bluuebunny/crossref_metadata_2025 huggingface dataset:
Rights or Causes of Action
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter examines the rights or causes of action. There are three different types of right of action: private law rights of action; public law rights of action, in the form of judicial review; and public law rights of action, in the form of prosecutions, particularly private prosecutions. While private law rights of action are choses in action, and assignable, public law rights of action, whether in the form of judicial review or prosecution, are not. The chapter then looks at the nature of a private law right of action, particularly the concept of a ‘cause of action’ and what happens to a cause of action when the claim it contains is either judicially determined or settled by compromise. It also considers the nature of a judgment and its transferability.
Leases
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter focuses on leases. Leases are most commonly associated with transactions involving land, and have been a feature of the law of real property since the Middle Ages. However, other forms of lease have become increasingly prominent in modern times. There are now major industries concerned with the leasing of chattels, such as vehicles or aircraft, and leases of intangible rights have become commonplace in the world of intellectual property. The key feature of such leases is that the lessee obtains the right to exclude others from using the relevant chattel or intellectual property. This is in contrast to a mere licence, by which the licensee obtains only the right to use the chattel or property himself. The chapter looks specifically at leases over land—its nature, historical origins, and whether they can be properly classified as choses in action.
Equitable Assignment of Choses in Action
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter studies the requirements that are necessary for an effective assignment of choses in action. In order to effect the assignment or a chose in action: the assignor must have manifested an intention to transfer the chose; the thing being assigned must be a chose in action, in present existence, certain or capable of being ascertained; the identity of the assignee must be clear; and the appropriate forms and formalities must have been satisfied. These requirements apply both to legal and equitable assignments. However, since legal assignments can only be affected by statute, the forms and formalities required for a legal assignment are those set out in the relevant legislation, and addressed elsewhere.
Transfer of Intellectual Property
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter focuses on how intellectual property rights are transferred, and the consequences and implications of this. Although the transfer of a patent was originally governed by the common law, the common law rules have long since been superseded by statutory provisions that govern the transfer of the legal title in a patent. The present provision is contained in section 30 of the Patents Act 1977. Meanwhile, section 90(1) of the Copyright, Designs and Patents Act 1988 provides that copyright is transmissible by assignment, by testamentary disposition, or by operation of law, as personal or moveable property. The chapter also considers the transfer of moral rights, industrial design right, and trademarks.
Intangibles Not Transferable by Reason of Public Policy
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter discusses intangibles not transferable by reason of public policy. In the case of certain sums receivable in the future, reasons of public policy preclude their assignment. The cases in this area tend to have a Dickensian feel to them—such as the rule that no effectual assignment can be made of the salaries or pensions of public officers payable to them for the purpose of keeping the dignity of their office or to ensure the due discharge of their duties—but the same sort of policy underlies the current statutory prohibitions on the assignment of social security benefits and pay in respect of a person's service in Her Majesty's military forces.
Introduction
Authors: Mccormick Roger , Stears Chris
Published: July 2018

This introductory chapter first sets out the book’s purpose, which is to describe and explain legal and conduct risk, and suggest possible approaches to the management of these risks. Legal risk is defined as risk arising in the operation and practices of the financial markets. They are a part of the spectrum of risks that are inherent in the operations of banks and other financial institutions, affecting the lives of the people who work there and the customers who put their trust in them as well as, in more extreme cases, the financial system itself. On the other hand, the European Banking Authority defines conduct risk as ‘the current or prospective risk of losses to an institution arising from an inappropriate supply of financial services including cases of wilful or negligent misconduct’.
Legal and Conduct Risk in the London Market
Authors: Mccormick Roger , Stears Chris
Published: July 2018

This chapter reviews how the City of London and the English courts have dealt with legal risk issues. Bodies such as the Legal Risk Review Committee, Financial Law Panel, and Financial Markets Law Committee are now considered part of the ‘legal infrastructure’ of the wholesale financial markets. Also — and in a broad legal and conduct risk context — the rules, policies, and practices of the Financial Conduct Authority are of great, and growing, significance. Two highly influential bodies — The Banking Standards Board and the FICC Market Standards Board — are now tasked with defining and sustaining good practice standards for the banking and wholesale markets respectively, and to this extent, the work of these bodies will represent norms of behaviour that can be expected in the lawful discharge of duties.
The Initial Response to the Financial Crisis by the EU and Elsewhere
Authors: Mccormick Roger , Stears Chris
Published: July 2018

This chapter discusses the various laws, regulations, and comparable measures that were passed or proposed in response to the financial crisis in the EU and elsewhere. It covers the responses of the de Larosière Report, G20, the Basel Committee on Banking Supervision, and the Financial Stability Board. The de Larosière Report, for instance, was commissioned by the President of the European Commission in October 2008 and delivered on 25 February 2009. The report sought ‘to give advice on the future of European financial regulation and supervision’ and has formed the basis of many of the responses to the financial crisis at EU level. The G20 issued a comprehensive communiqué on the crisis at the London ‘Summit’ of 2 April 2009, covering a number of macro-economic and other ‘architectural’ issues.
The Impact of the Libor Scandal
Authors: Mccormick Roger , Stears Chris
Published: July 2018

The financial market crisis of 2007 was also a crisis of conduct. The events immediately before, during, and after the crisis that stand out, deserve analysis, and indeed, have given rise to some of the most substantial post millennial legal and regulatory changes. This chapter sets the scene, framing the ‘rebuilding trust agenda’ that arose after a plethora of misconduct events — epitomised by the Libor scandal. Using the findings of the Conduct Costs Project, a project of the CCP Research Foundation that collates data on the ‘Conduct Costs’ of twenty of the world’s foremost financial institutions, the chapter highlights the extent to which concerns over a conduct crisis are justified. It concludes by prefacing the issues of sustainability, ethics, standards, accountability, and disclosure that are then taken up in greater detail in later chapters.
Financial Services Act 2012
Authors: Mccormick Roger , Stears Chris
Published: July 2018

This chapter charts the passage of the Financial Services Act 2012 (FS Act 2012), from its policy conception through its consultation phase, and to its enactment. The FS Act 2012 received royal assent on 19 December 2012 and came into effect from 1 April 2013. The Act comprised 10 parts and 21 schedules and formally amended the Bank of England Act 1998, the Financial Services and Markets Act 2000, and the Banking Act 2009, to give effect to the reforms. The enactment of the FS Act 2012 represented a significant change in not only the regulatory structure, but the regulatory approach to supervision and enforcement. The new mantra was far a more holistic and intrusive form of regulation. Whether viewed from the perspective of the prudential thresholds, conduct of business requirements and new product intervention powers, or in light of the enhanced investigatory and enforcement priorities and a focus on individual accountability, the reforms were significant.
Legal and Conduct Risk in a Globalizing Financial Market
Authors: Mccormick Roger , Stears Chris
Published: July 2018

This chapter discusses legal and conduct risk associated with the globalized financial market. It argues that the involvement of banks in both globalization and the financial crisis has increased the risk of banks being a target for criticism for the social ills and misfortunes associated with either of these phenomena. Such criticism often leads to lawsuits, political action, or adverse regulatory measures; and sometimes a combination of these things. The remainder of the chapter covers the globalization debate and context; how legal risk is affected by, and has sources in, current and enduring political and social objectives; the media’s influence on to the culture of fear and ‘zero risk tolerance’; the limits of global law; reactions to globalization; and the need for legal certainty.
Burden of Proof in Investor-State Arbitration
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter discusses the concept of the burden of proof in investor-state arbitration. The basic rule regarding the burden of proof in international law is that the party who makes an assertion must prove it. The rule has its origins in the traditions of Roman, common, and civil law countries, and is not new or unique to investment arbitration. In fact, this principle has been widely recognized by several international dispute settlement panels, as well as other international agencies. Not every set of arbitration rules explicitly includes this rule, however, although there is near unanimity by tribunals and commentators in its application.
Different Standards of Proof in Investor-State Arbitration
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter highlights the three commonly identified standards of proof in investor-state arbitration. The first is the prima facie evidence standard, which involves an examination of the facts as alleged by the claimant to see whether such facts would amount to a breach of the treaty and otherwise fall within the jurisdiction of the tribunal. The second standard is the preponderance of evidence or the balance of probabilities. This standard requires an evaluation of all the evidence produced by both parties on a particular issue and this evaluation ultimately results in the tribunal determining which party’s evidence is more likely than not to be true. Finally, there is the heightened standard of proof. Here, the standard is higher than a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt.
Iura Novit Curia and Proof of Law
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter examines one of the most underestimated areas of proof in investor-state arbitration—the proof of law. The first evidentiary principle governing proof of law is the maxim of iura novit curia, or the tribunal or court knows the law. The principle is fraught with difficulty when applied to investor-state arbitration. The practice of investor-state arbitration on its face disproves the assumption that tribunals know the law in a non-trivial sense. This difficulty does not mean, however, that iura novit curia is wholly inapplicable to investor-state arbitration. Rather, as the chapter shows, the principle must be carefully circumscribed in order to avoid potential annullable error.
Inferences from Evidence or Its Absence
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter discusses the use of inferences. The use of inferences means that the tribunal makes a determination of fact that is not premised upon direct evidence. The tribunal thus is convinced of the truth of a fact despite the absence of a document or witness testimony that would establish that fact first hand. Such findings of fact are relatively frequent, especially when documents are scarce and witness testimony is self-serving. An inference refers thus to a conclusion that as a matter of plausibility a fact must be true in light of other relevant and probative record evidence as well as party conduct in the arbitral proceedings. Moreover, the plausibility of an inference is governed by the same standard of proof as the proof of the relevant fact by direct evidence.
Witnesses and Experts
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter gives the first full-length treatment of the law and principles of evidence applicable to witness and expert testimony. One of the most underdeveloped areas in the literature concerns witnesses and experts. Witnesses and experts are crucial parts of any investor-state arbitration. In fact, most if not all investor-state arbitrations rely upon the testimony of witnesses and experts in order to prove central factual and legal issues in dispute between the parties. Hence, the chapter covers direct as well as cross-examination and aims to provide a better understanding to parties in framing witness statements as well as to counsel and tribunals in managing cross-examination at a hearing.
The Caroline Incident—1837
Authors: Wood Michael
Published: July 2018

This contribution summarizes the facts of the celebrated incident from 1837, in which British militia from Upper Canada crossed to the US shore of the Niagara River and set adrift a small rebel-operated vessel, The Caroline (which drifted over the Falls). The chapter cites the lengthy correspondence between US Secretary of State, Daniel Webster, and British Government’s representatives in Washington (Mr Fox and Lord Ashburton), in which Webster repeatedly used the celebrated Caroline formula (“a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”). The case is referred to, even today, in discussions of anticipatory self-defence, the requirements of necessity and proportionality, and the use of force against non-State actors. The chapter concludes by examining differing views on the current relevance of the Caroline incident and formula.
The Cuban Missile Crisis—1962
Authors: Orakhelashvili Alexander
Published: July 2018

This chapter begins with examining the context in which the US government decided to impose the quarantine against Cuba in 1962, in response to the Soviet nuclear missile placement in Cuba. The legality of the US measures is examined against the Charter of the United Nations, the OAS regional security framework, and general international law including the regime of belligerent rights. The final section addresses the precedential value of this incident, especially the ways in which legal advisers addressed the complex legal issues surrounding the Cuban missile crisis.
The Gulf of Tonkin Incident—1964
Authors: Guilfoyle Douglas
Published: July 2018

This chapter examines the United States’ air strikes against torpedo boat bases in the Democratic Republic of Vietnam in August 1964 in response to two claimed armed attacks against its naval units in the Gulf of Tonkin earlier that month. It considers the facts, historical context and operational environment. It examines the reactions at the time of the main actors, and their allies, in the Security Council. In assessing the incident’s legality it notes that several of the questions raised remain controversial today, including: (i) Can a state validly exercise self-defence based on a mistake of fact? (ii) Can self-defence encompass ‘preventative’ actions? (iii) Can an attack on a single vessel trigger a right of self-defence? (iv) Was the action proportionate and necessary? (v) How proximate in time must a (legal) defensive use of force be to the triggering armed attack in order to avoid being classed as a reprisal?
The Six Day War—1967
Authors: Quigley John B
Published: July 2018

This contribution analyzes the 1967 hostilities that began when Israel attacked Egyptian forces in the Sinai Peninsula. It sets out the relations between Israel on the one hand and Egypt, Jordan, and Syria on the other that provided the background for the hostilities. It recounts actions by Egypt that provided the immediate context for the hostilities. It examines Israel’s claim made in the United Nations Security Council that Egypt opened the hostilities, and Egypt’s rejection of that claim. It examines the reaction of the international community when the hostilities were assessed first in the Security Council and then in a special session of the General Assembly. These hostilities have been widely taken as having involved anticipatory self-defense on Israel’s part, and as a precedent justifying anticipatory, or preventive, military action. This contribution examines the extent to which that analysis is warranted.
The USS Pueblo Incident—1968
Authors: Heintschel von Heinegg Wolff
Published: July 2018

This contribution discusses the 1968 USS Pueblo Incident by assessing the factual background on the basis of available documents and by providing a legal analysis on the basis of the then applicable international law. In view of the contentious issue of the USS Pueblo’s location at the time of the attack and her seizure by the armed forces of the People’s Democratic Republic of Korea, the discussion of the legal issues at stake is not limited to the ius ad bellum but must be extended to the law of the sea, in particular the breadth of the territorial sea according to customary international law recognized in 1968 and the status of foreign warships. As regards the ius ad bellum, the unjustified use of force against a sovereign immune warship is considered an armed attack triggering the flag state’s right of self-defence.
Turkey’s Intervention in Cyprus—1974
Authors: Dörr Oliver
Published: July 2018

This contribution discusses the 1974 intervention by Turkey in Cyprus. It sets out the facts and context of the crisis, the legal positions of the main protagonists (Turkey and Greece), and the international community’s reactions. Concerning the intervention’s legality, it examines, above all, the right to intervene under the 1960 Treaty of Guarantee and the right to self-defence. The final section analyses the intervention’s precedential value and its impact on the jus ad bellum. It is argued that the role of the territorial state’s consent to the intervention was critical in the Cyprus case, and that the case clearly demonstrates that states may effectively limit their consent by agreeing on substantial restrictions or procedural prerequisites to the use of armed force on their territory.
The Entebbe Raid—1976
Authors: Kreß Claus , Nußberger Benjamin K
Published: July 2018

In 1976, Israel conducted a successful, but highly controversial military rescue operation in Entebbe, Uganda, to save its nationals taken hostage on Ugandan territory by members of the ‘Popular Front of Liberation of Palestine’. From an international legal perspective, this case revolves around the existence of a right of a state to take military action to protect its nationals abroad in mortal danger. Following an extensive legal debate in the Security Council on the incident, it appears safe to conclude that a rescue operation such as conducted in Entebbe passes the threshold for a use of force within the meaning of Article 2(4) UN Charter. In light of the ambiguous justification, however, it appears that an Entebbe-type situation falls within a grey area of the prohibition of the use of force. Still, the incident suggests that if states are willing to support the legality of a military rescue operation only the right of self-defence can conceivably justify such a use of force, and only in a case where the local state does not itself deal with the threat in good faith, and under strict conditions of proportionality.
The Killing of Khalil al-Wazir by Israeli Commandos in Tunis—1988
Authors: Pobjie Erin , Declercq Fanny , Van Steenberghe Raphaël
Published: July 2018

This contribution discusses the 1988 killing of Khalil Al-Wazir by Israeli commandos in Tunis. It first sets out the facts and context of the killing, the legal positions of the main protagonists (Israel and Tunisia) and the reactions of the international community. The chapter then examines the legal debate on targeted killing under the jus ad bellum that was raised by the incident. This chapter concludes that this precedent contributed to a strengthening of the view that even small-scale, targeted attacks by a state against non-state actors in another state violate the prohibition of the use of force.
The US Strikes Against Libya—1986
Authors: Kamto Maurice
Published: July 2018

This contribution discusses the US air strikes against Libya in 1986. It sets out the facts that led to the air strikes – notably the bombing of a West Berlin night club on 5 April 1986 –, the legal positions of the main protagonists (the US and Libya), and the international community’s reactions. It then tests the legality of the US strikes against the international legal framework governing the use of force as it stood at the time of the events, namely the rules governing the right to self-defence. The chapter concludes that the use of force in this particular case could not be convincingly justified under Article 51 of the UN Charter.
The US Intervention in Panama—1989
Authors: Tsagourias Nicholas
Published: July 2018

This chapter examines the legality of the 1989 US intervention in Panama and assesses its impact on the use of force regime. After recalling the facts of the incident, it goes on to analyse the legal arguments provided by the US government to justify its action. More specifically, the US invoked its right to protect American citizens abroad as part of its right to self-defence; the right to intervene to protect the Panama Canal provided by the Panama Canal Treaties; and the invitation of the democratically elected Leader of the Opposition. The chapter then presents the reactions of states and the views of legal commentators. It concludes by saying that the incident affirms existing law but also contributes to the development of the rules regulating the use of force in international law.
The Intervention in Somalia—1992–95
Authors: Gill Terry D , Tibori-Szabó Kinga
Published: July 2018

This chapter examines the 1992-1995 intervention of the United Nations and the United States in Somalia. It sets out the facts and context of the crisis, the positions of the main protagonists (UN, US and Somalia) as well as the reactions of third states and international organisations. The chapter then discusses several questions regarding the legality of the intervention under the jus ad bellum. It first looks at the legal basis of the intervention under Chapter VII of the UN Charter and the place of peace enforcement operations within that framework. It then analyses the types of mandates and their execution in the Somalian operations and lastly, it draws conclusions on the precedential value of the intervention for future UN collective operations.
The Eritrean–Ethiopian War—1998–2000
Authors: Murphy Sean D
Published: July 2018

This contribution discusses the Eritrean-Ethiopian War of 1998-2000. It sets out the facts and context of the crisis, the legal positions of the two countries, and the international community’s reactions. The Algiers Agreement ending the conflict established an Eritrea Ethiopia Claims Commission, which concluded that Eritrea’s large-scale, transborder military operation at the outset of the conflict constituted a violation of Article 2(4) of the U.N. Charter. Further, the commission made important findings with respect to the law on self-defense, such as that a state may not use armed force to seize disputed territory peacefully occupied by another state.
The Kosovo Crisis—1999
Authors: Franchini Daniel , Tzanakopoulos Antonios
Published: July 2018

This contribution discusses the forcible intervention by NATO against Serbia in 1999 in response to the situation in Kosovo. It sets out the facts and background of the crisis, along with the legal positions of the main protagonists and the reactions of the international community. It then proceeds to survey the debates surrounding the legality of the intervention and to assess the soundness of the legal justifications put forward by states and authors. Finally, it discusses the precedential value of the intervention, especially in view of claims of the existence or emergence of a rule or principle of international law permitting the unilateral use of force in response to humanitarian crises. The contribution concludes that the NATO intervention has significant precedential value in that it confirms the unlawfulness of forcible unilateral humanitarian intervention.
The Intervention in Afghanistan—2001–
Authors: Byers Michael
Published: July 2018

This chapter addresses the US and NATO-led intervention in Afghanistan from 2001 to the present day. It examines the different legal justifications advanced or available for the intervention, namely self-defence, UN Security Council authorization, and intervention by invitation. It explores the complex relationships between these justifications and, particularly, the strategies adopted by states in choosing between them. The chapter concludes by considering the effects of the intervention on the customary international law of self-defence as it concerns non-state actors located in “unaware or unable” states, and anticipatory or pre-emptive responses.
Israeli Airstrikes in Syria—2003 and 2007
Authors: Moir Lindsay
Published: July 2018

This contribution examines the airstrikes carried out by Israel against Syria in 2003 and in 2007. It sets out the facts and context of both operations and the legal positions of the main protagonists (Israel and Syria), as well as the reactions of third states and international organisations. It then considers questions surrounding the legality of the airstrikes against the prevailing rules of international law regulating the resort to force, before discussing the extent to which either operation might have impacted upon the development of the jus ad bellum.
The Conflict in Georgia—2008
Authors: Gray Christine
Published: July 2018

This chapter discusses the 2008 conflict between Russia and Georgia. It explains the background of rising tensions between separatists in the regions of South Ossetia and Abkhazia, and the Georgian government; the outbreak of conflict; the Russian intervention; and the extension of the conflict beyond South Ossetia and Abkhazia. It then examines Russia’s claims that it was acting in self-defence in protection of its nationals and of its peacekeeping forces in Georgia, and the reactions of other states to these claims. It also provides a critical account of the Report of the Independent International Fact-finding Mission on the Conflict in Georgia, and its controversial arguments, first, for a wide interpretation of the scope of the prohibition of the use of force in Article 2(4) UN Charter as applicable to non-state entities, and, second, for a wide view of the concept of threat of force.
The Intervention of France and African Countries in Mali—2013
Authors: Bannelier Karine , Christakis Theodore
Published: July 2018

This contribution analyses the joint French-African intervention in Mali in 2013. After recalling the facts of the intervention, it examines the legal positions of the main protagonists and the reactions of third States and international organizations. It then tests the operation in Mali against the international legal framework governing the use of force as it stood at the time of the events. While the French and African military Operations in Mali were clearly legal, they raise important questions of jus ad bellum regarding the legal arguments put forward to justify them: collective self-defense, intervention by invitation and UNSC authorization. The final section analyses the intervention’s precedential value and its impact on the law against force.
The Crisis in Ukraine—2014
Authors: O’Connell Mary Ellen
Published: July 2018

On 28 February 2014, Russian forces moved out of their base on the Black Sea into Crimea, triggering a crisis with Ukraine that quickly spread to Eastern Ukraine. Russia has attempted to justify its actions in Ukraine. On close analysis, no argument is adequate to avoid the charge of aggression, which is any serious violation of United Nations Charter Article 2(4). Article 2(4) is no mere treaty rule. It is jus cogens, a peremptory norm, meaning it is durable, impervious to modification. Facts on the ground in Ukraine may remain unchanged without sufficient international pressure. Regardless, Russia’s presence will remain unlawful.
The ECOWAS Intervention in The Gambia—2016
Authors: Helal Mohamed S
Published: July 2018

This chapter discusses the legal justifications for the ECOWAS intervention in The Gambia, including: pro-democratic intervention, intervention by invitation, and Security Council authorization. It argues that the intervention is unjustifiable because pro-democratic intervention is not recognized as a legal basis for intervention, and because the Security Council did not authorize the intervention. The intervention is also not justifiable under the doctrine of intervention by invitation because President-Elect Adama Barrow did not exercise effective control when he invited ECOWAS to intervene to enforce the results of the 2016 Presidential Election. This chapter argues, however, when combined with earlier ECOWAS interventions, this intervention in The Gambia could signify a shift in the rules governing intervention by invitation, whereby a legitimate, but ineffective, government may enjoy the right to invite foreign intervention. Finally, this chapter argues that ECOWAS violated the prohibition on the threat of force by issuing an ultimatum to force the former Gambian President to relinquish power.
Liquidated Damages and Penalty Clauses
Authors: Halson Roger
Published: July 2018

This book focuses on liquidated damages and penalty clauses, and analyses the common law jurisdiction to control stipulated damages clauses, as well as the distinction between enforceable liquidated damages clauses and unenforceable penalty clauses. The first part of the book examines the historical origin of the control of these clauses; the second part describes the current control of such clauses and their legal effect, while the third part of the book critically examines the various rationales that have been proposed to justify their regulation. The final part of the book describes analogous provisions and how to avoid drafting contractual clauses that are rendered unenforceable by the penalty rule. The book examines approaches in several common law jurisdictions in addition to England and Wales, including the United States, Australia, New Zealand, and Canada, and brings together principles developed in distinct commercial law contexts (such as shipping contracts) to enable comparison between particular contractual settings.
The Legal Effect of Classification as a ‘Penalty’ or a Valid Liquidated Damages Clause
Authors: Halson Roger
Published: July 2018

The previous chapter described the test laid down in the Cavendish case that determines the validity of any stipulated damages clause. In summary, a clause will be unenforceable which seeks to impose upon a party in breach of contract: a detriment which is not proportionate to any legitimate interest of the other party to the contract; or in ‘straightforward’ cases (still governed by the older Dunlop test): a detriment which is ‘extravagant and unconscionable’ in comparison with a ‘genuine pre-estimate’ of the loss that would result from the payer’s breach of contract. This chapter discusses the legal effect of contractual provisions which stipulate for a detriment which first satisfy whichever of the tests above is applicable to it (legal effect: liquidated damages clause) and then the legal effect, if any, of a contractual clause that fails to satisfy the applicable test (legal effect: penalty clause).
International Agreements and Supranational Bodies
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter focuses on some of the international agreements and supranational bodies in the banking and financial services sector that perform a variety of functions, from collating collective research and compiling statistics, to providing a framework for standard setting and mediating disputes between national interests. It first considers the World Trade Organisation (WTO) and WTO agreements, dispute resolution under WTO proceedings, and financial services under the WTO before turning to other supranational bodies such as the Transatlantic Trade and Investment Partnership, the World Bank and the International Monetary Fund, the Basel Committee, Financial Action Task Force, and International Accounting Standards Board. The chapter also examines the Sarbanes-Oxley Act of 2002 and its impact on non-US entities and how the credit crunch affected the role of supranational bodies in creating financial stability in the global market. Finally, it analyses the future of supranational bodies in a global economy.
The PRA and FCA
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter focuses on the functions of the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA) as statutory regulators of the financial services sector in the UK. It begins with a discussion of the constitutional provisions establishing the FCA and the PRA by virtue of the Financial Services and Markets Act 2000 (FSMA). It then considers the remit of the FCA and the PRA, along with their general functions and duties, statutory objectives, and regulatory principles with respect to financial services regulation. It also examines the boundary between FCA and PRA responsibilities, arrangements for the supervision of regulated firms and for enforcement, and the co-ordination between the FCA and the PRA in the exercise of their function. Finally, it describes the PRA's power of direction, directions relating to consolidated supervision, and central government and Parliamentary oversight of the regulators.
The FCA Handbook and the PRA Rulebook
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter focuses on the Financial Conduct Authority's (FCA) Handbook of Rules and Guidance and the Prudential Regulation Authority's (PRA) Rulebook. The FCA Handbook of Rules and Guidance and the PRA Rulebook are two of the most important products or physical expressions of the FCA and PRA's general functions with respect to financial services regulation: they are the primary consolidation of the rules, and (in the case of the FCA) guidance through which that regulator performs its particular functions. The chapter first explains what material goes into the FCA Handbook and the PRA Rulebook before providing an overview of the structure and content of each document. It then examines high-level standards in the FCA Handbook and the PRA Rulebook, along with the rise and fall of principles-based regulation in the UK. It also considers the processes governing the Handbook and Rulebook as well as the interpretation of both documents.
Regulatory Processes— Authorisation and Supervision
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter discusses four ways in which a person can conduct regulated activities in the UK without contravening the Financial Services and Markets Act 2000 (FSMA): they can be either exempt, passported, unauthorised but exempted from the general prohibition, or hold a relevant permission under Part 4A of the FSMA. It first explains exemptions and exempt persons under FSMA before addressing the question of whether a person requires authorisation and who are eligible to apply for authorisation. It then considers the consequences of authorisation, the authorisation process, permissions under Part 4A of the FSMA, variations and cancellations of a permission, and the procedure for authorisation application. It also examines how applications for authorisation are determined and concludes with an analysis of the supervision process used by the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA), along with the enforcement processes.
Individual Accountability
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the individual accountability regime for the UK's banking sector. It begins with an overview of the individual accountability regime as well as its key aspects, focusing on the Independent Commission on Banking and the Parliamentary Commission on Banking Standards. It then considers the Financial Services (Banking Reform) Act 2013 and the Senior Managers' Regime, along with the financial institutions within scope of the Senior Managers' Regime. It also describes the rules of the Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) concerning the Senior Managers' Regime, and more specifically the Allocation of Responsibilities, senior management functions, applications and notifications with respect to the Regime, and fitness and propriety. Finally, it looks at the Certification Regime, UK branches of overseas banks, and extension of the Senior Managers' Regime to all other financial services firms.
Listing and Public Offers
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the regulatory framework for listing and public offers in the UK, with a particular focus on the Prospectus Directive regime that was first adopted by the European Union in November 2003 and implemented in the UK from 1 July 2005. The Prospectus Directive regime regulates information disclosure in connection with a public offer or admission to listing on a regulated market in the EU. The chapter first provides an overview of the evolution of the Prospectus Directive regime before discussing its implementation in the UK. It then considers when a prospectus is required and what it must contain and describes the listing regime in the UK, which combines admission to the ‘Official List’ with admission to trading on one of the markets of the London Stock Exchange. The chapter also explains the UK listing requirements and the ongoing obligations faced by issuers admitted to listing and trading.
Insider Dealing and Misleading Statements and Impressions
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter focuses on the criminal offences of insider dealing under the Criminal Justice Act 1993 (CJA) and misleading statements and impressions under Part 7 of the Financial Services Act 2012 (FSA 2012), along with regulatory requirements relating to market misconduct. It first provides an overview of the relevant provisions of Part V of CJA before discussing the roles of the various regulatory and prosecuting authorities with power to take action in respect of market misconduct and how these bodies interact. In particular, it examines the responsibility of the Financial Conduct Authority (FCA) for prosecuting offences unde CJA and FSA 2012. It also analyses the provisions of Part 7 of FSA 2012 regarding offences in relation to financial services as well as other regulatory provisions relating to undesirable market conduct.
Collective Investment Schemes
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter focuses on the regulatory framework for collective investment schemes (CISs). The Financial Services and Markets Act 2000 (FSMA) imposes a special regulatory regime on investment funds that fall within its wide definition of CIS, which has been placed within the scope of regulation since the enactment of the Financial Services Act 1986. The definition of CIS covers almost all types of investment funds with the exception of investment companies, investment trusts, and pooled investment special purpose vehicles. The chapter first considers the European directive for ‘undertakings for collective investment in transferable securities’ (UCITS) and the introduction of open-ended investment companies (OEICs) in the UK before discussing the European Union's directive for alternative investment funds and the regulatory categorisation of CISs in the UK. It also analyses the regulation of authorised unit trust schemes and the FSMA's ‘general prohibition’ and ‘financial promotion restriction’ provisions.
Islamic Financial Services
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter discusses the regulatory regime for Islamic financial services. It begins by providing a background on Islamic finance firms (IFFs), which are governed by the Shari'a, and the services they offer. It then considers the scope and limits of Islamic financial services regulation before analysing the regulation of IFFs in the UK by the Financial Conduct Authority and the Prudential Regulation Authority as well as the regulation of Islamic capital markets. It also looks at international bodies that have been established to set and develop regulatory and Shari'a standards for IFFs, focusing in particular on the Accounting and Auditing Organisation for Islamic Financial Institutions and the Islamic Financial Services Board. The chapter concludes with an assessment of Islamic finance regulation in other jurisdictions; the legal effect of international standards on IFFs; Shari'a principles, including those relevant to Islamic finance; and the listing and public offer of Shari'a-compliant securities.
Financing Devices Involving the Transfer or Retention of Title
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter discusses financing devices that, although performing an equivalent function to security interests, are not generally considered ‘security’ under English law. These devices fall into two main categories: those involving the retention and those involving the transfer of title. Such financing devices are often called ‘quasi-security’ interests, to acknowledge that their economic function, in ‘securing’ the performance of obligations, is the same as that of true ‘security’. The chapter also considers the characteristics that they normally display, dividing up the discussion by the nature of the collateral involved: goods, investment products, and receivables.
Interests Created By Debtors Who Are Not companies
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter talks about how there are perfection requirements for only certain types of mortgage or charge created by non-corporate debtors over their property. The perfection of mortgages and charges over goods by non-corporate debtors is for the most part governed by statute, principally the Bills of Sale Acts. General assignments of book debts must also be registered under the Bills of Sale Act 1878. In addition, there are separate provisions for agricultural charges and charges created by cooperative, community benefit, and building societies. The chapter also shows how, in the Queen’s Speech in 2017, the government announced its intention to reform the law on bills of sale pursuant to recommendations by the Law Commission, which in July 2017 published a draft Goods Mortgages Bill for consultation.
Exceptions to the Nemo Dat Rule
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter illustrates how a person who acquires a legal interest in good faith and without notice takes priority over the holder of an equitable interest. The person acquiring the legal interest must provide value and not have actual or constructive notice at the time that the interest was acquired. If, however, the interest, when acquired, was initially equitable, the holder of the interest can at a later date acquire the legal interest and gain priority over the holder of a prior equitable interest, despite the fact that at the time the legal interest was acquired, the holder knew of the prior equitable interest. This is the doctrine of tabula in naufragio.
Priority Between Consensual and Non-Consensual Security Interests
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter demonstrates how, in the case of things in possession, non-consensual security interests may be treated as consisting, for present purposes, of liens, in favour of carriers, repairers, and the like; of maritime liens (and similar statutory rights), in favour of master and crew; claimants against the ship, suppliers, and repairers; rights of distress, in favour of local authorities; rights of commercial rent arrears recovery in favour of landlords; and of execution creditors. In these various instances, the rights of the lienholder, landlord, local authority, and execution creditor, as the case may be, against a competing chargee are part of the larger subject of how those rights might be exercised against the owner in those cases where the owner is not the person in possession of the thing.
Enforcement of Financial Devices Involving The Transfer or Retention of Title
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter demonstrates how financing devices that involve either the retention or the transfer of title, although performing an equivalent function to security interests, are generally not considered ‘security’ under English law. Hence, the general characteristics that security interests display when they are enforced, in particular the obligation of the secured creditor to account for any surplus and the obligation of the debtor to make good any deficit, do not rise. The financing devices, being straightforward commercial contracts, are enforced according to their terms, without the application of any of those ‘security’ principles. However, in so far as these devices perform a security function, their express terms often reflect these ‘security’ characteristics, with the contract often providing for a financial adjustment so as to preclude the ‘secured creditor’ receiving a ‘windfall’ or suffering a ‘shortfall’.
Enforcement of Security in Insolvency
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter discusses the enforcement of security once formal insolvency proceedings have supervened. It deals primarily with liquidation, administration, and receivership but takes in also other procedures, such as schemes of arrangement, to the extent that they affect the rights of secured creditors. A key feature of English law, in contrast with numerous other legal systems, is that the onset of bankruptcy or company liquidation does not remove the power of a secured creditor to exercise proprietary remedies for the recovery of the secured debt. In addition to consensual security, namely, mortgage, charge, and pledge, liens arising by operation of law may be exercised against a liquidator or trustee in bankruptcy, who may not therefore obtain possession of the assets without discharging the underlying obligation.