This book considers the issues involved in international commercial disputes where set-off has been used. Most such disputes are conducted through arbitration so the focus of this book is on the effect of arbitration proceedings on set-off claims. The book considers the important institutional rules of arbitration procedure such as the Swiss Rules, the CNUDCI, the ICC rules and others. It covers in some detail the various possible solutions to the issue of applicable law under national and supra-national law. Included in this discussion is an analysis of the Rome I Regulation, the CISG, and the UNIDROIT Principles contained in the PICC and PECL. There is full consideration of the other relevant matters including enforceability, currency issues, and burden of proof. The last section of the book analyses the position of set off in insolvency, including a general comparative look at the situation in common and civil law, and concluding with an explanation of the effect of the European Regulation on Insolvency Proceedings. Set-off is a commonly used but complex device used to avoid the cumbersome transfer of money in international commercial transactions.
The situation is made even more complex when disputes arise bringing issues of applicable law and jurisdiction. This book raises the potential issues and analyses the probable solutions with reference to national and international laws and arbitral rules. It will assist common law practitioners with practical solutions under major civil law jurisdictions and vice versa.
Pascal Pichonnaz has been a Professor at the Law School of the University of Fribourg (Switzerland) since 2001, where he is also Chair for Private Law and Roman Law (teaching Roman Law, Contract Law, European Private Law and European Consumer Law). He is also a visit professor at several institutions, including the Center for Transnational Legal Studies, the Paris Pantheon-Assas, the University of Rome and the University d'Auvergne Clermont-Ferrand. Louise Gullifer has been teaching at Oxford since 1991. Before that she practised at the Commercial Bar in chambers at 3 Gray's Inn Place (now 3 Verulam Buildings), under her maiden name (Louise Edwards). She remains an honorary member of those chambers. She teaches Roman law, Contract law, Commercial Law, Corporate Finance law and Corporate Insolvency law and is the senior law tutor at Harris Manchester College. From 1994-97 she was a Fellow of Brasenose College. She is currently the Oxford Law Faculty Development Co-ordinator. She is also Chair of the University Student Disciplinary Panel.
PART I - JURISDICTION OVER CLAIMS IN ARBITRATION; PART II - APPLICABLE LAW (CONFLICT OF LAW RULES); PART III - SET-OFF REQUIREMENTS; PART IV: SET-OFF AND INSOLVENCY