Publications: Dispute resolution
The Myth of the General Invalidity of the Waiver of Future Right. Set-off in the Light of the Waiver of Future Right
Download:m-baykushev-a-georgiev-epi-august-2019-the-myth-of-the-general-invalidity-of-the-waiver-of-future-right-set-off-in-light-with-the-waiver-of-future-rights.pdf (PDF, 8.48 mb)
Subject:Dispute resolution
Published at:http://epi.bg/
Edition:Commercial and Contractual Law Digest, 2019, book 8, book 9
Abstract:
The problem of the validity of the waiver of a future right through a contractual clause has great practical importance. Bulgarian case law and legal theory are consistent in the view that the waiver of future right is void. This stance is problematic in the context of rapidly developing and complicated economic relations. If we rephrase the US Supreme Court Justice Mr Holmes: Тhis is a wrong interpretation that “no lapse of time or respectable array of opinion should make us hesitate to correct”. The law should be applied in a way that is appropriate for its time.
Bulgarian applicable substantive law does not contain a general rule stipulating that a waiver of future rights is invalid. The general legal provision which sets out the rules on invalidity of contracts does not in principle forbid the waiver of future rights (it doesn’t even mention it). However, Bulgarian law explicitly proclaims the freedom of contract as an important general principle.
It is true that there are several specific rules where, under specific circumstances, a waiver of a future right is considered invalid. Such provisions are found in various substantive and procedural regulations, such as the Civil Procedure Code, Obligations and Contracts Act, Labour Code, Consumer Protection Act, Ownership Act and others.
However, if the waiver of a future right was invalid as a general rule, why would we find so many explicit rules rendering the waiver invalid in specific cases? Indeed, there are also a number of situations where the law does treat the waiver of future rights as valid. It’s apparent that where the law explicitly states that a waiver of a future right is invalid, it’s just an example of an exception to the general rule – that a waiver of future rights is admissible.
The general invalidity of the waiver of a future right concept can easily be tested by applying a specific legal institute. If we take the set-off, in some cases the debtor may be interested in maintaining its receivable due to the fact that set-off may be less favourable to it (for example, if its receivable bears interest). Under the Bulgarian law, the set-off takes effect from the moment the set-off was possible. Thus, when a set-off statement is issued, the interest would be discharged. Therefore, the party whose receivable bears interest will benefit from introducing a contractual clause which disallows the right to set-off.
Many waiver of a future right clauses can be found in public-private partnership contracts (e.g. Article 31.1 of the Sofia Airport Concession Agreement). Such clauses are essential for the viability of the modern forms of public-private partnership.
In fact, the waiver of future rights is often at the heart of the contractual relationship between the parties and frequently is a part of the contractual consideration - the obligations that a party undertakes under a particular contract in order to induce the other party to the contract to undertake correlated obligations. This makes it clear that the thesis of the invalidity of the waiver of future rights does not take into account the economic needs and business purposes that underpin the contractual relations in the civil and commercial turnover.
*This article is in Bulgarian.
Arbitrability of Construction Contracts Entered into with Public Authorities: The Bulgarian Perspective
Subject:Dispute resolution
Published at:Wolters Kluwer, Construction Arbitration in Central and Eastern Europe
Data protection aspects of artificial intelligence in commercial arbitration
Download:martin-zahariev-data-protection-aspects-of-artificial-intelligence-in-commercial-arbitration-contemporary-strategies-and-innovations-in-the-knowledge-management-ed-4-2018.pdf (PDF, 2.58 mb)
Subject:Dispute resolution
Published at:Academic Publishing House "Za bukvite - O Pismeneh"
Edition:Contemporary Strategies and Innovations in The Knowledge Management, 4/2018
GDPR Issues in Commercial Arbitration and How to Mitigate Them
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Subject:Dispute resolution
Published at:Kluwer Arbitration Blog
The Revocation of the Contradiction with Public Policy as a Ground for Setting Aside Arbitral Awards under the International Commercial Arbitration Act is Unconstitutional
Download:m-baykushev-m-zahariev-the-revocation-of-contradiction-with-public-order-as-ground-for-setting-arbitral-awards-aside-is-unconstitutional-july-2016.pdf (PDF, 5.28 mb)
Subject:Dispute resolution
Published at:Commercial and Contract Law Magazine, Book 6/2018, Trud i Pravo
Edition:Commercial and Contract Law Magazine, Book 6/2018, Trud i Pravo
Correlation between setting aside and enforcing arbitral awards – a never-ending story
Download:martin-zahariev-arbitration-newsletter-february-2018.pdf (PDF, 77.81 kb)
Subject:Dispute resolution
Published at:IBA Arbitration Newsletter February 2018
Edition:IBA Arbitration Newsletter February 2018
European Guide to Debt Collection - Bulgaria
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Download:meritas-european-guide-to-debt-collection-2017.pdf (PDF, 2.73 mb)
Subject:Dispute resolution
Published at:www.meritas.org
Edition:European Guide to Debt Collection
Could Bulgaria Have Avoided Payment under the Arbitral Award for Belene Nuclear Power Plant?
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Download:belene-arbitration-case.pdf (PDF, 431.10 kb)
Subject:Dispute resolution
Published at:www.mediapool.bg
Edition:Mediapool
FIDIC Multi-Tier Dispute Resolution Clauses in the Light of Bulgarian Law
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Subject:Dispute resolution
Published at:http://arbitrationblog.kluwerarbitration.com
Edition:Kluwer Arbitration Blog
Guide to Litigation, Arbitration and Alternative Dispute Resolution in Europe and Middle East
Download:meritas-litigation-arbitration-alternative-dispute-resolution-eme-guide.pdf (PDF, 3.68 mb)
Subject:Dispute resolution
Published at:www.meritas.org
Edition:Europe and Middle East Litigation, Arbitration and Alternative Dispute Resolution
Advantages in Seeking Preliminary Security Measures Against a Debtor in Bulgaria
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Download:dpco-advantages-in-seeking-preliminary-security-measures-against-a-debtor-in-bulgaria-12-09-2016.pdf (PDF, 351.48 kb)
Subject:Dispute resolution
Published at:IBA Litigation Committee
Edition:IBA Litigation Committee Newsletter September 2016
Meritas Guide to Litigation, Arbitration and ADR
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Download:meritas-guide-to-litigation-arbitration-and-adr-2016.pdf (PDF, 3.68 mb)
Subject:Dispute resolution
Disputable Aspects Regarding the Seat of Arbitration under Bulgarian Law
Download:dpco-disputable-aspects-of-the-seat-of-the-arbitration.pdf (PDF, 490.34 kb)
Subject:Dispute resolution
Published at:Kluwer Arbitration Blog
Analysis Of Problems Related To The Admission Of The Security Measure "Distraints On Bank Accounts" By Consecutive Imposing Of Distraints
Download:dpco-distraints-on-bank-accounts.pdf (PDF, 335.63 kb)
Subject:Dispute resolution
Published at:Martindale-Hubbell®
The Scrutiny of an Award: The Bulgarian Arbitral Institutions’ Perspective
Download:scrutiny-of-the-award-the-bulgarian-arbitral-institutions-perspective-en.pdf (PDF, 318.00 kb)
Subject:Dispute resolution
Published at:Kluwer Arbitration Blog
Is it possible to have an Emergency Arbitrator in Bulgaria?
Download:is-it-possible-to-have-emergency-arbitrator-in-bulgaria-en.pdf (PDF, 298.66 kb)
Subject:Dispute resolution
Published at:Martindale-Hubbell®
Edition:Legal library
Non-Declaration Of Insolvency By The Manager Of A Trade Company As Grounds For Criminal Liability – Practical Problems
Download:article-crimes-against-creditors-bg.pdf (PDF, 313.88 kb)
Subject:Dispute resolution
Published at:“Labour and law“ Publishing house
The text is in Bulgarian.
Recent Legislative Amendments to Bankruptcy Legislation
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Subject:Dispute resolution
Published at:Eastern European Newsletter
Edition:June 2001
Reproduced with permission of the International Bar Association, London. © International Bar Association. This article was first published in Eastern European Newsletter, June 2001. For further information, please visit http://www.ibanet.org/publications/Publications_home.cfm
