bluuebunny/crossref_metadata_2025 huggingface dataset:
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.93 Other forms of cooperation/Autres formes de coopération
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 93 of the Rome Statute of the International Criminal Court. Article 93 requires States Parties to comply with requests by the Court to provide other forms of mutual legal assistance. The assistance is provided in accordance with national law. Where national law requires judicial intervention for its implementation, ‘domestic judicial authorities shall be engaged in the ordinary manner and in accordance with relevant procedures available under national law’. The forms of legal assistance include the identification and whereabouts of persons or the location of items; the taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court; the questioning of any person being investigated or prosecuted; and the service of documents, including judicial documents.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.95 Postponement of execution of a request in respect of an admissibility challenge/Sursis à exécution d’une demande en raison d’une exception d’irrecevabilité
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 95 of the Rome Statute of the International Criminal Court. Article 95 is part of an ensemble of provisions addressing the modalities of compliance with a request from the Court. It concerns challenges to admissibility, and allows a State to postpone compliance pending resolution of an admissibility challenge. The operation of article 95 is not dependent upon an initial determination by the Court. It is a prerogative that a State may exercise provided the necessary pre-requisites are in place. Thus, ‘the postponement of the execution of a surrender request while an admissibility challenge is pending falls within the prerogatives of the requested State and does not require a Chamber's prior authorization’.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.98 Cooperation with respect to waiver of immunity and consent to surrender/Coopération en relation avec la renonciation à l’immunité et le consentement à la remise
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 98 of the Rome Statute of the International Criminal Court. Article 98 emerged in the context of the debate on grounds to refuse surrender and assistance. The Rome Statute has the potential to conflict with other obligations of States under international law, whether pursuant to customary international law or treaty. In particular, they are required to respect the immunities of diplomats and international officials. States that allow military activity by foreign troops on their territory often have agreements, known as ‘status of forces agreements’ (SOFAs). Article 98 governs these conflicts by, in effect, making obligations of arrest and surrender under the Statute subordinate to other legal norms.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.101 Rule of speciality/Règle de la spécialité
Authors: William A Schabas
Published: June 2017

This chapter comments on Article of the Rome Statute of the International Criminal Court. Article 101 sets out the principle of speciality, which is part of the customary law governing extradition between States. The rationale for the principle of speciality ‘is to protect State sovereignty’. For this reason, the rule is limited to the scenarios in which the person is arrested and is surrendered as a result of a request submitted by the Court to the State. It is inapplicable if the suspect has appeared voluntarily. The State that surrenders the individual to the Court may be asked to waive the rule of speciality if the Court seeks to proceed with respect to crimes that were not part of the original request for surrender.
Part 10 Enforcement: Exécution, Art.104 Change in designation of State of enforcement/Modification de la désignation de l’état chargé de l’exécution
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 104 of the Rome Statute of the International Criminal Court. Article 104 allows the Court to retain control over the detention of convicted prisoners by changing the State of detention. It establishes that the Court may transfer a sentenced person, and makes specific allowance for this being done at the request of the prisoner. Change in the State of enforcement may come at the initiative of the Presidency, acting on its own initiative, or on application by the sentenced person or the Prosecutor. The Statute and the Rules of Procedure and Evidence are silent as to whether the State of enforcement may request the transfer. The State of enforcement may not withdraw its consent when the sentence is being served, but there seems no good reason to deny it the possibility of requesting a change.
Part 10 Enforcement: Exécution, Art.106 Supervision of enforcement of sentences and conditions of imprisonment/Contrôle de l’exécution de la peine et conditions de détention
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 106 of the Rome Statute of the International Criminal Court. Article 106 strikes a balance between the general carceral system applicable in the State of enforcement that applies to the Court's prisoner, and the requirement of generally accepted international standards drawn from human rights instruments. This ‘national treatment’ clause was originally introduced to ensure that prisoners of the Court would not receive treatment that was worse than that of ordinary prisoners. The primary function of the provision is protecting the fundamental rights of the prisoner. The article also declares that Communications between a sentenced person and the Court shall be unimpeded and confidential.
Part 10 Enforcement: Exécution, Art.108 Limitation on the prosecution or punishment of other offences/Limites en matière de poursuites ou de condamnations pour d’autres infractions
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 108 of the Rome Statute of the International Criminal Court. Article 108 prohibits the prosecution, punishment, or extradition of a sentenced person to a third State for conduct engaged in prior to the person's delivery to the State of enforcement. However, the Court is allowed to dispense with this requirement if it is so requested by the State of enforcement. When the State of enforcement wishes to prosecute or enforce a sentence against a sentenced person for any conduct engaged in prior to that person's transfer, it shall notify its intention to the Presidency and transmit the relevant documents. In the event of a request for extradition made by another State, the State of enforcement shall transmit the entire request to the Presidency with a protocol containing the views of the sentenced person obtained after informing the person sufficiently about the extradition request.
Part 10 Enforcement: Exécution, Art.110 Review by the Court concerning reduction of sentence/Examen par la Cour de la question d’une réduction de peine
Authors: William A Schabas
Published: June 2017

This chapter comments on Article of the Rome Statute of the International Criminal Court. Article 110 deals with the modification of a sentence. Although a custodial sentence is served in a prison of a State of enforcement, where the convicted prisoner is subject to the rules and regulations applicable in the domestic system, early release is governed by the Rome Statute, not national legislation. The decision to modify the sentence pursuant to article 110 of the Rome Statute is irreversible, and not conditional, as in most domestic parole schemes. A sentence pronounced by the Court may subsequently be reduced, but only after the offender has served two-thirds of the term, with special provision in the case of life imprisonment.
Part 10 Enforcement: Exécution, Art.111 Escape/Évasion
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 111 of the Rome Statute of the International Criminal Court. Article 111 sets out measures in the event of escape of a convicted person. The Rome Statute combines ‘horizontal’ and ‘vertical’ approaches to State cooperation, allowing either the State of enforcement or the Court itself to intervene, depending on the circumstances. The Court may choose to return the escaped prisoner to the original State of enforcement, or to change the State of enforcement. Given the Court's authority to oversee and review enforcement in a general sense, even if this provision were not included in the Statute the consequences of escape would probably be the same.
Part 12 Financing: Financement, Art.113 Financial Regulations/Règlement financier et règles de gestion financière
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 113 of the Rome Statute of the International Criminal Court. Article 113 establishes the legal significance and role of the Financial Regulations and Rules. Consist of thirteen articles, plus an Annex, the Regulations provide that the Assembly of States Parties is to ‘establish detailed financial rules and procedures in order to ensure effective financial administration and the exercise of economy’. The Rules describe themselves as being ‘in complement to, and limited by the Financial Regulations. They shall govern all the financial administration of the Court, except as may otherwise explicitly be provided by the Assembly of States Parties, or specifically exempted therefrom by the Registrar’.
Part 13 Final Clauses: Clauses Finales, Art.119 Settlement of disputes/Règlement des différends
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 119 of the Rome Statute of the International Criminal Court. Article 119 provides a mechanism for resolving disputes concerning the judicial functions of the Court and disputes between two or more States Parties relating to the interpretation or application of the Statute. The article takes a somewhat unique approach in that it proposes an intermediate stage of a political nature at which the Assembly of States Parties is to intervene. This emphasizes the likelihood that disputes between two States about application and interpretation of the Rome Statute will have a more general interest to many or all States Parties.
Part 13 Final Clauses: Clauses Finales, Art.124 Transitional provision/Disposition transitoire
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 124 of the Rome Statute of the International Criminal Court. Article 124 entitles a State, in becoming a party to the Statute, to declare that it does not accept the jurisdiction of the Court with respect to war crimes alleged to have been committed by its nationals or on its territory. Thus, if a State declares that it does not accept the Court's jurisdiction over war crimes, does this mean that its nationals cannot be prosecuted, even if the crime is committed on the territory of another State Party, as would ordinarily be the case? Does article 124 allow the creation of a privileged group of nationals who are insulated from prosecution by the Court for war crimes, wherever they are committed?
Part 13 Final Clauses: Clauses Finales, Art.126 Entry into force/Entrée en vigueur
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 126 of the Rome Statute of the International Criminal Court. Article 126 deals with the entry into force of the Rome Statute. The Statute entered into force on the first day of the month after the sixtieth day following the date of the deposit of the sixtieth instrument of ratification, acceptance, approval, or accession with the Secretary-General of the United Nations, that is, on July 1, 2002. For States that ratify, accept, approve, or accede after the entry into force of the Statute, it will enter into force for them on the first day of the month after the sixtieth day following the deposit of instruments of ratification, acceptance, approval, or accession.
Part 13 Final Clauses: Clauses Finales, Art.127 Withdrawal/Retrait
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 127 of the Rome Statute of the International Criminal Court. Article 127 addresses the withdrawal of a State Party from this Statute. A State may withdraw from the Rome Statute by providing a written notification to the depositary, the Secretary-General of the United Nations. The withdrawal takes effect one year after receipt of the notification by the Secretary-General, unless a later date is specified. There have been no notifications of withdrawal from the Rome Statute. The Statute does not indicate whether a notice of withdrawal can itself be withdrawn, thereby returning the State to ordinary status as a Party. Withdrawal does not affect the continuation of the Statute with respect to other States Parties, even if the number of them falls below the threshold of sixty.
Part 6 The Trial: Le Procès, Art.63 Trial in the presence of the accused/Procès en présence de l’accusé
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 63 of the Rome Statute of the International Criminal Court. Article 63 establishes the right of the accused to be present at trial. For some pre-trial proceedings it is either implicit or explicit that the accused will not be present. This is the case, for example, in the hearing before the Pre-Trial Chamber on a decision by the Prosecutor not to proceed, the taking of evidence in the case of a ‘unique investigative opportunity’, and the issuance of an arrest warrant or summons. A right to be present is specifically provided for some pre-trial proceedings, such as the confirmation hearing. However, the Pre-Trial Chamber is also authorized to hold a confirmation hearing in the absence of the defendant.
The Limitations of Deposit Protection Systems
Authors: Kleftouri Nikoletta
Published: June 2017

This chapter first analyses the moral hazard problem arising from the provision of deposit insurance. Moral hazard is a powerful force distorting market behaviour, which demands a variety of regulatory techniques, as well as market incentives, to neutralize its destabilizing effects. Corporate governance issues are also relevant, because banks’ internal controls and balances have a key impact on the extent of moral hazard. In addition to a well-designed deposit protection system, it is necessary to enlist the support of banking regulation and supervision to combat moral hazard. Drawing on the UK deposit protection system, the chapter presents a number of ambiguities inherent to the design and functions of a deposit guarantee scheme. It concludes that the existence of effective prudential regulation and supervision are prerequisites for deposit insurance.
European Banking Union
Authors: Kleftouri Nikoletta
Published: June 2017

Having a multiplicity of financial regulators, supervisors, and resolution authorities in Europe can weaken supervision, heighten legal uncertainty, and impede effective resolution. European officials recently agreed that further steps are needed to tackle the specific risks in particular within the euro area, where pooled monetary responsibilities had increased the possibility of cross-border spillover effects in the event of bank crises. As a result, they created a union aimed to centralize bank supervision, deposit insurance, and bank resolution. This chapter sets out two components of the European banking union: single supervision, and single deposit insurance. Single resolution is separately discussed in Chapter 8, where international and European bank resolution frameworks are examined. The chapter concludes that deeper reforms are needed, in conjunction with effective cooperation arrangements.
The UK Special Resolution Regime
Authors: Kleftouri Nikoletta
Published: June 2017

When designing a crisis management framework, a key decision for policymakers is whether to combine the deposit protection and bank resolution functions, or whether to create two separate bodies. This chapter sets out the United Kingdom’s approach to dealing with failing banks. In the United Kingdom, the deposit guarantee scheme, the Financial Services Compensation Scheme, is a separate institution from the resolution authority, the Bank of England, and the banks’ prudential supervisor, the Prudential Regulation Authority. The Banking Act 2009 provides for a framework within which the PRA, Bank of England, HM Treasury, and FSCS work closely with each other prior to and during a bank failure.
The US Paradigm
Authors: Kleftouri Nikoletta
Published: June 2017

Banking crises prompted the United States to make lending of last resort, deposit insurance, and bank resolution federal responsibilities long before banks crossed state lines in large numbers. The US system offers an existing and successful model, whereby the deposit insurance and resolution functions are combined under a single institution, the Federal Deposit Insurance Corporation. The key objective underpinning the FDIC’s choice among different resolution options is that the chosen resolution is that which would result in the least cost to the deposit insurance fund. This chapter sets out the role of the FDIC as the deposit insurer, supervisor, and resolution authority, while also examining some key principles of the US approach to dealing with failing banks.
Solange I, BverfGE 37, 291, 29 May 1974; Solange II, BverfGE 73, 339, 22 October 1986; Solange III, BverfGE 89, 155 12 October 1993; and Solange IV, BverfGE 102, 147, 7 June 2000
Authors: Hilpold Peter
Published: June 2017

The Solange case-law stands for a specific form of interaction between the legal order of the European Union (EU) and the legal orders of the member states (MS) or, respectively, between the European Court of Justice (ECJ) and the national Constitutional Courts of the MS. At the start of this line of cases the German Constitutional Court (Bundesverfassungsgericht—BverfG) first upheld its power to consider the compatibility of Community law rules with fundamental rights of the Basic Law (Grundgesetz) ‘as long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights’ (Solange I). Afterwards, when fundamental rights protection had become sufficiently strong within the EC/EU the BVerfG declared to refrain from such a control activity ‘as long as the European Communities ensure effective protection of fundamental rights’ (Solange II). Subsequently, this case-law was further clarified.
The Revision of the Credit Derivative Definitions in the Context of the Bank Recovery and Resolution Directive
Authors: Grieser Simon , Mecklenburg Christian
Published: June 2017

This chapter examines the adaptation of the International Swaps and Derivatives Association (ISDA) framework by means of the 2014 ISDA Credit Derivatives Definitions (2014 Definitions) in addressing how the EU Bank Recovery and Resolution Directive (BRRD) affects credit derivatives. Particularly, it analyses how the institution or obligation to which the credit derivative is referenced becomes subject to the measures. Financial derivatives are financial instruments which provide for an immediate or future exchange of a reference value. Its price inter alia derives from the underlying reference value. Credit Derivatives help transferring the risk of a referenced third party defaulting on its obligation from the buyer to the seller of the Credit Derivative. The chapter explores the documentation of Credit Derivatives and the adjustments made during the financial crisis. It concludes with an analysis of the BRRD from a Credit Derivatives’ perspective and illustrates experiences made during the financial crisis.
Third Country Relations in the Directive Establishing a Framework for the Recovery and Resolution of Credit Institutions
Authors: Nieto Maria J
Published: June 2017

This chapter discusses how the introduction of the Directive for the recovery and resolution of credit institutions through the EU Bank Recovery and Resolution Directive (BRRD) affects third country relations. It argues that effective resolution of internationally active institutions requires cooperation between the Union, Member States, and third country resolution authorities. The BRRD establishes that the objectives of resolution authorities are to ensure the continuity of critical functions; to avoid significant adverse effects on Financial stability, including to prevent contagion and to protect insured depositors and client relations, while minimizing the public and private costs of resolution. Cooperation with third country resolution authorities will be facilitated if their resolution regimes are also consistent with those principles; hence, the importance of international coordination.
Bank Resolution Financing in the Banking Union
Authors: Hadjiemmanuil Christos
Published: June 2017

This chapter explores bank resolution financing in the Banking Union, a project launched in 2012 as a direct response to the euro area’s crisis that began in Spain. The Banking Union is a streamlined and highly centralized regime for the supervision and resolution of all banks in the euro area and beyond, based on a novel, complex institutional set-up. The Union relies on supranational decision-making, especially with regard to the largest and most important banking institutions. The chapter assesses the Banking Union’s two-pronged institutional construction: the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM). It concludes by discussing how the Bank Recovery and Resolution Directive (BRRD) affects resolution financing in the Banking Union.
The Role of Deposit Insurance Post Implementation of the EU Recovery, Resolution, and Deposit Guarantee Directives
Authors: LaBrosse John Raymond , Walker David K
Published: June 2017

This chapter explores some key provisions of the European Bank Recovery and Resolution Directive (BRRD) and how it relates to deposit protection provided by the European Directive on Deposit Guarantee Schemes (DGS). It explains the structure and roles of the agencies that comprise a financial system safety net and the pertinent features of the arrangements that have been widely adopted. In particular, the chapter considers the provisions of the Directive respecting which agency within the safety net should have responsibility for bank resolutions, the ‘bail-in’ provisions embodied within the Directive, and significant issues that have yet to be addressed fully. In doing so it examines how the EU Directive lines up with work undertaken by the Financial Stability Board (FSB) and the International Association of Deposit Insurers (IADI).
The Use of a Composition Plan as a Valuation and Distribution Framework
Authors: Faber Dennis , Verhoeven Frédéric , Vermunt Niels
Published: June 2017

The commencement of chapter 11 proceedings in respect of Lehman Brothers Holdings Inc (LBHI) triggered the downfall of its intricate web of group companies around the world. The Dutch incorporated second-tier subsidiary Lehman Brothers Treasury Co BV (LBT) was declared bankrupt on 8 October 2008 – the largest bankruptcy case in Dutch history and unprecedented in Dutch insolvency practice. Various new features were tested (and approved by the court) in the LBT proceedings which could provide important lessons for future large insolvency cases of issuers of debt securities on the international capital markets. Despite the fact that the Dutch Bankruptcy Code dates back more than a century ago and was not designed for several complex issues which arose in the LBT proceedings, the chapter argues, it did facilitate a tailored made solution for an effective and transparent settlement of the affairs of the main treasury entity of the Lehman Brothers group.
Derivatives in Cross-Border Insolvency Proceedings
Authors: Garcimartín Francisco
Published: June 2017

This chapter defines derivatives as a starting point and looks at how they work. Traditionally, they have enjoyed privileged status in an insolvency scenario, both at the substantive-law level and at the conflict-of-laws level. The chapter describes how the new resolution framework has reduced that privileged status and ‘re-routed’ those financial agreements to general principles of insolvency law, in particular as regards the ‘ipso facto clause’ and other termination rights, and explains its reasons. This raises the question of whether that privileged status must be kept and the resolution scenario must be qualified as an exception to it, or conversely whether this is just a first step to reconsidering the whole approach.
Constitutional Conflicts in Contemporary Malaysia
Authors: H P Lee
Published: June 2017

This book explores how the separation of powers doctrine in Malaysia has been adversely affected by a number of major constitutional conflicts among the various important organs of government. The book first analyses the struggle by parliament for supremacy over the Malay Rulers or Sultans by expunging the need for the royal assent to the enactment of legislation and removing royal immunity. The book then turns to the contemporary role of the Malay Rulers and the reasons for their perceived rejuvenation. The book goes on to examine the series of controversies and scandals that have plagued the judiciary since the tumultuous judiciary crisis of 1988, and the efficacy of the reforms that have been introduced to restore public confidence in the judiciary. These conflicts and a number of statutory enactments are analysed to determine their effect on the state of constitutionalism in Malaysia. The book concludes with some thoughts on the trajectory of constitutional development in Malaysia.
9 Conclusion
Authors: HP Lee
Published: June 2017

This concluding chapter presents some reflections about the trajectory of constitutional development in Malaysia. The Malaysian Constitution was conceived with a clear aim of dividing powers among the political entities of executive, legislature, judiciary, and the Malay Rulers. However, in contemporary Malaysia now, there is increasing unease over the unconstrained expansion of executive power, as well as strong distrust in the unbridled exercise of powers in the name of protecting public order and security. The Malaysian nation’s ability to traverse the path of harmony and national advancement in a shrinking world will depend on the fidelity of its political leaders and its many peoples to the constitutional understandings embodied in the Merdeka Constitution, the constitutional principles of fairness, justice, and equality, as well as a common subscription to the fundamental importance of upholding the rule of law.
Typology of Mining Projects
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter discusses the classification of mining projects. Mining projects can be classified based on their state of advancement, for example, exploration phase development phase, production phase, or reclamation phase. Only 0.1 percent of all targets will result in a pre-feasibility study, few of which will ultimately result in a feasibility study and the construction and commercial exploitation of a mine. Another classification for mining projects relies on the types of metals or minerals encountered or produced at a mining project. The remainder of the chapter identifies the main types of metals or minerals commercially mined today, their main uses, annual production, and main producing countries. All these characteristics have a significant impact on the risk profile and profitability of a given mining project, and on the potential for disputes to arise.
Political Risk and Resource Nationalism
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter first discusses the notions of political risk and resource nationalism. Political risk refers to the risk that some political event will materially affect the projected profitability or the legal framework of a given project or investment. Resource nationalism refers to the tendency of a host government to take action to increase its control of-and value derived from—the development of its national resources, often after a private foreign investor has placed the resource into commercial production. The chapter then covers expropriations and nationalizations of international mining projects; the principal types of measures employed by Host States to increase their participation in, revenues from, and control over mining projects; breach, repudiation, or forced renegotiation of international mining contracts by Host States; and managing political risk for international mining projects.
Dispute Resolution
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter begins with a comparison of contract and investment disputes. From an arbitration standpoint, contract-based disputes are predominately commercial disputes submitted to arbitration by virtue of an arbitration clause. In the absence of an arbitration clause, disputing parties might resort to specific agreements or submission agreements in order to find recourse to arbitration. International investment arbitration differs from commercial arbitration in the way the parties express their consent. It is often based on States’ domestic legislation or international agreements between two or more States providing for protection of each contracting State’s investors in their respective territories. The remainder of the chapter discusses the importance of investment protection and investor-State arbitration in international mining disputes.
Substantive Contractual Principles
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

The mining industry relies on a myriad of contractual agreements to organize relations between the different actors involved in mining projects and transactions. It follows naturally that international mining disputes will often concern the respective obligations of the different parties involved in these agreements. This chapter discusses the principal substantive principles applicable to international contractual mining disputes. It notes the importance of considering the applicable law when drafting an agreement. It pays particular attention to the principles invoked by parties seeking to avoid existing contractual or legal obligations, which are frequently invoked but often misunderstood. These defences include force majeure and its corollary, the act of the prince (fait du prince) doctrine, hardship, and necessity, which States can invoke to excuse non-compliance with their international obligations. This is particularly relevant given the strong nexus between the mining sector and State sovereignty.
Towards a Lex Mineralia
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This brief chapter discusses the emergence of a set of substantive transnational principles governing international mining disputes. Over the past two decades, an increasing number of arbitral awards relating to international mining disputes have been published. This is particularly so in the context of disputes between States entities and international mining companies. As was the case earlier with the petroleum industry, these public awards provide the source material from which customary law may be drawn. This has not yet created a mature set of principles and regulations, but it has developed the beginning of a lex mineralia that guides the international mining industry. As an increasing number of arbitral awards are rendered and become public, owing to a growing push for increased transparency in international arbitration, this lex mineralia may well mature and develop into a recognized subset of international law.
Part I Overview, 1 The Evolution of Modern African Constitutions: A Retrospective Perspective
Authors: Charles M Fombad
Published: June 2017

This chapter presents a historical overview of constitutional developments in Africa. One of the most remarkable developments has been the move away from wholly imported or imposed constitutions, towards constitutions made within Africa. Two constitutional traditions have substantially influenced current constitutional developments on the continent. One is the common law constitutional tradition, based on the Westminster constitutional system with many elements of the US constitutional system crafted onto it, which has been widely adopted in Anglophone Africa. The other is the civil law constitutional tradition mainly based on the French Fifth Republic Constitution of 1958, which has been widely adopted in Francophone Africa and to some extent, Lusophone and Hispanophone Africa.
Part III The Relationship Between the Judiciary and the Political Branches, 12 Judicial–Executive Relations in Kenya Post-2010: The Emergence of Judicial Supremacy?
Authors: Walter Khobe Ochieng
Published: June 2017

This chapter examines the relationship between the judicial and the executive branch in Kenya. Kenya has long seen a deferent, politically controlled judiciary. The 2010 constitution, however, takes a number of steps to safeguard judicial independence, in line with the general concern to limit executive power. The 2010 reforms include the creation of a Judicial Services Commission that aims to end the previous presidential control of appointments and the insulation of judicial funding from executive control. Several aspects of the new appointment procedures have already been defended in decisions of the High Court. The chapter considers recent cases which demonstrate how ‘the Courts have reformed to the extent of boldly questioning executive decisions’. These cases also show executive compliance, although it has sometimes been slow to comply with decisions that go against it and several prominent political leaders, including the president, have criticized the courts for ‘activism’.
Part IV Independent Constitutional Institutions, 15 The Public Prosecutor and the Rule of Law in Anglophone Africa
Authors: Jeffrey Jowell
Published: June 2017

This chapter examines the role of the public prosecutor in Anglophone Africa, in the light of two constitutional principles: the separation of powers and the rule of law. It considers the extent to which the prosecutor’s role, and his individual decisions, ought to be separated from ‘policy’ or ‘party-political’, or otherwise ‘partisan’ considerations. How ‘objective’ should (or can) he be? The chapter also considers to what extent the prosecutor’s constitutional role and institutional functions require him to be insulated from judicial review. In the context of government lawyers acting as guardians of the rule of law, the chapter looks at the extent of the prosecutor’s discretion to enforce and not to enforce the law. Finally, it asks whether there may be ways to structure his discretion in the interest of the rule of law.
I Preliminary Matters, 1 Introduction: Global Developments in Trust Arbitration
Authors: SI Strong
Published: June 2017

This introductory chapter provides an overview of the book’s main themes. This book discusses the current state of internal trust arbitration around the world and analyzes relevant issues as a matter of both national and international law. Contributions come from specialists in both trust law and arbitration law, thereby improving the dialogue between the two disciplines and helping courts, legislatures, parties, and practitioners from around the world to appreciate whether and to what extent internal trust arbitration disputes are or can become arbitrable in their home jurisdictions. The book is organized as follows. Section I discusses several preliminary matters, including the challenges facing internal trust arbitration. Section II considers internal trust arbitration from an institutional perspective. Section III looks at internal trust arbitration from various national perspectives. Section IV turns to various questions arising under international law. Section V presents a cross-disciplinary and cross-cultural analysis that attempts to bring together the various strands of discussion and identify how internal trust arbitration is likely to develop in the coming years.
II Trust Arbitration at the Institutional Level, 4 ACTEC’s Simplified Trial Resolution Option with Model Laws and Clauses
Authors: Robert W Goldman
Published: June 2017

This chapter considers various recommendations made by the American College of Trust and Estate Counsel (ACTEC) concerning trust arbitration. It describes ACTEC’s views about the need for and propriety of various types of internal trust arbitration. It discusses two model statutes to assist legislators considering statutory reform in this area of law. The first model makes arbitration clauses in wills and trusts enforceable and uses existing arbitration statutes to establish a default dispute resolution process. The second proposed enactment is longer and includes a standalone default process for resolving disputes. The chapter also presents several model arbitration clauses devised by ACTEC as a means of facilitating arbitration of certain internal trust disputes.
III Trust Arbitration as a Matter of National Law, 6 Arbitration and the United States Uniform Trust Code
Authors: David M English
Published: June 2017

The Uniform Trust Code (UTC) is the first effort by the Uniform Law Commission (ULC) to provide individual states in the United States with a comprehensive model for codifying their law on trusts. The UTC, however, deals with the subject of arbitration of trust disputes in only a limited way. This chapter describes the reasons for this limited coverage but also how in the future the UTC might be amended to deal with arbitration more comprehensively. It suggests that the challenge to the ULC is to design an arbitration provision, either in the UTC or elsewhere, that will most likely lead to results that are both efficient and fair.
III Trust Arbitration as a Matter of National Law, 13 Arbitration of Trust Disputes Under the Bahamas Trustee Act 1998
Authors: David Brownbill
Published: June 2017

This chapter focuses on the Bahamas Trustee Amendment Act 2011 (amending the Bahamas Trustee Act 1998 and adding new sections 91A, 91B, and 91C), which introduced a comprehensive regime for the arbitration of trust disputes. The goal of the new regime is to enable settlors to impose mandatory arbitration of all internal trust disputes and questions so as to avoid any need to involve the court. In addition to introducing mandatory arbitration, the legislation also provides for wide powers, equivalent to those of the court, to be given to the arbitral panel, including express provision for the appointment of representatives on behalf of minor, incapacitated, and unborn beneficiaries.
III Trust Arbitration as a Matter of National Law, 17 Trust Arbitration in Switzerland
Authors: Tina Wüstemann , Roman Huber
Published: June 2017

This chapter argues that Switzerland’s importance as centre for trust services as well as its longstanding tradition in international arbitration make it a perfect venue for trust arbitration, particularly in light of the scarcely developed arbitration law and practice in several offshore trust jurisdictions. Against this background, it examines whether trust disputes can be arbitrated in Switzerland, with a particular focus on the recognition of arbitration clauses in trust deeds. While Switzerland does not provide for the institution of trusts in its substantive law, it has ratified the Hague Trust Convention with took effect from 1 July 2007 and has enacted new conflict of law provisions, in particular Articles 149a to 149e of the Private International Law Statute (PILS), which operate so as to allow the full ‘implantation’ (or incorporation) of foreign trusts into Swiss law.
Broches’s “Working Paper”
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. For their work on what became the ICSID Convention, the Executive Directors convened a committee of the whole comprising all of the Executive Directors. Called the Committee of the Whole on the Settlement of Investment Disputes, it held six initial meetings during the period from December 1962 to June 1963. In these meetings, the Executive Directors discussed the Working Paper in the form of a Draft Convention for the Resolution of Disputes between States and Nationals of Other States. Broches had submitted this Working Paper to the Executive Directors in June 1962. The chapter examines the Working Paper and the discussions of it in the Committee of the Whole.
Finalizing the Text 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. The day after the adoption of the resolution, the President of the Bank addressed a letter to all member countries notifying them, as planned, that they could each designate a representative to serve on the committee of legal experts which would commence its work the next month. Enclosed with the President’s letter was a first Draft Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the First Draft). It was to serve as a working paper for the meetings of the committee. The chapter describes the First Draft, the meetings of the committee of legal experts and the concluding steps in the formulation of the Convention.
Establishment and Launch of the Centre
Authors: Parra Antonio R
Published: June 2017

This chapter details the bringing of the Convention into force in 1966 and the launch of the Centre in 1967. It covers the inaugural meeting of the Administrative Council, the Provisional Regulations and Rules of the Centre, the Memorandum of Administrative Arrangements and the first annual meeting of the Administrative Council.
“The Premier International Investment Arbitration Facility in the World”
Authors: Parra Antonio R
Published: June 2017

This chapter examines activities of the Centre from the start of 2011 to the end of June 2015. Almost 50 percent more cases were registered at ICSID in that period compared to the previous five years. The chapter provides some statistics on the cases of this period. As in the decade before, it shows, most the cases were brought to ICSID on the basis of the dispute settlement provisions of investment treaties, mostly bilateral investment treaties (BITs) (in over 60 percent of the cases). A large proportion of the cases (more than ten percent) came to ICSID under the Energy Charter Treaty (ECT). Cases submitted to the Centre pursuant to the dispute resolution clauses of investment contracts made up for a smaller share of the total. A handful (5 percent) of the cases were initiated under dispute settlement provisions of an investment law of the host State. The chapter then looks at institutional developments of ICSID during the period and considers new challenges that ICSID might meet in the future.
Experiences and Suggestions Regarding the Functioning of International Arbitration Institutions
Authors: Böckstiegel Karl-Heinz
Published: June 2017

This chapter first discusses the role of institutions in international arbitration in general, specifically institutional versus ad hoc arbitration and the different roles of arbitral institutions. It then describes the author’s own experiences as an active arbitrator under the rules of various arbitral institutions throughout the world and also as President of the Iran-United States Claims Tribunal at The Hague, President of the LCIA, and President of the DIS. Next, the chapter presents some recommendations on how the work of arbitral institutions may be improved based on the author’s personal experiences. It concludes with the suggestion that all those involved in the interaction between the institution, the parties, and the tribunal suppress their egos as much as possible. No matter how much experience one has, one must still listen, keep an open mind, and be ready for compromise if it serves the smooth conduct of the procedure within the applicable rules.
The New 2014 LCIA Rules
Authors: Veeder V V
Published: June 2017

This chapter discusses the revised rules of the London Court of International Arbitration (LCIA). The revisions fall into two basic groups: changes to correct earlier drafting inconsistencies (from 1981 to 1998), inaccurate reflections of actual LCIA practice, and excessively English legal language for an international arbitration; and new procedures decided by the LCIA. These revisions include the increased use of electronic communications by parties with the LCIA registry and LCIA tribunals, particularly for starting an LCIA arbitration; the procedure for an emergency arbitrator; changes to the default arbitral seat of an LCIA arbitration; the consolidation, etc., of different arbitrations for multi-party disputes; and a solution to the ‘Slovenia’ problem regarding potential conflicts between an arbitrator and a party’s legal representative.
Meeting the Requirements of Article 3(3) of the IBA Rules
Authors: McNeill Mark , Ryan Margaret Clare
Published: June 2017

The International Bar Association (IBA) Rules on the Taking of Evidence, first issued in 1999, were designed as a tool for parties and for arbitrators to promote ‘an efficient, economical, and fair process for the taking of evidence in international arbitration’. Article 3 of these Rules, concerning the taking and presentation of documentary evidence, is arguably the central provision given the important role played by documentary evidence in international arbitral proceedings compared to other means of evidence. However, disputing parties often debate the practical application and interpretation of Article 3-particularly relating to Article 3.3, which sets forth the positive requirements that a party must meet when submitting a request to produce documents that are in the control of an opposing party (a ‘Request to Produce’). This chapter explores the most debated criteria of Article 3.3 in order to identify the characteristics of a well-drafted Request to Produce. Meeting the Article 3.3 requirements will assist a party in advancing its case by obtaining the production of vital and specific documents in an adversary’s possession. It will also promote an efficient and cost-effective process of taking evidence in international arbitration.
‘Other Costs’ in International Arbitration
Authors: Berard Marie
Published: June 2017

This chapter explores the types of costs that may be awarded in arbitral proceedings, analysing the underlying principles governing the recoverability of costs in international arbitration. In particular, it focuses on how claims relating to the costs of in-house legal counsel; staff and senior management; and third-party funding arrangements are generally decided by arbitral tribunals. While most arbitral rules expressly allow for the recovery of arbitral costs and reasonable legal fees incurred by external counsel, the position is less clear where the fees of in-house lawyers, lost management time, or third-party funding arrangements are concerned. In theory, in-house counsel fees should be recoverable where parties are able to demonstrate the reasonableness and necessity of these costs. As for management costs, a party should in principle be able to recover such costs in arbitration if it can prove that the time spent on the arbitration caused substantial disruption to its business. Costs underwritten by a third-party funding arrangement should, in principle, be similarly recoverable provided the funding arrangement was agreed at arm’s length and is permitted under the applicable laws.