Late Payment

The problems of cash flow in the construction industry is a common phenomenon. It happens anywhere and Malaysia is no exception. The main purpose of this research is to study the effectiveness of CIPAA by investigating whether it has eased the problems of cash flow in the construction industry. Since construction industry plays a pivotal role in national economic, its problems need to be rectified as soon as possible. CIPAA is enacted, thereby. However, whether CIPAA has served its purpose remains a question. This study intends to look into this question. A questionnaire survey was conducted to solicit the opinions or feedbacks from main contractors, consultant QS and subcontractors. 35 respondents took part in the survey. This study found that cash flow has become smoother since CIPAA is introduced. However, conditional payment and problem of timeliness in paying remain. Also, most of the construction industry players are satisfied with the duration of CIPAA. Furthermore, CIPAA is considered as a relatively affordable and speedy dispute resolution mechanism when compared to arbitration or litigation, given a rating of 4 out of 5, overall. Issues on breach of natural justice and jurisdiction problems of adjudicators are found to be the concern of the industry players. It is also learnt that the construction industry stakeholders think that it is fair to have adjudication reply with no further ground for respondent to response to that reply. The power to award adjudication cost given to adjudicator is seen as a deterrent towards CIPAA, especially to small and medium-sized company. Extension of coverage of CIPAA to oral and “partly oral, partly written” construction contracts and adjudication review are sought after.

Cryptocurrencies like Bitcoin may turn upside down not only the system of currencies but that of the international trade. One of the most intriguing questions is how a currency, like Bitcoin, intended to be used globally, can be inserted in the soundly elaborated system of the Vienna Convention on International Sales of Goods (CISG). The paper focuses on the following topics: the nature of Bitcoin, exchange rate fluctuation and hardship, and the determination of late payment interest.

"This paper deals with the notion of late payment set out in the Directive 2011/7/EU on combating late payment in commercial transactions, as well as with the legal consequences of late payment provided by the provisions of the Directive. The first aim of the paper is to determine the meaning of certain provisions of the Directive, through conceptual analysis and grammatical, systematic and teleological interpretation. The second aim is to assess the extent to which the Directive can achieve its operative objective: to provide creditors with instruments that will enable them to fully and effectively exercise their rights in cases of late payment. Analyzing the notion of late payment, it is determined that the directive provides for a subjective concept of late payment. The differences between the subjective and the objective concept of late payment are being discussed and the conclusion is drawn that the objective concept is more acceptable and favourable to creditors of monetary obligations. In light of the theoretical disputes about the function of interest for late payment, it is examined which function the interest for late payment has in the context of the provisions of the Directive. Since the latter also introduced a special compensation for recovery costs, attempt is made to determine its function as well. As a matter of practical importance, the defects of the regulation of late payment set forth in the Directive 2011/7/EU are identified, accompanied with the proposals for more efficient solutions de lege ferenda.

Key words: late payment, interest for late payment, compensation for recovery costs, Directive 2000/35/EC, Directive 2011/7/EU."

This article analyses recent and pending cases at the Court of Justice concerning the interpretation of the provisions of the Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions. So far the Court of Justice had issued only one judgment in which it had interpreted the provisions of the Directive 2011/7/EU, the judgment in the case Federconsorzi in which the referring court was concerned with the issues of the scope of application of Directive 2011/7/EU rationae materiae and rationae temporis. There are three more pending cases at the Court of Justice in which the referring courts asked for interpretation of the various provisions of Directive 2011/7/EU. This article reviews the judgment of the Court of Justice in Federconsorzi, and also discusses and offers answers to the questions raised by the referring courts in the still pending cases.

The paper presents the provisions of Directive 2011/7/EU on combating late payment in commercial transactions by virtue of which the EU Member States are obliged to limit the contractual freedom in contracts between undertakings. The Directive’s rules on the contractual payment period of 60 calendar days and on the exceptionally longer contractual payment period, as well as on payment schedules providing for instalments, are also analysed. The author argues the position that, if the payment period is not fixed in the contract but the contract stipulates that the determination of the payment period is left to the will of one of the contracting parties, then such unilaterally decided payment period should be considered as the payment period fixed in the contract in the sense of the provisions of Directive 2011/7/EU. The same solution should be applied when the payment period is determined through commercial customs or practice established between undertakings. As one of the possible improvements of the legal regime established by the Directive, the author proposes a restriction of the contractual freedom of undertakings regarding the stipulation of the date of commencement of contractual payment period in order to prevent potential abuse of freedom of contract.

This paper examines the relatively new cause of action afforded to policyholders under s.13A of the Insurance Act 2015 - a claim for ‘Late Payment’ - against the backdrop of business interruption claims in relation to the COVID-19 pandemic and an Insurer's broader duty of good faith. This paper pre-dates the FCA test case decision in FCA v Arch and Others [2020] EWHC 2448 (Comm) (and its subsequent Supreme Court decision [2021] UKSC 1).

This paper deals with the provisions of the Directive 2011/7/EU on combating late payment in commercial transactions which regulate the statutory periods of performance of monetary obligations in commercial transactions that should be applied if the payment period is not agreed by the parties in the contract. Given that there are disputes in the legal doctrine regarding the question whether or not does Directive 2011/7/EU, as well as the earlier Directive 2000/35/EC, regulate statutory periods of performance of primary monetary obligations in commercial transactions, the paper first and foremost addresses this controversial issue. After the conclusion that the teleological interpretation requires that the provisions of both directives are interpreted in a manner that European Union Member States are obliged to set forth in their national laws the statutory periods of performance of primary monetary obligations in commercial transactions, the provisions of the directive on statutory periods of performance of monetary obligations are being analysed in the paper. The aim of the paper is to determine whether an adequate level of creditor protection from negative effects of late payment is achieved through the provisions of the directive. The paper highlights the deficiencies of the existent legal regime and provides for more satisfactory legal solutions de lege ferenda. The provisions of the Directive 2011/7/EU are examined in comparison to the provisions of the earlier Directive 2000/35/EC and in comparison to the provisions of the proposed regulation for a Common European Sales Law which were partially prepared on the basis of the provisions of the Directive 2011/7/EU.

Key-words: statutory periods of performance of monetary obligations, statutory payment periods, Directive 2000/35/EC, Directive 2011/7/EU

This paper identifies and analyses the causes of late payments, as well as the negative effects of late payments that led the EU institutions to counter this problem through the provisions of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions. The legal basis of the Directive is 2011/7/EU is being examined. Author delivers arguments on invalidity of the directive on the basis of the possible lack of competence of the EU institutions. Finally, the objectives of the Directive 2011/7/EU are defined, while they are issues of practical importance for the transposition of the directive into national law.

Key-words: late payments, Directive 2011/7/EU, Directive 2000/35/EC, objectives of directive, transposition of directive

Objective – Trade credit is the most important source of external finance for many companies. It appears on every balance sheet and represents more than 50 percent of company's short-term liabilities and a third of all company's total liabilities in OECD countries. Late payment of invoices may suffer firm's solvency. The European economies are now putting the years of financial turmoil and debt crisis behind them and several macroeconomic indicators are pointing towards a brighter future. The aim of this paper is to assess creditworthiness of companies. Methodology/Technique – Assessment of client creditworthiness carried out using predictive methods based on multivariate discriminant analysis Findings – The situation in the enterprise can be characterized as stable. An enterprise that chooses this client to provide it a trade credit should also consider supplementing the predictive models by complex financial and economic analysis and review of available. If the firm provides trade credit to more clients, it is necessary to consider that the terms of trade credits may not be the same for everyone but also it is not in the power of company to approach to each client individually. Novelty – The study suggests that client groups can be created by using cluster analysis. Thus, the company may increase efficiency in the provision of trade credit.

The subject of the paper is the legal regime of default interest contained in the Law on the Financial Operations and Pre-Bankruptcy Settlement (ZFPPN) which is in force since June 2013 alongside with the general legal regime of default interest provided for in the Law on Obligations (ZOO). Provisions of the ZFPPN are analyzed in comparison with the provisions of ZOO and the scope of application of the provisions of ZFPPN is being determined as the relations which fall under the general legal regime of ZOO are separated from those which fall under the application of the special legal regime set forth in the ZFPPN as lex specialis. One objective of the paper is to determine which of the competing legal regimes of default interest is more favourable to the creditors of monetary obligations. Second objective of the paper is to evaluate whether the provisions of ZFPPN are in conformity with the requirements set out in the Directive 2011/7/EU on Combating Late Payment in Commercial Transactions, for the purposes of whose transposition the new provisions on default interest contained in the ZFPPN were adopted. The shortcomings of the legal regime of the ZFPPN are pointed out while proposals for the more adequate legal solutions de lege ferenda are being given. It is concluded that the legal regime of default interest under the provisions of the ZFPPN undermines legal certainty, circumvents the protection of creditors and causes doubts of the constitutional nature, while in addition its particular features are contrary to the Directive 2011/7/EU.

Trenutak ispunjenja novčane obveze uređen je u hrvatskom pravu različito u ovisnosti od sredstva i načina kojim se ispunjava novčana obveza. U ovome radu analiziraju se odgovarajuće odredbe Zakona o obveznim odnosima o ispunjenju novčane obveze plaćanjem putem banke te o zakašnjenju dužnika s takvim ispunjenjem novčane obveze. Uz osvrt na domaću sudsku praksu, ocjenjuje se i usklađenost rješenja Zakona o obveznim odnosima sa zahtjevima Direktive 2000/35/EC Europskog parlamenta i Vijeća od dana 29. lipnja 2000. godine o suzbijanju zakašnjenja u plaćanju u trgovačkim ugovorima, te s tumačenjem odgovarajućih odredbi navedene direktive danim u praksi Suda pravde Europske Unije, posebno u predmetu C-306/06.

Key-words: late payment, payment, payments by bank transfer, period of execution of payment transactions, Directive 2000/35/EC

The term commercial transactions used by European Union directive on combating late payments in its title and its specific provisions is usually translated in Croatian legal literature as commercial transactions (“transakcije”), commercial acts (“poslovi”) and commercial contracts (“ugovori”), although these translations should not be considered as synonyms. The comprehension of the term commercial transactions is necessary for a complete apprehension of the Directive’s provisions and its scope. It is also a necessary starting point before assessing the conformity of the national legislation with the requirements of the Directive. Therefore, the primary objective of this paper is to determine the meaning of the term commercial transactions. After an analysis of the Directive's provisions and their interpretation in a systematic, teleological and grammatical manner, it is concluded that the Directive uses the term transactions with a meaning of the term contracts. Consequently, it is determined that the most appropriate translation of the term commercial transactions to Croatian language is the translation with the term “commercial contracts” (“trgovački ugovori”). For that reason the differences in the meaning of term “commercial contracts” in Croatian law and in Directive are being examined and described. This analysis leads to the conclusion that the meaning of the term “commercial contract” as used in the Directive should not be identified with the meaning of the same term in Croatian law. Finally, it is determined in the paper to which categories and types of “commercial contracts” is Directive to be applied.

Key-words: transactions, commercial transactions, commercial contracts, Directive 2011/7/EU, Directive 2000/35/EC