bluuebunny/crossref_metadata_2025 huggingface dataset:
Germany
Authors: Happ Richard
Published: June 2017

This chapter evaluates the merits of Germany as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Germany; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that Germany offers a modern and effective legal framework for international arbitration. As in other popular arbitration jurisdictions, there are deviations from the United Nations Commission on International Trade Law (UNCITRAL) Model Law regarding the courts' control of and assistance in the proceedings that do not affect Germany' s general suitability as arbitration venue. Nevertheless, a German venue is not always on the shortlist of counsel and arbitral tribunals. One possible obstacle in the minds of foreign lawyers is that there is not a single German arbitration venue akin to London for the United Kingdom or Paris for France. Instead, there are at least six suitable venues in Germany. The ability to choose should not be seen as an obstacle, but rather as an advantage.
Hong Kong
Authors: Moser Michael , Choong John
Published: June 2017

This chapter evaluates the merits of Hong Kong as a venue for international arbitration proceedings. Hong Kong is a Special Administrative Region of the People's Republic of China (PRC). British rule ended in 1997, with the PRC assuming sovereignty under the ‘one country, two systems’ principle. Hong Kong has long been one of the leading arbitral seats in Asia. Its prominence as a leading arbitral seat is due in large part to the establishment of the Hong Kong International Arbitration Centre (HKIAC) in 1985 and adoption in 1990 of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. Arbitration law and practice has remained unaffected by the handover to the PRC. Today Hong Kong continues to be widely regarded as one of the leading arbitral venues in Asia, particularly for China-related disputes. In addition, Hong Kong is also increasingly seen as one of the leading international arbitration seats worldwide.
India
Authors: Mukhopadhaya Ciccu
Published: June 2017

This chapter evaluates the merits of India as a venue for international arbitration proceedings. It discusses the history and development of arbitration in India; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. Many arbitration practitioners lament the current state of affairs in India. Delays are common at nearly every stage of arbitration, from the very constitution of the tribunal, to the conduct of the arbitration proceedings, and the delivery, challenge, and enforcement of awards. India is not equipped with good hearing centers. Hearings are usually held in luxury hotels, adding to cost. Transcription facilities are also not available.
São Paulo
Authors: Serec Fernando Eduardo , Neto Antonio Marzagão Barbuto
Published: June 2017

This chapter evaluates the merits of Sao Paulo as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Brazil; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. IT concludes that Sao Paulo's status as Brazil's leading center for business and financial transactions makes it the perfect breeding ground for arbitration. From the creation of the first arbitration center in 1979, to the consolidation of an ‘arbitration culture’ by the relentless work of the local arbitration community, Sao Paulo remains Brazil's preferred venue for arbitral proceedings. The decisions by the local courts represent the most compelling evidence that Sao Paulo is comparable to other major international arbitration venues.
Singapore
Authors: Oo Minn Naing
Published: June 2017

Singapore is currently one of the world's leading arbitration destinations. In addition to having recently hosted the 21st Congress of the International Council for Commercial Arbitration (ICCA), the reputation of the Singapore International Arbitration Centre (SIAC) and Maxwell Chambers as being among the leading arbitration-related institutions in the world is testament to the growing significance of international arbitration in the Asia-Pacific region, as well as to the leading role that Singapore has played in contributing to the collective jurisprudence, expertise, activity, and interest in international arbitration. This chapter considers the provisions of the statutory regime and jurisprudence that contributed to establishing Singapore as a pro-arbitration jurisdiction. It provides selected ‘snapshots’ of the current legislative framework as well as recent judicial decisions in the Singapore courts on issues relating to international arbitration.
Stockholm
Authors: Andersson Fredrik , Löf Kristoffer
Published: June 2017

This chapter evaluates the merits of Stockholm as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Sweden; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that the legal framework, the practice of the courts, and the experience of Swedish arbitration practitioners, all ensure an arbitration-friendly environment at the highest international standards. Stockholm and the Stockholm Chamber of Commerce (SCC) have long maintained a position as a preferred venue for resolving international disputes in general and disputes with an East-West dimension in particular. The long tradition of arbitration in Sweden has yielded a rich body of case law relating to arbitration, providing for a predictable procedure. The Swedish courts respect and enforce arbitration agreements and do not interfere unduly in arbitration proceedings. Awards cannot be challenged based on the merits and can be set aside only on the basis of serious procedural irregularities or narrowly defined issues of non-arbitrability or public policy.
Switzerland
Authors: Brown-Berset Dominique , Grisel Diane
Published: June 2017

This chapter evaluates the merits of Switzerland as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Switzerland; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. Switzerland is one of the preferred venues for international arbitration due to its neutrality, central location in Europe, multi-lingual and multi-cultural environment, established infrastructure, experienced bar with a long tradition of comparative law, prominent scholars who contribute to the development of international arbitration theory and practice, and the dynamic Swiss Arbitration Association (ASA). Given this thriving environment and its combined tradition and history of arbitration, Switzerland will continue to foster and contribute to the development of international arbitration as the preferred means of dispute resolution in commercial matters.
Sydney
Authors: AO Doug Jones
Published: June 2017

This chapter evaluates the merits of Sydney as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Australia; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that Sydney has a robust legal framework that adheres to internationally accepted standards. Its judiciary is independent and supportive of arbitration, and Sydney offers affordable and convenient facilities for arbitration, as well as effective institutional support and the availability of specialized legal advice. Given its proximity to some of the world's economic hubs, Sydney is an ideal option for parties who are interested in an affordable, independent, and supportive seat for international arbitrations.
United States (New York, Miami, Houston)
Authors: Fellas John , Elul Hagit
Published: June 2017

This chapter evaluates the merits of the United States as a venue for international arbitration proceedings. It discusses the history and development of arbitration in the United States; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that the United States — and New York, Florida, and Texas, in particular — offers a favorable venue for international arbitration. The Federal Arbitration Act offers a simple, yet effective, framework for the enforcement of arbitration agreements and arbitral awards. US courts will act to further the strong federal policy in favor of arbitration by strictly enforcing arbitration agreements and awards, while at the same time minimizing judicial interference into the arbitral process. In addition to enjoying legislative and judicial support, parties to international arbitration can find the institutional support they need from experienced arbitral institutions that offer well developed arbitral rules.
Arbitration in Singapore
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter examines the Singapore International Arbitration Centre (SIAC) in an examination of the significant features of arbitration in Singapore. The SIAC has received over 1,800 cases in 20 years. The rise of Singapore as a global centre for international arbitration can be traced to a number of factors. The SIAC has modern arbitration laws, state-of-the-art arbitration facilities, and a supportive government and judiciary. It also has a common-law legal tradition coupled with civil-law arbitration practices, and a geographically-well position. Each SIAC rule is analysed against the background of access to the travaux préparatoires of the 2010 SIAC Rules Drafting Committee, as well as involvement in the drafting of the 2013 SIAC Rules.
Legal Framework for Arbitration in Singapore
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter presents the legislative framework and the enforcement of awards in Singapore to discuss its arbitration process. Two statutes regulate arbitration in Singapore — the International Arbitration Act (IAA), which governs international arbitrations held in Singapore, and the Arbitration Act (AA), which governs the non-international arbitrations in Singapore. The chapter examines how courts lend their support and exercise supervisory powers over arbitrations seated in Singapore. Awards rendered pursuant to the International Convention on the Settlement of Investment Disputes (ICSID) Convention may be enforced in accordance with the Arbitration.
SIAC Corporate Structure
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter discusses the corporate structure of the Singapore International Arbitration Centre (SIAC), which is composed of the Board of Directors, the Court of Arbitration of the SIAC, the Chief Executive Officer (CEO), and the secretariat. The Board constitutes lawyers and business executives. They had quasi-judicial functions under the 2010 SIAC Rules. The SIAC Court includes leading arbitration specialists from different countries. It oversees the work of the SIAC Secretariat and performs certain quasi-judicial functions previously performed by the SIAC Chairman and Committees of the Board. The CEO is responsible for the overall management and operations of SIAC, such as business development and marketing functions. The Secretariat is responsible for the day-to-day administration of disputes referred to SIAC, as well as the organization's business development.
Expedited Proceedings
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter presents an overview of the proceedings of the Singapore International Arbitration Centre (SIAC) to address its failure to resolve the expeditious resolution of disputes. There is a tension at the core of modern international arbitration. Parties seek fast, cost-efficient and final dispute resolution; however, the absence of an appeal mechanism for arbitral awards generates a need for comprehensive analysis for retention of the best lawyers and arbitrators. This creates a risk of long and expensive arbitration proceedings. The tension makes international arbitration inefficient in dealing with urgent cases.
Formation and Challenge of the Arbitral Tribunal
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter discusses the formation of the arbitral tribunal. Parties can choose to have their disputes resolved by one or three arbitrators of a tribunal from the Singapore International Arbitration Centre (SIAC), but they cannot ‘appoint’ arbitrators directly to a tribunal, even if they purport to do so in agreement. The majority of SIAC cases are determined by a sole arbitrator. In the absence of an agreement of the parties on the number of arbitrators, the SIAC Rules provide for the appointment of a sole arbitrator unless the Registrar considers that a three-person tribunal is more appropriate.
Jurisdiction of the Tribunal
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter discusses the jurisdiction of the Tribunal in the Singapore International Arbitration Centre (SIAC) arbitration. SIAC Rule 25 confirms the power of the Tribunal to rule on its own jurisdiction with respect to the existence, termination, or validity of the arbitration agreement. If a party objects to the existence or validity of the arbitration agreement, or to the competence of SIAC to administer arbitration, a plea that the Tribunal is exceeding the scope of its jurisdiction shall be raised promptly after the Tribunal has indicated its intention to decide on the matter believed to be beyond the scope of its jurisdiction.
Interim and Emergency Relief
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter discusses the interim and emergency relief process in Singapore International Arbitration Centre (SIAC) arbitration. Interim relief is a temporary step or measure taken by the tribunal or a national court in order for the arbitral proceeding to function effectively. A party involved in SIAC arbitration has three available avenues for seeking interim relief — the tribunal, an Emergency Arbitrator, and a court of competent jurisdiction. The Tribunal may order the party requesting an interim relief to provide appropriate security in connection with the relief. A party needing an emergency relief prior to the members of the Tribunal may seek relief to an Emergency Arbitrator. Courts can grant certain kinds of relief when there is a third party involved in an arbitration — an injunction to prevent the dissipation of assets, destruction of evidence, or parallel proceedings.
Miscellaneous Provisions
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter discusses miscellaneous provisions in the Singapore International Arbitration Centre (SIAC) Rules. Both Singapore law and the SIAC Rules exclude liability for the acts or omissions of those administering and deciding arbitrations. SIAC Rule 35 requires the parties and the tribunal to treat all matters relating to the proceedings and the award as confidential. The decisions of the President, the Court, and the Registrar with respect to all matters relating to arbitration shall be conclusive and binding upon the parties and the Tribunal.
SIAC Domestic Arbitration
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This chapter presents the history of the Singapore International Arbitration Centre (SIAC) Domestic Arbitration Rules. The first edition of the SIAC Rules in 1991 released separate rules for domestic arbitration in May 2001 and in September 2002. SIAC domestic arbitrations are now subject to the same arbitration rules that deal with international cases, with one exception — the power of a tribunal to render a summary award in favour of a claimant or counter claimant if there is no valid defence to some or all of a claim.
International Investment Arbitration
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: June 2017

This is the long-awaited second edition of this widely-referenced work on the substantive law principles of investment treaty arbitration. It forms a detailed critical review of the substantive principles of international law applied by investment arbitration tribunals, and a clear and comprehensive description of the present state of the law. The first edition met with immediate success as a result of the authors’ achievement in describing and analysing the volume of law created, applied and analysed by tribunals. The second edition is fully updated to take account of the arbitration awards rendered in the period since 2007. Written by an internationally recognised author team, it is now the most comprehensive and up to date work in its field and no practitioner or academic can afford to be without it.
Introduction
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: June 2017

This book explains the substantive principles underlying international investment arbitration. The Introduction begins with the proposition that, despite their great variety, investment treaties are not self-contained regimes. They are creatures of international law: their meaning is to be considered in light of the larger system of which they form a part. Having outlined the structure and subject-matter of the book, the Introduction considers the extent to which it can properly be said that there are common principles of investment law, developed through arbitral awards and the practice of States in concluding treaties. It concludes with a discussion of the importance of balanced doctrinal analysis in the development of the field.
Dispute Resolution Provisions
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: June 2017

Chapter 3 examines those aspects of dispute resolution provisions commonly found in bilateral investment treaties (BITs), with particular emphasis on four fundamental issues in the settlement of investment disputes through arbitration: (1) the clauses in investment treaties that provide for investor–State arbitration, focusing on the issue of the existence and limits of the consent to arbitrate; (2) transparency and the extent to which non-parties may be heard in the process; (3) the legal nature of the rights contained in investment treaties within the choice of law framework applicable to investment arbitration, in which both international law and host State law have a role to play; and (4) the overall approach to be taken to the interpretation of BITs under the general rule of interpretation provided in the Vienna Convention. The chapter concludes by discussing the role precedent plays in the development of investment treaty law.
Nationality
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: June 2017

Chapter 5 examines the nationality of the claimant as a jurisdictional condition to the ambit of protections afforded by investment treaties. It first provides an overview of the nationality requirement in investment law before discussing the role of precedent in resolving three key controversial jurisdiction ratione personae issues: (1) the dual nationality of individuals; (2) the problems arising from corporations under foreign control; and (3) the restructuring of corporate nationality in order to seek to achieve the benefits of treaty protection. The chapter analyses the nationality and control requirements of both the ICSID Convention and of investment treaties themselves. It concludes with the effectiveness of denial of benefits clauses.
Investment
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: June 2017

Chapter 6 explores the central concept of ‘investment’. It first considers the core question of the definition of ‘investment’ under the ICSID Convention and under investment treaties. It then takes up four important issues: (1) the time when an investment is made in relation to the temporal scope of the treaty protections; (2) the extent to which pre-contract investment may obtain treaty protection; (3) the place of an investment; and (4) the role of host State law in defining ‘investment’. It then analyses a set of problems that arise out of indirect investments: the relation between the losses suffered by a subsidiary in the host State and the investor’s investment; the rights of minority shareholders; claims brought by holding companies; corporate restructuring as a means to gain the advantage of investment treaties; the position of ultimate beneficiaries; and the position of portfolio investments.
Introduction
Authors: Rieder Markus S , Kreindler Richard
Published: June 2017

This introductory chapter presents a brief overview of the practice of commercial arbitration in Germany against the background of German state court litigation. The term ‘commercial’ here refers to arbitration related to civil law disputes between parties and public international law (especially investment treaty-based) arbitration on the one hand and consumer arbitration on the other hand. Historically, the tradition of arbitration in Germany has its roots in the 1879 version of the Zivilprozessordnung (ZPO), which remained substantially unchanged up until 1997 when it was reformed in order to adapt it to the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration of 1985 with the intention to strengthen the attractiveness of Germany as a locale for international arbitration. The chapter also explores the advantages and disadvantages of arbitration compared to German state court litigation, and discuss special types of arbitration and means of alternative dispute resolution.
The Arbitration Agreement
Authors: Rieder Markus S , Kreindler Richard
Published: June 2017

This chapter explores the arbitration agreement from a variety of perspectives, first looking at the required content and the validity of an arbitration agreement. As an agreement, it is subject to grounds before invalidity and, once found valid, subject to interpretation. In order to qualify as an arbitration agreement, it must relate to a dispute within a defined legal relationship and must provide for arbitration for binding conflict resolution. The chapter then outlines the scope, effects, and issues of the termination of an arbitration agreement. Under German practice, the personal scope of the arbitration agreement extends to its parties, and in certain limited circumstances, it may also extend to third parties. The chapter concludes with typical additional contents of arbitration agreements, in particular with regard to the place of arbitration, the language of the proceedings, the selection of the applicable substantive law, and the selection ad hoc or institutional arbitration.
The Arbitral Tribunal
Authors: Rieder Markus S , Kreindler Richard
Published: June 2017

This chapter examines the arbitral tribunal which resolves dispute by way of arbitration. It discusses the number of arbitrators, the procedure of appointing arbitrators, the selection of arbitrators, the challenge, termination of the office and replacement of arbitrators, as well as the arbitrator agreement — a topic that has more attention in Germany than in other jurisdictions. The study is important as the arbitral tribunal is one of the most important strategic steps in any arbitration. In most cases, the parties and their counsel to believe that picking the right panel is a preeminent precondition for achieving the desired outcome. The chapter describes how under German law, the principles of independence and impartiality of an arbitration are non-derogable cornerstones of any arbitral proceedings. Essentially, they form part of the German procedural ordre public which are considered indispensable constitutional requirements in order for arbitral proceedings to be equivalent to state court litigation.
The Arbitral Proceedings
Authors: Rieder Markus S , Kreindler Richard
Published: June 2017

This chapter addresses the legal framework applicable to proceedings before arbitral tribunals seated in Germany. On this basis, it first discusses the typical structure and frequent steps of arbitral proceedings. Regarding the initiation of arbitral proceedings, German law follows a three-step model consisting of: request for arbitration, constitution of the arbitral tribunal and initial pleadings by claimant (statement of claim) and respondent (statement of defence). German ad-hoc proceedings usually contain few mandatory formalities for the request for arbitration. Pursuant to the ZPO, its minimum contents are designation of the parties, designation of the subject matter of the dispute, and reference to the applicable arbitration agreement. The chapter concludes by examining a wide range of special situations, highlighting the steps taken by the German Institute of Arbitration (DIS) during events such as multi-party arbitration, as well as issues of fraud, money laundering, and corruption.
The Arbitral Award
Authors: Wolff Reinmar
Published: June 2017

This concluding chapter examines the arbitral award given at the outcome of the arbitration proceedings. It describes the different ways German arbitration law resolves the dispute — by decision of the arbitral tribunal and by settlement of the parties — and the rules which the arbitral tribunal applies when deciding on the merits and costs. Traditionally, arbitration is characterized by, on the one hand, largely flexible arbitral proceedings and, on the other hand, an outcome, the award that not only is tantamount to a state court judgment but also is equipped with restricted remedies and facilitated means of enforcement both domestically and internationally. In conformity with German court tradition, arbitral tribunals in Germany often encourage the parties to consider making a settlement. To facilitate enforcement of the terms of any such settlement, it may be recorded by the arbitral tribunal in the form of an award on agreed terms.
The Concept and Sources of Arbitration
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio
Published: June 2017

This introductory chapter analyses the concept of arbitration, distinguishing it from other alternative dispute resolution (ADR) methods, in particular mediation, conciliation, and expert determination. Having traced the historical roots and evolution of international arbitration, it then discusses the advantages and drawbacks of choosing to settle disputes by way of arbitration. The chapter further presents the main sources of arbitration law, from national laws and international treaties – in particular the New York Convention – over arbitration rules, soft law, jurisprudence, and scholarly writings. It then considers the role of Switzerland as a place of arbitration, discussing its long-standing dispute-settlement tradition and the arbitration-related bodies and institutions operating in the country. Finally, as an introduction to the next Chapters, the discussion briefly sets out the situations in which the arbitration process can come into contact with the courts.
The Arbitral Tribunal
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio
Published: June 2017

This chapter examines the constitution of the arbitral tribunal, including the parties’ participation in that process, which is often seen as one of the advantages of arbitration over litigation. Even if the parties influence the composition of the tribunal, the office of the arbitrators is a judicial one, as their award will be considered the equivalent of a court judgment. Accordingly, the chapter discusses the fundamental requirements of independence and impartiality of arbitrators, as well as the rules governing their challenge and replacement. On this topic, the chapter considers in particular the relevance of the recently revised IBA Guidelines on Conflicts of Interest. The differences in the procedural regimes between ad hoc and institutional arbitrations are addressed throughout the analysis. The contractual dimension of the arbitrators’ relationship with the parties is addressed in the chapter’s last section, devoted to the so-called receptum arbitri.
The Proceedings before the Arbitral Tribunal
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio
Published: June 2017

This chapter considers how arbitral proceedings unfold once the tribunal is constituted (as discussed in chapter 4), up until the deliberation phase (which is addressed in chapter 7). It starts by identifying the rules that govern the conduct of arbitral proceedings and then examines the interaction between those rules, before describing, by reference to current best practices, the different steps in a ‘standard’ international arbitration. The discussion illustrates, in particular, the articulation between fundamental principles of due process and the parties’ autonomy and arbitrators’ powers in organizing arbitral proceedings. The presentation of arbitral practice is supplemented by a number of model procedural documents: terms of reference for ICC arbitrations, terms of appointment, and a set of specific procedural rules suitable for both institutional and ad hoc arbitration, as well as a standard letter on the appointment of an arbitral secretary. The chapter’s final section is devoted to provisional measures.
The Annulment and Enforcement of the Award
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio
Published: June 2017

Contrary to judgments, arbitral awards are final in the sense that they are not subject to appeals. This chapter examines the very limited remedy of annulment or setting aside of the award in accordance with Article 190(2) PILA, emphasizing that the annulment grounds in that provision are essentially concerned with the manner in which justice was rendered, as opposed to the content of the decision. The chapter also covers all aspects of the annulment procedure before the Swiss Supreme Court, from the admissibility of the action to cost allocation. In that context, it addresses the possibility for parties not seated in Switzerland to waive their right to seek the annulment of the award (Article 192(1) PILA). The chapter further discusses the revision of the award, and, in its final section, the recognition and enforcement of foreign arbitral awards by the Swiss courts in accordance with the New York Convention.
The Law and Practice of International Banking
Authors: Proctor Charles
Published: June 2017

This book provides authoritative analysis of current practice in international banking and the law that applies to it. Topics covered include: syndicated loans, security structures, derivative products, and mis-selling claims. The book tackles areas which have particular relevance to current practice. Amongst these are cross-border matters such as worldwide freezing injunctions, foreign disclosure orders, the bankers' duty of confidentiality, and the impact of sanctions on banking transactions. In particular, the book provides examination of various matters arising out of the Lehman collapse and the failure of the Icelandic banking system. This second edition reviews a significant accumulation of case law in these areas. Reflecting the continued growth of the Islamic finance market, there is also a section on this highly specialized but increasingly important area. The new edition provides consideration of the new UK and EU regulatory regimes, analysing the respective responsibilities of the UK Prudential Regulation Authority (PRA) and the UK Financial Conduct Authority (FCA), and the establishment of new banking authorities in the EU. A separate chapter examines the new capital adequacy and liquidity regimes that will apply to banks in the wake of Basel 3. It also reflects on the impact of the crisis following on from the initial assessments made in the first edition. The book examines the new regimes for ‘ring-fencing’ of retail banking business and for the resolution of failing banks, introduced at both the UK and EU levels. The text also includes a new chapter examining the challenges that the banking system would face in the event that a Member State elected to withdraw from the Eurozone — a fate which appeared to hang over Greece during the crisis and which could recur if the single currency zone faces renewed strains.
EU Banking Law
Authors: Proctor Charles
Published: June 2017

This chapter discusses EU banking law, which has significantly influenced banking regulation in the UK. It covers the background to the EU Directives in the field of banking law; deposit-taking prohibition; the authorization process; the relevance of the freedoms created by the EU Treaties; the right to establish a branch in other Member States; the right to provide services in other Member States; the provision of banking services from within an institution's home State; the free movement of capital and banking services; and a Commission Interpretative Communication on territoriality questions arising in the field of EU banking law.
The Market Regulators
Authors: Proctor Charles
Published: June 2017

This chapter explains the various authorities involved in UK banking market regulation. It first considers the role of the UK Financial Services Authority (FSA), including its statutory objectives and powers under the Financial Services and Markets Act 2000. It then discusses the role of the Bank of England in the fields of financial stability and monetary policy; the role of Her Majesty's Treasury; the development of regulatory bodies at the European level, largely in response to the credit crunch and the problems to which it gave rise; and some recent international initiatives.
Cheques
Authors: Proctor Charles
Published: June 2017

This chapter reviews the general law relating to cheques. It covers the definition of bills of exchange and cheques; the impact of the Cheques Act 1992; the legal effects of payment by cheque; and the terms of the UK's cheque guarantee scheme.
Duties of the Collecting Bank
Authors: Proctor Charles
Published: June 2017

This chapter considers the bank's position in collecting cheques and other items for the credit of the customer. It discusses the collection and clearance of cheques; statutory protections available to the collecting bank; and the potential liability of the collecting bank to third parties.
Trading Loan Assets
Authors: Proctor Charles
Published: June 2017

This chapter examines the various means by which loan assets may be traded or sold by banks. It discusses restrictions on assignments and transfers; assignment; novation; participation arrangements; and credit default swaps.
Sources of Bank Liability
Authors: Proctor Charles
Published: June 2017

This chapter considers sources of bank liability. It examines claims which may be made against banks as a result of loans made to corporate customers, especially where the bank has to intervene in some way to protect its interests in a facility that is becoming impaired. It also looks at the position of banks as sellers of sophisticated and complex products, such as collateralized debt obligations, credit default swaps, and similar instruments. By their very nature, these instruments will be sold to larger corporate customers with considerable financial resources.
Guarantees
Authors: Proctor Charles
Published: June 2017

This chapter provides an overview of the law of guarantees as it applies in a banking context. It discusses the purpose, definition, and characteristics of a guarantee; the formal requirements applicable to the creation of a guarantee; the distinction between a guarantee and an indemnity; the interpretation of, and liability under, a guarantee; the application of legislation on unfair contract terms; the rules applicable to individual and corporate capacity; the duties of the bank to the guarantor; the discharge of the guarantor; certain vitiating factors; termination by the guarantor; and the rights of the guarantor following payment.
Security—Characterization, Formalities, and Registration
Authors: Proctor Charles
Published: June 2017

This chapter discusses some general issues concerning the various forms of security available to banks. It covers the contractual nature of security; when a particular arrangement can be characterized as a security interest; the scope and extent of the security; Part 25 of the Companies Act 2006; and rules for foreign assets and foreign companies.
Types of Security
Authors: Proctor Charles
Published: June 2017

This chapter considers the nature of the security which the borrower creates; the specific characteristics of security created over particular types of asset; and which lender is entitled to priority in the case of competing layers of security on the same asset. The discussions cover fixed charges, floating assets, categories of priority claims, statutory priorities, priority as against other secured creditors, and priority as against unsecured creditors.
Charges Over Bank Balances
Authors: Proctor Charles
Published: June 2017

This chapter discusses how a charge over a bank deposit differs from a charge over an ordinary book debt; the need to register a charge over a bank deposit created by a UK-incorporated company under section 859A of the Companies Act 2006; and the application of rules governing the priority of consecutive charges over bank deposits.
Charges Over Ships
Authors: Proctor Charles
Published: June 2017

In contrast to the position for aircraft, there is no international convention dealing with the recognition and enforcement of ship mortgages created under foreign systems of law. This chapter considers the regime for the creation of ship mortgages in England; and the rules of private international law applied by the English courts when considering a mortgage over a foreign vessel.
Financial Collateral Arrangements
Authors: Proctor Charles
Published: June 2017

When a charge is taken over cash or securities transferred or held in a recognized clearing and settlement system, the security position of the charge is in some respects reinforced. The European Commission has been concerned with managing systemic risk in such settlement systems. This chapter examines the two key measures to support the stability of such systems: firstly, the Directive on Settlement finality in Payment and Securities Systems; and, secondly, the Directive on financial collateral arrangement.
Lien and Set-Off
Authors: Proctor Charles
Published: June 2017

This chapter discusses the banker's right of lien, right of set-off, and other rights of set-off. While these rights do not generally involve a taking of security in the manner contemplated by the previous chapters, they can in practice operate as a valuable form of security in the event of the customer's insolvency.
Transactions Between Companies and their Directors
Authors: Proctor Charles
Published: June 2017

Banks must exercise care when asked to fund transactions between a company and one of its directors, or a person connected with such a director. The Companies Act 2006 contains provisions designed to enforce the principle of fair dealing as between a company and its directors. This chapter discusses rules on substantial property transactions and transactions involving directors.
The Banker–Customer Contract in Private International Law
Authors: Proctor Charles
Published: June 2017

This chapter revisits the banker–customer relationship. The contractual nature of the relationship considered in Chapter 15 assumed that the bank was established in England and that its customer was also resident in the same country. However, that analysis is by no means of universal. Multinational companies, for instance, may need to have bank accounts in a number of different countries; wealthy individuals may opt to maintain accounts with banks in more advanced jurisdictions to gain access to portfolio management or other services. Banks may promote their services to overseas customers and wish to take security over assets situate outside England. How do these affect the legal nature of the banker–customer relationship? The chapter discusses the governing law of the banker–customer relationship; the effect and consequences of the applicable law; the law governing capacity and authority; and the situs of deposit obligations.
The Banker’s Duty of Confidentiality
Authors: Proctor Charles
Published: June 2017

This chapter examines the nature and scope of the bank's duty of confidentiality, and the exceptions to it. It considers the difficulties which may confront a bank with branches in several countries and whose business may therefore be subjected to several different systems of law. The discussions cover the system of law applicable to the duty; the general nature and scope of the duty; disclosure under compulsion of law; disclosure in the interests of the bank itself; disclosure in the public interest; disclosure with the consent of the customer; damages for breach of the duty; the Data Protection Act 1998; wider duties of confidence; duties of confidentiality to third parties; and other duties of confidentiality.
Execution Proceedings and Foreign Deposits
Authors: Proctor Charles
Published: June 2017

The banker–customer relationship is governed by the law of the country in which the account-holding branch is located. Thus, it follows that action taken by a foreign court or government cannot have an impact on either the ownership of, or the contractual terms applicable to, a deposit placed with a bank branch situated in England. This chapter examines the extent to which the English courts have attempted to make orders which may have an extra-territorial effect, in the sense that they seek to affect the rights and obligations of banks with respect to deposits placed with branches outside the jurisdiction. It considers third party debt orders; the attitude of the English courts in extra-territorial cases; the case law; and special cases.
Liability for Branch Deposits and the Impact of Foreign Law
Authors: Proctor Charles
Published: June 2017

This chapter examines the extent to which a bank based in England is liable to meet the deposit obligations of its foreign branches if, for some reason, they are prevented from doing so directly. It considers the impact of a foreign branch; the consequences of an outbreak of war; the effect of a foreign expropriation law; the effect of other forms of seizure; exchange control laws; the effect of a foreign moratorium; and blocking orders.
Economic Sanctions
Authors: Proctor Charles
Published: June 2017

This chapter considers the impact of sanctions imposed by the UK on banks in England. It also discusses the sources of sanctions legislation. A regime of economic sanctions imposed by the UK will invariably be a matter of high policy. It is therefore unsurprising that compliance is mandatory for UK entities under all circumstances, regardless of the law applicable to any relevant contracts or any other matter. Banks must both ensure compliance and take the necessary steps to ensure that it does not incur any liability to affected customers.
Islamic Finance—Principles and Structures
Authors: Proctor Charles
Published: June 2017

This chapter first discusses the foundations of Islamic finance. It then covers the rules governing Islamic finance transactions; structures which have been developed for Islamic-compliant financial products, namely customer funding and deposits; and conventional financing structures that could be acceptable from a Shariah perspective.
Harmonization and the Development of the International Islamic Financial Markets
Authors: Proctor Charles
Published: June 2017

This chapter focuses on the need for standardization and harmonization within the Islamic financial markets. It discusses the imperatives of standardization; the tawarruq and the sukuk as illustrations of the need for a harmonized approach; enforcement issues; the nature and scope of harmonization; standardized documentation; Shariah rulings; the regulatory framework; capital adequacy; and taxation.
The Modern Role of Arbitration in Banking and Finance
Authors: Golden Jeffrey , Werner Peter
Published: June 2017

The International Swaps and Derivatives Association (ISDA) published its first Arbitration Guide on September 9, 2013 to provide its members with an overview of and guidance on: dispute settlement by arbitration; key features of arbitral procedure and relevant distinctions with litigation in domestic courts; and reasons why ISDA members might consider arbitration for complex product disputes arising under their ISDA Master Agreements. This chapter explores the themes which inspired derivative market interest in the 2013 ISDA Arbitration Guide and, in turn, inspired the collaboration that led to the publication of this volume. In so doing, it draws attention to a much wider range of financial market disputes than just those relating to complex products and the relevance of arbitration to this broader category of disputes about banking and finance.
Arbitral Institutions
Authors: Cohen Smutny Abby , Polášek Petr
Published: June 2017

This chapter surveys arbitral institutions and arbitration rules relevant to the resolution of international financial disputes. It focuses on four factors that are important in the context of financial disputes: the selection and qualifications of the arbitrators; the speed and efficiency of the proceeding; the confidentiality of the proceeding; and the costs of the arbitration. Arbitral institutions covered include the Panel of Recognized International Market Experts in Finance (P.R.I.M.E. Finance), the International Court of Arbitration of the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the International Centre for Dispute Resolution (ICDR), the International Centre for Settlement of Investment Disputes (ICSID), the Dubai International Arbitration Centre (DIAC), the Hong Kong International Arbitration Centre (HKIAC), and the Singapore International Arbitration Centre (SIAC).
Alternative Dispute Resolution
Authors: Willis Tony , Wood William
Published: June 2017

This chapter begins with a definition of mediation and its relationship to litigation and arbitration, along with some information about its use and recognition internationally. It then discusses the application of mediation to disputes in the financial services sector. It offers practical guidance on the mediation process followed by a discussion of other forms of non-adjudicative dispute resolution. The chapter concludes that mediation is an established, robust, and powerful means of resolving disputes that is especially suited to disputes in the financial services sector. PRIME experts are uniquely qualified to assist in several roles as experts, as advisors, as arbitrators and mediators.
Overview of Derivative Financial Products
Authors: Grove Rick
Published: June 2017

This chapter begins with a description of the volatility of financial markets. It then turns to ‘swaps’, a tool developed by banks and investment banks to deal with the increasing volatility in foreign exchange rates, interest rates, and commodity prices in the 1970s. This is followed by a discussions on the founding of the International Swaps and Derivatives Association (ISDA) in 1984 and how companies' use derivatives to manage and hedge their market risks.
Arbitration Clauses for International Financial Disputes
Authors: Meijer Gerard J , Hansen Richard H
Published: June 2017

This chapter discusses the drafting of arbitration clauses for international financial disputes. Topics covered include the general elements which should be included in all arbitration clauses to ensure compliance with local laws and that disputes about the elements of the arbitration clause do not arise after the start of an international financial dispute; model arbitration clauses developed by arbitration institutes for use in financial contracts; description of the legal relationship to which the arbitration clause relates; parties and place of arbitration; the choice of an applicable substantive law; number and appointment of arbitrators; decision standard; language of the proceedings; and confidentiality, waivers, and arbitrability.