bluuebunny/crossref_metadata_2025 huggingface dataset:
Public Diplomacy and its Offshoots
Authors: Fletcher Tom
Published: June 2017

This chapter discusses public diplomacy, particularly in the context of the digital age. Diplomats now have an increasingly public role to play in projecting their government’s message locally, not just by media appearances and newspaper articles, but by regular use of social media, blogging, Twitter, and evolving techniques. And though technological change has been largely beneficial, the chapter also points to the challenges that technology brings to the field. Diplomats will be part of the debate on our digital rights, tackling the toughest issues around trust and transparency, and helping to find the balance between freedom of expression and the rights of others. Governments will continue to lose their monopoly on information and influence. Secrets will become harder to justify and harder to keep. And in the midst these the role of diplomats is being transformed faster than at any point in history.
Non-Governmental Organizations (NGOs) and Violent Non-State Actors (VNSAs)
Authors: Roberts Ivor
Published: June 2017

This chapter examines both non-governmental organizations (NGOs) and violent non-state actors (VNSAs). NGOs come in many shapes and sizes. Many have a charitable base and some will have humanitarian or human rights objectives; others focus on sustainable development and aid. Often their concern will be a single issue. Their objectives are focused and invariably single-minded, less able or willing to take into account other aspects. As a result, their relationship with governments, although sometimes harmonious, may be one of tension and occasionally confrontation. VNSAs, meanwhile, represent other categories of non-state actors whose activities are at the opposite pole to those whose benign activity has been described above and where states have lost their monopoly. Their categories number warlords, militias, insurgencies, and criminal organizations, including pirates and people traffickers.
Secret or Back-Channel Diplomacy, Secret Intelligence, Religious and other Unconventional Diplomatic Actors
Authors: Roberts Ivor
Published: June 2017

This chapter covers unconventional diplomatic actors. Secret or back-channel diplomacy can be described as a line of diplomatic communication which bypasses the normal diplomatic channels, in order to maximize secrecy and avoid opposition to a new line of policy. Secret intelligence, in contrast, is distinguished by intelligence gathering, and is conducted by intelligence officers rather than diplomats or ministers. Religious diplomacy presents another category of unconventional diplomacy, as religious bodies remain active in international relations due largely to their spiritual and humanitarian concerns. Security consultancies also offer a different kind of diplomacy, by providing their business-orientated political analysis to companies and on occasion governments and mediating in areas where governments fear to tread. Finally, multinational corporations are also involved in diplomatic activity.
International Conferences
Authors: Berman Frank , Bentley David
Published: June 2017

This chapter discusses international conferences in the more formal sense of high-level meetings of state representatives for the discussion or settlement of questions of international concern. Many of the functions served by international conferences are nowadays equally capable of being performed either by a separate conference convened for a specific purpose or alternatively through the medium of a plenary gathering of the principal organ of an international organization. A common solution is for a conference to be convened by decision of an international organization, but to take place separately from the meetings of the organization itself. One increasingly common modern format is for multilateral treaty arrangements to provide for periodic ‘Conferences of the Parties’. These may be simply for reviewing the operation of the treaty, or they may have specific functions conferred on them by the parent treaty for the modification, amendment, or supplementation of the treaty arrangements themselves.
Treaties and other International Instruments—III Pact, Act, Modus Vivendi , Declaration, Exchange of Notes, Memorandum of Understanding
Authors: Berman Frank , Bentley David
Published: June 2017

This chapter continues the typology of treaties begun in the previous chapter. ‘Pacts’ in an international context refer to formal agreements between States. ‘Act’ meanwhile constitutes a piece of international law-making and may embody the decisive terms of the treaty complex. ‘Modus vivendi’ is used for a temporary or provisional agreement. ‘Declarations’ may be defined under the general heading of ‘unilateral acts’. The treaty concluded in the form of an Exchange of Notes or letters is the most frequently used device for formally recording the agreement of two governments upon all kinds of transactions. An MOU records international ‘commitments’, but in a form and with wording which expresses an intention that it is not to be legally binding. Finally, the term ‘Final Act’ is normally used to designate a document recording the formal summary of the proceedings and outcome of an international conference.
The International Criminal Court
Authors: William A Schabas
Published: June 2017

Established as one of the main sources for the study of the Rome Statute of the International Criminal Court, this volume provides a detailed analysis of the Statute; the detailed analysis draws upon relevant case law from the Court itself, as well as from other international and national criminal tribunals, academic commentary, and related instruments such as the Elements of Crimes, the Rules of Procedure and Evidence, and the Relationship Agreement with the United Nations. Each chapter includes accompanied by an overview of the drafting history as well as a bibliography of academic literature relevant to the provision. The text aims to avoid duplication and inconsistency, providing a comprehensive presentation to assist those who must understand, interpret, and apply the complex provisions of the Rome Statute. The fully updated second edition of this book incorporates new developments in the law, including discussions of recent judicial activity and the amendments to the Rome Statute adopted at the Kampala conference.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.11 Jurisdiction ratione temporis /Compétence ratione temporis
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 11 of the Rome Statute of the International Criminal Court. Article 11 states that the Court only has jurisdiction over crimes committed since its entry into force, that is, since July 1, 2002. Article 11(1) is related to articles 22 and 24, both of which also contemplate the temporal application of the Statute. In particular article 24(1), which specifies that ‘No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute’, essentially restates the norm expressed in article 11(1), although from the standpoint of individual criminal responsibility rather than jurisdiction ratione temporis. In the case of States that become party to the Statute subsequent to July 1, 2002, the Court may only exercise jurisdiction with respect to crimes committed since the date of entry into force for that State.
Recent Cases on Deposit Guarantee Schemes
Authors: Kleftouri Nikoletta
Published: June 2017

The 2008–11 Icelandic financial crisis involved the collapse of all three of the country’s major banks. All domestic assets were transferred to new public-owned domestic versions of the banks, while leaving the foreign parts in receivership and liquidation. The Icesave case relates to the dispute between Iceland, on the one hand, and the United Kingdom and Netherlands, on the other, over the protection of depositors with the UK and Dutch branches. A few years later, in Cyprus, a €10 billion international bailout by the Eurogroup, European Commission, European Central Bank, and International Monetary Fund was announced, in return for Cyprus closing its second-largest bank, the Cyprus Popular Bank, and imposing a one-time bank deposit levy on uninsured deposits of the Cyprus Popular Bank and the Bank of Cyprus. This chapter discusses the two cases, focusing on their impact and the lessons learnt in relation to deposit insurance arrangements.
Arab Monetary Fund v Hashim and others, 21 February 1991, United Kingdom House of Lords, 85 ILR 1
Authors: Schmalenbach Kirsten
Published: June 2017

This article examines the question of what is the legal basis for granting foreign international organizations legal personality under the law of a state which is neither a party to the founding instrument nor the host state. In the considered case the House of Lords was faced with the task of deciding on the legal personality status of the Arab Monetary Fund (AMF) after the organization instituted fraud proceedings against a former Director General in the United Kingdom. As the founding treaty of the AMF had not been incorporated into UK law, the organization was not recognized under domestic law. The House of Lords took recourse to the federal decree of the United Arab Emirates (UAE) which had granted the AMF domestic legal personality.
Cases 7/56 and 3/57–7/57, Algera, Court of Justice of the EC, [1957–8] ECR 39 and Case C-327/91, France v Commission, Court of Justice of the EC, [1994] ECR I-3641
Authors: Klabbers Jan
Published: June 2017

This note discusses two classic decisions of the CJEU involving the (possible) annulment of administrative measures. In Algera, it concerned an employment decision; in France v Commission, the decision to adopt an informal international agreement. The Court on both occasions sketches some of the requirements, and both cases shed an intriguing light on the ever-problematic relationship between EU law and international law.
Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v Greece), Judgment, [2011] ICJ Rep 644
Authors: Barros Ana Sofia
Published: June 2017

The present case addresses the responsibility of states for their own conduct performed in the framework of international organizations. The matter at stake concerned the responsibility of Greece for its objection to FYROM’s candidacy for membership in NATO, which eventually led to latter’s decision to refuse FYROM’s admission. Contrary to Greece’s contention that the decision had been taken by NATO as a whole, and that it was thus solely attributable to it, the ICJ lifted the institutional veil and rather concentrated on the legality of the individual conduct of Greece. In this decision, the Court confirmed that member state participation in institutional decision-making processes can, in its own right, constitute legally relevant conduct against which state compliance with earlier international law obligations may be judged.
Interpretation of the Greco-Turkish Agreement of 1 December 1926, Permanent Court of International Justice, Advisory Opinion, [1926] Publ. PCIJ, Series B, No. 16
Authors: Montejo Blanca
Published: June 2017

In 1923, Greece and Turkey entered into the Treaty of Lausanne to regulate the orderly transfer of Greek and Turkish populations displaced by the First World War. The treaty established a Mixed Arbitral Tribunal and a Mixed Commission to deal with property issues ensuing from the transfer of populations. However, a dispute arose in the implementation of the treaty which was ultimately referred to the Permanent Court of International Justice (PCIJ) for an advisory opinion. In its decision, the PCIJ sketched some of the main features of the international legal personality of international organizations and articulated the basic elements of the implied powers doctrine, thereby initiating the path towards consolidating the role of international organizations as international actors in their own right with powers beyond those strictly attributed to them by their establishing treaties. Some authors have assessed the performance of the Court in critical terms.
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, Judgment, [1986] ICJ Rep 14
Authors: Boisson de Chazournes Laurence , Gadkowski Andrzej
Published: June 2017

International organizations can contribute to the formation of international law as can be seen from the Military and Paramilitary Activities in and against Nicaragua case. The legal nature and effects of acts of international organizations, in relation to the principles of non-intervention and the non-use of force, are discussed having reference to the resolutions of the United Nations General Assembly, of the Organization of American States, and to the Helsinki Final Act. The impact and effect of unilateral acts of international organizations are analyzed in a wide context—that of international law-making and the sources of international law. Focus is put on the twofold relationship between acts of international organizations and customary international law, that is as evidence of customary law and with respect to its impact on its creation. Remarks are also made on the role of these acts in treaty interpretation.
Case T-315/01, Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, 21 September 2005, [2005] ECR II-3649 (Kadi I CFI); Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission, Court of Justice of the EC [2008] ECR I-6351 (Kadi I ECJ); Case T-85/09, Kadi v Commission [2010] ECR II-5177 (Kadi II GCEU); Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and United Kingdom v Kadi, Judgment of the Court (Grand Chamber) of 18 July 2013 (Kadi II CJEU)
Authors: Tzanakopoulos Antonios
Published: June 2017

This casenote reviews and discusses the series of decisions regarding sanctions imposed by the UN Security Council against Yassin Abdullah Kadi, as implemented in the EU legal order. In this series of cases, the EU Courts at different times take different positions regarding the relationship of the UN and the EU legal order, as well as their power to review EU acts implementing Security Council sanctions and (indirectly) the sanctions themselves. The series of cases marks a watershed moment in UN Security Council targeted sanctions, forcing EU member states to disobey them and eventually leading to the creation and strengthening of an internal UN review mechanism, the Office of the Ombudsperson.
Case 21-24/72, International Fruit Company v Produktschap voor Siergewassen, Court of Justice of the EC, [1972] ECR 1219
Authors: Kuijper Pieter Jan
Published: June 2017

The International Fruit Company case is rightly famous for two reasons: (1) the succession of the European Community to its member states in the General Agreement on Tariffs and Trade (GATT) and (2) the lack of direct effect of art. XI (the prohibition of quantitative restrictions) and of the GATT in general. On point (2) the case has largely lost its initial relevance, since the Court of Justice (ECJ), though still of the same view with respect to the GATT’s successor, the WTO, has considerably developed and refined its initial reasoning. It is on point (1) that the case has continued importance, because it sheds light on the comparable, but different situation in which the EU effectively follows the rules of international organizations or of treaty bodies, to which all member states are parties, but without the possibility for the EU to accede to these organizations and treaty bodies.
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, [1980] ICJ Rep 73
Authors: Brölmann Catherine
Published: June 2017

The 1980 WHO Advisory Opinion elaborates on the general legal obligations (grounded in the duty of co-operation and good faith) that are part of the relationship between an international organization and its host state. In this opinion the ICJ possibly for the first time articulated this relationship as a set of mutual obligations between legal equals. The opinion moreover enunciates the sources of international legal obligations binding upon international organizations (IOs): the treaties they conclude (uncontroversial); I customary international law; their constitutions. The Court uses the proverbial reassurance of UN member states in saying that the WHO is not a ‘super-state’. Finally, in accepting jurisdiction the Court explicitly separated the legal character of the question from the political considerations motivated by that question.
Arab Organization for Industrialization and others v Westland Helicopters Ltd, Swiss Federal Supreme Court (First Civil Court), 19 July 1988, 80 ILR 652
Authors: Ahlborn Christiane
Published: June 2017

This chapter discusses the decision of the Swiss Federal Supreme Court in Westland Helicopters. It forms part of an appeal brought by the Arab Republic of Egypt (ARE) against an earlier arbitral award against the ARE and other respondents. The Tribunal had held that AOI member states, including the ARE, had agreed to arbitration by virtue of the AOI constitution. The Swiss Federal Supreme Court partly reversed this award by upholding the separate legal personality of the AOI. As a result, AOI member states, in particular the appealing ARE, could not be subjected to international arbitration. The Swiss Federal Supreme Court thus set the stage for the contemporary view on the question of the responsibility of member states of international organizations: due to the separate legal personality of an international organization, its member states cannot be held responsible for acts of the organization by virtue of their membership alone.
Admissibility of the Application by Vlastimir and Borka Banković, Živana Stojanović, Mirjana Stoimenovski, Dragana Koksimović, and Dragan Suković against Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, The Netherlands, Norway, Poland, Portugal, Spain, Turkey, and the United Kingdom, European Court of Human Rights, Grand Chamber Decision, [2001]
Authors: Scovazzi Tullio
Published: June 2017

The Bankovic case is one of few cases in which the European Court of Human Rights took a position that, without an acceptable explanation, restricts the application of rights granted by the European Convention on Human Rights. The application was submitted by individuals who put forward that in 1999 seventeen states parties violated art. 2 (right to life) of the Convention by bombing by aircraft the television and radio station in Belgrade. As a consequence of this NATO directed operation sixteen civilians were killed and another sixteen were seriously injured. The Court found that it had no jurisdiction to entertain the case, as at that time Yugoslavia was not a party to the Convention. The Court gave a too restrictive interpretation of the word ‘jurisdiction’ to basically conclude that the Convention applies only within the territory of states parties. The Bankovic decision has been contradicted by subsequent judgments.
Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, [1999] ICJ Rep 62
Authors: Wickremasinghe Chanaka
Published: June 2017

The advisory opinion is one of the relatively few cases that have required the International Court of Justice to consider directly issues related to the immunity of an international organization (in this case the UN). It provides important guidance on how to delineate between activities that are pursued by the UN and its officials in an official capacity, which are therefore entitled to immunity, and activities which are pursued in some other capacity and therefore are subject to national jurisdiction. At a procedural level the case is significant as the first occasion on which the process of so-called ‘binding advisory opinions’ under art. VIII, Section 30 of the 1946 Convention on the Privileges and Immunities of the United Nations has been invoked, leading in itself to some interesting questions about the adaptation of the Court’s advisory jurisdiction to a more formal mode of dispute settlement.
Mothers of Srebrenica v The Netherlands and the UN, LJN: BW1999, Dutch Supreme Court, 13 April 2012 and Stichting Mothers of Srebrenica and Others against The Netherlands, App. No. 65542/12, European Court of Human Rights, 11 June 2013
Authors: Momirov Aleksandar
Published: June 2017

Increasingly, domestic and regional courts have engaged in reinterpreting the international law on immunities. The two present decisions add to a broader jurisprudential development through which courts have started to question the scope of immunity enjoyed by international organizations—or rather the unconditionality thereof—as a response to human rights-based critique. Whether or not international organizations enjoy immunity before a domestic court should, according to this developing approach, depend on a balancing act between, on the one hand, the functional interests of the international organization and, on the other hand, the individuals’ right of access to court. The decisions discussed in this section illustrate this doctrinal development as well as the limits of this developing line of jurisprudence by confirming that the immunity of the UN, as a sui generis international organization, shall not be subjected to the aforementioned balancing act.
Calculation of Compensation and Damages in International Investment Law
Authors: Marboe Irmgard
Published: June 2017

Fully revised and updated from the successful first edition, this title analyses the practice of international courts and tribunals with regard to the valuation of investment claims against states, paying specific attention to the question of interest. This new edition incorporates new jurisprudence, updates existing cases, and includes a new section on immaterial damage. The new edition also contains extensive annexes devoted to ICSID cases and non-ICSID investment cases, as well as a table on methods of valuation in international practice.
Interest
Authors: Marboe Irmgard
Published: June 2017

Interest can represent an important portion of the award depending on the time between the origin of the claim and the actual payment of compensation or damages. It can sometimes even exceed the principal. This chapter discusses the three most important issues with regard to the determination of interest: 1) the rate of interest, 2) the period of interest, and 3) the question of whether interest should be compounded. A differentiation between ‘pre-award interest’ and ‘post-award interest’ seems advisable as the former represents an item of compensation or damages, while the latter could be regarded as default charges for the non-payment of a debt. Post-award interest should additionally encourage prompt compliance with the award.
The Selection of Arbitrators
Authors: Carter James H
Published: June 2017

This chapter discusses the process of selecting arbitrators. Arbitrators are often selected based on the counsel’s prior experience with them, in one connection or another. Sometimes, in the absence of such information, counsel may make a selection simply on the basis of the arbitrator’s reputation. The selection may be made without any contact with the prospective arbitrator but, typically, counsel prefer to interview one or more arbitrator candidates to determine first-hand what a prospective arbitrator’s actual experience, commitment, and availability are. The rules governing such arbitrator “beauty contests” are addressed, to some extent, by the American Arbitration Association/American Bar Association Code of Ethics for Arbitrators in Commercial Matters (AAA/ABA Code of Ethics) and some arbitration rules.
Enforcing International Arbitration Agreements
Authors: Fellas John , Elul Hagit
Published: June 2017

This chapter addresses the enforcement of agreements to arbitrate, the question of what one party to an international contract should do when the other fails to comply with its agreement to arbitrate. It addresses three basic issues. The first is whether one party can proceed with the arbitration and obtain an enforceable award even if the other party fails to participate in the arbitration. Secondly, the chapter inquires as to whether one party can seek the intervention of the courts to enforce its agreement to arbitrate in the event that the other party to the arbitration agreement refuses to arbitrate or commences litigation notwithstanding its agreement to arbitrate. Finally, the chapter looks into whether one party can obtain damages against the party that has breached its obligation to arbitrate.
Discovery
Authors: Gardiner John L , Kuck Lea Haber , Bédard Julie
Published: June 2017

This chapter considers the laws and practices pertaining to discovery. Discovery refers both to the process whereby the parties exchange information among themselves and also seek information from third parties in order to assess the merits of their respective cases, prepare for an evidentiary hearing on the merits of their dispute, and make necessary submissions to the arbitration tribunal. When the arbitration is venued in New York, the first issue for consideration is what the arbitration agreement itself provides, if anything, about the scope of permissible discovery. This is because both federal and New York law place party autonomy at the top of the pyramid of considerations when looking at the applicable procedure for an arbitration, including discovery issues. Arbitration rules and statutory provisions also are relevant.
Enforcing Awards Involving Foreign Sovereigns
Authors: King Brian , Yanos Alexander
Published: June 2017

This chapter outlines the unique differences in arbitrations involving sovereigns, as opposed to those involving private individuals, in particular discussing the strategies employed by counsel to address these differences. The chapter shows how private parties seek to insert certain provisions in the arbitration agreement to facilitate enforcement of an eventual award. At the time a dispute arises, private parties go to the New York courts to attempt to attach sovereign assets, and litigants also look to their arbitral tribunal for interim measures. After the award has been rendered, private parties attempt to attach sovereign assets before the relevant award is recognized by the New York courts. After recognition of the applicable award, private parties would then seek to identify attachable commercial assets and seize them.
The Bank Recovery and Resolution Directive
Authors: Enoch Charles
Published: June 2017

This chapter sets some aspects of the new resolution mechanism against the international financial sector standards that have emerged over the past decade. The harmonized resolution framework fostered by the Bank Recovery and Resolution Directive (BRRD) will significantly improve resolution capacity and may be as far as we can go without making amendments. Nevertheless, there are a number of deviations from the best practices identified in the relevant standards. The chapter discusses some of these deviations, such as the likely dominance of national representatives on the Single Resolution Mechanism (SRM) Board and the European Council power to modify and/or turn down a resolution proposed by the Board which may lead to divergences across Member States, and to possible inconsistencies with the Single Supervisory Mechanism (SSM).
Resolution in the UK and US
Authors: Krimminger Michael
Published: June 2017

This chapter explores the US and UK’s response to the 2007–9 Global Financial Crisis. In both cases, funding for the resolution and restructuring of failing financial companies came from public sources-generally national governments and central banks funded by the private creditors or other private sources. In the UK, the resolution actions relied solely on taxpayer financing. In the US, the government’s actions relied on Federal Reserve funding, Treasury funding through the Troubled Asset Relief Program (TARP), and Federal Deposit Insurance Corporation (FDIC) funding from the Deposit Insurance Fund. The chapter also assesses the role of bail-in under the Resolution Authorities and concludes with a brief summary of the UK and EU approach to single point of entry (SPOE) strategy.
The Rise and Fall of Lehman Brothers
Authors: Valukas Anton R , Byman Robert L , Murray Daniel R
Published: June 2017

This chapter begins by introducing the history of the status of Lehman Brothers in the financial world. It discusses the ranking of Lehman Brothers and the revenues recorded in 2007 and contrasts that to the status of the company in the following year. The fall of Lehman, the chapter argues, nearly took with it the entire global economy. The chapter goes on to argue that even though the company’s fall was spectacularly rapid, Lehman’s rise before that was far more storied and measured. It presents thorough detail on the rise of Lehman Brothers from the beginnings when Henry Lehman emigrated from Rimpar in Germany to the United States in 1844 to the time of the company’s dramatic demise in 2008. The chapter asks: why did Lehman fail? There were many reasons, the text of this chapter argues, and the responsibility for that failure is shared.
Lehman’s Derivative Portfolio
Authors: Lubben Stephen J
Published: June 2017

This chapter looks at the immediate cause of Lehman’s failure, which it argues was the repo market and the company’s inability to access funding for its operations at that time. Lehman’s derivatives were not the direct cause of its failure, but its derivatives, and the growth of the derivatives markets in general, led to the assumption of outsized risks and systemic weaknesses that facilitated the crisis. This chapter suggests that the continuation of the safe harbours ‘as is’ renders chapter 11 nonviable for larger financial institutions, and recent contractual attempts to work around the safe harbors are insufficient to solve the problem, while the increased role of clearinghouses in financial institution failures will force regulators to confront difficult choices. In short, the regulators will have to balance two competing systemic risks: the risk of an unruly resolution of the financial institution, balanced against increased risk to the clearinghouse.
How Has English Law Coped with the Lehman Collapse?
Authors: Briggs Lord Justice
Published: June 2017

The insolvent collapse of the Lehman Brothers group imposed unprecedented strains on the legal and regulatory systems of all the countries where its main business was based. This chapter’s author lived, during a period spanning 2009–2012, in the eye of this storm (in the respect that it has affected England). The author was the judge in charge, at least of the case management, since early on in the litigation following the collapse of the numerous applications for directions made by the administrators of Lehman Brothers International Europe (LBIE), the main hub company for Lehman group business in Europe, and one of the group’s three main trading companies worldwide. He was the first instance trial judge for all those applications, except the first, which was dealt with (to the complete satisfaction of the Court of Appeal) by Mr Justice Blackburne before his retirement. The amounts at stake were, by comparison with anything in which a lawyer is ordinarily involved, on the bench or at the bar, truly astonishing.
Lessons of LBIE
Authors: Benjamin Joanna
Published: June 2017

Two notable traumas followed the failure of Lehman Brothers on 15 September 2008. The first was the catastrophic delivering that affected wholesale financial institutions in 2009, as the post-LBIE markets went into free-fall. The second was the very long delays in the return of client assets held by in the UK Lehman Brothers International (Europe) (LBIE). The systemic failure has been associated with the reuse of securities collateral in general. Some have argued that the client asset delays were associated with a category of reuse, known as rehypothecation, in particular. Regulatory reforms have been introduced with a view to addressing both. However, this chapter argues that the true lesson of both failures is not yet fully reflected in regulation. This is the profound impact of shadow banking, and the reuse of securities collateral within it, upon client asset protection and systemic risk management alike.
The Scope and Application of the Anti-Deprivation Rule
Authors: Worthington Sarah
Published: June 2017

This chapter begins by explaining why anti-deprivation rules are important. These anti-deprivation rules are designed to prevent parties from contracting out of the insolvency legislation. In particular, an insolvent cannot agree to a depletion or distribution of its property other than in accordance with the statutory insolvency distribution scheme. The chapter describes the Lehman context as it relates to the anti-deprivation rule, the relevant UK rules (all non-statutory),the basis of the UK Supreme Court’s findings in the Lehman litigation, and the various questions which remain difficult—sometimes exceedingly so—yet which may well need to be resolved should the issues reappear in future litigation.
The Arbitral Award
Authors: Kim Joongi
Published: June 2017

This chapter deals with the issues and developments in the area of arbitral awards. Chapter 5 of the Arbitration Act covers arbitral awards and closely follows most of the corresponding provisions of Chapter VI of the Model Law. One notable change under the new Article 32.4 is that arbitral awards no longer need to be deposited at a competent court but may be so done at the request of a party. In addition, as discussed in the previous chapter, a tribunal may award both costs and delay interest in its arbitral awards. Moreover, the cases discussed in this chapter deal more specifically with the content, form, and effect of arbitral awards; the types of awards; the tribunal’s ordering of remedies, damages, and profits; and the costs and interests to be specified in the awards.
Introduction
Authors: HP Lee
Published: June 2017

This introduction describes the constitutional developments in Malaysia. The Constitution of the Federation of Malaysia functions for an ever-increasing population estimated at 30.26 million in 2015; ethnic groups comprised of Malay, Chinese, indigenous, Indian, and others; and diverse religions including Islam, Buddhism, Christianity, Hinduism, and others. The Constitution envisages a separation of powers doctrine, dividing powers amongst the different organs of government. Legislative power resides in the Federal Parliament, whereas judicial power, before 1988, was vested in the judiciary. The executive authority of the Federation is vested by Article 39 in the Yang di-Pertuan Agong (or King) and is exercisable, subject to the provisions of any federal law and the Second Schedule of the Constitution, by him, the Cabinet, or any minister authorized by the Cabinet. Constitutional conflicts in 1983, 1988, and 1992–23 altered the equilibrium in the powers balance by eroding the influence of the Rulers and judiciary.
5 The Judiciary under Siege: The 1988 Crisis
Authors: HP Lee
Published: June 2017

This chapter explores the constitutional and political dimensions of the crisis that rocked the Malaysian judiciary in 1988. For the first time in Malaysian legal history, the highest judicial officer in the land was suspended and, after an inquiry to determine whether he should be removed for alleged misbehaviour, was subsequently removed. Following this unprecedented development, two other senior judges of the Supreme Court were also removed from office after an inquiry by a second tribunal. The political dimension cannot be divorced from the constitutional dimension because the legal and constitutional manoeuvrings were consonant with political skirmishes that involved, at one stage, the political survival of Prime Minister Mahathir.
6 Reforming the Judiciary: A Triumph of Form over Substance?
Authors: HP Lee
Published: June 2017

The dismissal of Tun Salleh Abas and two senior Supreme Court judges was traumatic from the viewpoint of the dismissed judges; it also had a demoralizing impact on the judiciary and severely dented public confidence in them. In 2008, Chief Justice Dato’ Abdul Hamid Mohamad, in addressing a Judges’ Conference, said, ‘We cannot deny that the Judiciary is now suffering from negative perceptions by the public…. Politicised to the hilt, the full effect is now felt and we bear the burden of trying to redeem those negative perceptions.’ The chapter contains an excursus on a number of episodes arising in the aftermath of the 1988 judiciary crisis, which sapped public confidence in the judiciary as an independent and impartial institution. It then analyses the reforms introduced under Prime Minister Abdullah Badawi, considering their efficacy in restoring public confidence in the judiciary.
7 The Islamization Phenomenon: The New Constitutional Battlefront
Authors: HP Lee
Published: June 2017

This chapter examines the phenomenon of Islamization in Malaysia. The hallmark of Islamism is its ‘quintessentially political agenda’ involving ‘the politicization of Islam through the aligning of structures of governance and society with Islamic strictures’. In contemporary Malaysia, Islamization puts into the spotlight the reconciliation of this phenomenon with the Malaysian Constitution, which was crafted as a governing instrument for a multiracial, multilingual, and multireligious society. The general unease of the non-Muslim segment of Malaysian society was aggravated by a highly publicized pronouncement of Prime Minister Mahathir, on 29 September 2001, that Malaysia was already an Islamic State. The remainder of the chapter discusses controversial episodes that have engendered concern over the Islamization phenomenon and its significance for constitutionalism in Malaysia.
Arbitration of International Mining Disputes
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

International mining disputes represent a significant and growing area of disputes over natural resources, yet the unique risks inherent in the mining industry set them apart, both in the nature of the disputes and the approach taken to resolve them. International arbitration has emerged as the mechanism of choice for the resolution of such disputes. This has given rise to a wealth of arbitral decisions from which certain principles specific to the mining sector are developing. This book brings together thorough analysis of arbitral decisions and insightful commentary on both dispute resolution and the business of mining, in order to provide a comprehensive guide to arbitration in the mining sector. Part I introduces the different parties involved in international mining projects; Part II explains the main risks and challenges involved in mining projects and how they result in different types of disputes; Part III provides practical advice for parties and counsel involved in international mining disputes, including in-depth analysis of the confidentiality issues that so often arise in connection with international mining disputes and the conditions and strategies for the settlement of these disputes; and Part IV examines the substantive principles applicable to international commercial and investor-State mining disputes.
Mining Companies
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

Mining companies are corporations or partnerships primarily involved in the exploration or production of metal or mineral deposits. There are approximately 2,100 mining companies in the world today, 100 of which are referred to as majors and 200 as mid-tier. Approximately 1,700 junior mining companies (referred to as juniors) constitute the vast majority of mining companies in existence today. These juniors are typically focused on mining exploration and often do not generate revenues. Finally, approximately 80 State-owned national mining companies (NMCs) play a significant role in the global mining industry. This chapter discusses each of these four categories of mining companies in detail, in relation to their respective focus, risks undertaken, and types of investment they attract and disputes in which they may find themselves involved.
Advantages of Arbitration for International Mining Disputes
Authors: Burnett Henry G , Bret Louis-Alexis
Published: June 2017

This chapter discusses arbitration for international mining disputes. Such disputes often involve parties from different countries often with different legal systems and cultures. Arbitration in a neutral forum, with independent and impartial decision-makers, as opposed to litigation in the national courts of one party or the other, is, in most cases, the preferred international dispute resolution mechanism. Some of the more well-known international institutions include the International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), International Centre for Dispute Resolution (ICDR), and the International Centre for Settlement of Investment Disputes (ICSID). The remainder of the chapter provides a general overview of the role of national courts in connection with the international arbitration process and some of the primary issues that involve consideration by national courts.
Part II The Relationship Between the Legislature and the Executive, 3 Parliamentary Sovereignty or Presidential Imperialism?: The Difficulties in Identifying the Source of Constitutional Power from the Interaction Between Legislatures and Executives in Anglophone Africa
Authors: Francois Venter
Published: June 2017

This chapter examines the constitutional relationships between the executive and the legislature in Anglophone Africa, focusing on Ghana, Kenya, Namibia, and South Africa. The independence of Anglophone Africa led to the establishment of constitutional institutions that were mostly based on the Westminster system, which hardly ever migrated well. The chapter shows that constitutional supremacy has displaced Westminster parliamentary supremacy, but the constitutions usually establish parliaments in the Westminster tradition as the central institutional check on the executive. In practice, however, parliamentary checks are rarely effective, which reveals conceptual uncertainties regarding the foundational source and appropriately balanced allocation of constitutional power. The difficulty lies therein that both the American and British examples from which respectively the presidential and parliamentary constructions of the constitutions are drawn, presuppose regular shifts in electoral outcomes based on political performance, whereas the African pattern tends towards long-term incumbency of dominant political groupings.
Part III The Relationship Between the Judiciary and the Political Branches, 7 Super-presidentialism in Angola and the Angolan Judiciary
Authors: André Thomashausen
Published: June 2017

This chapter recounts the history of constitutional developments in Angola leading up to the 2010 constitution. It introduces the new Angolan Constitutional Court and discusses the first and thus far only substantive decision of this Court—the Parliamentary Oversight Judgment of 9 October 2013—a serious constitutional conflict between parliament and the president. The Court held that the 2010 constitution had reduced the powers of parliament as compared to the previous text and that parliament lacked the power to question the executive or to summon ministers to hearings before it. Since these are presidential powers, the Court held, parliament may not arrogate them, though it may request the president to supply information or order his ministers before it. Although the conservative leaning of the Court in this dispute disappointed the opposition and many commentators, the judgment strengthened the rule of law and of the constitutional state.
Part III The Relationship Between the Judiciary and the Political Branches, 10 Judicial–Executive Relations in Nigeria’s Constitutional Development: Clear Patterns or Confusing Signals?
Authors: Ameze Guobadia
Published: June 2017

This chapter examines the relationship between the executive and the judiciary in Nigeria. It sketches the history of assertions of judicial power by Nigerian courts, including the 1966 action by the Supreme Court to assert the continued validity of the 1963 constitution in the face of a military coup. It considers the role of the National Judicial Council in appointing and disciplining judges, an important issue in many systems. It recounts the saga surrounding President of the Court of Appeal Justice Salami, which raises the troubling prospect of the Chief Justice ‘packing’ the Council and possibly colluding with the executive to pursue political goals and discusses the issue of disputes over the appointment of state chief justices, who are appointed by governors on the Council’s recommendation. It also offers the Nigerian perspective on control over judicial budgets and administration, before concluding with a review of some significant cases.
Part III The Relationship Between the Judiciary and the Political Branches, 11 Relations Between the Legislature and the Judiciary in Ethiopia
Authors: Assefa Fiseha
Published: June 2017

This chapter examines the relationship between the judiciary and the legislature in Ethiopia. The country has adopted a parliamentary system of government, but by contemporary standards, it has some unusual features. Its governments have historically blended judicial and executive functions, leaving the position of the judiciary somewhat unclear, and the Supreme Court has not tended to assert its power. There are signs of the use of legislative overrides to reverse individual decisions, and of ouster clauses to transfer jurisdiction on various issues from the courts to administrative tribunals within the executive. Although lower courts have attempted to review decisions of these tribunals, the Supreme Court has overruled them on the basis that it lacks jurisdiction. The highest ranks of the judiciary therefore seem to be accepting of a vision of the separation of powers in which other branches define the judicial role.
Part IV Independent Constitutional Institutions, 14 The Role of Emerging Hybrid Institutions of Accountability in the Separation of Powers Scheme in Africa
Authors: Charles M Fombad
Published: June 2017

This chapter discusses hybrid institutions of accountability: bodies such as Auditors-General and election commissions. Such bodies have long existed around the world, but they have traditionally been created by legislation. A number of recent African constitutions have begun to extend them formal constitutional status. The chapter assesses the extent to which these institutions can contribute towards checking against abuses of powers, enhancing accountability, and strengthening constitutionalism. It argues that the emergence of these institutions, far from demonstrating the failure of separation of powers in checking and controlling abuse of powers may well mark an important stage in the doctrine’s evolution and adaptation to the realities of modern constitutionalism. However, for these institutions to succeed, more efforts have to be made in their design to prevent them from being rendered ineffective.