other troubled economies could filter though to the Caribbean and upset the apple cart for a smooth ‘economic’ invasion.

So apart from a most likely increase in state corruption on this island, is there much more that Dominica needs to fear from trading its sovereignty for Chinese cash?  The African experience of China’s economic ‘invasion’ is instructive.

The Chinese reached Africa around 600 years ago with the most significant ‘invasion’ happening during the early 1900s when more than 60,000 Chinese miners worked in the South African gold industry. Fifty years later, thousands of Chinese were sent by their government to Africa to be engaged in  agricultural and construction work so as to improve ties with the former colonies.

In 1999, China-Africa trade rose from $6bn to over $90bn (£56bn) in 2009 and was split more, or less equally between  imports and exports with Africa’s natural resources – oil, iron, platinum, copper, and timber – moving east to fuel China’s factories and production back to Africa. In 2010, China’s trade with Africa was at a high of $100bn. Each year, China gives billions of pounds in grants and loans to African governments as inducements for raw material and/ or the financing of  infrastructure projects that could benefit Chinese companies.

So is Africa any worse off after the Chinese economic invasion? Perhaps Dominica should look at the African’s experience more carefully before wading into deeper waters. But at the moment, this kind of decision is not one for Dominican’s to make, it is up to their government and the Chinese know how to motivate governments to do the right thing as Mr. Skerritt and Dominicans are finding out.

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