bluuebunny/crossref_metadata_2025 huggingface dataset:
Duty to Exercise Independent Judgment
Authors: Haywood Marcus
Published: June 2024

This chapter details the duty to exercise independent judgement of directors without subordinating their powers to the will of others, whether by delegation or otherwise. The duty is not infringed by acting per an agreement duly entered into by the company and in a way authorised by the company’s constitution. In the conduct of the management of its affairs, a company is entitled to the benefit of collective decision-making by its directors acting as a board. However, a breach of duty inevitably arises when a director’s relationship with a third party puts him in a position of conflict of interest. The chapter then considers the contracts restricting the future exercise of discretion.
Duty Not to Accept Benefits from Third Parties
Authors: Haywood Marcus
Published: June 2024

This chapter discusses the duty not to accept benefits from third parties. It defines a third party as a person other than the company, an associated body corporate or a person acting on behalf of the company or an associated body corporate. According to the Companies Act 2006, a director must not accept a benefit from a third party for reasons such as his status and orientation as a director. Acceptance of such a benefit inevitably places the director in a position of conflict of interest and duty, which also correlates to the duty of avoiding conflicts of interest. The chapter highlights that the codification of the rule prohibits the exploitation of the director's position for personal benefit.
Duty to Declare Interest in Transaction Or Arrangement
Authors: Haywood Marcus
Published: June 2024

This chapter elaborates on the duty to declare interest in a transaction or arrangement. If the other party to the transaction had notice of the irregularity, the company might rescind the contract and the director will be liable for breach of duty. Moreover, the director might also be liable for breach of duty and under a duty to account for profits obtained because of such dealings. Under Section 177 of the Companies Act 2006, directors have a general duty to declare the nature and extent of their interest in a proposed transaction or arrangement to the other directors. The chapter details the duties in relation to either an existing or proposed transaction or arrangement.
Transactions With Directors Requiring Approval of Members
Authors: Wilkins Stefanie
Published: June 2024

This chapter tackles the provisions in the Companies Act 2006 that underpin the duties of directors by requiring certain transactions with directors to be approved by the members. It also includes the right to inspect directors’ service contracts or memoranda of their terms. Section 188 of the Act requires the prior approval of members before a company enters into certain long-term service contracts, while Section 189 sets out the civil consequences if such approval is not obtained. The chapter discusses the loans, quasi-loans, credit transitions, and related arrangements of directors that need members' approval. The chapter also considers the special rules that apply to contracts with a sole member who is a director.
The Company’s Remedies for Breach of Directors’ General Duties
Authors: Valentin KC Ben
Published: June 2024

This chapter explores the company's remedies for breach of directors' general duties. It clarifies that the Companies Act 2006 has affected no change to the remedies against a director for breach of duty. The company’s remedies may be pursued in conjunction with contractual claims for breach of the director’s service contract and claims arising from a failure to obtain members’ approval of a transaction. The chapter then tackles the remedies for breach of duty of care and relief from liability. It also discusses potential defences open to directors against whom proceedings are brought for breach of duty, which considers the defences of limitation, set-off, contributory negligence, and ex turpi causa.
Members’ Personal and Derivative Claims
Authors: Peters Georgina
Published: June 2024

This chapter discusses the proceedings brought by members who have suffered or may suffer damage or prejudice to, or in connection with, their shareholding arising out of the conduct of directors. It elaborates on the personal claims by shareholders against directors and the common law derivative claims introduced by the Companies Act 2006. Meanwhile, Part 14 of the 2006 Act revolves around the rights of shoulders to enforce directors' liabilities for unauthorised political donations or expenditures. The chapter also considers the correlation between the rule in Foss v Harbottle, personal claims, and derivative claims. It mentions the growing body of case law that unveils the court's approach to exercising its powers under the Act's Part 11.
Decision-Making by Members
Authors: Thornley Hannah , Darcy Roseanna
Published: June 2024

This chapter looks into how members make decisions for a company and the procedures for obtaining their decisions. Directors are concerned with decision-making by members for reasons such as the Companies Act providing that certain transactions must be authorized or approved by the company, acting on the decision of its members. Moreover, the Companies Act dictates the necessary procedures and requirements by which the directors may obtain the authorization, approval, or ratification of the company. The chapter considers the provisions for four distinct types of companies: private companies, public companies, quoted companies, and traded companies. It highlights the importance of keeping records of the resolutions, minutes, and details as per the Act.
Capital and Distributions
Authors: Robins KC Stephen , Burgess Peter
Published: June 2024

This chapter explores the functions, responsibilities, and liabilities of directors in respect of shares. For the 2006 Act, shares in a company are taken to be allotted when a person acquires the unconditional right to be included in the company’s register of members in respect of the shares. Moreover, a share is not issued until the processes of application, allotment, and registration have been completed. The chapter then elaborates on the statutory provisions contained in the 2006 Act's Part 17 to 23. It considers the issue of shares by quoted companies and the general rules surrounding the distribution of a company's assets to a shareholder.
Reorganizations and Takeovers
Authors: Smith KC Tom , Fradley Paul
Published: June 2024

This chapter highlights the role, duty, and liability of directors in the procedures of reorganizations and takeovers. It details the provisions of the Companies Act 2006 that involves arrangements and reconstructions, mergers and divisions of public companies, and takeovers. Directors will be concerned with proposals for schemes to effect compromises or arrangements between a company and its members in correlation to either reorganization or takeover. If the company is or is likely to be unable to pay its debts, the company may file for a voluntary arrangement under the Insolvency Act. The chapter also considers the scope of arrangements and reconstructions under the Act's Part 26 and 26A.
Civil Penalties for Market Abuse
Authors: Amey Robert
Published: June 2024

This chapter considers the civil penalties for market abuse. It starts with the history of market abuse legislation, which includes the amendments made to the Financial Services and Markets Act 2000 (FSMA) in an effort to implement the Market Abuse Directive (2003/6/EC) (‘MAD’). The EU Market Abuse Regulation (EU MAR) establishes a common regulatory framework for insider dealing, the unlawful disclosure of inside information and market manipulation. The chapter also covers the obligation to disclose information surrounding the managers' transitions during the closed period. It discusses the sanctions concerning relevant provisions of MAR and administrative sanctions, injunctions, and restitution under the FSMA.
Directors’ Functions and Duties in Insolvency Proceedings
Authors: Stonefrost Hilary
Published: June 2024

This chapter discusses the functions and duties of directors in insolvency proceedings. It cites the provisions of the Insolvency Act as amended and associated case law, which particularly affects the functions and duties of directors. The inception of insolvency proceedings and its effects on directors’ powers and directors’ duties provide information about the company’s affairs and assist in investigation procedures under the Insolvency Act. In March 2020, a standalone moratorium became a permanent feature of the insolvency regime in response to the economic and financial impact of COVID-19. The chapter also looks into the liabilities of directors arising from insolvency proceedings.
Duties and Liabilities of Directors of Foreign Companies
Authors: Smith KC Tom , Fradley Paul
Published: June 2024

This chapter details the duties and liabilities of directors of foreign companies under the Companies Act 2006 and English company law. It mentions how increased globalization resulted in companies incorporated abroad to carry on business in England and Wales. The treatment of companies in international law is characterized by the use of several different concepts to identify its particular legal system. According to the incorporation theory that aims to achieve certainty and maximum uniformity in the choice of law, the company is governed by the law according to which it was duly established, which also aims to achieve. The chapter also considers the provisions of insolvency proceedings and foreign disqualification.
Cross-Border Security and Quasi-Security
Authors: Toube Felicity , Marshall Jennifer , Garcimartin Francisco
Published: June 2024

This chapter begins by investigating the impact of insolvency proceedings recognized by the Insolvency Proceedings Regulation (EU) 2015/848 (RR) on the rights of secured creditors with assets in the EU, particularly the rights of such creditors to enforce their security and participate in the relevant insolvency proceedings. The RR attempts to strike a balance between giving extra-territorial effect to the main proceedings and the need to preserve the predictability of secured transactions entered into in accordance with the laws of a particular Member State. The chapter then considers the impact of such insolvency proceedings on the rights of secured assets with assets in the UK following the UK’s withdrawal from the European Union (Brexit). It also studies some practical examples to show how the legal principles may work in practice. The focus of the practical examples tends to be primarily, although not solely, on EU insolvency or enforcement procedures and on rights in rem which would be recognized as a matter of Member States’ law.
Financial Institutions
Authors: Haentjens Matthias
Published: June 2024

This chapter focuses on the EU Framework for financial institutions insolvencies. The Recast Insolvency Proceedings Regulation (RR) does not apply to proceedings that concern insurance undertakings; credit institutions; collective investment undertakings; and investment firms and other firms, institutions and undertakings to the extent that they are covered by Directive 2001/24/EC. The chapter looks at the Settlement Finality Directive, the Central Counterparties Regulation, and the Financial Collateral Directive. It also provides a commentary on the Winding-Up Directive, Solvency II and the Bank Recovery and Resolution Directive.
Germany
Authors: Lehmann Matthias
Published: June 2024

This chapter looks into the legal basis of unfair terms control in Germany. It highlights the country’s long-lasting legacy of controlling unfair terms, starting with the General Terms Act of 1976. Today, the rules on unfair terms are to be found in the Civil Code. They apply not only to business-to-consumer, but to a large extent also cover business-to-business contracts. The chapter shows how German courts have rigidly applied this legal framework to banking and financial contracts, outlawing many standard terms, such as fee clauses. The deterrence has been so strong that market participants may be tempted to escape German law altogether by choosing a different legal system.
France
Authors: Bonneau Thierry
Published: June 2024

This chapter explores the implementation of unfair terms control in France. The establishment of the law primarily focused on the protection of consumers against unfair terms in contracts. The French legislation was modified once the Directive on unfair terms in consumer contracts (Unfair Terms Directive) was adopted by the European Union (EU). The chapter examines the extensive legal basis of unfair terms control as it applies to all banking and financial contracts. It notes that the deadline for the implementation of national legal frameworks was 28 November 2021, and that the French Consumer Code has not yet been modified.
Italy
Authors: Valle Laura
Published: June 2024

This chapter tackles the unfair terms in banking and financial contracts in Italy. It notes how banking and financial contracts traditionally benefited from the lenient approach of both the legislator and the courts to the possible use of unfair contract clauses. The transposition into the Italian legal system of the Directive on unfair terms in contracts between professionals and consumers (UTD) leads to a new legal environment, even if the protection of the weaker party against unfair terms in banking and financial contracts is still in need of further improvements. The chapter notes the importance of unfair terms controls in the Italian legal system, especially in relation to the control of the content of contractual clauses. It acknowledges the opportunities for challenging unfair contract content to develop in the future, which is of special importance in banking and financial sectors.
Spain
Authors: de Elizalde Francisco , Sánchez Sara
Published: June 2024

This chapter discusses Spain’s unfair contract terms in financial and banking contracts. It notes the serious impact on Spain of the 2007–08 Global Financial Crisis before discussing how Spanish law has established a regime of control of standard terms in consumer contracts, which differs from the more generally applicable rules of the Spanish Civil Code (SCC). Even though Spanish law controls the incorporation of terms in standard form contracts for both business-to-business (B2B) and business-to-consumer (B2C) contracts, the unfairness assessment is restricted to B2C contracts. The chapter explores the implementation of the Unfair Terms Directive (UTD) under Spanish law.
Poland
Authors: Adamski Dariusz , Wiewiórowska-Domagalska Aneta
Published: June 2024

This chapter details the main issue regarding unfair terms in financial contracts in Poland. It starts with the unfairness of terms in foreign currency consumer mortgage loans, referencing the impact of the Global Financial Crisis. Provisions of the Unfair Terms Directive (UTD) are transposed in the Polish Civil Code (PCC) as part of the rules that regulate the operation of standard terms and conditions. Transposing the UTD’s provisions on the protection of certain consumer rights and liability for damage caused by dangerous products introduced the concept of unfairness control into the Polish legal system. The chapter considers the conceptual distinction between unfair and intransparent terms that exists in Polish law.
Romania
Authors: Jozon Monika
Published: June 2024

This chapter considers the significance of unfair terms control in Romania. It explains how Romania was one of the most affected European countries by consumer over-indebtedness after the 2008 Global Financial Crisis and the COVID-19 pandemic. In Romania, the general approach of unfairness control of contract terms in consumer loan agreements is that contract fairness is primarily an issue of private law. The chapter notes how consumer protection in the field of consumer loan agreements has become a complex social justice matter. The Unfair Terms Directive (UTD) and subsequent case law on it provide the tools on how to establish unfairness and develop rules on the consequences of the unfairness on the contractual relation between the parties and on damages.
Sweden
Authors: Ingvarsson Torbjörn
Published: June 2024

This chapter discusses the importance of unfair terms control in Sweden. The main rule of unfair terms control is amended by the Consumer Contracts Act, which is the main act implementing the Unfair Contract Terms Directive (UTD). Thus, the UTD itself has been considered a law of minor significance since it entered into Sweden’s laws in 1995. Despite rulings from the Court of Justice of the European Union (CJEU), the Swedish courts have mostly used other instruments to deal with and remedy unfair terms. The chapter explains that the strategy for protecting consumers in the Nordic countries is through the work of proactive ombudsmen.
Ireland
Authors: Seretakis Alexandros
Published: June 2024

This chapter covers the implementation of the Unfair Terms Directive (UTD) in Ireland. It notes that Ireland was one of Europe’s poorest countries characterized by protectionism, high rates of unemployment, and emigration, noting that the Irish economy was intertwined with the much larger UK economy. The absence of industrialization, emigration, and poverty resulted in the slow development of Irish consumer society and consumer protection. Unfair terms control in Ireland relates mostly to mortgage contracts. The chapter explains that Irish legislators have decided to significantly strengthen the protection of consumers against unfair terms after realizing the poor application of the Unfair Terms in Consumer Contracts Regulations.
Towards an Unfair Terms Regulation
Authors: Busch Danny , Lehmann Matthias
Published: June 2024

This chapter draws conclusions from the preceding analysis. In light of the significant divergences between national legal system in the administration of unfair terms control, this chapter suggests to replace the Unfair Terms Directive (UTD) with a Uniform Terms Regulation (UTR). All of the Regulation’s rules shall be directly applicable in the EU, thus avoiding any need for implementation by the Member States. In view of the chapter, such an instrument should cover not only consumer contracts, but also between business-to-business (B2B) contracts, at least when small and medium-sized enterprises (SMEs) are involved. The chapter opines that the UTR should provide clear definitions of key terms, such as ‘unfair’, ‘main performance’, or ‘price and remuneration’. It should include a binding Annex with a list of terms deemed to be unfair. The UTR should also set out the transparency test, clarifying its relation to the contra proferentem rule and the consequences of a lack of transparency. Furthermore, the UTR should include rules on the consequences of invalid terms, on limitation periods, and on procedural remedies. This chapter believes that the UTR will be instrumental for achieving the triple goals of consumer protection, the establishment of the Internal Market, and a competitive level playing field in the Union.
The regulation of financial services contracts in EU law
Authors: Della Negra Federico
Published: June 2024

This chapter discusses the regulation of financial services contracts in European Union (EU) law. It examines the economic rationales for regulating retail financial markets (market failures and behavioural) and their impact on EU financial services regulation. It outlines and reviews the main legal instruments adopted by the EU to protect consumers of financial services (i.e. ‘status’ regulation, ‘product’ regulation, regulatory requirements and private law). It shows that the Court of Justice of the European Union (‘CJEU’)’s functional interpretation of the Treaties’s rules on free movement and internal market was key to develop consumer and financial services regulation.
Consumer and mortgage loan contracts
Authors: Della Negra Federico
Published: June 2024

This chapter examines the case law of the Court of Justice of the European Union (CJEU) on consumer and mortgage loan contracts. It explains the preliminary ruling on Directive 2008/48/EC (Consumer Credit Directive, CCD) and on Directive 2014/17/EU (Mortgage Credit Directive, MCD). The case law establishes important principles on the requirements for precontractual information duties, creditworthiness obligation, content of contracts, and contract law remedies for breach of pre-contractual conduct-of-business rules. This chapter examines the advertising and pre-contractual information duties, the creditworthiness and advisory duties, the requirements on the form and content of contracts, and the consumer’s right to withdraw. It considers the ex officio application of the CCD and MCD by national courts and the out-of-court dispute resolution mechanisms.
Investment services contracts
Authors: Della Negra Federico
Published: June 2024

This chapter examines the case law of the Court of Justice of the European Union (CJEU) on investment services contracts focusing on Directive 2014/65/EU (Markets in Financial Instruments Directive II, MiFID II), the Regulation (EU) 2017/1129 on Prospectus (Prospectus Regulation) and sectorial legislation on specific investment products distributed to retail clients. The CJEU case law gave important guidance on the scope of civil liability of financial service providers (FSPs) for breach of their pre-contractual information duties and prospectus requirements. This chapter examines the scope of EU investment services regulation and the most important conduct of business rules imposed on FSPs.
The judge-made civil law principles on financial services contracts
Authors: Della Negra Federico
Published: June 2024

This chapter looks into the civil law principles for financial services contracts which emerge from the Court of Justice of the European Union (CJEU) case law. The CJEU case law gives important principles to guide the national courts’ interpretation of national and EU private law rules. These judge-made principles relate to pre-contractual duties and conduct of business rules, unfair and non-transparent contract terms and powers and duties of national courts in civil proceedings. It is argued that these principles may play an important role in ensuring greater consistency and predictability in the application of private law rules across different sectors of retail financial markets (credit, payment and investment services).
Conclusion
Authors: Della Negra Federico
Published: June 2024

This conclusive chapter summarizes the main themes of the book and puts them in the wider context of the development of financial regulation and private law in the European Union (EU). It highlights the role of general principles of EU law in the rulings of the Court of Justice of the European Union's (CJEU) case law, and outlines the principles of civil law which emerged from the CJEU’s case law to interpret EU and national private law rules for financial services contracts. The chapter considers also the role and impact of the preliminary reference procedure in the development of this judge-made principles of civil law. Finally, the chapter argues that further legislation harmonization of private law rules for financial services contracts would ensure a higher level of consistency and certainty in the application of EU law,
Offers and Invitations to Treat
Authors: Tolhurst G J , Peden Elisabeth , Mik Eliza
Published: June 2024

This chapter discusses the identification of an offer. The technique of analysing transactions in terms of offer and acceptance to determine whether there is an agreement appears to have been adopted by all developed legal systems. Indeed, it features in the universal systems which have appeared in recent years, such as the Unidroit Principles for International Commercial Contracts 2016. It is clear that whether a proposal constitutes an offer turns not on the actual intention in the proposer’s mind, but on the apparent intention which the addressee is justified in concluding from the proposer’s external manifestations. If the external manifestations do justify the addressee in judging a proposal to be an offer then the proposer cannot argue that it was not their intention to make an offer. The level of commitment is important, and language which expressly denies any commitment can be determinative. Moreover, an offer is not effective until it is communicated to the offeree. The formulation of this principle is identical in both the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) (the ‘Vienna Convention’) and the Unidroit Principles.
Contracts Formed Online and ‘by’ Computers
Authors: Tolhurst G J , Peden Elisabeth , Mik Eliza
Published: June 2024

This chapter assesses online contract formation. With the growth of the digital economy, it has become apparent that contracts govern not only ‘traditional’ e-commerce transactions, but also interactions that may prima facie not be considered commercial in nature. The chapter begins by looking at the difficulty of establishing intention and consideration in circumstances where the context of a particular online interaction is difficult to categorize as either commercial or social. It then examines the problems relating to the application of the offer and acceptance model in online transactions. The chapter poses some basic questions: is there an offer? If so, what are its contents? Is there an acceptance? If so, when does it become effective? Finally, it considers the automation of different aspects of the contract formation process by means of computer programs.
Certainty and Completeness
Authors: Tolhurst G J , Peden Elisabeth , Mik Eliza
Published: June 2024

This chapter studies the formation and relevance of certainty and completeness. Under the objective theory of contract, there can be no legal agreement unless the terms are certain and complete. The requirement of certainty dictates that it must be possible to attribute meaning to the agreed terms. The need for a contract to be complete dictates that there must be agreement on all the essential terms of the contract. Thus, an ‘offer’ that is uncertain or incomplete is not an offer at all under the objective theory. The chapter then looks at agreements to agree and agreements to negotiate. It also considers the methods by which the courts and the parties resolve uncertainty and incompleteness.
Tools and Techniques
Authors: Briggs Adrian
Published: June 2024

This chapter examines the common law principles of the conflict of laws which served and serve to guide the English court to the application of foreign law to issues which it has to decide. But the point of departure is to examine how foreign law is actually applied by an English judge, in order to understand the strengths and weaknesses of the way it is done. It then returns to the characterization of issues (ascertaining the nature of the question to be answered), and of renvoi (asking whether the law to be applied includes its own rules of private international law). The connecting factors, linking an issue to a law, are then summarized. The common law of domicile, the lex domicilii, is examined, and there is a more detailed probing of the operation of statues in the English conflict of laws. The distinctive treatment for issues of procedure, and for the limitation of actions, are examined. The treatment of issues which would appear to be governed by foreign penal laws, revenue laws, and other governmental laws, precedes an examination of the role of English public policy in preventing the application of a rule of foreign law which would otherwise be applicable. Finally, the chapter lists the rules of EU law which are revoked and retained, and for the latter, the principles which accommodate and refine their application by an English court after 31 December 2020.
Jurisdiction
Authors: Briggs Adrian
Published: June 2024

This chapter examines and explains the rules which determine whether a court in England and Wales has jurisdiction, may have jurisdiction yet not exercise it, or does not have jurisdiction. The point of departure is to examine the various meanings of jurisdiction. It explains that a defendant served within the jurisdiction may be sued in England unless the court lacks jurisdiction over the subject matter (foreign land and patents), or because an international convention removes the jurisdiction of the court; and even if the court has jurisdiction, the plea of forum non conveniens may be made by a defendant to request that the jurisdiction not be exercised. A defendant who is overseas may be served with process as a matter of right, but in most cases, service out will require the prior permission of the court which is, as to its existence and its exercise, governed by rules of great and regrettable complexity. Separate attention is given to the multi-faceted law on choice of court agreements, as a matter of common law as well as under the 2005 Hague Convention on Choice of Court Agreements.
Contractual Obligations
Authors: Briggs Adrian
Published: June 2024

This chapter deals with the conflict of laws rules for contractual obligations and for issues associated with contractual obligations. It traces the development of the law from the common law doctrine of the proper law of the contract, with its strengths and weaknesses, via the 1980 Rome Convention, to the law established by the retained EU Regulation, known as Rome I, for non-contractual obligations in civil and commercial matters. It assesses the definitional complexity of ‘contractual obligation’ as a term of art in a retained EU Regulation and considers its relationship with non-contractual obligations and with questions of title to property. It examines the conflicts rules established by the Rome I Regulation for contracts in general and for contracts concluded in specific circumstances, the issues to which the lex contractus does apply, and the circumstances in which the lex contractus may be overridden by laws from systems which do not govern the contract in question. It concludes by dealing with issues, and with contracts, to which the Rome I Regulation does not purport to identify the applicable law.
Adults
Authors: Briggs Adrian
Published: June 2024

This chapter deals with the private international law of adults and adult relations: as to both jurisdiction and the identification of the applicable law in matrimonial proceedings. The point of departure is to consider the extent to which status, as determined by the law of the domicile, the lex domicilii is still useful as a concept in private international law. The conflicts rules relating to the validity of marriage—formal validity, capacity, essential validity—are examined together with the enabling or disabling role of the law of the place of marriage, the lex loci celebrationis. The more difficult issues which would render a marriage voidable are then dealt with. Divorce and annulment are examined in the context of the jurisdictional powers of an English court, as are the circumstances in which a foreign divorce or annulment will be recognized in England; the proposition that there is no choice of law in English divorce proceedings, because the English court always applies English law, is questioned. Particular attention is paid to the problem which arises when the law that would determine the validity of a marriage does not agree with English law about the effect of a prior divorce. The power of an English court to order financial provision or maintenance in English matrimonial proceedings, or after a foreign divorce, is examined. An outline of the law of personal incapacity, and of personal bankruptcy, is also given.
Arbitration
Authors: Briggs Adrian
Published: June 2024

This chapter deals with the private international law of arbitration and arbitral proceedings. The point of departure is to note that the manner in which an arbitral tribunal goes about its business is something not governed the rules of private international law applicable to proceedings before a court, but by the rules which regulate the powers of the tribunal as such. But the rules of private international law which are applied when a court has to determine the existence, validity, and scope of an agreement to arbitrate are examined in this chapter, with a view to establishing the proper demarcation between the laws governing the substantive agreement, the arbitration agreement, and the arbitral procedure. The interpretation of various formulations of choice of law clause is examined, as is the relevance of the law of the seat. The effect of an arbitration agreement on the institution or continuation of judicial proceedings is examined, as is the power of an English court to prevent foreign proceedings which interfere with an arbitration or with a decision that the parties have no obligation to arbitrate a dispute. The effect of foreign awards is largely governed by the 1958 New York Convention, but the effect of foreign judgments decreeing the enforcement or non-enforcement of the award, or purporting to set aside the award, is shown to be less straightforward.
Brexit
Authors: Turing Dermot
Published: June 2024

This chapter illustrates the new legal framework for the regulation of non-European Union (EU) central counterparties (CCPs) operating in the EU, which came into force in 2020. The new legal framework divides recognized non-EU CCPs into categories according to systemic importance. Additionally, it is possible for the European Securities and Markets Authority (ESMA) to recommend relocation of systemically important CCPs to the EU. Brexit has also created a mirror-image framework of systemic classification by the UK authorities in respect of non-UK CCPs. The chapter attempts to trace a pathway through the new legal and regulatory environment. Along the way, various strategic landmarks stand out: the extent to which geography is relevant to the regulation of clearing of financial products which have no obvious geographical roots, the meaning of ‘systemic importance’ as applied to CCPs, the impact of Brexit on the industry’s most important CCPs for clearing of over-the-counter (OTC) derivatives, and the policy of the EU and the European Central Bank (ECB) with regard to the location of CCPs.
The Future of Centrally Cleared OTC Derivatives Markets
Authors: Callens Evariest , Löber Klaus
Published: June 2024

This chapter aims to formulate conjectures about the directions in which centrally cleared over-the-counter (OTC) derivatives markets may develop in the future. It begins by examining the potential effects for centrally cleared OTC derivatives markets of four emerging risks: cyber risk, environmental risk, new technologies, and legal risk. The assessment of these emerging risks serves as an anchor point to discuss the potential flipside of the respective risks, that is, possible future benefits for centrally cleared OTC derivatives markets that are connected to the fields in which the risks may materialize. The chapter then identifies certain challenges that come with the friction between a market for centrally cleared OTC derivatives that is increasingly cross-border in nature and a regulatory and supervisory approach towards central counterparties (CCPs) that has remained largely domestic or regional. It also reflects on potential future directions for CCP governance.
Measures Taken by the Federal Reserve in Response to Financial Stress in the US Economy Arising from the Global Pandemic
Authors: Baxter Thomas C
Published: June 2024

This chapter tackles the Federal Reserve’s measures on the financial stress in the US economy following the global pandemic. It starts with the Federal Reserve’s overarching mandate to maintain and foster financial stability before tackling specific and subordinating mandates. The Federal Reserve’s mandates, the knowledgeable and deliberate use of available tools, and leadership are the three concepts that influenced the central bank’s actions. The chapter then cites the correlation between the progress of successful vaccine development and the progress in abating financial stresses caused by the pandemic. It explains how the Federal Reserve used liquidity to mitigate exceptional financial stress and improved its firepower through the creative and effective use of financial engineering.
The Response of Central Banks to the COVID-19 Crisis
Authors: Zilioli Chiara , Riso Antonio Luca
Published: June 2024

This chapter focuses on the legal aspects of the European Central Bank’s (ECB) monetary policy measures, following the response of central banks to the COVID-19 crisis. The starting point of the analysis are some considerations on the time dimension and the territorial dimension of monetary sovereignty, as well as on the interaction between monetary and supervisory competences. The experience of the COVID crisis was both a useful illustration of how central banks have an essential role to “buy time” for other branches of government to intervene in case of crisis, and also of the importance of cooperation among central banks to effectively handle global challenges on a global scale. The COVID crisis was also an opportunity to review and expand the monetary policy toolkit, and to showcase the advantages and benefits of having a central bank in charge of both monetary policy and banking supervision. It ends with a reflection on the future outlook for the ECB against the background of its strategic review, and the possible involvement of central banks in the fight to climate change.
Central Bank Policy Responses to the Effects of COVID-19 on the Brazilian Economy
Authors: Cozer Cristiano
Published: June 2024

This chapter focuses on the response of the Banco Central do Brasil (BCB) following the impact of the COVID-19 pandemic on the Brazilian economy. Government restrictions on population mobility inflicted a severe exogenous shock on economic activity, with widespread and strong negative consequences for consumer demand and the supply of goods and services. The Chapter explains how the BCB reacted promptly to the pandemic's repercussions with a substantial package of policies, which encompassed both monetary measures intended to increase financial system liquidity and regulatory measures targeted at securing the credit channel's regular operation.
Towards an International Framework for the Regulation and Supervision of ‘Stablecoins’
Authors: Hüpkes Eva HG
Published: June 2024

This chapter explores the international framework for the regulation and supervision of stablecoins. It acknowledges how digital innovation influenced the transformation in the financial sector. Moreover, stablecoins refer to digital assets maintaining a stable value relative to a specified asset or a pool of assets. Since any operational or financial disruption in the stablecoin arrangement or sudden loss of credibility might impact economic activity financial stability, the Financial Stability Board (FSB) issued a high-level recommendations on the regulation, supervision, and oversight of so-called global stablecoin arrangements. The chapter highlights the importance of authorities in all relevant jurisdictions cooperating closely in regulating and supervising stablecoin activities to ensure that no operation escapes regulation and supervision.
The Evolution of New Forms of Money and the Monetary Constitution
Authors: Valdez Manuel Monteagudo
Published: June 2024

This chapter looks into the evolution of new forms of money and monetary constitution, highlighting that [According to history,] monetary diversity and technology have been key to the formation of monetary systems. Thus, Today, central bank’s independence and money play an organizational—constitutional role in society. In correlation, the International Monetary Fund (IMF) and the Bank for International Settlement (BIS) and many central banks assess the possible competition between digital currency issuance by central banks and private means of payment. The chapter explains how private money is vis-à-vis the constitutional foundation of monetary activities by differentiating public from private money creation. It also covers the institutional response to the possible disturbing effects of bitcoins.
Japanese and International Law Developments of Crypto and Digital Currencies
Authors: Kubota Takashi
Published: June 2024

This chapter explores the Japanese and international law developments of crypto and digital currencies. It notes how the recent development of virtual digital currencies refocused the attention on traditional issues regarding the nature of money and monetary sovereignty. Bitcoin, Tether, and central bank digital currencies (CBDCs) collectively face the same challenge regarding tangibility, which is required as per Article 85 of the Japanese Civil Code. The chapter examines how Japanese domestic law determines whether crypto assets and digital currencies are exempt from ownership, bailment, and legal protection. It mentions the significance of the monetary law system adapting quickly to attain several public and private goals
Independence and Accountability of Central Banking
Authors: Louis Jean-Victor
Published: June 2024

This chapter covers the independence and accountability of central banking. It recognizes the European Central Bank (ECB) as the most independent central bank in the world because the provision of independence is protected by the organic law, that is included in the EU Treaty, and is only revisable by the unanimity of the concluding parties. According to Mario Draghi in 2018, Central Bank independence primarily correlates to the relationship between monetary and fiscal policy. The chapter then elaborates on populism influencing the political regimes and central banks in democratic and authoritarian states. It mentions how populism as development plays a significant role in the contestation of independence.
Central Banking in Taiwan
Authors: Yu Syue-Ming
Published: June 2024

This chapter elaborates on the governance, functions, and monetary and exchange rate policies of Taiwan’s Central Bank. It explains how the Bank of Taiwan performed partial central banking services until 1 July 2000, when the Central Bank of the Republic of China (CBC) resumed the role of the issuer of national currency. The CBC’s improvement in governance, accountability, and transparency has been deemed to be at the same level as the Federal Reserve or the ECB. The chapter also mentions the government’s pandemic response, which had been less effective on the fiscal department despite being reasonably successful on the public health front. It then explores the CBC’s monetary policy framework.
Introduction to International Sales
Authors: Bridge Michael
Published: June 2024

This chapter deals with the background to the international sale of goods with particular reference to commodities, since this is where the case law on international sales of goods governed by English law is located. Its particular emphasis is on the way that for many players an international sale of goods is a speculative transaction. Consequently, the chapter contains material on futures trading and hedging, both closely associated with the physical trade. The chapter deals also with choice of law issues and introduces the reader to certain organizations in both the public and the private sector, notably the major trade organizations, the International Chamber of Commerce, the UN Commission on International Trade Law (UNCITRAL) and the International Institute for the Unification of Private Law (Unidroit).
FOB Contracts
Authors: Bridge Michael
Published: June 2024

This chapter deals with the FOB (free on board) contract for the international sale of goods. At intervals, it relates the contract of sale to a connected voyage or time charter party. It discusses the different types of FOB contract and the allocation of responsibility and costs between seller and buyer in the loading process. The buyer’s duty to nominate a vessel, together with time issues relating to its nomination, is discussed at length. So too is the buyer’s right to substitute a vessel or to extend the shipment period. Emphasis is also laid on the timely arrival of the vessel and, overall, the buyer’s control of the shipping timetable. The choice of shipment port and the seller’s duty to load also come in for examination.
Bills of Lading and Documents of Title
Authors: Bridge Michael
Published: June 2024

This chapter deals at length with bills of lading, beginning with the statutory use of them as a means of transferring rights and duties under the contract of carriage concluded between consignor of goods and carrier. The chapter moves on to the modern use of ship’s delivery orders and sea waybills to the same effect. There is an extensive treatment of the bill of lading as a document of title and of other possible means of transferring the carrier’s delivery duty. The evidentiary function of bills of lading is examined, together with the means by which they are transferred. Other shipping documents such as mate’s receipts are discussed. Finally, there is an account of methods being developed to replace the paper bill of lading and its functions.
The UN Sale Convention (CISG)
Authors: Bridge Michael
Published: June 2024

This is the first of the chapters concerning the UN Convention on the International Sale of Goods (CISG) with comparisons to English sale of goods and contractual rules. The circumstances in which the CISG comes to be applied by courts and tribunals in Contracting and Non-Contracting States are examined, as well as the relations between the CISG and other international instruments. Limitations on the scope of CISG rules are duly noted as they concern the exact definition of a sale contract and the exclusion of certain types of claim. The role of good faith and general principles underlying the CISG is examined. The contracting parties’ right to exclude or vary the CISG is dealt with, as too is the role played by permitted reservations (declarations) entered by Contracting States. The role of usages and practices is discussed and mention made of limitations.
Formation and Performance of the Contract
Authors: Bridge Michael
Published: June 2024

This chapter deals at length with the formation of a contract governed by the CISG. It deals in particular with irrevocable offers, the battle of forms, and the incorporation of standard terms. Parol evidence and contractual interpretation are examined. Attention is then turned to the seller’s duty to deliver conforming goods and to the buyer’s examination of delivered goods, together with the giving of notice of non-conformity. Conformity here relates to fitness for purpose and compliance with contractual terms in relation to both the physical state of the goods as well as their freedom from third party intellectual property and other claims.
The Basic Recognition and Enforcement Obligation and Criteria for Eligibility (Articles 4–6)
Authors: Brand Ronald A , Coffee Michael S , Herrup Paul
Published: June 2024

This chapter covers the Hague Convention’s articles on the basic recognition and enforcement obligation and criteria for eligibility. Chapter II of the Convention contains the operational core of the Convention of regulating recognition and enforcement of judgments within the scope of the Convention. While the rules are mandatory, their operation does not necessarily mandate actual recognition or enforcement of judgments within scope. In Article 4, the judgment given by a court of a Contracting State shall be recognized and enforced in other Contracting States. Meanwhile, Article 5 provides the criteria of eligibility for recognition and enforcement of judgments with certain features. The chapter cites how Article 6 creates an obligation that overrides other provisions of the Convention, while Article 7 then provides discretionary grounds for refusal of recognition or enforcement of judgments.