bluuebunny/crossref_metadata_2025 huggingface dataset:
A Look towards the Future—The ICC and ‘Lessons Learnt’
Authors: Ambach Philipp
Published: June 2017

This Chapter focuses on some of the Court’s major future challenges, and initiatives to improve the efficient management of criminal proceedings. It discusses challenges and strategies in relation to five main issues: (i) global membership; (ii) cooperation; (iii) complementarity; (iv) judicial integrity; and (v) efficiency of proceedings, before addressing specific features of the Lessons Learnt initiative, which was established in 2011 to assess the functioning of the ICC’s procedural framework and look into possible improvements. The Chapter analyses the practice of the ASP, including amendments of the Rules of Procedure and Evidence regarding the accused’s presence at trial. It argues that the ICC has come a long way in the past decade. It concludes with some practical suggestions to improve the relationship to non-States Parties, enhance cooperation and technical assistance, and strengthen the efficiency of the ICC.
Unregulated Financial Services and the Impact on Transactions
Authors: McMeel Gerard
Published: June 2017

The previous sectoral or fragmented approach to financial services regulation led to inconsistent conclusions regarding the impact of statutory prohibitions on the integrity of resulting contracts. This chapter shows that the Financial Services and Markets Act 2000 largely continued the solutions introduced by the Financial Services Act 1986 for the particular problems of unauthorised investment and insurance business. The earlier case law remains instructive, in that it sheds light on the judicial techniques deployed. The regime of the 2000 Act is considered, which explicitly provides an answer to this conundrum.
Breach of Statutory Duty
Authors: McMeel Gerard
Published: June 2017

The Financial Services and Markets Act 2000 frequently confers a statutory right of action upon designated persons where loss has been suffered as a result of a breach of duty under the Act or delegated legislation, or other rules made under its aegis. However, the relationship between the background common law and the statutory regime causes problems of exposition and overlap. This chapter considers applications of breach of statutory duty for the benefit of consumers who have suffered financial loss as a result of non-compliance by financial services professionals.
Claims in Contract
Authors: McMeel Gerard
Published: June 2017

This chapter considers a number of issues which are crucial to financial advice and financial products. First, it looks into the circumstances in which a court will decide that financial advice has been proffered under the terms of an applicable contract. In particular, it addresses the question of whether the doctrine of consideration is satisfied where the adviser is not directly paid by the recipient. Secondly, it considers incorporation and the implication issues of particular concern in a financial services context. Thirdly, it examines the modern approach to interpreting contracts, which has been honed as a result of the problems arising from financial services cases. Fourth, the chapter deals with the twin requirements of the Unfair Terms in Consumer Contracts Regulations 1999.
Misrepresentation and Duties of Disclosure
Authors: McMeel Gerard
Published: June 2017

This chapter surveys the relevant private law on actionable representations and duties of disclosure so far as those provisions have an impact on financial services. There is no attempt to provide a general description of causes of action and remedies for misrepresentation, as the rules can be found in the standard texts. However, some authorities which are especially pertinent to the provision of financial advice are introduced. The remainder of the chapter is concerned with duties of disclosure.
Equitable Claims:
Authors: McMeel Gerard
Published: June 2017

This chapter first discusses the legal principles governing the recognition of fiduciary responsibility as applied to financial advisers. It then explains the law on transactions tainted by undue influence and unconscionable bargains. The equitable jurisdiction to grant relief in respect of transactions tainted by undue influence operates as a supplement to the common law of duress. While there is no general doctrine of a power to intervene in contracts and other transactions on the grounds of inequality of bargaining power at common law, there exists a jurisdiction in equity to relieve against unconscionable bargains.
Intermediaries
Authors: McMeel Gerard
Published: June 2017

This chapter discusses the law governing intermediaries in the financial services industry. The relationship between the various species of intermediary and both the service provider and the customer, is prima facie governed by the rules of agency developed at common law, together with a statutory overlay. The Financial Services Act 1986 introduced the statutory concept of the appointed representative, which allowed regulated persons to appoint other persons for whom they accepted regulatory responsibility, and as a measure of consumer protection initiated a regime of vicarious responsibility, whereby the appointing principal was deemed responsible for everything said or done, or not said or done, by its appointed representatives. That regime was continued and expanded to the whole financial services industry by the Financial Services and Markets Act 2000.
Financial Promotion
Authors: McMeel Gerard
Published: June 2017

This chapter focuses the two financial promotion regimes created by the provisions of the Financial Services and Markets Act 2000. First, there is the regulatory prohibition on unauthorized persons making a financial promotion. Secondly, a wholly different regime applies in respect of authorized persons. The supposed rationale for the detailed restrictions on financial promotion is the complexity of and long-term commitments inherent in many financial products.
Standards of Conduct:
Authors: McMeel Gerard
Published: June 2017

This chapter discusses the rules and regulations setting the appropriate standard of behaviour for those who proffer financial advice and retail financial products. It explains the rules for the carrying on of financial services business, and in particular how contracts are formed and performed. It details the standard of care in negligence and the three pillars of the modern standard of behaviour required of a financial adviser: the obligations to know the client, to make suitable recommendations, and to provide an adequate understanding of risk. These are the principles underlying the detailed requirements of the conduct of business rules.
Standards of Conduct in General Insurance Business
Authors: Webb Mahrie
Published: June 2017

This chapter discusses the rules and regulations setting the appropriate standard of behaviour for those engaged in the insurance business. It explains the regulation of insurance mediation activities by the Financial Conduct Authority. It outlines the specific requirements for communications, including financial promotions, non-investment insurance contracts, and relevant exemptions from the rules.
Regulation of Consumer Credit Business by the Financial Conduct Authority
Authors: McMeel Gerard
Published: June 2017

This chapter discusses the Financial Conduct Authority's (FCA) regulation of the consumer credit industry. It begins with an introduction to the consumer credit regime. It then details the scope of regulated credit-related activities, covering the rules for entering into a regulated credit agreement; entering into a regulated consumer hire agreement; operating an electronic system in relation to lending; credit broking; and debt adjusting, debt-counselling, debt-collecting and debt administration. This is followed by discussions of the authorisation, supervision, and enforcement of credit-related activities and credit firms by the FCA; conduct of business standards; and the rights of action and complaints to the Ombudsman.
Defending Claims
Authors: Virgo John
Published: June 2017

This chapter considers the firm's response upon receiving a claim for financial mis-selling. It focuses on broader issues of general application to all aspects of claims response. It discusses the need for firms to notify any professional indemnity insurers of the claim and determine which documents are protected by either legal advice privilege or litigation privilege.
Defences
Authors: Virgo John
Published: June 2017

This chapter first considers the available defences (both complete and partial) to claims for the mis-selling of financial products. It then discusses the provisions of the Limitation Act 1980; the concept of causation; situations in which contributory negligence may arise; circumstances in which recourse for contribution may be available against third parties where a defendant becomes exposed to a claim for mis-selling; and the defence of contractual estoppel.
Hong Kong’s Financial Markets
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

The chapter provides an in-depth discussion and analysis of finance in Hong Kong, today one of the world’s major international financial centres, focusing on historical developments along with some of the unique or unusual features of those markets. The chapter considers financial law in relation to financial activity as a whole, and within each segment of Hong Kong’s markets. Hong Kong has been a port of trade since the mid-nineteenth century and subsequent centre of commerce. However, only recently has it developed as a major financial centre. It is known for its unusual institutional foundations, the nature of which are analysed and contrasted at intervals in this book with those of other sophisticated financial hubs.
Banking Regulation and the Hong Kong Monetary Authority
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

This chapter explains the legal and institutional framework for banking in Hong Kong. It discusses the regulation of financial intermediaries, products, and services in the context of a framework based largely on the Banking Ordinance, the Exchange Fund Ordinance, and the Clearing and Settlements Systems Ordinance, supported by ordinances derived from international best practice. The chapter summarizes the main functions of the Hong Kong Monetary Authority (HKMA). Established in 1993, the HKMA maintains Hong Kong as an international financial centre and ensures that Hong Kong’s legal and regulatory framework for banks is comprehensive and of an international standard. At the same time, the chapter argues, the system’s many divisions allow certain risks to remain unaddressed. A specific area of concern applies to financial conglomerates, in that there is no clear division of regulatory responsibility in the case of the insolvency of a financial conglomerate.
Financial Derivatives
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

This chapter examines the financial derivative instruments traded and used in Hong Kong. The chapter describes the current main types of financial derivatives, their uses and risks, and examines Hong Kong’s twofold approach to their regulation. It also raises questions that may not be fully addressed in any major financial jurisdiction; for example, how the law accounts for relatively new, sophisticated contracts, especially in relation to user protection; whether related areas of law such as bankruptcy may conflict with what has become customary derivative market practice; and how credit risk transfer facilitated by derivative instruments may conflict with established precepts of financial regulation. Lastly, it considers whether links between the territory’s regulators and the stock exchange are well-suited to the supervision of certain derivative activity and to investor protection.
A Guide to the HKIAC Arbitration Rules
Authors: Moser Michael , Bao Chiann
Published: June 2017

This book provides a detailed commentary on the Hong Kong International Arbitration Centre (HKIAC) Administered Arbitration Rules providing practitioners with an insider’s perspective on how the HKIAC Secretariat administers arbitrations under these rules. HKIAC is one of the world’s most sophisticated arbitration institutions, which established a set of Administered Arbitration Rules in 2008. Since then, HKIAC has enjoyed a continued yearly growth in cases. In 2015, HKIAC saw a record number of arbitration cases in 2012. This guide makes reference to the Hong Kong Arbitration Ordinance as well as drawing comparisons with other institutional rules and the UNCITRAL Model Rules to emphasize key issues to consider when drafting an arbitral clause or strategizing over the conduct of an arbitration. As well as offering an insider’s perspective it provides examples of anonymous cases handled at the HKIAC, and a discussion on various issues arising from arbitrations involving mainland parties or enforcing arbitration awards in mainland China. The book not only draws from seven years’ experience administering arbitrations under the HKIAC Administered Arbitration Rules (2008) but highlights the various changes made in the revised Rules that came into effect in November 2013 benefiting from privileged access. The book begins with an introduction to the HKIAC, including a history with statistics and details of other services provided by the HKIAC itself. The commentary then goes on to examine each article in depth. Relevant supporting documents are appended including Recommended HKIAC Arbitration Clauses, HKIAC Administered Arbitration Rules (2013), UNCITRAL Arbitration Rules 2010, and the Hong Kong Arbitration Ordinance.
Model Arbitration Clauses
Authors: Moser Michael , Bao Chiann
Published: June 2017

This chapter discusses the purpose and function of model arbitration clauses. A model arbitration clause recommended by an arbitral institution provides for the essential elements of an arbitration agreement. Such model arbitration clauses are of a general nature and are thus suitable for many different types of agreements. Parties who choose to include an arbitration clause in their agreement may in addition modify a model clause to suit their needs. With these in mind the chapter begins with a general discussion of the nature and scope of model arbitration clauses, followed by an overview of the components of HKIAC model clauses. The chapter then concludes with a discussion of some further considerations for arbitration clauses.
General Provisions of the HKIAC Rules (Articles 1–3)
Authors: Moser Michael , Bao Chiann
Published: June 2017

This chapter examines those provisions that generally frame an arbitration under the HKIAC Rules. It first discusses Articles 1.1, 1.3, and 1.4 (scope of application of the HKIAC Rules and arbitrations which may be administered under the HKIAC Rules) as well as Article 1.2 (how the HKIAC Rules interact with the other rules promulgated by the HKIAC). The chapter then turns to Articles 2.1 and 2.2 (how notices and other written communication should be delivered and when they will be deemed to have been received). Next, the chapter examines Articles 2.3 and 2.4 (calculation of time limits under the HKIAC Rules). Article 3 (definitions of key terms used throughout the HKIAC Rules) is last to be discussed.
Duck-Rabbits, a Panel of Monkeys, and the Status of International Arbitrators
Authors: Rogers Catherine A
Published: June 2017

This chapter examines the dual role of arbitrators as service providers and adjudicators. The public conceptualization of international arbitrators has often leaned towards seeing them as either contract providers of sorts or adjudicators, but never both. The arbitrator's status is thus often a conflict between ‘service provider’ and ‘justice provider’. Yet arbitrators are, as discussed in previous chapters, professionals whose ethics are grounded in real-world perspectives. This chapter analyses several ideas and philosophies that corroborate a dual conception of the ideal arbitrator as both service provider and justice provider, and that neither aspect is independent from the other. Several institutions across the world are beginning to recognize this duality, fortunately, as the greatest strength of an international arbitrator is his ability to straddle these dual roles, rather than subject themselves to mere one-dimensional representations.
Redfern and Hunter on International Arbitration
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This sixth edition of Redfern and Hunter on International Arbitration takes a fresh look at the law and practice of international arbitration in today’s world, against a background of constant change and evolution. Since the fifth edition of this book was published in 2009, there have been major changes in many national laws governing international arbitrations, as states seek to become ‘arbitration friendly’ by introducing new laws based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law. There have been changes too in some of the best-known rules of arbitration, including new UNCITRAL Rules of Arbitration (2010), new International Chamber of Commerce (ICC) Rules of Arbitration (2012), and, in October 2014, new Rules from the London Court of International Arbitration (LCIA). There have also been important developments in the so-called soft law of international arbitration. In 2010, the International Bar Association (IBA) published a revised version of its Rules on the Taking of Evidence in International Arbitration, and followed this up in 2014 by publishing new and important Guidelines on Conflicts of Interest in International Arbitration. This sixth edition of Redfern and Hunter reviews the many changes that have taken, and are taking, place in the law and practice of international arbitration, and it places these changes in context as part of the constant evolution of a voluntary system of dispute resolution that is today recognised and established worldwide.
Arbitration under Investment Treaties
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This chapter describes the arbitration process under international investment treaties, in particular under the Washington Convention of 1965. This Convention aimed primarily to create a new arbitral forum for the resolution of disputes between investors and states by means of the inclusion of arbitration clauses in state contracts. The travaux préparatoires of the Convention also made clear that the consent of the state to arbitration could be established through the provisions of an investment law, which prompted many states to develop a programme of bilateral treaties for the promotion and protection of investments, so-called bilateral investment treaties (BITs), which set out protections in favour of foreign investment. The dramatic growth of BITs since the mid-1980s has led to the adoption of similar provisions in the ‘investment chapters’, or collateral agreements, to multilateral economic cooperation treaties, such as the Association of Southeast Asian Nations (ASEAN) Comprehensive Investment Agreement.
Recognition and Enforcement of Arbitral Awards
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This chapter examines the recognition and enforcement of arbitral awards. It discusses the carrying out, or performance, of awards, so as to place recognition and enforcement in their proper context. In arbitration, if the losing party fails to carry out an award, the winning party needs to take steps to enforce performance of it. Two steps may be taken. The first is to exert some form of pressure, commercial or otherwise, in order to show the losing party that it is in its interests to perform the award voluntarily. The second is to invoke the powers of the state to obtain a charge over the losing party’s assets or in other ways to compel performance of the award. Pressure may also be exerted through adverse publicity. This method is adopted by trade associations and has the effect of discouraging other traders in the market from dealing with the defaulting party.
The Scope of Inquiry:
Authors: Llamzon Aloysius P
Published: June 2017

This chapter analyzes the nature of international investment arbitration and how that modality of dispute settlement differs from international commercial arbitration. The most obvious difference between investment and commercial arbitration is the nature of the parties' consent to arbitrate. In contract-based commercial arbitration, consent is expressed in a mutual, largely contemporaneous exchange of promises to bring a present or future dispute to arbitration. But in investment treaty arbitration, the host State's consent is usually expressed as an open offer of arbitration for all nationals of the counterparty State to the investment treaty. Investment arbitration proceedings also operate at high levels of transparency relative to commercial arbitration.
Emergent Trends
Authors: Llamzon Aloysius P
Published: June 2017

This chapter identifies nine trends that have emerged from the two decades of arbitral treatment of corruption issues by investment tribunals. Among these are that corruption cases are almost never outcome-determinative; corruption is raised almost three times as much by host States as by investors, and often invoked by host States as a complete defence against all investor claims; investors raise corruption less frequently and have never successfully secured a corruption finding; and that the treatment of corruption issues varies according to who is making the allegation; and this asymmetry has real implications on the outcome of cases.
Insurance
Authors: Benatar Martin
Published: June 2017

This chapter considers the approach taken by financiers to insurance in project finance transactions. Itfocuses onthe types of insurances that lenders will require (such as material loss insurance, consequential loss insurance, and liability insurance),why financiers typically require insurance to be procured and controlled by the project company, and how commercial influences such as the creditworthiness of the insurers and re-insurance requirements impact upon a project finance insurance programme.In addition to examining general insurance law principles (such as full value coverage and the treatment of force majeure), this chapter also considers the provisions that are customarily endorsed on project insurance policies for the benefit of the lenders (such as a broker’s letter of undertaking).
Principal Loan Finance Documentation
Authors: Cox Vicky , Holmes Patrick
Published: June 2017

This chapter considers a number of the more significant documentary issues commonly encountered in relation to the core financing documents for a project. It provides an overview of the ways in which multiple tranches of debt provided by different lenders and lending groups are made available to a project and includes an analysis of various clauses found in the principal financing documents, with particular focus on financial covenants and the ways in which lenders seek to regulate the project company’s cashflows. The chapter also discusses a number of the key intercreditor issues that arise in the context of multi-sourced financings and looks specifically at the following agreements which commonly form part of the contractual matrix for a project financing: credit agreements, common terms agreements, accounts agreements, intercreditor agreements, ECA facility agreements, mezzanine facility agreements, and equity bridge facility agreements.
Islamic Project Finance
Authors: Dewar John , Hussain Munib
Published: June 2017

This chapter analyses the priorities of Islamic financial institutions in financings, and how Islamic finance techniques are applied in project financings. For those unfamiliar with Islamic finance, this chapter first introduces Islamic finance by considering the sources of Islamic finance, followed by an analysis of the principles and financing techniques that underpin Islamic finance. This background is intended to enable the reader to better understand the ensuing discussion of the issues that commonly arise in a project financing that is entirely or in-part financed with sharia’a-compliant funding, including istisna’a-ijarahand wakala-ijarah facilities, and project sukuk.Then, the focus is turned to assess how Islamic project finance techniques are utilized in practice, in particular, in the context of multi-sourced project financings.
Project Finance in Civil Law Jurisdictions
Authors: Maffei Antoine , Cazali Jean-Renaud
Published: June 2017

This chapter analyses the origins of project financing under civil law since the origins of the concession systems, especially in France, and its influence on the project financing and on the existing legal corpus applicable to public contracts. A large part of the chapter is dedicated to the issues arising from secured lending and to the various types of security interests available in civil law jurisdictions. The authors also describe the OHADA legal system seeking to harmonize business laws in Africa. The OHADA is deeply influenced by French civil law. A recent reform relating to security has incorporated in the OHADA Uniform Act several security interests practised and developed in the last 30 years in France.
Dispute Resolution in Project Finance Transactions
Authors: Nolan Michael , Canning Tom , Culbertson Erin , Hogwood Emma , Kinninmont Paul
Published: June 2017

Dispute resolution mechanisms in the project finance context are a means of enforcing the allocation of risksamong a project’s many participants. Swift, flexible, final, and enforceabledispute resolution mechanisms allow a project’s intended risk allocations to be maintained. This chapter identifies various dispute resolution mechanisms available to project participants. Much of the chapter is devoted to exploring the advantages and disadvantages of two dispute resolution regimes—litigation and international arbitration—including looking at enforcement. It considers how investment treaties provide additional protection against political risk factors faced by cross-border projects and describes typical dispute resolution fora(such as ICSID)for investor–state disputes. The chapter also provides a ‘toolkit’ for drafting dispute resolution provisions designed to achieve participants’ goals.
Introduction
Authors: Schaffstein Silja
Published: June 2017

This introductory chapter discusses the judiciary problems that may arise from the increasing number of multi-fora disputes in the international arbitration. International arbitration is widely considered to be the principal method of dispute resolution for international commercial disputes, which commonly involve multiple parties, contracts, and issues. The multiplicity of the subjects involved in the disputes often results in conflicts concerning the proper forum to be applied, and give rise to the question: if a national court renders a decision on the jurisdiction of the arbitral tribunal, would the arbitrators be bound by the prior decision, or could they decide anew whether they have jurisdiction? If the arbitrators are bound by a national court judgment, the parties’ arbitration agreement may be frustrated. On the other hand, if the arbitrators are not bound by the prior judgment and decide that there is a valid arbitration agreement, parallel court and arbitration proceedings may ensue.
Res Judicata Issues Arise in International Commercial Arbitration
Authors: Schaffstein Silja
Published: June 2017

This chapter presents varying situations in which issues concerning the res judicata doctrine arise before arbitral tribunals. These situations may be sorted into four categories, based on the nature of the court or tribunal having rendered the first final and binding decision. First, situations that arise between arbitral tribunals and state courts; second, between different arbitral tribunals; third, within a same arbitration proceeding between a partial and a final award and lastly, between supra national courts or tribunals and arbitral tribunals. The fourth category concerns mostly investment protection treaty cases. Because of the proliferation of multiple proceedings and an increasing bifurcation of arbitration proceedings, the number of cases in which arbitrators will have to deal with res judicata issues will also increase.
Transnational Res Judicata Principles for International Commercial Arbitral Tribunals
Authors: Schaffstein Silja
Published: June 2017

This chapter explains principles of the res judicata doctrine for international commercial arbitral tribunals based on transnational law. There are two main values that transnational litigation upholds in determining the scope of the preclusive effects of a prior judgment in one country and the subsequent proceedings in another country. First, a judgment must be accepted in the recognising state with the original effects it would have in the state in which it was first rendered. Thus, the law of the country, where the first judgment was rendered, will determine the judgment’s preclusive effects in the subsequent proceedings. Second, the application of the law of the rendering state should preserve the integrity of the rendering state’s judicial system and that state’s resources.
Conclusion
Authors: Schaffstein Silja
Published: June 2017

This chapter concludes that the questions arising from the doctrine of res judicata in international commercial arbitration is only one aspect of a greater problem — the coordination of jurisdictions between arbitral tribunals and other national, international, and supra-national courts and tribunals. The parallel coexistence of these courts and tribunals, coupled with the increasing complexity of international disputes that involve a multitude of closely related parties, contracts, and issues, will inevitably lead to conflicts of jurisdiction. These conflicts not only raise questions of res judicata, but also of the applicability of other jurisdiction-regulating mechanisms, such as lispendens, forum non conveniens, consolidation, and joinder, as well as the availability of anti-suit and anti-arbitration injunctions of damages for the breach of arbitration agreements.
General Introduction
Authors: Grant Tom , Brent Richard
Published: June 2017

This book is concerned with the emergence of an international law of money laundering. The Introduction explains that a re-ordering of international monetary relations after World War II necessitated new approaches to the law of money in general. Epochal changes in monetary relations across borders have resulted in review and revision of the rules of international law concerned with money, and, accordingly, governments, legislatures, courts, and commentators have needed to re-visit those rules occasionally. The international law of money laundering has mostly been grafted upon the world’s monetary system; it has not involved the creation of a completely new system. However, the Introduction argues, it has had a significant impact. The impetus that has led states and international organizations to adopt money laundering rules at the international level is a reaction to a threat, or series of threats, originating largely outside the system. These threats include: organized crime on an international and macro-economic scale; terrorism; and the need to change the conduct of some states. This book as a whole presents an account of international law in its present evolving state in the field of tainted money. The chapters herein aim to address the law as it currently is; and close with a look at where the future of money might take us and those who aim to regulate its misuse.
International Legal Sources I—the United Nations Conventions
Authors: Png Cheong-Ann
Published: June 2017

This chapter looks at the origins of the international regulation of tainted money. This has its origins in laws concerning drugs, in particular the illicit production and trafficking of drugs and the connection of that trade to organised crime. More recently, terrorism, whether financed from the proceeds of crime or tainted money or with legitimate funds, has come under the rubric of the international regulation of tainted money as well. The chapter describes how the principal international initiatives in the development of international law and standards in these areas have been at the levels of the United Nations (UN) and the Financial Action Task Force (FATF). The UN conventions and UN Security Council resolutions as well as the FATF Recommendations, the chapter concludes, should be kept in view when considering proceeds of crime and tainted money. This chapter provides a framework for understanding these instruments, including their implications for domestic law and practice.
Money Laundering Offences under POCA 2002
Authors: Fortson Rudi
Published: June 2017

This chapter begins by providing an introduction to the issue of money laundering by looking at the scale of it on the international level and the current rules and provisions. It next provides a brief history of UK money laundering legislation. Specifically it looks at the position prior to the Proceeds of Crime Act (POCA) 2002. It examines current money laundering statutory provisions and European Union (EU) instruments which are employed to combat money laundering. The next section of the chapter looks at the words, phrases, and concepts of POCA 2002. It also examines the main money laundering offences. Other offences are discussed in detail. It ends with a look at the various institutions and professionals required to prevent money laundering.
Regulatory Responsibilities
Authors: Brent Richard
Published: June 2017

This chapter looks at the Money Laundering (ML) Regulations of 2007. These regulations implement both the Third Money Laundering Directive and the first implementing directive of the EC Commission. For the most part, the ML Regulations 2007 adopt the ‘copy-out’ or ‘direct incorporation’ method of transposing the Community measures into English law. This means that there is a verbatim transposition of the provisions of the directive into national law. This has an obvious advantage and difficulty. The advantage is that it ensures that all of the provisions of the directive are transposed into English law. The difficulty is that it can create uncertainty. That is to say, it removes from the domestic legislature the responsibility for interpreting Community concepts in an English law context and instead imposes that burden on individuals who have to decide how these measures are to be applied in practice. The chapter also looks at the Financial Action Task Force (FAFT) recommendations.
Introduction
Authors: Douglas Zachary , Bodnar Andrew
Published: June 2017

Private international law plays an important role in determining whether victims of corruption and commercial fraud can obtain private redress in the national courts. If the principles and rules of private international law are incoherent or parochial in design or in application, then private remedies against fraudsters may be jeopardized merely because the fraud has transnational elements. The chapter asks: can a fraudster avoid the jurisdiction of the victim’s courts by planning and implementing the fraudulent scheme in an ‘offshore’ territory? It also asks: can a victim trace misappropriated funds which have passed through accounts in different jurisdictions if the national law of one of those jurisdictions does not recognize the victim’s right to trace such funds? The answers to such questions are provided by private international law.
Deceit
Authors: Douglas Zachary , Bodnar Andrew
Published: June 2017

This chapter considers issues connected to deceit. For a claim in tort for deceit, the claimant must establish that, firstly, the defendant made a representation which was false, secondly, knowingly or recklessly and, thirdly, the claimant acted upon that representation. If the claim in deceit is established, the defendant is liable for all consequential loss flowing from the deceit regardless of whether the claimant was negligent in failing to discover the falsity of the representation. The chapter then looks at a real scenario of a case of deceitful behaviour. It also examines the relevant jurisdiction and applicable law, including cases where the defendant is domiciled in England, in another Member State, or in a non-Member State.
Judicial Cooperation Including Obtaining Evidence
Authors: Peddie Jonathan
Published: June 2017

This chapter argues that there is potential for conflict between common and civil law jurisdictions where the approach to preparation for trial, and through that the taking of evidence, differ to a large degree. In common law jurisdictions, where it is usual for private parties to be proactively involved in the evidence gathering process, it will not seem irregular for evidence to be taken by an agent of a foreign court for the purpose of proceedings on foot in that court. Such an approach may, however, offend the rules of civil law jurisdictions, where the obtaining of evidence, at least in criminal matters, is primarily the role of the judiciary. To address this potential for conflict, a number of pieces of legislation and bilateral and multilateral civil procedure conventions have evolved over time to facilitate official intervention in order to obtain cross-jurisdictional assistance in the gathering of evidence for the purpose of both civil and criminal proceedings. The various ways in which assistance may be sought by or obtained from the English courts are explored in this chapter.
The Historical and Normative Background:
Authors: Azaria Danae
Published: June 2017

Chapter 2 examines the development of ‘freedom of transit’ in international law. It provides the historical and normative landscape for treaties on transit of energy via pipelines and offers a basis for academic comparison in the following chapters. The chapter begins with the analysis of the development of rules concerning transit through waterways (cross-border rivers, international canals, transit at sea), and continues by examining the development of rules concerning transit overland through the prism of the historical transition from the League of Nations to the United Nations and the debate about transit rights of landlocked states. It illustrates that in international law, the development of ‘freedom of transit’ via different routes came about separately, and served diverse purposes, for particular routes and for particular groups of states. However, in each case the balance between the interests of the transit state and those of other states underlies all rules concerning transit.
The Nature of International Obligations Regarding Transit of Energy:
Authors: Azaria Danae
Published: June 2017

Chapter 4 classifies treaty obligations concerning transit with a view to determining which state is injured under the law of international responsibility and can invoke responsibility including by recourse to countermeasures against the responsible transit state. The question posed is to whom is each obligation owed. The analysis in this chapter also assists in determining which treaty party may have recourse to means available in the treaty where the treaty does not contain sufficiently express rules on standing, a matter which is analysed in Chapter 6. The analysis illustrates the polyphony of primary rules vis-à-vis their nature, and argues that bilateralism is not the only model in this area of international law (either in form or in substance). Rather, a number of treaties create collectively owed obligations: some erga omnes partes and some interdependent..
Countermeasures as Circumstances Precluding Wrongfulness of Transit Interruptions
Authors: Azaria Danae
Published: June 2017

This chapter examines countermeasures as circumstances precluding wrongfulness in the form of interrupting established transit flows of energy. It shows that although the GATT and the ECT do not exclude such countermeasures, some bespoke pipeline treaties may be interpreted in this manner. The chapter then analyses the conditions of lawfulness of countermeasures in the form of interrupting established energy flows focusing on three conditions of particular importance in the context of transit of energy. First, it examines the impact on third treaty parties (or third states). Second, it analyses proportionality. Third, it discusses the impact of interruption of transit of energy on human rights of individuals located in the states of origin (exporters) and of destination (importers). It argues that despite the limitations on extraterritorial application of human rights in this scenario, countermeasures taken in the form of suspending compliance with obligations concerning energy transit (or exports) may be disproportionate.
Principles of International Financial Law
Authors: Bamford Colin
Published: June 2017

The book examines a number of legal concepts developed in the common law world that form the foundation of the operation of international financial transactions. It does not deal with the detailed rules that govern financial transactions, but rather with the ideas that gave rise to the present rules and which, when those rules change, will underpin the new rules that replace them. The aim is not to give an academic analysis of detailed legal rules but to help practitioners better understand the rules with which they deal and where the rules came from. International finance is an area of legal practice that constantly changes. Legal practitioners can master that process of change only if they fully understand the principles and concepts on which the structure is built. The book is divided into eleven chapters dealing with a wide range of ideas; the legal nature of money; the meaning and mechanisms of payment; the relationship in common law between personal legal rights and rights of property; the nature of intangibles as property; the structure of international bond documentation; fiduciary duties in the general law and in financial markets; mechanisms of credit support; the nature of security interests; and the construction and interpretation of financial contracts.
Money
Authors: Bamford Colin
Published: June 2017

The chapter deals with the legal aspect of the fundamental concept in all financial transactions — money. It explains why an understanding of the idea is essential to the development of financial transactions. It deals with the treatment of money in English law, both in statute and in case-law, and also examines the development and the concept of the European Single Currency and of virtual currencies. It concludes with a discussion of the basis on which states seek to control the use by others of their currencies.
Payment
Authors: Bamford Colin
Published: June 2017

The chapter examines the process of payment, both as a description of the way in which a monetary obligation is discharged, and as a process by which money is transmitted from one person to another. In the former case, the chapter describes the operation of set-off, netting, consolidation of accounts, and the operation of running accounts. In the latter case, it deals with the mechanisms for payment in the UK, internationally and at the level of the EU through the TARGET2 system, focusing in each case on the process of clearing through the central bank of the currency concerned.
Intangibles as Property
Authors: Bamford Colin
Published: June 2017

The chapter examines the legal nature of intangible property and the distinction between choses in action and choses in possession. It discusses the characteristics of choses in action, particularly the quality of assignability. It then looks at the ways in which intangibles can be dealt with and transferred, legal and equitable assignment, sub-participation, novation, the mechanism of attaching the intangible to a physical item, and transfer by means of a declaration of trust. Finally it discusses the idea adopted by the Uniform Commercial Code of the United States, of creating ‘hybrid rights’.
Fiduciary Duties and How They Arise
Authors: Bamford Colin
Published: June 2017

This chapter looks at the concept of fiduciary duties and examines the history of the idea from its emergence over a century ago through to its treatment in modern cases. It then examines the identification of relationships that are fiduciary in nature, and goes on to discuss the nature of the fiduciary duties that arise in such a relationship, in particular the duty of good faith, the duty not to make a secret profit and the ‘no conflict’ rule.
Fiduciary Duties in Financial Markets
Authors: Bamford Colin
Published: June 2017

This chapter builds on the previous one by considering the concept of fiduciary duties in the context of commercial transactions, and then in the context of financial arrangements. Although commercial dealings do not usually lend themselves to the formation of fiduciary relationships, the chapter identifies a number of types of arrangement where the concept might apply. It discusses the interplay between the duties that arise from a fiduciary relationship and the obligations that flow from the exchange of confidential information in a commercial transaction. The chapter then turns to consider the role of fiduciary duties in financial transactions, particularly in the dealings between banks and their corporate customers. It concludes by looking at the regulatory rules that safeguard the interests of retail customers, and compares the obligations that these rules place on businesses with the duties that flow from fiduciary relationships.
Security Interests
Authors: Bamford Colin
Published: June 2017

The chapter discusses the ways in which a creditor can obtain the benefit of the value of an asset to support a debt that he is owed. By way of introduction, it examines the reasons for taking security, the difficulties of terminology and the issues around registration. It then looks at the different forms of security, drawing a distinction between title-based security (mortgage, charge, pledge, lien, transfer of retention of title and declaration of trust) and contract-based security, where the creditor looks to an asset as security without having any property interest in the asset. Examples given are set-off, netting and running accounts. It then discusses reverse security, where the purpose of the arrangements is not to enhance the prospects of the creditor, but to limit the liability of the debtor. It discusses the use of special-purpose vehicles, third party security, and non-recourse and limited-recourse lending.
Auctions and Tenders
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

This chapter discusses the process of making contracts by auction and by tender. Although these processes are different they have important features in common both in fact and in law. Reasoning from one transaction has been carried over to the other. Both auctions and tenders are an attempt to achieve the best price by competition without entering into negotiations. Auctions are typically used to sell valuable chattels such as paintings or houses or other buildings. Competitive tendering is commonly used for the procurement of services, particularly in the construction industry. Here the assumption is that those who desire the work will bid the lowest price they can afford, thus ensuring a low price for the person procuring the service.
Insolvency in the UK and the US
Authors: Olivares-Caminal Rodrigo , Douglas John , Guynn Randall , Kornberg Alan , Paterson Sarah , Singh Dalvinder
Published: June 2017

This chapter starts by presenting the case for a comparative approach of the UK and US models for financial restructurings of companies in financial difficulties. It argues that a comparison is useful as the systems used to deal with financial problems are actually very dissimilar. The US has its chapter 11 regime, which is a statutory process under the Bankruptcy Code. This allows a company to restructure under court protection and does not require proof of insolvency. The English system has, by contrast, a mixed approach of contract, common law, and statute and no formal regime specifically designed to achieve a financial restructuring of secured debt. The chapter also considers what changes have occurred since the first edition of this book was published.