Browsing by Author "Kruger, Thalia"

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    At the intersection of court proceedings and arbitration in Europe: the exclusion of arbitration in the Brussels Ia Regulation
    (2017) Klebes, Stephan Dominikus; Kruger, Thalia
    The exclusion of arbitration from the scope of application of the Brussels Regime on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters in the EU has a long history and is still subject to controversy. After some introductory explanations of the legal framework and relevant principles in the field of law, this minor dissertation examines chronologically all possible involvements of national courts in arbitral proceedings in order to give an overview of the (in-) applicability of the Brussels Ia Regulation to them. For this purpose, the relevant case law of the CJEU and the related legal developments beginning with the adoption of the Brussels Convention up to the entry into force of the Brussels Ia Regulation are being considered. Finally, the legal problems arising from the current state of affairs and how courts should navigate it are discussed with an emphasis on the possible enforcement constellations of contradicting judgments and awards.
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    The interface of the Brussels I Regulation with arbitration proceedings : revision of Brussels I
    (2011) Van Enzberg, Donata; Kruger, Thalia
    The paper's aim is to convey an understanding of the complex interface between the Brussels I Regulation and arbitration and to analyse and evaluate possible ways to improve their interaction. In doing so, it gives at first a brief overview about the history and the scope of the Brussels I Regulation and about the laws most important to arbitration. Moreover, the reasons behind the exclusion of arbitration from the Brussels I Regulation will be explained. Following, the paper points out the interface between the two fields and illustrates the problems which occur in this context and how the courts and academia have responded. The proposed changes from the Heidelberg Report on the Green Paper to the recently published Proposal will be introduced and finally evaluated. The paper will end with a concrete suggestion on how the Brussels I Regulation should be amended in order to keep the attractiveness of the EU countries as a place of arbitration.
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    International commercial arbitration in Kenya: is arbitration a viable alternative in resolving commercial disputes in Kenya?
    (2014) Mbithi, Peter Mutuka; Kruger, Thalia; Hutchison, Andrew
    The purpose of this paper was to determine whether arbitration is a viable alternative for resolving commercial disputes in Kenya. More so, because Kenya has adopted the UNCITRAL Model law, 1985 and revised the same in line with the model law, 2006. Furthermore, Kenya has set up the Nairobi Centre for International Arbitration, with an aim to promote and improve the conducting of arbitrations in the country. To answer the research question, the writer looked at the history of the arbitration law in Kenya, how the communities living in Kenya settled their disputes. In doing so, the writer looked at the dispute resolution mechanisms of the Kamba, the Kikuyu and the Kipsingis, all communities living in Kenya before the country was colonised by the British. We also looked at how the law of arbitration was introduced. Having established the basis of the Arbitration law in the country, the writer canvassed on the development of the law since independence in 1963 to the current situation. This included the support recently given to alternative dispute resolution mechanisms by the Constitution of Kenya as well as the establishment of the Nairobi Centre for International Arbitration. The writer also gave an overview of the role of the court in arbitration in Kenya, giving instances and examples at which the law envisages the involvement of the court in the arbitration process. Court supervised arbitration was also canvassed. The paper went on to look at the situation of commercial arbitration in two other developing countries in Africa, South Africa and Mauritius. It was found that Mauritius, which enacted its International Arbitration Act in 2008, has moved decisively to market itself as a viable, safe and prospective place of international commercial arbitration. It was also established that South Africa has not been able to review its Arbitration law, which was enacted in 1965. Last the writer looked at the opportunities, the benefits and the challenges that face arbitration in Kenya today. The research was limited by the fact that it was not possible to write about the practice of all communities in Kenya and therefore the three chosen were taken as samples to represent all the others.
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    The Role of Good Faith: A Case Study on the Application of Good Faith in the CISG
    (2018) Sedki, Mirco; Kruger, Thalia; Bradfield, Graham
    The work at hand discusses the role of ‘good faith’ in the meaning of Article 7 of the United Nations Convention on Contracts for International Sale of Goods (CISG). The CISG is a sales convention developed by UNCITRAL with the objective to provide a uniform and fair regime for the international sale of goods. As a consequence, the uniform application of the Convention is main concern of the CISG. Art. 7 provides a method to ensure that the Convention is applied in such uniform way. The provision lays down the three principles of interpretation of the CISG: ‘its international character’, ‘uniformity in its application’ and the ‘observance of good faith in international trade’.