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brockstar41 wrote:Carrington could make it. Dakota Praire lost a lot, given they still have gorneau herman and aronson, and Carrington could pull an upset. They lost a lot but the guys they have play better together the guys they had last year.
JJBD20 wrote:i say Dunseith if they can keep it together!!
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text: Newport News Shipbuilding (formerly Northrop Grumman Newport News), a subsidiary of Huntington Ingalls Industries, has designed, built, overhauled and repaired a wide variety of ships for the U.S. Navy and commercial customers for more than a century. The Newport News, Virginia, shipyard is Hampton Roads' largest private employer, with more than 21,000 workers, many of whom are third and fourth generation shipbuilders. It is the nation's sole maker of nuclear-powered aircraft carriers and one of two submarine builders. Today, the shipyard is the nation's sole designer, builder and refueler of nuclear-powered aircraft carriers and one of only two companies capable of designing and building nuclear-powered submarines. The company also provides after-market services for a wide array of naval and commercial vessels.


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Fresh overrun of Iraq rankles American veterans
They say it's frustrating to watch Sunni insurgents erase gains made during the Iraq War.
Veterans of the Iraq War and their families are watching with dismay and alarm as Sunni insurgents overrun large swaths of Iraq, including cities like Mosul where hundreds of U.S. troops died.
"I completely disagreed with the decision to walk away from Iraq," said former Army Sgt. Kenneth Mancanares, who served in both Ramadi and Baghdad. "Now, to be honest, I'm trying to think if there's even a way I could get back out there. I'm sure there are a lot of guys feeling that way. I really wish that I could sign up on something tomorrow and join a volunteer group that's going there to stand up for these people."
Mancanares spent more than two years in Iraq, first in Ramadi and then in Baghdad.
RELATED: Insurgents vow to take Baghdad: 'Scores to settle'
"I lost countless friends; I've seen quite a bit of bad stuff over there," he said. "It's not about my personal feelings, about, 'Did I waste my time,' or 'did my buddies die in vain.' I have met those people over there and I became friends with them and I recognize their humanity. That's one of the things that is lost here ... it's so political, no one is really saying how bad it is for those people."
BACKGROUND: Five key questions about Iraq
The Sunni Islamic extremist group that has taken Mosul and other parts of Iraq is called Islamic State of Iraq and the Levant, the successor to the al-Qaida group that battled U.S. troops, said Daveed Gartenstein-Ross, a fellow at the Foundation of Defense for Democracies. While ISIL shares al-Qaida's ideology and brutality, it was formally expelled from al-Qaida in February over disagreements on tactics and leadership.
"In terms of core ideological goals, there is a lot of similarity rather than difference, but in the world of jihadism, similar goals don't necessarily mean that organizations will work harmoniously," he said.
ISIL controls a significant part of both Iraq and Syria. In the past week, it has captured Iraq's largest oil field and has come within striking distance of Baghdad. Iraqi troops and police greatly outnumber ISIL fighters, but reportedly have abandoned their posts and fled in the face of in the insurgents' advance, leaving their U.S.-made equipment behind.
Steven Jerome, a former Army sergeant who served in Tikrit, is especially disappointed with events in Iraq because he remembers the euphoria Iraqis felt during the 2005 referendum on the country's constitution.
"We see those kinds of events here in the U.S. all the time, but these were a first for the Iraqis," Jerome said in an email. "It was exciting to see them take to it with zeal, and satisfying knowing we helped give them that chance. Today, it seems like they lost that drive and just gave up rather than fighting for it. Maybe that was our fault by essentially handing it to them rather than them having to take it."
Former Marine Maj. Lamar Breshears felt the Iraqis were appreciative for being granted freedom from Saddam Hussein, but they were not willing to make the sacrifices necessary to live free on their own.
"This is something that ... we all kind of thought would happen eventually," Breshears said. "So it doesn't come as a surprise. It is painful to watch knowing how much effort and time and money we put into that — lives, blood sweat and tears."
During his deployment to Iraq, former Army Spc. Alex Horton's unit cleared Baquba of al-Qaida in Iraq, which had taken over the city and declared it their capital. The Iraqis were supposed to pick up the ball afterward. Now, he feels all the time and money spent training and equipping the Iraqis was a waste.
Almost all U.S. troops had left Iraq by the end of December 2011 because the Iraqi government failed to reach an agreement that would have allowed a residual U.S. force to remain. While Horton does not believe U.S. troops would have made much of a difference in the security situation if they had stayed in Iraq, he believes U.S. and Iraqi politicians wasted the opportunity for success that U.S. troops created.
"The talks falling apart about keeping a contingency force in there — that had nothing to do with us," he said. "That was a political decision and a political option between Baghdad and Washington. That had nothing to do with an infantry soldier on the ground. We did our end of the bargain and Washington and Baghdad failed to uphold their end."
Amy Staff Sgt. Richard Baca II, who served in Baghdad and Al Nashariya, said he feels the current situation in Iraq is happening because U.S. troops were not allowed to destroy the enemy.
"We would get reports of large amounts of insurgent activity or IED activity or we would tell higher up that the Iraqi police on the ground were telling us that al-Qaida or terrorists were in certain parts of the city and we would want to act upon that and try to root them out — and we would be told that wasn't our mission, our mission was something else," said Baca, who serves with the New Mexico National Guard.
Coleen Bowman's husband, Army Staff Sgt. Rob Bowman, served in Mosul in 2004 and 2005. Despite the dramatic collapse of the Iraqi army, none of the troops who served in Mosul want to hear talk that their service and sacrifice was for nothing, she said.
STORY: Obama weighing options to help Iraq
"They had many, many accomplishments while they were there," Coleen Bowman said. "They left it a lot better than they found it. What happened after that was not up to them. They did their part."
While her husband was in Mosul, he breathed in huge amounts of toxins from dust and smoke that most likely gave him cancer, from which he died after returning home, she said. Still, she is confident that her husband's service in Iraq was worthwhile.
"About four months after he was diagnosed, they did genetic testing on him; they wanted to identify the gene that caused the cancer," she said. "They came back kind of scratching their heads and saying, 'Your body doesn't even have this gene; it's environmental.' "
"I was angry for a couple of months, and he sat down with tears in his eyes and said, 'You've got to stop being angry ... if I could go back and change anything, I wouldn't. I love serving my country and I love leading my men, and I have no regrets.' So, I thought to myself and said, 'If he's not angry and has no regrets, I can't be angry.' "


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I've tried a few things from the extremely cute Holika Holika brand, and I've found their skincare is stronger than their cosmetics.
Nevertheless I tried their cute Melomovie Gel Eyeliners because I love gel liners and there were 2 unusual colours I don't already own (purple and hot pink).
Packaging – (quite inconsistent with Holika Holika, some items are witchy, some are retro):
The jars are cute, with the gel liners in a tub and the applicator brush attached to it. It is adorable but impractical to carry round as it takes up so much room (but then again you'll always need a brush to apply gel liner!):
The tubs of gel liner are quite deep and generously sized.
In terms of texture – this is soft but not as buttery as Maybelline but closer to the Etude House liners (that also come in bright shades).
Thus the texture is a little waxy – it takes a moment to dry and sets but it will run if you get your face wet or have watery eyes like me.
Also you may need 2 layers if you want a truly opaque finish.
Swatches – I found these two shades looked nice work together:
I wouldn't bother with this gel liner for basic shades like black and brown since there are better, cheaper liners but for something bright and fun, it's well worth a punt!
I paid £9 each for these on eBay.


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Tiger Beer Street Football 2013 -It's Where You Want to Be
Be part of Asia's biggest football festival - the 2013 Tiger Beer Street Football 5-aside tournament- this summer.
Played in a specially constructed cage, teams (7 players including 2 reserves) can still register now for the city-level tournaments held in Ningbo, Wenzhou, Changzhou, Suzhou, Anqing and Hefei from July 20. Each city's champion will qualify for the East China region final where the top 3 teams enter the China National Final in Guangzhou.
Famous for its exciting party atmosphere, the 5-aside Tiger Street Football competition is being hosted in seven Asia-Pacific countries this year with a Grand Prize of USD30,000.
Be sure to be where all the action is because, in true Tiger Beer style, the two-day event will be swashed with a radical display of everything street; street stylists & performers, the popular Tiger Cage Girls, and of course, lots of ice-cold Tiger Beer for the hot summer days.
For more information, call +86 130 2213 1201 or email TSF2013[at]novuschina-dot-com.
Registration is FREE and on a first-come-first-serve basis.


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Debbie Wasserman Schultz (born September 27, 1966) is the U.S. Representative for Florida's 20th congressional district, serving since 2005. She is a member of the Democratic Party and the Chairwoman of the Democratic National Committee. She previously served in the Florida House of Representatives and the Florida Senate.
The district covers parts of Broward and Miami-Dade Counties, including the cities of Fort Lauderdale and Miami Beach.
Wasserman Schultz was born in Forest Hills, Queens in New York City and grew up on Long Island. She received a Bachelor of Arts in 1988 and a Master of Arts with certificate in political campaigning in 1990, both in Political Science, from the University of Florida in Gainesville.


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Download piecewise functions she loves math gantt chart, evaluating functions worksheet homeschooldressagecom, writing piecewise functions worksheet pdf elegant writing. . .


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Horizon is a community bank serving northern and central Indiana, and southern, central and the Great Lakes Bay regions of Michigan. Our focus is to anticipate and fulfill customer needs with exceptional service and sensible advice. This philosophy is what has kept us growing stronger than ever since 1873.
No one wants to find themselves in a sticky financial situation. It's important to have that little extra padding in your checking account, but when you really want a new smartphone or a nice vacation, it's tempting to take some of that padding out. Emergency funds, or "rainy day funds," are important, and you need to know how much you should be saving for those rough financial patches.
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Financial emergencies can strike at any time. You may get hurt and need to pay upfront medical costs. A family member could lose a job. Your car may need major repairs. It's important to have cash on hand so you can pay for any potential emergency you or your family might come across. These funds, however, should not be used for anything other than an emergency — it defeats the point of saving.
How Much Money Should Be in Your Emergency Fund?
Different families will need different amounts. Some people say $1,000 is enough, others will suggest saving up to a year's income. Most experts agree, however, that you should have between three and six months' worth of savings in case of emergency. This way if you lose your job, you'll have an extra cushion to cover your mortgage or rent, car payments, utilities, food and other basic monthly expenses. Check out this emergency fund calculator to come up with a general estimate of what you might need.
Start Saving Now
The key to starting an emergency fund is to begin small. Ultimately, you'll want to establish a fund large enough to support you and your family for a couple of months, but you don't want to stash everything away immediately because if you're short of cash, you may be tempted to use it for non-emergency situations. Set small and manageable goals so you'll be more likely to reach them.
Emergency funds take time to grow, but having and maintaining one will help ensure your financial stability and safety. Visit a local branch or Contact us one of our advisors to help choose the best savings plan for you.


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No. 85,105
HAL JARVIS KUNZE and DELORES KUNZE,
Husband and Wife,
and DARCY D. KUNZE,
The provisions of K.S.A. 29-301 through K.S.A. 29-305 are analyzed and applied.
Appeal from Riley District Court; PAUL E. MILLER, judge. Opinion filed May 4, 2001. Reversed.
Mark Edwards of Hoover, Schermerhorn, Edwards, Pinaire & Rombold, of Junction City, for the appellants.
William M. Malcolm, of Oberg and Malcolm, of Clay Center, for the appellee.
Before RULON, C.J., PIERRON, J., and ROGG, S.J.
PIERRON, J.: In the case before us, Hal Jarvis Kunze, Delores Kunze, and Darcy D. Kunze appeal the judgment of the trial court against them for the cost of repairs to a partition fence and the award of attorney fees.
Jerry Schwartz owns a parcel of land and the Kunzes own the adjoining parcel to the east. A partition fence running south to north divides the two properties. Fancy Creek runs west to east through the properties and under the partition fence.
On October 6, 1983, the Board of Riley County Commissioners (County), acting as fence viewers pursuant to K.S.A. 29-301, made an assignment for the building and maintenance of the fence. The assignment contained the rights and responsibilities of each party with respect to the fence. In addition to the partition fence, the assignment directed the Kunzes to maintain stock tight fences east of the partition fence on both sides of Fancy Creek.
When Schwartz inquired about a perceived fence problem in 1998, he was directed by the county counselor how to proceed in seeking to have the fence repaired. He allegedly followed those directions.
On May 29, 1998, Schwartz notified the Kunzes by certified mail that the partition fence in the Fancy Creek channel was in disrepair. The notice stated the Kunzes had until June 10, 1998, to repair the fence or Schwartz would repair it and bill the costs to the Kunzes. Hal inspected the fence and determined it did not need repair. Schwartz repaired the fence and sent a bill to the Kunzes.
Shortly thereafter, Schwartz felt the fence needed to be repaired again. On July 23, 1998, he sent another notice to the Kunzes, giving them until July 30, 1998, to repair the fence. The Kunzes again failed to repair the fence, and Schwartz repaired it and billed the Kunzes for the expense. Schwartz sent copies of the letters requesting the Kunzes to repair the fence to the County.
Schwartz then requested the County, pursuant to 29-303, to inspect the repairs and determine their value. The County determined the value of the repairs made on July 6, 1998, to be $265.00 and the value of the repairs made on August 15, 1998 to be $133.00. The Kunzes failed to pay for either repair.
Schwartz filed suit seeking to have the trial court order the Kunzes to pay for the repairs plus interest and attorney fees. The Kunzes filed a motion for summary judgment, claiming Schwartz had failed to comply with K.S.A. 29-302 by repairing the fence before the County had viewed it to determine whether it was in need of repair. The court denied the motion, ruling in part that compliance with 29-302 was not required to bring the action.
At trial Schwartz, Hal, and Darcy testified regarding the fence assignment. The trial court interpreted the assignment and held that the Kunzes had not maintained their portion of the fence in accordance with the assignment. The court awarded $398 plus interest at the rate of 1 percent per month from December 26, 1998, and assessed attorney fees of $2,951.05 with interest.
This case involves interpretation of the statutes regulating fence viewing. It is a question of statutory interpretation and is subject to unlimited review. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
The Kunzes claim Schwartz was required by 29-302 to request the County to inspect the fence to determine whether it needed repair before any repairs were undertaken. Schwartz counters that under 29-303, there is no such requirement.
As a preliminary matter, the Kunzes argue Schwartz did not bring this action at the trial level pursuant to K.S.A. 29-305, as Schwartz now claims, but rather pursuant to 29-303. The Kunzes are correct that the petition and the memorandum in opposition to the Kunzes' motion for summary judgment clearly state that relief is being sought under 29-303. In its order denying the Kunzes motion for summary judgment, the trial court found, seemingly on its own initiative, that Schwartz was entitled to repair the fence pursuant to 29-305 and compliance with 29-303 was not a prerequisite to bringing an action under 29-305. At the trial was the first time Schwartz mentioned 29-305 as a possible basis for relief. He also claimed in his written closing argument that the action was being brought pursuant to 29-305. The Kunzes argued in their written closing argument that the action was brought pursuant to 29-303 and, thus, Schwartz had to comply with 29-302. The court concluded the basis for the action was at least partially 29-305, and that is the issue presented to this panel.
The statutes relevant to this issue are 29-301 through 29-305. These statutes relate specifically to partition fences.
"The owners of adjoining lands shall keep up and maintain in good repair all partition fences between them in equal shares, so long as both parties continue to occupy or improve such lands, unless otherwise agreed." K.S.A. 29-301.
"If any party neglect to repair or rebuild a partition fence, or the portion thereof which he ought to maintain, the aggrieved party may complain to the fence viewers, who, after due notice to each party, shall examine the same, and if they determine that the fence is insufficient, shall signify it, in writing, to the delinquent occupant of the land, and direct him to repair or rebuild the same within such time as they may judge reasonable." K.S.A. 29-302.
"If such fence be not repaired or rebuilt accordingly, the complainant may repair or rebuild it, and the same being adjudged sufficient by the fence viewers, and the value thereof, with their fees, being ascertained by them and certified under their hands, the complainant may demand of the owner of the land where the fence was deficient, the sum so ascertained; and in case of neglect to pay the same for one month after written demand, may recover it, with interest at the rate of one percent per month, by action in any court of competent jurisdiction. In any such action the court shall allow the prevailing party a reasonable sum for attorney's fee." K.S.A. 29-303.
"When any controversy shall arise about the rights of the respective owners in partition fences, or their obligations to keep up and maintain the same in good repair, and if they cannot agree among themselves, either party may apply to the fence viewers of the township in which such fence may be situated, who, after a reasonable notice to the other party, shall proceed, on application as aforesaid, to view such fence, and assign to each party, in writing, his equal share or part of such partition fence, to be by him kept up and maintained in good repair; which assignment shall be recorded by the register of deeds of the county in a book to be provided for that purpose, and shall be final, conclusive and binding upon the parties, and upon all the succeeding occupants of the lands, and they shall be obliged thereafter to maintain their respective portions of said fence." K.S.A. 29-304.
"If a party neglect or refuse to erect or maintain the part of the fence assigned him by the fence viewers, it may be erected and maintained by the aggrieved party in the manner before provided, and he shall be entitled to recover the ascertained cost thereof, with interest at the rate of one percent per month and a reasonable attorney's fee to be fixed and allowed by the court, by action in any court of competent jurisdiction; and the amount recovered, with costs, shall be a lien against the land chargeable with the same." K.S.A. 29-305.
The Kunzes assert that Schwartz was required under 29-302 to complain to the County and have it declare the fence insufficient before anyone was directed to undertake repairs. According to the Kunzes, this is the natural interpretation of the statute to cover a situation where adjoining landowners have a difference of opinion regarding whether a particular partition fence is in need of repair. In addition, it is the fence viewers' duty to determine a reasonable time for repair.
The Kunzes further assert the language found in 29-303 that a complaining party may repair a fence if it has not been repaired accordingly refers to the directions given by the fence viewers pursuant to 29-302. Since it is undisputed that there was no inspection by the County prior to Schwartz commencing the repairs, the Kunzes maintain that Schwartz would not be in statutory compliance for an action brought under 29-303.
The Kunzes' main argument, and the major point of contention in this case, is that 29-305, by providing that an aggrieved party may fix a neglected fence in the manner before provided, refers to 29-302 and 29-303 and requires a viewing of the fence before any repairs are made. The rationale provided for this interpretation is that too many problems can arise if an aggrieved landowner is permitted to determine when repairs are needed and to choose the method of notification and amount of time to fix the fence. Also, the Kunzes state that to ignore the language "in the manner before provided" obviates the need to involve the fence viewers at all once an assignment has been made.
As partial support for their argument, the Kunzes' point to Vernon's Kansas Forms, §§ 2341, 2342, 2343, and 2344, which are referenced in the Research and Practice Aides following K.S.A. 29-302 and K.S.A. 29-303. Section 2344, titled "Complaint of Failure to Repair or Rebuild," instructs the attorney to follow § 2341 and states:
"That on the ___ day of ____, 19__, the fence viewers made an order that _____ rebuild [or, repair] the ____ half of the partition fence between the land of complainant and that occupied by said ______ within _____ days; that said _____ failed and refused to comply with said order, and after the time above mentioned expired, and ____ still refusing to comply with said order complainant rebuilt said fence [or, repaired said fence], and now requests that you examine said fence and adjudge it sufficient, and ascertain the value of the work and material placed therein by complainant, and certify thereto.
Dated ______ 19___
Section 2341 is the original "Complaint to Fence Viewers," which requests a fence viewing. The Kunzes contend this reference to § 2341 shows an understanding that the fence viewers shall be called back prior to a repair or rebuild by the complainant if an assignment has been made, one party refuses to comply, and the other party wishes to benefit from the provisions of K.S.A. 29-203 through
We note that the language "in the manner before provided" does not necessarily refer to either K.S.A. 29-302 or K.S.A. 29-303 but might well refer to the rights and responsibilities found in the assignment filed pursuant to K.S.A. 29-304.
Schwartz agrees that 29-302 and 29-303 are to be read together to require an inspection by the fence viewers prior to repairs being made and a procedure to be followed by an aggrieved landowner when the repairs are not made as directed. However, Schwartz claims 29-304 provides a final answer to parties who are not able to agree on their rights and responsibilities regarding a partition fence. According to Schwartz, requiring an inspection every time a landowner feels a fence needs to be repaired by the other landowner would defeat the purpose of 29-304, which is to negate such a requirement.
Schwartz contends the language "in the manner before provided" refers to 29-303, which itself does not specifically require an inspection prior to the actual repairs being made. This, Schwartz argues, is the clear intent of 29-305.
It is illogical to concede, as Schwartz does, that the remedy in 29-303 follows from the process provided in 29-302, and then to argue that 29-305 refers to 29-303 and not simultaneously to 29-302. It is not clear, as Schwartz argues, that this interpretation is what the legislature intended.
"'In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible.' [Citation omitted.]" State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998) (citing State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 [1998]). Construing the statutes in this case as a whole provides few clues about the legislature's intent regarding when fence viewers are required to inspect a partition fence. Neither party in the present case presents any real authority or support for their conclusions pertaining to which statutes are implicated.
The issue in this case boils down to whether the intent of the legislature was to require fence viewers to inspect a fence every time a dispute arises between adjoining landowners pursuant to 29-302 and 29-303, or, as in the present case, the presence of an assignment filed pursuant to 29-304 implicates 29-305, which does not specifically state the requirements of inspection.
We believe the five statutes quoted above need to be read together. While there is obvious support for the trial judge's reading of the statute, we are persuaded that the answer to our problem is found in the first sentence of 29-304, which reads: "When any controversy shall arise about the rights of the respective owners in partition fences, or their obligations to keep up and maintain the same in good repair, and if they cannot agree among themselves, either party may apply to the fence viewers."
This language appears to apply to both the original dispute and to any subsequent arguments over the obligation to keep up the fences. This seemingly all inclusive language is reasonable in context as it gives the objective fence viewers the ability to see the situation before action is taken and direct what is to be done
We must therefore find that since the provisions of 29-304 and 29-305 were not followed, Schwartz cannot avail himself of the damage and attorney fee provisions of 29-303 and 29-305. We must reverse the decision rendered below and find that the repair costs and attorney fees cannot be recovered under K.S.A. 29-301 et seq.
While this ruling would resolve the remaining issues as to this case, we will address the other matters on appeal in case of review and for the benefit of subsequent parties with similar cases.
The Kunzes also claim the assignment as filed in 1983 was invalid because it did not divide responsibility for the fence in equal shares between the parties as required by 29-301. Schwartz contends the Kunzes did not raise this issue at the trial level and are now precluded from raising it here. The Kunzes point out the defense was raised in the answer to Schwartz's petition and in the pretrial order.
The issue was raised in the manner the Kunzes claim, but the issue pursued at trial focused more on the interpretation each party gave to the assignment, not the validity of the assignment. The trial court's memorandum of judgment quoted portions of the assignment when ruling on the parties' responsibilities, but the court was never asked to rule on the validity of the assignment. The Kunzes did not raise the issue at trial and cannot raise it now. Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999).
In any event, we seriously doubt the unappealed 1983 order can now, in effect, be appealed.
Schwartz argues that another issue on appeal is whether the trial court correctly interpreted the assignment. The Kunzes did not raise this issue and Schwartz did not cross-appeal it. The issue is not properly before this court.
We are also asked to determine if the trial court erred in taking judicial notice of Riley County District Court Case No. 96-C-56.
Schwartz testified briefly during his direct examination about case No. 96-C-56 regarding the same subject matter and parties as the present case. Schwartz also included a reference to taking judicial notice of the case in his proposed findings of fact and written closing argument. The Kunzes argue Schwartz never requested the trial court to take judicial notice of the case and, therefore, it was error for the court to do so.
K.S.A. 60-409 governs which facts must or may be judicially noticed. The provisions concerning which facts may be judicially noticed absent a request from a party are not applicable to this case. See K.S.A. 60-409(a) and (b).
If a party wishes to request the trial court to take judicial notice of a fact not enumerated in K.S.A. 60-409(b), the party must furnish the judge "sufficient information to enable him or her properly to comply with the request" and give the adverse party "such notice as the judge may require to enable the adverse party to prepare to meet the request." K.S.A. 60-409(c). It is questionable whether the requirements of 60-409 were followed in this case.
However, even if it was error for the trial court to include mention of case No. 96-C-56 in its memorandum or judgment, the Kunzes have not shown it was prejudicial. The court mentions the case and another earlier case to illustrate the Kunzes had not been maintaining the fence in compliance with the assignment. The ultimate question was whether the Kunzes were liable for the cost of repairs performed by Schwartz. The court's determination that the Kunzes were responsible for a particular portion of the fence and failed to maintain it on the dates in question would not likely have been different in the absence of the case No. 96-C-56. Without a showing of prejudicial error, the consideration of the prior case is not reversible error. Catholic Housing Services, Inc. v. State Dept. of SRS, 256 Kan. 470, 479, 886 P.2d 835 (1994).
Finally, we must determine if the trial court erred in awarding interest on an award of attorney fees.
K.S.A. 29-303 provides that an aggrieved party may recover the cost of repairs with interest at the rate of 1 percent per month and a reasonable attorney fee. K.S.A. 29-305 provides an aggrieved party may recover costs in the same fashion as 29-303, as well as a reasonable attorney fee "to be fixed and allowed by the court." The trial court granted judgment in the amount of $398 plus interest at the rate of 1 percent per month from December 26, 1998. The court also granted attorney fees of $2,951.05 plus interest at the legal rate from the date of the memorandum of judgment.
The Kunzes argue the trial court was without the authority to award interest on the attorney fees. Schwartz counters that since the court is permitted to set the attorney fees and it is appropriate to award interest on a judgment entered by a court, the interest was appropriate. It is true there is a statutory framework for awarding interest on judgments. See K.S.A. 2000 Supp. 16-204. However, in Kansas attorney fees cannot be granted absent statutory authority. United States Fidelity v. Guaranty Co. v. Maish, 21 Kan. App. 2d 885, 905, 908 P.2d 1329 (1995). In the present case, there is statutory authority for the fee, but it also seems clear that the award of attorney fees was separate from the judgment awarded for repairs to the fence. Accordingly, absent statutory authority allowing for interest to be added to the attorney fees, it was error for the trial court to do so.


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PER: Potchefstroomse Elektroniese Regsblad
versão On-line ISSN 1727-3781
PER vol.11 no.1 Potchefstroom Jan./Mar. 2008
Challenge and opportunity: the ALI/III global principles project
IF Fletcher
Professor of International Commercial Law, University College London, This paper was originally delivered at the conference of the Academics' Group of INSOL International, held in Cape Town on 17-21 March 2007
This article deals with an international project to establish the extent to which it is feasible to achieve a worldwide acceptance of the Principles of Cooperation among the NAFTA Countries together with the Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases. This contribution explains the process whereby the American Law Institute and the International Insolvency Institute (1) developed principles of cooperation with regard to cross-border insolvency; (2) established acceptance of these principles in jurisdictions across the world, subject to any necessary local modifications; and (3) obtained the endorsement of leading domestic associations, courts, and other groups in those jurisdictions. This article may contribute to the development the South African cross-border insolvency law. The inclusion of the challenges of harmonisation of private international law is also contributing to current debate.
1 Introduction
In February 2006 the American Law Institute (ALI) and the International Insolvency Institute (III or Triple-I) announced the inception of a joint dissemination and extension project with respect to the Principles of Cooperation developed in the ALI Transnational Insolvency Project.[1] The stated objective of the two bodies was to establish acceptance of the ALI's Principles of Cooperation among the NAFTA Countries in jurisdictions across the world, subject to any necessary local modifications, and to obtain the endorsement of leading domestic associations, courts, and other groups in those jurisdictions. The Joint Reporters for this project are the present author, together with Professor Bob Wessels. The intended time frame for completion was set at within 24 to 30 months, thereby envisaging the production of a finalised text before the end of the year 2008. It was also anticipated that the Joint Reporters would carry out their task in collaboration with an International Advisory Group whose membership would be drawn primarily from the international membership of III. Given the specialised nature of the subject matter of the project, and also its international character, the technical expertise and professional stature of the III membership makes them ideally qualified for the task in hand. ALI members with an interest in the field of international bankruptcy are also participating, even if they do not happen to be members of III.[2] In addition, an ALI Members' Consultative Group has been formed in accordance with the organisation's usual procedure for the conduct of projects.
2 Background: the ALI NAFTA Insolvency Project
The American Law Institute's NAFTA Insolvency Project, for which Professor Jay L Westbrook was the US Reporter, was conceived as a means of seeking common ground and shared principles among the laws of the three NAFTA countries with regard to the conduct of cross-border bankruptcies.[3] The inception of the North American Free Trade Agreement (NAFTA) in December 1992 represented a new point of departure for regionally-based collaboration in the Americas. Each of the three participating States Canada, Mexico and the United States of America is a significant economic entity in its own right. When the three economies became linked in a joint venture to establish a free trade area, the prospective economic advantages were enormous. But these were accompanied by potential legal complexities that might afflict any transnational commercial structures or business relationships built across the frontiers of the component states. In terms of legal cultures and affinities, Mexico belongs to the Hispanic branch of the civil law 'family', with codified laws whose application is predicated upon judicial fidelity to the legislator's expressed intentions. On the other hand, both Canada and the United States can trace their legal lineage back to English common law, with its historic emphasis on the role of an independent judiciary endowed with powers of a discretionary nature enabling the judge to exercise initiative in developing suitable responses to changing social needs. Despite their common ancestry, however, the two systems are by no means identical and their present-day state of evolution is in part a reflection of their different histories in the transition from colonial status to independent statehood. Moreover, while the laws of the majority of the provinces and states within Canada and the United States respectively are common law-based, there are the exceptional cases of the Province of Quebec in Canada and the State of Louisiana in the United States where to differing degrees the legal system and its working practices are traceable to the French branch of the civil law family. Given this mixture of legal styles and systems, the practical difficulties of ensuring a stable platform on which parties can conduct their business affairs under the NAFTA are considerable. In addition, the absence of a central court of justice, comparable to the European Court of Justice (ECJ), makes it imperative that the national courts of the three participating States be provided with appropriate tools with which to set about resolving cases arising in the context of the free trade agreement, in which the interests of private parties and entities are engaged.
Among the matters requiring such attention are the problems resulting from the insolvency of a party engaged in transnational relationships. The ALI Transnational Insolvency Project was established to address this need by providing authoritative guidance to courts and lawyers within the multi-jurisdictional legal environment of the NAFTA To this end an unusually intense, systematic programme of investigative study was employed. Advisory committees were formed comprised of experts from each of the three countries, together with some consultants and advisors from non-NAFTA countries. The work was divided into two phases.[4] In the first phase, each of the three committees prepared a concise, but authoritative, International Statement of that country's insolvency law as applicable to international cases, written with a non-domestic audience in mind. Care was also taken to ensure that the statements conveyed an accurate picture of what actually takes place under the legal processes operative within each system, rather than merely presenting a decontextualised summary of the provisions of the enacted law. Each of the three statements was translated into the official languages of the other two participating states, and published in 2003 within a set of four volumes which together comprise the fruits of the ALI Transnational Insolvency Project.[5] Given the mixture of legal traditions to which the three NAFTA Member States respectively belong, the doctrinal and practical issues encountered in this process were in many ways a microcosm of those which arise in other geographical regions of the world, and indeed in situations involving a globally-constituted mixture of jurisdictions. Thus the fruits of this part of the ALI project, and indeed of the project as a whole, are undoubtedly of wider interest and relevance than in an exclusively NAFTA context alone.
The second phase of the ALI project built upon the insights obtained during phase one, culminating in the preparation of a one-volume treatise entitled: Principles of Co-operation among the NAFTA Countries. This document, which was approved by the Council and Members of the ALI at the organisation's Annual Meeting in May 2000, represents the consensus among all those participating in the two phases of the project, as well as bearing the endorsement of the ALI itself.[6] As already observed, the rigorous comparative study which preceded the formulation of the principles has supplied the latter with an empirical platform which ensures that they are not only robust in terms of the particular context in which they are intended to be applied, but also potentially adaptable to non-NAFTA bankruptcy proceedings.
One additional matter to be noted is the intellectual continuity between the ALI principles and other, near-contemporaneous developments. Both the philosophy of approach, and the substance of the principles articulated, exhibit a natural affinity with those which are to be found in the UNCITRAL Model Law on Cross-Border Insolvency 1997,[7] which in turn can be seen to have assimilated the fruits of the two most recent European projects, namely the Istanbul Convention of the Council of Europe and the EC Regulation on Insolvency Proceedings. Notions of co-operation and recognition, of the sharing of information and the facilitation of prompt and effective action for the preservation of value especially by means of a moratorium and for achieving equitable distribution among creditors on a basis of non-discrimination, are all conspicuously present.[8] Access to the courts of the other participating states, access to relevant information, and the free flow of communication between the courts of different states, are among the key principles espoused in the text.[9] As with the Model Law, the ALI NAFTA Principles allocate a pivotal role in the management and conduct of international cases to the judges exercising jurisdiction in the respective countries concerned. To achieve this goal of enhanced judicial empowerment which is such a characteristic feature of the common law tradition but accords less readily with the civilian legal culture which is also prominently represented within the NAFTA countries the Principles also include a section containing seven specific recommendations which are aimed at securing a complementary framework of enacted provisions within the laws of each participating state, conferring upon the judge a positive mandate for the conduct of cases in accordance with the foregoing General and Procedural Principles.[10] To facilitate the application of the principles in the course of live proceedings, appendix B sets out a code of practice in the form of Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases, which are intended to be adopted on a dynamic and flexible basis to allow the courts to respond to the requirements of actual situations encountered over time.
Following formal adoption in May 2000 of the final draft of the NAFTA Principles together with the International Statements of the laws of the three NAFTA countries, a collaborative process developed between the ALI and III, utilising the extensive network of expertise and high-level contacts among the global membership of the latter organisation. Perceiving the special relevance of the Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases for use in situations transcending the NAFTA countries alone, III arranged for a series of translations to be made (there have been some 13 to date), and it also circulated the Guidelines to virtually every significant commercial or bankruptcy court in the major economies of the world. The ALI has published the Guidelines in bilingual editions so that the original authentic English version appears in every copy that is distributed. However, merely disseminating the ALI work product, even if in a translation to facilitate the accessibility of the text to readers who may be unused to reading technical literature in English, does not of itself guarantee that the text will be read, much less that it will be accepted and acted upon. For there to be a realistic prospect that courts operating outside the NAFTA countries will embrace the Guidelines, and major parts of the NAFTA Principles of which they form a part, a more active process of engagement would be required. This would include some form of meaningful interchange conducted by way of an expert dialogue with qualified representatives of the legal system of each country in turn, with a view to ascertaining the extent to which the Principles can serve as the basis for a formulation of global standards in terms of rules and principles applicable in the transnational insolvency process. It was with this objective that the ALI/III Global Principles Project was conceived during 2006, and established as explained above in the Introduction. The present paper seeks to delineate the nature and scale of the challenge presented by this project, and also to indicate the approach which has been adopted by the Joint Reporters in response to that challenge.
3 The challenge: defining the objectives of the Global Principles Project
The Joint Reporters set about their mission by drawing up a provisional statement of objectives, with a view first to launching an interactive discussion with the membership of the Advisory Group, and thereafter to refining and reshaping the objectives themselves. The provisional statement, provocatively titled as 'Manifesto of Aims and Objectives', took as its starting proposition that the central raison d'être of the project was already defined, namely to establish the extent to which it is feasible to achieve a worldwide acceptance of the NAFTA Principles together with the Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases (the Guidelines). To attain this primary goal it seemed appropriate to design a systematic consultation exercise, drawing on the expert, first-hand knowledge of members of the Advisory Group, to determine the extent to which the NAFTA Principles and also the Guidelines are capable of being applied within a wide and representative range of legal systems around the world, and also the extent to which current practice in those countries may be said to conform to those standards. Conversely, to the extent that local circumstances give rise to any obstacles to the acceptance of such standards and practices, these should be identified, and consideration should then be given to possible means of resolving them.
Secondly the reporters perceived that the Global Principles Project could provide an appropriate vehicle for exploring further the possibilities for devising global standards to regulate the transnational insolvency process itself. A number of issues which have an important bearing upon the overall quality and efficiency of the international insolvency 'process' were either not directly addressed in the context of the NAFTA Principles Project, or were there dealt with on a somewhat tentative basis. These include the principles and procedures to be applied where insolvency occurs within multinational corporate groups (the subject of Procedural Principles 23 and 24 of the NAFTA Principles). Further issues which are self-evidently in need of study and development are the conflict of laws aspects of insolvency, including choice of law rules and the principles relating to the exercise of jurisdiction, together with the elaboration of internationally tenable definitions of some of the fundamental concepts employed in the standardised principles. Also of direct relevance to the goal of promoting effective co-operation in international cases are some very practical questions, including how to overcome the inevitable problems where the respective courts are operating concurrently in different regions and time zones, and have different working languages. In such situations, direct communication between courts may be impracticable, but it may be that some alternative means of achieving cooperation through one or more designated intermediaries could be established.
Thirdly, the reporters considered this could be a timely opportunity to take account of the considerable volume of work that has already been carried in this field in recent years. The number of recent projects and studies which either directly or indirectly relate to insolvency matters amount to a striking demonstration of the globalisation of commercial activity in the present era, and the raised awareness internationally of the need to address insolvency-related issues which arise in a cross-border context. It would therefore seem useful to enlist the collective wisdom of the International Advisory Group to try to distil, and if possible synthesise, the fruits of recent activity, and hopefully thereby provide a legislative tool which can be a point of reference in future. In addition to the NAFTA Principles themselves, including the Guidelines referred to above, the Joint Reporters have identified the following as of particular interest and relevance for the purposes of the current project:
- Asian Development Bank Good Practice Standards for Insolvency Law 2000
- World Bank Principles and Guidelines for Effective Insolvency and Creditor Rights Systems 2001, revised 2004
- Principles of European Insolvency Law 2003
- European Bank for Reconstruction and Development Core Principles for an Insolvency Law Regime 2004
- American Law Institute/UNIDROIT Principles of Transnational Civil Procedure 2004
- UNCITRAL Legislative Guide on Insolvency Law 2004
- INSOL Europe Academic Wing: European Communication and Cooperation Guidelines for Cross-Border Insolvency (draft 2006)
To the extent that the above are able to supply indications of existing points of agreement on matters of principle, or in respect of the processes to be encouraged as exemplifying current standards of best practice, they will be taken into account in the course of the Global Principles Project.[11]
3.1 First steps in consultation
A meeting with the inaugural members of the Advisory Group was convened at Columbia University School of Law on June 14 2006, attended by judges, practitioners and academics from more than 10 countries. The meeting reviewed the reporters' provisional statement of aims and objectives and discussed a number of associated themes which could potentially be included within the revised objectives. There was a consensus on the need to maximise the opportunities presented by the assembling of a globally-drawn group of experts by examining, within the limits of reasonableness, certain related issues which those engaged in the NAFTA Principles Project had not managed to resolve. For example it was considered that some of the practical aspects of cross-border cooperation should be addressed, including, as already mentioned, the resolution of differences of working languages of the courts involved, and of the time zones in which the respective courts are located. There was also some support for the suggestion that the special difficulties encountered in insolvencies of multinational groups of companies are in urgent need of attention, although it was quickly realised that the complexity of the subject could pose problems of balanced allocation of the available resources. The subsequent decision by UNCITRAL, at its meeting in July 2006,[12] to establish a Working Group to consider the treatment of corporate groups in insolvency has obviated the need for this topic to be brought within the main objectives of the Global Principles Project, although it need not altogether preclude our consideration of some aspects where appropriate. As a consequence of this development it was decided that the project should focus attention upon some of the more pressing issues in the area of private international law which to date have defeated the attempts of international organisations to devise clear and workable solutions.
3.2 Taking the project forward 2007-2008
Following a period of reflection in the wake of the initial meeting with the Advisory Group, the reporters' next goal was to bring about the augmentation of the membership of the group with a view to its being as widely representative as possible. Concurrently, a systematic questionnaire has been designed to enable us to test the degree of acceptance of the NAFTA Principles among the states whose systems can be interrogated via the collective expertise of the group. Additional questions will then be formulated to try to gather reliable data concerning the issues referred to above, and afterwards to yield insights into the readiness of the global community of states to embrace even a limited number of standardised rules and practices which would bring greater stability to debtor-creditor relations.
Going forward, the Joint Reporters wish to emphasise their belief in the need to maintain an open-minded spirit of inquiry, and a transparent process of debate, to ensure that any aspects of the Principles which may give rise to difficulties of transposition into the legal culture of a particular country or region can be properly and sensitively considered. If any particular issue cannot be resolved on the basis of a text of universal application acceptable to all, an accommodation may be sought by means of a proviso to allow the main principle to operate subject to certain necessary local modifications. In the course of this process, the extant array of internationally generated texts which were referred to above will be studied with a view to ascertaining additional, complementary principles of law and practice which are considered to command general support. In this way it is hoped that the final text embodying the Global Principles will obtain the approbation of governmental authorities, domestic and international organisations, practitioners, and (most importantly) courts in their approach to the conduct of international insolvency matters in the future.
4 Widening the opportunity involvement in the Global Principles Project
The Joint Reporters are only too well aware of the sheer magnitude of the task they have undertaken. To conduct a survey of even a representative selection of legal systems perhaps 20 or 25 in number requires a considerable allocation of their time by experts whose knowledge and skills are already much in demand. The working practices of the two bodies under whose auspices this project is being conducted the ALI and the III require that formal membership of the International Advisory Group or the ALI Members' Consultative Group operating in accordance with our terms of reference is restricted to persons who are themselves members of either the ALI or the III. Some, indeed, happen to belong to both organisations. We are however very keenly aware of the reservoir of talent and scholarly wisdom that exists within the membership of other organisations with an interest in international insolvency matters, such as the Academics' Group of INSOL International. We have therefore formed an additional circle of consultees comprising experts who are not currently members of either the ALI or the III. We believe that they will make a valuable contribution to the project, for example by providing us with critical insights into the issues affecting a wider range of jurisdictions with which they happen to be personally familiar.
5 Subject for further consideration: the challenge of harmonisation of rules of private international law
When courts engage in cross-border cooperation, it can scarcely be supposed that they do so under circumstances where each court is blind to the international implications of the action it is being invited to take at the request of its foreign counterpart, or of interested parties including, most prominently, the foreign representative. For reasons that are well understood among those conversant with bankruptcy and insolvency matters, existing instruments which regulate aspects of international insolvency, even including the EC Regulation on Insolvency Proceedings, have stopped short of seeking to unify the domestic insolvency laws of the states affected.
For the foreseeable future therefore it will continue to be relevant to know in which jurisdiction a given debtor is capable of becoming subject to insolvency proceedings, and what will be the substantive consequences of those proceedings for all concerned. For the purposes of international recognition and enforcement of the effects of such proceedings, as well as for the purpose of obtaining the cooperation and assistance of foreign courts pursuant to such arrangements as are put in place following enactment of the UNCITRAL Model Law, the court hearing the foreign request must evaluate the circumstances in which the foreign proceedings came to be opened, and may also need to establish such questions as the precise time at which proceedings are to be treated as having opened. Regrettably, at present there is an absence of clear, universally agreed rules to determine these issues, so that the outcome of such crucial legal questions can be unpredictable at best. This is unfortunately the case even in respect of the EC Regulation and the UNCITRAL Model Law, whose recourse to a near-common vocabulary by the use of key concepts such as 'centre of main interests' and 'establishment' seemed initially to herald a significant leap forward in the standardisation of rules of jurisdiction. Despite the enormous efforts expended in negotiating and drafting them, neither the EC Regulation nor the Model Law succeeded in providing a clear and precise definition of 'centre of main interests', while their respective definitions of 'establishment' may also prove to be difficult to apply in relation to some forms of commercial activity.[13] This definitional deficit has already proved to be the source of troublesome and costly uncertainty in the operation of the EC Regulation, as it can give rise to disputes between interested parties as to the legitimacy of attempts to open proceedings in a given jurisdiction.[14] Similar difficulties, bringing in their wake a plethora of legal uncertainties, have resulted from the lack of technical precision in the drafting of the EC Regulation's definition of 'time of the opening of proceedings'.[15] This is a serious defect in view of the notorious problem of the 'race to the courthouse', which has a long history in the realm of cross-border insolvency.
The fraught questions of jurisdiction in international insolvency cases, and the vital matter of definition in respect of the concepts embodied in any jurisdictional rule, are inextricably linked to the process of allocating the substantive law by which any insolvency proceedings (or any aspects of such proceedings) are to be governed. The EC Regulation seeks to control these issues by declaring, in its article 4(1), that the law applicable to insolvency proceedings and their effects shall be that of the Member State within whose territory such proceedings are opened. However, this basic rule is subject to specific exceptions prescribed in the next following articles numbered from five to 15 inclusive. The extent to which such extensive exceptions to the controlling effect of the lex concursus have proved necessary, under current circumstances of diversity even among the laws of such closely aligned states as those belonging to the European Union, demonstrates the need for extreme caution when attempting to design a scheme of choice of law rules for application on a wider, global canvas. In the author's estimation, it would be politically naïve to suppose that sovereign states would currently be prepared to surrender the benefits of locally generated rules under which parties may have based their expectations in their dealings with a debtor, by conceding complete and overarching control to the provisions of some foreign insolvency law under which the debtor's global estate comes to be administered. For this reason it is especially disappointing that the authors of the UNCITRAL Legislative Guide, when dealing with the linked subjects of jurisdiction and choice of law, chose to abandon their otherwise admirable policy of refraining from an overly-prescriptive presentation of their advice by proclaiming their preference for an unvarying application of the lex concursus.[16] While some of the provisions of the EC Regulation which create exceptions to the application of the lex concursus are also not without difficulty in terms of their conception and drafting,[17] it is surely premature and not a little presumptuous for the authors of the Legislative Guide to suggest that there is a consensus among economically advanced nations that the unchallenged domination of the lex concursus currently represents 'best practice' in the selection of the law to govern all aspects of an international insolvency case.
The above considerations lead the author to conclude that it would be useful to devote some time during the conduct of the Global Principles Project to an effort to ascertain the extent to which agreement can be reached on such matters as the definition of key terms employed in the rules governing jurisdiction and choice of law, and in the actual content of the rules for selection of the applicable law in cross-border cases. The following survey of some of the positions explored during the evolution of the EC Regulation's special rule (in article 6) to permit set-off to be claimed in certain circumstances despite the fact that the law of the State of the opening of insolvency proceedings does not allow set-off to operate, is offered here as an illustrative case study of the kind of issues which might be revisited with the aim of devising a rule that could be accepted by a wider international community beyond the frontiers of the European Union.
5.1 Set-off by way of exception to the regime of the lex concursus: is Article 6 of Council Regulation (EC) 1346/2000 the most appropriate rule?
Article 6 is one of a series of articles in the EC Regulation on Insolvency Proceedings (namely, articles 5 to 15 inclusive) which generate special rules applicable by way of exception to the general rule laid down by article 4(1) that
the law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of which they are opened. (the lex concursus)
The general rule of article 4(1) is reinforced by a specific provision in article 4(2)(d) to the effect that the lex concursus shall determine in particular "the conditions under which set-offs may be invoked". However, the opening words of article 4(1) indicate that its provisions are subject to exception where there is contrary provision elsewhere in the regulation itself. Such a contrary provision, in relation to set-off, is made by article 6. Article 6(1) states:
The opening of insolvency proceedings shall not affect the right of creditors to demand the set-off of their claims against the claims of the debtor, where such a set-off is permitted by the law applicable to the insolvent debtor's claim.
The exception thereby created is of a very precise character. As explained in the Virgós-Schmit Report, in the comment to article 6 of the EC Convention on Insolvency Proceedings (whose drafting is in every respect identical to that of article 6 of the regulation), the intention of this provision was that
When under the normally applicable rules of conflict of laws the right to demand the set-off stems from a national law other than the 'lex concursus', Article 6 allows the creditor to retain this possibility as an acquired right against the insolvency proceedings: the right to set-off is not affected by the opening of proceedings.[18]
The reference to "the normally applicable rules of conflict of laws" is especially significant because, as is well understood, those rules are capable of giving rise to a situation where contractual or other liabilities are governed by the laws of (potentially) any state in the world. In relation to contractual obligations, this possibility is accepted by the express provision in article 2 of the EC Convention of 19 June 1980 on the Law Applicable to Contractual Obligations (the Rome Convention), which declares that:
Any law specified by this Convention shall be applied whether or not it is the law of a Contracting State.
As the Rome Convention is applicable in all the current EC Member States,[19] the literal and natural meaning of the expression "the law applicable to the insolvent debtor's claim" in article 6(1) of the regulation is that it means any law capable of being identified as the applicable law of the obligation in question according to the choice of law rules now standardised among EU Member States by the Rome Convention. Of course, non-EU States' rules of choice of law in contractual matters are not affected by the Rome Convention, and retain that diversity of approach for which the realm of private international law is notorious.
The above rationalisation of the conclusions that follow upon an examination of the literal and natural meaning of article 6 is fully consistent with the interpretative guidance supplied by recital (26) to the regulation. The recitals are destined to play an important role in the interpretation of the regulation, both by national courts and by the ECJ. They were incorporated into the text with the intention (in part) of compensating for the absence of any official document in the form of an explanatory report to the regulation (equivalent to the intended function of the Virgós-Schmit Report in relation to the planned Convention). Recital (26) (which is closely modeled upon statements contained in paragraph 109 of the Virgós-Schmit Report), states as follows:
If a set-off is not permitted under the law of the opening State, a creditor should nevertheless be entitled to the set-off if it is possible under the law applicable to the claim of the insolvent debtor. In this way, set-off will acquire a kind of guarantee function based on legal provisions on which the creditor concerned can rely at the time when the claim arises.
5.2 The textual history of article 6
It is noteworthy that article 6 contains no words expressly restricting the scope of the exception to cases where the obligation through which the right to claim set-off is generated is governed by the law of one of the other EU Member States. The rule could therefore be considered as a candidate for more universal acceptance as an exception to the dominant role of the lex concursus in insolvency proceedings opened in any jurisdiction. In the course of developing the provision now embodied in article 6, the members of the committee of experts established by the EC Council explored a number of alternative formulations which reflect a changing balance of opinion as to the correct principle to be applied. It is instructive to examine the textual history of this provision by studying the successive drafts produced and discussed by the committee of experts.
During the concluding phase of the process of elaboration of the Draft Convention on Insolvency Proceedings, between May 1989 until September 1995, the provision allowing set-off to operate by way of exception to any exclusionary policy to be found in the lex concursus was the subject of extensive deliberation, during the course of which its substance and effect underwent a fundamental transformation. The rule in its current form, as quoted above, only appears in the draft versions of the convention produced after July 1993. Until that date, the proposed provision relating to set-off was expressed in the following terms:
The opening of insolvency proceedings shall not affect the right of creditors to the set-off of a claim forming part of the estate where the law of a Contracting State other than the State of the opening of proceedings applies to that claim.[20] (italics added)
In the subsequent versions of the provision, eventually numbered as article 6 in the final text of the Convention as opened for signature in September 1995 and also in the regulation as adopted in May 2000, the drafting was significantly altered with the omission of any reference to the law of a Contracting/Member State, and with the inclusion of wording to clarify the scope of the rule so as to confine its operation to those cases where the right of set-off is permitted by the law applicable to the insolvent debtor's claim (that is, the claim under which the insolvent debtor stands as creditor towards the party seeking to invoke a right of set-off).
5.3 What is the most appropriate rule for global application?
What may require further consideration, especially when devising a rule for application in proceedings opened in any part of the world, is whether the reference to the law applicable to the insolvent debtor's claim, rather than the law governing the obligation under which the insolvent debtor occupies the role of debtor towards the other party, is the appropriate rule in principle, or whether it should be possible to invoke set-off if such a right is available under the law applicable to either claim, or (more restrictively) only if such a right can be shown to be available under the law or laws applicable to both claims assuming neither claim to be governed by the lex concursus.[21]
As a further issue for consideration, it may be questioned whether international set-off should be available merely on proof that such entitlement arises under one or other of the laws by which the mutual cross-obligations are governed, or whether there should be a further requirement that the party invoking set-off must show that such a right has formed part of the legitimate expectations arising in the context of the relationship between the creditor and the insolvent debtor, so as to have been part of the calculation of risk during the process of becoming a creditor on the terms agreed. Since it is a fundamental policy of insolvency law that all creditors are eligible to participate upon terms of global equality, any rule which introduces an exception to the pari passu principle needs to be justified with care, and should not be allowed to operate as a capricious or arbitrary device without regard to the context under which parties have had dealings with the debtor.
5.4 The rationale of the EC Regulation's set-off rule
The final intentions of the EC Committee of experts are summed up by a passage in paragraph 109 of the Virgós-Schmit Report (which, as was noted above, supplied the basis for the statement contained in recital (26) to the regulation):
If the 'lex concursus' allows for set-off, no problem will arise and Article 4 should be applied in order to claim the set-off as provided for by the law. On the other hand, if the 'lex concursus' does not allow for set-off (e.g. since it requires both claims to be liquidated, matured and payable prior to a certain date), then Article 6 constitutes an exception to the general application of that law in this respect, by permitting the set-off according to the conditions established for insolvency set-off by the law applicable to the insolvent debtor's claim ('passive' claim). (italics added)
In adopting the rule of article 6, whereby the policy of the lex concursus is displaced by that of the law applicable to the passive claim (in situations where there is a true conflict between the two laws with regard to the availability of set-off in casu), the authors of the regulation (and of the convention that preceded it) were giving effect to the doctrine which scholars of the modern era seem to regard as the more satisfactory rule of decision for international cases. The 'traditional' approach, as advocated by a number of writers in former times, required the cumulative application of both laws that is, those governing the active and the passive claim respectively and would deny set-off unless both laws were found to concur in allowing it to operate. Modern analysis, on the other hand, has placed greater emphasis on the need to protect legitimate and reasonable expectations, and therefore on the need for a stable rule that enables the creditor to rely upon the provisions of a single system of law whose provisions are applicable in the context of his incurring an obligation towards the party who is subsequently the subject of insolvency proceedings. There appears to be a growing consensus among modern scholars that such stability and predictability is best achieved through the application of the rule contained in the law applicable to the passive claim ('the insolvent debtor's claim'). Thus, if that law permits set-off, but the lex concursus denies it, the latter will be over-ridden. This is the approach that would be followed in the present day under English rules of private international law (that is, quite apart from the rule now imposed under Regulation 1346/2000 for cases to which it applies). In the current edition of Dicey, Morris and Collins,[22] at paragraph 7-032 the learned editors, having drawn a distinction between procedural and substantive set-off (the former being concerned with the possibility that certain kinds of claim may be triable together according to the procedural rules of the lex fori), then state:
A set-off may, on the other hand, amount to an equity directly attaching to the claim and operate in partial or total extinction thereof; an example is the compensation de plein droit of French law. The question whether a set-off of this kind exists is one of substance for the lex causae, i.e. the law governing the claim which the defendant asserts has been discharged in whole or in part. (italics added; footnotes omitted)
In the passage quoted above, "the claim which the defendant asserts has been discharged in whole or in part" corresponds to the 'passive' claim, as between the creditor and the insolvent debtor, because that is the claim which would be enforced against the creditor (as defendant) by the insolvent debtor (as claimant). It can therefore be argued that the rule supplied by article 6 of the EC Regulation is in harmony with modern views of the appropriate way in which to resolve issues of set-off in international cases, and reflects the practice that would be followed in many jurisdictions (including England) even where the regulation itself is not applicable to the case in question.
6 But is this the 'correct' rule?
For the purposes of the Global Principles Project however, it is appropriate to revisit the issue of set-off with an open mind as to the international acceptability of any rule whereby it is permissible to disapply the set-off law of the lex concursus in a way that enables a right of set-off to be claimable where it can be shown that legitimate expectations of the availability of such a right in the event of the counter-party's insolvency have accompanied a creditor's approach to its relationship with the debtor. That question, along with other issues concerning the appropriate limits to the role of the lex concursus, will become one of the focal points during the later stages of the Global Principles Project, and a vigorous debate can be anticipated.
ALI Canadian Bankruptcy Law
American Law Institute Transnational Insolvency: Co-operation among the NAFTA Countries International Statement of Canadian Bankruptcy Law" (Juris Publishing Inc Huntington 2003) [ Links ]
ALI Mexican Bankruptcy Law
American Law Institute Transnational Insolvency: Co-operation among the NAFTA Countries International Statement of Mexican Bankruptcy Law" (Juris Publishing Inc Huntington 2003) [ Links ]
ALI Principles of Cooperation
American Law Institute Transnational Insolvency: Co-operation among the NAFTA Countries Principles of Cooperation among the NAFTA Countries" (Juris Publishing Inc Huntington 2003) [ Links ]
ALI US Bankruptcy Law
American Law Institute Transnational Insolvency: Co-operation among the NAFTA Countries International Statement of United States Bankruptcy Law" (Juris Publishing Inc Huntington 2003) [ Links ]
Collins et al (eds) Conflict of Laws
Collins L et al (eds) Dicey, Morris and Collins on The Conflict of Laws 14th rev ed (Sweet & Maxwell London 2007) [ Links ]
Fletcher Challenge and Opportunity
Fletcher IF "Challenge and Opportunity: the ALI/III Global Principles Project" Paper presented at INSOL Annual Europe, Africa & Middle East Conference (Cape Town South Africa 17-21 March 2007) [ Links ]
Fletcher Insolvency in Private International Law
Fletcher IF Insolvency in Private International Law 2nd ed (Oxford University Press Oxford 2005) [ Links ]
Omar Taxonomy
Omar PH Taxonomy of Guidelines and Principles in International Insolvency Unpublished [ Links ]
Westbrook 2002 Am Bankr LJ 1
Westbrook JL "Multinational Enterprises in General Default: Chapter 15, the ALI Principles, and the EU Insolvency Regulation" 2002 (76) American Bankruptcy Law Journal 1-42 [ Links ]
Westbrook and Ziegel 1997 Brook J Int'l L 7-24
Westbrook JL and Ziegel JS "The American Law Institute NAFTA Insolvency Project" 1997 (23) Brooklyn Journal International Law 7-24 [ Links ]
Westbrook Managing Defaulting Multinationals
Westbrook JL "Managing Defaulting Multinationals within NAFTA" in Fletcher IF, Mistelis L and Cremona M (eds) Foundations and Perspectives of International Trade Law (Sweet & Maxwell London 2001) [ Links ]
Register of court cases
Re Eurofood IFSC Ltd [2006] ECR I-4137; [2006] BCC 397 (ECJ) 2 May 2006
Klempka and others (Administrators of ISA Daisytek SAS) v ISA Daisytek SA [2003] BCC 984 (Court of Appeal, Versailles) 4 September 2003
Re Daisytek-ISA Ltd [2003] BCC 562 (Ch D Leeds Registry) 16 May 2003
Register of treaties and conventions
EC Convention: Law Applicable to Contractual Obligations 19 June 1980
EC Regulation on Insolvency Proceedings 2002
Istanbul Convention of the Council of Europe
Register of Internet resources
UNCITRAL Legislative Guide http://www.uncitral.org/ 19 Feb
UNCITRAL Legislative Guide [Found on internet] http://www.uncitral.org/pdf/english/texts/insolven/05-80722_Ebook.pdf [ [ Links ]Date of use 19 February 2008]
UNCITRAL Model Law http://www.uncitral.org/ 31 Aug
UNCITRAL Model Law on Cross-Border Insolvency 1997 [Found on internet] http://www.uncitral.org/uncitral/en/uncitral_texts/insolvency/1997Model.html [ [ Links ]Date of use 31 August 2007]
UNCITRAL Report of 39th Session http://www.uncitral.org 11 Mar
UNCITRAL Report of 39th Session UN Doc A/61/17 [Found on internet] http://www.uncitral.org [ [ Links ]Date of use 11 March]
[1] See below, n 3 and 4, and text thereto.
[2] The Co-Chairs of the International Advisory Group are Professor Jay L Westbrook, the Reporter for the NAFTA Principles Project, and E Bruce Leonard, who was Chair and Reporter for Domestic Aspects of Canadian Law for the previous project, and who is currently Chair of the III.
[3] Westbrook and Ziegel 1997 Brook J Int'l L 7-24.
[4] The author served as an adviser to the Project from 1999 onwards. For accounts of the work of the ALI Insolvency Project during its successive phases, see Westbrook and Ziegel 1997 Brook J Int'l L 7-24; Westbrook Managing Defaulting Multinationals; and Westbrook 2002 Am Bankr LJ 1.
[5] Each of the four volumes bears the main title: Transnational Insolvency: Co-operation among the NAFTA Countries, followed by the appropriate subtitle. In the case of the three national reports, the subtitle is specific to the country in question: "International Statement of Mexican/Canadian/United States Bankruptcy Law" (as appropriate).The fourth volume, bearing the subtitle "Principles of Cooperation among the NAFTA Countries", is the product of the 2nd phase of the ALI Project, discussed below. See ALI Canadian Bankruptcy Law; ALI Mexican Bankruptcy Law; ALI US Bankruptcy Law; and ALI Principles of Cooperation.
[6] The final text of the ALI "Principles of Co-operation", then labeled Tentative Draft (14 April 2000) was finally approved by the ALI Annual Meeting on 16 May 2000. After some further editorial adjustment, this text was published in 2003, together with the other three volumes referred to in n 5.
[7] UNCITRAL Model Law http://www.uncitral.org/ 31 Aug (hereinafter 'Model Law').
[8] ALI Principles of Cooperation, (hereinafter referred to as NAFTA Principles), s III, General Principles: Principles I-VII.
[9] Ibid, s IV, Procedural Principles, esp pr 1-10, 14-16. See also app B to the Statement of Principles, which bears the title Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases. The latter text contains 17 numbered guidelines intended to enhance co-ordination and harmonisation in multi-jurisdictional insolvency cases.
[10] Ibid, s V, Recommendations for Legislation or International Agreement.
[11] With this task in mind, a Taxonomy of Guidelines and Principles in International Insolvency was drawn up with the assistance of Dr Paul Omar. See Omar Taxonomy (currently unpublished), which provides a synoptic display of the principles formulated by 8 different studies, arranged thematically (copy on file with author).
[12] UNCITRAL Report of 39th Session http://www.uncitral.org 11 Mar at par 207-209(a).
[13] Definitions of 'establishment' are supplied in art 2(h) of the EC Regulation and in art 2(f) of the UNCITRAL Model Law. The two definitions are closely similar, but not identical in their wording.
[14] See eg Case C-341/04, Re Eurofood IFSC Ltd [2006] ECR I-4137; [2006] BCC 397 (ECJ) of 2 May 2006; Re Daisytek-ISA Ltd [2003] BCC 562 (Ch D Leeds Registry) 16 May 2003; Klempka v ISA Daisytek SA [2003] BCC 984 (Court of Appeal, Versailles) 4 September 2003.
[15] See art 2(f) of the EC Regulation. The meaning of this provision was one of the issues referred to the ECJ in the Eurofood case (see n 14). The court abstained from deciding all aspects of this issue of interpretation, leaving further uncertainties about the full effects of the provision.
[16] UNCITRAL Legislative Guide http://www.uncitral.org/ 19 Feb part 2, ch I, s C, Applicable Law in Insolvency Proceedings. For the author's criticism of the approach taken in that section of the Guide, see Fletcher Insolvency in Private International Law, ch 9, par 9.13 to 9.16.
[17] An example would be the provisions of art 6 of the EC Regulation, concerning the availability of set-off in cases where this would be precluded under the provisions of the lex concursus. As is explained in the remaining part of this section of the paper, during the formative process of the Draft Convention on Insolvency Proceedings (the textual precursor to the current Regulation), several alternative versions of what is currently art 6 were produced, based on a variety of approaches to the central problem of how to accommodate the legitimate expectations of parties dealing with the debtor under circumstances where mutual debits and credits would or might be produced. The rule finally adopted whereby set-off is claimable if it is "permitted by the law applicable to the insolvent debtor's claim" is by no means self-evidently the most appropriate solution to the issues of principle which arise in relation to international set-off. The subject undoubtedly merits a re-examination as part of the process of devising rules which are intended to be applied as globally accepted norms.
[18] Virgós-Schmit Report, par 107, second sentence. (The Report, which was not officially adopted or published by the EC Council which commissioned its preparation during 1995-1996 as an aid to interpretation of the EC Convention on Insolvency Proceedings, has been published in several textbooks and commentaries, including Fletcher supra n 16, app VII).
[19] As new Member States have joined the EU since 1980, accession to the Rome Convention has been included among the terms of entry negotiated between the EU and its existing members and the candidates for membership. Eg Spain (together with Portugal) acceded to the Rome Convention with effect from 1 September 1993 upon ratification of the Funchal Convention of 18 May 1992 (OJ 1992, C333/1).
[20] The version of the text as quoted appears as art 4.2 of the Preliminary Draft Convention on Insolvency Proceedings produced in 1991 as document 5419/91 (ANNEX), and as art 4a in the version of the Draft EC Bankruptcy Convention produced in 1993 bearing the reference 7163/93.
[21] Unless the lex concursus itself permits set-off, in which case the need to invoke the exception would not arise.
[22] Collins et al (eds) Conflict of Laws.
List of abbreviations
|American Law Institute
|centre of main interest(s)
|European Court of Justice
|European Economic Area
|International Insolvency Institute
|EU Insolvency Regulation
|North American Free Trade Agreement
|International Insolvency Institute


text:
Teens arrested for Dunkin' robbery
Officers from the Beaumont Police Department were called to the E. Lucas Dunkin Donuts shortly after midnight Thursday, Jan. 12, on a report of a robbery. An employee told officers that two black male subjects entered the store wearing blue jeans, dark sweatshirts, and dark blue ski masks. The eyes and mouth were cut out of the masks, the witness said. One subject pointed a black, small frame revolver at the employee and demanded the money in the register, according to the victim's complaint. The employee complied and the suspects left the store through the front door running west.
Officers observed two black males fleeing from the area on foot. The males were discovered hiding in dumpsters in the alley behind the Village Shopping Center along with a .22 cal handgun. K-9 officers ran a back track and discovered the ski masks worn by the suspects near the cell tower behind What-a-burger.
The suspects, arrested on charges of aggravated robbery, were 19-year-olds Jeremy and Trivon Joubert.


text:
WASHINGTON, D.C. (February 1, 2013) – Pharmaceutical Research and Manufacturers of America (PhRMA) Senior Vice President Matthew Bennett issued the following statement today:
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About PhRMA
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