bluuebunny/crossref_metadata_2025 huggingface dataset:
Specific Measures Relating to Archives Containing Names
Authors: Cadelo Valentina , Peterson Trudy Huskamp
Published: July 2018

Principle 17 requires that States provide specific safeguards to individuals who exercise their right of access to archives, in particular to know whether their personal information is included therein. This principle reflects contemporary standards related to access to archives, freedom of information, data protection and any other situation related to privacy rights. Every person is entitled to know whether his/her name appears in State archives and, if so, by virtue of their right to access, shall be given the opportunity to challenge the validity of the information concerning them. After providing a contextual and historical background on Principle 17, this chapter discusses its theoretical framework as well as the ways in which European institutions have addressed the issue of holding of names and personal information by state agents. It also highlights some of the problems and potential implications raised by Principle 17.
Restrictions on Justifications Related to Due Obedience, Superior Responsibility, and Official Status
Authors: du Plessis Max
Published: July 2018

Principle 27 deals with restrictions on justifications related to the doctrines of due obedience, superior responsibility, and official status. The defence of due obedience (or superior orders) is premised on the notion that orders must be obeyed and that subordinates often have little or no discretion to refuse to abide by orders of their superiors. The doctrine of command responsibility (or superior criminal responsibility), a creation of international criminal law, states that superiors are criminally liable if they fail to prevent or punish the crimes committed by their subordinates. Under international law in respect to international crimes, immunities are divided into functional immunity (immunity ratione materiae) and personal immunity (immunity ratione personae). This chapter first provides a contextual and historical background on Principle 27 before discussing its theoretical framework and how the doctrines of due obedience, superior responsibility, and official status have been applied in practice.
Disbandment of Parastatal Armed Forces/Demobilization and Social Reintegration of Children
Authors: Duthie Roger , Mayer-Rieckh Alexander
Published: July 2018

Principle 37 focuses on the disbandment of parastatal armed forces and the demobilization and social reintegration of children involved in armed conflicts. It articulates measures designed to prevent the transformation of conflict violence to criminal violence through the dismantling and reintegration of all armed groups engaged in abuses, and outlines comprehensive responses to the injustices experienced by children during armed conflict. This chapter first provides a contextual and historical background on Principle 37 before discussing its theoretical framework and practice. It then examines the importance of reintegration processes and how they can be affected by transitional justice measures, along with their implications for former child combatants. It also highlights the relevance of measures for dealing with unofficial armed groups from an impunity standpoint, as well as the efforts of disarmament, demobilization, and reintegration (DDR) programs to address them.
Introduction
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This introductory chapter provides an overview of the book, describing the law of assignment and intangible property. The law of assignment is concerned with intangible property. Traditionally, English law has tended to use the label choses (or things) in action to describe this species of property, and this term is still widely used. As a result, in order to understand the historical development of the law of assignment, it is at times necessary to make use of the term ‘chose in action’. Intangible property is classified into six different types: rights or causes of action; debts; rights under a contract; securities; intellectual property; and leases. It comprises both legal and equitable property. The distinction between law and equity looms large in assignment, and is one of the reasons for the subject's complexity.
Negotiation and the Transfer of Money
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter focuses on the concept of negotiation and the transfer of certain negotiable instruments, such as bills of exchange, cheques, and promissory notes. These instruments are defined as negotiable because they are all subject to the special regime for transfer, or negotiation, that represents an exception to the rule that choses in action cannot be transferred at common law. The practice of indorsing bills of exchange as a means of transferring the right to payment from one merchant to another appears to have arisen in the seventeenth century. Prior to that, bills of exchange had represented a means by which two merchants could exchange credit balances standing to their name, typically in different cities or countries. The practice of indorsing bills changed this: now the holder was the beneficiary of the right to payment, even if not a party to the original exchange transaction.
Transfer of Choses in Action on Trust
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter discusses the transfer of choses in action on trust. There are two different ways of constituting a trust, whether of a chose in action or of other property. A trust can be constituted either by the settlor declaring that property held by him is to be held by him on trust, or by the settlor transferring property to trustees and declaring the trusts on which such property is held by the trustees. The chief difference between these two mechanisms for the creation of a trust is that the latter involves the transfer of property from settlor to trustees, whereas the former does not. Where the trust property is a chose in action, the transfer of the property to trustees inevitably involves an assignment. To this extent, therefore, there is overlap in the requirements for a successful assignment and the requirements for a successful transfer to trustees.
The Transfer of Equity and Debt Securities
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter examines securities trading. Although securities are classed as choses of action, they have long been subject to special statutory schemes. In particular, the transfer of shares has long been subject to a registration requirement that importantly supplements the general law of assignment. The requirement for registration arose as a matter of historical necessity. Meanwhile, the modern statutory scheme relating to securities transfers was necessitated by the explosion of financial trading activity following the deregulation of the UK markets, or Big Bang, in the late 1980s. Almost all modern securities transactions are effected by means of electronic exchanges, which have replaced the open-outcry floor-based systems that operated in the past. The chapter then looks at the characteristics of these exchanges, the regulatory framework in which they operate, and the clearing houses on which they depend.
Extinction of Intangible Property
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter focuses on the extinction of intangible property. The transfer of an intangible does not involve the extinction of that intangible. It does, or should, entail the extinction of the assignor's interest in the intangible. The chapter looks at those circumstances in which an intangible is extinguished or lost against all the world: in other words, those cases where the intangible ceases to exist. In such a case, it is self-evident that rights in the thing must also cease: rights cannot exist in vacuo. Intangible property is, obviously, very different from tangible property, and the manner in which it can be extinguished differs in fundamental respects. Intangible property can be extinguished in one of three ways: through destruction, abandonment, or combination.
Insolvency and Assignment
Authors: Smith Marcus , Leslie Nico
Published: July 2018

This chapter discusses insolvency. Insolvency is significant in the law of assignment in a number of respects. In the first place, individual bankruptcy—although not the insolvency of companies—causes the bankrupt to be divested of his property, which automatically becomes vested in his trustee in bankruptcy upon the latter's appointment. So far as choses in action are concerned, this involves what can be termed a statutory assignment. The onset of insolvency—both individual and corporate—also causes the rules regarding assignments generally to change in certain respects. Thus, with the onset of insolvency: the rules regarding the assignability of present rights enforceable in the future change; the rules of champerty and maintenance change; and the rules of set-off change.
Ethics and Standards
Authors: Mccormick Roger , Stears Chris
Published: July 2018

In response to the issues that came to light as a result of the financial crises, the Parliamentary Commission on Banking Standards called for the establishment of a professional body to promote better standards of behaviour in banking. This chapter discusses the Banking Standards Board (BSB) and the FICC Market Standards Board (FMSB). The BSB commenced work in January 2016 and, at the time of writing, has twenty-two member banks and building societies. The aim to the BSB is to set standards of behaviour and competence for banks and building societies, and to define metrics against which they could benchmark. The FMSB was set up in 2015 ‘as a private sector response to the conduct problems revealed in global wholesale Fixed Income Currencies and Commodities (FICC) markets after the financial crisis’.
A Landmark Case and its Aftermath
Authors: Mccormick Roger , Stears Chris
Published: July 2018

This chapter discusses the case of Hazell v Hammersmith and Fulham London Borough Council, which had a profound effect on how the City of London perceived the dangers posed by legal risk. It involved a House of Lords decision on an ultra vires point — specifically, the power of the council in question to enter into ‘swap’ transactions. The case arose because this power was challenged by the auditor appointed by the Audit Commission. The surrounding circumstances and the unprecedented manner in which the City of London responded to the case provide both the classic case study and a historical explanation of why legal risk is seen to be so important and how seriously it is taken by those concerned with orderly financial markets.
Property Interests in Indirectly Held Investment Securities
Authors: Mccormick Roger , Stears Chris
Published: July 2018

This chapter discusses legal risk associated with property interests in indirectly held investment securities. It suggests that risks arise because, although there have been some recent reforms, the substantive law regarding the holding and disposal of corporate securities is still, to a significant extent, based on ‘paper’ securities rather than electronically recorded holdings. The chapter covers the Hague Convention on ‘The law applicable to certain rights in respect of securities held with an intermediary’, legal reforms around the world, the International Institute for the Unification of Private Law Convention (‘Geneva Securities Convention’), and Financial Markets Law Committee proposals.
Recharacterization
Authors: Mccormick Roger , Stears Chris
Published: July 2018

This chapter considers the risk of ‘recharacterization’, which refers to the court’s practice of deeming a transaction to be something other than what the parties intended. It argues that although English courts rarely indulge in recharacterization, there are policy considerations that may come into play and put the more adventurously structured transactions at risk. It is important that this risk, which is a legal risk, be understood and evaluated in the more extreme cases and that it is strictly confined to cases where the policy reasons for recharacterization are compelling. The remainder of the chapter discusses different ways of raising money, the risk of wrong labels, essential differences between sale and security, the lender’s dilemma, and the House of Lords’ decision in National Westminster Bank plc v Spectrum Plus Ltd.
Shifting the Burden of Evidence
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This chapter explains the process of ‘shifting the burden of evidence’, otherwise known as the ‘shifting principle’. This is the proposition which occurs when the party who bears the initial burden puts forward evidence to support its initial claim. Here, the burden of evidence (or alternatively also termed as the ‘burden of production’, ‘burden of persuasion’, or ‘burden of proceeding’) shifts to the other party to rebut the evidence put forward. Shifting the burden of evidence is to be read in conjunction with the burden of proof principle discussed in the previous chapter. This is because it is only when the initial burden of the party making an allegation is met that the burden is shifted to the other party.
Introduction to the Bermuda Form
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter first describes the three interrelated categories of problems identified by insurers leading up to the introduction of the Bermuda Form. These include the unreliability of stated policy limits of liability; exposure to injuries, damage and events taking place in the distant past; and uncertainty of what body or bodies of law would control the interpretation of a policy. It then discusses the hallmark features of the Bermuda Form, covering the occurrence first reported trigger and continuous policy, bifurcated occurrence definition/time element pollution exclusion, high per occurrence retention/broader principles of loss aggregation, no duty to defend the insured or pay sums on its behalf, expectation and experience of rate or level of injury or property damage, and law and principles governing interpretation/arbitration.
Conflict of Law Issues
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

The Bermuda Form is not immune from conflict of law issues. Such issues arise from its very nature as an ‘international’ document that provides coverage to large and often multinational corporations in respect of legal liability arising from their global operations in a variety of jurisdictions. This chapter highlights some of the conflict of law issues that may be encountered when arbitrating disputes arising from Bermuda Form policies and suggests some possible solutions to assist in choosing between the myriad of potential and competing applicable laws. Topics covered include express choices of law in the Bermuda Form, the severability principle, potential applicable laws, proper law of the contract, proper law of the underlying claim, proper law of the conflict of law rules applied to the policy, proper law of the arbitration agreement, procedural law, and curial law.
Misrepresentation and Nondisclosure
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter first discusses the law of misrepresentation and nondisclosure as it has developed in New York, since the law of that state is designated in the majority of Bermuda Form policies as governing the resolution of ‘any dispute, controversy or claim arising out of or related to the Policy’, which would clearly include a dispute about alleged misrepresentation in its procurement. The second part discusses English law. This is relevant for a number of reasons. It is not at all uncommon that the version of the Bermuda Form in play in respect of a given dispute will expressly adopt the law of England and Wales as controlling. This is often the case where the policy is issued to a multinational corporation whose management and headquarters are not located in the United States, or where the policy is not issued by an insurer resident in Bermuda.
The Arbitration Agreement
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter provides an overview of practical and theoretical aspects of arbitrating disputes concerning Bermuda Form policies, building upon the contents of earlier chapters. A well known feature of the Bermuda Form is its dispute resolution mechanism, namely the requirement for arbitration in London to resolve any dispute between the policyholder and the insurer that cannot be resolved or settled by early negotiation. This requirement for London arbitration is contained in Article VI.N of Form XL004, in the ‘conditions’ section of the Bermuda Form. Article VI.N is a lengthy and detailed clause that contains several subclauses addressing distinct concepts and different aspects of the dispute resolution process and arbitration procedure.
Pre-Hearing Activities
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter addresses a range of practical and legal matters relating to the conduct of a Bermuda Form arbitration up to and including the disclosure of documents, i.e. before the service of witness statements in the normal case. This timing distinction is an arbitrary but practical one, since there are sometimes issues on the disclosure of documents that continue after service of witness statements. The chapter addresses the authority of the arbitrators to establish rules and procedures; the fact that there are no pre-set procedures in ad hoc arbitrations under the English Arbitration Act 1996; and how in practice an arbitration in London can be expected to progress. It discusses points such as security for costs, the nature and content of the pleadings, other techniques used in litigation to identify the issues, problems that commonly arise on the disclosure of documents, and the thorny issue of privilege.
Introduction: The Jus Contra Bellum and the Power of Precedent
Authors: Ruys Tom , Corten Olivier , Hofer Alexandra
Published: July 2018

This brief introduction sets out the volume’s objective and the methodology followed by the contributors in the sixty-five case studies tackling specific instances involving the use of force.
The Indian Intervention into (East) Pakistan—1971
Authors: Kritsiotis Dino
Published: July 2018

This contribution discusses the 1971 Indian intervention in east Pakistan. It sets out the facts and context of the crisis, the legal positions of the main protagonists (India and Pakistan), and the international community’s reactions. It then tests the legality of the Indian intervention against the international legal framework governing the use of force as it stood at the time of the events. The final section examines if, and to what extent, the case has had an impact on the further development of the jus ad bellum, in particular whether it is a precedent for humanitarian intervention.
The Soviet Intervention in Afghanistan—1979–80
Authors: Nolte Georg , Barkholdt Janina
Published: July 2018

This contribution discusses the intervention by the Soviet Union in Afghanistan (1979-1980). After recalling the facts and the context of this intervention, it sets out the legal positions of the main protagonists (the Soviet Union and Afghanistan) and examines the reaction of the international community of States. It then analyses the different grounds invoked by the Soviet Union as justification for the lawfulness of its intervention focusing on the claim of an intervention by invitation. In the final section it is argued that the negative reaction of a large majority of states to the justifications offered by the Soviet Union have led to a confirmation and clarification of the applicable law.
The Falklands/Malvinas War—1982
Authors: Henry Etienne
Published: July 2018

This chapter discusses the application of jus contra bellum in the 1982 Falklands/Malvinas conflict. After briefly setting out the relevant facts and summarizing the positions of the main protagonists of the conflict as well as the UN Security Council and General Assembly and other member states, it analyzes the legal issues raised by the application of Article 2(3), 2(4) and 51 of the UN Charter, before evaluating the precedential value of the case. Special attention is paid to the alleged right to use military force for the recovery of pre-colonial titles, to the thesis of the exhaustion of the obligation to settle international disputes peacefully and to the relationship between collective security and self-defence, especially in light of the cessation of hostilities ordered by UN Security Council Resolution 502 (1982).
South African Incursions into Lesotho—1982
Authors: Reinold Theresa
Published: July 2018

This chapter discusses the legality of South Africa’s incursion in Lesotho in 1982. After describing the facts of the case, it presents the legal arguments of the main protagonists – South Africa and Lesotho - and canvasses the positions taken by the UN General Assembly, the UN Security Council, as well as other important diplomatic players. It then assesses the legality of the intervention and discusses its impact on the progressive development of international law. It concludes that the incursion violated Article 2(4) of the UN Charter and that, in light of the overwhelmingly negative international reaction, the raid could not trigger an expanded reading of the right to self-defense, as was claimed by South Africa.
The US Airstrike Against the Iraqi Intelligence Headquarters—1993
Authors: Starski Paulina
Published: July 2018

This contribution analyses the normative implications of the US raid against the headquarters of the Iraqi Intelligence Service in 1993 in reaction to a foiled assassination attempt against former President Bush. It examines the legality of the operation, its precedential value and its evolutive potential regarding the regime on the ius contra bellum and specifically the right to self-defence. After dissecting the multiple contentious dimensions of the US claim of justification, the article concludes that the raid constituted an illegal ‘armed reprisal’. In light of observable state practice, its precedent-setting nature should not be overstated. However, albeit qualified as an ‘one-off incident’ the US raid did not leave the prohibition on the use of force and the contemporary discourse surrounding it untouched. Hence, it appears essential to demystify its frequently asserted evolutive potential particularly regarding the temporal limitations of Article 51 UN Charter to which this article is dedicated.
The Great African War and the Intervention by Uganda and Rwanda in the Democratic Republic of Congo—1998–2003
Authors: Green James A
Published: July 2018

This chapter considers the Great African War of 1998-2003. The first section sets out the factual context of the interventions of Uganda, Rwanda and (on a much lower scale) Burundi in the territory of the Democratic Republic of Congo (DRC). It also considers the counter-force employed by the DRC and other states acting in support of the DRC’s government. The second section considers the positions of the main state protagonists on both sides, as well as of international organisations and states not involved in the conflict. The third section analyses the legality of the actions of the various states involved, including – but not limited to – a consideration of the 2005 International Court of Justice merits decision in the Armed Activities (DRC v Uganda) case. The ad bellum implications of the conflict stretch beyond that decision, but the proceedings at the Court have become its primary legacy in this context.
The Modern ‘Penalty’ Rule
Authors: Halson Roger
Published: July 2018

Prior to decision of the UK’s Supreme Court in Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis (Consumers’ Association Intervening), (the Cavendish case) in 2015, the principles underlying the law relating to contractual liquidated damages and penalty clauses was last examined by the UK’s highest appellate court over 100 years ago in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd. The breadth and scope of the decision is obvious from the different commercial contexts of the two conjoined appeals in the Cavendish case. This chapter analyses the Supreme Court’s decision in these cases, covering the requirement of breach, applying the test for a penalty, the application of the penalty rule to obligations other than to make payments, and the relationship between the penalty rule and the equitable relief against forfeiture.
Introduction
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This introductory chapter talks about propriety security taken by creditors from debtors to support the repayment of loans or, much less frequently, the performance of other obligations. The security normally takes the form of a pledge, mortgage, or charge over the debtor’s property. The chapter also considers transactions that on a traditional analysis do not involve the taking of security but that have a similar economic function, in that a party that provides credit retains property rights over assets that in practice are being purchased by the debtor with the credit provided. These transactions involve what is often called ‘vendor credit’ as opposed to ‘lender credit’. The equivalent of security may also be produced by a host of other contractual devices, such as priority agreements, contractual set-off, and liens over sub-freights.
Types of interest
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter examines how, under English law, there is a major conceptual divide between security interests and absolute interests. In relation to personal property, absolute interests are either ownership or possession. These are both rights in rem: they are enforceable against the whole world, including the liquidator or trustee in bankruptcy of a person against whom the right is asserted. Security interests are also rights in rem, but because they are given as security for an obligation, they are limited by being defeasible upon performance of that obligation. While English law will normally give effect to the intentions of the parties as expressed in the contract, there are some limits to the extent that the parties can change the nature of interests, and it is at this point that the court will recharacterize a transaction or an interest.
Non-Possessory Security
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva
Published: July 2018

This chapter analyses the nature of mortgage. It is a non-possessory security whereby the mortgagor transfers ownership to the mortgagee subject to an obligation to retransfer ownership on satisfaction of the underlying obligation. Since equity will enforce the retransfer, the right to it is not personal but amounts to an equitable interest called the equity of redemption. The actual right to redeem can be a legal right, arising expressly from the contract of mortgage: if that legal right to redeem is not exercised, an equitable right to redeem arises. However, since equity will enforce even the legal right to redeem against third parties, the mortgagor has an equitable interest called the ‘equity of redemption’ from the commencement of the mortgage.
ECT and States’ Right to Regulate
Authors: Coop Graham , Seif Isabella
Published: July 2018

This chapter explores the Energy Charter Treaty (ECT) and states' right to regulate. The stability of a host state's regulatory framework is of prime importance for foreign investors, particularly in the energy sector. Changes in the host state's regulatory framework (for example, the reduction or removal of subsidies, or imposition or increase of taxes) can cause harm to the investment. Looking at concluded ECT cases, this chapter analyzes how tribunals have balanced states' substantive obligations to foreign investors under the ECT against their sovereign right to regulate within their own territory. In this context, the chapter touches upon recent cases in the renewable energy sector and discusses the extent to which investment protection under the ECT may lead to a so-called ‘regulatory chill’.
Introduction
Authors: Fleck Dieter
Published: July 2018

This introductory chapter briefly explores the nature and development of the laws regarding Visiting Forces. The relevant rules of international law need to be implemented at national level, a task that makes close cooperation and international exchange essential. This requires a good perception of the objectives of the law of Visiting Forces based on historic developments and current treaties. Moreover, the chapter examines the relationship between international law and national law, which is of particular interest for any activity of foreign armed forces in a Host State. Out-of-area deployments, i.e. deployments in third countries not belonging to the same regional organization or military alliance, also require specific considerations insofar as specific Status-of-Forces Agreements (SOFAs) will be necessary. Finally, existing international law and practice is evaluated with a view to the question whether rules of customary law are evolving in this respect.
Historical Developments Influencing the Present Law of Visiting Forces
Authors: Rowe Peter
Published: July 2018

This chapter focuses on the historical and the legal development of the North Atlantic Treaty Organization (NATO) SOFA in 1951 and subsequent developments. It shows how prior to 1951, bilateral agreements reflected the relative bargaining positions of the Sending and Receiving States and how the terms of the 1951 multilateral treaty were debated in the legislatures of the US and the UK. This is no mere ‘lawyers’ law’ concerned solely with resolving conflicts of jurisdiction between different States. The issues raised within it are frequently of constitutional significance, ranging from the protection of the citizen and of the serviceman to ‘immunity’ from the jurisdiction of the Receiving State. This chapter also sketches the background to challenges posed by post-cold war types of military operations in the law relating to Visiting Forces
Communications
Authors: Atanasov Vladimir , Conderman Paul J
Published: July 2018

This chapter examines the role of telecommunications in the law of Visiting Forces. The ability to send and receive messages is indispensable to military operations. With this in mind, modern status-of-forces agreements (SOFAs) grant broad latitude to Sending States in the field of communications, while taking into consideration that in peacetime, Sending State forces must cooperate with the communications authorities of the Receiving State in order to avoid the possibility of communications breakdown or interruption. Generally speaking every State has the sovereign right to provide for and regulate its telecommunication and radio frequencies spectrum. The term ‘telecommunications’ is usually defined by making a reference to the definition given in the Convention of the International Telecommunication Union.
Claims
Authors: Prescott Jody M
Published: July 2018

This chapter posits that the three essential features of an ideal damage claims programme are transparency, consistency, and accountability. It provides a historical review of different claims programmes beginning with World War I and concluding with recent operations in Afghanistan, and assesses them against these three criteria. Because of the length of time over which they have been conducted, the vast scope of operations in which they have occurred, and their generally successful performance, this chapter focuses only on claims operations in the NATO context. It also briefly reviews the EU, UN, and the Warsaw Pact claims programmes, with particular regard to their relationships with NATO claims programmes. In addition, the US claims experiences in the NATO and NATO-led context are used to illustrate the details and complexities of settling claims resulting from military activities.
Tax and Customs Exemptions
Authors: Conderman Paul J , Chalanouli Nikoleta
Published: July 2018

This chapter deals with tax and customs exemptions. Aside from the exercise of criminal jurisdiction, the most visible power of a sovereign State is the power to levy and collect taxes. Governments are free to decide who should pay taxes, what kinds of taxes are to be imposed, and how they are calculated. When nations enter into treaties for mutual support, the goal of collective security overrides any notion of financial gain by either the Sending or Receiving State as a result of the presence of Visiting Forces in the Receiving State. This is not to say that there are no circumstances under which a Visiting Force or its personnel may be subject to the fiscal laws of the Receiving State, but the Receiving State should not in general benefit financially as a result of the mere presence of foreign forces whose responsibility it is to assist in its defence.
Foreign Exchange Regulations
Authors: Chalanouli Nikoleta
Published: July 2018

This chapter analyses foreign exchange regulations and their relevant status-of-forces agreement (SOFA) provisions. Provisions concerning currency, foreign exchange, and foreign exchange regulations are common in SOFAs; in practice, they are also crucial in the everyday life of the sending forces and the relationship with the Receiving State. This chapter first provides a general overview of the terms used in such provisions, noting also on the needs for such provisions. It then provides a succinct presentation of the framework upon which UN Model SOFA and the NATO SOFA were concluded and how this affected later on interpretations of the relevant provisions. Finally, this chapter concludes with an examination of the provisions themselves.
Revision
Authors: Burkhardt Frank
Published: July 2018

This chapter concerns reviews or amendments on international treaties provisions. Art. XVII NATO SOFA contains a provision that foresees a revision, stating that any contracting party may at any time request the revision of any Article of the Agreement. Moreover, this request is to be addressed to the North Atlantic Council. The UN Model SOFA does not provide for any revision. While this may be appropriate due to the fact that peace operations are generally planned for a limited duration, the fact that some of them are of unexpectedly long duration with an obvious need for reviewing and adapting certain rights and responsibilities, would show a need for formal revision clauses in UN SOFAs.
United Nations Headquarters in the Field
Authors: Klappe Ben F
Published: July 2018

This chapter turns to the UN operating locations established in Host States. In the day-to-day practice of multidimensional peace operations, the UN mission usually is established as a multifaceted mission, often located in or near the Host State capital. But depending on the type of the mission, other field locations or duty stations may be used by the various components of the mission. Operating locations may be spread out in the various provinces and districts of the Host State. At the country level, UN resident coordinators and UN country teams implement the UN Development Group’s strategic priorities by identifying the national policies, programmes, and capacity development gaps and challenges, to which the UN system can best contribute under national ownership and leadership by mobilizing the full range of mandates and expertise of the UN development system.
NATO International Military Headquarters
Authors: Muñoz Mosquera Andrés B , Hartov Mette Prassé
Published: July 2018

This Chapter describes the background and role of the Paris Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty and its supplementing agreements. It gives a detailed account of its application and continuing importance for military operations of the Alliance.
Other Military Headquarters
Authors: Mekonnen Daniel Rezene , Tardy Thierry , Tuzmukhamedov Bakhtiyar
Published: July 2018

This chapter discusses military headquarters in the context of three key regions. These are: the African Union, the European Union, and the Commonwealth of Independent States (CIS). In the first case, the very idea of Pan-African collective military cooperation is a newly developing norm—one that requires further improvements and academic study. Meanwhile, EU military operations have been planned and conducted according to rules and by structures established as the EU security policy was defined in the late 1990s and early 2000s. Finally, the CIS signed the Charter of the Collective Security Treaty Organization (CSTO) to implement military-related authority of the Organization.
Alternative Approaches to Certain Deployments
Authors: Filippucci Gunter
Published: July 2018

This chapter discusses ‘A&T agreements’, which are a type of Visiting Forces agreements. It explains the unique nature, purpose, and intent of such agreements, and discusses particular provisions commonly found in such agreements. A&T agreements have become a common fixture in the practice of many nations in support of short duration military deployments, especially in support of exercises and humanitarian activities. As a form of A&T agreement, the Global SOFA Template (GST) in particular is valuable to study for its ‘best-case’ language, although in practice it would be best to tailor the language to the situation at hand, giving due consideration for the legitimate interests of the receiving state. Regardless, the increasing acceptance of A&T agreements is a positive development which makes the negotiation of status arrangements for deploying forces increasingly simple.
Canada
Authors: Wahl Ruth I
Published: July 2018

This chapter discusses the law of set-off in Canada both outside and within insolvency. The law relating to set-off is very similar throughout Canada's provinces except Quebec. Set-off is thus a matter of provincial law in general and determining whether a set-off claim is valid and enforceable will depend on the law of the province where such claim is being asserted. The chapter first provides an overview of set-off between solvent parties in Canada, focusing on legal set-off, equitable set-off, statutory set-off, contractual set-off, set-off in relation to subsidiaries, and the right of set-off with regard to security interests. It then considers set-off against insolvent parties, taking into account bankruptcy proceedings under the Bankruptcy and Insolvency Act, receiverships, and reorganization proceedings under the Companies Creditors' Arrangement Act. It also examines issues that arise when the law of set-off is applied in a cross-border context.
Hong Kong
Authors: McKeown Richard
Published: July 2018

This chapter provides an overview of the law of set-off in Hong Kong. Set-off in Hong Kong is classified into legal, contractual, equitable and bankruptcy set-off. The first three types of set-off are subject to common law principles, whereas set-off on bankruptcy is regulated by section 35 of the Bankruptcy Ordinance. The relevant principles applied to set-off are generally those of English common law. The chapter begins with a discussion of set-off outside insolvency, focusing on equitable set-off, legal set-off, and contractual set-off. It then considers set-off against insolvent parties, taking into account statutory set-off, before concluding with an analysis of cross-jurisdictional issues arising from the right of set-off.
Italy
Authors: Curran Lisa
Published: July 2018

This chapter discusses the law of set-off in Italy. Under Italian law, set-off is recognised as a mechanism for extinguishing an obligation. The Civil Code classifies set-off by operation of law, by intervention of the judge, or by the will of the parties. The Code also lays down particular rights of combination with regard to amounts credited and debited to current accounts, as well as specific rights of set-off with regard to balances of a plurality of accounts or other relationships between a bank and its customer. The chapter first provides an overview of legal and contractual set-off between solvent parties before analysing set-off against insolvent parties. It examines the relevant provisions of the Italian Bankruptcy Law and the question of voidable preferences with respect to set-off. It also looks at issues arising from cross-border set-off between solvent parties and cross-border set-off against insolvent parties.
Romania
Authors: Jardine Bryan W
Published: July 2018

This chapter provides an overview of the law of set-off in Romania, both outside and within the context of insolvency. Under Romanian law, set-off is of two types: legal set-off, which arises by operation of law, and contractual set-off, which arises through a written agreement between parties. The rules for legal set-off are laid down in the Romanian civil code adopted by Law no. 287/2009 (the New Civil Code). The chapter first considers legal and contractual set-off between solvent parties before discussing set-off against insolvent parties. It explains bilateral set-off as well as financial collateral and challenge in insolvency proceedings. It also analyses the provisions of EU Regulations, EU Insolvency Regulation, and the New Civil Code that are relevant to cross-border set-off.
South Africa
Authors: Scholtz Johann , de Villiers Dawid
Published: July 2018

This chapter discusses the principle of set-off in South Africa in relation to common law and legislation, both outside and within the context of insolvency. It considers set-off between solvent parties and set-off against insolvent parties, along with cross-border issues arising from set-off in both cases. With regard to solvent parties, illegal debts or debts prohibited by statute, or certain debts such as alimony or taxes due to the fiscus, cannot be set off. Debts that have already prescribed prior to the necessary mutuality of debts arises also cannot be set off under the common law. Under insolvency, set-off is not valid and binding unless all the common law requirements exist before the insolvency of one of the parties to an agreement (and when the concursus creditorum is established).
Switzerland
Authors: Frick Jürg
Published: July 2018

This chapter provides an overview of the law of set-off in Switzerland. Under Swiss law, set-off functions as a mechanism of substantive law that extinguishes two obligations to the extent of the smaller obligation. The basic legal framework for set-off is a unilateral act pursuant to Article 120 et seq of the Swiss Code of Obligations of 1911, as amended (CO). The chapter first considers the CO requirements for set-off between solvent parties as well as its mechanism and effects before discussing the legal framework applicable to set-off against insolvent parties. In particular, it examines the implications for mutuality of the distinction under Swedish law between the assets and liabilities of the estate and of the receivership. It also outlines the restrictions on set-off in the event of insolvency before concluding with an analysis of set-off issues in the cross-border context arising from conflict of laws, international jurisdiction, and insolvency proceedings.
Membership
Authors: Lichtenstein Natalie
Published: July 2018

Chapter 5, Membership, lays out the framework that was agreed for AIIB membership. AIIB membership is open to any member of the International Bank for Reconstruction and Development (IBRD) or Asian Development Bank (AsDB). All of the Prospective Founding Members that signed the AIIB Charter can become members (almost all have already joined). New members are approved by AIIB’s Board of Governors; more than twenty new members were approved in 2017. This Chapter describes the benefits for Founding Members, and the differences for regional and non-regional members. AIIB’s regional members are located in Asia, under a United Nations definition. Regional members are expected to represent 75% of AIIB’s shareholding, and the President must be a national of a regional member. AIIB also has provisions for withdrawal and suspension of membership, very close to the provisions for other multilateral development banks. Tables compare IBRD, AsDB and AIIB membership (regional and non-regional, and new AIIB approvals).
Institutional Matters
Authors: Lichtenstein Natalie
Published: July 2018

Chapter 9, Institutional Matters, outlines the provisions of the AIIB Charter most relevant for its status as a treaty, its international character, AIIB’s Charter-based privileges and immunities as an international organization, and the framework for the administration of the Bank. For the treaty aspects, this Chapter covers the legal requirements of signature and ratification, amendment and interpretation—all similar to other multilateral development banks. The Charter provisions establishing AIIB’s international character are detailed. AIIB’s privileges and immunities as an international organization are based on similar protections for other multilateral development banks, in aspects such as legal status, immunity from judicial proceedings, immunity of assets and archives, freedom of assets from restrictions, immunities and privileges of officers and employees, and exemption from taxation. Key elements of AIIB’s administrative framework are summarized, including officers and employees and offices (its Beijing headquarters). The public information interim policy and corporate procurement policy are also described.
The Third Alternative of Surrender to a Competent International Criminal Tribunal or a Hybrid Tribunal and its Impediments
Authors: Kittichaisaree Kriangsak
Published: July 2018

The chapter elaborates the practical difficulties and principled opposition to the third alternative of surrender to a competent international criminal tribunal or hybrid tribunals, especially among several States in Africa on the grounds of discriminatory justice and/or the allegedly prevailing rule of customary international law of immunity of the head of State and some other senior State officials. In particular, while Article 27 of the 1998 Rome Statute of the International Criminal Court deems the official position of any person to be irrelevant, Article 98 of the same Statute sets conditions for cooperation with respect to waiver of immunity or consent for surrender of the person, which may not be forthcoming in practice. The author explains how the conflicting rules can be reconciled, if at all.
Equality and Non-Discrimination in the UNDRIP
Authors: Gover Kirsty
Published: July 2018

This chapter analyses the rights to equality and non-discrimination in Articles 2, 6, and 7(1). The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) covers the full spectrum of rights contained in international and regional instruments, adapted to the circumstances of indigenous peoples. Because the UNDRIP has an exceptionally wide substantive scope, debates about equality and non-discrimination were a central part of the negotiations leading to its adoption. Where provisions of the UNDRIP were thought to deviate from rights already expressed in international law, they were perceived in some states to compromise the fundamental principles of equality and non-discrimination that underpin existing human rights' instruments. In this way, the extensive discussions about equality and indigeneity that characterized the development of UNDRIP are also debates about the continuity and coherency of international human rights' law.
Intellectual Property and Technologies
Authors: Stoll Tobias
Published: July 2018

This chapter looks at the specific right to intellectual property and technologies in Article 31. Article 31 sets out a number of rights of indigenous peoples relating to their science, technology, and culture, and calls for State action in this regard, which is to be taken with the involvement of those peoples. The provision relates to three different subject matters, between which there obviously exists quite some overlap. It refers, first, to ‘cultural heritage, traditional knowledge and traditional cultural expressions’. Second, it refers to ‘intellectual property’ over such heritage, knowledge, and expressions, and third, to ‘manifestations of…sciences, technologies and cultures’ — representative examples of which find themselves included in an illustrative list. According to Article 31, with a view to each of these subject matters, indigenous peoples have a right to ‘maintain, control, protect and develop’.