bluuebunny/crossref_metadata_2025 huggingface dataset:
The 2014 Gaza War
Authors: Weill Sharon , Azarova Valentina
Published: August 2024

This chapter examines the 2014 Gaza War. The 51 days of hostilities in the Gaza Strip in the summer of 2014 was the twelfth round of massive fighting that had happened in that area since 1948 and the third one since Israel ‘disengagement’ from Gaza in 2005. These hostilities led to a huge number of civilian casualties. The chapter looks at events that are relevant to the context in which the hostilities of 2014 occurred. The chapter assesses key issues related to jus ad bellum, jus in bello and accountability that have been raised by the hostilities. It looks into the possibility of invoking the right to self-defense, as the legal justification for the use of force in the Gaza conflict context. The chapter then surveys specific violations of the principles on the conduct of hostilities under international humanitarian law (IHL) committed during the 2014 hostilities by the Israeli military and Palestinian armed groups. The final part discusses the effects of recent developments related to individual accountability for IHL violations in the Israel/Palestine setting with particular attention to the prospects of Palestine's accession to the International Criminal Court (ICC).
Refugees and asylum seekers from conflict-affected States
Authors: Hausler Kristin
Published: August 2024

This chapter examines issues relating to refugees and asylum seekers from states that are going through a period of conflict. By the end of 2013, according to the United Nations High Commissioner for Refugees (UNHCR), the intergovernmental agency providing protection to displaced persons stated that the number of asylum-seekers, refugees, and internally displaced peoples (IDPs) totalled over 51 million individuals. This has been the highest number of forcibly displaced persons recorded since the Second World War. The chapter looks at the areas of conflict around the world that have caused the forced displacement of individuals. It considers the characteristics of the displacement of individuals as a result of wars. Finally, the chapter demonstrates that the legal provisions applicable to those who have fled an armed conflict across a border are fragmented and unclear. The key treaty concerned with refugees requires a well-founded fear of persecution and thus may not apply to individuals fleeing a conflict because of the general situation of violence and instability generated by it.
The legality of detention in armed conflict
Authors: Conte Alex
Published: August 2024

The detention of persons in armed conflict requires careful consideration of technical legal issues and practical considerations. It calls for clear distinctions to be made between international versus non-international armed conflicts, as well as between combatants and civilians; and it involves a complex relationship between the application of international humanitarian law (IHL) and international human rights law. The aim of this chapter is to examine the grounds upon which persons may be detained in an armed conflict and the requirements for supervision of the lawfulness of detention in armed conflict. The chapter is restricted to the consideration of detention by states in armed conflict. The final part of the chapter looks at the question of the supervision of the lawfulness of detention.
Engaging with drug lords
Authors: Redaelli Chiara
Published: August 2024

This chapter analyses the specific challenges of dealing with criminal organizations from an international humanitarian law (IHL) and human rights perspective. First, it discusses how the criteria to determine the existence of a non-international armed conflict (NIAC) apply to organized crime. In broad terms, criminal groups are not considered party to a conflict, despite the fact that they might engage in acts of violence against the government. However, situations such as the one in Colombia, and arguably the violence in Mexico, would suggest that criminal groups operating in these countries could be considered party to a NIAC. Second, the chapter focuses on the specific challenges of dealing with organized crime. Heinous crimes against civilians demonstrate that criminal groups are unlikely to respect domestic and international law. The responses adopted so far at national and international level have proved utterly unfit to face the challenges posed by criminal organizations. The final part of the chapter thus suggests strategies to engage with criminal groups in order to improve the protection of civilians.
Protecting the right to protest in armed conflict
Authors: Trascasas Milena Costas
Published: August 2024

In recent years the direct connection between the right to protest and armed conflict has come to the fore. The aim of this chapter is to determine the scope of the state's obligations when protests take place in a context of armed conflict or occupation. Such situations may certainly pose a number of challenges to national authorities, not only regarding the circumstances under which the holding of protests might be restricted or banned due to security or public order reasons but also in the determination of the applicable rules governing the use of force in the dispersal of non-authorised or otherwise unlawful protests, as for example, where protesters undertake violent or armed actions against security forces. The chapter concludes by stating that the right to protest continues to serve to a critical democratic role, even in exceptional situations such as armed conflicts or occupation. However, in many countries, protests are systematically banned or otherwise heavy-handedly repressed.
Youth as main victims and perpetrators of violence
Authors: Girard Sylvie
Published: August 2024

This chapter starts by asking: why discuss youth and violence in a book dedicated to the study of war? Young people are not only at the core of urban violence. They are also linked to organized armed violence and armed conflict, including civil conflict. Youth, as members of gangs and main victims and perpetrators of violence are therefore a core component of the dynamics of urban violence. They are also at the center of movements seeking the radical transformation of societies, often as positive agents of social and political change. Yet they can also be caught up in ideological movements that prone extreme forms of violence. This chapter focuses on what humanitarian and development organizations can do, as well as local and international Non-Governmental Organizations (NGOs), along with grassroots associations and civil society, to design projects with and for young people at risk of joining gangs or violent extremist organizations.
Extraordinary rendition and the European Court of Human Rights
Authors: Suteu Silvia
Published: August 2024

The chapter starts by defining extraordinary rendition and the elements which distinguish it from other types of transfer of detainees under international law. Second, it delves into Strasbourg case law on this matter, with special attention provided to the El Masri and Al Nashiri cases. A position of exceptionality of Strasbourg emerges from these comparisons: as a bold institutional actor asserting the need to protect human rights and the rule of law despite governments' appeals to state secrets and national security exceptions. Third, the chapter tempers this praise by outlining four areas which remain problematic in the European Court's extraordinary rendition jurisprudence: the attribution of responsibility for the transfers of detainees; the right to the truth; rendition as a case of enforced disappearance; and the reliance on diplomatic assurances when analysing the non-refoulement principle. The chapter concludes by cautioning against exaggerated optimism regarding extraordinary rendition cases in Strasbourg and by looking to the future at cases still pending before the European Court of Human Rights (ECtHR) and other international developments likely to impact its jurisprudence in this area.
Tackling impunity for sexual violence
Authors: Priddy Alice
Published: August 2024

Despite international attention to sexual violence in armed conflict being at an all-time high, sexual violence continues to be a prominent and persistent feature of all of today’s armed conflicts. It is known that sexual violence continues to be perpetrated on a large scale in todays armed conflicts, it is also known that the devastating consequences of this for the survivor, their community and for long term peace and security. The legal framework to deal with this exists and there seems to be a political will to address the issue in some states at a national level as well as at the international level, so, the chapter asks, why does implementation of law and policy remain an elusive goal and impunity remain the norm? And are there other options for securing prosecutions? This chapter firstly outlines the sex and gender aspects of sexual violence, as well as the international legal framework prohibiting sexual violence before turning to these questions and looking at possible alternative criminal justice mechanisms that might be worth consideration.
A review of the work of the International Criminal Court in 2014
Authors: Scalia Damien
Published: August 2024

This chapter presents and analyses the main substantive contributions to international criminal law made by the International Criminal Court (‘the ICC’) in 2014. During the last year, there have been many developments related to the preliminary examinations made by the Prosecutor. In addition, the ICC issued one condemnation judgment (in the Katanga Case), one appeal judgment (in the Lubanga Case), some decisions concerning the confirmation of charges and many decisions related to admissibility, jurisdiction and procedural issues. After initially presenting the developments related to the preliminary examinations made by the Prosecutor and the main decisions concerning admissibility and the jurisdiction of the Court, the chapter outlines some of the issues regarding the Katanga and Lubanga judgments and, in relation to them, the pronounced penalties.
Transitional justice mechanisms
Authors: Cadelo Valentina
Published: August 2024

This chapter seeks to examine the value of adopting a holistic approach in the wake of armed conflict. Given that much attention is already devoted to prosecution mechanisms, this chapter looks at how other components of transitional justice — truth seeking, reparation, and institutional reform — or a combination thereof may contribute to the promotion of accountability and, at the same time, offer responses to the justice and reconciliation needs of the victims and communities affected by armed conflict. The chapter is divided in three parts. The first section opens with an overview of the contribution and limits of prosecution in the wake of armed conflict. The second section looks at the other three transitional justice pillars, namely truth seeking, reparation, and institutional reform. In so doing, attention is given in particular to the various mechanisms and measures through which these principles are implemented. The final section concludes with an overview of transitional justice practice in 2014.
Syndicated Lending
Authors: Zakrzewski Rafal , Fuller Geoffrey
Published: August 2024

This chapter examines legal issues arising in respect of syndicated lending. It first explains the obligations of lenders to each other, especially as to pari passu sharing of recoveries and voting under the loan facility. Whether syndicated lending may be treated as a collective investment scheme is also considered. The arranger’s mandate to assemble the syndicate and bring the transaction to signing is then discussed. The bulk of the chapter then focuses on areas of legal risk for the arranger. Possible claims in contract, tort and breach of fiduciary duty are examined in detail in the light of relevant case law. The chapter then considers in detail the nature and effect of mechanisms that are used to protect arrangers from such risks. In its final part, the chapter analyses the appointment, role, duties, and powers of the facility agent, along with sources of legal risk for that agent, the protections that are usually employed and how they have fared in the courts.
Loan Transfers
Authors: Zakrzewski Rafal , Fuller Geoffrey
Published: August 2024

This chapter deals with loan transfers, beginning with an overview of the reasons for a loan transfer, benefits to the transferee, and effectiveness of the transfer. It then discusses two important preliminary issues that need to be taken into consideration before the transaction can commence, namely: matters concerned with conflict of laws issues, and matters relating to a banker’s duty of confidence concerning its customer’s affairs. It also describes the methods that are available under English law for a debt to be transferred and the consequences of those methods. The declaration of trust as a means in equity to alienate a right under a contract, such as a debt or other chose in action, is analysed as well. Finally, the chapter explores novation and sub-participation arrangements, along with issues in relation to assignments that are of relevance to declarations of trust (eg, rights v obligations, debtor’s rights of set-off, priorities).
The Organization of the Monetary System
Authors: Proctor Charles
Published: August 2024

This chapter examines the organization of the monetary system, the role of domestic currencies, and the nature of the legislation required to create a monetary system. Chiefly in the course of the nineteenth century, almost all States enacted legislation with a view to organizing their respective currencies. This led to the creation of national monetary systems as they are familiar to the modern world. At an institutional level, the monetary system usually comprises a central bank or similar monetary authority which enjoys the exclusive privilege of issuing national banknotes. That institution will usually also be responsible for the creation and holding of monetary reserves, including foreign currencies and—to a diminishing extent—gold. The chapter then looks at the role of sterling within the international and domestic legal orders, convertible and inconvertible currencies, the relevance of the unit of account and legal tender legislation, the issue of the currency in the United Kingdom, and the process of revaluation and devaluation.
The Character of Monetary Obligations
Authors: Proctor Charles
Published: August 2024

This chapter evaluates the character of monetary obligations. Monetary obligations primarily exist where the debtor is bound to pay a fixed, certain specific, or liquidated sum of money. This definition presupposes that money is to be paid in the sense of a medium of exchange or in a similar monetary context, for example, where a bank advances a loan to its customer. So far as English law is concerned, a monetary obligation cannot become impossible to perform—whether expressed in sterling or a foreign currency. Circumstances peculiar to the debtor, such as his poverty, is ongoing attempts to negotiate an overall restructuring of his indebtedness, his inability to raise the anticipated financing for the transaction, or the inability to access the intended source of funds will not relieve the debtor of his monetary obligation. Likewise, the depreciation of the market value of the money of account as against other currencies will only in extreme circumstances result in the application of the doctrine of frustration under English law.
Monetary Obligations and the Conflict of Laws
Authors: Proctor Charles
Published: August 2024

This chapter reflects on the system of law which will govern the solution to the various problems and difficulties which may arise in the area of monetary obligations. It focuses on monetary obligations arising under the terms of a contract, which may involve either a liquidated claim or an unliquidated claim. The chapter then considers the law applicable to the contract, the law of the place of performance, the law of the countries in which the parties are established; the law of the State in which legal proceedings arise with respect to that monetary obligation, and the law of third countries with which the monetary obligation may have some connection. Every State is entitled to establish its own system of private international law for the purpose of resolving conflict questions. Yet there is a considerable degree of uniformity amongst the systems which have emerged. The Member States of the European Union adopted a uniform code on the conflict rules applicable in a contractual context, and that code in turn reflects principles which had been developed in England and in civil law countries. For convenience, it is proposed to work by reference to Rome I, but it should not be thought that these general principles are confined to a European context.
The Interpretation of Monetary Obligations—Subsequent Uncertainty
Authors: Proctor Charles
Published: August 2024

This chapter addresses situations where the money of account, though originally clearly defined, may become uncertain during the life of the legal relationship. This may occur in three categories of cases, namely: (a) where a system of law having some impact on the obligation or the parties to it purports to alter the money of account, (b) where a new monetary system emerges as a result of changes in territorial sovereignty, but the old monetary system continues to exist, and (c) where a monetary system becomes extinct. In cases involving changes in territorial sovereignty, the problem may have to be considered in a purely domestic context, where the obligation at issue was contracted by persons within the territory concerned and falls for consideration by a local court. Alternatively, the money of account may have been used in a cross-border contract and the subject may fall for consideration by a foreign court. In cases involving the extinction of a monetary system, it is necessary to examine two distinct types of situations. These include situations where a single monetary system is substituted for the outgoing currency, and those in which the extinct currency is replaced by two or more monetary systems.
The Performance of Monetary Obligations
Authors: Proctor Charles
Published: August 2024

This chapter explores the concept of payment and the performance of monetary obligations. It is more directly concerned with Article 12(1)(b), read together with Article 12(2), of Rome I. The concept of payment is, of course, a fundamental aspect of the law of money. Payment in the legal sense must connote any act offered and accepted in performance of a monetary obligation without changing the essential nature of the original obligation. A debt expressed in sterling or a foreign currency can generally be discharged by payment of the requisite amount in legal tender or, subject to the express or implied consent of the creditor, other ‘cash equivalent’ for the currency concerned. However, there may also be cases in which an obligation is expressed in one currency but is to be performed in another. The chapter then considers the money of payment, before looking at payment in the context of private international law and the performance of monetary obligations abroad.
Monetary Obligations, Liquidated Sums, and the Principle of Nominalism
Authors: Proctor Charles
Published: August 2024

This chapter illustrates the principle of nominalism. It is implicit in the principle of nominalism that an obligation expressed in money is intended to have a uniform and unvarying value, which is not affected by supervening events which are extraneous to the monetary system itself. The main practical consequence of the application of the nominalistic principle may be briefly stated—the creditor of the sum in question bears the risk that the purchasing power of the contractual currency will have fallen by the time the date of payment arrives, while the debtor bears the converse risk. The chapter then traces the historical development of nominalism. It also considers the effects of the principle of nominalism in relation to: debts governed by English law, debts governed by foreign laws, claims for interest and damages generally, domestic monetary depreciation and a claim for damages following a default in payment, foreign monetary depreciation, the discharge and termination of contracts, the collapse of a currency, and the remedy of specific performance.
Excluding the Effects of Nominalism
Authors: Proctor Charles
Published: August 2024

This chapter highlights the types of contractual provisions which have at various times been developed to counteract the principle of nominalism. The purpose of any protective clause is invariably to protect the creditor against a reduction in the value of the currency to which the clause is attached. In domestic contracts, protection is usually required against the consequences of (internal) inflation; in international contracts, the creditor is generally seeking protection against adverse exchange rate movements. Where the protected currency is formally depreciated or is allowed to ‘float’ downwards, the protective clause is likely to come into operation. Where another currency is revalued or appreciates, the protected currency remains stable in terms of all other currencies, save the one in relation to which its value is necessarily reduced or depreciated. Whether a protective clause applies in such a case will naturally be a question of construction. The chapter then looks at gold value clauses, unit of account clauses, index clauses, and escalation clauses.
Nominalism, Legislation, and Public Policy
Authors: Proctor Charles
Published: August 2024

This chapter presents the possible areas of objection to clauses which seek to avoid the application of the principle of nominalism. It appears to be accepted that the nominalistic principle as such does not of itself invalidate gold, index, or similar protective clauses. Although the point is not directly discussed in any English decision, it is nevertheless plain that English law treats such clauses as valid. The same position would appear to apply in other countries, even where nominalism has been placed on a statutory basis. It follows from this analysis that the nominalistic principle does not have the quality of mandatory law which can override the expressed intentions of the creditor and the debtor. The chapter then considers legal tender legislation, public policy, special legislation, and legislative policy surrounding protective clauses.
Nominalism, Private International Law, and the Lex Monetae Principle
Authors: Proctor Charles
Published: August 2024

This chapter reflects on the role of the law of the currency (lex monetae) and a number of private international law questions. The law of the currency determines which chattels are legal tender of the currency referred to, to what extent they are legal tender, and how, in the case of a currency alteration, sums expressed in the former currency are to be converted into the new one. It must not be overlooked that, at least so far as English law is concerned, the nominalistic principle owes its existence to the law which governs the obligation, rather than to the lex monetae. But whatever the difficulties may be, it is submitted that the lex monetae principle enjoys almost universal support; it is also consistent with customary international law. The chapter then looks at the process of revalorization and its role in foreign courts.
The Private International Law of Exchange Control
Authors: Proctor Charles
Published: August 2024

This chapter suggests that private international law may offer significant scope for the application of foreign exchange control laws before the English courts. However, it must not be forgotten that a system of exchange control is of an essentially public character, and the English courts have traditionally been reluctant to enforce foreign laws of this kind. Foreign exchange legislation cannot be used offensively, in the sense that it may be invoked as a cause of action before the English courts; but it may be used defensively, in the sense that it may render the performance of an agreement illegal, or it may have other contractual consequences. The chapter then considers the impact of foreign exchange control regulations in the context of contractual and proprietary rights. It also looks at the effect of foreign exchange control regulations on money laundering and as an unenforceable prerogative right.
Sanctions and Monetary Obligations
Authors: Proctor Charles
Published: August 2024

This chapter focuses on economic sanctions. In general terms, sanctions will usually involve a ‘freeze’ over the assets of the target State, to the extent that such assets are held within the State or States which impose the sanctions concerned. In a monetary context, this will mean that debtors resident in the imposing State will be barred from making payments which are otherwise due to the target State or to companies or individuals resident within it. Thus, so long as the sanctions regime remains in place, a bank branch situated within the imposing State will be unable to repay deposits or operate accounts for the benefit of the target State or any of its residents. The chapter then considers the consistency of a sanctions regime with international law; the effect of sanctions adopted by supranational organizations; the effect of sanctions imposed by the European Union; the effect of sanctions unilaterally imposed by the United Kingdom; and the status of foreign sanctions before the English courts.
Exchange Rates
Authors: Proctor Charles
Published: August 2024

This chapter assesses exchange rates. Monetary systems may be related to each other by two means of measurement, the (nominal) par of exchange and the (real) rate of exchange. The par of exchange is the equation between two money units, each based on a fixed (usually metallic) standard. Where both currencies were based on the gold standard, each currency would have a value in terms of gold, by reference to a fixed quantity or weight of gold. From the common element of these two equations (namely the relevant quantity of gold), it was possible to derive a third, which provided a par (or fixed) value between the two currencies concerned. The par of exchange sometimes represented an equality fixed by law. The chapter then looks at four distinct problems which are likely to arise whenever it is necessary to employ a rate of exchange for the purpose of converting a sum of money from one currency into another. It also considers the process of identifying the rate of exchange.
The Protection of Foreign Monetary Institutions
Authors: Proctor Charles
Published: August 2024

This chapter describes the protection of foreign monetary institutions, which enjoy a particular role within a national economic system that may affect the attitude of foreign courts in their approach to cases involving such monetary institutions. Every modern State has some form of monetary institution which is responsible for the issue of its currency. They will frequently include the term ‘central bank’ or ‘monetary authority’ in their corporate titles, and their essential functions will be broadly similar. In some jurisdictions the central bank is responsible for the prudential supervision of the banking sector, while in other countries a separate agency is established for this purpose. The chapter considers the procedural immunities of such institutions, the procedural immunities of central banks established by treaty, and the position of exchange control authorities.
International Rules of Monetary Conduct
Authors: Proctor Charles
Published: August 2024

This chapter explores the impact of public international law in relation to the monetary conduct of States. ‘Monetary conduct’ in this context refers to the manner in which a State may seek to exercise its monetary sovereignty, for example, by seeking to fix the exchange rate of its own currency by reference to the unit of account of another State or by imposing exchange controls. In general terms, rules of monetary conduct which arise from treaties in principle apply only as between the States which are parties thereto. It would therefore generally be wrong to assume that any such treaties express universally binding duties. The chapter then looks at the enforcement of treaty rules, the stability of exchange rates, floating exchange rates, monetary pegs, and dollarization. It also considers the manipulation of exchange rates, discriminatory currency arrangements and multiple currency practices, convertibility for current international transactions, and bilateral agreements.
The Monetary Law of Interstate Obligations
Authors: Proctor Charles
Published: August 2024

This chapter studies the monetary law of interstate obligations. Monetary obligations arising under public international law will normally involve obligations arising between international persons. Although the respective contexts may be very different, the types of difficulty with which the lawyer will be concerned are likely to be similar to those which arise under a domestic contract—for example, what is the money of account; what is the money of payment; what interest rate is to apply; may late payment result in liability for interest, damages, or other remedies? International practice in this field has developed over a long period of time and it is difficult to discern any uniformity or consistency of approach; it is thus difficult to formulate with confidence any applicable rules of customary international law. Moreover, the international legal order lacks any currency of its own, with the necessary result that questions touching both the measure and the means of performance of international obligations require recourse to national currencies. The resulting interplay of international and municipal law creates problems which involve peculiar difficulties.
The Nature and History of Monetary Unions
Authors: Proctor Charles
Published: August 2024

This chapter illustrates the nature and history of monetary unions. A monetary union involves a transfer (or ‘pooling’) of monetary sovereignty by the participating countries. The question that each government must therefore consider is: do the benefits of participating in the union justify the concomitant loss or dilution of monetary sovereignty? Considerations of this nature have in turn led to the theory of the ‘optimum currency area’. This refers to an area within which it would be feasible to share a common currency. The chapter then looks at some now defunct monetary unions and two such other unions which continue to operate—namely, the monetary unions established in Africa and in the Eastern Caribbean. It also considers future monetary unions.
EMU and the Treaty on European Union
Authors: Proctor Charles
Published: August 2024

This chapter focuses on the European Monetary Union (EMU) and the Treaty on European Union. The introduction of a single currency necessarily required a degree of economic convergence among the participating Member States; such convergence could only be achieved over a period of time. As a result, the Delors Report recommended a three-stage approach to EMU, and this recommendation was adopted when the Treaty on European Union was signed. It is instructive to note that the Treaty thus provided an accelerating momentum towards the ultimate goal of a single currency. The chapter then looks at the selection process for participation within the eurozone, which was governed and determined by tests of an essentially economic character. These tests became generally known as the ‘Maastricht Criteria’. The chapter also considers the accession Member States, as well as the regulation of economic and fiscal policies.
The Single Currency and its Treaty Framework
Authors: Proctor Charles
Published: August 2024

This chapter discusses the provisions established for the creation of the euro pursuant to the terms of the Treaties. It was noted previously that any change in the nature or denomination of a national monetary system involves the establishment of a legal basis for the conversion of debts expressed in the former currency into its replacement. This position necessarily followed from the role which the State and its legislative processes must play in the definition of a monetary system. The creation of monetary union reflected and respected these requirements. Although the original use of the European Currency Unit (ECU) as the foundation of the single currency does cloud this point in some respects, it should not be allowed to obscure it. The chapter then considers the so-called ‘Madrid Scenario’, which followed the original ratification of the Treaty on European Union. Ultimately, the Madrid Scenario was designed to create a sound basis to enable the Union, Member States, financial institutions, and many others to make appropriate preparations for the introduction of the single currency.
The Euro Regulations
Authors: Proctor Charles
Published: August 2024

This chapter examines the legal framework for the introduction of the single currency. Two separate Council Regulations were made in order to provide the initial framework for the use of the euro. The first Regulation, Council Regulation 1103/97, was made under Article 308 (formerly Article 235) of the EC Treaty and came into effect in June of 1997. In broad terms, the Regulation is directed to three main issues upon which early clarification had been sought, namely (a) the consequences of monetary union for the European Currency Unit (ECU); (b) the continuity of transitional contracts which ‘spanned’ the introduction of the euro; and (c) the calculation and rounding of applicable conversion rates. While Council Regulation (EC) 1103/97 applies to all Member States, even if they currently remain outside the eurozone, Council Regulation (EC) 974/98 applies only within the participating, eurozone Member States. A number of its provisions must be regarded as the lex monetae of the eurozone Member States. The chapter then looks at Council Regulation 2866/98 and the promotion of the single currency.
Monetary Union and Monetary Obligations
Authors: Proctor Charles
Published: August 2024

This chapter evaluates the effect of monetary union on monetary obligations. Monetary union in Europe involved the effective disappearance of eleven national currencies with effect from 1 January 1999. The physical indicia of those currencies remained in circulation until the early part of 2002, but during this transitional period, they were ‘subdivisions’ or ‘representations’ of the euro. The chapter then considers whether the substitution of so many convertible and internationally traded currencies could have had the effect of frustrating or otherwise terminating contracts which were expressed in the legacy currencies, and which had been entered into before the creation of the single currency had been contemplated or agreed. It looks at the termination of contracts before the English courts, the termination of contracts before foreign courts, the impact of the euro on fixed and variable interest rates, and the position of obligations expressed in the private European Currency Unit (ECU).
The Euro and Monetary Sovereignty
Authors: Proctor Charles
Published: August 2024

This chapter assesses the effect of the euro on monetary sovereignty. The process of monetary union has, without question, resulted in the transfer of national monetary sovereignty from Member States to entities subsisting within the framework of the Treaties. Indeed, for a number of years, the perceived desire to preserve sovereignty in this area lay at the heart of the continuing political debate about the United Kingdom’s (non-)membership of the eurozone. The chapter then looks at the transfer of monetary sovereignty by the eurozone Member States, as well as the exercise of monetary sovereignty within the eurozone. It also considers the relationship between monetary sovereignty, the European Central Bank (ECB), and the Union. Finally, the chapter discusses the position of the United Kingdom and its own monetary sovereignty, before examining the relationship of monetary sovereignty with the federal State and exchange controls.
ICSID: An Introduction to the Convention and Centre
Authors: Parra Antonio R
Published: August 2024

Based on the author’s authoritative Hague Lectures on ICSID, this comprehensive commentary on ICSID and the ICSID Convention arbitration provides a detailed introduction to the world’s leading institution devoted to international investment dispute settlement. Fully up to date as of September 2019, the book presents a full and accessible picture of an increasingly important dispute settlement mechanism. It delves into the origins and evolutions of the Convention and the Centre and its jurisdiction, then navigates the reader through the process of arbitration proceedings under the Convention, applicable law, and the enforcement of Convention awards. The book is an authoritative, essential guide for students, practitioners, policy-makers, investors, NGO activists, and journalists with an interest in investor–State dispute settlement.
Jurisdiction of the Centre
Authors: Parra Antonio R
Published: August 2024

This chapter examines the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID). The Report on the ICSID Convention of the Executive Directors of the World Bank explains that ‘the term “jurisdiction of the Centre” is used in the Convention as a convenient expression to mean the limits within which the provisions of the Convention will apply and the facilities of the Centre will be available for conciliation and arbitration proceedings’. The jurisdiction of the Centre in this sense is delineated in Article 25(1) of the Convention. The provision first deals with the nature of the dispute: It must be a ‘legal dispute arising directly out of an investment’. The dispute must be between a Contracting State, or a designated subdivision or agency of the State, on the one hand and a national of another Contracting State on the other hand. Lastly, for a dispute to be within the jurisdiction of the Centre, the parties must have ‘consent[ed] in writing to submit [it] to the Centre’.
Applicable Law
Authors: Parra Antonio R
Published: August 2024

This chapter focuses on the determination of the law applicable to the substance of disputes submitted to arbitration under the ICSID Convention. The provisions of the Convention on the topic are in Article 42. In requiring the tribunal to decide the dispute ‘in accordance with such rules as may be agreed by the parties’, the provision upholds their freedom to select the applicable law. The parties may select, as applicable to the substance of their dispute, a national law or international law. Article 42(3) of the Convention makes it clear that parties are not limited to having their dispute decided in accordance with ‘rules of law’, but may also exercise their autonomy to authorize the arbitrators ‘to decide [the] dispute ex aequo et bono’. A tribunal that has been empowered to decide ex aequo et bono is permitted to decide without reference to rules of law, but not necessarily prevented from applying such rules. The chapter then considers the experience in the cases with the framework provided by these provisions. Among the investment treaty cases that have come to dominate the caseload, the treaties themselves have been the main sources of substantive rules for the tribunals. Ultimately, in applying these rules in the cases, the tribunals have contributed to the development of international law on foreign investments.
Securing and Maintaining the Investment
Authors: Sipiorski Emily
Published: August 2024

This chapter examines how the definition of ‘investment’ is informed by references to good faith by analysing ‘investment’ at the various stages of the process of securing and maintaining an investment. It first reviews a number of cases that support the idea that in order to benefit from a bilateral investment treaty, the investment must have been secured as well as maintained in good faith. In particular, it looks at bilateral investment treaties that either offer liberal protection to investors or restrict that protection. It also considers cases of corruption relating to the issue of securing the investment and goes on to show that investment tribunals may view the issue of maintaining the investment as an issue of merits, whereas securing the investment is a preliminary, jurisdictional matter. The chapter concludes with a discussion of the advantages and disadvantages of incorporating good faith into the requirement of investment.
Parallel Proceedings
Authors: Sipiorski Emily
Published: August 2024

This chapter examines how the use of multiple forums for the resolution of the same dispute can undermine the principle of good faith in investment arbitration. It first considers the relationship between national courts and arbitral tribunals in investment arbitration before explaining the process of parallel proceedings. In particular, it highlights problems with parallel proceedings in investment arbitration, reasons for initiating parallel proceedings, and how the use of competing forums is regulated in public and private international law. The chapter then reviews cases that illustrate three scenarios of parallel proceedings in investment decisions in which the principle of good faith is only implied: separate contract or concession agreement, concurrent arbitral proceedings, and parallel court proceedings. It also discusses the question of whether intra-EU disputes should be decided in European courts or investment tribunals and concludes with an analysis of the ultimate relevance of good faith to the issue of parallel proceedings.
Good-Faith Standards for Evidence
Authors: Sipiorski Emily
Published: August 2024

This chapter examines how investment tribunals apply the principle of good faith to justify their discretion in taking evidentiary decisions. It first considers the discretion given to arbitrators to determine aspects of evidence, including its relationship to the general idea of a fair trial, before discussing the domestic rules on taking and submitting evidence in international investment arbitration as well as the international rules and requirements for evidence applied by arbitral tribunals. Three relevant cases that tackle the question of what is the threshold requirement for collection and submission of evidence in good faith are then reviewed: Methanex v United States, EDF v Romania, and Renee Rose Levy and Gremcitel v Peru. The chapter goes on to analyse the good faith requirements for experts and witnesses and concludes by explaining the gap-filling role played by the principle of good faith to uphold and expand due process in investment arbitration.
Expropriation and its Relationship With Good Faith
Authors: Sipiorski Emily
Published: August 2024

This chapter examines the use of good faith to determine whether an expropriation is legal or illegal. It first traces the origins of protection against expropriation that guarantees investments as stipulated in international investment agreements before discussing a state’s sovereign right with respect to expropriation. It then explains the language of some expropriation provisions that either directly or indirectly reference the principle of good faith, along with the emphasis on due process in assessing the legality of an expropriation. It also considers the requirements to negotiate compensation in good faith and reviews a number of cases where the tribunal interacted with the principle of good faith in taking the decision on expropriation. The chapter goes on to describe exceptions to expropriation and concludes with an analysis of the benefits of the interplay between expropriation and good faith.
Fair and Equitable Treatment and Good Faith
Authors: Sipiorski Emily
Published: August 2024

This chapter explores the relationship between the principle of good faith and the standard of fair and equitable treatment (FET). It begins with a general overview of the FET standard and the importance of its link to good faith in investment arbitration decisions. It then explains the role of FET in investment protection and the value of the standard’s ambiguous language in light of its relationship with good faith. It also considers the development of FET in international investment agreements, the tribunals’ perceptions on the usefulness of applying a good faith standard in the context of FET, and how the application of good faith in FET analysis helps connect international investment law with the broader structure of public international law.
Actions By and to the Actors
Authors: Sipiorski Emily
Published: August 2024

This chapter examines the good faith requirements for the actors involved in the international arbitration process — namely, arbitrators, counsel, and witnesses — and the rules for regulating their behaviour to ensure procedural integrity and fairness. It first considers the rules for regulating the behaviour of those who interfere with court proceedings through intimidation of witnesses, counsels, and judges or arbitrators before discussing the legal instruments for ensuring arbitrators’ good faith behaviour. It then explains the regulation of counsel behaviour in good faith, especially with respect to preventing conflict of interest. It also explores the domestic and international laws, along with investment arbitration rules, for the protection of witnesses, specifically against intimidation and tampering. The chapter goes on to review investment arbitration cases that consistently relied on ideas of procedural fairness and good faith as a means of protecting the witnesses. It concludes with an analysis of third parties’ good faith obligations.
Good (Bad)-Faith Conduct and its Implications in the Allocation of Costs in International Investment Arbitration
Authors: Sipiorski Emily
Published: August 2024

This chapter examines how good (bad) faith behaviour affects cost allocation decisions in international investment arbitration. It first describes the inconsistency in the calculation of costs and legal fees in international investment law before discussing the three methods of cost allocation that are applied in investment arbitration: the 50:50 Rule or sharing of costs; the English Rule, based on the idea that ‘costs follow the event’; and allocation of the costs on a sliding scale based on the court’s consideration of the claims. The chapter also analyses the public and private international law doctrine on cost and fee calculation; the rules used to calculate costs in investment arbitration; the methods used by tribunals in cost calculation; and the tribunal’s application of the principle of good faith to justify power granted under the respective arbitral rules, as well as determine the cost award as a means of sanctioning bad faith behaviour.
Introduction
Authors: Dubberley Sam , Koenig Alexa , Murray Daragh
Published: August 2024

This introductory chapter begins with a brief discussion of the rise of open source information. Finding and using open source information available online and piecing together corroborating information to challenge official narratives are crucial to human rights work today. With more photographs and videos taken every day, with high-speed internet connections crossing the globe, with social media networks increasingly available at low cost, people are sharing their experiences online at a rate never before seen. The chapter then presents definitions of the terminology for open source investigations drawn from the draft International Protocol on Open Source Investigation. These include definitions of terms such as open source information, online open source information, open source investigation, open source intelligence, open source evidence, authentication, verification. An overview of the subsequent chapters is also presented.