bluuebunny/crossref_metadata_2025 huggingface dataset:
The Right to Manifest One’s Religion or Belief
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter emphasizes that the outer manifestations of freedom of religion or belief (forum externum) are not in any sense less important than the inner nucleus of a person’s religious or belief-related conviction (forum internum), even though only the latter is protected unconditionally under international human rights law. This chapter also discusses the largely overlapping elements of the right to manifest one’s religion or belief ‘in worship, observance, practice and teaching’. Furthermore, it analyses the implications of the religion-related reservations, declarations, and objections made by a number of States when signing, ratifying, or acceding to the International Covenant on Civil and Political Rights.
Places of Worship
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter discusses various human rights violations that arise in the context of constructing, owning, accessing, using, protecting, and preserving places of worship or other religious sites. When members of religious communities wish to construct and own places of worship they often face restrictions that are imposed by the State or competing claims by other religious communities. In this context, the conversion of places of worship as well as their confiscation and unfair restitution provisions may lead to further problems for religious communities. Furthermore, access to religious sites and their use is often unduly restricted by the State, impeded in practice by non-State actors, or hampered by religious precepts which discriminate against some people within the same religious or belief community. The chapter also discusses issues of interpretation, including the relationship between international human rights law and international humanitarian law in the context of religious sites, the obligations of various duty-bearers, and sacred sites of indigenous peoples.
Religious Symbols
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter presents issues concerning the right to wear or display religious symbols. As highlighted by the Special Rapporteur’s mandate practice, the main challenge in implementing such a right consists of protecting both the right of a person to voluntarily wear religious symbols as well as the right of a person not to be forced by States or non-State actors to wear such religious symbols. The circumstances of each situation must be considered on a case-by-case basis, taking into account all human rights aspects that may be at stake. This chapter discusses the mandate practice on the issue of wearing religious symbols by employees, police officers, university students, and pupils at public schools, teachers, and university lecturers, as well as the imposition of dress codes by States or non-State actors. The jurisprudence and reports by Treaty Bodies and Special Procedures have provided useful guidance on the regulation of religious symbols.
Observance of Holidays and Days of Rest
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter discusses some relevant issues concerning the observance of holidays and days of rest in a State. Many of the annual public holidays at the domestic level as well as the week days of rest (Fridays, Saturdays, and Sundays) are set in line with a country’s religious celebrations. By designating the weekly day of rest and public holidays for all individuals within its territory, the State inevitably favours the traditions of some religions or beliefs, often to the disadvantage of minority communities, especially for those that are not recognized by the State. Since societies have become increasingly multi-religious, the designation of holidays and days of rest leads to serious problems for individual believers in the context of employment, education, and administration of justice. Moreover, there have been discussions about a right not to celebrate holidays and with regard to promoting ‘reasonable accommodation’ for members of religious or belief minorities.
Teaching and Disseminating Materials (Including Missionary Activity)
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter reviews the international standards providing for teaching and disseminating religious materials as well as concerning missionary activity. Articles 18 of the UDHR and ICCPR explicitly refer to the freedom to manifest one’s religion or belief in ‘teaching’, which is complemented in the subsequent article about the freedom to seek, receive, and impart information and ideas through any media and regardless of frontiers. In addition, article 6 of the 1981 Declaration specifically guarantees freedom to write, issue, and disseminate relevant publications in these areas; to teach a religion or belief in places suitable for these purposes; and to establish and maintain communications with individuals and communities in matters of religion or belief at the national and international levels. While it is prohibited to use or threaten physical force or to coerce individuals in other ways, missionary activities should not be curtailed through vague concepts, such as ‘inducement’, ‘allurement’, or ‘unethical conversion’, which still exist in several national criminal law provisions against ‘proselytism’.
Establish and Maintain Charitable or Humanitarian Institutions/Solicit and Receive Funding
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter discusses issues concerning the right of religious communities to establish and receive funding for a humanitarian institution. For many believers, humanitarian support belongs to the very core of their convictions. This humanitarian commitment within a religion or belief includes the possibility to establish and maintain charitable and humanitarian organizations. Thus, hindering religious communities from running charitable institutions, or creating unnecessary obstacles in this regard, may seriously violate freedom of religion or belief. In addition, depriving funds needed for establishing and maintaining charitable work may also be considered as an issue under freedom of religion or belief. In this context, however, the various Special Procedures mandate-holders have not given a carte blanche to all sorts of financial and other contributions, notably by stressing that the right to receive funding could be limited in order to prevent its misuse for militant means and violence.
Migrant Workers
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter discusses issues concerning migrant workers’ right to freedom of religion. The right to freedom of religion or belief of migrant workers is often even more violated than that of religious minorities, since being outside the State of nationality in practice weakens equal access to human rights. These violations include abuses of their right to life, arbitrary detention and various forms of discrimination in the labour market, housing, and in relation to education, and citizenship. International human rights law, however, guarantees migrant workers and members of their families enjoyment of the full scope of freedom of religion or belief, including its manifestation in public and in community with others, in worship, observance, practice, and teaching.
Right to Life, Right to Liberty
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

The dominant concerns of this chapter relate to two aspects of the relationship between ‘religion’ and the ‘right to life’. One is the need to ensure that nobody is denied the right to life on grounds of their religion or belief (this being directly related to freedom of religion or belief), and the other is that nobody should be denied the right to life in the name of religion or belief. At the same time, the chapter also considers the broader horizon of multifaceted issues that are often considered relevant to life and religion. Issues such as religious values relating to the importance of life, and religious positions on abortion and on the death penalty are discussed in order to illustrate that, although not per se falling within freedom of religion or belief, they can be rendered relevant for the practice of freedom of religion or belief, depending on religious or moral convictions which people lay claim to.
Limitations
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

This chapter discusses issues concerning the limitation of freedom of religion or belief, including related issues of interpretation. First, religious manifestation is different from holding, adopting, or changing religion or belief in that the latter is not subject to any limitation whatsoever. Second, national security is mentioned as a limitations ground in articles 12 (liberty of movement), 13 (expulsion), 14 (fair trial), 19 (freedom of expression), 21 (peaceful assembly), and 22 (freedom of association), but not in article 18 of the ICCPR. Third, traditions and limitations intersect in two ways; a single tradition cannot determine limitation on the grounds of morals, and limitations should not target a single tradition. Lastly, the exercise of assessing ‘necessity’ and ‘proportionality’ should not sideline the importance of upholding the protection of the relevant human rights. International procedures should only limit freedom of religion or belief in accordance with a strict understanding of the rights and limitation regime concerned, and with detailed justification of the rationale for their decision making in the compromise that is proposed.
Defenders of Freedom of Religion or Belief and Non-Governmental Organizations
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael
Published: June 2017

Freedom of religion or belief has long depended on advocates and human rights defenders to ensure its normative development and its protection. Human rights defenders serve as an essential counterpart to States in advancing freedom of religion or belief by operating within charities, non-governmental organizations (NGOs) or international non-governmental organizations (INGOs), faith-based organizations, interfaith organizations, or community associations. Though the 1981 Declaration and the 1998 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms are silent on their contributions, their role has been welcomed by numerous freedom of religion or belief mechanisms and mandate-holders. Yet, their contributions are hampered by reprisals against human rights defenders and intimidation against mandate-holders, in sharp contrast with the Standard Terms of Reference for Fact-Finding Missions. Ombudspersons, faith-based organizations, INGOs, and NGOs have an important role to play regarding freedom of religion or belief and need to ensure non-discrimination in their activities.
Introduction
Authors: Green James A
Published: June 2017

The Introduction starts by outlining the main purpose of this book, which is to examine the persistent objector rule in international law. This rule, which is a core aspect of mainstream international law doctrine, holds that if a state persistently and consistently objects to a newly emerging norm of customary international law during the period of the ‘formation’ of that norm, the objecting state is then exempt from the customary norm in question once it has crystallised and for so long as the objection is maintained. So therefore, the ‘majority view’ of the persistent objector rule presents it as a mechanism for states to pre-emptively exempt themselves from newly emerging norms of customary international law.
The Objection Criterion
Authors: Green James A
Published: June 2017

The second part of this book turns towards the way in which the persistent objector rule functions and the various criteria for its operation. This chapter begins with an analsys of waht constitutes ‘objection’ for the purpose of the rule. The chapter looks at the meaning of ‘objection’ in relation to the operation of the rule. It begins by noting that only states can be persistent objectors. It looks at what exactly an objector state must be objecting. The chapter then highlights the usual strategy of states in objecting not to the individual applicability of the emerging norm to them but to the very existence of the emerging norm itself. It also examines the need for objection to be communicated and openly expressed. Finally, it assesses the necessary form of objection.
Peremptory Norms and Persistent Objection
Authors: Green James A
Published: June 2017

This chapter opens the third part of this book. The text here turns to the limitations and role of the persistent objector rule. This chapter begins by examining the commonly advanced contention that the ‘escape hatch’ provided by the persistent objector rule cannot be ‘opened’ in relation to jus cogens norms. A significant majority of scholars have expressed the view that a state cannot exempt itself from a peremptory norm through persistent objection, even when the usual criteria for the rule's operation. The chapter assesses the majority view. Section I sets out what peremptory norms are how they come into being. The chapter then briefly clarifies that the question is not whether a state can gain exemption to a jus cogens norm but whether its pre-existing exempt status ‘decays’, or is superseded by the norm to which it had been a persistent objector becoming peremptory. The chapter then turns to the rationale underpinning the majority claim. It considers the two regularly referenced examples from state practice relating to persistent objection and jus cogens norms: the policy of apartheid in South Africa and Rhodesia and the objections of the United States to the juvenile death penalty. Towards the end, the chapter considers the possibility of persistent objection to the very concept of peremptory norms.
The Role and Value of the Persistent Objector Rule
Authors: Green James A
Published: June 2017

This chapter examines the ‘role’ or ‘value’ of the persistent objector rule. Firstly, the chapter sets out and critiques the voluntarist conception of the persistent objector rule in more detail than has been done in previous chapters. It then considers competing theoretical approaches to international legal obligation, broadly grouped together as being ‘communitarian’ in nature. Such communitarian approaches have tended to dismiss the persistent objector rule along with their dismissal of voluntarism. It is argued that holistic, absolutist theoretical accounts of customary international law fail to take into account its chaotic nature in reality. The chapter therefore argues this it is problematic to appraise the value of the persistent objector rule from the perspective of either voluntarism or communitarianism. Drawing upon some insights from rational choice theory, it is argued that the rule is inherently one of balance, and that its true value lies in its practical benefits both for individual objectors and the wider international community. The chapter then assesses the rule's various functional benefits as a ‘safety valve’. The chapter also examines the contributions that persistent objection can make to the development of customary international law. At the end of the chapter, the text briefly notes that many of the benefits of the persistent objector rule may, at least in part, stem from the perception of state autonomy that it creates.
Conclusion
Authors: Green James A
Published: June 2017

This concluding chapter looks back at the issues outlined here. This book has presented a detailed account of the persistent objector rule seeking to assess the rule's existence and limitations and value in depth. However, this investigation can only go so far. This is because, like customary international law itself, the persistent objector rule has inherent uncertainties at its core. We cannot provide precise answers to at least some of the key questions concerning how the rule functions — for example, exactly how persistent and consistent the objection needs to be — because, in relation to these sorts of questions, there are no precise answers to give. It is hoped, however, that this book has helped to increase the general understanding of this often misunderstood rule. The book, the conclusion states, has aimed to go beyond the scholarly examinations of the rule and to focus on persistent objection ‘in action’ in state practice.
The International Criminal Court (ICC) and Double Standards of International Justice
Authors: Dicker Richard
Published: June 2017

This chapter situates the ICC’s practice to date in the context of the perceived ‘double standard’ dilemmas that international criminal justice continues to face. The Rome Statute’s consent-based jurisdictional regime-with the exception of the Security Council referral mechanism-has inherent limitations. This contribution examines the causes and the effects of these limitations over the course of the last decade of Court activities, as well as possible ways to address this dilemma. It argues that Security Council practice has shown three distinct negative features: (i) selectivity, (ii) substantive shortcomings in the referral resolutions, and (iii) a lack of meaningful follow-up. This calls for an improvement of the Council’s working methods that maintains the judicial independence of the Court.
The ICC and the Politics of Peace and Justice
Authors: Vinjamuri Leslie
Published: June 2017

The indictment of sitting heads of state and rebel leaders during active armed conflict has radically altered the debate surrounding international justice. Despite the view now widely held that peace and justice are complementary rather than competing values, conflicts in the former Yugoslavia, Sudan, Libya, and Syria have brought home the reality that there are still significant barriers to achieving both peace and justice simultaneously, and that the prospects for enforcing justice are weak when perpetrators of atrocities remain powerful at home. Leading advocacy organizations and the ICC stress the role of international justice in delivering results, especially peace, the rule of law, and stability. This chapter discusses the shift in international justice advocacy from a principle or duty-based logic to one that is results-based. It argues that one way to promote justice may be to postpone it (e.g. through sequencing).
The Relationship between the ICC and the United Nations Security Council
Authors: Verduzco Deborah Ruiz
Published: June 2017

International criminal justice emerged in the tradition of international peace and security. The relationship between the ICC and the Security Council has been problematic since the inception of the Court. While some delegations argued that the nexus to collective security is helpful because it might make ICC justice more effective in terms of enforcement, other delegations feared that it might render the Court vulnerable to alignment with politics. This chapter examines dilemmas that have emerged in the interaction between the Court and the Council in the first decade. It focuses on several key areas: referrals, deferrals, and institutional interaction, most notably cooperation and funding. It seeks to offer a constructivist vision on the interplay between the ICC and the Council, by offering some targeted recommendations to improve the status quo.
Admissibility Challenges before the ICC
Authors: Stahn Carsten
Published: June 2017

The ICC has faced admissibility challenges under Article 19 of the Statute in a number of situations and cases. The Court has set a high jurisprudential threshold through its interpretation of the ‘same conduct test’ under Article 17. The Libyan cases (Saif Al-Islam Gaddafi and Abdullah Al-Senussi) have provided some leeway for domestic jurisdictions. But jurisprudence continues to rely on top-down approaches and ‘mirroring’ imagery that is geared towards the replication of international practices at the domestic level. The role of time and the space for parallel engagement of the ICC and domestic jurisdictions have not received sufficient attention. This chapter argues that the modalities of deference to domestic jurisdiction need to be refined. It suggests that some of the existing deficiencies may be mitigated by greater attention to qualified deference, i.e. management of parallel proceedings, strengthening of monitoring structures, and clarification of conditions of deference (‘conditional admissibility’).
The Frog that Wanted to Be an Ox
Authors: Jacobs Dov
Published: June 2017

This chapter addresses the relationship between immunities and the requirements of state cooperation in cases where the person prosecuted is a national of a non-State Party (e.g. Al Bashir). It examines the complex relationship between Articles 27 and 98 of the Rome Statute and the manner in which they comport with clearly established norms of public international law. The chapter highlights a number of possible legal avenues to circumvent the obstacle posed by immunities, which include reference to customary international law, analysis of the powers of the United Nations Security Council, and the Genocide Convention. It argues that all these solutions have a number of flaws that are difficult to overcome.
Accountability of International Prosecutors
Authors: Turner Jenia Iontcheva
Published: June 2017

The dilemma of holding prosecutors accountable while ensuring their independence was at the centre of the debates surrounding the establishment of the ICC and has been a recurring question ever since. Drastic judicial remedies against prosecutorial misconduct have the potential of harming other interests of international criminal justice, including deterrence, retribution, and the establishment of an accurate historical record. On the other hand, non-judicial mechanisms may compromise the principle of prosecutorial independence and create the risk that politics would influence disciplinary decisions. This chapter examines how the ICC has approached this accountability dilemma in its first years of operation. It advances that the Court should adopt a structured balancing approach in determining remedies for prosecutorial misconduct to include internal bureaucratic controls within the OTP, judicial intervention, and disciplinary measures by the ASP, the IOM, and national or international bar associations.
Article 21 and the Hierarchy of Sources of Law before the ICC
Authors: Bitti Gilbert
Published: June 2017

Article 21 of the ICC Statute is unique in the arena of international criminal justice. It introduces a differentiated hierarchy in relation to sources of law, yet it remains one of the most ambiguous provisions of the Statute. This chapter investigates how the ICC has interpreted this provision, and what approaches the Court has adopted in relation to the interpretation and application of different sources of law, including ‘internationally recognized human rights’ under Article 21(3). It contrasts the internal law of the ICC with external sources, and argues that ICC Chambers should use to their full extent the possibility given to them by Article 21(3), rather than trying to import procedures from the ad hoc Tribunals or from some domestic jurisdictions.
Command Responsibility under Article 28 of the Rome Statute
Authors: Kiss Alejandro
Published: June 2017

This chapter discusses the concept of command responsibility under Article 28 of the ICC Statute. This doctrine evolved against the need to rethink the existing concepts of ordinary criminal law in a manner that would address cases of individuals in high positions of authority responsible for mass criminality. There is a plethora of literature and jurisprudence, particularly since the experiences of the ad hoc tribunals, dealing with the most contentious aspects of command responsibility, but many aspects remain unclear. This chapter addresses issues which involve the most significant practical consequences, including the superior-subordinate relationship and the requirement of effective control, the duties imposed on commanders and superiors, the role of causation, and the mental element.
Rethinking the Mental Elements in the Jurisprudence of the ICC
Authors: Badar Mohamed Elewa , Porro Sara
Published: June 2017

Mental elements have played a key role in ICC jurisprudence. This chapter provides a comprehensive analysis of the default rule of Article 30 of the ICC Statute, tackling the issues of dolus eventualis, recklessness, and wilful blindness. The chapter then deals with the disputed meaning of the opening clause ‘Unless otherwise provided’ in Article 30 of the Statute, before investigating the mental elements applicable to attacks affecting civilians. It argues that the ICC regime departs significantly from the broad concept of intent developed in the jurisprudence of the ad hoc Tribunals and applied by the ICTY to the war crime of attacks against civilians. It shows that the exclusion of dolus eventualis from the realm of Article 30 provides challenges for future practice.
The ICC’s First Encounter with the Crime of Genocide
Authors: Kreß Claus
Published: June 2017

The ICC’s first substantial encounter with the crime of genocide was triggered by the prosecution’s application for a warrant of arrest against Omar Al Bashir on 14 July 2008. This chapter addresses the emerging ICC jurisprudence on the crime of genocide, including Pre-Trial Chamber I’s ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’ of 4 March 2009, which constitutes the most important engagement of an ICC Chamber with the definition of the crime of genocide to date. The chapter discusses the nature of genocide and its material and mental elements, including the controversy over the purpose versus the knowledge-based approach and whether the crime of genocide requires an objective point of reference for the perpetrator’s intent, namely, the existence of a realistic collective goal to destroy the target group in whole or in part.
The Crime of Aggression
Authors: Clark Roger S
Published: June 2017

The crime of aggression was included, in principle, within the jurisdiction of the ICC by the Rome Statute of 1998. Making that jurisdiction operational was, however, left to the First Review Conference on the Court, which took place in Kampala in 2010. This chapter discusses the details of the Kampala Amendments to the Rome Statute, including the Elements of Crime of aggression. It analyses efforts to obtain sufficient ratifications of the amendments to bring them into force, as well as the implementation of aggression in domestic legislation. It argues that a State ratifying the Kampala Amendments should domesticate Article 8bis and its Elements as closely as possible by penal legislation, and award at least jurisdiction over conduct of its own nationals.
Proportionate Sentencing at the ICC
Authors: deGuzman Margaret M
Published: June 2017

In sentencing decisions, the concept of proportionality is often understood in purely retributive terms-punishment should accord with the desert of the perpetrator. This contribution argues that the ICC should use retributive proportionality at most as a limiting principle. It begins with a brief critique of ICC sentencing approaches, including the Lubanga sentencing judgment. Next, it provides an overview of the dominant theories of proportionality and some of their implications for sentencing. Third, the chapter examines the sources of law available to the ICC in relation to proportionality analysis, demonstrating that they support a focus on crime prevention. Fourth, the chapter explains why retributive proportionality would be both impracticable and dangerous. Finally, it proposes a preventive theory of proportionate punishment, arguing that the ICC should focus primarily on appropriate norm expression and other aspects of prevention, such as deterrence, incapacitation, and restorative justice.
‘A Stick to Hit the Accused With’
Authors: Heller Kevin
Published: June 2017

This Chapter provides a comprehensive critique of Regulation 55 at the ICC which regulates the legal characterization of facts in the ICC context. Regulation 55 has been applied in multiple cases at the ICC, including pre-trial and trial (e.g. Katanga and Ngudjolo Chui). This contribution argues that the adoption of Regulation 55 was ultra vires, because the Regulation does not involve a ‘routine function’ of the Court and is inconsistent with the Rome Statute’s procedures for amending charges. It explains why, contrary to the practice of the Pre-Trial Chamber and Trial Chamber, Regulation 55 cannot be applied either prior to trial or after trial has ended. Finally, it demonstrates that the Pre-Trial Chamber and Trial Chamber have applied Regulation 55 in ways that undermine both prosecutorial independence and the accused’s right to a fair trial.
Disclosure Challenges at the ICC
Authors: Whiting Alex
Published: June 2017

This Chapter provides a prosecutorial perspective on evidence and disclosure. It proceeds in two parts: the first part sketches out the disclosure regime at the ICC; the second part identifies the challenges that the prosecution faces in managing disclosure. The contribution examines the approaches adopted by Pre-Trial and Trial Chambers and their impact on prosecutorial strategy and practice. It deals with constraints on disclosure (e.g. provider confidentiality, and witness protection) and puts the difficulties encountered in the first cases (e.g. Lubanga) into perspective. Finally, it reflects on key aspects of the emerging evidentiary regime, such as the role of documentary evidence, witness examination and testimony, and judicial questioning. The contribution argues that disclosure is not a topic that will ‘go away’ or be solved, but will instead be a recurring issue at the tribunals, in particular, in cases involving large amounts of material.
The Roads to Freedom—Interim Release in the Practice of the ICC
Authors: Dumbryte Aiste
Published: June 2017

This Chapter examines whether the ICC has managed to achieve an appropriate balance between two competing values: the accused’s right to liberty and the effective administration of international criminal justice. It analyses the Court’s case-law on interim release, comparing it to the jurisprudence of the ad hoc tribunals and human rights courts. It covers the allocation of burden of proof in interim release cases, as well as the three grounds for interim release provided by the Rome Statute and the Court’s jurisprudence: absence of the risk of flight, interference with the proceedings, and further commission of crimes; unreasonable length of detention; and exceptional humanitarian circumstances. The Chapter points out shortcomings in the current legal framework of the Court and suggests several amendments of the Rome Statute in order to ensure that the accused individuals can effectively challenge their detention.
Testifying behind Bars—Detained ICC Witnesses and Human Rights Protection
Authors: van Wijk Joris , Cupido Marjolein
Published: June 2017

This Chapter discusses the competing responsibilities of the ICC and the host State in relation to detained witnesses, with a particular focus on asylum applications. As shown by the example of Congolese witnesses, testimony before the Court can lead to conflicting human rights obligations. The Court is obliged to return detained witnesses to the requested state after they have testified. The ICC and the Netherlands need to respect internationally recognized human rights and protect persons from persecution. Attempts to reconcile these competing obligations have resulted in lengthy proceedings before the ICC and Dutch courts. This Chapter examines the problems that arose in this context, and argues that the threat of more asylum applications could have serious implications for the future functioning of international criminal justice. It explores three possible alternative solutions: anticipatory protective measures, video-link testimony, and rogatory commissions, all of which come with their own complications.
The Rome Statute’s Regime of Victim Redress
Authors: McCarthy Conor
Published: June 2017

This Chapter examines the ICC framework of victim redress. It explores the character of the Statute’s reparations regime, asking how the regime is properly characterized in legal terms. It identifies a number of key issues which arise in respect of the relationship between the Statute’s regime of victim redress as a whole and national legal systems, in particular, the question of complementarity and victim redress. It argues that reparations are not simply a specific form of humanitarian relief or charitable assistance. It claims that the ICC needs to strike a proper balance between the principled need for fairness and consistency in the treatment of victims, and the need for efficiency and expeditious delivery of redress. Proper procedures, including verification and monitoring arrangements, are necessary to ensure that the overall role of reparations arrangements is respected.
The Deterrent Effect of the ICC on the Commission of International Crimes by Government Leaders
Authors: Grono Nick , Wheeler Anna de Courcy
Published: June 2017

This Chapter examines in which circumstances, and under what conditions, the prospect of prosecution by the ICC may act to curtail the actions of government or rebel leaders by shifting the strategic calculus in favour of avoiding war crimes or crimes against humanity. It studies ICC engagement and its impact in Uganda, the DRC, Colombia, Sudan, Kenya, and Mali. It argues that success or failure of ICC deterrence rests to a large degree on its ability to pursue successful prosecutions. It concludes that potential to deter future atrocity crimes may not exist in all cases, and probably not in the midst of armed conflict, but could exist in those situations where the commission of crimes is one of a series of policy options available to a leader facing a challenge to his or her authority.
The ICC and Capacity Building at the National Level
Authors: Bekou Olympia
Published: June 2017

This Chapter examines the importance of capacity building in administering justice for core international crimes. It discusses both the ICC framework, including its limited resources, and the obstacles national jurisdictions need to overcome in order to meet the complementarity threshold in the ICC context. It further explores the notion of positive complementarity as the basis for capacity building, with a view to revisiting the position of national legal orders in the Rome Statute system of justice. It argues that national jurisdictions should not attempt to replicate ‘mini-ICCs’ on the ground, but create national justice institutions that serve the needs of the societies they represent, whilst complying with requisite international standards.
Standards of Conduct in Mortgage Lending and Advising
Authors: Pope Tim
Published: June 2017

This chapter discusses the rules and regulations setting the appropriate standard of behaviour for those engaged in mortgage lending and advising. It focuses on the law and regulation of domestic mortgages whilst acknowledging there are various other forms of home finance now regulated by the Financial Conduct Authority. It explains the specific regulatory requirements which apply to the design, promotion, and distribution of equity release products which encompass not only regulated mortgage contracts (in the form of lifetime mortgages) but also home reversion plans.
Conduct of Business for Banks, Other Deposit-Takers, and Payment Services Providers
Authors: Clark Richard
Published: June 2017

This chapter discusses the rules and regulations for the conduct of business of banks, deposit-takers, and providers of payment services. The banking and payment services conduct regime involves elements of both information regulation (an approach based on disclosure or transparency) and product regulation, in the sense of mandatory rights and obligations for the services provided. In contrast to the more highly regulated realm of retail investments, there is no attempt at advice regulation, albeit the Financial Services Authority has indicated that it is considering whether it should make further provision for advice on deposits, and in particular structured deposits (where the interest or return is dependent on the performance of an underlying index/indices, stock(s) or commodity/commodities).
Proving Liability and Loss
Authors: Virgo John
Published: June 2017

This chapter first discusses the potential need for expert evidence in claims involving allegations of the mis-selling of financial products. It then explains the use of expert evidence in court; the presentation of expert evidence for liability; the role of expert evidence in evaluating the quantum of a claim; expert witness' duties; and expert's immunity.
Market Integrity
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

The chapter evaluates Hong Kong’s regulation of market misconduct. The chapter argues that much of Hong Kong’s regulatory structure addressing market misconduct is derived from overseas jurisdictions (Australia and the United States, and reflecting the European Union and the United Kingdom). In relation to insider dealing, market misconduct, and disclosure Hong Kong’s approach largely follows the legislative, regulatory, and common law development in the United States. The chapter concludes that following the enactment of the Securities and Futures Ordinance (SFO), Hong Kong has implemented a comprehensive system addressing market misconduct, through both disclosure regulation and market conduct regulation. This is especially the case in relation to insider dealing, market manipulation, and financial fraud and deception. Regulation addressing such issues in Hong Kong is generally of an international standard.
The China Nexus
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang
Published: June 2017

This chapter focuses on the financial markets and related legal and institutional frameworks in mainland China, in the context of China’s liberalization commitments under the World Trade Organization (WTO) and the Closer Economic Partnership Arrangement (CEPA). Today, Hong Kong and its financial markets perform a number of roles in respect to China. As part of the People’s Republic of China, Hong Kong increasingly must deal directly with resulting issues and questions, both as a result of the increasing use by mainland companies of Hong Kong’s financial markets (e.g. listing on the stock exchange) as well as supporting business in China. At the same time, the resulting interconnection between the two economies and financial systems brings challenges for Hong Kong. This is especially true of questions relating to mainland companies raising money in Hong Kong and resulting issues of disclosure, corporate governance, and related enforcement problems.
Introduction to HKIAC
Authors: Moser Michael , Bao Chiann
Published: June 2017

This chapter introduces the Hong Kong International Arbitration Centre (HKIAC), one of the longest-standing and most prominent providers of dispute resolution services in the Asia-Pacific region. According to a leading arbitration journal, ‘[r]egional arbitration pretty much began with the HKIAC. No regional institution has been running for so long. Or with such success.’ It has also been recognized that the emergence of HKIAC proved that the concept of regional arbitration would work. The chapter then summarizes the history of HKIAC, describes its structure and services, provides an overview of recent case statistics, and outlines the arbitration process under the HKIAC Rules.
Commencement of the Arbitration (Articles 4 and 5, Schedule 1)
Authors: Moser Michael , Bao Chiann
Published: June 2017

This chapter discusses the initial procedural steps in an arbitration under the HKIAC Rules. The commencement of an arbitration represents the starting point for the arbitral process. This is a critical step as the commencement is relevant to timing issues including limitation periods, and a party commencing an arbitration precludes the possibility of referring the same dispute to a court. Hence the chapter describes the form and content requirements for submitting the Notice of Arbitration (‘Notice’). It then addresses the requirements for filing an Answer to the Notice of Arbitration (‘Answer’) and the applicable time limit. Lastly, the chapter deals with payment of the Registration Fees and Administrative Fees charged by HKIAC for rendering its case administration services.
Awards, Decisions, and Orders of the Arbitral Tribunal (Articles 32–40)
Authors: Moser Michael , Bao Chiann
Published: June 2017

This chapter discusses section V of the HKIAC Rules. It provides the framework for making awards, decisions, and orders by the arbitral tribunal in HKIAC arbitrations. It also addresses the costs of arbitration and deposits for such costs. The process of rendering an award under the HKIAC Rules involves the following stages: the closure of hearings, deliberation, the reaching of a decision, the assessment of costs, the rendering of the award, and the transmission of the award. The award will typically comprise the following elements: the identification of the parties, the specification of the date of the award and the seat of the arbitration, the procedural history, the summary of the factual background and the issues in dispute, the substantive analysis for the decision, and the specification of any orders to be carried out by the parties.
From an Invisible College to an Ethical No-Man’s Land
Authors: Rogers Catherine A
Published: June 2017

This chapter traces the origins of modern international arbitration, from the heyday of Oscar Schacter's ‘Invisible College of International Lawyers’ to its eventual decline to an ethical ‘no-man's land’. The former represents an international community built upon a shared understanding of legal proceedings and ethical conduct — a community that has since been fractured as part of the globalization of the legal profession. It has become increasingly clear to institutions operating within national boundaries that the lawyers operating without clear national boundaries require a restructuring of the old procedures that had emphasized localized practices. The international arbitration we see today is an ethical no-man's land whose political status is uncertain, because it straddles the borders between formally occupied national territories. Yet international arbitration remains a challenging prospect, necessitating reconstitution of the old Invisible College ideals in order to redress the ethical no-man's land.
Castles in the Air and the Future of Ethics in International Arbitration
Authors: Rogers Catherine A
Published: June 2017

This chapter discusses the implications of a more holistic, complex understanding of international arbitration on the future of the ethical regulation of international arbitration. With a vision of the future centred on the professionals that manage international disputes and address its on-going challenges, the chapter anticipates the implementation of the ethical self-regulation among the professional collective. While such a view might seem ambitious at first glance, international arbitration is already by nature self-regulatory. A challenge, therefore, for the current crop of arbitrators would be to think beyond the present situation and take future developments in an increasingly globalized world. Undoubtedly many transnational issues that fall under the realm of these professionals will entail both political and economic cross-currents; it is time to entrust these disputes to international arbitrators on the ground that they would be responsibly and effectively managed.
Agreement to Arbitrate
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This chapter further explores the element of the agreement to arbitrate, which serves as the foundation stone of international arbitration. It describes the consent of the parties to submit to arbitration-a consent that is indispensable to any process of dispute resolution outside national courts. The chapter examines and compares the two basic types of arbitration agreement: the arbitration clause and the submission agreement. An arbitration clause looks to the future, whereas a submission agreement looks to the past. The first, which is most common, is usually contained in the principal agreement between the parties and is an agreement to submit future disputes to arbitration. The second is an agreement to submit existing disputes to arbitration.
Challenge of Arbitral Awards
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This chapter discusses the challenge or appeal of arbitral awards by the losing party of arbitration. Under the New York Convention and the UNICTRAL Model Law, the purpose of challenging an award is to have the court declare all, or part, of the award null and void. If an award is set aside or annulled by the relevant court, it will usually be treated as invalid and accordingly unenforceable not only by the courts of the seat of arbitration, but also by national courts elsewhere. The chapter describes the various methods of challenge: ‘internal’ challenge; the correction and interpretation of awards; the issuance of additional awards; and the remission of awards. If the challenge is successful, the court may decide to confirm the award, refer it back to the arbitrary tribunal, vary the award, or set it aside in whole or in part.
The Cases
Authors: Llamzon Aloysius P
Published: June 2017

This chapter discusses the decisions and awards in nineteen cases identified as significant for the study of corruption in international investment arbitration. It covers the following: cases where corruption was outcome-determinative; [e.g. World Duty Free Company Ltd. v. Republic of Kenya, Metal-Tech v. Khazakhstan, and Siemens v. Argentina] and cases where corruption allegations did not prosper [e.g. Southern Pacific Properties v. Arab Republic of Egypt, Wena Hotels Ltd. v. Arab Republic of Egypt, and Tanzania Electric Supply Co. v. Independent Power Tanzania Ltd].
Official Funding Sources:
Authors: Borisoff Alexander , Compton Andrew
Published: June 2017

This chapter provides an overview of official funding sources available in the project finance arena, including from export credit agencies, multilateral development banks, and governmental and quasi-governmental entities. The forepart of the chapter describes export credit agencies and multilateral development banks generally, as well as hybrid-type official funding sources. The second part of the chapter explores the types of funding these entities provide, including loans, loan guarantees, political risk insurance, working capital facilities, equity investments, and bond guarantees. The chapter concludes by assessing regulatory regimes applicable to export credit agencies, including the voluntary OECD Consensus or Arrangement on Export Credits that seeks to promote transparency among export credit agencies, and other common issues and considerations to explore when seeking funding by way of such an official funding source.
Defaults and Workouts:
Authors: Angel Nick , Colman Kate
Published: June 2017

This chapter considers issues relating to the restructuring of project finance companies experiencing financial difficulties. Restructurings may take many forms, but in all cases there will be a number of protagonists with often competing interests: the project company itself, its directors, its sponsors, its creditors, and, especially in a project finance context, key commercial parties or governments connected to the project. This chapter considers the motivations and legal rights and obligations of each of these protagonists, including the heightened duties of directors as a company’s financial situation deteriorates. It also considers the various stages of restructuring—from default through to enforcement or implementation of a consensual restructuring transaction—and examines some of the options available which allow companies to reorganize or reschedule liabilities and continue as a going concern.