bluuebunny/crossref_metadata_2025 huggingface dataset:
Part III Recognition and Enforcement, 18 Brussels and Lugano: Grounds for Refusal of Recognition and Enforcement of Judgments
Authors: Trevor C Hartley
Published: January 2018

The general rule in Brussels 2012 and Lugano 2007 is that all judgments from other Member States or Lugano States must be recognized unless there is a reason why they should not be. This chapter discusses those reasons. The grounds for refusal set out in the instruments apply to both recognition and enforcement of a judgment. However, in the case of enforcement, the judgment-debtor may also invoke grounds that apply under national law for the non-enforcement of national judgments — for example, that the judgment has been satisfied. This is not possible with regard to recognition: recognition may be refused only on the grounds set out in the instruments. The principal grounds are set out in Brussels 2012, Article 45, and Lugano 2007, Articles 34 and 35.
Part III Recognition and Enforcement, 19 Brussels and Lugano: Authentic Instruments and Court Settlements
Authors: Trevor C Hartley
Published: January 2018

This chapter deals with the enforcement of two special kinds of legal instruments: authentic instruments and court settlements. Both are contracts and derive their validity from the consent of the parties. They normally acknowledge the indebtedness of one party to the other. Court settlements are usually concluded to put an end to a dispute. The special feature of both instruments is the way in which they are concluded, and it is this which gives them a special status in the country of origin, often equivalent to res judicata. What is striking about the provisions on these instruments in Brussels and Lugano is that the enforcement of an authentic instrument or court settlement originating in one Member State (Lugano State) is virtually automatic in other Member States (Lugano States): public policy is stated to be the only ground on which it may be contested.
Part IV Procedural and Systemic Issues, 24 Arbitration
Authors: Trevor C Hartley
Published: January 2018

This chapter considers the impact of Brussels 2012 and Lugano 2007 on arbitration. It begins by discussing Brussels 2012, Article 1(2)(d) which states: ‘This Regulation shall not apply to ... arbitration’. The key word is ‘apply’. In the context, this means that Brussels 2012 does not purport to regulate arbitration. Its purpose is to regulate litigation — it ‘applies’ to that — but it does not ‘apply’ to arbitration. The remainder of the chapter discusses the development of the law and the present law, covering the validity of an arbitration agreement, recognition of the judgment, court proceedings ancillary to arbitration, and recognition of judgments and awards.
Sources of International Law in the Nineteenth-Century European Tradition
Authors: Mälksoo Lauri
Published: January 2018

This chapter examines how international lawyers arrived in 1920 at the codification of Article 38 in the Statute of the Permanent Court of International Justice (PCIJ, later ICJ). The codification is explained as a victory of legal positivist ideas over natural law concepts. An overview of the positions defended in the late nineteenth-century literature of international law demonstrates that the codification largely reflected predominant ideas in the European tradition of international law. Here, legal positivism had undertaken a quite successful attack against natural law. Thus, when comparing the predominant views on sources of international law in the nineteenth century and in the twenty-first century, the differences in the practice of international law must be kept in mind.
The History of Article 38 of the Statute of the International Court of Justice
Authors: Fitzmaurice Malgosia
Published: January 2018

This chapter analyses the history of Article 38 of the International Court of Justice (ICJ) Statute. It also seeks to reflect on the Article’s current status. The main focus of this chapter is to look at sources of international law through the prism of their historical development, including potential ‘new’ sources (acts of international organizations, unilateral acts of States, soft law) which have emerged long after the twelve ‘wise men’ of the Advisory Committee of Jurists had completed their task of drafting Article 38. The chapter also deals with the ‘classical’ sources of international law, such as customary international law and general principles of law. It takes into account how various courts and tribunals approach these sources.
Sources in the Meta-Theory of International Law
Authors: Kemmerer Alexandra
Published: January 2018

This chapter argues that a meta-theoretical approach to sources opens reflexive spaces, situates theories in time and space, and allows for a contextual interpretation of sources. Drawing on the hermeneutic philosophy of Hans-Georg Gadamer and the writings of his most perceptive readers in international law, the chapter develops a concept of reflexive situatedness. Following the traces of international law’s current ‘turn to interpretation’ and a reading of international law as ‘hermeneutical enterprise’, the chapter’s assessment of the limits and potentials of Gadamerian philosophical hermeneutics prepares the ground for an analysis of the writings of international lawyers who have developed theories of international legal interpretation inspired by his work. Gadamer’s conversational hermeneutics moreover opens new perspectives for a contextual theory and praxis of international legal interpretation. Such would allow for a more nuanced and dynamic understanding of sources and their interpreters within their respective interpretative communities.
Sources and the Normativity of International Law
Authors: Roughan Nicole
Published: January 2018

This chapter asks what role the sources of international law can play in establishing or generating the normativity of international law. While sources of law are typically treated as determinants of the validity of international legal norms, this chapter argues that the normativity of international law is not co-extensive with the idea of legal validity. The chapter first develops a series of jurisprudential arguments which treat the full normativity of law, including international law, as dependent upon both the procedural and substantive values of its norms. It then turns to international law specifically, arguing that the sources of international law can contribute towards international law’s full normativity only if they carry forward values that respect the autonomy and responsibility of those who are subject to the law. The chapter finally concludes with a discussion of the normativity-generating potential of first treaties and custom.
Sources of International Humanitarian Law and International Criminal Law
Authors: van Steenberghe Raphaël
Published: January 2018

This chapter analyses the specific features which characterize the sources of international humanitarian law (IHL) and international criminal law (ICL). It first examines those which are claimed to characterize IHL and ICL sources in relation to the secondary norms regulating the classical sources of international law. The chapter then looks at the specific features of some IHL and ICL sources in relation to the others of the same field. Attention is given particularly to the Rome Statute of the International Criminal Court and the impact of its features on other ICL sources, as well as to the commitments made by armed groups, whose characteristics make them difficult to classify under any of the classical sources of international law. In general, this chapter shows how all those specific features derive from the specific fundamental principles and evolving concerns of these two fields of international law.
Sources of International Trade Law
Authors: Regan Donald H.
Published: January 2018

International trade law is overwhelmingly treaty-based. For practical purposes, the unique traditional ‘source’ of WTO law is the WTO treaty. But treaties require interpretation, and there are many controversial questions about what might be called the ‘sources for treaty interpretation’. What materials can be used to interpret a treaty, and how are they to be used? The standard source for answering these questions, especially in the WTO, is the Vienna Convention on the Law of Treaties (VCLT). This chapter discusses a fundamental, and largely overlooked, question about the structure of the VCLT—the rationale of the distinction between Articles 31 and 32 of the VCLT. The answer is central to understanding the individual provisions of these Articles.
Sources of International Law in Domestic Law
Authors: Ryngaert Cedric
Published: January 2018

This chapter maintains that as both municipal and international law use legal norms to regulate social relationships, a space for inter-systemic interaction between both legal spheres emerges. Municipal legal practice can have an ‘upstream’ impact on the formation of the content of the sources of international law, where these require proof of State practice and/or opinio juris for valid norms to be generated. Particularly, domestic court decisions can have a jurisgenerative effect on customary international law, where they become part of a transnational dialogue between domestic and international courts on questions of international law determination. Admittedly, this dialogical process is hamstrung by the particularities of domestic law and the hard-to-eradicate selection bias of international law-appliers. However, a more objective comparative international law process can be grounded, geared to effective problem-solving guided by the persuasiveness and quality of reasoning of municipal court decisions relevant to international law.
Standard Form Contracts, Public Policy, and the Realms of Strict Construction and Strict Compliance
Authors: McMeel Gerard
Published: January 2018

This chapter introduces standard form contracts and the issues of construction to which they give rise. Such documents contain all species of contractual terms. However, in standard contractual texts the focus tends to be on exemption clauses, which have generated a great wealth of case law. The concern about standard forms generally and exemption clauses in particular is that they may not reflect a genuine bargain where the terms are drafted or chosen by one of the parties and are proffered on a ‘take-it-or-leave-it’ basis. This is particularly true of business-to-consumer dealings. However that stereotype of standard forms has been resisted where it is clear that both parties are commercial actors of relatively equal bargaining power.
Maxims
Authors: McMeel Gerard
Published: January 2018

This chapter explores some Latin maxims embodying supposed rules of construction. Traditional accounts of the interpretation of deeds and contracts are notoriously replete with such maxims. In the twenty-first century, when the judiciary has made it clear that the courts are less hospitable to legal Latin, it is unsurprising that once-familiar maxims are fading from the scene. Nevertheless it is necessary to examine these traditional rules in order to determine whether any of them still have a contribution to make to the construction of instruments. Moreover, it is suggested that in the modern law such canons have the potential to be reformulated in one of two ways.
Implied Terms in Fact
Authors: McMeel Gerard
Published: January 2018

This chapter is concerned with the terms implied in fact, concentrating on the tests which the courts have articulated and employed, and providing some representative examples. This branch of the implication of terms is grounded on ascertaining the intentions of the parties, albeit an objective approach is deployed. Accordingly the implication of such terms is similar to, but distinct from, the ordinary process of interpretation of the express terms of a written contract. The chapter introduces the theory that ‘implication in fact’ is a species or sub-branch of construction, alongside the interpretation of the express terms. However, whereas the interpretation of the express language of the contract depends upon the perspective of the reasonable person trying to make sense of the instrument, traditionally the authorities on implied terms in fact insist on a threshold standard of necessity before any term is implied into a particular contract.
Custom and Usage
Authors: McMeel Gerard
Published: January 2018

This chapter examines the role of custom and usage in English contract and commercial law. Traditionally, custom and practice have been trumpeted as a fruitful source of principles and rules in this field. Moreover, evidence, and in particular expert evidence, may be given of custom or usage for either of two purposes: first, as an aid to the construction of the contract, supplying evidence of the commercial background; secondly, as the source of an implied term. The chapter examines the modern developments on supplying evidence. It tackles questions as to whether the expense and formality of expert evidence is appropriate for supplying such factual matrix, as opposed to formal proof of custom.
Parties, Third Party Effects, and Clauses Precluding Assignment
Authors: McMeel Gerard
Published: January 2018

This chapter considers three contexts concerning the parties to the contract and the wider impact of the transaction. First, the chapter examines the rules on identifying the parties. Here, emphasis is placed on the ability to identify the parties as crucial to the question of certainty—that it is a contract that can be enforced by the courts. Secondly, this chapter considers issues of construction arising from the recent reform of privity of contract by the Contracts (Rights of Third Parties) Act 1999. Finally, it considers the efficacy of attempts by the parties to limit the transferability or assignability of the benefits created by the contract.
Rectification and Correcting Mistakes through Construction
Authors: McMeel Gerard
Published: January 2018

This chapter concerns the equitable remedy of rectification of documents. This remedy is one which rewrites or amends documents where there is a mismatch between the parties' actual agreement and the instrument which purports to record it. The ultimate rationale of this equitable supplement to the common law is the strongly objective approach which the law takes to the formation of contracts, and the interpretation of agreements which are reduced to writing. The primacy which English law gives to the documentary contract, coupled with the strongly objective interpretative principle, are celebrated as one of the great strengths of English contract and commercial law, promoting the virtues of certainty and predictability. Accordingly, rectification of documents to accord with the parties' mistaken belief that the written word corresponds to their actual agreement acts as a subjective qualification or ‘safety valve’ to the objective principle to meet the justice of such cases.
Time Stipulations
Authors: McMeel Gerard
Published: January 2018

This chapter examines contractual timetables, which are a significant source of disputes. The rules here involve issues of performance, breach, and remedies. The question whether or not time is of the essence moreover lies at the heart of this topic. In the modern law this generally equates to the question whether as a matter of construction or characterization a particular (time) stipulation is a condition or fundamental term, such as to justify termination by the other party in the event of breach. In addition, a distinct power exists where time is not initially of the essence (or it is unclear whether it is) for a party to serve post-contractual notice in appropriate cases of unreasonable delay, making time of performance of the essence, which does not depend on construction or characterization techniques.
The Integrity of the Instrument
Authors: McMeel Gerard
Published: January 2018

This chapter examines the approach of the courts to ‘entire agreement’ and ‘non-reliance’ clauses. Such clauses seek to protect the integrity of the instrument. Modern commercial contracts have spawned a cluster of provisions intended to protect the integrity of the written instrument itself. They do so by restricting its easy modification and the parties' recourse to extra-contractual remedies—clauses requiring variations or waivers to be in writing or evidenced by signatures of senior personnel, clauses negating reliance on statements during negotiations, and entire agreement clauses. The chapter shows that whilst these clauses cannot wholly negate the characterization of the question of whether the agreement is integrated in writing as an issue of fact, they may have the effect of making a judge more sceptical of arguments that the agreement is to be found partly inside and partly outside the four corners of a document.
Evidence and Practice
Authors: McMeel Gerard
Published: January 2018

This chapter describes the modern law on what is meant by ‘in writing’, a ‘document’, a ‘copy’, and a ‘signature’. Traditionally a party was usually required to prove a document by production of the original, together with the evidence of any witnesses. Such formalism is now a matter of history, as a broad and permissive approach is taken to documentary evidence in modern civil proceedings. The law of evidence had grown up in the context of a division of labour between the judge and the jury in both civil and criminal trials. By the eighteenth century a series of exclusionary rules developed to keep certain matters from the jury. These exclusions were in some accounts united by an underlying principle insisting on the ‘best evidence’ available. The chapter explores the rise of this best evidence rule and turns to the procedures for determining issues of construction.
Remedies
Authors: Bridge M G
Published: January 2018

This chapter deals with remedies for breach of contract to the extent that they have a particular application to international sale of goods agreements. Attention is given to termination for breach and damages. Even here, however, certain aspects (for example, penalty clauses) are left to general works on contract and sale of goods. This chapter also examines clauses in standard form contracts dealing with the quantification of money awards; they commonly depart from the common law and statutory basis for assessing damages. In addition, though they fall outside breach of contract, the chapter also looks to certain settlement clauses, operative in the event of an insolvency or of a circle appearing in the sales string.
The UN Sale Convention (CISG)
Authors: Bridge M G
Published: January 2018

This chapter is an overview of the Convention on the International Sale of Goods (CISG) and its general issues. As uniform law, the CISG, when implemented in the Contracting State and to the extent that it is applicable, displaces both that State's domestic law and private international law rules concerning the sale of goods. Uniform substantive law like the CISG is to be distinguished from uniform private international law conventions and from transnational regulations. The CISG lays down a substantive law to be applied regardless of where a dispute is litigated. Reservations apart, the same law will be enacted in identical terms by each Contracting State.
Remedies for Breach of Contract
Authors: Bridge M G
Published: January 2018

This chapter builds on the previous chapter's discussion in drawing distinctions between the CISG and English law. This time the chapter considers the remedies for a breach of contract. In the event of non-performance by one of the contracting parties, various remedies are made available to the other under the CISG, largely recognizable by a common lawyer if not always available in the circumstances and to the same extent in English law. There is, however, a major structural difference that should be observed from the outset. English law draws a sharp distinction between breach of contract and the effect on a contract of impossibility or frustrating circumstances.
1 Theoretical Underpinnings of Sovereign Debt
Authors: Hayk Kupelyants
Published: January 2018

Chapter 1 sets out the theoretical underpinnings of sovereign borrowing and litigation. It first examines the dual nature of sovereign debt that may be characterised as either private or public, and as either bilateral or multilateral. The chapter then analyses to what extent broader public policy arguments may successfully be adduced in sovereign debt litigation. The chapter also considers the extent to which the concept of insolvency can meaningfully be extrapolated to sovereign bankruptcies and whether the considerations of international comity may be adduced in sovereign debt litigation. Lastly, the chapter considers the role of financial markets as the regulators of sovereign debt disputes.
6 Defences to Repayment
Authors: Hayk Kupelyants
Published: January 2018

Chapter 6 addresses the range of substantive defences that the sovereign debtor may raise against the repayment of the debt. The chapter argues for full repayment of sovereign debt, unless one or more legal defences can be raised against repayment. The defences discussed include the following: act of State, prescription, champerty, odious debt, capacity to issue bonds, capacity to repay, frustration, counterclaims and so on.
The Trusteeship Council
Authors: Higgins Rosalyn , Webb Philippa , Akande Dapo , Sivakumaran Sandesh , Sloan James
Published: January 2018

The Trusteeship Council was established as a principal organ of the UN and charged with responsibility for assisting in the administration and supervision of ‘trust territories’. It carried out this function in relation to 11 trust territories between 1946 and 1994. On 25 May 1994, the process of self-government or independence for the people of Palau—the last remaining trust territory—was completed. On 1 November 1994, the Trusteeship Council suspended its functioning. Despite calls for its dissolution, the Trusteeship Council remains in existence and continues to meet periodically. However, it does not carry on any substantive activity and is instead ‘reduced to a purely formal existence’. This chapter discusses the Council’s membership, procedure and meetings, functions, objectives, trust territories, non-self-governing territories, relations with other principal organs, and reform.
Powers
Authors: Higgins Rosalyn , Webb Philippa , Akande Dapo , Sivakumaran Sandesh , Sloan James
Published: January 2018

This chapter examines the powers or competences of the United Nations as a separate legal entity. Its possession of legal personality, its specialized agencies, and some of the separate legal entities in the UN family are concepts that are related but distinct from the powers of these bodies. The possession of international legal personality means that these bodies have their own rights and duties, and powers vested in them in their own right. However, the possession of legal personality does not define the particular powers of the organization, nor does it mean that they have plenary competence under international law or in municipal legal systems. The chapter discusses the relationship to legal personality; nature and scope; purposes and principles of the organization; division of competence between principal organs and subsidiary organs; domestic jurisdiction limitation of Article 2(7); substantive content of powers internationally and in domestic law; consequences of ultra vires acts.
Voting
Authors: Higgins Rosalyn , Webb Philippa , Akande Dapo , Sivakumaran Sandesh , Sloan James
Published: January 2018

This chapter discusses voting in the General Assembly, Security Council, and Economic and Social Council (ECOSOC). Voting has become a more complex, politically charged practice with the growth in the membership of the UN and the expanding range of activities undertaken by the organization. These phenomena have also encouraged the trend of adopting decisions by consensus. The majority of resolutions in the General Assembly, the Security Council, and ECOSOC are adopted without a vote. The veto, however, remains highly controversial in the Security Council. The discussions cover the General Assembly’s right to vote and equality of votes; methods of taking decisions; voting conduct and elections; the Security Council’s procedural and non-procedural matters; veto; abstention; non-participation and absence; statements before and after the vote; announcement of vote results; adoption of resolutions and decisions by consensus and elections and the ECOSOC’s right to vote and equality of votes; and decision-making by commissions.
The Legal Personality of the United Nations
Authors: Higgins Rosalyn , Webb Philippa , Akande Dapo , Sivakumaran Sandesh , Sloan James
Published: January 2018

The United Nations (UN) was created by its founding member states when they adopted the UN Charter. Therefore, the legal authority for its existence, status, and possession of legal personality is derived from the role of states as lawmakers in the international system. This chapter discusses the meaning of legal personality and basis for its possession by the UN; status as an international organization; basis for legal personality; consequences of legal personality; position in international law; position in domestic law; what is covered by the legal personality; and the independent competence of subsidiary organs to rely on the UN’s legal personality in international law and such personality granted in municipal law.
Responsibility of the United Nations
Authors: Higgins Rosalyn , Webb Philippa , Akande Dapo , Sivakumaran Sandesh , Sloan James
Published: January 2018

The question of the responsibility of international organizations has been considered in depth by international bodies, and has been the subject of Draft Articles on the Responsibility of International Organizations (DARIO), finalized by the International Law Commission in 2011. However, there are aspects that remain uncertain due to the limited applicability of the principles of state responsibility to the UN, the status of DARIO as progressive development rather than codification of international law, the few express statements on responsibility in international instruments, and scant practice. This chapter discusses the Draft Articles on the Responsibility of International Organizations; attribution of conduct; allocating responsibility between the UN and member states; unequal access to dispute settlement mechanisms; immunity of the UN in national proceedings; circumstances precluding wrongfulness; consequences of a finding of responsibility; the implementation of the international responsibility of an international organization; and responsibility of the UN in peacekeeping operations.
The Financing of the United Nations
Authors: Higgins Rosalyn , Webb Philippa , Akande Dapo , Sivakumaran Sandesh , Sloan James
Published: January 2018

This chapter discusses the regular budget of the UN. The UN’s regular budget includes the expenses of its principal organs—the General Assembly, the Security Council, the Economic and Social Council, the International Court of Justice, the Trusteeship Council, and the Secretariat—as well as subsidiary bodies. From tens of millions in the early years of the organization, the regular budget has grown to billions of dollars. It is composed of various parts, sections, and programmes. No funds may be transferred between different appropriation sections without the authorization of the General Assembly. The remainder of the chapter covers the authorization of programmes; formulation and examination of estimates; approval and appropriation; implementation and the Contingency Fund; audit; the Working Capital Fund; financing of peacekeeping; international tribunals; voluntary contributions; self-support; apportionment of expenses of the organization; and administrative and budgetary coordination between the UN and specialized agencies.
Electoral Assistance
Authors: Higgins Rosalyn , Webb Philippa , Akande Dapo , Sivakumaran Sandesh , Sloan James
Published: January 2018

This chapter discusses the UN’s provision of electoral assistance. Electoral assistance on the part of the UN dates back to the late 1940s, with the UN observation of elections in the southern part of the Korean peninsula in 1948. During the 1960s and 1970s, the UN observed and supervised numerous elections, referenda, and plebiscites in the context of decolonization. By the 2000s, the principal form of UN electoral assistance was the provision of technical assistance. Between 1989 and 2006, 391 requests for electoral assistance had been made by 106 states. Of the 391 requests, assistance was provided in 289 cases. The discussions cover the rationale behind the provision of assistance; forms of assistance; procedure relating to the provision of assistance; UN entities involved in the provision of assistance; and the Focal Point and the Electoral Assistance Division.
Peacekeeping and other Peace Operations
Authors: Higgins Rosalyn , Webb Philippa , Akande Dapo , Sivakumaran Sandesh , Sloan James
Published: January 2018

This chapter examines the UN’s peacekeeping operations. A peacekeeping operation may be defined as a UN-authorized, UN-led force made up of civilian and/or military personnel donated by states or seconded by the Secretariat, physically present in a country or countries with a view to facilitating the maintenance of peace, generally after a conflict has ceased. Many consider that for an operation to be peacekeeping, it must take place with the consent of the host state. However, this may or may not be a legal requirement, depending on the constitutional basis of the operation. The chapter discusses the fundamental characteristics of peacekeeping; categories of peacekeeping; legal basis for peacekeeping; peacekeeping and consent; peacekeeping and the use of force; peacekeeping and impartiality; functions of peacekeeping operations; UN Transitional Administrations; and the future of UN peacekeeping.
History, Application, Interpretation, and Legal Sources of the Market Abuse Regulation
Authors: Mock Sebastian
Published: January 2018

This chapter presents an overview of the Market Abuse Regulation (MAR). The MAR is based on the competence of the Union in Article 114 of the Treaty on the Functioning of the European Union (TFEU). The regulation of market abuse has a long history in the Union and dates back to the 1960s. As is the case for many European regulations such as this one, the Market Abuse Regulation is directly applicable and must be interpreted by the General Court of the European Court of Justice as the court of last instance. In this regard, autonomous interpretation is the core principle for the interpretation of the Market Abuse Regulation.
The Concept of Market Manipulation
Authors: Mock Sebastian
Published: January 2018

This chapter discusses the concept of market manipulation. In contrast to the prohibition of insider dealing, market manipulation is not a single act or set of different behaviours but more of a multi-layer phenomenon covering all kinds of behaviours generally not accepted in any market. In capital markets law, four different forms of market manipulation developed, which can also be found in the Market Abuse Regulation (and other European regulations). These are information-based manipulation, transaction-based manipulation, short selling, and other forms of manipulation. However, the Market Abuse Regulation does not refer expressly to each of these forms of market manipulation but defines market manipulation in its Article 12 in general.
Public Disclosure of Inside Information and Market Abuse
Authors: Pietrancosta Alain
Published: January 2018

This chapter concerns the provisions laid out in the Market Abuse Regulation (MAR) regarding the unlawful disclosure of inside information and market manipulation. Considering the overwhelming evidence of a high level of market abuse activity, the preventative measures laid out here can be considered the MAR’s main contribution. Articles 17 to 21 of the MAR serve to complement the main market abuse prohibitions, serving the ancillary purpose of reducing the potential occurrences of insider dealing or market manipulation, through special, prompt, or objective disclosure requirements weighing on persons categorized according to the sensitivity of their professional positions. Articles 17 to 19 mainly concern issuers and their managers. Articles 20 and 21 impose objectivity and transparency requirements on persons producing or disseminating investment recommendations and on public institutions disseminating statistics or forecasts.
Historical Development and Current Theories
Authors: Torremans Paul
Published: January 2018

This chapter provides an overview of the historical development of private international law as well as current theories on the subject. It first traces the early history and later development of private international law in England before discussing the varied approaches to private international law in the twentieth and early twenty-first centuries. In particular, it considers the theory of vested or acquired rights, local law theory, and the American revolution. Two general approaches common to most of the ‘revolutionaries’ are highlighted: the first is rule selection or jurisdiction selection, and the second is true and false conflicts. There are several rule-selection techniques such as governmental interest analysis approach, the comparative impairment approach, principles of preference, interpretation of forum policy, and choice of law factors. The chapter also examines the Europeanisation of private international law and concludes with an assessment of the theoretical or doctrinal basis of English private international law.
The Proof of Foreign Law
Authors: Torremans Paul
Published: January 2018

This chapter examines the question of proof of foreign law and particularly the onus of proving that the foreign law is different from English law. Foreign law is treated as a question of fact, but it is ‘a question of fact of a peculiar kind’. To describe foreign law as one of fact is apposite, in the sense that the applicable law must be ascertained according to the evidence of witnesses, yet there can be no doubt that what is involved is at bottom a question of law. The courts have concluded that a mistake as to foreign law is to be regarded as a mistake of fact. This chapter first explains how foreign law is proved, including the use of expert witnesses, before turning to witnesses who can prove foreign law. It also considers the role of the English courts under the Civil Procedure Rules in dealing with expert evidence.
Domicile, Nationality and Residence
Authors: Torremans Paul
Published: January 2018

This chapter examines the concepts of domicile, nationality, and residence and how they affect the personal status of a human being. In England, questions affecting status are determined by the law of the domicile of the propositus. Some of the matters that are governed by the personal law are the essential validity of a marriage, the wills of movables, and inheritance by a dependant. This chapter first considers five general rules with respect to domicile before discussing two requisites for the acquisition of a fresh domicile, namely residence and intention. It then explains voluntary residence, precarious residence, and the burden of proof regarding domicile, along with the distinction between domicile of origin and domicile of choice. It also explores the domicile of dependent persons such as children, the domicile of married women, and the concepts of ordinary residence and habitual residence.
Matrimonial and Related Causes
Authors: Torremans Paul
Published: January 2018

This chapter examines the rules governing matrimonial and related causes, which generally include petitions for divorce, nullity of marriage, judicial separation, and presumption of death and dissolution of marriage, as well as similar foreign proceedings which may fall for recognition in England. It first considers whether an English court will assume jurisdiction to grant matrimonial relief in the case of a polygamous marriage, focusing on the relevant provisions of common law and Section 47 of the Matrimonial Causes Act 1973. It then discusses the rules relating to the jurisdiction of the courts, choice of law and recognition of foreign divorces, annulments, and judicial separations as well as presumption of death and dissolution of marriage. It also analyses conflict rules concerning the dissolution, nullity, and separation of civil partnerships and same sex marriage.
Financial Relief
Authors: Torremans Paul
Published: January 2018

This chapter examines three main questions of private international law that arise from petitions for financial relief: the jurisdiction of the English court; the power to order relief after a foreign divorce/dissolution, annulment or legal separation; and the recognition and enforcement of foreign decrees or orders in relation to financial relief. It first considers the jurisdiction of the English court under the general jurisdictional rules, the Brussels/Lugano system, Maintenance Regulation, and Lugano Convention before discussing the powers of the English court to grant financial relief after a foreign divorce/dissolution, annulment or legal separation. It also analyses the choice of law rules governing financial relief, along with the recognition and enforcement of foreign orders, and concludes with an overview of international initiatives such as the Hague Conference on Private International Law.
Legitimacy, Legitimation and Adoption
Authors: Torremans Paul
Published: January 2018

This chapter examines the choice of law rules relating to legitimacy, legitimation and adoption, as well as rules governing the recognition of foreign adoptions and the jurisdiction of the English courts to make adoption orders. It begins with a discussion of questions surrounding legitimacy, such as legitimacy to be governed by the law of the domicile, the effect of the doctrine of putative marriage, meaning of ‘domicile of origin’, relevance of the incidents of status, and where birth to parents who are married does not confer legitimacy. It then considers legitimation by subsequent marriage and legitimation by recognition before turning to adoption proceedings in England, procedures for taking children into and out of the UK, and recognition of foreign adoptions. Finally, it analyses the effect of foreign adoptions by citing the relevant provisions of the Adoption and Children Act 2002.
The Distinction Between Movables and Immovables
Authors: Torremans Paul
Published: January 2018

This chapter examines the distinction between movables and immovables under English private international law. The first task of the court in a private international law case when required to rule on the question of a proprietary or possessory nature is to decide whether the item of property in dispute is movable or immovable. The legal system that will be applicable to the case depends on this preliminary decision. This chapter first considers the classification of the subject matter of ownership into movables and immovables by the law of the situs before looking at some examples relating to mortgages, trusts for sale, and annuities. It also discusses the relevance of the distinction between realty and personalty and concludes by explaining the distinction between tangible and intangible movables.
Immovables
Authors: Torremans Paul
Published: January 2018

This chapter examines the choice of law rules governing immovables. There are a range of circumstances in which the English courts may have jurisdiction (either under common law or European Union rules) over cases which require the determination of legal issues relating to foreign immovable property. These include cases where the question of title arises incidentally in a personal claim against a defendant, or in the administration of a trust, will or divorce over which the English courts have jurisdiction, or in the context of a claim for trespass over foreign land. This chapter first considers the law of the situs rule before discussing specific issues relating to choice of the law applicable to immovables, focusing in particular on the capacity to take and transfer immovables, formalities of alienation, essential validity of transfers, and contracts.
Geriatric Nutrition
Authors: Wendt Julie , Rotkiewicz Anna , Berg Alice
Published: January 2018

The practice of integrative nutrition therapy aims to use food therapeutically in order to stimulate the body’s innate healing mechanisms and optimize health. Studies exploring the link between longevity and diet have reinforced the idea that health-promoting lifestyle habits delay the onset of age-related illness and death. As inflammatory processes drive chronic disease, any dietary intervention should aim to mitigate inflammation and promote the anti-inflammatory cascade. Practitioners can personalize the dietary interventions through the use of nutrigenomics and ancestral diets. This chapter covers nutrition assessment methods and key interventions to prevent weight loss, anorexia of aging, and malnutrition.
Acupuncture and Traditional Chinese Medicine (TCM)
Authors: Gabriel Angela , Hoyt Tiffany C.
Published: January 2018

This chapter introduces Traditional Chinese Medicine (TCM) and discusses how it can serve the geriatric population. Aging is viewed in TCM as a natural progression of the life cycle, with a major focus on achieving longevity, with good physical condition and cognitive health, optimizing one’s genetic potential, and maintaining quality of life. The importance of harmonizing one’s life with the natural elements and in relation to the social environment is an essential part of health care in TCM. This is attained through attention to work–rest balance, “climactic factors,” proper nutrition, and mental and physical exercise, using such therapeutic modalities as diet modification, herbal medicine, acupuncture and acupuncture-related therapies, and therapeutic massage. TCM has treatment plans for both the acute and chronic health conditions of aging, which can successfully complement and enhance Western medical treatments.
Manual and Movement Therapies
Authors: Seidel Ilana , McDonald Anne , Roseen Eric J. , Starich Mary , O’Neill Maryclaire , Davis Aaron A. , Flusberg Yael
Published: January 2018

This chapter covers seven types of manual and movement therapies: the Alexander Technique (AT), the Feldenkrais Method (FM), chiropractic, therapeutic massage, osteopathic manipulative medicine, Rolfing Structural Integration, tai chi, and yoga. These techniques are described briefly, with special attention given to their indications in the geriatric population. Case studies illustrate the use of each technique. Relevant research studies are highlighted. Information on the training requirements for practitioners is given. Resources for further information are provided.
Women’s Health
Authors: Kendell Mary , Wentzel Margie
Published: January 2018

Although the hormonal changes that occur during menopause are the same for all women, the experience of menopause will be as unique as the woman herself. It will be modulated as much by the physiological changes that occur in her body as it will be by her cultural upbringing, thoughts and attitudes about this time in her life, and her current life stressors. Recognition of menopause as a unique experience for every woman is an essential component of an integrative approach to health care for this phase of life. Management and treatment options should include proactive anticipatory education, symptom screening, diet and lifestyle recommendations and, when necessary, pharmacotherapeutics. This chapter covers vasomotor symptoms, skin changes, breast health and breast cancer, genitourinary complaints, sexuality, and hormone replacement therapy.
Integrative Oncology
Authors: Littlefield Amy , Orceyre Deirdre , Cheng Stephanie
Published: January 2018

Cancer risk increases with age, but a patient’s tolerance to conventional treatments may be reduced with aging and associated morbidities. The development and expansion of age-appropriate therapies and approaches will be crucial as the population of elderly patients with cancer grows in the upcoming years. Taking into account the unique needs of this population will be of great importance. This chapter introduces the field of integrative oncology, the practice of supporting the whole person before, during, and after conventional treatments for cancer. Current evidence recognizes the safe use of many integrative interventions, such as lifestyle and diet changes and supplement and botanical use, to prevent cancer; to reduce side effects and optimize wellness during treatments such as surgery, chemotherapy, and radiation; and to promote full recovery after treatment. Many of these same interventions act directly to optimally regulate pathways in the unique metabolism of the malignant cell process.
Person-Directed Health Care Across the Lifespan: The Veterans Affairs Health Care System
Authors: Cobbs Elizabeth L. , Hull Amanda , Adams Alyssa
Published: January 2018

The VA is the largest and most comprehensive health care system in the United States today. It aims to provide integrated, seamless continuum of person-directed care blending healing approaches across the lifespan. This chapter reviews the VA elements that support this highly sophisticated and effective system, including primary care, mental health, geriatrics, extended care and palliative care, integrative health, and education. The chapter also provides an overview of the philosophical transformation occurring within the VA where disease care is shifting to a whole-health system where the veteran, not the disease, is at the center of care. The Integrative Health and Wellness Program at the Washington DC VA is highlighted as a program that exemplifies this transformation.
Toxoplasma gondii
Authors: McLeod Rima , Wheeler Kelsey , Levigne Pauline , Boyer Kenneth
Published: January 2018

Mother-to-child transmission (MTCT) of the parasite Toxoplasma gondii can result in congenital toxoplasmosis. Untreated congenital toxoplasmosis presents considerable potential risks to patients and costs for society, with manifestations recurring throughout life. Infection with T. gondii, acquired at any time during pregnancy can damage the fetus, but especially during early gestation. Fetal infection with T. gondii can cause fetal loss, intrauterine growth retardation, and damage to organs (especially the brain and eyes). Treatment with pyrimethamine and sulfadiazine improves manifestations of active infection in the fetus, congenital infection in infants, and recurrent disease when manifested later in life in those congenitally infected. Key components of the prevention and treatment of congenital toxoplasmosis include prompt, correct diagnosis and treatment with effective anti–T. gondii medications. Several countries have gestational screening programs to detect newly acquired T. gondii infections. In the future, development of new medications, including those for chronic infection, and vaccines for prevention will be important.
Chlamydia trachomatis
Authors: Rours G. Ingrid J. G. , Hammerschlag Margaret R.
Published: January 2018

The estimated incidence of Chlamydia trachomatis infection is over 100 million cases globally and almost 1 million in the United States. Infection with C. trachomatis tends to be asymptomatic and of long duration. If a pregnant woman has active infection during delivery, the infant may acquire the infection, which can result in conjunctivitis or pneumonia. The most effective method of controlling perinatal C. trachomatis infection is the screening and treatment of pregnant women. Identification of infected mothers offers the opportunity to provide treatment for their sexual partners to help prevent reinfection and Chlamydia-associated morbidity in them, in addition to preventing morbidity during pregnancy and perinatal infection. Further research on prevention, especially in resource-limited settings, is most important. The implementation of prenatal screening and treatment is feasible now and will greatly reduce morbidity in pregnant women, their sexual partners, and their infants.