bluuebunny/crossref_metadata_2025 huggingface dataset:
Persons Deprived of Their Liberty
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter addresses the right to freedom of religion or belief, which all detainees should enjoy regardless of the reasons of their detention. Freedom of religion or belief can be deeply significant for detainees, since it can offer them comfort, rehabilitation, and hope at a time when they are experiencing a paucity of social interaction. The chapter highlights the positive duties upon the State in relation to detention due to the heightened risk of religious violations such as indoctrination, forced conversion or involuntary access to prison chaplains. Moreover, imprisonment imposes particular risks on limitations being imposed on manifestations of religion or belief such as fasting, access to religious materials, diet, clothing, and headdress.
Refugees, Asylum Seekers, and Internally Displaced Persons
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

Though it is clear that refugees, asylum seekers, and internally displaced persons (IDPs) have an equal right to freedom of religion or belief, this right is often compromised in practice. This chapter examines a number of these challenges for freedom of religion or belief at various stages of the process by which persons become forcibly displaced, seek asylum and refugee status in another State, are able to or are denied the freedom to practise religion or belief in refugee camps, or face refoulement.
Freedom of Expression Including Questions Related to Religious Conflicts, Religious Intolerance, and Extremism
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter examines freedom of religion or belief in relation to freedom of opinion and expression. While these rights have their distinct features and applications, they at the same time share many characteristics. Foremost among these is their role in protecting intellectual and communicative freedoms that contribute to a democratic discourse in pluralistic societies. In addition, the legal formulations in articles 18 and 19 of the International Covenant on Civil and Political Rights show striking similarities. It is all the more surprising that freedom of religion or belief and freedom of expression have come to be seen as allegedly standing in contradiction towards each other. Recapturing their close interrelatedness is also important for designing effective policies of combating incitement to acts of religious hatred, in line with the 2012 Rabat Plan of Action elaborated by the United Nations.
Derogation
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter explains the international law provision which allows the State to derogate from certain human rights. The possibility for States to derogate from certain rights ‘in time of public emergency which threatens the life of the nation’ may be considered as an unfavourable risk by human rights defenders. The Human Rights Committee, however, recognizes the derogation provision of the International Covenant on Civil and Political Rights (article 4) as being of paramount importance for the system of protection for human rights under the Covenant. It should be noted that not every disturbance or catastrophe qualifies as ‘a public emergency’ for the purposes of article 4(1) and such measures should be of an exceptional and temporary nature, only imposed to the extent strictly required by the exigencies of the situation, subject to a regime of international notification, and should not involve discrimination.
The Persistent Objector Rule in International Law
Authors: Green James A
Published: June 2017

The persistent objector rule is said to provide states with an ‘escape hatch’ from the otherwise universal binding force of customary international law. It provides that if a state persistently objects to a newly emerging norm of customary international law during the formation of that norm, then the objecting state is exempt from the norm once it crystallises into law. The conceptual role of the rule may be interpreted as straightforward: to preserve the fundamentalist positivist notion that any norm of international law can only bind a state that has consented to be bound by it. In reality, however, numerous unanswered questions exist about the way that it works in practice. Through focused analysis of state practice, this book provides a detailed understanding of how the rule emerged and operates, how it should be conceptualised, and what its implications are for the binding nature of customary international law. It argues that the persistent objector rule ultimately has an important role to play in the mixture of consent and consensus that underpins international law.
The History and Emergence of the Persistent Objector Rule
Authors: Green James A
Published: June 2017

This is the first of two chapters which examine the emergence and legal basis of the persistent objector rule. This chapter looks at its origin and validity. It tackles an important issue: whether the rule exists at all as a norm of public international law. Most scholars regard the rule as an aspect of the system, but an important number also have argued that it is an academic fiction with no basis in law. They say that it was simply designed by scholars to patch over a sketchy positivist understanding of international legal obligation based on consent. However, supporters of the rule have generally not provided much in the way of evidence for its existence. The chapter concludes that while the ‘roots’ of the persistent objector rule can be traced back well before 1945, there is insufficient evidence to assert that the rule in its modern incarnation had emerged prior to the Second World War.
The Consistency Criterion
Authors: Green James A
Published: June 2017

The need for consistency is identified regularly in the literature on the persistent objector rule, but this is often implicit or amalgamated/confused with the persistence criterion. This chapter aims to confirm the need for consistent objection, which is a requirement related to, but distinct from, persistence. It then assesses the rationale for the consistency criterion, before turning to the important question of what ‘consistent objection’ in fact entails. The chapter then considers whether a state's objections must be ‘absolutely consistent’ (in the sense of any contrary practice being terminal for its exemption from the relevant norm), or whether a generally consistent pattern of objection will suffice. The chapter also asks whether the silence of a state — in circumstances where it might reasonably be expected to object — can be interpreted as inconsistent practice. Finally, the chapter considers the notion of ‘substantive consistency’, meaning the consistency of a state's position as between related norms: does a persistent objector need to have a principled stance of objection across comparable norms?
The ICC and its Relationship to Non-States Parties
Authors: Cryer Robert
Published: June 2017

Reliable state cooperation remains one of the main challenges for the Court. The Rome Statute establishes a framework for the cooperation of States Parties with the Court, but it does not directly address issues related to the cooperation of non-States Parties who may be required to cooperate with the Court pursuant to UN Security Council referrals. Thus far, ICC practice has been contradictory in relation to duties of arrest and surrender, while the ASP has only gradually taken steps to enhance incentives for compliance. This chapter explores the source and nature of the rights and obligations of non-States Parties vis-à-vis the Court, in particular its relationship with certain powerful states (e.g. the United States), and ways to re-think the existing status quo.
Putting Complementarity in its Place
Authors: Seils Paul
Published: June 2017

The ICC has been less effective than might have been hoped in promoting national prosecutions, and this chapter argues that there are two reasons for this. In the first place, the Court has been used largely as a tactical instrument aimed at affecting ongoing crimes or in dealing with shorter-term interests from self-referring states. Second, even where the Court is able to act strategically with a view to promoting national action, the nature of what it can do and how it should do it is sometimes misunderstood or misapplied. The chapter focuses on a number of recalibrations that can help to reframe expectations. It examines in particular, ways to strengthen complementarity and the use of the phase of ICC preliminary examination by the OTP.
The Selection of Situations and Cases by the OTP of the ICC
Authors: Guariglia Fabricio , Rogier Emeric
Published: June 2017

Selecting situations and cases is one of the key challenges of prosecutorial practice at the ICC and in domestic jurisdictions. This chapter places ICC policies in perspective. It examines prosecutorial strategy and criteria developed by the OTP to determine the choice of situations and cases. It discusses the process and outcome of preliminary examinations, the relevance of triggering mechanisms, and the criteria guiding the selection of cases (independence, impartiality, objectivity, and non-discrimination), including the relevance and treatment of gravity and prosecutorial inaction. It replies to criticisms which have been raised in legal and academic commentary with respect to the selection policy of the Office. It stresses that selection of cases is an evidence-driven process. It argues that the best way to counter unfounded attacks is to scrupulously apply the ICC Statute and to be transparent in its decision-making process.
Indirect Perpetration
Authors: Weigend Thomas
Published: June 2017

Indirect perpetration is a mode of perpetration provided for in Article 25(3)(a) of the ICC Statute. According to the Statute, indirect perpetration requires that the perpetrator commits the offence ‘through another person’, regardless of whether that other person is criminally responsible. Drawing partly on German doctrine, the ICC has interpreted the concept of indirect perpetration to include using a hierarchical organization for making another person commit a crime (organizational control). The Court has also recognized the possibility that several persons jointly commit a crime as indirect perpetrators (indirect co-perpetration). This expansive view has raised objections inside and outside the ICC. The criticism of indirect co-perpetration does not seem justified, but it may be preferable to apply the concept of indirect perpetration without resorting to an organization as a means of control over another person’s will.
The ICC and Common Purpose—What Contribution is Required under Article 25(3)(d)?
Authors: Ambos Kai
Published: June 2017

This chapter discusses the nature and elements of common purpose liability under Article 25(3)(d) of the ICC Statute. It argues that Article 25(3)(d) represents a compromise that tries to combine opposition of state delegations to any form of anticipated (e.g. conspiracy) or organizational/collective liability (e.g. membership liability) with the need to have a form of individual participation in collective criminal enterprises, which is in line with the principles of legality and culpability. It distinguishes Article 25(3)(d) from the concept of joint criminal enterprise applied at other ICCs and tribunals (e.g. ICTY, ICTR, and SCSL), and argues that it is necessary to develop normative criteria for neutral acts of assistance under Article 25(3)(d).
Crimes against Humanity
Authors: Robinson Darryl
Published: June 2017

The most interesting and controversial jurisprudence of the ICC on crimes against humanity revolves around the interpretation of the policy element. Most of the literature has focused on the controversy over whether the organization behind a policy must be state-like. This chapter focuses instead on broader problematic trends in the jurisprudence of the ICC, as typified particularly by early decisions in the Gbagbo and Mbarushimana cases. It argues that some early ICC decisions have, in an apparently inadvertent manner, elevated the policy element and infused it with exceedingly formalized requirements. It defends the view taken in later decisions (e.g. Katanga) that ‘policy’ is a lesser threshold than ‘systematic’, that proof of planning is relevant but not necessary, and that policy need not reflect a unified purpose or motive.
Authors: Hayes Niamh
Published: June 2017

Sexual and gender-based violence is one of the intrinsic features of modern conflict. It has been part of mass atrocity crimes in several ICC situations, including the DRC, Uganda, the CAR, and Darfur. The ICC Statute contains the broadest range of sexual and gender-based crimes ever enumerated. It includes rape, sexual slavery, forced pregnancy, forced sterilization, enforced prostitution, and other forms of sexual violence as both crimes against humanity and war crimes, in both international and non-international armed conflict. This chapter critically examines the practice of the OTP over its first decade. It argues that a strong charging record was undermined by deficient evidence and investigation strategies, and recurring difficulties with the mode of liability and conservative interpretations of crimes and legal characterizations by the Pre-Trial Chamber. It further discusses changes brought about by the 2014 OTP Policy Paper on Sexual and Gender-Based Crimes.
The Role of the Appeals Chamber
Authors: Nerlich Volker
Published: June 2017

This chapter analyses the role and function of the Appeals Chamber of the ICC. The right to appeal under the Statute goes beyond what is mandated by human rights law. This contribution analyses the specificities of appeals in the ICC system, including the relationship of the Appeals Chamber to other Chambers, its jurisdiction over different types of appeal under Articles 81 and 82 (e.g. interlocutory appeal, and appeal against final decisions of the Trial Chamber), review and revision of sentences, and the relevant standards of review. The chapter contrasts approaches of the ICC with the practice of the Appeals Chambers of the ICTY and ICTR, which have used their first cases to clarify and develop the law. It shows that the ICC has taken an approach of judicial restraint. It argues that development of the law in small steps may be the most effective approach to building a lasting and meaningful role of the Appeals Chamber in the ICC system.
External Support and Internal Coordination—The ICC and the Protection of Witnesses
Authors: Eikel Markus
Published: June 2017

The protection of witnesses forms part of the core mandate of the Court. It is a crucial aspect of pre-trial and trial proceedings. The Statute divides institutional responsibilities among different organs (i.e. OTP, Registry, and Chambers), without clearly defining their roles. This Chapter re-visits this relationship and focuses on witness protection as an aspect of governance of the Court. It introduces Court practices, such as risk assessment or the ICC initial response system. It argues that the Court should rely on a comprehensive inter-organ approach in relation to protective measures. It shows that the Court is in need of increased support and cooperation from States Parties and other external actors in order to improve its protective capacity, including relocation. Promoting domestic capacity in the field of protective measures may be a possible way of improvement, but it would require sufficient expertise and neutrality.
The Legal and Regulatory Framework
Authors: McMeel Gerard
Published: June 2017

This chapter begins with an overview of the regulatory framework for financial services. It then sets out the book's purpose, which is to identify and establish the legal principles governing the provision of financial services and the marketing of financial products. The main focus is on the law of retail or consumer financial services law.
The UK Regulatory Framework
Authors: McMeel Gerard
Published: June 2017

This chapter discusses the UK financial regulatory system. The two principal financial regulators are the Prudential Regulation Authority (PRA), responsible for the macro-prudential regulation and supervision of major institutions such as banks and insurance companies; and the Financial Conduct Authority (FCA), with a remit embracing the conduct of business of all financial firms and the micro-prudential supervision of smaller firms. The two regulators were created by the re-writing of the framework Act, the Financial Services and Markets Act 2000, by the Financial Services Act 2012. The chapter provisions of the 2000 Act and describes the FCA's and the PRA's Handbooks.
Negligence
Authors: McMeel Gerard
Published: June 2017

This chapter considers cases where the general principles of negligence play a role in establishing that the provider of financial advice or information is under a common law duty to take reasonable care and skill in respect of that activity. The seminal case establishing liability for negligent words (as opposed to deeds) was Hedley Byrne v Heller & Partners. More recently there has been considerable judicial vacillation over the appropriate test for establishing a duty of care in new situations. After some doubts, the principal test of assumption of responsibility has been rehabilitated. In addition, the three-stage approach and the incremental approach must be considered.
Standards of Conduct for Investment Advice, Stockbroking, and Portfolio Management
Authors: McMeel Gerard
Published: June 2017

This chapter discusses the development of investor protection rules. Since the implementation of the Financial Services Act 1986 (the 1986 Act) there have been four major phases of regulatory rules for investor protection in the retail financial sector. First, under the 1986 Act (from 1988-1994) there was the regime comprising the regulatory rules of various self-regulation organisations, principally the Life Assurance and Unit Trust Regulatory Organisation (LAUTRO) and the Financial Intermediaries, Managers, and Brokers Regulatory Association (FIMBRA). Secondly, under the same legislation (from 1994 to 2001), the Personal Investment Authority superseded LAUTRO and FIMBRA. Thirdly, under the Financial Services and Markets Act 2000 on 1 December 2001, the Conduct of Business Sourcebook (COB) component of the Financial Services Authority's Handbook of Rules and Guidance consolidated and superseded its various predecessor regulators' rulebooks for the conduct of investment business. The fourth phase arrived on 1 November 2007 with a brand COBS, with the additional S indicating a brand new rulebook superseding in full the COB which was in place from 2001 to 2007.
Regulated Collective Investment Schemes
Authors: Dunn Tom
Published: June 2017

Regulated funds continue to attract retail investors due to the diverse investment opportunities and economies of scale they offer. Developments in the structuring of funds, their distribution, and wholesale changes to the regulatory environment mean that the fund industry in the UK continues to change at a rapid pace. This chapter examines the law governing collective investment schemes and their operators in the UK, focusing on funds marketed to the retail public.
Remedies
Authors: Fentem Ross
Published: June 2017

This chapter considers the law on remedies for investor losses. It explains how the advice, recommendation, information, or opinion tendered by the financial adviser must be considered from three perspectives: that of the specific person, who is the object of the adviser's retainer; in respect of the specific purpose for which the advice was sought; and in reference to the specific transaction into which the individual enters in reliance on the advice given. It then discusses damages under the Financial Services and Markets Act 2000; compensation for specific produces, including protection policies, pension products, mortgage products, and investment products; incidental heads of claim; regulatory remedies; judicial review of decisions of the FCA, the FSCS manager, and the FSO.
Accessing Compensation:
Authors: Walker Lucy
Published: June 2017

This chapter discusses the rules and procedures involved in claiming compensation for mis-selling of regulated products. It covers complaints handling, alternative dispute resolution, independent expert determinations, mediation, the Financial Ombudsman Service, the Financial Services Compensation Scheme, consumer redress schemes, and court proceedings.
Claims Investigation and Presentation
Authors: Virgo John
Published: June 2017

This chapter discusses the rules and procedures involved in claims investigation and presentation. These include presenting the claim, avenues for disclosure, witness statements, instructing experts, cost issues, and the creation of a Schedule of Loss.
Financial Services and Solicitors
Authors: Virgo John
Published: June 2017

A variety of professional firms, including accountants and actuaries, offer investment advice and conduct investment business in the course of trading. This can attract an authorization requirement under the provisions of the Financial Services and Markets Act 2000. This chapter focuses on solicitor firms. It describes the regime as it applies to solicitor firms, both as regulated historically and in relation to such firms carrying on mainstream investment business activity after 1 December 2001.
Financial Markets in Hong Kong
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Kwok-Sang Tse Maurice
Published: June 2017

This new edition provides a guide to the main areas of financial regulation and financial law in Hong Kong. Given the massive changes in financial regulation globally as a result of the 2008 global financial crisis and post-crisis international regulatory reforms, this book addresses these changes in Hong Kong markets and their legal and regulatory frameworks, as well as the implications of these changes to future market development. The book is in five parts. The first part considers the evolution of Hong Kong’s role as a financial centre and the development of its financial regulatory structure, one that is perhaps unusually complex given the size of the jurisdiction. The second part discusses the regulation of the banking, securities, and insurance sectors, including the regulatory powers of the Hong Kong Monetary Authority (HKMA), the Securities and Futures Commission of Hong Kong (SFC), the Office of the Commissioner of Insurance (OCI), and the forthcoming independent Insurance Authority (IA). The third part covers regulation of financial products and services, including securities offerings and listings, investment products and asset management, financial derivatives, and takeovers and mergers. The fourth part addresses market conduct and misconduct, including corporate governance, market abuse, and financial crime. Finally, the fifth part examines the international context, focusing on the relationship between Hong Kong’s financial markets and regulation and mainland China as well as key issues for Hong Kong’s role as a major global financial centre.
Financial Regulatory Structure
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

This chapter describes the overall legal and regulatory framework supporting financial markets in Hong Kong. This is developed in tandem with, and in response to, their characteristics. Regulatory reforms in the financial markets of Hong Kong have typically been developed after a financial crisis and market failure. However, while Hong Kong has not always had effective systems of financial regulation, it has been steadily strengthening its regulatory framework both for financial markets and institutions. This chapter argues that the increasing effectiveness of its legal and institutional regulatory framework has enhanced its development as an international financial centre over the past two decades and will be vital to its continued success in the future. The chapter concludes by outlining the common objectives of the Hong Kong financial regulators today.
Securities Regulation
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

This chapter outlines the evolution of the system of securities regulation in Hong Kong and the regulation of financial intermediaries, products, and services in the context of securities. Prior to 1987, capital market regulation in Hong Kong was minimal, with all the various exchanges operating largely on the basis of self-regulation in the context of the common law framework. The market crash of October 1987 triggered a review of the regulatory framework. Significantly, during the last decade the Hong Kong securities and futures market has gone through a profound transformation from a largely domestic market to an international market with active trading in equity and derivative products. The chapter concludes by stating that Hong Kong’s legal and regulatory framework for securities is comprehensive and of an international standard. However, at the same time the system’s many divisions allow certain risks to be unaddressed.
Insurance Regulation, the Office of the Commissioner of Insurance, and the Insurance Authority
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

This chapter looks in detail at the legal and regulatory framework for insurance in Hong Kong. The chapter examines the regulation of financial intermediaries, products, and services in the context of insurance. It concludes that Hong Kong’s regulatory system for insurance is comprehensive and of an international standard. The legal and regulatory framework for the insurance market in Hong Kong consists of the Insurance Companies Ordinance (ICO), a statutory body called the Office of the Commissioner of Insurance (OCI), and self-regulatory measures. These are supplemented by a large body of common law. However, at the time of writing, this is set to change, with the establishment of a new independent Insurance Authority (IA) with a much broader regulatory remit.
Securities Offerings
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

This chapter looks at financial products and their regulation in relation to listings of securities on The Stock Exchange of Hong Kong (SEHK). Hong Kong’s system for listing and public offerings of securities is largely based on the pre-FSMA 2000 system of the United Kingdom. As such, it is based on a statutory framework established by the Companies (Winding Up and Miscellaneous Provisions) Ordinance (CWUMPO) and the Securities and Futures Ordinance (SFO). The chapter explains how non-statutory controls on offers of securities fall into two broad classes: securities to be admitted to listing and those which are not to be listed. The legal and regulatory framework of Hong Kong addressing public offerings and listings of company securities covers: private and public companies; public offerings and prospectus requirements; the means by which a company’s securities can become listed; preparation of prospectuses and listing documents; and continuing obligations of being listed.
Asset Management and Investment Products
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

This chapter presents an overview of the legal and regulatory framework for financial products and asset management in Hong Kong. The chapter discusses the regulatory framework for asset management generally and provides an overview of the legal and regulatory framework for a variety of financial products. Most financial products are largely matters of private contract and therefore governed by the common law framework, with disputes adjudicated by the courts. However, in Hong Kong a variety of statutes address an ever growing range of financial products, including: bills of exchange and cheques (Bills of Exchange Ordinance); company shares (Companies Ordinance and Listing Rules); and security interests (Companies Ordinance, Bankruptcy Ordinance, and other property related ordinances). The chapter also considers opportunities for the asset management industry in Hong Kong.
Takeovers and Mergers
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

This chapter focuses on the law in Hong Kong as it relates to takeovers and mergers of companies. While commercial objectives vary, at the core of any takeover or merger is an intention to consolidate or obtain control of another company. This may be affected in a number of ways, including acquiring control of voting rights; through an acquisition of shares by private contract or public offer; via the mechanism of corporate law or specific legislation; or by the transfer of a business by means of an asset transaction. This chapter focuses on transactions governed by the Code on Takeovers and Mergers (‘Takeovers Code’), which affects the manner in which commercial objectives can be executed and which imposes obligations on persons involved in such transactions. Overall, the Takeovers Code is well accepted in the Hong Kong market and reflects an effective and well-developed system addressing this area of commercial activity.
Corporate Governance
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

This chapter addresses corporate governance in Hong Kong. The chapter reviews the ways in which a company’s management is regulated in Hong Kong at common law and equity, by statutory legislation, by the company’s constitutional document (the articles), and by regulatory rules. Such a framework addresses issues such as board structure and operation, the personal interests of directors, dealings between the company and directors, limiting the power of directors, disclosure of information, and the question of when shareholders should be involved in decisions of the board. The chapter shows that due to the domination of companies in Hong Kong by either families or state-owned companies from mainland China, Hong Kong companies have the typical agency problem we see in the United States and the United Kingdom, namely weak performance by the managers, and also suffer from the misappropriation of corporate assets through connected or related party transactions.
Hong Kong’s Future as a Leading International Financial Centre
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

This chapter summarizes the main arguments and discussions of the book and presents an overview of major concerns for the future of Hong Kong’s financial markets. In addition to describing financial market law and practice in Hong Kong, this book has sought to point out related major issues, whether legal, economic, or cultural. Each chapter has concluded with an evaluation of Hong Kong’s financial markets, identifying weaknesses and where reform is most needed. This final chapter takes the analysis further, presenting an overview of major concerns for the future of Hong Kong’s financial markets and their legal and regulatory systems. These arise in two main respects: first, risks to be addressed out of concern for financial stability and the continued economic development of Hong Kong; and second, opportunities to enhance Hong Kong’s competitiveness as a financial centre, especially in the context of prospects for China and East Asia.
Introduction to Arbitration in Hong Kong
Authors: Moser Michael , Bao Chiann
Published: June 2017

This introductory chapter discusses the contributing factors that make Hong Kong a global arbitration centre that ‘meets or even exceeds all standards’ in the Chartered Institute of Arbitrators’ ten principles of an effective, efficient, and ‘safe’ seat of international arbitration. Hong Kong has long been at the forefront of international arbitration developments. It enjoys a high degree of autonomy (except in defence and foreign affairs) and retains a separate legal system from that of mainland China. Hong Kong’s legal system is based on the English common law and is guaranteed in Hong Kong’s constitutional instrument, the Basic Law. Furthermore, Hong Kong has a long tradition of upholding the rule of law and judicial independence, which are two key foundations for the city’s success as a global dispute resolution centre.
The Legal Arbitration Framework
Authors: Moser Michael , Bao Chiann
Published: June 2017

This chapter is an overview of Hong Kong’s Arbitration Ordinance (Cap 341). An arbitration network established in 1963, the Arbitration Ordinance contains 15 parts and 118 sections and adopts the UNCITRAL Model Law (2006). It adopts a single regime that applies to both domestic and international arbitrations seated in Hong Kong. It also has the benefit of a complete protection of confidentiality, as well as some detailed provisions which empower the arbitral tribunal and Hong Kong courts to issue a broad range of interim relief. Furthermore, the Arbitration Ordinance expressly recognizes the enforceability of any emergency relief granted by an emergency arbitrator in or outside Hong Kong. Finally, the Arbitration Ordinance provides a number of optional provisions which allow greater involvement of the Hong Kong courts.
Emergency Relief and Interim Measures of Protection (Articles 23 and 24, Schedule 4)
Authors: Moser Michael , Bao Chiann
Published: June 2017

This chapter discusses measures of interim relief. The general purpose of interim measures is to prevent or minimize any disadvantage to a party which may occur before the final resolution of the dispute and enforcement of an arbitral award. A party to an HKIAC arbitration may apply for a wide range of interim relief from different authorities depending on the stage of the proceedings. The Arbitration Ordinance and the HKIAC Rules have both adopted the definition of interim measures set out by Article 17(2) of the UNCITRAL Model Law, which the chapter discusses in more detail. In addition, it also discusses interim relief from an emergency arbitrator, interim relief from an arbitral tribunal, interim relief from a court, and security for costs.
Conduct of the Arbitration (Articles 13–22, 25–26, 30–31)
Authors: Moser Michael , Bao Chiann
Published: June 2017

This chapter addresses a number of key procedural steps and principles in an HKIAC arbitration. It begins with a discussion of the general principles governing the conduct of proceedings, followed by rules concerning the seat and venue of the arbitration and the language of the arbitration. The chapter then analyses the filing of and amendment to the parties’ written submissions. Next, the chapter discusses the arbitral tribunal’s authority to rule on its own jurisdiction as well as HKIAC’s prima facie power to proceed with an arbitration. The remainder of the chapter covers evidentiary matters and hearings, experts appointed by the arbitral tribunal, non-participation of a party in the arbitral proceedings, closure of the proceedings, and the waiver of a party’s right to object.
Complex Arbitrations (Articles 27–29)
Authors: Moser Michael , Bao Chiann
Published: June 2017

This chapter considers three of HKIAC’s mechanisms for dealing with complex arbitrations: the joinder of additional parties, the consolidation of two or more arbitrations, and the commencement of a single arbitration under multiple contracts. It emphasizes the need for institutional rules to include mechanisms for administering multi-party and multi-contract cases. Indeed, the desire to streamline procedure in multi-party/multi-contract situations was recognized as a priority during the revisions to the 2008 HKIAC Rules. HKIAC was keen to ensure that it had appropriate powers to supervise and progress such proceedings and to reduce the scope for parties to use these—now common—complexities to delay or obstruct the arbitral process. The resulting provisions are key features of the HKIAC Rules and a principal reason for parties to select the HKIAC Rules in their agreements.
Miscellaneous Provisions (Articles 41–43)
Authors: Moser Michael , Bao Chiann
Published: June 2017

This chapter covers the final three provisions of the HKIAC Rules. These are: Article 41—the expedited procedure, Article 42—the duty of confidentiality, and Article 43—the exclusion of liability. Article 41 of the HKIAC Rules allows parties to arbitrate their disputes under an Expedited Procedure in order to reduce the time, costs, and complexity of certain disputes. Article 42 is wider in scope than the confidentiality obligations under the Arbitration Ordinance, and is thus ideal for parties to commercial disputes involving sensitive commercial information or trade secrets. Lastly, Article 43 sets out a broader scope of exclusions than that of most of the other institutional rules—it extends to HKIAC and any committee, subcommittee, or other body or person specifically designated by it to perform HKIAC’s administrative or appointing functions; the Secretary General of HKIAC; and other staff members of the HKIAC Secretariat.
Ethics in International Arbitration
Authors: Rogers Catherine A
Published: June 2017

International arbitration is a remarkably resilient institution, but many unresolved and largely unacknowledged ethical quandaries lurk below the surface. Globalization of commercial trade has increased the number and diversity of parties, counsel, experts, and arbitrators, which have in turn, led to more frequent ethical conflicts just as procedures have become more formal and transparent. The predictable result is that ethical transgressions are increasingly evident and less tolerable. Despite these developments, regulation of various actors in the system — arbitrators, lawyers, experts, third-party funders, and arbitral institutions — remains ambiguous and often ineffectual. This book systematically analyses the causes and effects of these developments as they relate to the professional conduct of arbitrators, counsel, experts, and third-party funders in international commercial and investment arbitration. This work proposes a model for effective ethical self-regulation, meaning regulation of professional conduct at an international level and within existing arbitral procedures and structures. The work draws on historical developments and current trends to propose analytical frameworks for addressing existing problems and reifying the legitimacy of international arbitration into the future.
Introduction
Authors: Rogers Catherine A
Published: June 2017

The introduction poses the dilemma of legitimizing the nebulous practice of international arbitration through its main participants — the arbitrators, lawyers, experts, and third-party funders. Despite the increasing prominence of international arbitration in recent years, there has yet to be any codified laws governing the ethical behaviour of its participants. Who or what should dictate the ethical duties and professional conduct for those actively involved in the international arbitration community? There are, unfortunately, no definite solutions that can address the complex workings of international arbitration. However, this book proposes that, as far as the international arbitration community is concerned, the community itself must assume its own ethical regulations within international arbitration processes and institutions — rather than national or subnational institutions and authorities — in an act of ethical self-regulation.
Arbitrators, Barbers, and Taxidermists
Authors: Rogers Catherine A
Published: June 2017

This chapter discusses the debates on arbitrator regulation — more specifically, the ways in which international arbitration is over-regulated, under-regulated, less regulated than others, or not regulated at all. The issue in itself is a complex one, uniquely interwoven into the procedures and market conditions under which arbitrators are selected and appointed, therefore categorizing these procedures into an easy binary of over-regulated and under-regulated cannot suffice. In a way, the processes are both over- and under-regulated. The highly strategic nature of the selection process, combined with imperfections in the market for arbitrator services present added complications for effectively regulating the professional conduct of arbitrators. Despite these challenges, the current forms of arbitrator regulation are at least generally more effective than might be supposed in the absence of traditional forms of professional regulation.
Attorneys, Barbarians, and Guerrillas
Authors: Rogers Catherine A
Published: June 2017

This chapter discusses concerns regarding ethical differences in international arbitration. Traditionally, transnational disputes have been addressed via the attorneys' native legal systems; however, in an increasingly expanding field, there occur contentions of intelligibility within international arbitration. Such issues highlight the need for international standards, although naysayers have pointed out that overcoming cultural and ethical differences in coming to a consensus on an ethical issue are moot. Fortunately, there have been no significant ethical controversies to date, however, which cannot be taken for granted. Furthermore, certain efforts have been undergone in order to provide a baseline from which a standardized form of arbitration can grow, most notably the guidelines initiated by the International Bar Association (IBA), among others. To maintain its independence, legitimacy, and effectiveness, international arbitration needs to develop meaningful self-regulation of attorney ethics.
Experts, Partisans, and Hired Guns
Authors: Rogers Catherine A
Published: June 2017

This chapter discusses the role of expert witnesses in international arbitration, as well as the responsibilities of that role. The roles, functions, and ethical obligations of expert witnesses are still tentatively defined within the realm of international arbitration, but there have been some important regulations and procedures imposed already — the International Bar Association (IBA) Rules of Evidence, for example. This is a significant attempt in regulating the conduct of experts, as well as in laying down the distinctions between party-selected and party-anointed experts, among other innovations. But of course, the legal system employed within the sphere of international arbitration will continue to change in response to unforeseen flaws in entrenched practice — as will be the case for expert witnessing. Perhaps, in order to address one of the possible abuses of the latter, ethical reforms might also be applied to the structure of roles in the courtroom.
Gamblers, Loan Sharks, and Third-Party Funders
Authors: Rogers Catherine A
Published: June 2017

This chapter explores the participation of third-party funders acting within the scope of international arbitration, as well as the criticisms thereof. Popular contention suggests that litigation financing can lead to the corruption or commodification of justice — an issue that history has repeatedly rendered moot. Throughout the years, there has been a close interrelationship between market forces and the legal profession — the linking of business and profession together has even been practiced by such historical greats as Abraham Lincoln. Furthermore, doing away with third-party funding and market forces in general can limit the functions of justice. The better approach is to recognize the often indelible presence of the marketplace in judiciary proceedings, and thereby establish substantive rules and regulations that can narrow down the specific functions the third-party funder is meant to exercise.
Chanticleer, the Fox, and Self-Regulation
Authors: Rogers Catherine A
Published: June 2017

This chapter demonstrates that self-regulation — contrary to popular critique — is less a selfish, irresponsible, and unnecessary practice, and more of a progressive inevitability, in keeping with a transitioning society. Global patterns of self-governance in other areas of progress already justify the use of self-regulation as a necessary aspect of international arbitration, in keeping with this book's thesis of employing self-regulation as a means of legitimatizing international arbitration. And while ‘regulation’ might be rife with negative connotations, ‘self-regulation’ offers a healthy way of preserving structures, establishing integrity among participants, and avoiding the risks of external regulation. Effective counsel regulation within international arbitration can also help facilitate the influx of a large diversity of participants. Moreover, adopting ethical self-regulation extends rather enormous implications for the future of international arbitration, and the evolving roles of the actors therein.
Ariadne’s Thread and the Functional Thesis
Authors: Rogers Catherine A
Published: June 2017

This chapter discusses the ‘Functional Thesis’ posited as the underlying theory uniting the concepts discussed in previous chapters regarding the implementation of ethical self-regulation. The Functional Thesis labours under the presumption that acting upon ethical obligations are dependent upon the role of the agent; it assigns ‘functional roles’ to these agents that can create more flexible distinctions between identities presented in titles such as ‘lawyer’, ‘judge’, and so on. The ethical obligations presented in each role are subject to constant change as demanded by the procedural rules of international arbitration, yet a better understanding of these roles can lay the foundations for a code of conduct. And while these roles may shift to the whims of procedure, ethical expectations are, at least, constant over time.
Herodotian Myths and the Impartiality of Arbitrators
Authors: Rogers Catherine A
Published: June 2017

This chapter debunks the Herodotian myth of absolute impartiality in discussing the function of self-regulation within the context of international arbitration. Renowned historian Herodotus was also known for his embellishments of historical characters as impossible, transcendent hero figures — a myth that has often been extended towards judges and arbitrators with regard to impartiality. Such a delusion of absolute objectivity, the chapter argues, is detrimental to the efficiencies that could have been otherwise engendered with ethical self-regulation. Arbitrators are not mythic figures of impartiality — rather, they are professionals who recognize that effective professional ethics is not isolated from, but grounded on, real-world influences, especially the market forces. In this context, lofty, high-minded views of impartiality can only undermine rather than inspire confidence in professional ethics.
An Overview of International Arbitration
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This chapter gives an ‘overview’ of the law and practice of international arbitration. It begins with the parties’ agreement to arbitrate, and the laws and treaties that provide for enforcement of such agreements both nationally and internationally. It looks at the complications that arise when more than two parties to the dispute are involved, and at the contemporary problems of joinder of parties and consolidation of arbitrations. The chapter then considers whether to choose ad hoc or institutional arbitration, how to establish an arbitral tribunal, challenges to arbitrators, and the powers and duties of arbitrators. It also gives an overview of the key issues that are dealt with in the following chapters, including the conduct of an arbitration, challenges to arbitral awards, and the recognition and enforcement of such awards.