bluuebunny/crossref_metadata_2025 huggingface dataset:
Introduction
Authors: Carter James H , Fellas John
Published: June 2017

This introductory chapter presents New York City as the leading venue for international commercial arbitration in the United States. It estimates that at least one-third of all significant international commercial arbitrations in the United States take place within the city. New York’s role as a financial and legal capital leads to the choice of New York governing law for many commercial documents, often resulting in a choice of New York as the venue for any disputes arising from those documents. The city’s leading position in international commercial arbitration also derives from the fact that a number of leading arbitration institutions are based in New York. The local court system strongly supports international arbitration; and the community of supporting organizations, such as the New York International Arbitration Center, bar associations, universities, and others is quite strong.
The Law Applicable to International Arbitration in New York
Authors: Lindsey David M , Lahlou Yasmine
Published: June 2017

This chapter focuses on applicable arbitration law in the context of arbitration agreements and awards that fall under the New York Convention or the Panama Convention, and how those two treaties interact with the U.S. Federal Arbitration Act (FAA), New York state law, and possibly foreign law in the context of international arbitration in New York. It first summarizes the FAA and explains FAA preemption of state law that is inconsistent with the FAA. The chapter then discusses the application of the Conventions and difficult issues that can arise when determining the applicable law. In particular, it focuses on choice of law issues that arise when enforcing the agreement to arbitrate under Article II of the New York Convention. U.S. courts have struggled to employ a consistent choice of law analysis when interpreting the “null and void” provisions in Article II(3) of the Convention.
The Application of New York Law to Contracts
Authors: Rivkin David W , Friedman Mark W , Taft William H
Published: June 2017

This chapter provides a brief overview of some basic principles of New York law that are relevant to the interpretation and enforcement of contracts. New York contract law is derived from common law, statutes, and administrative sources. The chapter first addresses New York choice-of-law rules. Next, it turns to the elements of a contract and New York laws and presumptions regarding contract formation. It then examines the elements and consequences of a breach of contract, before turning to a number of claims ancillary to a contractual breach. Finally, the chapter concludes with some special issues that may arise under New York contract law.
Damages in International Arbitration
Authors: Salomon Claudia
Published: June 2017

This chapter addresses the implications of the substantive law of the State of New York for the proof and calculation of damages. In international commercial arbitration, the category of damages, as well as the nature of proof required, is determined by the agreement of the parties. Absent such an agreement, tribunals will be guided by the substantive law of the arbitration. And generally, for damages to be recoverable, an aggrieved party must prove that the opposing party’s conduct directly and proximately caused the claimed damages. Although an in-depth analysis of theories and standards of proof for establishing causation is beyond the scope of this chapter, the requirement that a party prove, with a reasonable degree of certainty, damages proximately caused by a respondent’s actions explains New York law’s general skepticism about anticipated lost profits for a prospective business opportunity as a class of damages.
Class Action Arbitration
Authors: Baker William H
Published: June 2017

This chapter outlines the practices relevant to class arbitration, a relatively recent phenomenon in the United States. Most of these arbitrations are exclusively between domestic parties and often arise out of arbitration clauses inserted in the fine print of consumer or employment contracts. In some cases, however, foreign companies have entered into what may have appeared to be simple, single-party arbitration clauses, only to find themselves embroiled in class action arbitrations. In fact, it behooves international arbitration practitioners to be aware of class action arbitration law and procedures in New York and in the United States generally. The chapter thus enumerates significant developments in class arbitration law in the U.S. in recent years, which have come about due to a series of U.S. Supreme Court decisions.
Recovery and Resolution Planning
Authors: Singh Dalvinder
Published: June 2017

This chapter analyses the impact of recovery and resolution planning on the regulation and supervision of financial institutions. It argues that recovery and resolution planning places issues associated with crisis prevention and resolvability at the forefront of regulation and supervision rather than at the tail end. However, one challenge associated with this requirement is the level of discretion authorities have with regards to the technical requirements associated with formulating and reviewing the plans. The chapter explores the extent to which that discretion is structured and assisted by the introduction of European Banking Authority guidelines and technical standards. It concludes with a reflection of how recovery and resolution planning is likely to improve forward-looking risk-based supervision.
Resolution
Authors: Binder Jens-Hinrich
Published: June 2017

This chapter presents an introduction and brief analysis of the resolution toolbox and accompanying powers found in the Bank Recovery and Resolution Directive (BRRD). Following an account of the key trends in the design of modern bank insolvency regimes the concept of resolution, as well as the key policy objectives of the BRRD are analysed. It then examines the conditions for resolution, and the general principles for resolution as set out by articles 32, 33, and 34 of the BRRD. The chapter concludes with a discussion of the four ‘resolution tools’ stated in articles 37–58 and the capital instruments described in articles 59–62.
Derivatives and Bail-in under the EU Bank Recovery and Resolution Directive
Authors: Benzler Marc , Hissnauer Christian
Published: June 2017

This chapter investigates issues arising from derivatives as liabilities subject to bail-in. It also analyses requirements on the valuation of derivatives, with a particular focus on the recognition of netting agreements. The final version of the Bank Recovery and Resolution Directive (BRRD) has settled the issue of the inclusion of liabilities arising from derivatives into the bail-in. It now remains to be seen how the problems surrounding the application of the bail-in tool to such liabilities will be resolved. The German Recovery and Resolution Act or Sanierungs- und Abwicklungsgesetz (SAG) provides some insight in this regard. While it does clarify some aspects of the BRRD, it is for the most part implementing the BRRD word by word. The chapter concludes with an examination of the impact of the various resolution powers with respect to liabilities arising from derivatives under any bail-in.
The Implementation of the EU Bank Recovery and Resolution Directive’s Derivative Bail-in Powers in the UK
Authors: Connelly Stephen
Published: June 2017

This chapter explores the implementation of the EU Bank Recovery and Resolution Directive’s (BRRD) bail-in powers in the UK. Special bail-in powers have been in the legislative sights of HM Treasury (HMT) since the Independent Commission on Banking’s report in 2011. The chapter considers inter alia the following issues raised by the power to bail-in derivatives in the Banking Act 2009: what is a ‘derivative’ and does HMT agree with the BRRD’s definition; the critical role of close-out netting, and whether this is appropriate for all derivatives in the widest sense; the appropriateness of safeguards for protected liabilities and excluded liabilities, e.g. secured interests; and practical matters like valuation.
Third Country Cooperation Mechanisms within the Bank Recovery and Resolution Directive
Authors: Russo Costanza
Published: June 2017

This chapter argues that cooperation and coordination under the Bank Recovery and Resolution Directive (BRRD) may still be suboptimal as states can still prioritize their national interest. By making a distinction between coordination and cooperation it is also argued that while relevant authorities can, in principle, take a joint decision over the willingness to achieve a common goal, they may still act in an uncoordinated way. This may undermine the effectiveness of international supervisory action and in turn financial stability within, and possibly outside, the EU. The chapter reveals the complex layers of cooperation; its relevant problems; and the extent to which these have been addressed by regulators. It focuses on cooperation and coordination between the EU and third countries with a specific attention to the provisions included in the BRRD.
The Funding of Bank Resolution
Authors: Mayes David G
Published: June 2017

This chapter examines the funding of a bank recovery or resolution under the Bank Recovery and Resolution Directive (BRRD) and the associated Single Resolution Regulation (SRR). The BRRD assures that bank problems have a minimum impact on the wider economy and on the living conditions and standards of ordinary people. Meanwhile, the SRR sets out how the BRRD is to be applied for the countries participating in the Single Supervisory Mechanism (SSM). The chapter explores the problems of assessing the costs of resolving failing banks. It explains the New Zealand scheme and the authorities’ assessment of the potential impact of various resolution and recovery measures on the economy. It also discusses the ways in which the BRRD/SRR might be implemented in order to minimize the risks to society at large.
The European Deposit Guarantee Directive
Authors: Hanten Mathias
Published: June 2017

This chapter analyses the German Deposit Protection landscape and provides three short case studies which reveals how deposit protection is structured. It also assesses the impact of the Deposit Protection Directive (DPD 3) and the Bank Recovery and Resolution Directive (BRRD) on this landscape. DPD 3 aims to enable the institutions to bear the risk of depositor compensation and to avoid state aid. On this basis the Directive specifies that all Deposit Guarantee Schemes (DGS) must be financed ex ante. On the other hand, the BRRD, through the Restructuring and Resolution Act, gives the resolution authority the power to bail-in a bank’s shareholders and creditors in the event of resolution.
Financial Market Infrastructures in Stress Scenarios
Authors: Papathanassiou Chryssa
Published: June 2017

This chapter examines the crucial role of Financial Market Infrastructures (FMIs) during a crisis. It addresses the three asymmetries surrounding the rules on FMIs’ defaults and looks at how to improve the legal soundness of crisis prevention and crisis management measures for FMIs. The first asymmetry stems from the fact that different bankruptcy procedures are applied to different systemically important financial market participants, as well as the fact that conflicts of laws arise from the bankruptcy of entities with cross-border operations. The second arises from the expansion of FMI services and relates primarily to two otherwise benign features which central counterparties (CCPs) offer to their members for the products they clear: credit risk mitigation and loss mutualization. The third and final asymmetry stems from the fact that supervisory authorities have been insufficiently attuned to each other’s legitimate interests and have focused resolutely on their own markets.
The Liquidation of Lehman Brothers Inc, the New York Brokerage of the Lehman Global Enterprise
Authors: Caputo Kenneth J , Giddens James W , Kiplok Christopher K
Published: June 2017

This chapter explores the statutory and regulatory regime in place in 2008 that governed the operation and liquidation of Lehman Brothers Inc. (LBI) and highlights key legal issues in the liquidation. Section I provides an overview of the Securities Investor Protection Act (SIPA) statute. Section II describes LBI, its role as the broker-dealer in the global Lehman enterprise, and the story of its collapse in September 2008. Section III highlights some hallmarks of the LBI liquidation, including the emergency sale to Barclays, account transfers, the transfer of all of LBI’s subsidiaries on the eve of LBI’s filing, the atomization of foreign affiliates with different regulatory regimes, and the role of LBI as a counterparty in the financial products market, which led to a substantial general estate. Section IV addresses the impact of the broker-dealer liquidation under SIPA on the treatment of complex financial instruments. Section V reflects on lessons learned.
Lessons from Lehman
Authors: Moers Mayer Thomas , Eggermann Daniel M
Published: June 2017

‘Substantive consolidation’ is the deemed merger of a bankrupt corporation with one or more other corporations, so that the assets of all the corporations are pooled and their value distributed to the creditors of all the entities. It penalizes creditors of more solvent debtors and rewards creditors of less solvent debtors. It is supposedly an ‘extraordinary remedy’ that is nevertheless frequently threatened in complex chapter 11 bankruptcy cases. This chapter describes the remedy of substantive consolidation, the facts in Lehman’s chapter 11 cases that made it the critical issue, and the threat of ‘involuntary settlement’ that avoided years of litigation and produced a fully consensual plan. The threat of an ‘involuntary settlement’ was a huge success in the Lehman case but the technique is very powerful and potentially very dangerous, as the chapter concludes.
Lehman Brothers and Equitable Subordination in Cross-Border Proceedings
Authors: Denman Harrison L
Published: June 2017

The collapse of Lehman Brothers in 2008 had consequences that spread across the world. In the aftermath, Lehman affiliates from outside the United States were forced to commence their own localized insolvency proceedings. The issues multiplied even further, as even within a single country, multiple wholly-owned affiliates were forced to fill their own cases. This chapter addresses a single narrow aspect of these intercompany issues raised in the context of the Lehman cases, when viewed from the perspective of an entity subject to reorganization under chapter 11 in the United States. Specifically, this chapter asks and seeks to answer: to what extent can a US debtor seek to equitably subordinate a claim asserted by an entity that is itself subject to a separate reorganization proceeding? That may depend on whether the entity potentially subject to equitable subordination is a debtor in a foreign jurisdiction pursuant to a foreign insolvency statute.
Extended Liens
Authors: Anderson Hamish
Published: June 2017

During the course of the Lehman insolvencies it was discovered that the Lehman companies had used a number of different standard documents to record their terms of business which included provision for a security interest over the counterparty’s property. The important distinguishing feature of some of those security interests was that the relevant Lehman entity purported to take security not only for sums due to it but also for sums due to any other Lehman entity. Such security interests came to be known as ‘extended liens’—a label which is potentially misleading for an English lawyer because the security interests in question were more likely to be correctly characterized as floating charges. ‘Lien’ in this context is merely a generic term for different types of security interest. The chapter looks at the efficacy of extended liens.
The Management and Distribution of LBIE’s Client Assets
Authors: Ereira OBE David
Published: June 2017

This chapter starts by introducing some background information and legal issues raised by the operation of the Lehman business in Europe. Dealing with client assets was an extremely complex and critical aspect of the entire administration in Europe and raised fundamental issues for the operation of the financial markets and the courts. In order to appreciate the scale and complexity of the issues involved it is necessary to put this aspect of the administration into both a factual and legal context. The chapter asks: why did LBIE, the main hub company for Lehman business in Europe, hold client assets? The chapter relates this to English trust law and trust law principles.
Introduction
Authors: Kim Joongi
Published: June 2017

This introductory chapter provides a brief overview of the scope of international arbitration in Korea. From modest beginnings, Korea has managed to establish a modern arbitration system that has become a common means of dispute resolution that operates under a consensual framework based on party autonomy. Korea’s accelerated growth in arbitration has been closely intertwined with its economic development, as it catapulted itself from one of the poorest countries in the world to recently joining the Paris Club of the world’s largest creditors, all in the span of fifty years. The chapter thus describes the historical development of arbitration in Korea and how its arbitration is practiced. It also includes a short outline of Korea’s legal industry in general, before finally discussing a few explanatory notes for reference in later chapters.
The Arbitral Tribunal
Authors: Kim Joongi
Published: June 2017

This chapter discusses Korean arbitral tribunals. Korean courts have been strict in applying the provisions in the Arbitration Act regarding these. The courts have not hesitated to set aside awards when they have found that the parties have not complied with provisions concerning tribunal requirements or where tribunals have had conflicts of interest. Under the new 2016 Arbitration Act, furthermore, when the parties fail to appoint an arbitrator or reach agreement on a sole arbitrator or the chair, the court can now designate an institution such as the Korean Commercial Arbitration Board (KCAB) to appoint the arbitrator. The KCAB has accumulated considerable experience and has greater institutional knowledge than the courts concerning the expertise of potential arbitrators, particularly international ones. With these developments in mind, the chapter reviews some formative cases which have shaped these tribunals in their current incarnation.
Recognition and Enforcement
Authors: Kim Joongi
Published: June 2017

This chapter discusses the recognition and enforcement of arbitral awards. Domestic awards are recognized and enforced under the provisions of the Arbitration Act, which are virtually the same as the provisions in the New York Convention. As per the Model Law, if an arbitration is seated in Korea it is considered a domestic arbitration. In addition, the 2016 Arbitration Act now provides that recognition or enforcement of an arbitral award can occur in far more simplified fashion, through an enforcement decision by a court, as is the case in such civil law countries as Germany and Japan. Furthermore, under the amended Article 37.1, a domestic and foreign arbitral award will be recognized as long as grounds to set it aside do not exist.
Setting Aside an Arbitral Award
Authors: Kim Joongi
Published: June 2017

This chapter considers the grounds for setting aside an arbitral award. It looks at cases where set-asides have occurred—due to invalid agreements, an excess of jurisdiction, the formation of a tribunal, and public policy arguments. The Arbitration Act’s provisions concerning set-aside closely follow the Model Law and New York Convention. The chapter, however, also discusses other pre-Model Law grounds for a set-aside, such as when ‘a decision has been omitted regarding an important matter that would affect the judgment’. Moreover, the chapter explores the effects of a set-aside, before closing with some arguments raised by leading arbitration scholars.
Other Forms of Arbitration and the Future of Arbitration in Korea
Authors: Kim Joongi
Published: June 2017

This chapter looks at other forms of arbitration and reflects on the future of arbitration in Korea. In addition to commercial arbitration, other forms of arbitration, particularly investment treaty arbitration, are becoming increasingly important for Korean parties, practitioners, and researchers. Recent efforts to establish a dispute-resolution process through a similar framework between North and South Korea are also discussed. The chapter shows the joint contributions of both sides toward the South–North arbitration efforts. Finally, the chapter notes that while in many regards the future of arbitration in Korea looks bright, despite this outlook, there are still challenges yet to overcome.
Other Actors in the Mining Industry
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter focuses on players other than Host States and mining companies in the mining industry. These include prospectors, geologists, mining engineers, metallurgical engineers, trading houses, smelters, assayers, and investment banks. Prospectors play an important role in generating showings (evidence of localized mineralization), which are later optioned, acquired, or explored by mining companies. Geologists specialize in exploring and identifying new mines. Mining engineers specialize in mine design while metallurgical engineers devise and design the processes and physical installations necessary to process raw ore into refined metals or minerals. Most mining companies do not market or sell their production, relying instead on trading houses to buy their output, or selling it to large industrial users under long-term supply and purchase agreements. Smelters process the ore mined into refined metals. Assayers perform the chemical and metallurgical tests on samples of ores or minerals to determine the amount of valuable metals contained. Investment banks arrange the financing for mining projects. These different actors and activities entail specific risks and varying potential for international disputes.
Exploration Agreements and Exploration Disputes
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter discusses the three main types of mining agreements that define the legal framework for the exploration of a mining project: exploration agreements (often referred to as option agreements), mining leases, and concession agreements. Exploration agreements refer to contracts between parties wishing to explore the mineral potential of a particular property and the holders of mineral rights over that property. Mining leases typically grant the lessee the exclusive right to conduct exploration, development, mining, and reclamation on, in, or under certain properties; or, they may convey exclusive possession over certain properties for the purpose of conducting exploration, development, mining, and reclamation activities. Mineral concessions are granted by the State to private individuals or companies to explore and exploit mineral resources on or under a designated area. These types of agreements come with different risk profiles and potential for international disputes to arise.
Financing Disputes
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter discusses the three main types of financing for mining projects and their respective potential for international disputes. These main forms of financing are: equity financing, debt financing, and alternative forms of financing such as royalty financing and stream financing. Equity financing is the most widespread form of financing. It is particularly popular with junior mining companies that do not have the possibility to tap debt markets. Debt financing is often used by mid-tier and major mining companies seeking to develop new projects or expand their operations. Amongst the different forms of debt financing available to mining companies, project finance is the most widely-used for international mining projects. Alternative forms of financing (including royalty financing and stream financing) have emerged over the past thirty years as a viable alternative to equity and debt.
Mining Development, Operating, and Commercial Disputes
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter examines the most common types of disputes arising in connection with the development and operations of mining projects. These can be classified into two main categories: development and operating disputes, and offtake and sales disputes. Development and operating disputes include: disputes that may arise when the project owner and external mining contractor fail to agree on rates; hardrock drilling disputes arising from various geographic, geologic, and practical factors; and construction contract disputes. Offtake agreements or offtake contracts refer to all types of agreements for the sale and purchase of metals/minerals, including spot sales, metal streaming agreements, and in-kind mineral royalties. The most common types of disputes involve four essential aspects of the sale of metals and minerals: the quantity to be delivered; the quality of the metals/minerals delivered; the conditions of the delivery; and the payment of a price by the buyer.
The Impact of Anti-corruption Legislation and Trade Sanctions
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter examines disputes involving allegations of corruption, violation of trade sanctions, and other forms of misconduct in the mining industry. It identifies the factors that explain the mining sector’s particular vulnerability to corruption. It then discusses the main national anti-corruption regimes, including the U.S. Foreign Corrupt Practices Act (1977), the Organization of American States’ (OAS) Inter-American Convention against Corruption (1997), the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions (1999) and United Nations International Convention against Corruption (2005), Canada Corruption of Foreign Public Officials Act (1999, 2013), and UK Bribery Act (2011). The remainder of the chapter covers the impact of allegations of corruption in commercial and investor-State arbitration proceedings; and examines how US trade sanctions and export controls regulations can play a significant role in the context of international mining disputes.
Selection of Counsel and Arbitrators
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter discusses the selection of counsel and arbitrators for international mining disputes. The selection of lawyers is crucial because they will be drafting pleadings, presenting evidence, cross-examining the other side’s fact and expert witnesses, and pulling together complex factual matrices in order to persuade the arbitrators to rule in the client’s favor. The arbitrator must also be chosen with extreme care and diligence. Although the arbitrator is not required to be a lawyer, in cases to be decided by a sole arbitrator, it is wise to select a lawyer because the sole arbitrator will be handling all aspects of the arbitration, including making procedural rulings, ruling on potential interim measures applications, and the like. With respect to a three-arbitrator tribunal, each side usually has the ability to nominate its own arbitrator and the two co-arbitrators select the Chairman, if possible. The final section of the chapter deals with forum selection in international disputes.
Principles of Investment Protection in International Mining Disputes
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

In an effort to attract foreign investment many countries, especially developing economies, have created favorable investment conditions by setting up domestic and international guarantees for foreign investors. In addition to adopting foreign investment laws, many countries have concluded bilateral and multilateral investment treaties aimed at promoting and protecting foreign investment. These treaties provide a number of guarantees concerning foreign investment, which typically include the protection from expropriation; fair and equitable treatment (FET); full protection and security; the protection against arbitrary or discriminatory measures, national treatment, and most favored nation treatment; and, for some of them the observance of other undertakings entered into by contracting States with investors. This chapter examines each of these guarantees as well as the means to maximize investment protection and secure access to international arbitration.
Introduction
Authors: Goldby Miriam , Mistelis Loukas
Published: June 2017

This volume contains revised, updated, and enhanced versions of papers delivered during the inaugural International Shipping Law Roundtable on arbitration of shipping disputes organized by Centre of Commercial Law Studies, Queen Mary University of London. The collective sentiment has been that there has been rather limited academic discourse of issues relating to the current development of shipping law and the role of arbitration. This has been an excellent opportunity to bring together leading scholars and practitioners from around the world to debate and test ideas in the presentations, which formed the basis of the contributions contained in this volume. An overview of the subsequent chapters is presented.
Enforceability of ‘Spontaneous Law’ in England
Authors: Goldby Miriam
Published: June 2017

This chapter analyses the process of rule-making in the maritime transport industry. It uses the term ‘spontaneous law’ to refer to norms that emerge as a result of regular and repeated interactions among participants in shipping networks, interactions that create common understandings as to how contractual obligations undertaken are to be performed. The rule-making activity results in a combination of articulated or expressed rules that are enforceable directly as a result of the formation of a valid and binding contract; and unexpressed (or implicit) understandings that form part of the contractual context and that supplement the expressed rules. The context within which these unarticulated rules come into existence is a commercial network of contractual relationships. The chapter engages with the pragmatic question of how and to what extent these unarticulated rules will be enforced by the courts in the resolution of a dispute, focusing on the courts of England and Wales.
Spontaneous Standardization and the New Lex Maritima
Authors: Druzin Bryan H
Published: June 2017

This chapter examines the processes whereby shipping law may converge internationally in the absence of state intervention. It outlines a theory explaining such convergence through the operation of network effects. The theory is based on the argument that because legal standards are instruments that facilitate interaction with a larger group, the inherent value of a legal standard as a means to that end increases with the number of other people who also subscribe to and employ the same legal standard. Therefore, a particular standard emerges as the dominant standard as it becomes more widely used for such interactions, and the number of people adopting it in turn also increases. The chapter argues that shipping law is especially susceptible to network effects because it exhibits particularly high levels of interaction across the globe. These effects therefore form a good explanation for standardization of shipping norms.
Standardization Theory and the Limits of its Applicability
Authors: Georgosouli Andromachi
Published: June 2017

This chapter evaluates the theory of spontaneous legal standardization proposed in Chapter 4, which tries to answer the following question: Without a central legislative authority, how will international commercial law, for example shipping law, be standardized? The two key merits of Chapter 4’s thesis are, on the one hand, it is inter-disciplinary in nature and, on the other hand, the fact that the implications of the thesis go beyond commercial law and shipping law. However, this theoretical framework also suffers from three major flaws. The first one concerns the nature of the question that it tries to answer; the second concerns the nature of the theory of spontaneous legal standardization that Chapter 4 puts forward; the third concerns several assumptions that seem to be embedded into the network externalities theory as an explanandum of the phenomenon of spontaneous legal standardization (rather than as a normative theory).
Incorporation of a Charterparty Arbitration Clause into a Bill of Lading and its Effect on Third Parties
Authors: Baatz Yvonne
Published: June 2017

This chapter discusses the practice of incorporating charterparty arbitration clauses into bills of lading and examines recent decisions of the English courts which have tended to take a flexible and liberal approach in determining the effectiveness of such incorporation. It notes that a restrictive approach to the recognition of the validity of such arbitration clauses results in a highly uncertain position for a carrier who may find itself having to arbitrate in different locations to respond to different claims arising out of the same incident. It also criticizes the European Court of Justice’s decision in Allianz SpA (formerly RiunioneAdriatica di SicurtaSpA) v West Tankers Inc (The Front Comor). The case has created the potential of much confusion on the enforceability of a charterparty arbitration clause incorporated into a bill of lading, and creates unnecessary unpredictability and the heightened potential of litigation costs to determine preliminary issues.
Competition of Arbitral Seats in Attracting International Maritime Arbitration Disputes
Authors: Mistelis Loukas
Published: June 2017

This chapter examines the competition among arbitral seats in attracting maritime disputes. It first explores why certain seats are selected as a matter of general arbitration law and practice. It then discusses some key arbitral seats for the settlement of maritime disputes. It shows that there is a large concentration of cases in certain centres, where a number of well-known arbitral associations are established and the local courts and local laws are prepared to support the process. Although the key maritime arbitration centres do not necessarily coincide with the main commercial arbitration centres (with the exception of London, New York, and Singapore), the criteria for selection of key seats in maritime arbitration appear to be the same those used in commercial arbitration. The high number of maritime arbitration cases in the main maritime arbitration seats has also contributed to the development of arbitration law and jurisprudence in these jurisdictions.
Maritime Arbitration in London
Authors: Gaunt Ian
Published: June 2017

This chapter examines what makes London so popular as a maritime arbitration centre. Chief among the reasons is the availability of a pool of arbitrators with a breadth of professional knowledge and experience, including not just lawyers but commercial men and women. It also discusses the perceived effect of the use of arbitration on the development of English law. On the one hand, the number of appeals going to the courts is such as to ensure that new precedents are produced in order to lend vibrancy to the law. On the other hand, some first instance decisions have shown a tendency on the part of judges to decide cases without sufficient sensitivity to commercial practice, leading to precedents that are hard for arbitrators to apply. The chapter also considers the major challenges faced by the London Maritime Arbitrators Association in maintaining London as the foremost centre for the resolution of shipping disputes.
Common Types of Shipping Arbitration
Authors: Chan Leng Sun
Published: June 2017

This chapter reflects on developments in maritime arbitration in Singapore, highlighting its distinctive features via a comparison with London, the shipping world’s preferred arbitration centre. In Singapore, the Arbitration Act (Cap 10, 2002 Rev Ed) governs domestic arbitration whereas the International Arbitration Act (Cap 143A, 2002 Rev Ed) (the ‘IAA’) governs international arbitration. The IAA gives the force of law to the UNCITRAL Model Law 1985 and the New York Convention on the Reciprocal Recognition and Enforcement of Foreign Arbitral Awards. Singapore offers the possibility to arbitrate under the institutional rules of either the Singapore Chamber of Maritime Arbitration (SCMA) or the Singapore International Arbitration Centre (SIAC). The SIAC provides institutional services, including the appointment of arbitrators. The SCMA was in recent years taken outside the structure of the SIAC to provide a service more comparable to that provided by the London Maritime Arbitrators Association (LMAA).
Authors: Calliess Gralf-​Peter , Klopp Annika
Published: June 2017

This chapter presents empirical data on the vanishing commercial trial and the flight to arbitration in general, and more specifically in the maritime industry. It discusses the consequences of the trend towards the privatization of dispute resolution for the maintenance of law in more detail. In response to the fading of domestic law, which results from a lack of litigation, it considers whether or not arbitral precedent might fill in the gap. It analyses London Maritime Arbitrators Association (LMAA) and Society of Maritime Arbitrators (SMA) awards published in 2014 for their potential as precedent. It shows that it is quite difficult to infer any ratio decidendi from them. Thus, the viewpoint expressed here is sceptical about the privatization of the maintenance of maritime law, be that domestic shipping law or a transnational lex maritima. Finally, the chapter considers options for private and public actors to secure the continued development of shipping law.
Transnational Shipping Law
Authors: Maurer Andreas
Published: June 2017

This chapter develops a threefold argument. First, using empirical data it shows the maritime industry’s move away from litigation and towards arbitration. Second, it argues that private actors play a major role in the development of substantial rules of international shipping by the means of standard contracts. Since these contracts do not only result from a unilateral imposition of the terms by one party on the other but from participative procedures that involve many stakeholders, these rules are not only general terms and conditions, they can claim normativity for themselves and thus are a first step in the emergence of a transnational maritime law. Finally, the chapter argues that arbitrators should view themselves as participants in the development of an emerging transnational maritime law. Preconditions for this development are the publication of arbitral awards and mutual observation of arbitrators, allowing a factually binding persuasive precedent to emerge.
The Role of Standard Forms and Arbitrators
Authors: Ambrose Clare
Published: June 2017

This chapter reflects on the findings and conclusions in Chapter 14. It points out various factors that have given shape to the kind of arbitration service favoured today, including the desideratum of confidentiality that drives a number of disputants to choose arbitration over litigation in the courts. In view of the fact that standard forms tend to be simply a neutral starting point for negotiation rather than unchanging legal rules, and there is a tendency for disputes to be decided by arbitrators against a backdrop of domestic law, from a practical perspective it is unproductive to focus on whether and to what extent there might be a substantive transnational shipping law and what the arbitrator’s role may be in this regard. Having said that, the chapter argues for the publication of more arbitral awards and the need to ensure that arbitral awards acquire transnational legitimacy.
The Role of Arbitrators and the Possibility of a Genuine Arbitral Case Law
Authors: Cachard Olivier
Published: June 2017

This chapter uses maritime arbitration in Paris as a case study to discuss the possibility of a genuine arbitral case law. This possibility derives from the arbitrator being uniquely placed, in view of his or her legal and methodological freedom, to conduct ‘the free objective search for a rule’. The first section underlines that an arbitrator or an arbitral panel is in the best position to carry out this free objective search for a rule. The second section investigates whether an arbitrator is just adjudicating a peculiar dispute or if, in doing so, his findings may reach further authority. It then discusses the legal grounds given to the award. The third section focuses further on the characteristics of maritime disputes and tries to sort out how a balance between private and public interests is met. It also examines how the market arbitrators consider standard terms.
The Importance of Commercial Knowledge in Maritime Arbitration
Authors: Kimball John D
Published: June 2017

This chapter argues that maritime arbitration is still a viable concept for ship owners, charterers, shippers, or buyers of commodities despite issues such as rising arbitration costs; the non-applicability of the American Rule with regard to the payment of fees; and the absence of any right to appeal, evidentiary rules, or pre-hearing disclosures. It goes on to examine the advantages arbitration over litigation, and their peculiar weight and relevance in the shipping field, especially the opportunity to have one’s case decided by arbitrators with strong commercial knowledge and experience and who therefore understand the commercial context of the dispute they are being asked to resolve. The chapter illustrates this advantage by reference to a number of recent cases decided by arbitral tribunals in New York, emphasizing that it is mainly this expertise which gives arbitration the edge over the courts.
Dispute Resolution in the Maritime World
Authors: Lux Jonathan
Published: June 2017

This chapter reflects on the growing influence of mediation, the features of which may provide a source of inspiration for arbitration to evolve. It argues that arbitrators have the power to stay the arbitration so as to offer a ‘mediation window’. It follows that, in exercising their discretion on costs, arbitrators should be entitled to ‘sanction’ the successful party and deprive him of some or all of his costs by reason of his failure to engage with a mediation proposal and/or refusal to mediate. Of course the London Maritime Arbitrators Association (LMAA) can put the matter beyond doubt by amending its Rules to provide expressly for such powers. Doing so will ensure that London remains the leading international dispute resolution centre for many years to come.
Introduction
Authors: Parra Antonio R
Published: June 2017

This introductory chapter provides brief descriptions of the World Bank Group of intergovernmental organizations, including the International Centre for Settlement of Investment Disputes itself, as of June 30, 2010 (the end of the organizations’ 2010 fiscal year). It covers the International Bank for Reconstruction and Development, the International Finance Corporation, International Development Association and Multilateral Investment Guarantee Agency and the International Centre for Settlement of Investment Disputes. An overview of the subsequent chapters is also presented.
Origins of the Convention
Authors: Parra Antonio R
Published: June 2017

This chapter looks at the immediate origins of the ICSID Convention, in the years 1955-1962. It discusses the proposed multilateral approaches to the promotion of private foreign investment, the World Bank’s consideration of proposals, the role of “Black’s Bank” in the settlement of investment disputes and the Bank begins to work on the initiative.
The Preliminary Draft of the Convention
Authors: Parra Antonio R
Published: June 2017

This chapter provides a detailed, stage-by-stage narrative of the drawing up of the text of the Convention between 1962 and 1965. It describes the Preliminary Draft, focusing on the main differences between it and the Working Paper. It also reviews the sources or antecedents for the Preliminary Draft (and the Working Paper before it). The chapter then turns to the discussions at the regional consultative meetings.
Aspects of the Early Cases
Authors: Parra Antonio R
Published: June 2017

This chapter focuses on key aspects of the cases brought to ICSID in its first two decades. Section I examines the ways in which successive Secretaries-General handled the registration of requests to institute proceedings and, in particular, their “screening” of such requests. Patterns in the constitution of the conciliation commissions and arbitral tribunals are traced in Section II, as are the first experiences of the Centre with the resignation and challenge of arbitrators. Section III discusses the distinctly pragmatic approaches of arbitral tribunals in this period to jurisdictional issues, especially the requirement of consent. There was controversy in the early 1980s as to the availability, in the context of an ICSID case, of court-ordered provisional measures. The controversy is reviewed in Section IV, which also looks at the first instances of arbitral provisional measures under Article 47 of the ICSID Convention. Section V examines the underlying interpretations of Article 42(1) of the Convention. Three ad hoc committee decisions rendered under Article 52 of the Convention are the subject of Section VI. Most of the few court proceedings for the enforcement of ICSID awards took place in these early years; the proceedings are reviewed in the concluding Section VII.
Conclusion
Authors: Parra Antonio R
Published: June 2017

This chapter provides some general observations based on the history presented in this book. The chapter also considers how ICSID might meet the new challenges presented in the preceding chapter regarding mediation or conciliation, transparency and an appellate mechanism and permanent investment tribunal. The final section of the chapter puts forward possible changes at ICSID of rules and procedures in several other areas.
Conflicts of Interest
Authors: Grundmann Stefan , Hacker Philipp
Published: June 2017

This chapter discusses conflicts of interest in services regulated by MiFID, mainly with respect to the MiFID II regime, but taking the abundantly discussed MiFID I regime as a background, because the basic structure and many single solutions remain broadly unchanged. It combines legal and social science theories with an analysis of substantive law solutions and presents them with an evolutionary perspective, focusing on detailed analysis of the new regime. It first exposes the foundations—the most important theoretical approaches to a regulation of conflicts of interest and the legislative bases and history—and then proceeds to analyse the five different stages and situations step by step. It begins by characterizing the type of approach taken in the legislative regime, then moving to the main features of innovation in the transition from MiFID I to MiFID II, and finally discussing in greater detail the substantive solution found in MiFID II.
Inducements
Authors: Silverentand Larissa , Sprecher Jasha , Simons Lisette
Published: June 2017

This chapter discusses the MiFID II inducement rules. During the negotiations on MiFID II, it became clear that inducements were a topic on which there was no easy agreement between the Member States. While certain Member States pressed for a total ban on inducements, others were unwilling to impose such strict rules. The political compromise allowed for deviating rules by those Member States requesting stricter rules. This may seem counter to the European legislator’s general approach to limit Member State options by creating ‘single rulebooks’ and greater regulation. The authors express disappointment that, on such an important topic, the European market will continue to have deviating rules per Member State. The Dutch legislator has already indicated that it will make use of this; according to the authors, other Member States where stricter rules apply may do likewise, leaving an un-level playing field for investment firms regarding the use of inducements.