bluuebunny/crossref_metadata_2025 huggingface dataset:
Assignments under Section 136 of the Law of Property Act 1925
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter focuses on section 136 of the Law of Property Act 1925, which entitles an assignee of a debt or other legal chose in action to recover it by way of proceedings brought in his own name, provided the conditions of the section are met. For an assignment to fall under section 136, the assignment must be of a debt or other legal chose in action; the assignment must be absolute and not purport to be by way of charge only; the assignment must be in writing under the hand of the assignor; and the debtor must be given express notice in writing of the assignment. Section 136 has no effect in rendering assignable choses that could not otherwise be assigned in equity, nor does it have the effect of expanding the circumstances in which a chose in action can properly be assigned.
Security Over Intangibles
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter studies security over intangibles. Security over pure intangibles can only be created by way of mortgage or equitable charge. However, before examining the particular practical demands that are made of the law of security, it is necessary to begin with a consideration of the various forms of security over personal property recognized by English law. English law recognizes four forms of consensual security over personal property: the pledge; the lien; the mortgage; and the charge. Of these, the pledge and the lien are classified as possessory securities, while the mortgage and the charge are non-possessory securities. This distinction is of great importance, for a possessory security cannot be asserted over choses in action, for the simple reason that it is not possible to take physical possession of intangible property.
Sustainability, Responsibility, Public Trust, Ethical Drift, and the ‘Social Licence’ Concept
Authors: Mccormick Roger , Stears Chris
Published: July 2018

This chapter discusses the concept of sustainable banking and its importance in the aftermath of the recent financial crisis. Sustainability (or ‘sustainability development’) is conventionally understood as the simultaneous pursuit of three policy goals: environmental protection, social equity (and justice) and economic welfare. In the context of banking, sustainability includes aligning the financial system with sustainable development; standardizing sustainability reporting in the financial sector, and increased awareness of ‘green issues’ and a growing agenda insisting that commercial and financial activity — as well as national and local politics — have greater ‘respect for the environment’.
Definition
Authors: Mccormick Roger , Stears Chris
Published: July 2018

This chapter first reviews the changing perceptions of ‘legal risk’ over the years. It then considers a school of thought that holds that a definition of legal risk is not necessary. It examines the relevance of the definition of legal risk in the allocation of responsibility and effective risk management, impact on policy, responsibility for corporate misbehaviour, advantages of a ‘norm’, and the need for flexibility. Next, it sets out the International Bar Association’s definition of legal risk. The final section deals with the issues raised the employee who ‘goes off the rails’, or the ‘rogue trader’.
Causation
Authors: Mccormick Roger , Stears Chris
Published: July 2018

This chapter first considers the relationship between the sources of legal risk considered in Chapter 24 and the causes of loss attributable to legal risk identified in the International Bar Association definition. Whereas the sources describe the social circumstances that cause legal risk to arise, the definition is concerned with how an institution, when faced with a legal risk-originated problem, should answer the question: how did this happen (or how can we prevent this happening)? Consideration of the sources helps us to understand why legal risks arise in the broader social context but it is the definition that provides the pointer to the more immediate causes of risk and loss in any specific context. The remainder of the chapter turns to relevant case law.
Metrics in Conduct Risk and Reputation Management
Authors: Mccormick Roger , Stears Chris
Published: July 2018

Despite being over a decade on from and the onset of the global financial crisis, organisations are still battling to regain the trust that was lost. A bank whose business practices might be applauded on the basis of its financial performance might be harbouring an unidentified/unmitigated level of conduct risk that could undermine its sustainability and trustworthiness. One way that stakeholders can assess the bank’s culture, conduct and ultimately, its trustworthiness and ‘investment value’ is through the use of metrics. This chapter explores the use of metrics for both conduct and reputational risk management. It focuses on the use of ‘conduct costs’ as a metric for internal risk management, as well as its potential to serve as a simple, yet defining metric for non-financial performance, firm culture and trust, from an external stakeholder assessment perspective.
Situating Evidence in the Process of Investor-State Arbitration
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter submits that investor-state arbitration faces a common core set of problems that tribunals hearing these claims must resolve. Commentators of, and participants in, investor-state arbitration typically submit that there is only one rule of evidence: the free appreciation of evidence by the arbitrator. Given the ubiquity of the sentiment that there are no rules of evidence in investor-state arbitration, this chapter first attempts to examine where this perceived wisdom has gone wrong. This premise starts from a foundational coincidence of the who, what, how, and why of the decision-making process involving states and foreign investors. The coincidence explains why principles could form in the first place, given the role of the process participants, the subject matter of the process, and the operations of the process, as well as its constitutive values.
Introduction to the Standard of Proof in Investor–State Arbitration
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter introduces the standard of proof. The standard of proof provides the amount of evidence that must be provided by the party that has the burden (ie the party making the allegation). As such, it is a concept that is closely related with the burden of proof. The standard of proof helps explain how much evidence needs to be proffered by the party that has the burden of proving any particular issue in question. Since the distinction between the burden and standard of proof remains so contentious in investor-state arbitration, the chapter distinguishes the two by considering who must do the proving, and how much needs to be proved.
Evidentiary Presumptions
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter considers presumptions, which serve as an efficiency or prudential function in court proceedings. Tribunals can make findings of fact by reference to presumptions. The use of presumptions means that the tribunal makes a determination of fact that is not premised upon direct evidence or project-specific circumstantial evidence. The tribunal instead is convinced of the truth of a fact premised upon the proof of relevant general surrounding circumstances. The use of presumptions is ubiquitous in investor-state arbitrations, as it is in other domestic and international disputes, because the predicate of a legal claim typically is the asserted deviation by one or both the parties of relevant general practices or expected background circumstances by the other.
Documentary Evidence and Document Production
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter provides an overview of issues relating to documentary evidence and document production. In any investor-state arbitration case, each party is responsible for producing the evidence required to prove its case. This evidence can be introduced either through the production of documentary evidence or through witness testimony. Similarly, a party may need certain documents from opposing counsel. Here, the fundamental understanding of the term ‘document’ is not restricted merely to ‘paper’—to actual documents written in words. Documentary evidence can appear in a wide range of styles (such as drawings, emails, pictures, charts, graphs, and many more) and a wide range of forms (physical, audio, visual, electronic, and more).
Exclusionary Rules of Evidence
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter outlines the exclusionary rules of evidence. In the context of investor-state arbitration proceedings, all evidence proffered by the parties is admitted into the record in the absence of exceptional circumstances. A party seeking to exclude evidence typically carries the burden to convince the tribunal that it should exclude the evidence in question. In seeking to do so, it will have to meet a reasonably high standard of proof. Consequently, exclusion of evidence is warranted only in the limited circumstances when its inclusion would violate another party’s right to be heard, the equality of the parties, or fundamental principles of international public policy. Given the exceptional nature of excluding relevant and material evidence in international arbitration, the burden is on the party seeking to exclude evidence. The exceptional nature of these limitations indicates the premium placed by international arbitration on the free evaluation of evidence by the arbitrators.
Evidence and Annulment
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter considers annulment in the context of the International Centre for Settlement of Investment Disputes (ICSID). Here, annulment controls the process of arbitral decision-making rather than its result. As a control mechanism, annulment is centrally concerned with the question whether a tribunal applied the principles of evidence codified in arbitral procedure or cast those same principles aside to make a decision on a completely different basis. Parties perceive the legitimacy of a process of dispute settlement in terms of the predictability with which decision-makers appraise their factual submissions. As such, principles of evidence are central to the mission of annulment to ‘maintain the vitality and integrity of a process of dispute resolution by providing the degree of supervision sufficient to correct violations of parties’ expectations in a way that sustains confidence in the efficiency and fairness of ICSID arbitration’.
Introduction to the Bermuda Market
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter discusses the environment in which the ‘new’ Bermuda-based international insurers were created in the mid-1980s, and in which the policy forms they chose to implement initially took root and grew. The story of how that took place has been told at length by others. The authors of this work do not propose to duplicate those efforts. By the same token, the continued (and continuing) development of the international Bermuda insurance market represents a much longer story, to be told by others. The chapter instead represents only a brief overview of the circumstances in which the Bermuda Form was created between 1985 and 1986, the commercial context for its introduction into the market, and the now recognised robust international insurance marketplace in Bermuda which has developed over the succeeding thirty years.
Occurrence Definition
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter discusses the Bermuda Form occurrence definition. The occurrence definition has historically served a dual function. It describes the nature of the event or circumstance subject to coverage in general. It also determines and conclusively establishes the link between (1) the injury or damage from which the legal liability alleged against the insured arises, and (2) the specific policy and policy period that may respond and provide an indemnity to an insured in respect of its liability for that claim. In the Bermuda Forms, the occurrence definition is an amalgam or hybrid creature, combining principles of different approaches to describing the nature of the events or circumstances generally contemplated to be within the scope of coverage, and also because it addresses other subjects not traditionally addressed in such definitions.
Exclusions From Coverage
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter discusses each of the exclusions included in the Bermuda Form (Articles IV.A–IV.P). It shows that some are unique to this form, some are virtually identical to exclusions typically in use in the United States, and some are hybrids, including similarities and differences from those usually seen in that environment. Some of these exclusions frequently become the source of disputes between policyholders and insurers, and those will be discussed in depth. Others, frequently present in one version or another in many policies other than the Bermuda Form rarely emerge as the source of an actual dispute, still more rarely result in published opinions interpreting them. Less attention will be paid to these.
Preparation for and Conduct of the Hearing
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter deals with the procedural issues relating to the hearing of a Bermuda Form arbitration itself. These include organizing a venue for the hearing, preparation of witness statements, the logistics of presenting witnesses, the preparation of experts' reports, the presentation of written pre-hearing submissions, and certain other issues that frequently arise in the course of an arbitral hearing, including the practical treatment of New York law in the usual form of a Bermuda Form case. After all the evidence has been adduced, and where time permits, a tribunal will sometimes invite each side to present written closing arguments. In other cases, no written closings are served and the parties simply proceed to address the tribunal with oral argument on the applicable law and as to the findings that the tribunal should make, based on the evidence heard by the tribunal.
Awards
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

Once the substantive hearing has been concluded, as discussed in Chapter 20, the tribunal has the responsibility of deciding the dispute and delivering an award. This chapter addresses issues arising in connection with the award process in England and Wales under the Arbitration Act 1996 and is primarily intended to be of assistance to arbitrators as to the options that might be available to them in preparing an award in an arbitration under the Bermuda Form. Topics discusses include the duties of the tribunal; final, partial, and interim awards; the finality of awards and possible avenues of review; consequences of bifurcated arbitrations; and finality of interim awards.
The Mayaguez Incident—1975
Authors: Ronzitti Natalino
Published: July 2018

This Chapter takes into consideration the Mayaguez incident, which occurred on 12 May 1975, immediately after the end of Vietnam war. The Mayaguez was a US cargo vessel accused by Cambodia of carrying out an espionage mission during its navigation off the Cambodia coast and for this reason boarded and captured by the Cambodian gunboats. The US, after having erroneously qualifying the capture as an act of piracy, intervened in rescue of their nationals and recovered the ship. The precedent raises several legal issues ranging from the law of espionage to the legality of forceful measures taken by the coastal State in its territorial sea and/or in its adjacent waters. However, the main legal value of the Mayaguez incident arises from the fact that it is considered a precedent for testing the validity of the doctrine of using armed force for rescuing nationals abroad.
The Ugandan–Tanzanian War—1978–79
Authors: Chan Kenneth
Published: July 2018

This chapter examines the conflict between Uganda and Tanzania, which resulted in the removal of President Idi Amin as head of state in the late 1970s. The initial passage lays out the facts of the case before considering the legal positions presented by the main parties to the conflict and the reactions of the international community. The final section assesses the broader international law implications of the episode. Although the legal justifications provided for Tanzania's actions by its government were vague and wide-ranging, in light of the massive human rights violations being committed by Amin, Tanzania's actions have been historically viewed as an early humanitarian intervention effort. This claim is however only somewhat supported on the facts. Ultimately, the international community's willingness to overlook the illegality of Tanzania's invasion and violation of Uganda's sovereignty (which far exceeded the scope of its right to self-defense) can be understood as a matter of political convenience, wherein the removal of a notoriously difficult head of state was viewed as a politically and morally desirable outcome.
The Lebanon War—1982
Authors: Williamson Myra
Published: July 2018

This chapter analyses the context and legality of Israel’s invasion of Lebanon, also referred to as the First Lebanon War and ‘Operation Peace for Galilee’. It began on 6 June 1982 and became an 18-year-long occupation, ending on 22 May 2000. The first section discusses the immediate pretext for Israel’s invasion—the attempted assassination in London of the Israeli Ambassador to Britain, Schlomo Argov, by Abu Nidal terrorists—as well as the more complex causes, such as the political animosity between Israel, Lebanon, Syria and the PLO. Section two analyses the positions of the main antagonists—Israel, Lebanon and the PLO—as well as other interested parties (the US, the UN Security Council and the UN General Assembly). The third section addresses the legality of Israel’s use of force, citing the arguments of scholars on both sides of the debate. Finally, the chapter assesses the precedential value of this use of force, in light of the Security Council’s refusal to accept that the attempted assassination was an ‘armed attack’ and its condemnation of the Israeli aggression.
‘Operation Phoenix’, the Colombian Raid Against the FARC in Ecuador—2008
Authors: Pinto Mónica , Kotlik Marcos
Published: July 2018

This contribution examines the 2008 operation conducted by Colombia against a camp of the Revolutionary Armed Forces of Colombia (FARC) located in the territory of Ecuador. It sets out the facts, the legal positions of both countries, the reactions of other governments in the continent, and how the situation was addressed within the Organization of American States and the Rio Group. It then analyses the operation in light of discussions about the possible exercise of the right to self-defence against non-state actors. The closing section suggests that, although the political cost for Colombia was relatively low, this case contributes to a restrictive interpretation of the right, to self-defence based on the inviolability of territorial integrity.
US Extra-Territorial Actions Against Individuals: Bin Laden, Al Awlaki, and Abu Khattalah—2011 and 2014
Authors: Kretzmer David
Published: July 2018

This chapter discusses the targeted killing by the US of Osama bin Laden in Pakistan and of Anwar al Awlaki in Yemen, and the capture of Ahmed Abu Kattalah in Libya. It presents the facts and context of the actions, the legal position of the US and other protagonists and reactions in the international community. It proceeds to discuss the arguments for and against the legality of these extra-territorial actions by the US under law regarding use of force (but not under ius in bello). In the final section it is argued that rather than having precedential value the actions and reactions in these cases serve to emphasize the wide gap that exists in the different perceptions of states and scholars regarding the law on the extra-territorial use of force against terrorist groups or other groups of non-state actors.
The Ethiopian Military Intervention in Somalia—2011
Authors: Martin Jean-Christophe
Published: July 2018

This contribution focuses on Ethiopia’s intervention in Somalia in October 2011 in order to fight Al-Shabaab. Since this intervention was not authorized by the UN Security Council, its legality needs to be assessed through the question of Somalia’s consent, expressed by the Transitional Federal Government. It can be assumed that this government validly consented to the intervention, which was also supported at the IGAD level. Indeed, not only was the Transitional Federal Government internationally recognized as the representative of Somalia, it also exercised effective control over the state’s territory.
Threats of and Actual Military Strikes Against Syria—2013 and 2017
Authors: Lagerwall Anne
Published: July 2018

This chapter examines the threats of military intervention expressed by the United States, the United Kingdom and France in reaction to the use of chemical weapons during an attack in the Ghouta area of Damascus in 2013 as well as the military strikes launched by the United States following the use of chemical weapons during an attack in the Khan Sheikhun area of Southern Idlib in 2017. After recalling the facts and context of the Syrian crisis, it studies the legal positions of the main protagonists (the United States, the United Kingdom and France) and the reactions of third States and international organisations. The final section analyses the envisaged and actual intervention’s precedential value and its impact on the jus ad bellum. It argues that targeting the military assets of a sovereign State as a reaction to violations of international law that this State has supposedly committed is far from being unanimously accepted from a legal point of view.
The Saudi-led Military Intervention in Yemen’s Civil War—2015
Authors: Ferro Luca , Ruys Tom
Published: July 2018

This chapter addresses the intervention in Yemen’s civil war launched by Saudi Arabia on 26 March 2015. The intervention was supported by Gulf Cooperation Council and other Arab countries, and received technical and logistical support from the United States and the United Kingdom. After retracing the origin and development of the internal conflict, the contribution provides an overview of the legal positions of its main protagonists and the reaction (or lack thereof) by other States. Closer scrutiny of the operation’s legality nonetheless reveals that the self-defence justification, which is primarily relied upon, does not provide a convincing legal basis. Moreover, the intervention is problematical from the perspective of the intervention by invitation doctrine and exposes its indeterminacy and proneness to abuse. As a result, the authors argue in the final section that if the concept of ‘counter-intervention’ (as a possible exception to the prohibition on intervention during civil war) is to be more than an empty shell, it should be subject to a proportionality test.
Analogous Provisions and Avoidance Techniques
Authors: Halson Roger
Published: July 2018

This chapter first examines the provisions that operate in a similar way to a stipulated damages clause. These include advance payments, forfeiture clauses, and deposits. As these analogous provisions are either subject to a different, or no, regulatory regime they are often the basis of ‘avoidance techniques’ used deliberately to evade the restrictions of the penalty rule. These techniques are examined in the second part of the chapter. The final section outlines some general guidance about the drafting of clauses which will be subject to review. The general points discussed are supported by reference to the relevant case law considered elsewhere in this book that inform, or are essential background to, the guidance offered.
Statutory Framework for UK Financial Services Regulation
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the statutory framework for financial services regulation in the UK. The regulatory reforms that culminated in the break-up of the Financial Services Authority (FSA) and the return of regulatory responsibilities to the Bank of England have complicated but in many ways reinforced the original vision of a consolidated statutory framework for all financial services regulation under the Financial Services and Markets Act 2000 (FSMA). The FSMA is undoubtedly more complicated because of the need to accommodate collaboration between the Financial Conduct Authority (FCA) and the Bank of England acting as Prudential Regulation Authority (PRA). The chapter provides an overview of the structure and statutory framework of the FSMA as well as the functions of the FCA and the PRA. It also considers the scope of financial services regulation under the FSMA and the confidentiality of information obtained by the FCA and the PRA in the discharge of their functions.
European Financial Services
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the evolution of the European Union' financial services law and its impact on the development of financial services law in the UK, as it stands at the end of 2016, six months after the EU referendum. It first describes the evolving role and functions of the EU institutions, namely: the Council of Ministers, the European Commission, the European Court of Justice, and the European Parliament. It then considers the primary sources of EU law, including treaties, and the effects of the various changes in the Treaty of Rome. It also discusses the establishment of the single market in financial services and the moves to establish a banking union. Finally, it analyses the substantive financial services measures that have been adopted in the EU since the 1970s.
Financial Redress—Complaints, Disputes, and Compensation
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the regulatory procedures for handling consumer complaints involving financial services firms as well as the process of dispute resolution and compensation available to complainants. In particular, it discusses the role of the Financial Ombudsman Service (FOS) and the Financial Services Compensation Scheme (FSCS), introduced under the Financial Services and Markets Act 2000 (FMSA). It also considers the functions of the Financial Conduct Authority (FCA). The chapter first provides an overview of the DISP Rules, which contain the complaint handling requirements for firms, before describing major sources of complaints against financial services firms, including Payment Protection Insurance (PPI). It then analyses financial redress by the FCA in the form of restitution, injunctions, industry review, and a ‘qualifying parent undertaking’. It also looks at the statutory frameworks of the FSO and the FSCS.
Market Abuse
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the market abuse regime designed to protect and maintain orderly financial markets in the UK. It first provides an introduction to market abuse before discussing the development of the market abuse regime and the provisions of the European Union Market Abuse Regulation (EU MAR). It then considers the range of civil offences under the market abuse regime, including offences committed before EU MAR took effect, as well as the legislative and regulatory rule changes that were required in the UK to implement EU MAR. It also explains the distinction between criminal prosecution and civil action by the Financial Conduct Authority (FCA), the obligations to detect and prevent market abuse, and the range of sanctions that can be imposed by the FCA for breaches of EU MAR. The chapter concludes with an analysis of enforcement trends, the mood of the regulator and future developments relating to market abuse.
Banks and Banking
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the statutory regime for the regulation of banks and banking in the UK. It first considers the development of UK banking supervision before discussing the traditional nature of bank supervision and the role and function of the Bank of England. It then reviews earlier and more recent crises in UK banking markets, including with regard to Northern Rock, and the circumstances surrounding the transfer of responsibility for bank supervision initially from the Bank of England to the Financial Services Authority (FSA) and then from the FSA to the Prudential Regulation Authority. It also analyses the main provisions contained in the Bank of England Act 1998, later amendments under the the Banking Act 2009 and the Financial Services Act 2012, and relevant sections of the Financial Services and Markets Act 2000 (FSMA). Finally, it explores the most recent changes announced with regard to ring-fencing, recovery planning, and resolution.
Insurance Regulation
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the statutory regime for the regulation of insurers as well as intermediaries and brokers dealing with insurance products. It first provides an overview of terminology and categorisation of insurance under European Union legislation and UK regulation before discussing the evolution of the regulatory approach to insurers. It then considers EU law and UK law on insurance and reinsurance, along with the relevant provisions of the Financial Services and Markets Act 2000, Contracts (Rights of Third Parties) Act 1999, and other applicable legislation. It also analyses insurance regulation under the Financial Ombudsman Service and the Financial Services Compensation Scheme. Finally, it assesses the influence of EU legislation on the structure and much of the detail of the UK regulatory regime for insurance.
Wholesale Investment Firms
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the UK regulatory framework governing wholesale investment firms. It first provides a brief historical overview of the evolution of regulation with respect to investment firms, from the Anderson Report to the Bodkin Report, the Prevention of Fraud (Investments) Acts 1939/1958, and the Gower Report. The chapter proceeds by discussing the Investment Services Directive 1993, the Financial Services and Markets Act 2000 (FMSA), and the Financial Services Act 2012. It also considers the current state of financial services regulation in the European Union by focusing on the Markets in Financial Instruments Directive and the European Markets Infrastructure Regulation. Finally, it analyses the Prudential Regulation Authority's (PRA) Fundamental Rules and the Financial Conduct Authority's (FCA) Principles for Businesses, financial promotions and client communications under FMSA, and rules on dealing in securities and conflicts of interest.
Retail Investment Firms
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the UK regulatory framework governing retail investment firms. It begins with a discussion of financial scandals related to mis-selling of pensions, mortgage endowments and payment protection insurance. It then considers the changing regulatory environment for investment business, the general principles of conduct for investment firms, and the question of whether a representative or intermediary is under a duty to provide accurate or adequate information or has a duty to advise as to the suitable course of conduct. It also analyses the relevant provisions spelled out in the Conduct of Business Sourcebook (COBS) and the Markets in Financial Instruments Directive before concluding with an analysis of the effect of the legal ‘cut-over’ from the Financial Services Authority to the Financial Conduct Authority (FCA).
Home Finance Transactions
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the regulatory regime for building societies in their capacity as lenders and for home finance transactions, which includes lending on mortgage secured on domestic property, home purchase business, and home reversion business. It begins with a discussion of the supervision and regulation of building societies before the Financial Services and Markets Act 2000 (FSMA) and under FSMA. It then considers some key developments relating to the regulation of mortgage and home finance business, including the European Commission's introduction of the Mortgage Credit Directive and the replacement of the Financial Services Authority by the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA). The chapter also analyses the regulation of the consumer buy to let mortgage business, home reversion plans, home purchase plans, and regulated sale and rent back agreements before concluding with a review of the Prudential Sourcebook for Mortgage and Home Finance Firms and Insurance Intermediaries.
Consumer Credit
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter focuses on the regulation of consumer credit in the UK. It first traces the history of the regulatory framework for moneylending, with particular emphasis on the Consumer Credit Act 1974 (CCA 1974) and the Financial Services Act 2012, the latter of which led to the transfer of consumer credit regulation to the Financial Conduct Authority (FCA). It explains how regulatory powers over consumer credit (and hire) activity came to be exercised by the FCA under the Financial Services and Markets Act 2000 (FSMA) and how consumer credit advertisements (and quotations) are regulated under the FSMA's ‘financial promotion’ regime. It also reviews the special terminology used by the CCA 1974 such as credit, consumer credit agreement, and running account credit. Finally, it examines regulated activities relating to consumer credit and special regulatory control applicable to consumer credit.
Financial Collateral
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter discusses the significance of distinguishing between the various types of property over which security may be taken, or which may be the subject matter of a retention of title or other quasi-security device, since the same general principles will be applicable whatever the nature of the property. There are also differences between the various kinds of property, which will mean that the way the law applies in practice will differ. Thus, a charge over either ‘inventory’ such as stock in trade or raw materials will in practice usually have to be a floating charge rather than a fixed one; the chapter shows how it is very difficult to take and maintain a fixed charge over book debts or other receivables.
Rights Not Including the Transfer or Retention of Title
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter talks about how set-off is the process by which a claim is reduced or eliminated upon account being taken of a cross-claim. Set-off comes in a number of different forms arising by operation of law. Some of these forms may be expanded or abbreviated (even eliminated) by a contract between the relevant parties. There are also several rules that bear a close resemblance to set-off but that technically are, or may be, distinct. These include the ability of a buyer, receiving defective goods, to deduct a sum representing their diminished value from the purchase price claimed by the seller if he has not already paid the price; the adjustment at intervals of a running account between two parties; and the contractual netting processes that take place in financial and other markets.
Registration and Other Perfection Requirements
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter looks at how the expression ‘perfection’ is a useful way to describe steps that a secured creditor has to take in order to be able to make the security effective against other secured creditors, trustees in bankruptcy, and company liquidators or administrators. The methods of perfection set out in Revised Article 9 of the Uniform Commercial Code consist of possession, control, and registration. Care must be taken, however, in applying the concept of perfection to English law. First, Article 9 requires that every security interest be perfected, although for some types of security interest no extra step is needed beyond the security being agreed and attaching to the collateral. Second, the steps needed to be taken to register, as well as those needed to obtain control, are different to those required in English law.
Interests Created by Companies
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter examines how, when a company creates a charge, particulars of it and a certified copy of any charge instrument must be delivered for registration within twenty-one days of the creation of the charge, unless the charge is exempt from registration either under the Companies Act 2006 itself or other legislation. The registrar must register the documents if they are delivered by either the company or by any person interested in the charge (typically, the secured creditor) within twenty-one days of the charge being created. The chapter also shows how clauses in floating charges that prohibit or restrict the company from creating further security that will rank equally with or ahead of the charge are now registrable.
General Priority Rule: Nemo Dat (First in Time to be Created Wins)
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter explains how the basic principle of priority between all kinds of interest is that of nemo dat quod non habet. In the context of priority disputes this is often referred to as the principle that the first in time to be created wins. There are various justifications for this rule in addition to longevity. First, there is the intuitive idea that one cannot give what one has not got. If one owns an asset and gives it to another, one no longer owns it and has nothing to give to someone else. Second, one can argue that if the basic rule were not first in time, parties would normally so arrange their affairs in any case so that priorities, at least between security interests, operated on this basis.
Other Priority Issues
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter considers the priority conflict between creditor interests and another creditor’s security interest or title retention right. The availability of set-off rights to a debtor is not usually expressed as presenting an issue of priority in respect of that debt when debt is assigned by the creditor. This is because the debtor is not asserting a proprietary interest in its own indebtedness when claiming to set-off, against the assignee, the claim that it has against the assignor. For instance, if A owes money to B and B assigns that debt in favour of C, whether outright or by way of charge, A will be entitled to rights of set-off so long as, in the case of legal set-off, A’s entitlement to do so does not arise after A has notice of the assignment in favour of C.
Conflict of Laws
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter details how, in respect of security in the narrow sense, as well as in the more extended sense that includes title-based financing, the law of secured transactions raises issues that may be either contractual or proprietary in nature. It deals with cross-border issues in two main areas: first, the choice of law rules for contract and personal property; and second, uniform substantive law pertaining to contract and personal property and located in international conventions. The chapter also shows how the characterization of an issue arising out of a transaction as contractual or proprietary in nature, for the purpose of selecting the appropriate choice of law rule, is not an easy matter.
Criticism and Reform Proposals
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter discusses how aspects of law governing security over personal property, and especially the registration requirements for company charges and for bills of sale and the rules of priority, have been criticized for many years. There has been a series of reports recommending reform; some of these have recommended amendments to the Companies Act and the rules of priority of charges registered under the Act. Meanwhile, others have proposed more radical reforms that would replace both the Companies Act and the Bills of Sale Acts with a ‘notice filing’ scheme based on Article 9 of the United States Uniform Commercial Code and subsequently adopted, with slight variations, in many Canadian provinces and New Zealand.
Introduction
Authors: Scherer Maxi
Published: July 2018

This chapter discusses energy arbitration and its importance on an international level. Given the important economic, political, and societal issues at hand, energy-related disputes arise frequently throughout the world, and arbitration has been the most popular means to resolve international disputes in the energy sector. The chapter provides a non-exhaustive list of common features of energy projects, revealing their inherent complexity and thus the need to approach energy-related disputes in a holistic fashion. It also stresses the importance of arbitration to resolve international energy-related disputes.
Energy Investor-State Disputes in Russia and the Commonwealth of Independent States
Authors: Asoskov Anton
Published: July 2018

This chapter looks at the most prominent cases under the Energy Charter Treat (ECT) involving the Russian Federation, and their fate in annulment actions before the Dutch courts. Recently, the ECT became the most discussed international instrument in Russia due to the large-scale arbitrations initiated by the former Yukos shareholders against the Russian Federation. The chapter also discusses the use of some lesser known multilateral investment treaties and analyzes their possible bases for arbitrating energy investment disputes involving the Russian Federation or other states from the Commonwealth of Independent States (CIS). It further describes recurrent issues and cases rendered on the basis of BITs signed by the Russian Federation, or specific legislation on the protection of investments existing in the Russian Federation and other CIS states. Finally, the chapter deals with the question as to what extent Russian state-entities may enter into individual investment agreements containing an arbitration clause.
Respect for the Law of the Receiving State
Authors: Muñoz Mosquera Andrés B
Published: July 2018

This chapter examines the duty to respect the law of the Receiving State, as laid out in the UN Model SOFA and the NATO SOFA. Despite, or perhaps because of, its importance, the duty to respect the law of the Receiving State has been the subject of much discussion and controversy over the years. Views have ranged from the position that the Visiting Forces are not bound by the law of the Receiving State and its procedural requirements but are only required to respect the purposes and aims of the law, to the position that Receiving State law applies to the Visiting Forces which must accordingly respect it. Art. II NATO SOFA does not contain any statement about the application or non-application of Receiving State law. For this reason it is necessary to take a 360-degree look at the question of the respect of the law of the Receiving State.
Members of Visiting Forces
Authors: Hartov Mette Prassé
Published: July 2018

This chapter provides a proposed scope of application of the NATO SOFA and compares this to other agreements. In the NATO SOFA, the definition of a ‘force’ covers both collective military units and individuals in active service and assigned to the military line of command. Nationality is not a condition to be met as a ‘member of a force’. The member of the armed service of one party must be present on the territory of another contracting party to fall within the definition, and as such, Receiving State personnel are excluded from the definition of a ‘force’. The force must furthermore be operating in the North Atlantic Treaty area. Finally, the member of the force must be present on the territory of another party in connection with official duties. This condition, particularly, has generated discussion in NATO SOFA practice.
Civilian Components
Authors: Muñoz Mosquera Andrés B , Chalanouli Nikoleta
Published: July 2018

This chapter addresses the civilian components accompanying Visiting Forces. For these components, the privileges and immunities of the UN and those specific of the mission apply. This mission immunity is essential for an impartial and effective performance of the specific UN mandate, which is ‘a prerequisite for the success of the mission’. The legal framework for these privileges and immunities has to be sought in Art. 105 of the UN Charter, which consecrates the principle that the UN officials shall enjoy in the territory of each of its members such privileges and immunities as are necessary for the fulfilment of UN purposes in order to be independent in the exercise of their functions. On the other hand, the 1946 Convention on Privileges and Immunities of the United Nations has not come to bring a common understanding on to whom it applies when peacekeepers are involved.
Contractor Personnel
Authors: Voetelink Joop
Published: July 2018

This chapter explores the rights and obligations of contractors under contemporary status-of-forces agreement (SOFA) provisions with a particular emphasis on criminal jurisdiction. Initially, it describes the origin of civilian involvement in military operations and discusses it from a historical perspective. The focus then turns to present day practice. First, the term contractor is explained and defined. Next, the post-Cold War practice with respect to the legal status of contractors and their employees is explored by taking the example of SOFAs concluded by States and organizations that are in particular involved in contractor support of deployed operations, i.e. the US and NATO, UN, and EU. The chapter then analyses current SOFA practice by comparing the position of contractors and troops under international law.
Entry and Departure of Visiting Forces
Authors: Fleck Dieter
Published: July 2018

This chapter details the arrangements typically made for the entry and departure of foreign military personnel. Entry and departure provisions in the UN Model SOFA and the NATO SOFA are very similar. The prerequisite for lawfully entering into and departing from a foreign State is the prior permission by its government. While such permission is generally included in a visa, specific regulations have been developed to facilitate the procedure, ranging from the verbal permission given by a border guard at the point of entry to standard permission for the nationals of certain countries to enter the territory of others. More specific arrangements have been made for foreign armed forces to regulate the entry of their personnel into the participating State.
Travel and Transport
Authors: Black-Branch Jonathan L
Published: July 2018

This chapter looks at the duties and rights concerning freedom of movement. The successful implementation of any UN or NATO mission is largely dependent on the ability to travel and make use of transport or what may be referred to as mobility rights and free movement. The ability to travel as freely and easily as possible invariably assists in accomplishing the mandate. As basic as this may sound, the movement of Visiting Forces within a Host State has raised a number of problems and remains a contentious issue. This is due in part because of the potential causing damage to the environment as well as Visiting Forces becoming involved in conflicts with local residents. Indeed, the circumstances that Visiting Forces face today have changed drastically since World War II.