bluuebunny/crossref_metadata_2025 huggingface dataset:
Arms
Authors: Nijhof Jarin
Published: July 2018

This chapter turns to the right to carry arms. The matter of whether foreign forces can carry weapons in the execution of their duties touches upon the core of State sovereignty. Governments have the monopoly of the legitimate use of physical force within their territory. On the other hand, the right to carry arms is essential to armed forces in order to successfully execute their mission. While the Receiving State can be deemed to have consented to such right when agreeing to a military force on its territory, matters such as the scope of the right to carry arms remain subject to agreement between the States. Force security aspects deserve some discussion as to the responsibilities of the Receiving State and Sending States. Also the legal limitations on the use of force require specific attention, as well as the rules of the Receiving State regarding the importation of arms.
Jurisdiction
Authors: Conderman Paul J , Sari Aurel
Published: July 2018

This chapter concerns the exercise of jurisdiction over Visiting Forces. Here, Sending States and Receiving States rely on competing jurisdictional principles, the territorial principle, and that of service jurisdiction, in order to claim the right to exercise their regulatory authority over Visiting Forces. Neither principle can be allowed to triumph over the other without denying a legitimate and vital interest of one of the parties. This is why agreements providing for the exercise of exclusive jurisdiction are rare. The vast majority of status-of-forces agreements (SOFAs) strike some balance between these competing principles and interests, influenced by the political, legal, and operational context of the deployment.
Deceased Members
Authors: Grenfell Katarina
Published: July 2018

This chapter deals with situations involving deceased members of a UN peacekeeping operation. Para. 50 of the UN Model SOFA, which continues to be included verbatim in recent mission-specific status-of-forces agreements (SOFAs), establishes the right of the UN to take charge of and dispose of the body of a member of the mission, should they while in service of the peacekeeping operation in the host country. The UN has established procedures as to how this is done in practical terms, including in respect of notifying the next of kin, conducting an investigation into the circumstances surrounding the death, administering benefits and entitlements to dependents as applicable, and ensuring official recognition of service. This provision has not been particularly controversial with Host States. Where questions have arisen they have related to accountability for attacks on UN peacekeepers and the need to collect and store evidence.
The ‘Joint Commission’ Liaison Mechanism
Authors: Timm Donald A
Published: July 2018

This chapter discusses a solution for coordination problems developed by the US in conjunction with the individual Sending States in whose territory the US has been invited to send its forces in peacetime. Although each individual case has its differences due to different sovereigns, different times of development, and different sizes or missions of the forces involved, there are nonetheless many conceptual similarities which transcend these differences and which may recommend themselves as a guide. The core similarity is the concept of a single overarching binational body charged with overseeing the implementation of the status-of-forces agreement (SOFA) and facilitating communication and cooperation between the cognizant authorities of the two sovereigns. This chapter discusses the general attributes of the ‘Joint Commission’ liaison mechanism in particular. It explains the purpose of the mechanism, its structure, its operation and authority, and the administration of the Joint Commission structure.
Supplemental Arrangements
Authors: Timm Donald A
Published: July 2018

This chapter addresses some of the various types of ‘separate’, or supplemental, arrangements that have been developed under the NATO SOFA. Since 1951, it has become practice among NATO Member States and its new partners to provide for any modifications and supplements of the conditions laid down in the NATO SOFA by legally binding agreements concluded by or on behalf of the participating States rather than by informal instruments. The chapter provides some examples of each and what they are designed to accomplish. In some instances the language which has been used in such agreements are also provided. For the most part, examples are drawn from agreements to which the US is a party, either under the NATO SOFA, other stand-alone status-of-forces agreements (SOFAs), or agreements based on other authority that can be used to implement or supplement the SOFA.
Termination
Authors: Burkhardt Frank
Published: July 2018

This chapter discusses the denunciation and termination of status-of-forces agreements (SOFAs). Art. 54 of the Vienna Convention on the Law of Treaties requires as a general prerequisite that all signatories of an international treaty have to be informed if one of the signatories wants to withdraw from the treaty. According to Art. XIX (2) NATO SOFA the US government as the Depositary has to be informed about the decision to withdraw and it shall notify such denunciation to all other Parties. According to Art. XIX (3) NATO SOFA the period until a denunciation takes effect is one year.
Applicability during Crisis or War
Authors: Fleck Dieter
Published: July 2018

This chapter considers the applicability of treaty law provisions in periods of crisis or war. Such an issue generally cannot be solved by reference to the treaty text itself. In fact, the UN Model SOFA does not address the issue, the general interest here is to conduct peace operations mandated by the Security Council in any event, making full use of relevant status-of-forces agreement (SOFA) provisions as far as possible even in times of tension. The NATO SOFA provides for a double track solution in Art. XV: in the event of ‘hostilities to which the North Atlantic Treaty applies’ NATO SOFA shall remain in force with one single exception related to claims settlement, but its provisions shall be reviewed immediately and they may even be suspended by giving sixty days' notice.
Rights and Obligations of Foreign National Red Cross and Red Crescent Societies
Authors: Spieker Heike
Published: July 2018

This chapter describes the origins of National Societies of the Red Cross or the Red Crescent before elaborating on their legal status as well as their mandates, roles, and tasks. Together with the International Committee of the Red Cross (ICRC) and the International Federation, National Red Cross and Red Crescent Societies form the three components of the International Red Cross and Red Crescent Movement. They have been endowed with a mandate by the international community which is at the same time considerably broad and distinct, entailing specific tasks, roles, rights, and obligations. The scope of their privileges and immunities is limited and largely determined by bilateral agreements between a deploying National Society/Movement component and the Receiving State. The chapter highlights the legal framework of National Societies’ international operations as well as specificities of their relationship with military bodies.
The Law of Stationing Forces in Germany
Authors: Fleck Dieter
Published: July 2018

This chapter describes the different phases of legal regulation of the stationing of visiting forces in Germany until today. World War II has led to the stationing of a large number of foreign forces, first as occupiers but soon as allies playing an active role in the maintenance of external security. When occupation was terminated in 1955, there were Soviet forces in the German Democratic Republic and forces from six permanent Sending States in the Federal Republic of Germany. In addition, in both German States further Allies, too, were hosted on a temporary basis. In this context, the chapter assesses both the right to stay in the country (jus ad praesentiam) and the status regulation (jus in praesentia).
Australia
Authors: Paterson Ian
Published: July 2018

This chapter discusses the law of set-off and netting in Australia as well as the key restrictions on the availability of set-off under Australian law. In Australia, set-off and netting arrangements are often used as a means of reducing operational and credit risk. In the context of reducing credit risk involving financial rights and obligations (for example, deposits and loans), set-off and netting arrangements depend on one or more of: contract, section 553C of the Corporations Act 2001, and the Payment Systems and Netting Act 1998 (Netting Act). The chapter first considers set-off between solvent parties and set-off against insolvent parties before explaining set-off under section 553C of the Corporations Act. It also examines issues that may arise in cross-border transactions under Australian law with respect to the availability of set-off in section D of the Corporations Act, with emphasis on the choice of law and set-off in insolvency.
Austria
Authors: Tiefenthaler Stefan
Published: July 2018

This chapter provides an overview of the law of set-off in Austria. The right of set-off in Austria is governed by general rules found in sections 1438–1443 of the Austrian Civil Code. The Austrian Insolvency Code also outlines restrictions on and extensions of the right of set-off and various modifications to the general rules. The chapter first considers set-off between solvent parties, focusing on contractual set-off, capital maintenance and other restrictions, set-off in the context of legal proceedings, and statutory set-off. It then explains set-off against insolvent parties by discussing the extension of the right of set-off in insolvency, restrictions on the right of set-off in insolvency, exceptions to the general rule on set-off, claims arising by reason of the opening of insolvency proceedings, set-off and prohibition of creditor preferences, and avoidance and fraudulent transfers. Finally, it examines issues arising in cross-border set-off.
Singapore
Authors: Chan Andrew
Published: July 2018

This chapter examines the law of set-off in Singapore. In Singapore, set-off may occur both within and outside of individual bankruptcy and insolvent winding-up of companies. There are four types of set-off under Singapore law: equitable set-off, procedural or legal set-off, contractual set-off, and combination set-off. The chapter first provides an overview of these four types of set-off, which fall outside bankruptcy or insolvent winding-up, before discussing set-off within bankruptcy or insolvent winding-up. In particular, it considers the basis and requirements of insolvency set-off, limits to insolvency set-off, and other insolvency regimes that affect set-off. It also analyses cross-border issues relating to applicable law on set-off as well as insolvency proceedings involving a foreign company.
Turkey
Authors: Başgöz Aslı , Akmenek Yalın , Durmaz Bora
Published: July 2018

This chapter examines the law of set-off in Turkey, both outside and within the context of bankruptcy. It considers the legal framework of set-off under Turkish law, along with its mechanisms, requirements, limitations, and consequences under the Turkish Code of Obligations, the Turkish Execution and Bankruptcy Law, and contractual arrangements. Under Turkish law, set-off does not provide for the actual performance of an obligation. Rather, it is a mechanism for extinguishing an obligation as if performed in exchange for a counterclaim. The chapter first considers the requirements for set-off between solvent parties, the consequences of set-off outside bankruptcy, and contractual set-off. It then discusses the legal framework for set-off against insolvent parties as well as the restrictions and objections to set-off. It also analyses conflict of laws issues arising in cross-border set-off.
A Guide to the SIAC Arbitration Rules
Authors: Choong John , Mangan Mark , Lingard Nicholas
Published: July 2018

This is the first book to provide a comprehensive rule-by-rule commentary of the inception, interpretation, and application of the Singapore International Arbitration Centre (SIAC) Rules. The book provides useful guidance for practitioners whilst also delivering commentary and thematic analysis to highlight the connections between the SIAC Rules and those of other institutions. It begins with an introduction to Singapore arbitration, both practical and legal, and is followed by an overview of SIAC arbitration, including the different stages of a typical case and the corporate structure of SIAC. Every rule is examined in detail on a thematic basis, starting with the commencement of an arbitration and working up to and including the rendering of an award and the determination of costs. This new edition has been fully updated to include the 2016 SIAC Rules, and also contains additional chapters on the new rules on multiple contracts, consolidation, and joinder, the early dismissal of claims and defences, and the SIAC Investment Arbitration Rules (2017). Relevant supporting documents are appended, including SIAC Practice Notes and the SIAC Code of Ethics for Arbitrators. The book is a comprehensive exposition of SIAC arbitration, and is indispensable for any practitioner involved in arbitration in Asia.
Legal Framework for Arbitration in Singapore
Authors: Choong John
Published: July 2018

This chapter addresses the legal framework for the conduct of arbitration and the enforcement of awards in Singapore. It begins with a look at the legislative framework for arbitration in Singapore, covering the history of arbitration regulation in Singapore, the scope of the Singapore International Arbitration Act, the Arbitration Act that regulates domestic arbitration in Singapore, and the International Centre for Settlement of Investment Disputes. It then considers the way in which Singapore courts lend their support to, and exercise supervisory powers over, arbitrations seated in Singapore. The chapter concludes with an analysis of the means by which awards can be challenged and enforced in Singapore.
SIAC Corporate Structure
Authors: Choong John
Published: July 2018

This chapter discusses the corporate structure of the Singapore International Arbitration Centre (SIAC). The SIAC administers arbitrations for which it is responsible by appointing arbitrators, managing the financial and practical aspects of cases, carrying out supervisory functions entrusted by the SIAC Rules, and scrutinizing and issuing awards. It performs these roles through the following organs: (a) the board of directors, which is under the supervision of a chairman; (b) the SIAC Court, which is led by a president; (c) the chief executive officer; and (d) the secretariat, which includes the registrar. In addition, the SIAC has three overseas liaison offices which do not administer cases but promote the SIAC as an arbitral institution.
Starting the Arbitration
Authors: Choong John
Published: July 2018

This chapter starts by considering which version of the Singapore International Arbitration Centre (SIAC) Rules should apply to an arbitration and the meaning of certain defined terms (Rule 1). The SIAC notice provisions (Rule 2) are addressed in Part B. The matters to be covered by a claimant in a notice of arbitration in order to start an arbitration (Rule 3) are then covered in Part C. Finally, the requirements for a valid response to a notice of arbitration (Rule 4) are explained in Part D. Unless otherwise stated, all references to the SIAC Rules are to the 2016 version of the rules.
Expedited Proceedings
Authors: Choong John
Published: July 2018

One of the criticisms against international arbitration is its occasional failure to live up to its potential for the expeditious resolution of disputes. Indeed, there is a tension at the core of modern international arbitration. On the one hand, parties seek speedy, cost-efficient, and final dispute resolution; while on the other hand, the absence of an appeal mechanism for arbitral awards generates a perceived need for exhaustive analysis of every fact and conceivable argument and for the retention of the ‘best’ (and therefore the busiest) lawyers and arbitrators, creating an attendant risk of ever-longer and more expensive arbitration proceedings. This chapter discusses the SIAC's rules designed to achieve expedition and cost-efficiency in all cases. These include Rule 5.1 on circumstances in which the expedited procedure may be appropriate, and Rule 5.2 covering the SIAC expedited procedure.
Multiple Contracts, Consolidation, Joinder, and Intervention
Authors: Choong John
Published: July 2018

This chapter discusses Singapore International Arbitration Centre (SIAC) Rules 6 to 8, which deal with complex questions that arise in arbitrations involving multiple contracts and multiple parties. Rule 6 deals with the commencement of arbitration involving multiple contracts. Rule 7 has significantly expanded upon the circumstances under which additional parties may be joined in an SIAC arbitration. An application for joinder may be made either to the SIAC Court, before the constitution of the tribunal (Rules 7.1 to 7.7), or to the tribunal, after it has been formed (Rules 7.8 to 7.11). Rule 8 deals with the consolidation of arbitrations. As in the case of an application for joinder, an application for consolidation may be filed before the tribunal has been constituted (Rules 8.1 to 8.6) or, in more limited terms, after constitution of the tribunal (Rules 8.7 to 8.10).
Formation and Challenge of the Arbitral Tribunal
Authors: Choong John
Published: July 2018

The ability of parties to influence the constitution of their arbitral tribunal is an important manifestation of party autonomy in international arbitration. This chapter first discusses the means by which parties can do so pursuant to Rules 9 to 13. Specifically, Rule 9 covers the number and appointment of arbitrators; Rule 10 provides a default procedure for the nomination and appointment of a sole arbitrator should the parties fail to agree on a candidate; Rule 11 discusses the appointment of arbitrators; Rule 12 covers the multi-party appointment of arbitrator(s); and Rule 13 deals with the qualifications of arbitrators. The chapter then considers the procedures for, and consequences of, a party challenging an appointed arbitrator under Rules 14 to 18.
The Conduct of Proceedings
Authors: Choong John
Published: July 2018

This chapter addresses the Singapore International Arbitration Centre (SIAC) Rules governing the conduct of proceedings in a SIAC arbitration. It begins by enumerating the general principles (Rule 19) in Part A, followed by specific rules governing: the parties' written submissions (Rule 20) in Part B; the choice of seat (Rule 21) and language (Rule 22) in parts C and D, respectively; the parties' representatives (Rule 23) in Part E; the conduct of hearings (Rule 34) in Part F; witness evidence (Rule 25) in Part G; and the use of tribunal-appointed experts (Rule 26) in Part H. Notably, while the SIAC Rules leave considerable scope for the parties to determine how their arbitration should be conducted, the SIAC Rules (and in particular Rules 19.1, 20.1, and 25.3) have been amended in recent years to make clear that the tribunal has full authority to conduct the arbitration as it considers appropriate.
Jurisdiction of the Tribunal
Authors: Choong John
Published: July 2018

This chapter discusses Singapore International Arbitration Centre (SIAC) Rule 28. Rule 28 achieves two things. First, it provides a means by which a party, typically a respondent, can submit an early challenge to the existence or validity of an arbitration agreement or the competence of SIAC, which will be determined by the SIAC Court on a prima facie basis. Second, Rule 28 confirms the power of a SIAC tribunal, once constituted, to rule definitively on its own jurisdiction — a power which rests on the twin principles of competence–competence and separability. The chapter also briefly explains the approach taken as a matter of Singapore law to the interpretation of arbitration agreements and the determination of whether a dispute is arbitrable.
Early Dismissal of Claims and Defences: (SIAC Rule 29)
Authors: Choong John
Published: July 2018

This chapter addresses one of the main changes in the 2016 Singapore International Arbitration Centre (SIAC) Rules: the introduction of Rule 29 on the early dismissal of claims and defences. The 2010 SIAC Arbitration Rules did not contain any equivalent provision. The chapter begins with an introduction to early dismissal mechanisms in arbitration generally, in Part A. It then addresses the scope of Rule 29 in Part B, followed by an examination of the procedural aspects of Rule 29 in Part C. Parts D and E examine the discretion of the tribunal in deciding whether to grant a Rule 29 application and the tribunal's decision at the conclusion of the Rule 29 proceedings, respectively.
The Powers of the Tribunal
Authors: Choong John
Published: July 2018

This chapter discusses some of the key powers of a Singapore International Arbitration Centre (SIAC) tribunal under Rules 27 and 31. The 2016 edition of the SIAC Rules makes clear for the first time in the history of SIAC that the tribunal's prescribed powers are subject to any agreement of the parties. But that does not mean the tribunal can only exercise its powers under Rule 27 upon an agreement of the parties or after being requested to do so by a party. A tribunal can exercise its powers under Rule 27 of its own motion (i.e. sua sponte). Under Rule 31, the tribunal has the power to determine the law applicable to the substance of a dispute (in the absence of the parties having agreed the applicable law) and to determine a dispute on equitable grounds (if authorized to do so by the parties).
Interim and Emergency Relief
Authors: Choong John
Published: July 2018

This chapter focuses on Singapore International Arbitration Centre (SIAC) Rule 30. Interim or emergency relief is aimed at preserving the status quo between parties pending the resolution of a dispute. A party to a SIAC arbitration has three options for obtaining interim relief during the course of an arbitration. Depending on the circumstances in which the relief is sought, a party can seek interim relief from: (a) the tribunal (Rule 30.1); (b) an emergency arbitrator (Rule 30.2 and Schedule 1); or (c) a court of competent jurisdiction (Rule 30.3). Each of these three options is discussed in turn.
SIAC Investment Rules
Authors: Choong John
Published: July 2018

In 2017, the Singapore International Arbitration Centre (SIAC) released separate rules for investment arbitration: the SIAC Investment Arbitration Rules (SIAC IA Rules). This chapter addresses the new SIAC IA Rules, which entered into force on 1 January 2017. It begins in Part A with an introduction to the SIAC IA Rules. Part B then examines the key provisions of the SIAC IA Rules in more detail. These include scope of application (Rule 1), constitution of the tribunal (Rules 5 to 9, 12, 13), third-party funding (Rules 24, 33 and 35), early dismissal of claims and defences (Rule 26), third party intervention (Rule 29), and confidentiality and transparency (Rules 37 and 38).
Mandate
Authors: Lichtenstein Natalie
Published: July 2018

Chapter 3, Mandate, discusses the provisions in the AIIB Charter that encapsulate AIIB’s mandate. These provisions address the overarching objectives that the Prospective Founding Members saw for AIIB. The Chapter explains the Preamble to the AIIB Charter, and compares it with other Charters. Then the separate clauses that govern AIIB’s legal purpose and AIIB’s functions are described, and also compared to the similar clauses for other multilateral development banks. Key elements are regional economic development, development finance, infrastructure investment, supplementing private finance and multilateral collaboration. AIIB’s cooperation arrangements with other international organizations are summarized. This Chapter concludes by enumerating the clauses in the AIIB Charter where the purpose and functions have particular legal significance, setting a framework for AIIB to evolve into new areas and functions.
Capital and Finance
Authors: Lichtenstein Natalie
Published: July 2018

Chapter 6, Capital and Finance, describes AIIB’s capital structure, and its financial resources and management. It begins by explaining the importance of the capital structure for multilateral development banks (MDBs) generally and the origins of this model. Because MDBs raise most of their funds for investment operations on international capital markets, there is heavy reliance on market perceptions of the MDB’s finances and investment operations, and on the commitments of members to provide callable capital. AIIB’s capital is divided into paid-in and callable capital shares, and the rules for capital increases and allocation of capital are outlined. The principles and legal provisions governing AIIB’s financial resources and management are highlighted. The Chapter concludes with the rules for trust funds and Special Funds provided by donors, and for AIIB to establish subsidiaries.
The Obligation to Extradite or Prosecute
Authors: Kittichaisaree Kriangsak
Published: July 2018

Prosecution of perpetrators of serious crimes of international concern before the permanent International Criminal Court, set up in 2002, has been few and far between. Hope thus rests with the implementation of the international legal obligation for States to either extradite such perpetrators to another State able and willing to prosecute them or prosecute the perpetrators themselves or surrender them to be prosecuted by a competent international court. This book is written by the Chairman of the UN International Law Commission's Working Group on the Obligation to Extradite or Prosecute (aut dedere aut judicare). The Commission submitted its Final Report on that topic to the UN General Assembly in 2014, leaving unanswered numerous important issues such as the customary international law status of the said obligation, immunities of State officials from foreign criminal jurisdiction, the exercise of universal jurisdiction, and competing rules of international law regarding the surrender of persons to a competent international court. This book is an authoritative guide to, as well as the unique drafting history of, the International Law Commission's Final Report. In addition, it provides a comprehensive analysis of the subject, including issues not settled by the Commission and proposing practical solutions to the daunting challenges facing international efforts to bring to account perpetrators of serious atrocities that shock humankind. It will be useful to States, law enforcement officers, prosecutors, judges, international lawyers, students of international law, and the civil society entrusted with human rights protection.
General Introduction
Authors: Kittichaisaree Kriangsak
Published: July 2018

This chapter introduces the legal concept of the international legal obligation to extradite or prosecute perpetrators of the most serious crimes of international concern, tracing its historical foundation, explaining the codification and progressive development work of the UN International Law Commission on the 1996 Draft Code of Crimes against the Peace and Security of Mankind that has bearings on the concept, and identifying the gap in the existing treaty regime on this obligation. It succinctly analyses the three intertwined alternatives of extradition, prosecution, both by domestic criminal tribunals, and the third alternative of surrendering the perpetrators of such crimes to international criminal tribunals for the purpose of their prosecution.
The International Law Commission’s Work on the Obligation to Extradite or Prosecute (aut dedere aut judicare)
Authors: Kittichaisaree Kriangsak
Published: July 2018

This chapter explains the work by the UN International Law Commission on the topic ‘Obligation to extradite or prosecute (aut dedere aut judicare)’ from 2006 to 2014, culminating in the Final Report of the Commission on this topic which was taken note of by the UN General Assembly in 2014. All the legal issues relevant to the obligation are identified and, where appropriate, analysed. The drafting history of the Report by the Working Group under the present author's chairmanship is elucidated in details — and this is the only place where this drafting history can be found.
Customary International Law Analysis
Authors: Kittichaisaree Kriangsak
Published: July 2018

This chapter explains the theory behind, and the key characteristics of, core crimes (such as genocide, crimes against humanity, and war crimes) proscribed by peremptory norms (jus cogens), from which derogation is not permitted, as well as the importance of their prosecution. State practice and its acceptance as law in support of the existence of the customary international law binding on all States to either extradite or prosecute perpetrators of core crimes are systematically elaborated pursuant to the established criteria for the identification of customary international law.
The Obligation to Extradite or Prosecute for Non-Core Crimes as Treaty Obligations
Authors: Kittichaisaree Kriangsak
Published: July 2018

The obligation to extradite or prosecute perpetrators of non-core crimes can be found in various treaties, outside customary international law. This chapter explains the operation of the various provisions on the obligation to extradite or prosecute under more than 60 treaties, addresses pertinent issues of international law pertaining to the implementation of these provisions; namely, double criminality ratione materiae and ratione temporis; the political offence exception; and the existence of humanitarian reasons to deny extradition.
Conclusions and the Way Forward
Authors: Kittichaisaree Kriangsak
Published: July 2018

The chapter describes international efforts to close the gaps in existing treaties on the obligation to extradite or prosecute. These include: (i) the joint initiative for the adoption of a new international instrument on mutual legal assistance and extradition for the effective investigation and prosecution of the most serious crimes of international concern, in particular, the crimes of genocide, crimes against humanity, and war crimes, by domestic jurisdictions; and (ii) the International Law Commission's work on a draft convention on Crimes against Humanity. The chapter also explores the issue of capacity building for the national judiciary and a regional judicial mechanism to help alleviate the burden of the International Criminal Court; national peace/reconciliation, international peace/stability, and other considerations against the implementation of the obligation to extradite or prosecute; the operation of transitional justice as an alternative to prosecution; and the implications of the atrocities in Syria for the future prospects of this obligation in the context of international criminal justice.
Self-Determination of Indigenous Peoples
Authors: Weller Marc
Published: July 2018

This chapter studies Articles 3, 4, 5, 18, 23, and 46(1) of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The debate about the right to self-determination for indigenous peoples, and its provisional conclusion through the adoption of the Declaration, represents a very significant step in the development of concepts of international legal personality. First, the change in terminology from ‘populations’ to ‘people’ marks the emergence of indigenous peoples as subjects, rather than objects of international law. Second, there was the possibility of drawing on existing international legal language in relation to a safeguard clause, which was eventually adopted in line with the General Assembly's vulnerable Friendly Relations resolution. Without the adoption of this clause, it is unlikely that the Declaration could have been adopted with a significant majority, if at all.
Indigenous Belonging
Authors: Imai Shin , Gunn Kathryn
Published: July 2018

This chapter discusses Articles 9, 33, 35, and 36, focusing on the relationships between the indigenous individual and the indigenous community, group or nation, the question of the right to select or deny membership, and of duties to the community. The recognition of indigenous peoples' right to determine their own membership is crucial for their ability to meaningfully exercise their right to self-determination. Thus, the provisions of Articles 9, 33, 35, and 36 reinforce the right of indigenous peoples to define themselves, both in terms of membership and geographic scope. During the drafting of the Declaration, representatives of indigenous peoples stressed the importance of self-identification. However, some States argued that the lack of a fixed definition would create a circularity whereby people who claimed to be indigenous would define indigeneity based on the criterion that they themselves defined. A similar problem arises when discussing membership in an indigenous group or community.
Indigenous Education and the UNDRIP
Authors: Graham Lorie M , Van Zyl-Chavarro Amy B
Published: July 2018

This chapter discusses the right to education in Article 14. Article 14 takes on a special meaning and purpose in terms of repairing, restoring, and strengthening indigenous communities and cultures through education. These aims are to be achieved through linkages with other basic rights, such as the rights of self-determination, non-discrimination, and cultural and linguistic integrity. For instance, Article 14 provides for the right of indigenous peoples to develop and control educational systems that are consistent with their linguistic and cultural methods of teaching and learning. It also articulates a more general right of non-discriminatory access to all levels and forms of education within the State, thereby ensuring that indigenous pupils are placed on an equal footing with non-indigenous pupils. Moreover, it ensures that any action that a State takes with respect to the education of indigenous individuals is done in partnership with indigenous communities.
Legal Implementation and International Cooperation and Assistance
Authors: van Genugten Willem , Lenzerini Federico
Published: July 2018

This chapter discusses Articles 37–42, considering legal implementation and international cooperation and assistance. Article 37 recognizes that treaties, agreements, and other constructive arrangements between States and indigenous populations reflect legally important entitlements that have to be honoured by applying the standards of modern treaty law, while taking into consideration the facts of cases at hand and later developments, and including the interests of other parties than the original ones. In addition, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) might be a declaration ‘only’, but it cannot be simply considered as ‘just another’ non-binding argument. Large parts of Articles 37–42 — particularly Article 37, relating to the right that treaties concluded with indigenous peoples are honoured and respected by States, and Article 40, proclaiming the right of indigenous communities to access to justice and to remedies — do have customary international law character, while other parts also reflect more than moral or political commitments ‘only’.
CMU and the Deepening of Financial Integration
Authors: Valiante Diego
Published: July 2018

The integration of capital markets in the EU is a long-term and complex task that is far from being completed. A comparative analysis with capital markets integration and development in the United States can offer insights on how the EU can develop its policy framework to achieve a single market for capital. This chapter begins with a brief review of the history of European financial integration policies since its inception in 1957. It then illustrates how capital markets can provide significant risk absorption against exogenous shocks. Finally, it presents a brief overview of the United States' economic history between 1860s and 1930s. Analogies can be found with the European financial integration process, as well as benchmarks to identify areas where European policies can do more to promote a Single Market for capital.
A Single Listing Authority and Securities Regulator for the CMU and the Future of ESMA
Authors: Avgouleas Emilios , Ferrarini Guido
Published: July 2018

This chapter proposes a system for EU centralization of scrutiny and approval of public offers of securities or of listing of companies mature enough to conduct an IPO or those that seek a listing following a secondary offer. It first discusses the European Securities and Markets Authority's unique presence in the EU regulatory edifice and the true ambit and interpretation of its powers. It then sets out the preferred architecture and ambit for a possible European Listing Authority and Capital Markets Union–Securities and Exchange Commission (CMU–SEC), and the advantages their establishment could bring to the CMU project. Next, it discusses the legality of a possible CMU–SEC and brings the different strands of the present analysis into a comprehensive solution.
Some Aspects of the Impact of Brexit in the Field of Financial Services
Authors: Wymeersch Eddy
Published: July 2018

Brexit will have a considerable impact on various segments of economic, social, and personal life. This chapter outlines a few aspects that are of particular importance for the financial services activity. One issue relates to the conditions for EU banks and investment firms to obtain access to each other markets. Today, firms from both sides enjoy passporting rights: they are entitled to establish themselves throughout the Union without any additional authorisation, remaining subject to their home regulation and supervision, the latter being largely harmonised. After Brexit, free access will not be the rule anymore: UK firms, products, and services will be governed by the ‘third country’ regime, calling for authorisations or additional requirements. The remainder of the chapter discusses the equivalence of third country regulations or standards, euro derivatives clearing, and Brexit and the European Banking Authority.
The Role of Financial Innovation in EU Market Integration and the Capital Markets Union
Authors: Avgouleas Emilios
Published: July 2018

This chapter offers a critical overview of the issues that the European Union 27 (EU-27) will face in the context of making proper use of financial innovation to further market integration and risk sharing in the internal financial market, both key objectives of the drive to build a Capital Markets Union. Among these is the paradigm shift signalled by a technological revolution in the realm of finance and payments, which combines advanced data analytics and cloud computing (so-called FinTech). The chapter begins with a critical analysis of financial innovation and FinTech. It then traces the EU market integration efforts and explains the restrictive path of recent developments. It considers FinTech's potential to aid EU market integration and debates the merits of regulation dealing with financial innovation in the context of building a capital markets union in EU-27.
Damages Actions by Investors on the Back of Market Disclosure Requirements
Authors: Davies Paul
Published: July 2018

EU rules requiring disclosures to the market by publicly traded companies have developed enormously since the first Listing Particulars Directive of 1980. However, even today they are hesitant about dealing with the subject of investor actions for damages for breaches of the rules. In relation to public offerings, periodic disclosures, and episodic disclosures, the current EU rules do not bring about harmonisation of national systems of damages liability in investor actions, but rather place almost exclusive emphasis on coordinated administrative action and sanctions. This chapter considers the question of how the liability rules should be shaped if they are to contribute most effectively to the achievement of the goals of the Union's disclosure rules. The discussions cover investor actions and the promotion of disclosure, investor litigation in the context of public offerings, and investor litigation in the context of continuing disclosures.
Institutional Investors and Development of Europe’s Capital Markets
Authors: Darvas Zsolt , Schoenmaker Dirk
Published: July 2018

This chapter investigates the role of institutional investment in developing capital markets. It also examines the role of institutional investment in risk sharing. The contribution of institutional investment to risk sharing depends on: the size of institutional investment; the degree of geographical diversification of portfolios, and the composition of assets (equities vs bonds) held. The chapter investigates these three aspects of financial integration in the EU's Capital Markets Union and assesses the prospects for increased risk sharing in the EU. The main hypothesis is that the larger the assets managed by institutional investors, the smaller the home bias and thereby the larger the scope for risk sharing, ceteris paribus. The analysis will focus on portfolio equity home bias.
Shareholder Activism in the CMU
Authors: Pacces Alessio M
Published: July 2018

Hedge fund activism is on the rise in Europe. Whereas hedge funds activism has been so far largely a U.S. phenomenon, there is survey evidence suggesting that hedge funds are looking for new targets. Europe is particularly attractive in this respect because the European jurisdictions support broader rights than those available to the shareholders of a typical Delaware-incorporated U.S. public company. Shareholder rights are an important part of the activist hedge fund's toolbox, although they must be understood in light of the activist's business model. This chapter discusses hedge fund activism as a major driver of institutional shareholders' engagement, particularly in Europe. It argues that the revision of the Shareholder Rights Directive (SRD) curbs rather than supports hedge funds activism, therefore casting some doubts as to whether the SRD will effectively foster engagement and investment by institutional shareholders.
Preventive Restructuring Frameworks
Authors: Veder Michael , Mennens Anne
Published: July 2018

On 22 November 2016, the European Commission launched a proposal for a restructuring and insolvency law directive. The Draft Directive marks a further step in the development of a European insolvency framework. The Draft Directive seeks to introduce into the laws of the Member States preventive restructuring frameworks that should enable debtors to restructure at an early stage, thereby avoiding insolvency. It contains provisions that promote a second chance or fresh start for honest entrepreneurs, as well as measures aimed at increasing the efficiency or restructuring, insolvency, and discharge proceedings. This chapter focuses on the preventive restructuring framework contemplated by the Draft Directive. Section 2 addresses the background to the Draft Directive. Section 3 we presents the justification for restructuring plans. Section IV analyzes the Commission's proposals for a preventive restructuring framework in more detail, and Section 5 contains some concluding observations.
Removing Cross-border Tax Barriers
Authors: Carpentieri Loredana , Micossi Stefano
Published: July 2018

To achieve a fully fledged capital market union, many legal and regulatory obstacles must be confronted and removed in order to harvest the full benefits of the freedom of capital movements. Amongst these obstacles, capital market investors and member states continue to single out withholding tax procedures as a long-standing and highly damaging barrier to cross-border investment. This chapter first analyzes the contents of the freedom of circulation of capital and the consequent prohibition of restrictions. It then considers tax derogations expressly envisaged to the free circulation of capital and the tax hurdles to cross-border investments, which mainly arise from withholding taxation of interest and dividend incomes and attendant procedures.
Can Creditor Bail-in Trigger Contagion? The Experience of an Emerging Market*
Authors: Havemann Roy
Published: July 2018

The successful bail-in of creditors in African Bank, a small South African monoline lender, provides an opportunity to evaluate the intended and unintended consequences of new resolution tools. Using a dataset that matches quarterly, daily, and financial-instrument level data, I show that the bail-in led to money-market funds “breaking the buck”, triggering significant redemptions and some financial contagion. To limit potential systemic effects, the authorities used complementary interventions, including imposing discretionary liquidity restrictions on mutual funds and market-making facilities for affected financial instruments. This supported a sustainable restructuring of the bank and reduced financial spillovers. The lesson is that future interventions using these new resolution tools should take into account the potential unintended systemic implications, particularly in smaller jurisdictions where there is a high degree of interconnectedness between bank and nonbank financial institutions.
The Pathologisation of Women Who Kill: Three Cases from Ireland
Authors: Black Lynsey
Published: July 2018

Women who kill are frequently subject to discourses of pathology. This article examines the cases of three women convicted of murder in Ireland following Independence in 1922 and explores how each woman was constructed as pathologised. Using archival materials, the article demonstrates that diagnoses were contingent and imbricated with notions of gender, morality, dangerousness, and class. For two of the women, their pathologisation led to them being certified as insane and admitted to the Central Criminal Lunatic Asylum. However, pathologisation could be mediated by respectable femininity. The article also explores the pathways which facilitated judgements of pathology, including the acceptance of a framework of degeneracy, or hereditary insanity, and examines how women could be redeemed from the diagnoses of ‘insanity’.
Creating GridlockED: A Serious Game for Teaching About Multipatient Environments
Authors: Tsoy Daniel , Sneath Paula , Rempel Josh , Huang Simon , Bodnariuc Nicole , Mercuri Mathew , Pardhan Alim , Chan Teresa M.
Published: July 2018

Problem

As patient volumes increase, it is becoming increasingly important to find novel ways to teach junior medical learners about the intricacies of managing multiple patients simultaneously and about working in a resource-limited environment.

Approach

Serious games (i.e., games not intended purely for fun) are a teaching modality that have been gaining momentum as teaching tools in medical education. From May 2016 to August 2017, the authors designed and tested a serious game, called GridlockED, to provide a focused educational experience for medical trainees to learn about multipatient care and patient flow. The game allows as many as six people to play it at once. Gameplay relies on the players working collaboratively (as simulated members of a medical team) to triage, treat, and disposition “patients” in a manner that simulates true emergency department operations. After researching serious games, the authors developed the game through an iterative design process. Next, the game underwent preliminary peer review by experienced gamers and practicing clinicians, whose feedback the authors used to adjust the game. Attending physicians, nurses, and residents have tested GridlockED for usability, fidelity, acceptability, and applicability.

Outcomes

On the basis of initial testing, clinicians suggest that this game will be useful and has fidelity for teaching patient-flow concepts.

Next Steps

Further play testing will be needed to fully examine learning opportunities for various populations of trainees and for various media. GridlockED may also serve as a model for developing other games to teach about processes in other environments or specialties.