bluuebunny/crossref_metadata_2025 huggingface dataset:
Part IV Independent Constitutional Institutions, 16 Separation of Powers and the Position of the Public Prosecutor in Francophone Africa
Authors: Horace Adjolohoun , Charles M Fombad
Published: June 2017

This chapter examines the role of public prosecutors in Francophone Africa. Most of Francophone Africa inherited and has maintained the French civil law tradition which confers on the public prosecutor constitutional and institutional status of dependence on, and limited independence from, the executive and judiciary. It is a delicate balance which tilted more in favour of dependence than independence before the 1990s, during the long era of dictatorship that followed independence. The chapter discusses the historical origins of the public prosecutor in France and its adoption in Francophone Africa; the functions of the public prosecutor and his status vis-à-vis the other branches of government. It points out that the relationship of dependence on the executive and judiciary has largely remained unchanged and poses challenges not only to the good administration of justice but also the entrenchment of a culture of constitutional democracy. A number of reforms are suggested.
III Trust Arbitration as a Matter of National Law, 10 Trust Arbitration in England and Wales: The Trust Law Committee
Authors: Mark Herbert
Published: June 2017

This chapter examines the strategy being adopted in England and Wales to enable the arbitration of trust disputes to be introduced, and the steps that have already been taken in that direction. One particular obstacle to progress in Britain is Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which requires that everyone’s civil rights and obligations be determined by way of a public hearing, whereas arbitrations are traditionally confidential and heard in private. The chapter asks whether legislation is truly necessary in order to achieve trust arbitration, and this leads to a longer exploration of Article 6.1 and its importance in the context of trust arbitration. It concludes with a final rhetorical question: is the required legislation achievable in a manner compatible with Article 6.1?
III Trust Arbitration as a Matter of National Law, 14 Arbitration of Trust Disputes in the Cayman Islands
Authors: Anna Peccarino , Tom Lowe
Published: June 2017

This chapter analyzes the Cayman Islands’ view of internal trust arbitration and discusses the unique aspects of Cayman law as they relate to trust arbitration. Topics covered include the Cayman Islands Trusts Law; the Confidential Relationships (Preservation) Law (2015 Revision) which governs confidentiality of business transactions in the Cayman Islands, specifically disclosure to third parties outside of a trust; trust industry regulation; the arbitrability of disputes involving STAR trusts, a uniquely flexible type of trust that is available only in the Caymans; and the Arbitration Law (2012 Revision) which applies to all arbitration proceedings commenced in the Cayman Islands after 2 July 2012.
IV Trust Arbitration as a Matter of International Law, 19 Arbitrating Trust Disputes: Effect of the Hague Convention on the Law Applicable to Trusts and on Their Recognition
Authors: Georg von Segesser
Published: June 2017

This chapter examines the effect of the Hague Convention on the Law Applicable to Trusts and on their Recognition (Hague Trust Convention) on the law applicable to the arbitration of trust disputes. It also considers the extent to which arbitrators can apply the conflict of laws rules of the convention in cases where the parties have not agreed that these rules should govern the issues in dispute. The chapter is organized as follows. Section II addresses the selection of the applicable substantive law by arbitral tribunals in cases where the parties have not agreed on the applicable law. Sections III and IV cover international conventions and, in particular the Hague Trust Convention, as sources for the selection of the applicable law. Section V deals with the validity and effect of arbitration agreements while Section VI considers the effects of a choice of-law-clause and the binding effect of such a clause for the arbitral proceedings. Section VII addresses the effect of specific conflict of laws rules of the Hague Trust Convention on the law applicable to the merits in international trust arbitration disputes.
IV Trust Arbitration as a Matter of International Law, 21 Enforcement of Foreign Arbitral Awards Arising from an Internal Trust Arbitration: Issues Under the New York Convention
Authors: Sarah Ganz
Published: June 2017

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention (Convention), makes the enforcement of foreign arbitral awards in Contracting States generally much easier than the enforcement of foreign judgments by, inter alia, imposing a presumptive obligation to enforce arbitral awards subject to only a limited number of grounds on which enforcement may be refused. This chapter looks at the different grounds that allow a domestic court to refuse enforcement under the Convention and analyzes the problems that a party trying to enforce a trust award could potentially face. It begins by examining the scope of the Convention under Article I(3), focusing on whether a trust can be characterised as being ‘commercial in nature’. It then considers the grounds for refusal of enforcement under Article V(1) of the Convention, focusing on issues of invalidity (such as consent and form requirements) and incapacity as well as lack of proper notice and representation. Lastly, the chapter examines whether the doctrines of non-arbitrability and public policy, as applied in the place of enforcement, may render an award unenforceable under Article V(2) of the Convention.
The History of ICSID
Authors: Parra Antonio R
Published: June 2017

This revised edition of the text details the history and development of the International Centre for Settlement of Investment Disputes (ICSID) and its constituent treaty, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The book traces the immediate origins of the Convention, in the years 1955 to 1962, and gives a stage-by-stage narrative of the drafting of the Convention between 1962 and 1965. It recounts details of bringing the Convention into force in 1966 and the elaboration of the initial versions of the Regulations and Rules of ICSID adopted at the first meetings of its Administrative Council in 1967. The four periods 1968 to 1988, 1989 to 1999, 2000 to 2010 and 2011 to 2015 are covered in separate chapters which examine the expansion of the Centre’s activities and changes made to the Regulations and Rules over the years. There are also overviews of the conciliation and arbitration cases submitted to ICSID in the respective periods, followed by discussions of selected cases and key issues within them. A concluding chapter discusses some of the broad themes and findings of the book, examines how ICSID might meet several large new challenges facing it and outlines several possible further changes of its rules and procedures. The book offers unique insight into the establishment and design of ICSID, as well as into how the institution evolved and its relationship with the World Bank over the 50 years since the establishment of ICSID.
ICSID’s First Two Decades
Authors: Parra Antonio R
Published: June 2017

This chapter examines the activities of the International Centre for Settlement of Investment Disputes from 1968 to 1988. It discusses institutional developments, promoting consents to the jurisdiction of ICSID, an overview of the early cases, the 1984 amendments of the ICSID Regulations and Rules, the Additional Facility, the appointing authority role and the investment law publishing activities.
ICSID from 1989 to 1999
Authors: Parra Antonio R
Published: June 2017

This chapter deals with the last year of the 1980s and all of the subsequent decade. Though mostly placid for ICSID, the period was one of momentous change elsewhere in the World Bank Group and, of course, in the world at large. Section I describes the growing network of investment treaties, which was to have a tremendous impact on ICSID. The Multilateral Agreement on Investment episode is also discussed. There were many new signatures and ratifications of the ICSID Convention in the 1990s. They are recounted in Section II, which also looks at the working of the ICSID Secretariat during the decade. An overview of the cases submitted to ICSID between 1989 and 2000 is provided in Section III. Among them were the first Additional Facility cases. The Additional Facility cases, six of which were brought to the Centre under the investment chapter of the NAFTA, are examined in Section IV. The potential of bilateral investment treaties (BITs) to generate cases for ICSID started to be realized in earnest in this period. Several of the new BIT cases led to decisions that were particularly influential in the development of subsequent jurisprudence. These leading BIT cases are examined in Section V.
ICSID from 2000 to 2010
Authors: Parra Antonio R
Published: June 2017

This chapter examines activities of the Centre in the first decade of the twenty-first century. Section I begins by reviewing ratifications of the ICSID Convention in the period 2000 to 2010. It then turns to the management, staffing and finances of the Secretariat during the period. Additions to the Panels of Conciliators and of Arbitrators are also considered. Two sets of amendments of the Regulations and Rules of the Centre were passed during the decade to meet changing demands on ICSID. These amendments are examined in Section II. An overview of the expanded caseload is provided in Section III.
Product Governance and Product Intervention under MiFID II/MiFIR
Authors: Busch Danny
Published: June 2017

This chapter analyses the product governance and product intervention rules introduced by MiFID II/MiFIR. It argues that the combination of these two approaches designed to exclude harmful products from the market is a major step forward in investor protection. However, complying with product governance rules will entail costs for the firms concerned. They will have to put in place the requisite internal procedures and there will be a statutory duty for the firm developing the product and the firm distributing it to exchange a considerable volume of information. All in all, the author believes that these extra costs are acceptable; and are dwarfed by the social costs of marketing harmful financial products. The author argues that MiFID II’s introduction of product governance rules and product intervention rules is common sense. It would be naive to think that product governance rules could in practice guarantee that harmful products are no longer marketed.
SME Growth Markets
Authors: Veil Rüdiger , Di Noia Carmine
Published: June 2017

This chapter considers SME growth markets, introduced under MiFID II as an important strategy to improve access to finance for SMEs in Europe. SME growth markets should be more flexible than regulated markets, but the authors submit this will not be the case: the regime for these will consist of strict rules on insider trading and market manipulation which are subject to supervision by NCAs. These rules, and a disclosure regime ensuring the publication of price relevant information, are important to ensure investor confidence. However, the authors argue that it is neither necessary nor recommendable to apply the respective disclosure obligations under the MAR; instead, a system based on current event reports is sufficient in order to tackle information asymmetries on SME growth markets. The authors conclude that the disclosure regime in Europe should be re-assessed with the aim of allowing market operators to experiment with alternative disclosure obligations.
Dark Trading Under MiFID II
Authors: Gomber Peter , Gvozdevskiy Ilya
Published: June 2017

This chapter focuses on the concept of dark trading in the context of MiFID II, against the background of the MIFID I regulation and its economic consequences for European equity markets. MiFID II aims to increase market transparency and to bring trading of financial instruments into regulated platforms. Extending the waivers introduced by MiFID I, the new Directive announces the double volume cap regime. An additional trading obligation of shares will reduce the extent of OTC trading in Europe. Some market participants and trading venues recently introduced MiFID II-ready solutions preventing dark executions from being subject to the double volume cap regime either by classifying the orders as large in scale or by introducing trading systems based on auction market models. These models and functionalities that already anticipate the future MIFID II regime are also discussed in this chapter.
The Private Law Effect of MiFID I and MiFID II
Authors: Busch Danny
Published: June 2017

This chapter examines how far civil courts are bound by MiFID I/MiFID II under European law, within the following topics: whether civil courts and contracting parties may be less strict or stricter than MiFID I/MiFID II, whether MiFID I/MiFID II has any influence on the principle of ‘relativity’ or ‘proximity’, proof of causation, or a contractual limitation or exclusion of liability in the Member States; and whether the civil courts are obliged to determine if MiFID I/MiFID II rules have been infringed in disputes between investment firms and private investors. The chapter concludes that MiFID II and MiFID I are unclear, and, as the EU Court of Justice has not yet explicitly answered the main questions, it will be necessary to await the further judgments.
The Chartered Institute of Arbitrators (1915–2015)
Authors: Betancourt Julio César
Published: June 2017

This introductory chapter discusses the development of the Chartered Institute of Arbitrators (CIArb) as well as developments in the field of arbitration as the CIArb marks its 100th anniversary in 2015. The principal aim of the Institute was to raise the status of a professional arbitrator to a distinct and recognized position among the learned professions, specifically by means of the study of the law and practice of arbitration. Prior to the Institute’s establishment, there was almost a complete absence of systematic study of this discipline, not only in England, but also in the United States, where arbitration had also found a ground. However, over the last 100 years, the CIArb has become the alma mater of thousands of ‘arbitration’ students from all around the world. The study of the law and practice of these disciplines has been fundamental to the professionalization of arbitrators and arbitration practitioners.
The Dangers of Neglect
Authors: Kaplan Neil , Boltenko Olga
Published: June 2017

This chapter argues that the issue of the law applicable to arbitration agreements has been neglected to such a tremendous extent that even the major arbitral institutions fail to include the choice of law provisions in their model arbitration clauses. As a result of that oversight, very rarely do the parties include the choice of law provision in their arbitration agreements, and many arbitrations degenerate into unnecessary debates as to which law applies. The time has come for parties to select explicitly the law that will govern their arbitration agreement, and perhaps more importantly, for the institutions to recommend that the parties select the law to govern their arbitration agreements. The various approaches offered by arbitration practitioners on the subject are discussed.
Procedural Efficiency in International Commercial Arbitration
Authors: Snodgrass Elizabeth
Published: June 2017

International commercial arbitration is getting bogged down by complaints that the process generally costs ‘too much’ and usually takes ‘too long’. Participants in the arbitral process and the resulting debate readily share scare stories about arbitrations that have gone off the rails in one way or another. Nevertheless, arbitration remains a preferred alternative for parties to many international business transactions. This chapter assesses three techniques that parties might consider when drafting pre-dispute arbitration clauses as techniques ex ante to maximize procedural efficiency: appointing a sole arbitrator; opting for expedited arbitration; and making express provision for summary dismissal of legally unmeritorious claims.
Emergency Arbitrators and Court-Ordered Interim Measures
Authors: Jones Doug
Published: June 2017

Parties to a dispute often need urgent relief and may seek interim measures. Interim measures, also known as ‘temporary measures of protection’ or ‘conservatory measures’ are orders by courts or arbitral tribunals directed at the preservation of the status quo until a decision on the merits of the dispute is rendered. Closely related to interim measures is the concept of the emergency arbitrator-an arbitrator appointed post haste upon the application of a party to a dispute to decide an urgent issue that cannot wait until the constitution of the arbitral tribunal to decide it. This chapter considers the emergency arbitrator provisions in the rules of selected arbitral institutions, and the interplay between these provisions and a court’s ability to order interim measures of protection. It discusses the utility of emergency arbitrator provisions in light of issues of enforceability, giving way to both legal and practical implications for the choice between seeking emergency arbitration instead of court-ordered interim measures.
Legal Standards Applicable to Deciding Applications for Interim Relief
Authors: Hanessian Grant
Published: June 2017

Parties in a dispute sometimes need to obtain relief prior to the final disposition of the case. Such relief-in international arbitration variously termed ‘interim measures of protection’, ‘conservatory measures’, or ‘provisional’, ‘preliminary’, or ‘temporary’ relief-may be necessary to preserve the status quo, to facilitate conduct of arbitral proceedings, or to ensure enforcement of a future award. In recent years, interim relief has received more attention and it has become increasingly possible to identify international standards relevant to applications for interim relief. This chapter considers these emerging standards, with particular emphasis on contributions made by the decisions of investor-state tribunals and emergency arbitrators.
Discovery in Arbitration
Authors: Yanos Alexander
Published: June 2017

This chapter focuses on Section 1782 of Title 28 of the United States Code (USC). One of the stated purposes of 28 USC § 1782 (‘section 1782’) is to provide ‘judicial assistance to foreign or international tribunals’. However, the profound differences between the broad form of discovery available under section 1782 and the narrow form of discovery generally available in international arbitration may create the possibility of conflicts between the process envisioned by the arbitral tribunal and the process made available to parties by the US judiciary. It argues that section 1782 is subject to a strong presumption in favour of discovery. When a foreign litigant wants discovery, but the foreign tribunal may not, courts typically err on the side of the foreign litigant.
Good (and Bad) Initiatives of Arbitrators
Authors: Besson Sébastien
Published: June 2017

This chapter explores the power of arbitrators to take initiatives. It discusses the legal basis and sources of the arbitrators’ power to take initiatives; the exercise of the arbitrators’ discretion; and initiatives to clarify or to correct the parties’ request. It shows that arbitrators indisputably have the power to take initiatives concerning the facts and the law. They may also take initiatives in relation to defective requests presented by the parties. Some initiatives are appropriate, some are not. Ultimately, the distinction between good and bad initiatives will always imply a balancing of interests and will require the careful judgment of the arbitrators.
Managing Construction Conflict
Authors: Stipanowich Thomas J
Published: June 2017

This chapter focuses on the ‘Quiet Revolution’ in the US construction industry. By the last decade of the twentieth century, the construction industry was bogged down by the growth of litigation, making it one of America’s least efficient sectors. Suddenly, it seemed that everyone began exploring and proposing solutions to the construction industry’s crisis. These included initiatives focused on tackling the roots of construction conflict and promoting jobsite collaboration, including partnering and contract terms to more thoughtfully allocate risk and incentivize collaboration. Today, the spirit of the envisioned ‘Quiet Revolution’ is still evidenced in programmes anchored in ‘real time’ and on the jobsite. However, the litigation-oriented legal culture persists, exerting a ‘gravitational pull’ on everything it touches, especially mediation and arbitration.
Shifting the Burden of Proof
Authors: Tweeddale Andrew , Tweeddale Keren
Published: June 2017

The concept of the burden of proof is a fundamental part of any adjudicative procedure-whether it be court proceedings, arbitration, or adjudication. Stepped dispute resolution clauses are now the norm in construction contracts and this chapter examines how these clauses affect the burden of proof. English law provides that in cases where the burden of proof is unclear-because the parties’ cases are equally weighted-the burden of proof lies on the party who would be unsuccessful if it did not produce any evidence. Also, it does not matter if a party is making an affirmative or negative assertion, the burden of proof still lies with that party. The chapter analyses the issue of whether an adjudicator’s decision shifts the burden of proof by considering cases such as Walker Construction (UK) Ltd v Quayside Homes Ltd, City Inn Ltd v Shepherd Construction Ltd, The Construction Centre Group Ltd v The Highland Council, and Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc.
Principle 4
Authors: Calnan Richard
Published: June 2017

This chapter explains that contracts are read in the context of their background facts. These are the facts reasonably available to the parties which are relevant to establishing how a reasonable person would understand what the parties intended by the contract when it was entered into. It discusses the different approaches to context. Some judges are keen to use the context fully. Others would rather limit the extent to which external factors can influence the words of the contract. This is an important practical issue on which there are divergent views, and the chapter discusses the issues concerned and suggests a way forward. It discusses the limitations on the use of context, including the use of prior negotiations and subsequent conduct in interpreting contracts. It also discusses the effect on third parties of a contextual reading of contracts.
Principle 8
Authors: Calnan Richard
Published: June 2017

This chapter considers the circumstances in which the courts will imply terms into contracts. Words are implied into a contract if the parties must objectively have intended them. This will be the case either if they are so obvious that there was no need to express them, or if they are necessary to make the contract work in a business context. The chapter discusses the controversies which have arisen in recent years concerning the scope of a court’s ability to imply terms into a contract. It discusses the tests for the implication of terms and gives practical examples of when they have been applied.
Conclusions and Outlook
Authors: Möckesch Annabelle
Published: June 2017

This final chapter sets out the conclusions reached in the individual parts of this analysis. More specifically, it takes a look at the comparative overview of concepts of attorney–client privilege demonstrated in previous chapters; as well as the applicable attorney–client privilege standard in judicial and administrative proceedings, international commercial arbitration, and investor–state arbitration. The chapter then discusses the proposed rules for attorney–client privilege in international commercial arbitration. . The chapter concludes with an outlook.
London
Authors: Jagusch Stephen , Triantafilou Epaminontas E
Published: June 2017

This chapter summarizes the key aspects of the English legal system with respect to the role of courts in arbitrations seated in England and Wales. First, it highlights the key provisions of relevant English legislation, mainly of the English Arbitration Act of 1996 and the principal court decisions arising under that legislation. Second, it describes the manner in which English law as the law of the seat affects the role of English courts in the course of three discrete stages: before the award, after the award, and during recognition and enforcement. In the process and where necessary, it addresses and ultimately rejects recently articulated concerns questioning the supremacy of England and Wales as an arbitration seat. The chapter concludes that England and Wales possesses a comprehensive and clearly articulated legal framework governing arbitration, and a sophisticated, impartial judiciary with ample experience in complex arbitral disputes and the collateral issues they raise under both English law and foreign laws and regulations. The jurisdiction is distinctly arbitration-friendly, with a keen understanding of the benefits arbitration aims to confer on parties, and the policy considerations such benefits entail.
Moscow
Authors: Ivanov Mikhail , Manassyan Inna
Published: June 2017

This chapter evaluates the merits of Moscow as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Russia; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. A recent survey on Russia as a place for arbitration showed that most respondents did not have any manifestly positive or negative attitude toward Russia as a place for arbitration. This absence of ‘exceptionally positive’ or ‘exceptionally negative’ views shows that continued efforts in providing greater support to arbitration are needed to bring Russia's current status of international arbitration practices in line with international trends. On a positive note, the Russian Federation appears to be moving gradually toward improving the efficiency of its legislation on international arbitration and abandoning the historical, overly formalistic approach of state courts on matters related to arbitration.
Vienna
Authors: Pitkowitz Nikolaus
Published: June 2017

This chapter evaluates the merits of Vienna as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Austria; 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 Austria is a United Nations Commission on International Trade Law (UNCITRAL) Model Law jurisdiction with a long and stable history of supporting arbitration. A wealth of decisions by the Austrian Supreme Court and a wealth of legal commentaries offer clear guidelines to the arbitration practitioner and only very few surprises. The Vienna Rules are one of the most streamlined of modern institutional arbitration rules that provide substantial flexibility for arbitral proceedings.
A Guide to the SIAC Arbitration Rules
Authors: Mangan Mark , Reed Lucy , Choong John
Published: June 2017

This book provides a rule-by-rule examination of the inception, interpretation, and application of the 2010 SIAC Rules. Its approach is practical and strategic and considers how each rule features in the context of the realities that practitioners face, while a complementary thematic analysis brings out connections between the rules and those of other institutions. The work benefits from the privileged access to the travaux préparatoires of the 2010 Arbitration Rules Drafting Committee, giving them insight into the purposive thinking behind the amendments, as well as access to SIAC awards and the views of the SIAC Secretariat. The book begins with an analysis of Singapore arbitration law, the history of the SIAC, and a consideration of the rising prominence of Indian parties in SIAC arbitrations and its consequences. Every rule is then examined in detail. The book concludes with chapters dedicated to SIAC domestic arbitrations and cases administered by SIAC which are governed by the UNCITRAL Arbitration Rules. Relevant supporting documents are appended, including SIAC Practice Notes and the SIAC Code of Ethics for Arbitrators.
The Basic Features of Investment Treaties
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: June 2017

Chapter 2 introduces the reader to the basic features of investment treaties, with particular emphasis on two types of treaties under which investment arbitrations have arisen: bilateral investment treaties (BITs) and multilateral investment treaties. It first discusses the structure of BITs, focusing on provisions in such areas as substantive rights, compensation for losses (war clause), free transfer of payments, dispute settlement, and subrogation. It then examines the common provisions of four major multilateral investment treaties, namely: NAFTA; the Energy Charter Treaty; the ASEAN Comprehensive Investment Agreement and the newly-concluded Trans-Pacific Partnership Agreement (not yet in force).
Treatment of Investors
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew
Published: June 2017

Chapter 7 examines central treaty provisions on the treatment of investors. It begins with a discussion of the basis and character of treatment obligations, paying attention to the rule of law in international investment protection, the structure of investor treatment provisions within investment treaties, the historical evolution of the treatment standards, and the use of general rules in their interpretation. It then considers how the treatment standards have been developed and applied in contemporary arbitral awards. It conducts a detailed analysis of the principal treaty protections of fair and equitable treatment, full protection and security, national treatment, and most-favoured-nation treatment. It concludes by offering an integrated approach to the determination of contested rights.
Commercial Arbitration in Germany
Authors: Kreindler Richard , Wolff Reinmar , Rieder Markus S
Published: June 2017

This book provides a detailed commentary on and analysis of German arbitration law and practice. This title covers both domestic and international arbitration in all its stages. The work details the legal framework for German-related arbitration and provides practical guidance on the appropriate choices, with a specific focus on particularities of German law and practice. The book navigates along the life cycle of an arbitration, commencing with the arbitration agreement, continuing with the arbitral tribunal, the arbitral proceedings and interim relief, and concluding with the arbitral award including its recognition and enforcement. At each stage, the work combines exhaustive legal analysis, clear and concise presentation, and a practical and accessible approach. Arbitration in Germany continues to grow as the country builds on its reputation as a suitable venue for international arbitration. This trend is reflected in the increasing relevance of the German Institution of Arbitration (DIS), which currently has more than 1,150 members domestically and overseas, including numerous major trade organizations and chambers of commerce, leading German companies, judges, lawyers and academics. The number of arbitration cases under the DIS Rules has more than doubled since 2005 while statistics of the International Chamber of Commerce (ICC) show that Germany is the fifth most frequently chosen place of arbitration and German law is the fourth most frequently chosen law. Even where the place of arbitration is outside Germany, German arbitration law plays an increasingly important role for the recognition and enforcement of awards. This particular significance is highlighted by Germany's strong export-oriented economy and is mirrored in the fact that German parties are the second most frequently encountered nationality among parties in ICC arbitrations worldwide.
The Regulation of Deposit-Taking Business
Authors: Proctor Charles
Published: June 2017

This chapter discusses the regulatory framework applicable to the conduct of deposit-taking business in the UK. It first traces the history of banking regulation in the UK. It then covers deposit-taking as a regulated activity; the authorization procedure; powers of the UK Prudential Regulation Authority (PRA); and European Economic Area (EEA) firms.
The Conduct of Retail Banking and Investment Business
Authors: Proctor Charles
Published: June 2017

The conduct of banks in relation to their retail customers used to be governed by two voluntary codes: the Banking Code (for personal customers) and the Business Banking Code (for corporate and business customers). This voluntary scheme for the regulation of retail business came to an end on 1 November 2009, when the Banking Conduct of Business section (BCOBS) of the UK Financial Services Authority (FSA, now UK Financial Conduct Authority (FCA)) Handbook came into force. This chapter examines the main requirements of BCOBS. It also considers the requirements applicable to banks in the field of investment services provided to retail clients, to the extent to which these are affected by the EU's Markets in Financial Instruments Directive.
Deposit Protection Schemes
Authors: Proctor Charles
Published: June 2017

This chapter reviews deposit protection arrangements which come into operation on the insolvency of a bank. It covers EU law requirements in the field of deposit protection; the implementation of those requirements in the UK by means of the Financial Services Compensation Scheme; the revisions to the powers and role of that scheme made pursuant to Part 4 of the Banking Act 2009; and the legal aspects of the recent diplomatic rift between the UK and Iceland, following from deposit protection arrangements applicable to the UK branch of an Icelandic bank.
The Liability of the Regulator
Authors: Proctor Charles
Published: June 2017

This chapter examines the potential liability of a regulator for negligent supervision of a failed institution and for certain other regulatory actions. It considers the consistency of immunity provisions with EU law; consistency of immunity provisions with the European Convention on Human Rights; the scope and effect of immunity provisions; and the cases on regulatory immunity which have arisen in common law jurisdictions.
Duties of the Paying Bank
Authors: Proctor Charles
Published: June 2017

This chapter considers the duties and potential liabilities of the bank in its capacity as a paying bank, that is, in meeting cheques and making payments at the request and for the account of the customer. It discusses the obligation of the bank to make payment; the nature and consequences of an unauthorized payment; various statutory protections available to an institution in its capacity as a paying bank; payment by mistake; and the extent to which the paying bank may incur liabilities to third parties in the course of performing its functions.
Syndicated Loans
Authors: Proctor Charles
Published: June 2017

This chapter examines the structure of syndicated (or multi-bank) facilities. It considers the role and liability of the arranger; the role of the agent; the legal nature of the relationships between the individual banks and the borrower; the relationships between the banks themselves; and the particular structure adopted for any security arrangements.
Bank Guarantees, Performance Bonds, and Documentary Credits
Authors: Proctor Charles
Published: June 2017

This chapter discusses the following: bank guarantees, performance bonds, documentary credits, security under a commercial credit, standby credits, the fraud exception; and certain private international law issues.
Charges Over Shares and Other Securities
Authors: Proctor Charles
Published: June 2017

A charge over shares may be taken for various reasons. Where the security consists of a portfolio of listed securities, they will have their own ascertainable value and there will be a ready market for them in the event that the bank wishes to realize its security. A bank may also wish to take a charge over shares for other, less obvious reasons. For example, if it funds the acquisition of a commercial property by a company specifically incorporated for that purpose, it may wish to take a charge over shares from the equity investors. This chapter discusses legal charge; equitable charge over shares; validity of a security interest created over shares in a foreign company; charges over uncertificated securities; the need to deliver a charge over shares or other securities to the registrar of companies for registration within 21 days of its creation; and priorities of competing mortgages over shares.
Avoidance of Security in Insolvency
Authors: Proctor Charles
Published: June 2017

When a company is facing insolvency, the law requires the company and its directors to consider the interests of the creditors as a whole. Lenders (such as banks) which are in a position to take security are likely to have more information about the company's situation than is available to the general body of trade creditors. Thus, there should be some effective constraint against the bank's ability to prop up the company in a manner which may be detrimental to the interests of the unsecured creditors. This chapter discusses transactions at an undervalue; preferences; extortionate credit transactions; floating charges; and transactions defrauding creditors.
Banks and the Eurozone Crisis
Authors: Proctor Charles
Published: June 2017

The Eurozone has been in the midst of a financial crisis since the extent of Greece's sovereign debt problems became public in 2009. This chapter examines the consequences if a Member State found itself compelled to withdraw from the Eurozone as a result of its difficulties. It begins with some general remarks about the applicable treaty provisions and the framework for a Eurozone withdrawal. It then analyses the consequences if Greece withdrew from the Eurozone with the consent of the other Member States; or if Greece withdrew from the zone on a unilateral basis. It also considers essential measures aimed at protecting the national economy and the banking system, including the imposition of exchange controls.
Cross-Border Financial Services, Consumer Protection, and Unfair Contract Terms
Authors: Proctor Charles
Published: June 2017

This chapter considers the provisions of Rome I that deal specifically with financial instruments and contracts for the provision of financial services. It discusses the background to Rome I and its consumer protection rules; the meaning of ‘financial instruments’ for Rome I purposes; contracts concluded within a multilateral trading system (Articles 4(1)(h) and 6(4)(e)); consumer law exemptions applicable to financial instruments, rights issues, and takeover offers (Article 6(4)(d)); the consumer law exemption relating to foreign services (Article 6(4)(a)); the banker-customer relationship; and the impact of domestic consumer laws.
Customer Obligations and Foreign Law
Authors: Proctor Charles
Published: June 2017

This chapter examines the impact of foreign law (moratoria or exchange controls) on the obligations of the customer to the bank. Exchange controls and similar laws will be of mandatory application in the country concerned, and the borrower have no choice but to comply with them. It may therefore be impossible for the borrower to instruct its bank to make the necessary payments. It is also important to know whether the English courts will continue to regard the debt obligation as valid.
Islamic Finance Transactions in the Courts
Authors: Proctor Charles
Published: June 2017

This chapter examines case law which has thus far become available in the context of transactions which are designed to be Shariah-compliant. It begins by reviewing English case law which directly addresses the enforceability of Islamic products. It then turns to Malaysian and US case law.
Enforcement
Authors: Jagusch Stephen
Published: June 2017

This chapter discusses the enforcement of financial awards in international financial disputes. It explains the presumptive validity of arbitral awards and the ‘pro-enforcement’ approach to the recognition and enforcement of awards under the New York Convention and national arbitration statutes. It considers the limited grounds on which enforcement of an award may be challenged under Article V of the New York Convention, and the circumstances in which the courts of Contracting States may adjourn or suspend recognition proceedings pending the resolution of actions to annul an award in the arbitral seat. It summarizes overviews of the enforcement schemes provided under the International Centre for Settlement of Investment Disputes (ICSID), Panama, and Geneva Conventions, and certain practical issues surrounding the tracking of assets of scofflaw award debtors.
Background, EU and Global Influences
Authors: Morris Simon
Published: June 2017

This chapter traces the recent history of the UK system of financial services regulation. It begins by providing some context to the Gower Report of 1984, before detailing the changes that the resulting Financial Services Act (FSA) 1986 introduced (principally the establishment of self-regulating organisations (SROs)). The success of Labour’s replacement of the SROs with the Financial Services Authority (FSA) in 2000 (under the Financial Services and Markets Act (FSMA) 2000) is assessed in light of the financial crisis of 2007–2009. The key causes of the crash, and the actions of the Government and the FSA during it, are analysed. It explains the restructuring of the regulatory set-up (with the introduction of the Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA)) following the crash. The influence of recent European regulatory reform on the UK is also considered.
The Constitution and Powers of the UK Regulators
Authors: Morris Simon
Published: June 2017

This chapter explains the interrelated powers and responsibilities of the various UK bodies involved in the new system of financial services regulation. The role, constitution, and powers of the Bank of England and the Financial Policy Committee (FPC) are reviewed. The policies, statutory framework, and constitutions of the Prudential Regulation Authority (PRA) and Financial Conduct Authority (FCA) are assessed. The provisions—the eight regulatory principles (3B), the principles of good governance (3C), the requirement to coordinate with one another, and requirement to cooperate with any treasury-ordered enquiry into serious regulatory failures—which apply to both the PRA and FCA are examined.
Authorisation
Authors: Morris Simon
Published: June 2017

In this chapter the concept of ‘authorisation’, in the context of the general prohibition, is explored. The process of obtaining authorisation through a Part 4A permission is explained. Next, the threshold conditions that a firm must meet, both on authorisation and subsequently, are given. The key concept of passporting within the European Economic Area (EEA) is explained for firms based in the EEA and the UK. The four principal categories of persons who are exempted from authorisation requirements are discussed. Finally, this chapter examines how a firm’s permission can be varied or cancelled, and how the regulator can impose requirements upon the firm to take or not to take some specified action.
Prudential Regulation
Authors: Morris Simon
Published: June 2017

This chapter reviews the operation of the main elements of the Prudential Regulatory Authority’s (PRA) and the Financial Conduct Authority’s (FCA) prudential regulation. Prudential regulation concerns culture, systems, governance, and risk management as well as capital resources. The standards attached to each of these elements are explained in this chapter. It also considers the extra requirements placed on qualifying banks by the recovery and resolution regime, as well as the need to ring fence retail and other core services.
Financial Promotions—Regulating Marketing Material
Authors: Morris Simon
Published: June 2017

This chapter considers the regulation of financial promotions. The promotion of marketing material for financial products and services regulated under the Financial Services and Markets Act (FSMA) 2000 is restricted. Section 21 FSMA dictates that only authorised persons may issue marketing material, unless an authorised person has approved the material and accepted responsibility for its contents, or the material falls within an exclusion prescribed by the Financial Promotions Order (FPO). This chapter explains the elements of the restriction: the meaning of terms such as ‘communicate’, ‘invitation’, ‘inducement’, ‘controlled investments’, and ‘controlled activities’. The offence of contravening the restriction, and its consequences, are reviewed. The exclusions from the restriction contained in the FPO are considered. The Financial Conduct Authority’s rules and policy on financial promotions (contained in COBS 4) are also explained.
Powers of the UK Resolution Authority
Authors: Gleeson Simon , Guynn Randall
Published: June 2017

This chapter describes the widening jurisdiction of the UK Banking Act 2009 (BA) to include—not only banks—but also regulated non-banks and non-bank group entities. The UK BA, as initially drafted, applied only to banks—that is, to the legal entities which held a UK deposit-taking authorization. However, since in general banks conduct their activities through banking groups rather than as single entities, it rapidly became clear that for a group of any size it was necessary for the resolution authority to act in respect of group companies other than the authorized bank. Thus, as from 1 August 2014, the resolution powers and tools set out in the Act can be applied to any UK-incorporated member of a bank group. The chapter also provides a detailed consideration of when the various powers may be exercised, and what the formal triggers are for the commencement of resolution.
Non-Discrimination Treatment
Authors: Gallagher Norah , Shan Wenhua
Published: June 2017

The non-discrimination principle is one of the fundamental principles underpinning international investment treaties. Its most common manifestations are the most-favoured-nation clause (MFN) and the national treatment (NT) clause. All Chinese BITs and FTAs have included some form of non-discrimination requirements—all of them have an MFN clause, whilst fewer than half of them also have an NT clause. This chapter deals with the two standards of non-discrimination treatment: most-favoured-nation treatment and national treatment. For each standard, the general meaning and application by arbitration tribunals of are analyzed. The particularities of such standard under Chinese investment treaties are then examined.
What Can Political Science Learn from Computer Science?
Authors: Ruths Derek
Published: June 2017

This chapter is one of six in this book in which a leading scholar from another field is interviewed about network science. These scholars bring to bear the perspective and experience of their fields, as well as insights about how network science integrates with questions that tend to be of interest to political scientists. They have knowledgeable and unique perspectives on the potential intellectual contributions that political scientists can make using network science approaches. In this chapter, Derek Ruths describes how computer science has contributed to, and learned from, applications of political networks emphasizing areas where collaborations between scholars of these fields are likely to be most fruitful.