bluuebunny/crossref_metadata_2025 huggingface dataset:
Art.2 Scope
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter discusses Article 2 of the ATT. The article delineates the scope of the ATT, identifying the categories of conventional arms and types of activities that are formally subject to its provisions while specifying certain acts excluded from the treaty’s purview. Paragraph 1 describes the categories of arms to which the provisions of the treaty apply. It is not an exhaustive list, however, as Articles 3 and 4 identify two other categories—ammunition/munitions and parts and components—that are subject to some of the treaty’s provisions. The arms covered in sub-paragraphs (a) to (g) of paragraph 1 (i.e. battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers) were derived from the seven categories used in the United Nations Register of Conventional Arms (UNROCA) while an eighth category, small arms and light weapons, was added to the list in the ATT.
Art.4 Parts and Components
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter analyses Article 4 of the ATT. The article discusses the central obligations with respect to parts and components, requiring states parties to regulate the export of these items through their national control systems and to apply the provisions of Article 6 (Prohibitions) and Article 7 (Export and Export Assessment) to such exports. In general terms, states parties are only required to regulate the export of parts and components, not other types of transfers. Additionally, Article 4 requires states parties to regulate the export of parts and components where the export is in a form that provides the capability to assemble the conventional arms covered in Article 2(1) through a national control system.
Art.5 General Implementation
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter discusses Article 5 of the ATT. Article 5 sets out the obligation to implement the ATT at the national level, in particular by establishing and maintaining a national control system for the transfer of conventional arms and integral parts and components and for ammunition/munitions. It should be noted that this is the only provision that obliges states parties to set up national mechanisms to regulate conventional arms transfers, as opposed to transfers of parts and components and ammunition/munitions. In addition, Article 5 offers detail on the scope of the treaty outlined in Article 2(1) by requiring each state party to regulate battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, and missiles and missile launchers in accordance with the United Nations Register of Conventional Arms (UNROCA) and small arms and light weapons, as defined under the 2005 International Tracing Instrument.
Art.6 Prohibitions
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter analyses Article 6 of the ATT, which prohibits each state party from authorizing the transfer of conventional arms, ammunition/munitions, or parts or components covered by the scope of the ATT under a set of defined circumstances. The article covers transfers that violate an ATT state party’s obligations under UN Security Council measures, in particular relating to arms embargoes. It also prohibits transfers that would violate obligations under treaties to which the transferring state is a party, in particular those relating to conventional arms. Lastly, the article covers transfers where the state party ‘has knowledge at the time of authorization’ that the arms or items would be used to commit genocide, crimes against humanity, or certain war crimes.
Art.7 Export and Export Assessment
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter examines Article 7 of the ATT. Article 7 is closely related to Article 6 which handles the prohibition of export. If a proposed export is not prohibited, the exporting state party must, before deciding whether or not to authorize any export of arms within the scope of the ATT, assess the potential that the export concerned would contribute to or undermine peace and security. Since this assessment is not confined to contributions or threats to international peace and security, it extends to what a state party considers a contribution or threat to its own peace and security. If, however, the exporting state party determines that the proposed export of arms or items would contribute to peace and security, the exporting state party’s assessment must then consider the potential that the arms or items could be used to commit acts of terrorism or transnational organized crime.
Art.9 Transit or Trans-Shipment
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter discusses Article 9 of the ATT, which covers the regulation of each state party of the transit and trans-shipment of conventional arms through its territory. The obligation does not extend to ammunition/munitions or parts and components. The inclusion of specific obligations with respect to transit and trans-shipment reflects the need to ensure that all activities that form part of international arms transfers are regulated in order for the object and purpose of the ATT to be achieved in practice. The obligation in Article 9 is heavily qualified in recognition of the practical and legal issues that limit the ability—and capacity—of states to regulate and control goods in transit. State parties also have an obligation to prevent diversion of such arms, to co-operate and exchange information to mitigate any detected risk of diversion, and to take action to address any diversion detected.
Art.16 International Assistance
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter analyses Article 16 of the ATT, which addresses the possibility for states to request, offer, and receive international assistance. It lays out the general obligations of states parties, when they are in a position to do so, to provide assistance to states parties that have sought such assistance to implement the treaty. Measures that states need to take to implement the ATT are broad in scope. These include adoption of legislation, creation of administrative structures, and provision of appropriate resources, enabling them to ensure control over international arms transfers, exchange relevant information with partner states, and address measures to prevent diversion. The article delineates three broad forms of assistance: legal or legislative assistance; institutional capacity-building; and technical, material, or financial assistance. The subjects of assistance include stockpile management; disarmament, demobilization, and reintegration programmes; model legislation; and effective practices for implementation.
Art.17 Conference of States Parties
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter discusses Article 17 of the ATT. The article governs the Conference of States Parties, which is tasked with: reviewing the treaty’s implementation; adopting recommendations on treaty implementation and operation; considering amendments to the ATT; considering issues arising from interpretation of the treaty; deciding on the tasks and budget of the Secretariat; considering the establishment of subsidiary bodies to improve the functioning of the ATT; and performing any other function consistent with the ATT. It is standard practice to hold annual meetings of states parties to discuss the implementation of a humanitarian or disarmament treaty and based on the adopted Rules of Procedure. The Rules of Procedure govern the conduct and working of the Conference of States Parties (plenary sessions, meetings of subsidiary bodies, and extraordinary sessions) from a procedural perspective. It covers various aspects, including participation, representation, and the decision-making process.
Art.18 Secretariat
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter examines Article 18 of the ATT, which establishes a Secretariat for the treaty. The Secretariat’s role includes maintaining and making available to states parties the list of national points of contact in accordance with Article 5; facilitating the matching of offers of and requests for assistance for treaty implementation; and promoting international co-operation ‘as requested’ in accordance with Articles 15 and 16 on international co-operation and international assistance, respectively. The Secretariat is also in charge of facilitating the work of the Conference of States Parties, including making arrangements and providing the necessary services for meetings under this treaty as set out in Article 17.
Art.20 Amendments
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter explores Article 20 of the ATT, which sets out the procedure by which states parties may amend the treaty. The possibility of amendment is often included in a multilateral treaty. According to paragraph 1 of Article 20, six years after the entry into force of the treaty, any state party may propose an amendment to this treaty. This will first be possible on 24 December 2020. A reason for waiting six years before amendments can be considered is presumably to allow time for states parties to implement the treaty and consider any lessons learned before trying to amend it. As a result of this provision, this is a treaty that can adapt to changing circumstances and realities. A proposed amendment must be submitted in writing to the treaty Secretariat established in accordance with Article 18.
Art.22 Entry into Force
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter examines the ATT’s entry into force which is covered by Article 22 of the ATT. The treaty entered into force on 24 December 2014 in accordance with Article 22(1). For states that ratified the treaty after this date, they become party ninety days after the date of deposit of their instrument of ratification, acceptance, approval, or accession with the treaty Depositary, the UN Secretary-General. Article 22 is linked to the treaty as a whole insofar as it determined both when the ATT entered into force and when each state adhering to the treaty becomes party to it. According to Article 5(3), the definitions of arms and items under the treaty depended on the date of entry into force.
Art.24 Duration and Withdrawal
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter analyses the duration of the ATT and the withdrawal of state parties which is covered by Article 24 of the ATT. The ATT imposes no time limits. Any state party may withdraw from the ATT upon formal notification to the Depositary (the UN Secretary-General). Withdrawal may take effect not less than ninety days after the Depositary receives the notification of withdrawal. A state party remains responsible for its financial and substantive obligations for the period until the withdrawal takes effect. The procedure for withdrawal requires formal notification to the Depositary (the UN Secretary-General), which may include the reasons for withdrawal but, as we have seen, is not obliged to do so. The Depositary is required to inform all other states parties of any notification of withdrawal.
Art.25 Reservations
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter discusses the reservations of the party states to the obligations of the ATT which are covered by Article 25 of the ATT. Customary international law permits reservations to be formulated unless they are incompatible with the object and purpose of a treaty; this provision in ATT reaffirms that position. It differs from certain other disarmament treaties, such as the 1992 Chemical Weapons Convention, the 1997 Anti-Personnel Mine Ban Convention, and the 2008 Conventions on Cluster Munitions, none of which permit any reservations to their provisions. As of November 2015, no reservations sensu stricto had been made by states parties to the ATT to that treaty’s provisions. Article 25 potentially relates to all other provisions in the ATT; any reservations to the obligations set out in Articles 6 or 7 would probably be unlawful.
Art.26 Relationship with Other International Agreements
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter examines Article 26 of the ATT which describes the treaty’s relationship with other international agreements. The article permits states parties to adopt treaties and other agreements that govern the trade in conventional arms and ammunition/munitions and parts and components (items), provided that these are consistent with the obligations set out in the ATT. In accordance with paragraph 1, adherence to any treaty or agreement relating to arms or items by an ATT state party that contravened or undermined its obligations under the ATT would amount to a violation of the ATT and implicate the international responsibility of that state. Additionally, the article stipulates that the ATT shall not be cited as grounds for voiding defence co-operation agreements concluded between states parties to the ATT.
Art.27 Depositary
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter analyses Article 27 of the ATT. The provision designates the Secretary-General of the UN as the Depositary of the ATT. This is in accord with the 1969 Vienna Convention on the Law of Treaties, which expressly allows the Chief Administrative Officer of an international organization to be designated as the Depositary of a treaty, and for the designation to be made in the treaty itself. Given the fact that the ATT was negotiated within the UN, it was never in doubt that the Secretary-General of the United Nations would be designated the Depositary. The Depositary carries out functions with respect to the Convention, among others to allow states to sign it, as well as to accept and record instruments of ratification, acceptance, approval, and accession. The chapter concludes with a brief description of these functions.
Art.28 Authentic Texts
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter explores Article 28 of the ATT. The article defines all six official UN language versions of the text of the Convention as ‘equally’ authentic—Arabic, Chinese, English, French, Russian, and Spanish—despite the fact that most of the texts forming the basis of preparatory discussions and negotiations were in English. The particularities of English pose a problem with regard to the definition of some terms. For example, the word ‘overriding’, controversially included in Article 7(3), was clearly the basis for negotiations as the translations were amended so as to give equivalent effect to the term’s apparent balancing effect.
Offers and Invitations to Treat
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

This chapter begins by discussing how developed legal systems seem to have adopted the technique of analyzing transactions in terms of offer and acceptance to determine whether there is an agreement. It then turns to the identification of offers, covering the definition of an offer; the requirements of a valid offer, i.e. extent of commitment evinced, the certainty of the terms used, and the specification of the addressees; how the language used in the proposal is the most decisive factor when examining what the addressee is entitled to conclude when judging the proposal to be an offer; and the communication of offer.
Termination and Revocation of Offers
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

This chapter discusses the law on the termination and revocation of offers. An offer may be terminated through lapse of time, the death of the offeror or offeree, the failure of some condition or contingency, by rejection (or counter-offer), and by communication of a revocation of the offer. An offer may be revoked any time prior to its acceptance. Even if an offer is expressed to be open for a stated period of time it can be revoked prior to that time elapsing. Where the offer is a standing offer capable of acceptance from time to time, it may still be revoked as to the future acceptances even though there have been acceptances in the past.
Acceptance
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

The clearest way to prove that the parties have reached an agreement is for them to execute a written contract. Where such a document does not exist it is then necessary to prove an agreement has been reached by using the tools of offer and acceptance or by showing that an agreement has been reached by other conduct or communications. This chapter is concerned with acceptance and discusses the various rules governing acceptance. In general terms, an acceptance involves the communication of an unequivocal assent to the terms of an offer. Such ‘assent’ requires a commitment to the terms of the offer and not an acknowledgement of the offer or an expression of interest in the offer.
Problems of Intention and Consideration in Online Transactions
Authors: Furmston Michael , Tolhurst G J , Mik Eliza
Published: June 2017

This chapter discusses issues concerning online transactions and points to further challenges. It commences with a broad discussion on the relationship between the two prerequisites of every contract: intention and consideration. It focuses on the difficulty of establishing intention and consideration in circumstances where the context of a particular online interaction is difficult to categorize as either commercial or social. Next, it deals with problems relating to the application of the offer and acceptance model in online transactions. Some basic questions are posed: Is there an offer? If so, what are its contents? Is there an acceptance? If so, when does it become effective? Throughout the discussion it is assumed that each Internet-based communication method creates different problems, and each stage in the online contract formation process faces different technological challenges. Technology, while not changing contract law per se, adds complexity to the traditional analysis. The question is not: do traditional principles apply? but how do they apply?
Letters of Intent
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

Many contracts are the product of months or years of negotiations, often involving consideration of many side issues and involving teams of experts and advisers. In many cases the parties make written statements of provisional agreement during the negotiation. The names given to such provisional statements include Letters of Intent, Heads of Agreement, Memorandum of Understanding, Agreement in Principle, and so on. This chapter focuses on letters of intent. It discusses cases where the letters of intent do not create a contract; cases where letters of intent do create a contract; cases where the letters of intent have some legal effect; letters of intent followed by performance; letters of comfort; and agreements imposing obligations as to the course of the negotiations.
Practical Aspects of Letters of Intent
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

This chapter first illustrates a classic letter of intent situation through the case of Texaco Inc v Pennzoil, involving the selling price of Getty oil stock. One party did not want to enter into a binding legal relationship but did not want to say so in clear terms. The case emphasizes in clear terms the dangers posed by the resultant ambiguities. The chapter then considers some possible solutions. It discusses possible ways of delaying legal effect of letters of intent; letters of intent and partially completed negotiations; agreements to negotiate in good faith; refusal to negotiate; and issuance of a letter of intent where the issuer wants work to start but is not yet ready to enter into a complete contract.
Conditional Contracts
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

This chapter focuses on conditions that may impact on the formation of a contract. The typical ‘conditional contract’ is the agreement that is expressed to be ‘subject to’ the performance or occurrence of some event that is not certain to occur. The event itself is termed a ‘contingency’ and it is the contract or its performance that is termed ‘conditional’. The contingency may be one requiring some conduct or decision to be made by one of the parties, or a third party, or it may refer to some other event that is out of the control of anyone such as an act of nature. The chapter discusses the ‘subject to contract’ provisions; ‘subject to finance’ clauses; other ‘subject to’ clauses; time for the occurrence of contingency; waiver; and the consequences of the failure of a condition.
Denial of Legally Binding Effect
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

An agreement is legally enforceable only if it is supported by valuable consideration and there is an intention to contract. This chapter focuses on this requirement of an intention to contract which must exist in all the parties. It discusses the use of presumptions; the presumptions and threshold intention; consideration and intention to contract; family and social agreements; and commercial agreements. The final section deals with letters of comfort. When a bank is approached for finance by a subsidiary of a large company, any initial offer of finance usually will be subject to security being provided by the parent company. Where the parent company is not prepared to provide security, it may provide the bank with a letter of comfort. These letters take three principal forms. The first type acknowledges the subsidiary's loan application and states that it is the policy of the parent company to ensure that its subsidiaries meet their loan obligations. The second type acknowledges the subsidiary's loan application and states that it intends to maintain its shareholding in the subsidiary. The third type simply acknowledges the loan application.
Consideration
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

This chapter focuses on the doctrine of consideration, the most unique aspect of the common law of contract, not replicated in any other system. It first considers the history and then says something about the function and definition of the doctrine before going on to discuss the rules in detail. These include the adequacy of consideration; nominal consideration; situations where it has been held that a promise or act is not acceptable as consideration; consideration must be referrable to the promise; consideration must move from the promisee (but not necessarily to the promisor); past consideration is not consideration; consideration must not be illusory; performance of existing legal duties; part payment of a debt is not consideration for a promise to discharge debt; exceptions to the consideration rules; and estoppel.
Is There a Duty to Negotiate in Good Faith?
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

This chapter assesses the duty of good faith in negotiation. In general, even civilian systems which have long adopted notions of good faith performance have been much slower to accept notions of good faith negotiation. So all over the world the question of whether the parties should be under a duty to negotiate in good faith is very much at the forefront of the debate. The traditional view is that there is no general duty of good faith in negotiation. However, the doctrinal principles applied in England and Australia frequently serve to promote good faith. Those who wish to argue for a general rule of good faith, contractual or tortious, can find support in certain case law. But the mere fact of entering into negotiations does not create such a duty.
Pre-Contractual Liability
Authors: Furmston Michael , Tolhurst Gregory , Mik Eliza
Published: June 2017

This chapter examines cases where the parties set out to make a contract but fail to complete the course and make that contract. It considers whether one party may be liable to the other and in what circumstances. As the contract making process has become longer and more complex this has become an increasingly important area of law and one which is still in active development. The cases considered include those involving liability in contract (Emcor Drake & Scull v Sir Robert McAlpine, G. Percy Trentham Ltd v Archital Luxfer Ltd, and Way v Latilla; quantum meruit (William Lacey (Hounslow) Ltd v Davis, Regalian Properties Plc v London Docklands Development Corporation, and Sabemo Pty Ltd v North Sydney Municipal Council), and estoppel (Dillwyn v Llewelyn, Plimmer v Wellington Corporation, and AG of Hong Kong v Humphreys Estates).
Resolution of US Banks and Other Financial Institutions
Authors: Olivares-Caminal Rodrigo , Douglas John , Guynn Randall , Kornberg Alan , Paterson Sarah , Singh Dalvinder
Published: June 2017

The chapter starts by looking at resolution as understood in the United States. ‘Resolution’ refers to the way bank failures are dealt with in the United States. Similar to the traditional bankruptcy model, the chapter explains, two of the main goals of resolution are to maximize the value and minimize the losses of an institution for the benefit of its depositors and other stakeholders and, at least in a receivership situation, to determine who receives the residual value of the institution in satisfaction of their claims. However, resolution is also aimed at promoting a third goal: to deal with a failed institution in a manner that reduces the risk of contagion, preserves or restores public confidence in the banking or wider financial system, and otherwise promotes financial stability. The chapter then describes the history of financial resolution in the United States and outlines the fundamentals of resolution authority.
Transactional Aspects of Sovereign Debt Restructuring
Authors: Olivares-Caminal Rodrigo , Douglas John , Guynn Randall , Kornberg Alan , Paterson Sarah , Singh Dalvinder
Published: June 2017

This chapter details the transactional aspects of sovereign debt restructuring. The amount of accumulated debt and its progressive increase have led to repayment problems for some countries and, in some cases, resulted in default. Therefore, as countries amass unsustainable debt burdens (as happens when the ratio of debt to gross domestic product rises to such an extent that the application of policies cannot revert the situation), they have an increasing need to restructure their sovereign debt. Sovereign debt restructuring can be understood as the technique used by sovereign states to prevent or resolve financial and economic crises and to achieve debt sustainability levels. The IMF has reviewed its lending framework in the context of sovereign debt vulnerabilities. It is hoping to introduce greater flexibility and be able to provide exceptional access to funding on the base of a debt operation that involves an extension of maturities.
Introductory Matters
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 1 provides a brief general introduction to this book.
Conflict of Laws in Transactional Matters
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 4 is concerned with conflict of laws in transactional matters.
Cross-border Insolvencies
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 5 is concerned with cross-border insolvency.
Jurisdiction and the Resolution of Disputes
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 6 is concerned with jurisdiction and the resolution of disputes where there is a foreign element.
Derivative Transactions
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 11 discusses derivatives.
Project Finance
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 13 is concerned with project finance.
Secured Transactions
Authors: Paterson Sarah , Zakrzewski Rafal
Published: June 2017

Chapter 14 is concerned with secured transactions.
National Report for Austria
Authors: Duursma-Kepplinger Henriette , Englmair Christof
Published: June 2017

This chapter discusses the law on creditor claims in Austria. ‘Modern’ bankruptcy laws—the Compensation Law (Ausgleichsordnung, AO) and the Bankruptcy Act (Konkursordnung, KO)—were first introduced by the imperial decree of 10 December 1914, 337 RGBl. Since then, these have undergone numerous amendments. Austrian insolvency law was subjected to the most comprehensive review and reform with insolvency amendment 2010, Federal Law Gazette 2010/29, which merged bankruptcy law and compensation law into a single procedural structure. The Compensation Law was repealed, while the Bankruptcy Act was renamed the Insolvency Law. The rest of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; classification and ranking of claims; and voting and participation rights in insolvency proceedings.
National Report for Belgium
Authors: Fransis Roel
Published: June 2017

This chapter discusses the law on creditor claims in Belgium. Legislators have limited the power of secured creditors to take individual enforcement actions with regard to their collateral, notwithstanding the opening of insolvency proceedings. For bankruptcy proceedings, the Bankruptcy Act of 8 August 1997 (BA) introduced a ‘cooling-off period’, imposing a temporary stay on individual enforcement actions by secured creditors. For judicial reorganization proceedings, the 31 January 2009 Act on the Continuity of Enterprises (BCA) imposes a general stay on enforcement actions, which also affects secured and preferential creditors. The remainder of the chapter looks into insolvency claims, administration claims, and non-enforceable claims in turn. Each part covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for Brazil
Authors: Sztajn Rachel , Salles de Toledo Paulo Fernando Campos , Nimer Moreira da Silva Fernando César
Published: June 2017

This chapter discusses the law on creditor claims in Brazil. The legal treatment of creditor claims is similar to that in other worldwide systems. The new Brazilian Insolvency Law (Federal Law No 11.101/2005) and the former Decree-Law empower the insolvency judge to appoint a judicial administrator and define the time period in which existing debts will be recognized and included in the legal procedure. Because the firm’s assets represent the guarantee of payment of debts, the creditors’ and debtor’s legal positions are connected in a sort of unitary bundle. Of note in the new Law is the reduction of priority of tax and wages claims, leaving more value available for distribution to other creditors. The chapter then examines insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for the Czech Republic
Authors: Richter Tomáš
Published: June 2017

This chapter discusses the law on creditor claims in the Czech Republic. The Czech Insolvency Act appears to deal with creditors’ claims in a fairly standard manner, making pre-insolvency claims subject to the process of claims submission and verification, and dealing with claims arising during the proceedings as administration claims. But the Insolvency Act actually confers upon creditors the power to decide on numerous of issues in the course of particular proceedings, eg, whether the debtor should be liquidated or reorganized. Many of the difficulties surrounding the Act’s rules on the submission and verification of claims are thus related to the question of who gets to decide on the course of the insolvency proceedings. The chapter then examines insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for France
Authors: Cuniberti Gilles , Rueda Isabelle
Published: June 2017

This chapter discusses the law on creditor claims in France. French insolvency law has traditionally been unfriendly to creditors benefitting from contractual security interests. Unlike most other legal systems, insolvency claims secured by contractual security interests over certain assets of the debtor do not enjoy the right to be satisfied from the secured assets in priority to all other claims. The treatment of creditor claims is also similar among various insolvency proceedings. In reorganization proceedings (sauvegarde or redressement judiciaire), post-commencement claims are more common and substantial, whereas in liquidation proceedings (liquidation judiciaire), such claims are often non-existent. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for the Russian Federation
Authors: Trukhtanov Alexander
Published: June 2017

This chapter discusses the law on creditor claims in Russia. Russia’s principal bankruptcy law is the Federal Insolvency (Bankruptcy) Law 2002. The law sets out a comprehensive regime of submission, priority, and ranking of claims. It is almost entirely mandatory and leaves very little to be governed by pre-insolvency contractual arrangements. Its policies are generally favourable to creditors and are aimed at achieving pari passu distribution, including restriction of administration claims and giving unsecured creditors access to part of the proceeds of sale of security assets. The remainder of the chapter is concerned with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for Sweden
Authors: Persson Annina H , Karlsson-Tuula Marie
Published: June 2017

This chapter discusses the law on creditor claims in Sweden. The ranking of claims in bankruptcy and distraint in Sweden is regulated by the Priority Rights Act 1970 (PRA). The PRA was drawn up in cooperation with all other Nordic countries, except Iceland. The primary aim of the PRA is to regulate the order in which claims shall be paid during distraint and in bankruptcy. It does not include any provisions regarding priority between different rights of use or between acquisitions of property, or regarding the relationship between claims and rights. Instead, these provisions can be found in other pieces of legislation. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
National Report for the United States
Authors: Kilborn Jason
Published: June 2017

This chapter discusses the law on creditor claims in the United States. There is nothing particularly remarkable about the way in which the US Bankruptcy Code and Federal Rules of Bankruptcy Procedure deal with the treatment of various claims. The academic debate about the super-priority of secured claims with regard to the collateral securing those claims has more or less subsided, as legislators have remained unmoved by any argument to reduce or constrain the rights of secured creditors beyond the existing constraints of bankruptcy law. Legislators have also resisted efforts to decrease the number of claims afforded special priority over general unsecured claims. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each part presents: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.
The Use of Weapons and the Law of Targeting
Authors: Boothby William H
Published: June 2017

This chapter summarizes the core rules of the law of targeting making particular reference to Additional Protocol 1 (AP1). It examines the legal constraints that apply to the use of any weapon to undertake attacks. Customary law principles and rules and treaty provisions that regulate targeting are all noted. So, the principles of distinction and discrimination are explained, the rule of proportionality and other particular targeting law rules are summarized and the precautions that the law requires in attack and against the effects of attacks are mentioned. Specific rules of protection for particular persons and objects are also included in the discussion. The chapter concludes with an overview of reprisals.
Conventional Weapons Convention
Authors: Boothby William H
Published: June 2017

This chapter discusses the important provisions of the UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW). It explains the significance of the Convention in relation to the evolution of the law relating to weapons, noting that it provides a framework within which specific Protocols have been negotiated to address particular weapons or weapon issues. The procedures for amending the Convention, for amending Protocols and for negotiating and adopting new Protocols are examined. The extension in scope agreed at the First Review Conference is discussed. The requirement for consensus as a condition precedent to the adoption of new Protocols and the increasing difficulty in securing such consensus as to new Protocols as the number of States party to the Convention increases are both considered.
Nuclear Weapons
Authors: Boothby William H
Published: June 2017

This chapter analyses how the law of armed conflict applies to the possession and use of nuclear weapons, noting that no law of armed conflict treaty has been adopted which either prohibits or restricts the development, stockpiling, transfer, possession, or use of such weapons, or threats to use nuclear weapons. Equally, there is no law of armed conflict treaty in existence that contains any other kind of provision with particular reference to such weapons. The chapter points out that certain states ratified Additional Protocol 1 on the explicit basis that the new rules introduced by the treaty have no application to nuclear weapons. In a later section the chapter considers the 1996 International Court of Justice Advisory Opinion of 8 July 1996, noting the criticism that has been made of the non liquet terms in which the judgment was expressed. In a short concluding section, the prospects for nuclear disarmament are briefly assessed.
Unexploded and Abandoned Weapons
Authors: Boothby William H
Published: June 2017

The traditional view that at the close of hostilities each party had clearance responsibility in relation to its own territory is noted in Chapter 17. The widespread nature of the explosive remnants of war problem and the very numerous and serious casualties occasioned by explosive remnants long after the military purpose in using the relevant weapons has passed are noted as important motives for the negotiation and subsequent adoption of the treaty. So it was that these factors, caused in part by frequent failures of sub-munitions to explode as intended, gave rise to the adoption of Protocol V to the CCW. The chapter discusses in logical sequence the relevant definitions associated with explosive remnants of war, the clearance, removal, and destruction obligations imposed by the treaty, the recording duties of States party and how the legal duties in the treaty interrelate with the voluntary best practice guidance given in the annex to the treaty. Of particular interest are the provisions aimed at protecting humanitarian missions and the particular arrangements associated with previously existing explosive remnants.
Compliance with International Weapons Law
Authors: Boothby William H
Published: June 2017

This chapter discusses the mechanisms that are designed to ensure compliance by States with their weapons law obligations. Treaties may include specific provisions in relation to compliance. Early treaties did not address the issue but some later weapons law treaties do. Compliance is also assisted by the provision of legal advice to commanders, by relevant provision in domestic legislation, and most importantly by the legal obligation that all States undertake a legal review of all new weapons. The article 36, Additional Protocol 1 provision is discussed, and from a practical perspective the things that must be reviewed are explained, the criteria against which the judgement should be made are set forth, the required data to support such a review are listed, and possible procedures associated with such reviews are addressed. ICRC Guidance on the conduct of such reviews is referred to, and critiqued.
The UN Protocol against the Smuggling of Migrants by Land, Sea and Air 2000
Authors: Schloenhardt Andreas
Published: June 2017

The United Nations (UN) Protocol against the Smuggling of Migrants by Land, Sea, and Air seeks ‘to prevent and combat the smuggling of migrants, as well as to promote cooperation among states parties to that end, while protecting the rights of smuggled migrants’. These objectives reflect the inherent complexity of the phenomenon of migrant smuggling and the distinct—and at times conflicting—goals of international efforts in this field. This chapter explores the evolution and background of the Protocol, outlines its main provisions, their application and interpretation, and critically reflects on the purpose, limitation, and ratification.
Transnational Commercial Law
Authors: Goode Roy , Kronke Herbert , McKendrick Ewan
Published: June 2017

This work focuses on the products and processes of the harmonisation of the law relating to international commercial transactions. After examining the nature and sources of transnational commercial law, the institutions involved and aspects of the conflict of laws, international law and comparative law, the book examines key features of a range of international instruments(international conventions, model laws, contractually incorporated institutional rules and scholarly restatements) relating to different types of cross-border commercial transaction. It concludes with chapters on transnational insolvency, international dispute resolution and recurrent issues of harmonisation. The issues are illustrated with extracts from the work of leading scholars, past and present, and from judicial decisions. This edition has been revised and incorporates four additional chapters dealing with regional harmonisation, carriage of goods by sea, transactions in securities and the relationship between international conventions and national law, including complex issues of treaty implementation. Other chapters deal with international sales, agency, documentary credits and demand guarantees, financial leasing, receivables financing and international interests in mobile equipment (aircraft objects, railway rolling stock, and space assets).
Diplomacy—a Short History from Pre-Classical Origins to the Fall of the Berlin Wall
Authors: Roberts Ivor
Published: June 2017

This chapter provides the historical context underpinning this study. It elaborates on the definition of the term ‘diplomacy’—the conduct of business between States by peaceful means—at the same time dispelling misconceptions regarding the term, as well as discussing its origins. Aside from that, the chapter largely focuses on a historical background of diplomacy as a whole, beginning from the earliest practices of sending emissaries to open negotiations. These origins may in fact go back at least as far as the Great Kings of the Ancient Near East in the second, and possibly even as early as the late fourth millennium BC, to the cuneiform civilizations of Mesopotamia. From there, the chapter maps out this history through the Renaissance period to the beginnings of classical European diplomacy, and later on to the two World Wars and the post-war world.
The Appointment and Functions of Consuls
Authors: Foakes Joanne , Denza Eileen
Published: June 2017

This chapter discusses the appointment and functions of consuls. Consuls have over recent decades become closely assimilated to diplomats in the manner of their appointment and in many of the functions they perform, though not in the methods whereby they carry out these functions. The origins and history of consuls and consular posts are however quite distinct from those of diplomats and diplomatic missions. In modern practice, consuls are appointed by the government of a State to protect the practical, legal, and commercial interests of its own nationals in another State. Their contacts for this purpose with the host State are with regional, local, or police authorities rather than with the ministry of foreign affairs or other departments of central government.
The Diplomatic Mission, The Corps, Breach of Relations, and Protection of Interests
Authors: Foakes Joanne , Denza Eileen
Published: June 2017

This chapter describes the diplomatic body and its various protocols. The diplomatic body (corps diplomatique) comprises the heads and the diplomatic staff of all the missions accredited to a particular receiving State. The corps diplomatique has no legal personality or formal constitution. In most major capitals a diplomatic list, based on the notifications of appointments, arrivals, and departures required from missions under Article 10 of the Vienna Convention on Diplomatic Relations (VCDR), is published by the ministry of foreign affairs. The list may also include spouses and members of the families of heads of mission and diplomatic staff. Where one or more international organizations have their headquarters in a capital there may be additional diplomatic bodies consisting of the permanent representatives to each organization.
Other International and Regional Organizations
Authors: Roberts Ivor
Published: June 2017

This chapter explores other pertinent international and regional organizations not explored in Chapter 20. These are: the Commonwealth, the North Atlantic Treaty Organization (NATO), the Council of Europe, the Organization of American States (OAS), the African Union (AU), the Association of South-East Asian Nations (ASEAN), the Francophonie, the Arab League, the Organization of Islamic Cooperation (OIC), the Gulf Cooperation Council (GCC), and the Organization for Security and Co-operation in Europe (OSCE). These organizations are formed with myriad goals in mind: for economic and trade purposes, for exercising human rights, for ensuring security, among others. The organizations explored in this chapter also encompass a diverse set of regions and geographies. Each organization is discussed here in terms of its structures, influence, historical backgrounds, membership, and functions.