Hamed Alavi

Documentary Letters of Credit, Legal Nature and Sources of Law

Abstract There is no doubt about risky nature of international trade. Such risk can be conceptualized as country risk, transportation risk, customer risk and etc. Documentary Letters of Credit (LC) are used as a method of payment in international business for many centuries in order to reduce risk of trade specially when parties are located in different countries and do not have precise information from financial standing of each other. In such occasion LC will reduce the risk of trade by shifting payment obligation from buyer as an individual to a payment guarantee of a bank as a legal entity in return for presentation of complying documents with terms of credit by seller. Familiarity with legal nature and different legal frameworks which govern the international operation of documentary letters of credit can facilitate the process of international trade for businessmen and boost national economies. However, lack of knowledge about them can impose huge losses on international traders. Situation will be more complicated when we understand that there are many internationally recognized legal frameworks which can affect the operation of LC and they get frequently updated in order to address technological and economic developments in global market. In this paper, author tries to answer questions regarding (i) what are international legal frameworks governing operation of documentary letters of credit? (ii) which areas of LC operation has been covered by them and (iii) how do they address the legal questions regarding international operation of documentary letters of credit?

To be or not to be; the EU cross-border mergers framework and harmonization of dissenting shareholder’s rights

To date, the Cross-border Merger Directive is known as a successful attempt in harmonizing crossborder merger rules within the overall under-harmonisation of EU company law. Transnational companies merge across the Union in accordance with the European cross-border mergers framework. However, concerns in many respects are not met. Issues like descending shareholder protection and creditors’ rights still raise valid questions. The legal aspects of dissenting shareholders’ rights and their protection against the majority decision are notharmonized at the Union level and leave the issue under the control of the national law of the Member States. Therefore, the Member States provide divergent levels of protection for dissenting shareholders of a cross-border merger transaction within their national framework. Such divergence extends from providing no special rights for minority shareholders in cross-border mergers to transposing the respective provision in the Cross-Border Mergers Directive in national laws a...

The European Union and Protection of Environment in Eastern Partnership Countries

According to the European Union’s primary law, the Union has been mandated with the promotion and protection of environment inside and outside of her territory. In the absence of effective international environmental conventions, the EU has been left with few options in fulfilling her environmental protection mandate. First, it can take the initiator and become a global leader in the elaboration of international environmental agreements. Second, the EU has the option of establishing export standards which subjects all exports of the Union to third countries to internal market’s environmental standards. Third, the EU can set the same standards for imported products from third countries. The final option is to form regional agreements between the EU and third countries and follow the goal of environmental protection at regional level. The current chapter will focus on the last option and efforts of the EU to promote environmental protection standards outside her territories in the framework of the Eastern Partnership Program. This paper studies the environmental status quo and challenges which EaP partner countries are facing, as well as the effects of EU approximation on the environment and climate change of the above-mentioned countries. The paper also describes the tools that are used by the EU in order to implement her environmental initiatives in EaP countries and that are necessary for achieving the most from the application of such tools in each country and at regional level.

The EU export controls regime: Dual-use goods and technologies in the European legal framework

Dual-use items, including software and technology, can be used for both civil and military purposes. Export control of such items is an important constituent part of security policies of exporter states. These measures are aimed at avoiding proliferation of weapons of mass destruction.1 The nature of dual-use goods intrigues imposition of control over exporting them to unfriendly countries or those ‘sensitive’ in terms of their ambiguous considerations of foreign policies.2 Some category of goods may be banned for export, whilst others are legitimate products that further technological development and strengthen international economic ties. The aim of the exporter states is to seek balance between safeguarding security objectives whilst not undermining competitiveness of local businesses. The paper explores the EU framework for regulating exports of dual-use goods as well as the EU participation in the international export controls regimes.

Remedies to Fraud in Documentary Letters of Credit: A Comparative Perspective / Opravné Opatrenia Pri Podvodoch S Dokumentárnymi Akreditívami: Komparatívna Perspektíva

Abstract Article 4 of the Unified Customs and Practices of Documentary Letters of Credit establishes the notion of autonomy principle by separating credit from underlying contract between account party and beneficiary. Article 5 by recognizing the autonomy principle confirms that effectuate the payment under credit, banks only deal with documents and not with goods. As a result, while documentary letters of credit are meant to facilitate the process of international trade, their sole dependency on compliance of presented documents to bank by beneficiary to actualize the payment will increase the risk of fraud and forgery in the course of their operation. Interestingly, UCP (currently UCP600) takes a silent status regarding the problem of fraud in international LC operation and leaves the ground open for national laws to provide remedies to affected parties by fraudulent beneficiary. National Laws have different approaches to the problem of fraud in general and fraud in international LC operation in particular which makes the access of affected parties to possible remedies complicated and difficult. Current paper tries to find answer to the questions of (i) what available remedies are provided to affected parties in international LC fraud by different legal systems? (ii) And what are conditions for benefiting from such remedies under different legal systems? In achieving its objective, paper will be divided in two main parts to study remedies provided by intentional legal frameworks as well as the ones offered by national laws. Part one will study the position of UCP and UNCITRAL Convention on Independent Guarantees and Standby Letters of Credit (UNCITRAL Convention) and remedies, which they provide to LC fraud in international trade. Part two in contrary will study available remedies to LC fraud and condition for access them under English and American legal system.

A European Dilemma: The EU Export Control Regime on Dual-use Goods and Technologies

Abstract Export controls for dual-use items are an important constituent element of both the security policies of state exporters and WMD non-proliferation efforts. Dual-use goods and technologies can be used for both civil and military purposes, which requires careful oversight over their export to countries that are considered unfriendly or have ambiguous foreign policy attitudes. By their very nature, dual-use items may be used both to further legitimate ends, like promoting technological development and strengthening economic ties, and to aid in unwarranted acts. State exporters are faced with the responsibility of balancing the security objectives pertaining to exports of dual-use items with the competitiveness of local economies. The paper discusses the EU export control regime and EU membership in international export control groups. In doing so, comparative and normative research methods are chosen to analyze existing literature on Council Regulation 428/2009 and other international export control groups, including the Wassenaar Arrangement, the Missile Technology Control Regime (MTCR), the Australia Group (AG) and the Nuclear Suppliers Group (NSG). The paper will conclude by identifying shortcomings and addressing possible amendments to the regulation.

Mitigating the Risk of Fraud in Documentary Letters of Credit

Abstract Despite the fact that documentary letters of credit (LC) are meant to facilitate the process of international trade, their specific characteristics may increase the risk of fraud while being used as the method of payment in the process of international transaction. Many factors like exclusive use of documents, geographical distance, absence of efficient prosecution, the diversity of legal system at the global level and restricted application of fraud rule can be considered as reasons for LC fraud. While billions of dollars are lost annually due to fraud in the course of LC operations, such vulnerability can result in reducing the global popularity of documentary letters of credit as the main method of payment used in international trade. Meanwhile, it is worth mentioning that fraud risk management is an unexplored territory in the practice of documentary letters of credit operation. Existing research tries to fill the gap in the study on comprehensive methods for mitigating fraud risk in operations with documentary letters of credit by using risk management theory in order to answer the question of how to manage fraud risk in LC transactions? In a quest to answer the research question, the paper is divided into two parts: the first part is dedicated to preventive measures while the latter explores responsive measures of an enterprise to manage fraud risk in LC transactions.

Immigration of Highly–Skilled Workers to Estonia: Current Trends and Legislative Framework / Imigrácia Kvalifikovanej Pracovnej Sily Do Estónska: Súčasné Trendy A Právny Rámec

Abstract Estonian immigration policies have been largely influenced by its historical development. The figures from 1989 show that the population was only 61.5 percent Estonian by origin with the remaining 38.5 percent belonging to other ethnic backgrounds. Remarkably, 26 percent of the Estonian population were foreign born.(1) After joining the European Union in 2004, Estonia faced a high rate of outward migration, which was connected, inter alia, to the higher average salaries of the other Member States. The rapid expansion of the Estonian economy and growth of employment coupled with the negative population growth contributed to the need of foreign skilled labour.(2) Besides, the recent reform in the education system accounts for shortage of technical specialists in some labour areas.(3) It is thus not surprising that Estonian government employs focused, selective and demand-based immigration strategies to fight the ‘global war for talents’.(4),(5) The objective of the restrictive immigration policy is to attract first and foremost highly qualified professionals in the strategic economic areas while avoiding uncontrolled immigration and increase the sustainability and competitiveness of the Estonian economy. First part of current paper provides an overview of who falls under the classification of a ‘skilled’ worker and the Estonian perspective on talent attraction and retention. The second part lays down the existing legal framework, which covers the conditions and procedures of knowledge-worker’s immigration to Estonia. Particularly, this includes the relatively recent amendments to the Aliens Act 2004, which came into force in 2008 and set forth a facilitated approach towards entry and residence requirements. Abstrakt Historicky vyvoj v Estonsku sa vo veľkej miere prejavil aj na formulacii miestnej imigračnej politiky. Štatisticke data z roku 1989 dokazuju, že len 61,5% populacie malo estonsky povod a zvyšnych 38,5% malo ine etnicke pozadie. Až 26% populacie Estonska sa narodilo v inej krajine(1). Po vstupe Estonska do Europskej unie v roku 2004, bola zaznamenana masivna migracia z krajiny, ktora bola prevažne spojena s vyššimi priemernymi mzdami v ostatnych členskych štatoch. Rychla expanzia estonskej ekonomiky a rast zamestnanosti, sprevadzane negativnym rastom populacie, prispeli k potrebe po kvalifi kovanej zahraničnej pracovnej sile(2). Navyše, nedavna reforma systemu vzdelavania sa prejavila v nedostatku technickych odbornikov v niektorych oblastiach(3). A teda nie je prekvapujuce, že estonska vlada zaviedla sustredenu, selektivnu, dopytovo zameranu imigračnu strategiu v “globalnom boji o talent”(4),(5). Cieľom reštriktivnej imigračnej politiky je ziskať hlavne kvalifi kovanych expertov v strategickych ekonomickych oblastiach, vyhnuť sa nekontrolovanej imigracii a tiež prispieť k udržateľnosti a konkurencieschopnosti estonskej ekonomiky. Prva časť predkladaneho prispevku poskytuje prehľad o tom, na koho sa vzťahuje klasifi kacia “kvalifi kovanej” pracovnej sily a tiež estonsky pohľad na ziskavanie a udržanie talentov. Druha časť sa orientuje na existujucu pravnu upravu, ktora sa zaobera podmienkami a procesmi pre imigraciu kvalifi kovanej pracovnej sily do Estonska. V tejto časti sa doraz kladie na relativne nedavnu novelu zakona o cudzincoch z roku 2004, ktora vstupila do platnosti v roku 2008 a upravuje podmienky vstupu a pobytu v krajine.