The Legal, Real and Converged Interest in Declaratory Relief
The Legal, Real and Converged Interest in Declaratory Relief is a combination of practical experience and dogmatic analysis that focuses on declaratory relief relating to disputes resolved within the framework of international commercial arbitration and litigation. It is construed as a remedy where the plaintiff seeks an authoritative judicial statement of the legal relationship. Although of enormous significance in dispute resolution, declaratory relief has not been analysed in detail until this deeply informed study.
What’s in this book:
Focusing on the notion of ‘legal interest’ as a prerequisite to declaratory relief – which the author views as a serious limitation of access to justice – this book sets out to redefine the term in order to respond to the needs of modern legal dealing. Issues and topics such as the following are thoroughly considered across the chapters:
- the concept of legal interest as a prerequisite to granting a declaration;
- circumstances under which relief based on a declaratory judgment may be granted;
- determination of a plaintiff’s ‘legal interest’ in having a legal relationship established by a judicial ruling;
- powers of the court or tribunal in various jurisdictions, emphasizing the contrast between ‘legal interest’ in Germanic law and ‘real interest’ in English law;
- combining a declaration with a coercive measure;
- role of the arbitration agreement and applicable arbitration law; and
- how arbitration can neutralize the strict notion of legal interest (‘converged interest’).
Case law, including numerous previously unpublished arbitration awards, is fully taken into account. The final chapter elaborates a new interpretation of the declaratory relief concept, encompassing civil substantive and procedural law enriched by the theory of justice, comparative analysis and statistical analysis. The Annex part of the book presents expert reports by local practitioners on the relevant legal characteristics in Germanic civil law jurisdictions (Austria, Germany, Poland and Switzerland).
How this will help you:
Given that recent legal scholarship has been increasingly insistent that judicial practice should evolve towards broader use of declarations, particularly where interpretation of contractual stipulations is necessary, this book elaborates a new perspective for modern redefinition of the legal interest concept. With its challenging redefinition of this concept, it promises to play an important role in formulation of relief in dispute resolution, particularly in international commercial arbitration. Lawyers and arbitrators will benefit from the awareness of how other tribunals decide and how awards can be formulated, and arbitration institutions as well as academics in the field will welcome this deeply informative analysis.
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Preface and Acknowledgements
List of Abbreviations
Declarations in General
The Concept of ‘Legal’ Interest in Germanic Systems of Law
The Concept of ‘Real’ Interest in English Law
The Concept of ‘Converged’ Interest in International Arbitration Awards
The Problem of Redefinition of Legal Interest Concept in Light of the Access to Justice Principles
Reports on Main Features of Declarations in Germanic Jurisdictions
Report on Main Features of Declarations in Austria
Report on Main Features of Declarations in Germany
Alicja Zielinska-Eisen & Tobias Strecker
Report on Main Features of Declarations in Poland
Beata Gessel-Kalinowska vel Kalisz & Joanna Kisielinska-Garncarek
Report on Main Features of Declarations in Switzerland
Table of Cases
Table of Legislation and Statutes