bluuebunny/crossref_metadata_2025 huggingface dataset:
Agency and Principal Dealing under MiFID I and MiFID II
Authors: Busch Danny
Published: June 2017

This chapter examines whether allowing the extent of the protection afforded to an investor under MiFID to be largely dependent on the distinction between dealing on own account on the one hand and trading on behalf of the client (and other forms of investment service) on the other is justified. The author submits that it is not. The distinction between dealing on own account and trading on behalf of the client is tenuous, arbitrary and easy to manipulate. According to the author, MiFID II provides no practicable criterion either, and resorts to the artifice of reclassifying certain types of dealing on own account as acting on behalf of the client. Finally, both the UK Government and the Dutch Supreme Court take the view that duties of care must also apply where an investment firm acts solely as an investor’s contractual counterparty.
Governance and Organization of Trading Venues
Authors: Ferrarini Guido , Saguato Paolo
Published: June 2017

This chapter shows that MiFID II brings modest changes to trading venues in the EU: newly introduced Organized Trading Facilities (OTFs) will be the reference venues for a significant portion of derivatives trading; and regulated markets (RMs) and Multilateral Trading Facilities (MTFs) regimes have been aligned, with specific provisions to strengthen the governance of venues and operators. However, trading venues which have developed into Financial Markets Infrastructures (FMI) groups providing trading and post-trading services test the capacity of the current regime—and MiFID II itself—to oversee their activities and guarantee competition and stability. MiFID II does not explicitly take FMI groups into account; only three sets of rules address some of their potential risks. The authors conclude that this regulatory gap might threaten financial market stability, and regulators should consider a regulatory intervention, such as the experience of the regulatory and supervisory colleges of CCPs under EMIR and the regulatory framework of the financial conglomerates directive.
EU Financial Governance and Transparency Regulation
Authors: Moloney Niamh
Published: June 2017

This chapter outlines the main features of the extensive new transparency regime which will apply to trading in a wide range of asset classes under MiFIR. By contrast with MiFID I, which limited transparency requirements to the equity markets and which contained extensive exemptions and waivers, MiFIR adopts a maximalist approach to transparency. The most extensive transparency requirements apply to the three forms of ‘trading venue’ for multilateral trading which are established under the MiFID II/MiFIR venue classification system (RM, MTF and OTF). Bilateral/OTC trading between counterparties is subject only to post-trade transparency requirements. Overall, MiFIR’s regulatory design has been shaped by a driving concern to protect liquidity, particularly in non-equity asset classes. Indeed, exemptions, waivers, suspensions, and calibrations, designed to protect liquidity, are a recurring feature of the new transparency regime.
Derivatives
Authors: Stegeman Rezah , Berket Aron
Published: June 2017

This chapter analyses and discusses the new mandatory trading obligation for derivatives provided in Title V of MiFIR. The authors conclude that time will tell whether the new rules discussed in this chapter will impact on the derivatives markets as they stand today and if so, to what extent and in what ways.
MiFID II In Relation to Other Investor Protection Regulation
Authors: Colaert Veerle
Published: June 2017

The study of the interaction between different pieces of EU financial legislation becomes ever more important—and difficult. In this contribution the author clarifies the relationship between the MiFID II and several other closely related directives, such as the Insurance Distribution Directive, the PRIIPs Directive and the UCITS Directive. The analysis reveals numerous inconsistencies and interpretation difficulties. The author argues that while some of the shortcomings are inherent to the EU piecemeal approach, other problems should and could have been avoided, by adopting a holistic approach of financial regulation and supervision.
Shadow Banking and the Functioning of Financial Markets
Authors: Wymeersch Eddy
Published: June 2017

This chapter considers the financial activity taking place outside the traditional and often unregulated financial sphere of the securities markets, which has become substantial and diverse, and is often called ‘shadow banking’, a misnomer. These activities, mapped by the Financial Stability Board, include a variety of entities which specialise in certain financial activities, or provide financial services as part of their overall product offer. They create risks of a ‘systemic’ nature, leading to major financial disruption and contagion. Although thought to be on the border of the traditional securities systems, these matters and the related regulation have a considerable impact on the framing of certain classes of securities and may determine the safety of the overall system, including that of the final investor.
Investment-Based Crowdfunding
Authors: Ferrarini Guido , Macchiavello Eugenia
Published: June 2017

This chapter explores the policy and regulatory issues generated by investment-based crowdfunding in Europe. Firstly, it argues that crowdfunding raises serious investor protection concerns, particularly when directed to retail investors. As governments try to stimulate innovation and the formation of new enterprises, a trade-off is created between investor protection and economic growth. The laws of the EU and its Member States try to solve this trade-off in different ways, as the chapter shows with reference to MiFID and the laws of the UK, France, Italy, Spain and Germany. Secondly, it shows that MiFID II, while enhancing investor protection and furthering harmonization, does not create all the conditions needed for a pan-European crowdfunding market. At the same time, MiFID II narrows the potential for exemptions under which some Member States have adopted special regimes for crowdfunding, therefore restricting the scope for an enabling approach to investment-based crowdfunding at national level.
Putting the Client First
Authors: Rees Peter J
Published: June 2017

This chapter considers the question of whether arbitration remains client-focused. It looks at two aspects of modern arbitration practice which may not be as client focused as they could, and should, be. The first is the need to reduce the time and cost of arbitration; the second is the fear of arbitral tribunals that their awards will be open to challenge. The discussion starts from the very basic and very obvious proposition that clients’ interests are most likely to be aligned before there is a dispute. Once a dispute has arisen, even the most reasonable of clients can become unreasonable. Thus, if anything is going to be done to address the expensive and time-consuming aspects of the dispute resolution process, it needs to be done before the dispute starts. It needs to be in the rules which will apply to the arbitration.
Some Reflections on the Making of International Arbitration Agreements for the Resolution of Commercial Disputes
Authors: Saville Lord
Published: June 2017

This chapter presents some thoughts on international arbitration. It begins with brief descriptions of the New York Convention and the UNCITRAL Model Law, which serve as the foundations of international dispute resolution. It then discusses arbitration agreements, the role of institutions, the role of law, and the disadvantages of arbitration. It argues that international commercial arbitration has become much more like that of the London Commercial Court; more often than not lawyers are called in from the outset. Pleadings, discovery, and the like are commonplace. The arbitral process has also become more expensive, notwithstanding substantial efforts by arbitral institutions and others to limit costs. It further suggests that where the tribunal considers that the dispute can be dealt with fairly and more cheaply without the full panoply of such legal procedures as the parties’ lawyers propose, that they make certain that the parties themselves, not just their lawyers, are made aware of the tribunal’s view.
Arbitrability Decisions Before, During, and After Arbitration
Authors: Barceló John J
Published: June 2017

The arbitration agreement is the cornerstone of international commercial arbitration. Disputes over the agreement’s existence, validity, and scope-the essential elements for a controversy to be arbitrable-arise at each of the three fundamental stages of the arbitration/litigation process. This chapter discusses the arbitrability issue at each stage of the arbitration/litigation process. Stage One, before a national court where one party seeks to litigate the merits of the dispute and the other party petitions to have the dispute sent to arbitration. Stage Two, when the parties are before the arbitrable tribunal itself. Stage Three, when the party who wins an award asks a national court to enforce it, or the party who loses asks a national court to set it aside or refuse to recognize and enforce it.
The Law Governing the Arbitration Agreement
Authors: Nazzini Renato
Published: June 2017

This chapter examines the law applicable to the arbitration agreement when there is no express choice of such a law. It does not aim to set out a test, or a set of tests, of universal validity or application. Rather, its objective is to review the current state of play and sketch out a framework for the development of a possible ‘transnational’ solution to the problem. The chapter first explains why a separate enquiry into the law governing the arbitration agreement is necessary and what the implications of such a separate enquiry are. Second, it reviews three possible approaches to determining the law governing the arbitration agreement: the application of the law chosen by the parties to govern their substantive rights and obligations; the application of the law of the seat of the arbitration; and the application of ‘transnational’ rules.
The Expert Witness in International Arbitration
Authors: Cremades Bernardo M
Published: June 2017

This chapter raises the question of whether expert witnesses are necessary or indeed appropriate in international arbitration. The expert’s role in arbitration proceedings is to testify and assist the tribunal. The expert is also a witness, but, in contrast to the legal framework for experts in court proceedings, in international arbitration they do not have to be independent of the parties. The majority of experts appearing before arbitral tribunals are employees or habitual sub-contractors of one of the parties. Regardless of an arbitrator’s background, they will require the support of an expert as they increasingly come into contact with sectors such as construction, energy, telecommunications, and concessions. However, the proliferation of expert witnesses in arbitration proceedings, and above all the phenomenon of the team of experts, have become the cause of confusion and delays.
The Law is what the Arbitrator had for Breakfast
Authors: Schultz Thomas , Kovacs Robert
Published: June 2017

This chapter examines the factors that influence and motivate the behaviour of arbitrators, specifically income, reputation, fame, prestige, doing justice, and the objective of avoiding the reprimand elicited by an annulment of the award or its unenforceability. It suggests that a better understanding of these factors contributes to a better understanding of arbitration, the law that applies and should apply to it, and the law created by it. The analysis follows a simple path, mirroring the main steps taken by classical law and economics studies on judicial behaviour. It takes the main types of incentives and constraints identified in these studies and applies them to the behaviour of arbitrators.
Functus Officio?
Authors: Fullelove Greg
Published: June 2017

This chapter examines the meaning of the principle of functus officio. The expression is used to refer to the point when the arbitral tribunal has discharged its duty in full and can no longer act. This point is generally held to be when the tribunal has concluded all matters with which it has jurisdiction to deal pursuant to a particular arbitration agreement. But while the principle itself may be superficially straightforward, its scope and application in certain cases have raised issues. The chapter asks: When can the tribunal be sure that its mandate is complete, i.e. officio functus est? When, if ever, can the arbitrators definitively say that they are ‘free’ of their duties in an arbitration? It suggests that it would be wrong to believe that a tribunal has certainly finished its work when it sends the final award to the parties. In many jurisdictions and under the leading arbitration rules, there will still be a continuing but reduced mandate to correct, interpret, and/or revise the award and perhaps to issue additional awards.
The Costs and Funding of International Arbitration
Authors: Tirado Joe , Meagher Daniel R , Gupta Arpan
Published: June 2017

The costs and funding of international arbitration are an integral part of the dispute process and not mere consequence. As the costs for the end-users of international arbitration continue to rise, there is a greater emphasis on recovering them, a dismay about how arbitration is ‘out of control’, together with a variety of efforts at reforms designed to reduce costs and foster efficiency. This chapter first considers the different cost elements involved in international arbitration proceedings. These include institutional charges, arbitral tribunal fees and expenses, external counsel’s fees, costs of witnesses, and miscellaneous costs. It then explores the funding mechanisms which are increasingly available to parties in international arbitration, including conditional fee arrangements (CFAs), damages-based agreements (DBAs), and insurance products.
Optimizing the use of Mediation in International Arbitration
Authors: Waincymer Jeffrey
Published: June 2017

This chapter considers the question of whether an arbitrator may also adopt a mediation function or whether the dual roles are antithetical. It tests that hypothesis by engaging in a cost-benefit analysis of differing scenarios when mediation is utilized in an arbitral context. The prime comparison is between parallel mediation with a separate neutral and the alternative of a dual-role neutral. The three key points are: there should be much more mediation occurring at the international level, regarding both potential and actual arbitral disputes; a commercially minded arbitrator concerned for the parties’ good faith should encourage mediation where appropriate, in particular, when an adjudicated outcome will not be in the interests of either, usually because the dispute is a small part of a long-term relationship that can risk that relationship no matter who wins; and, while informed party autonomy should always support a dual-role neutral, in most factual permutations, informed parties could be expected to prefer parallel mediation provided there is full cooperation between mediator and arbitrator. The chapter argues that the relative benefits of the use of dual-role neutrals would be greatly outweighed by the costs in fairness and efficiency, and the inevitable need for a sub-optimal design of either or both dispute processes. The benefits would also be separately outweighed by the risks of significant disruption to any ensuing arbitration if a dual-role neutral fails to achieve a settlement.
Judicial Review of the Merits of Arbitration Awards under English Law
Authors: Rix Bernard
Published: June 2017

This chapter considers the history of judicial review of the merits of arbitration awards in the courts of England. Topics discussed include arbitration before and during the nineteenth century; the English Arbitration Act 1979; the decision in The Nema, a case which concerned the possible frustration of a seven-voyage consecutive voyage charter due to a prolonged strike at the loading port; and section 69 of the English Arbitration Act 1996. The chapter concludes by referring to Lord Wilberforce’s parliamentary observation cited by Lord Steyn in Lesotho Highlands Development Authority v Impregilo SpA. The case raised an issue under section 68(2)(b) of the 1996 Act as to whether the arbitral tribunal had ‘exceed[ed] its powers’. The House of Lords held that an erroneous exercise of a power that was possessed was a mere error of law and not the same thing as acting in excess of powers that were not possessed; and that therefore the award could not be challenged. In the context of arbitration, the House of Lords was determined to allow no possibility that errors of law might be dressed up as decisions in excess of powers. That would have opened the floodgates to the opportunities for judicial intervention in the merits of disputes.
The Principled English Ambivalence to Law and Dispute Resolution Beyond the State
Authors: Mills Alex
Published: June 2017

This chapter examines what appears to be an ambivalence in English law towards non-state forms of law and dispute resolution. It begins by focusing on the fact that an English court will not recognize the validity of a choice of non-state law in a contract, but will nevertheless recognize and enforce an arbitral award based on the application of non-state law, identically chosen by the parties. It then deals with the English courts’ attitude to the recognition and enforcement of a foreign arbitral award which has been set aside by the courts of the seat of the arbitration, under which the arbitral award is neither voided, nor necessarily still enforceable. In both of the contexts examined in this chapter-the question of the validity of a choice of non-state law, and the question of the enforceability of an arbitral award set aside by the courts of the arbitral seat-the underlying issue is the extent to which English law and courts are receptive to non-state norms and normative processes, and the extent to which they remain in a paradigm under which states are the exclusive sovereign actors. In both contexts, the English legal system strikes a balance.
Public Policy Rules in English Arbitration Law
Authors: Brekoulakis Stavros L
Published: June 2017

This chapter argues that the doctrine of public policy currently adopted by legal discourse in arbitration is conceptually and methodologically confusing, and outdated. It is conceptually confusing because there is usually no explanation about how the content of public policy is ascertained or whether the doctrine functions as a legal principle or a set of legal rules. The doctrine of public policy, as a structured set of legal rules, can be better conceived of as a doctrine of national law. The rules of public policy can also be ascertained from a careful analysis of the historical context and jurisprudential development of the doctrine. The chapter first looks into the concept and function of public policy in English law and jurisprudence. It then focuses on the role of public policy in English private international law, before finally ascertaining the rules of public policy in English arbitration law.
The Role of Abuse of Process in Protecting the Integrity of Arbitration Awards
Authors: Sandy David J
Published: June 2017

Although arbitration awards are final and binding, losing parties may sometimes commence a second set of proceedings on slightly different grounds from the first in an attempt to raise doubt over the status and enforceability of the first award and/or to delay enforcement. In England, the doctrine of abuse of process has been utilized to prevent a second action being pursued. The English courts have developed the principle to prevent collateral attacks on prior judgments and, now, arbitral awards and by so doing, ensure the finality of judgments and awards. This chapter outlines the reasoning behind these decisions and asks whether there is a basis upon which such powers should be available in arbitration more generally, whatever the seat, rules, procedural or governing law. Should the principle of abuse of process, in so far as it prevents a collateral attack on a prior arbitration award, be a power which is generally available to tribunals? If so, what is the source of that power and how should it be exercised? Will arbitration benefit from the recognition of this principle? The chapter suggests that, in most cases, the source of the principle of abuse of process can be more readily found in the parties’ private agreement rather than having to be located in the public policy of any system of law which might be applicable.
Arbitration in the UAE
Authors: Blanke Gordon
Published: June 2017

This chapter discusses arbitration in the United Arab Emirates (UAE). There is a general perception in the international arbitration community that arbitration in the Middle East is an untested science and a risky, unpredictable business. However, arbitration has played a determinative role in the formation of the dispute resolution landscape of prominent Middle Eastern jurisdictions since pre-Islamic times and has left an indelible mark in the civil procedure codes of most of these jurisdictions. The UAE in particular has led by example in establishing a modern arbitration jurisdiction that, by and large, meets international standards and best practice. The chapter seeks to demystify the practice and procedure of arbitration as they prevail in the UAE and show that-contrary to common belief-arbitration there is modern and at times even genuinely avant-garde. The UAE serves as a role model on how arbitration in the Middle East has been developing into the preferred dispute resolution mechanism of international commercial disputes in the region and set the pace for other Middle Eastern jurisdictions to follow suit.
Recollections of Past Events and Reflections on Future Trends
Authors: Hunter Martin
Published: June 2017

This chapter presents the author’s recollections of his personal experiences involving the Chartered Institute of Arbitrators and, more generally, the world of arbitration. He describes how he became a member of the Institute in the mid 1960s. He discusses the taking of evidence by arbitral tribunals, saying that the issue remains important because most commercial disputes are decided by arbitral tribunals based on material facts, rather than on an erudite analysis of the transaction agreement, or a microscopic evaluation of the provisions of the applicable national law. He also believes that arbitral tribunals must do their best to ensure that the costs incurred by the parties are reasonable. The Institute has the duty to educate its members and students on the importance of cost control, and to use their discretionary powers to allocate the costs of legal representation (and other costs) in their awards in a way that discourages excessive expenditure by the eventual winning party.
The Nature of ‘Agency’
Authors: Munday Roderick
Published: June 2017

This chapter attempts to define the concept of ‘agency’, particularly within the scope of English and EU law. In English law, agency is a legal relationship that involves three parties: a ‘principal’, on whose behalf the agent acts; an ‘agent’, who acts on behalf of the principal; and ‘third parties’ whom the agent brings into legal relations with the principal. In recent years, European law has exerted considerable impact on the English law of agency. It affects the way in which certain bodies of rules require to be interpreted. It has also created an entirely new and commercially significant form of agency via the Commercial Agents (Council Directive) Regulations 1993. Thus, since the passing of the Commercial Agents (Council Directive) Regulations 1993, a further distinct species of agent, the ‘commercial agent’, now exists alongside English law’s traditional forms of agent.
Creation of Agency
Authors: Munday Roderick
Published: June 2017

This chapter describes the creation of the agreements between principal and agent. It shows how the agreement between principal and agent may be either express or implied. Although the great majority of agency agreements will in fact be contractual, even in the commercial setting this is not exclusively the case. Non-contractual duties borne by an agent, such as the fiduciary duty to account to the principal, may continue to bind the agent even after the agency contract has terminated or bind even if the agency is gratuitous ab initio. What is required, in the main, is that the parties should have consented to the agency.
Ratification
Authors: Munday Roderick
Published: June 2017

This chapter concerns the ratification of unauthorized acts. The doctrine of ratification is concerned with acts performed without authority by an agent in the name of a principal. In short, ratification occurs whenever the ratifying party clearly manifests that he has adopted the unauthorized transaction effected by his agent purportedly on his behalf. There is no requirement that this intention must be communicated either to the third party or to the agent. Express ratification is self-explanatory. Implied ratification, however, will take place where either the conduct of the principal or the surrounding circumstances invite the inference that the principal has endorsed the agent’s conduct.
Legal Relations Between Principal and Agent
Authors: Munday Roderick
Published: June 2017

This chapter describes the duties the agent owes to his principal, which fall into two broad categories. On the one hand, because the majority of agencies will arise out of a contract between principal and agent, the latter will owe well recognized duties at common law—most notably, a duty to perform the mandate with reasonable skill and care. On the other hand, however, equity also wields strong influence over the development of agents’ duties. Therefore, agents have often to be considered both as contracting parties, under customary contractual duties to their principals, and also as fiduciaries, owing strict equitable obligations to their principals arising out of the special position of trust in which the law of agency places them. These two species of obligation are considered separately in this chapter.
Legal Relations Between Principal and Agent
Authors: Munday Roderick
Published: June 2017

This chapter examines the three principal rights enjoyed by the agent specific to the principal–agent relationship. The first is the agent’s entitlement to remuneration: if it is a term of the contract, the agent will be entitled to remuneration in accordance with what the parties have expressly or impliedly agreed in their contract. Alternatively, the agent may be entitled to recover from the principal on the basis of a quantum meruit. Next is the right to indemnity: regardless of whether or not there is a contract, an agent is entitled to be indemnified for expenses incurred and losses occasioned in the performance of the agency. Finally, the chapter looks at how the agent may enjoy a possessory lien over the principal’s property.
Legal Relations Between Agent and Third Party
Authors: Munday Roderick
Published: June 2017

This chapter explores the legal relations between the agent and the third party. An agent acting for a disclosed principal (named or unnamed) normally can neither sue nor be sued by the third party on contracts concluded on behalf of that principal. In cases of disclosed agency, the object is to bring principal and third party into direct contractual relations. At this point, the agent customarily drops out of the transaction, neither acquiring rights against the third party nor incurring liability to the third party. There are, however, a number of exceptions to the general rule that an agent does not customarily acquire rights or incur liabilities under their principal’s contract, which are elaborated in the chapter.
Termination of Agency
Authors: Munday Roderick
Published: June 2017

This chapter considers both how agencies come to be terminated, and the effects of termination. In the ordinary course of events, as between principal and agent, an agency will come to an end because the parties so wish it. As a general rule, parties whose legal relations derive from agreement are at liberty to release one another from their obligations. Certain agencies, however, are treated as irrevocable, and cannot be freely revoked. An agency may also be terminated by operation of law, independently of the will of the parties. These two species of liability are therefore treated separately in this chapter.
The Temporal Jurisdiction of International Tribunals
Authors: Gallus Nick
Published: June 2017

The period of an international tribunal’s temporal jurisdiction is the span of time during which an act must have occurred before the tribunal may consider if the act breached an obligation. There are many questions concerning this particular aspect of an international tribunal’s jurisdiction. Does a tribunal have power over acts that occurred after the entry into force of the obligation allegedly breached but before the tribunal’s jurisdiction was accepted? What about acts that began before the tribunal’s jurisdiction was accepted but continued after? To what extent can acts before the period of the tribunal’s jurisdiction affect its decision on whether or not there is a breach through acts afterwards?This book examines these questions in depth. Despite its importance, the temporal jurisdiction of international tribunals is not well understood. Tribunals often confuse different aspects of their jurisdiction and refuse to hear cases they should have heard, or agree to hear cases they should not. This book reduces this confusion by clarifying the different limits on the temporal jurisdiction of international tribunals and the important distinctions between those limits. The book examines the temporal limits resulting from the entry into force of the obligation allegedly breached, from the acceptance of the tribunal's jurisdiction, and from the period of limitation, as well as the effect of acts that occurred before these limits. The book comprehensively compares decisions from a wide variety of sources including the International Court of Justice Human Rights Courts World Trade Organization panels and investment treaty tribunals. It comments on decisions that arose from some of the most notorious events of the twentieth century including the ‘Katyn Massacre’ of the Second World War the 1994 Rwandan genocide and the ‘forced disappearance’ of American political opponents. It reviews these decisions and identifies common principles that help define the temporal jurisdiction of tribunals to decide breaches of international law.
The Effect of Acts that Begin before the Main Temporal Limits but that Continue after
Authors: Gallus Nick
Published: June 2017

This chapter looks at decisions on whether an act is continuing and the temporal jurisdiction of tribunals over such acts that begin before the main temporal limits addressed previously in this book—the entry into force of the obligation allegedly breached, the acceptance of the tribunal’s jurisdiction, and the period of limitation—but that continue after.
The Effect of Acts before the Main Temporal Limits on the Tribunal’s Jurisdiction over Later Acts
Authors: Gallus Nick
Published: June 2017

This chapter addresses the inconsistent jurisprudence on the effect of acts outside the temporal limits previously addressed in this book—the entry into force of the obligation allegedly breached, the acceptance of the tribunal’s jurisdiction, and the period of limitation—on tribunals’ power over the acts within those limits.
The Effect of Acts before the Main Temporal Limits on the Determination of Breach through Later Acts
Authors: Gallus Nick
Published: June 2017

This chapter addresses the effect of acts before the period of a tribunal’s temporal jurisdiction on the decision whether or not the act within the period of the tribunal’s jurisdiction has breached the obligation. The chapter explains that tribunals have universally accepted that they can take into account earlier acts when deciding if acts within the period of their temporal jurisdiction breached an obligation. It then explains that there is little uniformity on the degree to which a prior act has been taken into account when it is part of a series, or part of a single act, that continues into the period of temporal jurisdiction.
Temporal Jurisdiction over Disputes that Arose before the Acceptance of the Tribunal’s Jurisdiction
Authors: Gallus Nick
Published: June 2017

This chapter focuses on the temporal limits over disputes that arose before the acceptance of the tribunal’s jurisdiction. The distinction between a provision that defines a tribunal’s temporal jurisdiction by the time of an act and one that focuses on the time of a dispute can be critical because an act that is challenged does not necessarily occur at the same time as the dispute that gave rise to that challenge. This chapter examines the different means through which states have confined the temporal jurisdiction of an international tribunal to future disputes. It then considers if, in the absence of such provisions, general principles of law impose a similar limit. In addition, the chapter addresses the extensive jurisprudence on the crucial moment that a ‘dispute’ arises. Finally, it examines how tribunals have determined if the dispute before them is separate from a dispute that clearly did arise before the acceptance of the tribunal’s jurisdiction.
Conclusions
Authors: Gallus Nick
Published: June 2017

This concluding chapter reflects on how this volume has accomplished its aims. It identifies the consistencies shown throughout the decisions examined in the previous chapters, as well as the inconsistencies. Although the book has not explored the reasons for these inconsistent decisions, this chapter does draw out some general reasons for them. The chapter notes that the divergences in decisions on temporal jurisdiction create uncertainty and provides some suggestions on how drafters of new treaties can reduce that uncertainty.
Principles of Contractual Interpretation
Authors: Calnan Richard
Published: June 2017

The purpose of the book is to state the principles which guide anyone who has to interpret contracts. The interpretation of contracts is an art, not a science, and it is ultimately a matter of judgment about which two perfectly reasonable people can have quite different views. It is therefore important to understand the different approaches to interpretation. The outcome of cases concerning the interpretation of contracts is notoriously difficult to predict. The book explains why this is so and attempts to give guidance to those who interpret contracts. The book also considers related concepts, such as implied terms, rectification, and estoppel by convention, all of which play a part in the overall question of how contracts are read. It also contains a brief discussion of the effect of these principles on the way in which contracts should be drafted in practice.
Principle 1
Authors: Calnan Richard
Published: June 2017

This chapter explains that the purpose of contractual interpretation is to establish the intention of the parties to the contract. This is done objectively: what would a reasonable person understand their common intention to be from what they have written, said, and done? The chapter discusses what we mean when we talk about the intention of the parties. It explains how the objective approach to interpretation works, and why it is preferred to the subjective approach. Interpretation is important in practice because of the breath of the principle of freedom of contract. The chapter discusses this and its limits, including the penalty doctrine.
Principle 2
Authors: Calnan Richard
Published: June 2017

This chapter explains that, where the contract is in writing, it is the writing which the primary source of the parties’ objective intention. It discusses what we mean when we talk about ‘the contract’ and, in doing so, considers the parol evidence rule and entire agreement clauses. It also considers categorization and shams.
Principle 3
Authors: Calnan Richard
Published: June 2017

This chapter explains that contracts are read as a whole. Words and expressions in a contract cannot be seen insolation. They get their colour from the rest of the contract and, if the contract is part of a wider transaction, from the other transaction documents. It also considers the principle that a person interpreting a contract should strive to give effect to each part of the contract. It explains how these issues are dealt with in practice. It also discusses those limited types of case in which contracts are not read as a whole.
Principle 5
Authors: Calnan Richard
Published: June 2017

This chapter is concerned with what words mean. It states the basic principle that words are nearly always given their ordinary meaning in their context. It discusses the controversy about whether words do have an ordinary meaning, and looks at what is meant by reading words in their context. It discusses the basic principle that, once it has been decided what the ordinary meaning of words is in their context, then they are given effect however odd the result. It considers definition clauses, technical terms, common expressions and standard form contracts. It discusses the canons of construction such as ejusdem generis. It also discusses how to distinguish the interpretation of contracts from their categorization.
Principle 7
Authors: Calnan Richard
Published: June 2017

This chapter discusses the circumstances in which the courts do not give words their natural meaning. Very occasionally, it is clear that the parties cannot objectively have intended words they have used to have their ordinary meaning. If so, they are given the meaning which the parties must objectively have intended. The more unreasonable the result, the more unlikely it is that the parties can have intended it. This is a very controversial principle and different judges take a more—or less—expansive view of it. The chapter discusses the different views, and why they are held. It analyses the recent cases to establish where the law is at the moment. It looks at particular types of case where the courts have been more willing to twist the meaning of words. These include exclusion and limitation clauses, clauses limiting liability for negligence, and termination for minor breach. It discusses recent cases in which the courts have twisted the meaning of words in contracts, and also those where the courts have declined to do so.
Principle 9
Authors: Calnan Richard
Published: June 2017

This chapter considers the circumstances in which a court can change the meaning of the words which the parties have used in their contract. If a written contract does not record the parties’ common intention at the time it was entered into, it will be amended to reflect that intention. The principles concerning rectification are controversial, with different judges expressing different views about the importance of objective or subjective common intention. This chapter discusses the different approaches to rectification—the subjective view and the objective view—and then discusses the current position. Because the controversy has not yet been resolved, it also discusses the alternative approaches and suggests a possible solution.
Principle 10
Authors: Calnan Richard
Published: June 2017

This chapter considers the circumstances in which one party to a contract can be prevented from relying on the words of the contract. If the parties to a contract have dealt with each other on the basis of a common understanding about the meaning or effect of the contract, that interpretation will bind them if it would be unjust to go back on it. The chapter discusses the principles concerned, and the test for the application of estoppel by convention. It also gives examples.
Epilogue
Authors: Calnan Richard
Published: June 2017

This chapter discusses the way in which the principles of contractual interpretation impinge upon the way in which contracts should be drafted. It also considers the principles of drafting in a broader context.
Introduction
Authors: Möckesch Annabelle
Published: June 2017

This chapter provides an introduction to the concept of attorney–client privilege. It briefly illustrates that the nature and scope of the privilege vary between jurisdictions. It then discusses the role of attorney–client privilege in international arbitration and the difficulties that arise when determining the applicable attorney–client privilege standard in international arbitration. To enhance further discussion, the chapter also defines several key terms to be used throughout this book. These terms include ‘privilege’, ‘attorney–client privilege’, and ‘work-product protection’. Moreover, privilege is contrasted with the duty of confidentiality in international commercial arbitration and attorney–client privilege is contrasted with the lawyer’s duty of confidentiality. Lastly, the chapter makes a few practical observations on the document production process, in which attorney–client privilege is often invoked.
England and Wales
Authors: Möckesch Annabelle
Published: June 2017

This chapter follows the structure of the previous chapter. It gives a brief introduction to the Woolf Reform and the Civil Procedure Rules, which regulate the conduct of civil court proceedings and are based to a large extent on Lord Woolf’s recommendations. The chapter then briefly sets out the course of a lawsuit and presents the taking of evidence in civil litigation in the pre-action, the pre-trial, and the trial phase. Lastly and most importantly, the chapter explores legal professional privilege, which has two sub-heads under English law: legal advice privilege and litigation privilege.
Germany
Authors: Möckesch Annabelle
Published: June 2017

Similar to the previous chapters, this chapter details the course of a lawsuit and the taking of evidence in civil litigation in Germany. The latter includes the examination of witnesses, party interrogation, and the production of documents by parties and third parties. Thereafter, it discusses the German law on attorney–client privilege.
European Union
Authors: Möckesch Annabelle
Published: June 2017

This chapter presents the applicable attorney–client privilege standard on the European level. It first describes the investigative powers of the European Commission as competent authority to uncover infringements of European competition law, such as requests for information and inspections. The second part of this chapter devotes itself to the attorney–client privilege as established by the Court of Justice of the European Union (CJEU) in relation to European competition law investigations.
Seeking Inspiration from Judicial and Administrative Proceedings for the Arbitral Context
Authors: Möckesch Annabelle
Published: June 2017

This chapter draws inspiration from a number of judicial and administrative proceedings in regard to the determination of the applicable privilege law for the arbitral context. The chapter describes the approaches taken in national civil court proceedings in the United States and Germany, EU competition law investigations, and judicial assistance proceedings under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970 and Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.
Applicable Privilege Standard in International Commercial Arbitration
Authors: Möckesch Annabelle
Published: June 2017

This chapter contains an analysis of the most appropriate way to determine the applicable attorney–client privilege standard in international commercial arbitration. To this end, this chapter deals with the characterization of privilege as substantive or procedural, the legal framework for attorney–client privilege in international commercial arbitration, international mandatory rules of law, and the enforcement regime under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Against this background, the chapter includes an analysis of the possible approaches to determining the privilege standard. These include the application of general principles of law, the application of a single national law determined through a choice-of-law approach such as the closest connection test, the cumulative application of several national laws, and the creation of an autonomous standard defining the scope of attorney–client privilege. Lastly, the chapter examines whether corrective measures, such as the lowest common denominator approach or the most protective rule, are needed to ensure equal treatment of the parties and fairness of the proceedings. This chapter concludes with key findings on how to determine the applicable attorney–client privilege standard in international commercial arbitration.
Applicable Privilege Standard in Investor–State Arbitration and Comparison with International Commercial Arbitration
Authors: Möckesch Annabelle
Published: June 2017

In investor–state arbitrations, which are concerned with the resolution of disputes between foreign investors and states parties over the state’s exercise of its public authority in relation to legislative, administrative, or judicial measures, the parties often invoke attorney–client privilege as a defence to document production requests. This chapter therefore examines how arbitral tribunals have determined the applicable attorney–client privilege standard in investor–state arbitration. It reports on several procedural orders and decisions issued by arbitral tribunals constituted under the North American Free Trade Agreement and other bilateral or multilateral treaties. As in these proceedings attorney–client privilege claims often arise together with Cabinet privilege claims, the tribunals’ findings on the applicable Cabinet privilege standard are presented as well. Lastly, the chapter explores whether the solution proposed for international commercial arbitration can also be adopted in investor–state arbitration.
China
Authors: Tao Jingzhou
Published: June 2017

This chapter evaluates the merits of China as a venue for international arbitration proceedings. It discusses the history and development of arbitration in China; 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 for foreign investors, arbitration is a better choice than litigation to resolve disputes. Choosing a Chinese arbitration commission instead of the People's Court not only provides the common advantages of arbitration, but also better shields the foreign party from the strong local protectionism in the local judiciary and from the professional incompetence of some judges. More importantly, arbitral awards rendered by arbitration institutions in China are more easily recognized and enforced in other countries than judgments issued by Chinese courts, as China is a signatory to the New York Convention, but has not yet entered into to judgment recognition and enforcement treaties with most of the major world economies.
Dubai
Authors: Tamimi Essam Al , Karrar-Lewsley Robert
Published: June 2017

The Dubai International Financial Centre (DIFC) is an English-language, common law jurisdiction in the heart of Dubai, United Arab Emirates (UAE). It has its own civil and commercial laws distinct from the rest of the UAE, and an English-style common law court system. The DIFC adheres to the New York Convention and has a modern arbitration law based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law. It also hosts an international arbitration center, the DIFC-LCIA. This chapter begins with an overview of the DIFC and its legal system. It then reviews its arbitration law and the practical considerations that need to be taken into account when choosing the DIFC as an arbitral seat. It argues that DIFC provides a good, if relatively untested, seat for arbitration. It has a comprehensive and modern Model Law-based arbitration law, and an efficient and pro-arbitration English language court system to act as the curial court. DIFC awards have been enforced within the UAE and should be readily enforceable outside the DIFC pursuant to the New York Convention.