bluuebunny/crossref_metadata_2025 huggingface dataset:
The UNCITRAL Model Law on Cross-Border Insolvency
Authors: Olivares-Caminal Rodrigo , Douglas John , Guynn Randall , Kornberg Alan , Paterson Sarah , Singh Dalvinder
Published: June 2017

This chapter begins by introducing the Model Law on Cross-Border Insolvency (‘the Model Law’), which was adopted by the UN Commission on International Trade Law (UNCITRAL) in May 1997 and approved formally in December. Its purpose originally was to provide a template for use by countries seeking to put into place a cross-border insolvency regime, or strengthen one already in existence. This chapter looks at how the US and UK, despite seemingly seeking to adopt the same Model Law, in reality have very different conceptions of how it is to work in practice. The chapter starts with a brief examination of the objectives and scope of the Model Law, before analysing in more detail key aspects of the US and English versions and the reasons why there appears to be a growing divergence in the way in which the Model Law is applied in practice.
Legal Aspects of Banking Regulation in the UK and US
Authors: Olivares-Caminal Rodrigo , Douglas John , Guynn Randall , Kornberg Alan , Paterson Sarah , Singh Dalvinder
Published: June 2017

The chapter starts by describing what the banking industry does and how it is regulated and managed. The susceptibility of banks to collapse or failure is the result of the ‘maturity mismatch’ between their borrowing and lending. The fallout from failure can have very wide systematic consequences, and efficient regulation is vital. This chapter sets out the principal features of the UK and US bank regulation. First, the UK proposals for reform and key features of the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) supervisory regime are outlined. Secondly, the US federal bank regulatory system and the impact of the Dodd-Frank Wall Street Reform and Consumer Act 2010, as well as the impact of the Act on areas of the regulatory and supervisory regime are described. The chapter examines how significant reform has improved the safety and soundness of banking and brought supervisory measures to the fore.
Banks in Distress
Authors: Olivares-Caminal Rodrigo , Douglas John , Guynn Randall , Kornberg Alan , Paterson Sarah , Singh Dalvinder
Published: June 2017

This chapter looks at the background of the Banking Act 2009 and various other reforms in the UK. While the Banking Act 2009 was originally introduced to deal with banks in distress it has been significantly modified to apply to a range of UK institutions such as building societies, investment firms, and central counterparties and banking groups. The 2009 Act provides the ‘appropriate regulator’, and the Bank of England as resolution authority provides the tools to deal with a UK institution that is experiencing financial difficulties. The chapter also looks at the recovery and resolution plans that are now an integral part of the decision-making process for the authorities as they decide how best to prepare an institution in advance of crisis.
Banking Act Restructuring and Insolvency Procedures
Authors: Olivares-Caminal Rodrigo , Douglas John , Guynn Randall , Kornberg Alan , Paterson Sarah , Singh Dalvinder
Published: June 2017

This chapter starts by introducing the Insolvency Act 1986 and the Insolvency Rules 1986. It argues that for the most part they work effectively in the rescue or liquidation of companies. Special insolvency regimes have been put in place for a number of important industries in order to meet the situation where the application of the normal corporate insolvency law to a monopoly company causes essential services to be interrupted. The area governing both banks and investment firms has undergone more recent reforms with the introduction of the Financial Services Act 2012, the Financial Services (Banking Reform) Act 2013, and with the move to implement the Bank Recovery and Resolution Directive. Specific measures concerning the broader special administration and insolvency arrangements are addressed, looking at the treatment of depositors and client assets and explaining the priority accorded to them during the administration and insolvency procedure.
European Bank Resolution Regime
Authors: Olivares-Caminal Rodrigo , Douglas John , Guynn Randall , Kornberg Alan , Paterson Sarah , Singh Dalvinder
Published: June 2017

This chapter considers the response to the European banking and sovereign debt crisis, which resulted in the introduction of the Bank Recovery and Resolution Directive (BRRD). It also considers the Single Supervisory Mechanism (SSM) and a Single Resolution Mechanism (SRM) which will be implemented to facilitate the supervision and resolution of certain financial institutions in the Eurozone. The chapter looks at the consequences of these reform measures and explains the salient features of the new framework of supervisory and resolution intervention. It also looks separately at the EBA technical standards and guidance where necessary to assist the interpretation of the provisions in the directive.
Banking Regulation
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 2 deals with the prudential and supervisory regulation of banking activities.
Loan Facilities
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 3 examines loan facilities.
Sovereign Immunity, International Organisations, and State Insolvency
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 7 is concerned with disputes involving foreign States and international organizations.
Syndicated Lending
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 9 is concerned with syndicated lending.
Bond Issues
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 10 discusses bond issues.
Guarantees
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 16 concerns guarantees.
The Reform of the English Law of Secured Transactions
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 17 relates to the case for reform of secured transactions under English law.
National Report for Australia
Authors: Symes Christopher
Published: June 2017

This chapter discusses the law on creditor claims in Australia. For corporate insolvency and corporate rescue, creditor claims are dealt with by the Corporations Act 2001 (Cth), predominantly in ss 553 to 554J and 555 to 564. For personal bankruptcy, creditor claims are covered by the Bankruptcy Act 1966 (Cth), sections 82 to 104. Australian law traditionally does not distinguish between foreign claims and local claims, nor does it treat the rights of foreign creditors any differently from those of local creditors. The remainder of the chapter presents sections that deal with insolvency claims, administration claims, and non-enforceable claims, arising from bankruptcy, liquidation, and voluntary administration. Each section covers: the definition and scope of the claim; rules for submission, verification, and admission or satisfaction of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for Canada
Authors: Patrick Shea E
Published: June 2017

This chapter discusses the law on creditor claims in Canada. The general approach is that all claims to which the debtor is subject when the reorganization or liquidation commences should be ‘brought into’ the proceeding, and creditors should receive a distribution based on their relative entitlement vis-à-vis the debtor. While the treatment of claims is generally consistent among the various insolvency proceedings, the proceedings are not identical, particularly regarding the priority of claims and procedures for establishing them. For example, the Bankruptcy and Insolvency Act provides a statutory claims procedure for both liquidations (bankruptcies) and reorganizations (proposals), but that procedure is not applicable in reorganization proceedings under the Companies’ Creditors Arrangement Act (CCAA) or in the distribution of the proceeds realized by a receiver. In reorganization proceedings under the CCAA, and where a receiver is appointed, the court determines the procedure to establish claims. The chapter then deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for the People’s Republic of China
Authors: Weiguo Wang
Published: June 2017

This chapter discusses the law on creditor claims in China. The rights and interests of creditors are protected by the 2006 Enterprise Bankruptcy Law (EBL). The term ‘insolvency claims’ is not officially used to refer to the claims against the insolvent debtor which are eligible for insolvency proceedings. In the text of the EBL, they are simply referred to as ‘claims’ (ie, creditors’ rights or obligatory rights). Only when bankruptcy liquidation proceedings start following the court’s ruling of bankruptcy declaration do the claims become known as ‘bankruptcy claims’. The rest of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section is concerned with: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for England
Authors: Anderson Hamish , Cooke Charlotte , Gullifer Louise
Published: June 2017

This chapter discusses the law on creditor claims in England. The English courts have recently considered the ranking and priority of creditors on a number of occasions. The differing classes of claims found in the judgment of Lord Neuberger PSC in Re Nortel GmbH best explain how the distinction between ‘insolvency claims’, ‘administration claims’, and ‘non-enforceable claims’ is reflected in the applicable English rules. With the exception of expenses and shareholders’ claims, all the claims listed by Lord Neuberger are ‘insolvency claims’ because they are all creditors’ claims which are referable to pre-proceeding obligations. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section describes: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for Germany
Authors: Paulus Christoph G , Berberich Matthias
Published: June 2017

This chapter discusses the law on creditor claims in Germany. German insolvency law distinguishes between several types of creditors in insolvency proceedings and treats them differently with regard to priority of claims, enforcement, modes of realization, and costs. The doctrinal approach of the German Insolvency Code is not so much a categorization of claims, but rather it takes a view on the creditors. German insolvency law draws a rough distinction between four creditor groups: secured creditors; general insolvency creditors; subordinated creditors; and administration creditors. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for the Netherlands
Authors: Faber Dennis , Vermunt Niels
Published: June 2017

This chapter discusses the law on creditor claims in the Netherlands. It deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings. In essence, holders of insolvency claims (‘insolvency creditors’) are entitled to the liquidation proceeds of the debtor’s insolvency estate after the full discharge of the administration claims. Insolvency creditors (except secured creditors) can only pursue payment by submitting their claims for admission in the proceedings. Administration claims have to be satisfied in priority to insolvency claims and need not be submitted in the claims verification procedure. Holders of such claims (‘administration creditors’) can take recourse against assets comprised in the insolvency estate. Holders of non-enforceable claims can only seek recourse after the insolvency proceedings are terminated (provided that the debtor continues to exist).
National Report for Poland
Authors: Porzycki Marek , Rachwał Anna
Published: June 2017

This chapter discusses the law on creditor claims in Poland, where a comprehensive insolvency law reform is ongoing. In May 2015, Parliament adopted the final text of the Restructuring Law (RL). Due to enter into force on 1 January 2016, it will cover four restructuring proceedings: arrangement approval; fast arrangement; arrangement; and reorganization. Their common aim will be rescuing the debtor’s enterprise via an arrangement adopted by a majority of creditors. They will apply in case of both threatened and actual insolvency, and replace the current reorganization bankruptcy and rarely used rehabilitation proceedings. The existing Bankruptcy and Rehabilitation Law will have its provisions on reorganization bankruptcy and rehabilitation proceedings repealed, and be renamed ‘Bankruptcy Law’. The chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for South Africa
Authors: van der Linde Kathleen , Calitz Juanitta
Published: June 2017

This chapter discusses the law on creditor claims in South Africa, where bankruptcy proceedings in are governed by the Insolvency Act and the 1973 Companies Act, while reorganization in business rescue proceedings is regulated under the 2008 Companies Act. Liquidation and business rescue each has its own approach to the submission, verification, and admission of claims; the scope of creditor participation; the calculation of voting rights; the realization of secured assets; and the range of preferential creditors. So it is unsurprising that creditors may prefer one procedure over the other irrespective of the debtor’s financial prospects. South African law does not provide for super-priority claims. In both bankruptcy and reorganization proceedings, administration expenses always rank first. The chapter examines insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for the Republic of Korea (South Korea)
Authors: Oh Soogeun , Kim Kyungjin
Published: June 2017

This chapter discusses the law on creditor claims in South Korea. Under South Korea’s Debtor Rehabilitation and Bankruptcy Act (DRBA), insolvency claims are classified into secured, unsecured, and administration claims. Unsecured claims are divided according to their level of priority. As administration claims can be paid on maturity without being impaired in the insolvency proceedings, a principal concern is determining whether or not a certain claim is an administration claim. The 2009 amendment to the DRBA gave new loans borrowed under the court’s permission a kind of priority to be paid before other common benefit claims in cases where a company’s property is insufficient to pay all common benefit claims. The chapter then deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for Spain
Authors: Tirado Ignacio
Published: June 2017

This chapter discusses the law on creditor claims in Spain. Spain’s current insolvency regulatory regime resulted from the reorganization and modernization that took place with the passing of the 2003 Insolvency Law (Ley Concursal). The ranking of claims under the Insolvency Law coexists with a ranking of claims for execution in individual proceedings, regulated in the Civil Code. The Spanish system has been generally respectful of the pre-insolvency entitlements of secured creditors; provides priority for post-commencement financing; and includes different tiers of priorities for certain categories of creditors. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
Weapons and the Law of Armed Conflict
Authors: Boothby William H
Published: June 2017

This book brings the legal rules governing the use of weapons in armed conflict together into a single volume and interprets and applies those principles and rules to particular weapons technologies. It is the essential reference book for anyone dealing or concerned with the international law applying to weaponry. After relating the historical evolution of weapons law, identifying its sources and discussing the important customary principles that are the foundation of the subject, the book explains to the reader in a logical sequence of chapters how treaty and customary rules apply to particular categories of weapon or to relevant technologies, both traditional and novel. Having explained to the reader how the existing law applies across the full range of weapons technologies, the book discusses how this dynamic field of international law may be expected to develop in the years ahead. This new edition tackles challenging weapons law issues such as the new treaty law on expanding bullets and on the arms trade, novel technologies in the fields of chemistry and biology, the topical controversies associated with autonomous and automated weapon systems, and how law applies to weapons in outer space and to cyber weapons. The law applicable in non-international armed conflicts is summarized; compliance and weapon reviews are carefully explained; and recent international and national military manuals, and other developments in the wider literature, are thoroughly reflected throughout the text.
Components of the International Law of Weaponry
Authors: Boothby William H
Published: June 2017

This chapter considers the sources of the law of weaponry and discusses matters critical to understanding it. Taking the traditional approach, in addition to general principles of law recognized by nations, the sources of the law consist of customary law and of treaty law, the latter referred to as ‘conventional law’. The chapter looks at customary law, which is, according to Article 38(1)(b) of the Statute of the International Court of Justice (ICJ), the law applied by the court as including ‘international custom, as evidence of a general practice accepted as law’. The chapter discusses what does, and respectively does not, comprise state practice and then looks at treaties, how they are made and interpreted, how states explain their understandings of them and related matters. Individual sections then address the status at law of the ICRC Study of Customary International Humanitarian Law and of the UN Secretary General’s Bulletin.
Customary Principles—Superfluous Injury and Unnecessary Suffering
Authors: Boothby William H
Published: June 2017

This chapter explains in detail the first core principle of the law of weaponry, namely the superfluous injury and unnecessary suffering principle. This customary principle binds all states and protects combatants and others taking a direct part in the hostilities. The evolution of the notion from somewhat under-developed notions expressed in a treaty text in 1868 to its most recent treaty articulation in 1977 is traced. As the Chapter explains, suffering is the normal and inevitable consequence of the use of weapons. It is the aggravation of that suffering, without corresponding military utility, that would exceed the legitimate object to be accomplished by a State in a war, and that would as a result breach the principle. The problem with the practical application of a principle that seems to require comparison of two such incomparable notions as injury and suffering on the one hand and military utility on the other is addressed. Practical guidance is given as to how the principle should be applied, both by those whose task it is to undertake weapon reviews and more generally.
Poison, Poisoned Weapons, Asphyxiating Gases, Biological and Chemical Weapons
Authors: Boothby William H
Published: June 2017

Chapter 9 looks at a group of weapon technologies. The long-standing and customary prohibition of the use of poisons and of poisoned weapons is examined first. Then the discussion addresses efforts in 1899 to address the use of asphyxiating gases, pointing out that a prohibition on use was only achieved in 1925 with the adoption of the Geneva Protocol. While that protocol also addressed bacteriological methods of warfare, comprehensive arms control provision prohibiting all forms of biological weapon had to await the adoption in 1972 of the Biological Weapons Convention, whereas similar provision in relation to chemical weapons was not achieved until 1993. Both of these conventions are considered, and the status of the prohibition on use, and of related provisions, in both treaties is analysed. Novel technologies including incapacitating chemical agents, synthetic biology and the use of viruses are also considered.
Firearms, Bullets, and Analogous Projectiles
Authors: Boothby William H
Published: June 2017

Chapter 10 starts by discussing how weapons law rules apply to firearms. The discussion then addresses bullets, starting with exploding bullets and looking both at the St Petersburg Declaration and at the rule as set forth in the UK Manual. The 1899 prohibition of bullets that expand or flatten easily in the human body is explained and the implications of the relevant amendment to the Rome Statute for the legitimacy of using such ammunition in non-international armed conflicts is considered. The terms of corresponding customary law rules are considered carefully, and the implications of the rules for ammunition testing processes are outlined. Finally, the importance of avoiding application of targeting rules by misleading analogies is stressed.
Mines, Booby-Traps, and Other Devices
Authors: Boothby William H
Published: June 2017

Developments in treaty law starting in 1980 have produced a complex selection of treaties and a Declaration all addressing mines, booby-traps and other devices. Chapter 11 takes each of these instruments in turn explaining the relevant provisions and thereby seeks to demonstrate how the legally complex array of rules inter-relates. The discussion shows how rules in this area have developed from what were essentially reflections of contemporary doctrine in the 1980 Protocol II to more definitive and technologically-based requirements in the Amended Protocol, thereafter culminating in the comprehensive ban of anti-personnel mines in the Ottawa Convention. The legal status of the 2006 CCW Declaration on Mines other than Anti-personnel Mines is also considered.
Applying Weapons Law to Particular Weapon Systems
Authors: Boothby William H
Published: June 2017

Chapter 14 discusses specific weapon technologies and types of munition that merit individual consideration. This may be because of concerns that have been expressed as to their characteristics, because the technologies themselves require, or appear to some to require, particular legal care, or because they are emerging technologies which raise interesting and/or novel legal issues. The purpose of this consideration is to show how weapons law should be applied to each such technology, with the ultimate aim of assisting weapon reviewers in their difficult task. The chapter addresses missiles, bombs, and artillery, blast weapons, directed energy weapons, herbicides, flechettes, depleted uranium, white phosphorus, non-lethal weapons, cyber weapons, autonomous weapons, counter-IED weapons, nanotechnology, and metamaterials.
Cluster Munitions
Authors: Boothby William H
Published: June 2017

This chapter explains the grave humanitarian concerns that cluster munitions have aroused and traces the processes that culminated in legal action taken to address this concern. Cluster munitions are the subject of the most recent arms control treaty, the Cluster Munitions Convention (CMC) adopted in Dublin on 30 May 2008. The process that led to the adoption of this Convention and the parallel and ultimately fruitless discussions of the same topic under the auspices of the CCW provides an important case study that illustrates how modern weapons law is, in practice, made. The complex CMC definition of cluster munitions is explained, the core obligations provided for in the treaty are related and the important provisions of article 21 dealing with interoperability issues are examined.
Non-International Armed Conflict
Authors: Boothby William H
Published: June 2017

This chapter considers how the law of weaponry applies to Non-International Armed Conflict (NIAC). Some object to the idea that a State can bind the rebels as to the law that is to be applied in a NIAC. These objections are considered. Of course, arms control treaties with their comprehensive, all-embracing prohibitions apply equally in both classes of conflict. The CCW’s scope has been extended for participating States and customary law applies, occasionally unequally, to both IACs and NIACs. Nevertheless, important differences remain and this chapter explores these differences, and notes the tendency for the law applying to IACs and NIACs to converge. The chapter then addresses what would need to change to achieve total convergence.
The Historical Evolution of the International Cooperation against Transnational Organised Crime
Authors: Madsen Frank G
Published: June 2017

This chapter surveys the development of international criminal police cooperation and notes that originally most crimes now prohibited internationally were sponsored or tacitly allowed by governments. I postulate, using World Society Theory, that developing cooperation is part of global crime governance. In law enforcement cooperation ‘rationalization’ (a core concept of this theory) takes the form of policing technology. Interpol is the only global criminal-police cooperative organisation and, in developing this structure, police professionalism played a more decisive role than political or legal guidance. The chapter looks at three rarely highlighted themes of transnational organised crime (TOC): the relationship between the financial markets and TOC, organ transplants, and environmental or ‘green’ crime, as well as two procedural issues, random data collection and cryptography. The chapter ends by warning about two TOC areasthat will become of increasing concern: illicit disposal of toxic and e-waste, and the health care sector.
Transnational Organised Crime
Authors: Sinn Arndt
Published: June 2017

The term ‘transnational organised crime’ is no recent invention, but the legislature first took heed of the phenomenon only thirty years ago. Three external developments contributed to this change: first, the worrying rise of narcotics-related criminal activity; second, the particularly organised way in which these and other crimes were committed; and third, cross-border activity especially in the context of new technology and the opening of borders in the European Union. Transnational organised crime (TOC) is thus a fairly young field of research. The specific structures of perpetrator groups and their methods have been of particular interest to criminologists, while criminal legal scholars have been much slower to react. This chapter gives an overview of the problems in describing, defining, and combating TOC. Key factors that are likely to influence the future direction of organised crime are also named.
Transnational Organised Crime and its Impacts on States and Societies
Authors: Feltes Thomas , Hofmann Robin
Published: June 2017

Transnational organised crime (TOC) impacts states and societies on different levels. It can have devastating effects on the state, the rule of law, and the economy in countries. It is a great challenge for criminological research to measure those impacts and give a precise account of the consequences societies face when infiltrated by TOC. Depending on legal, institutional, and socio-economic conditions in states and societies, these impacts may vary in their effect. Where governments and state institutions are weak and the civil society poor, TOC seemingly flourishes. Nevertheless, the conditions for this flourishing of TOC are much more complex than the simple link between weak states, poverty, and TOC might suggest. To achieve a more complete and clearer picture of TOC and its impact on societies, it is important to consider it as an integral part of society, not an external invader. Therefore, TOC is strongly linked to societal developments in recent years, particularly with globalization.
Transnational Organised Crime and the Sale of Children, Child Prostitution, and Pornography
Authors: Müller Thorsten
Published: June 2017

This chapter deals with international responses to the—predominantly sexual—exploitation of children. The worldwide phenomena of sale of children, child prostitution, and the abuse of children in pornographic performances are deeply interwoven. Accordingly, the first part of the chapter explains and specifies these different crimes in more detail. Subsequently, the chapter introduces the relevant instruments to fight these phenomena from an international point of view. All the relevant provisions and documents relating to the fight against sexual exploitation of children are discussed. Ways to improve the present international legal regime are highlighted at the end.
The International Law of the Use of Force and Transnational Organised Crime
Authors: Thielbörger Pierre
Published: June 2017

Cybercrime has not only become a new form of organised crime, in which a network of independent perpetrators cooperate on a case-by-case basis without an enduring, hierarchical structure, but is also gaining increasing attention from traditional organised crime groups. With cybercrime easily crossing geographical borders, a closer look at the international law framework on the fight against cybercrime is warranted, including but not limited to the Council of Europe Convention on Cybercrime. This chapter focuses on cyber-related aspects of substantive criminal law, criminal procedure, and jurisdiction, as well as an analysis of the core challenges and typical phenomena of cybercrime.
International Humanitarian Law and Transnational Organised Crime
Authors: Peterke Sven , Wolf Joachim
Published: June 2017

This chapter analyses the interplay of the use of force in international law and transnational organised crime (TOC). It suggests understanding organised criminal groups as addressees of certain parts of the international legal order that deal with the use of force. For instance, Article 51 United Nations (UN) Charter gives states the right to self-defence following an armed attack without specifying that the armed attack must be carried out by a state. Such an attack can equally emanate from organised criminal groups which, in turn, makes them partial subjects of international law. If gangs engage in TOC, often their action also poses a threat to international peace and security under Article 39 UN Charter. It lies thus within the mandate of the Security Council to deal with such action. The Council has started to do so in recent years and it is called upon to continue this line of work.
Transnational Criminal Organisations and Human Rights
Authors: Noortmann Math , Sedman Dawn
Published: June 2017

Transnational criminal organisations and human rights are in a dialectical relationship. Organisations can be subjected to criminal investigations and criminalization, while at the same time be protected by such rights as the right to association and free speech. While successful criminal prosecution of organisations is rare, as demonstrated by the war-crime tribunals since the Second World War, the criminalizing of organisations such as biker gangs and armed opposition groups is a more common, however questionable, option for governments. To the extent that criminal organisations are considered, first of all, to commit crimes and are investigated and prosecuted within that legal framework, the question what the concept of criminal organisations committing human rights violations would bring is a pertinent one. Crimes and human rights are different legal conceptions and should not be confused in the ‘war against organised crime’.
Consular Access and Protection
Authors: Foakes Joanne , Denza Eileen
Published: June 2017

This chapter continues the discussion on consuls from the previous, this time focusing on access to consuls and consular protection. For many States there has in recent years been enormous growth in the demand for consular protection as businesses increasingly set up subsidiaries and branches overseas and individuals travel abroad. National laws vary greatly not only on such obvious matters as dress and the public consumption of alcohol but also on driving and road safety, photography of sites of cultural or security interest, and entitlement to social benefits and to police protection. In consequence, it is easy for the unwary traveller to contravene local laws and to be arrested and detained in police custody without knowledge even of the language, far less of how to secure the services of an interpreter or competent legal representation. Hence assistance from a consular staff becomes necessary.
The European Union—I Development, Structure, and Decision-Making
Authors: Berman Paul
Published: June 2017

This chapter examines the origins and development of the European Union, its legal framework, and its institutional and decision-making framework. Of all the international and regional arrangements to emerge in the aftermath of the Second World War, the European Union is perhaps the most difficult to classify. More than a classic intergovernmental organization, and less than an embryonic State, the EU’s wide-ranging responsibilities and byzantine structures can make it a challenging prospect for diplomats from within the Union as well as for those engaging with its work from other countries. While the European Union may be classified as an international organization the nature of its powers and procedures mean that it is usually regarded as a sui generis entity. There are a number of elements which taken together distinguish it from other organizations which extend back to the Treaties establishing the original European Communities in the 1950s.
Treaties and other International Instruments—I General Definition, Treaty Formalities
Authors: Berman Frank , Bentley David
Published: June 2017

This chapter provides a general definition of treaties and their formalities. As there is no single, all-embracing definition of the term ‘treaty’ the chapter instead reviews particular aspects of the general definition of treaties: the agreements involving international organizations and oral agreements, the requirement that agreement should be governed by international law, and the instruments not intended to give rise to legal relations. The chapter then closes its first section with questions of form and terminology. The chapter also deals with the formalities in the drawing up of treaties. These are: the initialling and signatures, the preparation of signature texts, the languages used in the treaties, and registration and publication of treaties.
Treaties and other International Instruments—II Treaty, Convention, Agreement, Protocol
Authors: Berman Frank , Bentley David
Published: June 2017

This chapter discusses the most common forms of treaty instrument, namely those entitled ‘treaty’, ‘convention’, ‘agreement’, and ‘protocol’. Generally speaking, the designation ‘treaty’ has been reserved for international agreements of a particularly significant character, or to mark the political importance of the particular international agreement. The designation ‘convention’ tends to be utilized for multilateral treaties of a law-making type. The term ‘agreement’, like the term ‘treaty’ itself, is used to cover any meeting of minds, or an agreement intended to be binding, but usually of a less formal or significant nature than a treaty or convention. Finally, the word ‘protocol’ may, depending upon the context in which it is used, signify an addition to a treaty, a summary of official proceedings, or a technique of the proper method of doing things, including official etiquette.
International Standards on Deposit Insurance
Authors: Kleftouri Nikoletta
Published: June 2017

An overarching theme in recent discussions of financial regulation has been the desirability of an internationally level playing field. A level playing field aims at ensuring that internationally active financial institutions compete on an equal footing and that the most efficient institutions gain a larger market share. This chapter sets out the international standards and best practices that have been developed in the area of deposit insurance by the European Forum of Deposit Insurers, the International Association of Deposit Insurers, and the Financial Stability Board. It goes on to offer a general overview of the architecture of deposit insurance systems around the globe.
Case 22/70, Commission v Council (European Road Transport Agreement), Court of Justice of the EC, [1971] ECR 263
Authors: Klabbers Jan
Published: June 2017

This note addresses arguably the CJEU’s most important external relations decision, in a case involving the relationship between Council and Commission, the powers of the EU to act externally, the implied powers doctrine in one of its many guises, and even the international legal personality of what was at the time still the EEC.
Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Advisory Opinion [1954] ICJ Rep 47
Authors: Keith Kenneth
Published: June 2017

This case note relates to the advisory opinion of the International Court of Justice on the United Nations Administrative Tribunal in which the Court ruled that the General Assembly of the United Nations had the power to establish the Tribunal to decide disputes between UN staff members and the UN Secretary-General, their employer, and that its awards were binding on the General Assembly when it came to adopt the UN budget. Underlying these rulings is the principle of the independence of the international civil service. The case note also records the changes that were made to the Statute of the Tribunal as a consequence, changes which presented procedural issues for the Court which was given a review power in respect of awards of the Tribunal.
Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), International Court of Justice, Advisory Opinion, [1962] ICJ Rep 151
Authors: Wouters Jan , Odermatt Jed
Published: June 2017

The International Court of Justice’s 1962 Advisory Opinion Certain Expenses of the United Nations relates to a relatively narrow legal question. The Court was asked to decide whether expenses authoriszed by the UN General Assembly relating to peacekeeping missions constituted ‘expenses of the organization’ according to art. 17(2) of the UN Charter. In deciding this question, the Court elaborates on some important issues for international law and the law of international organizations including the doctrine of implied powers, treaty interpretation in the context of the UN Charter, the doctrine of ultra vires, and the Court’s relationship with other UN organs. The opinion also has consequences for the UN General Assembly, including its role in the system of collective security, its budgetary powers, and its relationship with the UN Security Council. The chapter not only examines the Court’s reasoning but also discusses the wider significance of the case for international law.
Prosecutor v Duško Tadić, Decision on the defence motion for interlocutory appeal on jurisdiction, IT-94-1-AR72, Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, 2 October 1995
Authors: Dekker Ige F , Wessel Ramses A
Published: June 2017

The principle of the attribution, or conferral, of powers is undisputed and lies at the heart of debates on the competences of international organizations. A more specific question concerns whether and to which extent organs of an international organization may establish other organs. The importance of the case analysed in the present Chapter, is that it reveals that the competence of an organ to decide on it own competence may be far-reaching. The question arose whether the United Nations Security Council had not exceeded its powers by establishing the International Criminal Tribunal for the Former Yugoslavia in the year 1993.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep 16
Authors: Leyh Brianne McGonigle
Published: June 2017

The Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia touches upon the role of the International Court of Justice (ICJ) in exercising review over the factual and legal determinations of other principal UN organs, including the UN General Assembly (GA) and Security Council (SC). The relevance of the case, with regard to international organizations and legal acts, hinges on the findings related to the role of the ICJ as a judicial institution vis-à-vis its more political counterparts within the UN organization, the dissolution and succession of international organizations, and the power and limits of international organizations to ensure compliance with their rules and standards.
Matthews v United Kingdom, ECtHR, App. No. 24833/94, 18 February 1999
Authors: Barros Ana Sofia
Published: June 2017

In the present case, the European Court of Human Rights’ analysis drew on the terms in which the European Convention on Human Rights would apply following state adhesion to an international organization. In particular, the Court was called upon to decide on the responsibility of the UK for not having ensured that within the legal system of the then European Community, laws would not be passed that were incompatible with that state’s obligations under the Convention. Although the matter in dispute regarded issues of a purely institutional nature and character, the Court (still) approached it as one engaging state responsibility for its participation in the EC. In a quasi-dogmatic fashion, the Court ascertained that the Convention does not preclude states from transferring competences to international organizations, provided that the rights prescribed therein continue to be secured.
Agim Behrami and Bekir Behrami v France, App. No. 71412/01 and Ruzhdi Saramati v France, Germany, and Norway, App. No. 78166/01, European Court of Human Rights, 2 May 2007
Authors: Villalpando Santiago
Published: June 2017

In 2007, the European Court of Human Rights issued a landmark decision on the admissibility of two applications (Behrami and Saramati) concerning events that had taken place in Kosovo subsequent to Security Council Resolution 1244 (1999). This note examines the two main legal findings of this decision, namely (i) that the impugned actions and omissions were, in principle, attributable to the United Nations, and (ii) that this attribution implied that the respondent states could not be held accountable for such actions and omissions under the Convention. The note deconstructs the reasoning of the Court on these points and assesses the legacy of this precedent in the field of the responsibility of international organizations.
Nuhanović v Netherlands, Judgment, BZ9225, and Mustafić v Netherlands, Judgment, BZ9228, Supreme Court of The Netherlands, 6 September 2013
Authors: Spijkers Otto
Published: June 2017

The Nuhanović and Mustafić cases deal with the legal responsibility of the Netherlands for acts committed by a battalion of Dutch soldiers, placed at the disposal of the United Nations (UN) to take part in a peacekeeping mission. In its judgment, the Dutch Supreme Court made extensive use of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARS), and the Draft Articles on the Responsibility of International Organizations (DARIO) of the International Law Commission (ILC). While the question of attribution is decided on the basis of international law, the wrongfulness of the conduct of the Dutch peacekeepers is assessed mainly on the basis of local domestic (Bosnia-Herzegovina) private law. Nonetheless, as an obiter dictum, the Supreme Court also had something interesting to say about the extraterritorial application of international human rights law in a case such as this one.
Al-Jedda v United Kingdom, App. No. 27021/08, European Court of Human Rights, 7 July 2011
Authors: Sari Aurel
Published: June 2017

The judgment in the Al-Jedda case represents an important milestone in the evolution of the European Court of Human Rights’ jurisprudence on the extra-territorial application of the European Convention on Human Rights. In Al-Jedda, the Court seems to depart from its earlier case-law and accept the prevailing view that ‘effective control’ constitutes the proper standard for allocating responsibility between contributing states and international organizations engaged in the conduct of multinational military operations. At the same time, the judgment also highlights the difficulties involved in allocating responsibility in this context and the continued confusion surrounding the concepts of jurisdiction and international responsibility in the Court’s jurisprudence.
Beer and Regan v Germany, App. No. 28934/95 and Waite and Kennedy v Germany, App. No. 26083/94, European Court of Human Rights, 18 February 1999
Authors: Neumann Thore , Peters Anne
Published: June 2017

The two decisions were the first in which an international human rights court commented on the conflict between immunities of international organizations before domestic courts and the human rights-based obligation of states to provide individuals with access to a court. The European Court of Human Rights reviewed the domestic court’s act of granting immunity to an international organization against art. 6(1) ECHR. It employed an ‘alternative means test’, i.e. it inquired whether the aggrieved party had means other than access to state courts at its disposal to pursue claims. In performing a human rights-review, the Court departed from the traditional paradigm of international organizations’ absolute immunity which would dispense international organizations under all possible circumstances from domestic judicial proceedings and enforcement. Since the rendering of the two judgments, the ‘alternative means’ test has become a key concept in the law of organizational immunities in Europe.