bluuebunny/crossref_metadata_2025 huggingface dataset:
The Deterrence-Based Rationale and the Specific Implications of the EU-Level Doctrine of Parental Antitrust Liability
Authors: Whelan Peter
Published: June 2024

This chapter continues this book’s consideration of the extent to which the EU-level doctrine of parental antitrust liability fulfils the second criterion in the legitimacy framework (‘effectiveness’). In examining the extent to which the specifics of the EU-level approach to parental antitrust liability line up with its identified enforcement justification, it critically evaluates the specific implications of the said approach from a deterrence perspective. In turn, it analyses from that perspective: the European Commission’s (the Commission’s) reliance upon (formal) strict liability when imposing parental liability; its increasing of the antitrust fine with parental liability; the attribution of joint and several liability without any consideration on a case-by-case basis of the specific underpinnings of the deterrence-based rationale, specifically the subsidiary’s inability to pay; and the imposition of joint and several liability for ‘novel’ antitrust violations by subsidiaries. Ultimately, this chapter also finds a specific, critical failing with respect to the alignment of current practice at EU level with the theoretical justification advanced on the basis of deterrence. It thus further emphasises that the second criterion in the legitimacy framework (‘effectiveness’) is not completely fulfilled.
Retribution and Its Relevance to the EU-Level Doctrine of Parental Liability
Authors: Whelan Peter
Published: June 2024

This chapter articulates the specifics of the punishment theory of retribution and establishes its status in EU competition law enforcement. It first sets out the basics of the theory of retribution, details its two most important principles (the principle of personal responsibility and the principle of proportionality), and highlights the EU Court’s acceptance of the applicability of (at least some form of) these principles to antitrust enforcement. Importantly, it establishes the inherent link between responsibility and proportionality, thereby allowing one to employ the principle of personal responsibility as the central analytical tool with which to evaluate the extent to which the EU-level doctrine of parental antitrust liability aligns with the objective of retribution. It then outlines how the theory of retribution is implemented within EU antitrust enforcement. It argues that one can reasonably take the stance that, in EU competition law, the principles of personal responsibility and proportionality seem to act as limiting principles (i.e. ones that serve to restrict in particular circumstances the application of punishment warranted under a deterrence-focused enforcement drive), rather than rationalising or normative principles (i.e. ones that serve to establish the reason for imposing antitrust sanctions per se).
A Problematic Mismatch Between EU-Level Jurisprudence on Parental Liability and Principle
Authors: Whelan Peter
Published: June 2024

This chapter is the final one in the part of the book that determines whether, in seeking deterrence, the EU-level doctrine of parental antitrust liability respects the inherent principles of retribution theory, thus ensuring (substantive) fairness in enforcement. It is thus the chapter that presents the conclusion on whether, as currently formulated and operated, the said EU-level doctrine adheres to the third criterion in this monograph’s legitimacy framework (i.e. ‘fairness’). The previous chapter identified a misalignment between the EU Courts’ conception of the parent company’s responsibility and that evident from the retributivist perspective. This chapter examines whether the identified misalignment is problematic for legitimacy purposes. To do so, it employs a three-step approach. First, it uses the punishment-focused literature to create a spectrum that identifies the extent to which culpability should be mandated in principle in different legal contexts (herein termed the ‘culpability importance spectrum’). Second, it determines where EU-level competition proceedings fall within this spectrum due to their specific nature. Third, with reference to where EU-level proceedings lie on this spectrum, it articulates the extent to which a lack of culpability on behalf of the sanctioned parent company is problematic in principle. It argues that, due to the inherent nature of the European Commission’s antitrust proceedings, their use to impose punishment without a solid culpability requirement with respect to the infringer (as can occur with parental liability) is very problematic in principle, with resultant (fairness-related) negative implications.
Market Definition
Authors: Niels Gunnar , Jenkins Helen , Kavanagh James
Published: June 2024

This chapter covers the role that market definition plays in competition cases. It explains the hypothetical monopolist, or SSNIP (small but significant and non-transitory increase in price), test, and how this test is applied through critical loss analysis. The chapter addresses the cellophane fallacy, supply-side substitution, price discrimination markets, and chains of substitution. It also sets out how to define markets for complements, aftermarkets, bundles, two-sided platforms, and vertical layers of the supply chain. The discussion then turns to how markets may be defined by reference to features other than price, such as quality and innovation.
Market Power
Authors: Niels Gunnar , Jenkins Helen , Kavanagh James
Published: June 2024

This chapter explains that market power is a matter of degree, and reviews the thresholds commonly used, including dominance and essential facility (as well as thresholds outside competition law, such as economic dependence and gatekeeper status in digital markets). The main indicators of market power are market shares and entry barriers (economies of scale, sunk costs, product differentiation, data, and network effects). The chapter explores the role of profitability as an indicator of market power, and the concepts of buyer power and bidding markets. Finally, it discusses market power in dynamic, innovative markets.
The Private Enforcement of Competition Law
Authors: Caro de Sousa Pedro
Published: June 2024

This book provides a global overview of private competition enforcement. It provides an analysis of recent private competition enforcement decisions and developments up to 2023, focusing on: an international picture of private competition enforcement; an analytical breakdown of the main elements of private competition enforcement, with a focus on damage claims; and a comparison of how each of these elements is implemented across the world, focusing on the US and the EU but including other jurisdictions. The work is divided into two parts. The first contains an overview of private competition enforcement and the leading regimes around the world, including a discussion of the background and rationale for private enforcement, and general descriptions of some of the leading jurisdictions. It also discusses the interaction between public and private enforcement and the main areas of tension between them. The second, larger, part looks in more detail at the constitutive elements of private enforcement regimes and how they are applied across different jurisdictions. The chapters focus on judicial mechanisms for obtaining private redress for competition harms; out-of-court mechanisms; practical solutions to ensure the effectiveness of private enforcement, and particularly of damages claims; standing to bring competition claims; rules applicable to defendants of such claims; means to establish that a competition law infringement has taken place; mechanisms to determine where private enforcement claims will be decided and under which rules; rules of evidence, including how to establish causation of loss flowing from an infringement; quantification of damages; and the main economic methods used to calculate damages.
Introduction to the Private Enforcement of Competition Law
Authors: Caro de Sousa Pedro
Published: June 2024

This book provides a global overview of private competition enforcement. It provides an analysis of recent private competition enforcement decisions and developments up to 2023, focusing on: an international picture of private competition enforcement; an analytical breakdown of the main elements of private competition enforcement, with a focus on damage claims; and a comparison of how each of these elements is implemented across the world, focusing on the US and the EU but including other jurisdictions. The work is divided into two parts. The first contains an overview of private competition enforcement and the leading regimes around the world, including a discussion of the background and rationale for private enforcement, and general descriptions of some of the leading jurisdictions. It also discusses the interaction between public and private enforcement and the main areas of tension between them. The second, larger, part looks in more detail at the constitutive elements of private enforcement regimes and how they are applied across different jurisdictions. The chapters focus on judicial mechanisms for obtaining private redress for competition harms; out-of-court mechanisms; practical solutions to ensure the effectiveness of private enforcement, and particularly of damages claims; standing to bring competition claims; rules applicable to defendants of such claims; means to establish that a competition law infringement has taken place; mechanisms to determine where private enforcement claims will be decided and under which rules; rules of evidence, including how to establish causation of loss flowing from an infringement; quantification of damages; and the main economic methods used to calculate damages.
Out-of-Court Redress Schemes
Authors: Caro de Sousa Pedro
Published: June 2024

This chapter elaborates on the key concepts of out-of-court redress schemes. It focuses on alternative dispute resolution in competition cases, which are voluntary redress schemes, alternative-dispute resolution, settlement schemes, and arbitration. The aforementioned alternative dispute-resolution mechanisms allow victims to settle cases quickly and easily on a voluntary basis, therefore most systems try to promote the resolution of claims outside court. The rationale for encouraging voluntary redress schemes or consensual dispute-resolution systems correlates to the costs and uncertainty of litigation. The chapter looks into the question of the arbitrability of competition law within the US and some EU jurisdictions.
Defendants and Liability
Authors: Caro de Sousa Pedro
Published: June 2024

This chapter tackles the notion of who may be liable for competition damages. It discusses the rules that determine the extent of defendants’ liability. The general rules on liability usually require the defendant to have been at fault (by intention or through negligence) in order for it to be liable for the damages caused by its actions. Fault generally refers to intent or negligence regarding conduct, instead of the damages created by the conduct. The chapter also elaborates on the key concepts of individual, joint, and several liability in line with multiple tortfeasors who are jointly responsible for the loss.
Territorial Scope of Private Enforcement
Authors: Caro de Sousa Pedro
Published: June 2024

This chapter discusses key matters on the territorial scope of private enforcement. It starts with an overview of substantive and procedural jurisdictional issues that arise from the cross-border nature of many competition infringements and the typically national scope of tort laws. .
Duty to Act Within Powers
Authors: Haywood Marcus
Published: June 2024

This chapter focuses on the director's duty to act within powers. It cites the director’s overriding duty of obedience to the constitution. Directors will breach their duty if they cause the company to do something beyond its powers or if he fails to comply with the company’s internal regulations. The Companies Act 2006 Act codifies the director’s duty to comply with the company’s constitution to the extent that if directors exceed their constitutional power in breach of s 171(a), they will be liable accordingly. The chapter clarifies the directors' duty to only exercise powers for the purposes for which they are conferred.
Directors’ Liabilities
Authors: Leahy KC Blair , Feld Andrew , Grafton Courtney
Published: June 2024

This chapter looks into the extent of shielding directors from liabilities that would otherwise be incurred in the discharge of their functions. The Companies Act 2006 establishes a general prohibition on the exemption and indemnification of a director from liability or against liability that would identify his breach of duty. The prohibition is subjected to three categories of exception as regards indemnifications: the maintenance of insurance by the company for the director, qualifying third-party indemnity provisions, and qualifying pension scheme indemnity provisions. The chapter also explores the two types of qualifying indemnity and ratification. It elaborates on the ratification of the conduct of directors.
Members’ Unfair Prejudice Claims and Winding-Up Petitions
Authors: Alexander KC David , Judd Daniel
Published: June 2024

This chapter covers the Companies Act 2006 provisions protecting members from unfair prejudice arising from the conduct of the affairs of the company. It looks into the recommendations of the Jenkins Committee. The availability of a statutory remedy for unfair prejudice is significant for directors, because their conduct of the affairs of the company or their acts or omissions may justify a member’s application for relief. The chapter also discusses the grounds to support an unfair prejudice petition subjected to an authoritative explanation. It references the Insolvency Act 1986 when concerned with members petitioning the court for the company to be wound up provided that they satisfy a statutory condition and a common law condition.
Choice of Law Rules
Authors: de Weijs Rolef , Welling-Steffens Lilian
Published: June 2024

This chapter begins by providing an overview of the uniform rules of choice of law which are applicable to all proceedings governed by the EU Insolvency Regulation Recast (RR). The RR has replaced the original EC Insolvency Regulation (OR) and is applicable to insolvency proceedings opened on or after 26 June 2017. The choice of law rules are contained in Articles 7–18 RR and are substantially the same as their equivalents in the OR. The chapter then sets out the general principles of the RR in relation to its choice of law provisions. It discusses the general workings of the RR as to its choice of law provision in Article 7 and its system of the lex concursus (the law of the court that has opened insolvency proceedings) as the general rule. The chapter also examines the exceptions to this system, which are codified in Articles 8–18 RR. Finally, it looks at the material scope of the choice of law rules as a result of the introduction of a new provision in Article 6 RR and analyses the more complicated relation between applicable law and competence as to topics not covered in Articles 7 and 8–18 RR.
Commentary on the Original Insolvency Proceedings Regulation and the Recast Insolvency Proceedings Regulation
Authors: Paulus Christoph , Smith Tom
Published: June 2024

This chapter offers commentary on the Original Insolvency Proceedings Regulation (OR), which applies to proceedings opened before 26 June 2017, and the Recast Insolvency Proceedings Regulation (RR). Despite the repeal of the OR, proceedings opened prior to 26 June 2017 will continue to be governed by the Original Regulation. The principal tools of interpretation used here are the Recitals to the OR and RR, printed respectively in Appendices 1 and 3, and the Virgos-Schmit Report. The Recitals note that insolvencies and cross-border insolvency proceedings are factors which can affect the proper functioning of the European internal market. Accordingly, it is desirable that cross-border insolvency proceedings should operate efficiently and effectively. In order to achieve this, there is a need for the co-ordination of the various measures which may be taken in relation to an insolvent debtor’s assets across the European Union. It is therefore stated that the purpose of the OR is to be a Community law measure, binding and directly applicable in Member States, containing provisions relating to jurisdiction, recognition, and applicable law in respect of insolvency proceedings. The re-worded Article 1 of RR brings the position up to date and covers both insolvency and pre-insolvency proceedings.
Introduction
Authors: Busch Danny , Lehmann Matthias
Published: June 2024

This introductory chapter sets the scene by discussing the special need for unfair terms control in banking and finance. This chapter points in particular to the strong imbalance of knowledge and negotiating power in this sector. It sheds light on the purpose of this book, which is essentially a stocktaking of the influence of the Unfair Terms Directive (UTD) in the European Union, the European Economic Area (EEA), and Europe as a whole. The chapter sets out our understanding of the notion ‘banking and financial contracts’, and explains our selection of covered jurisdictions. Finally, the structure of the book is presented.
The Netherlands
Authors: Busch Danny
Published: June 2024

This chapter notes that banks and other financial institutions in the Netherlands are having to make increasing allowance for consumer claims based on the Unfair Terms Directive (UTD). It notes that Dutch civil courts and the Financial Services Complaints Tribunal (KiFiD) dispute adjudicators act in compliance with the UTD and the application of the Court of Justice of the European Union (CJEU)’s case law. In response to criticism from the European Commission, the Dutch legislature made some amendments to the Dutch provisions on general conditions. The chapter looks into main examples of unfair and/or intransparent contractual terms in the financial sector. It also considers the legal consequences of unfair terms in the Netherlands.
Greece
Authors: Livada Christina
Published: June 2024

This chapter explores the use of unfair terms in banking and financial contracts in Greece. It explains that Greek case law on unfair terms in banking and financial contracts has expanded considerably since the liberalization of consumer credit in 2003. The Unfair Terms Directive (UTD) was transposed into Greek law in 1994 by means of Article 2 of Law 2251/1994, which is the main legal act on consumer protection in Greece. The chapter looks into the legal basis of the unfairness test and discusses notable examples of unfair or intransparent contract terms. It describes how Greek legislators have adopted stricter provisions to define ‘consumer’ compared to the provisions in the UTD.
Auctions and Tenders
Authors: Tolhurst G J , Peden Elisabeth , Mik Eliza
Published: June 2024

This chapter focuses on the process of making contracts by auction and by tender. Both auctions and tenders are an attempt to achieve the best price by competition without entering into negotiations. Auctions are typically used to sell valuable chattels, such as paintings or houses or other buildings. The assumption is that if the sale by auction is effectively advertised, a number of potential buyers will attend and that the process of bidding is likely to drive the price up to an acceptable level. Competitive tendering can also be used for selling but is more commonly used for the procurement of services, particularly in the construction industry. Here the assumption is that those who desire the work will bid the lowest price they can afford, thus ensuring a low price for the person procuring the service. The chapter also discusses reserve prices.
Tort Litigation against Transnational Corporations
Authors: Aristova Ekaterina
Published: June 2024

There is an emerging trend of private claims being brought against parent companies of transnational corporations for their alleged involvement in human rights and environmental abuses committed abroad. These cases form part of an international effort aimed at strengthening responsible business conduct, the success of which depends on the rules governing domestic courts’ power to adjudicate disputes. However, in an increasingly globalised environment, the territorial focus of the adjudicative jurisdiction is often contrary to the transnational nature of the business activities. To address this puzzle, this book seeks to answer three questions. Firstly, to what extent can English courts, under existing rules, exercise jurisdiction over English parent company and its foreign subsidiaries as co-defendants? Secondly, is England a suitable forum for deciding transnational human rights claims? And, finally, should the jurisdictional competence of the English courts be broadened through a new connecting factor derived from the ‘economic enterprise’ theory? While the book is written from the perspective of English law, it also draws on examples of similar claims in other jurisdictions to broaden the discussion. It offers a new angle to the business and human rights discourse by placing the discussion of parent company liability cases in the context of the topical debate about the changing role of private international law in a globalised world.
Introduction
Authors: Aristova Ekaterina
Published: June 2024

This introductory chapter provides an overview of the transnational corporations (TNCs) and the human rights impacts of cross-border business operations. It cites the challenge of establishing a satisfactory regulatory framework for TNCs in the international community. Meanwhile, foreign direct liability (FDL) claims have emerged as a solution to holding TNCs accountable for the adverse impacts of their operations.
Non-Contractual Obligations
Authors: Briggs Adrian
Published: June 2024

This chapter deals with the conflict of laws rules for non-contractual obligations and for issues associated with non-contractual obligations. It traces the development of the law from the common law rule requiring ‘double actionability’, with more recent exceptions, via the Private International Law (Miscellaneous Provisions) Act 1995, to the law established by the retained EU Regulation, known as Rome II, for non-contractual obligations in civil and commercial matters. It assesses the definitional complexity of ‘non-contractual obligation’ as a term of art in a retained EU Regulation and considers its relationship or overlap with contractual obligations, and its relevance to claims to recover property. It examines the conflicts rules established by the Rome II Regulation for general cases and specific contexts, the issues to which the lex delicti applies, and the circumstances in which it may be overridden by laws from systems which do not govern the obligation in question. It concludes by dealing with issues, and with the torts and other matters, for which the Rome II Regulation does not purport to identify the applicable law.
CCP Access Structures
Authors: Sell Christina
Published: June 2024

This chapter explains central counterparty (CCP) access structures. It describes clearing member types, client clearing models under European and US law, and the relatively new type of direct access models. The chapter does this by illustrating a concrete case study: the (over-the-counter, OTC) access structures of Eurex Clearing AG (Eurex Clearing). Eurex Clearing was authorized as a CCP under the European Market Infrastructure Regulation (EMIR) in 2014 and as a Derivatives Clearing Organization (DCO) for the clearing of swaps in relation to entities located in the United States by the US Commodity Futures Trading Commission (CFTC) in 2016. The in-depth explanation of Eurex Clearing’s access structures is followed by a reflection of their market take-up and related developments. The chapter also draws direct comparisons between OTC patterns and other market structures, such as those existing for Eurex Clearing’s listed derivates and repo markets as well as other CCPs.
OTC Derivatives Clearing and Collateral Management
Authors: Singh Manmohan
Published: June 2024

This chapter evaluates the role of collateral in the over-the-counter (OTC) derivatives market and the associated drawbacks in the regulatory initiatives that propose to move these contracts to central counterparties (CCPs). The financial crisis following Lehman Brothers’ demise and the bailout of the American International Group (AIG) provided the impetus to move the lightly regulated OTC derivative contracts from bilateral clearing to CCPs. Prior to this move, CCPs were viewed under the rubric of payment systems. The debate about the future of financial regulation has heated up as regulators in both the United States and the European Union seek legislative approval to mitigate systemic risk associated with systemically important financial institutions (SIFIs), which include large banks and non-banks. In order to mitigate systemic risk that is due to counterparty credit risks and failures, either the users of derivative contracts will have to hold more collateral (or equivalent capital) from bilateral counterparties or margin will have to be posted to CCPs.
OTC Derivatives Clearing Documentation
Authors: Dwyer Emma , Lancelott Emma
Published: June 2024

This chapter provides an introduction to over-the-counter (OTC) derivatives clearing documentation. It sets out an overview of the legal framework and key concepts underpinning OTC clearing and discusses the supporting documentation. These include the central counterparty (CCP) rules, the International Swaps and Derivatives Association/Futures Industry Association (ISDA/FIA) Cleared Derivatives Execution Agreement, the ISDA/FIA Client Cleared OTC Derivatives Addendum, the FIA Clearing Module, collateral documentation, and related legal opinions. The chapter also examines considerations arising from regulatory obligations and other developments, some of which may also give rise to documentation requirements. These include the European Market Infrastructure Regulation (EMIR) Art. 39(7) disclosure requirements; the Markets in Financial Instruments Directive II (MiFID II), and the Markets in Financial Instruments Regulation (MiFIR) Model Provisions for the Addendum; EMIR requirements to provide clearing services under fair, reasonable, non-discriminatory, and transparent (FRANDT) commercial terms; and changes to CCP rules.
Capital Requirements for Bank Exposures to CCPs
Authors: Peters Marc
Published: June 2024

This chapter focuses on the bank capital requirements that apply to exposures to central clearing counterparties (CCPs), in particular in the context of the central clearing mandate for over-the-counter (OTC) derivatives. It begins by explaining the prudential treatment of derivative exposures towards CCPs and how it acknowledges the market structure, the clearing value chain, and the way market participants, including banks, access CCPs. The chapter explains how the determination of capital requirements adjusts to the role of a bank in a cleared transaction, including in multi-level client structures, and to the risk profile of CCPs. The chapter then continues with the treatment of exposures in the context of uncleared transactions and further provides an overview of other areas of the prudential framework for banks that have been influenced by the central clearing mandate. It concludes with some considerations on the future central clearing landscape.
Default Management
Authors: Horner David
Published: June 2024

This chapter addresses how strong default management capabilities are essential for any reputable clearing house to function. It seeks to understand how a modern central counterparty (CCP) prepares itself to be successful in this discipline. The chapter begins with a summary of the historical context, including the default of Lehman Brothers in 2008 and the European Market Infrastructure Regulation (EMIR) and Dodd–Frank legislation which followed. It then discusses the CCP’s financial resources: variation margin, initial margin (including for large, concentrated positions), skin in the game, the default fund, and the unfunded ‘deep waterfall’ tools. The chapter also describes important default management logistics such as default decision-making, hedging, auctions, client porting, and participation incentives. Finally, it examines the important role played by ‘fire drill’ exercises in ensuring that the CCP and its stakeholders are well prepared.
Recovery and Resolution of CCPs
Authors: Serière Victor de
Published: June 2024

This chapter explores the European rules on recovery and resolution of central counterparties (CCPs), as set out in Regulation (EU) No. 2021/23 of 16 December 2020 (the Regulation). The Regulation provides a detailed regime to apply to CCPs that fail or threaten to fail. It deals with anticipatory recovery and resolution planning, early intervention measures, and, ultimately, resolution. The resolution regime kicks in if it is determined that resolution is necessary in the public interest, as will more likely than not be the case for most CCPs. The Regulation is, to a large extent, inspired by the European rules on the recovery and resolution of banks and larger investment firms, which, to date, remain largely untested. However, the Regulation takes into account the functions and organizational structures of CCPs, which are fundamentally different from those particular to banks, and it is aligned and complementary to the more general provisions of the European Market Infrastructure Regulation (EMIR).
Clearing and Trading and Settlement
Authors: Thomadakis Apostolos , Lannoo Karel
Published: June 2024

This chapter begins by introducing what clearing is, the value-added of central counterparty (CCP) clearing, and its advantages and potential concerns. It analyses the evolution of the derivatives market and the trading activity over the years before describing the settlement process and the settlement service providers. Derivatives markets allow local economic exposures to be shared globally, thus efficiently transferring risk. Since the global financial crisis (GFC), central clearing has been at the forefront of the financial regulatory agenda, which resulted to increasing transparency and reducing risks. Nevertheless, a few global financial centres have specialized and are now clearing the lion’s share of global trades. Concerns about the concentration of risk in third-country CCPs and foreign currency exposure has been an issue among EU policymakers and supervisors for the past two decades. The chapter then presents a long-term vision for the future of the European clearing market, taking financial stability, efficiency, and the development of Europe’s financial markets into account.
The Emerging Human Rights and Environmental Due Diligence Responsibility of Financial Institutions
Authors: Bismuth Régis
Published: June 2024

The responsibility of financial institutions in the global value chain of money appears to be one of the new frontiers of corporate accountability. This chapters explores the different legal channels through which the responsibility of financial institutions may be incurred when their activities are linked to or generate adverse environmental and human rights impacts. It intends to understand what major trends are currently shaping how the issue of the responsibility of financial institutions in such cases is likely to be addressed. In that regard, this chapter first clarifies the distinction between the respective obligations of public and of private financial institutions. It then explores the growing importance of the due diligence paradigm for corporations in a litigation context. At the end, it considers what due diligence entails or could entail for financial institutions and the divergent interpretations (from the financial sector, international organizations, and NGOs) it has so far received regarding its implementation in practice.
The International Sale of Goods 5e
Authors: Bridge Michael
Published: June 2024

The fifth edition of this book continues to provide comprehensive analysis of the law and practice of sale of goods under English and international law. The dual coverage of contracts under English law and the UN Convention on the International Sale of Goods (CISG) is of great value to those interested in all types of sale of goods contracts, including the sale of commodities. The detailed commentary provides analysis on decided cases as well as on standard form contracts that represent evolving trade practice. This edition offers updated and essential analysis of the rapidly evolving law related to the CISG, including an assessment of how specific issues — such as no oral modification clauses — might be addressed under the Convention. In addition, it provides expanded coverage of standard form contracts beyond the dry trades, including developments in electronic documentation and further treatment of notices of appropriation and force majeure. Further, there is a discussion of Incoterms 2020, and an expanded and updated treatment of contractual estoppel, good faith and contractual discretion, contractual termination and damages. The law is explored in the context of commercial practice making the book an ideal reference source for practitioners, scholars, and postgraduate students.
The Performance Obligations of Seller and Buyer in English Law
Authors: Bridge Michael
Published: June 2024

This chapter deals with the performance obligations of the seller in a sale transaction governed by English law, principally the seller’s obligations to deliver goods that are of satisfactory quality, are fit for the buyer’s purpose, and meet the contractual description. Conditions and innominate terms are discussed. As is shown, the seller’s obligations are not subject to legislative controls on their exclusion if a contract is one of international sale. The chapter is concerned also with the interpretation of the contract, a matter of particular importance in providing contractual certainty when standard form contracts are used throughout trades in oil, grain, and other commodities. It explores issues relating to good faith, contractual discretion, and estoppel, and provides a background understanding of the doctrine of privity of contract.
Remedies for Breach of Contract
Authors: Bridge Michael
Published: June 2024

This chapter deals with remedies for breach of contract. It starts with a treatment of the fundamental breach rule and then deals with the making of time of the essence. There is a discussion of anticipatory repudiation and of contractual suspension, alongside the giving of adequate assurance of performance. Cure of non-conforming performance by the seller is discussed, set against the buyer’s right to demand performance of the contract. The loss of the right of avoidance (termination) is considered, so too are the restitutionary consequence of avoidance. Damages and price reduction are discussed, together with the award of interest for delayed payment and for repayment. Finally, there is a discussion of exemption of liability because of supervening circumstances as well as because of the other party’s prior non-performance.
The History of the Negotiations
Authors: Brand Ronald A , Coffee Michael S , Herrup Paul
Published: June 2024

This chapter focuses on the history of the negotiation in correlation with the Hague Conference. It explains that the 2019 Judgments Convention is the second instrument resulting from a request submitted to the Hague Conference. In response to the concerns about the 2001 Interim Text, Commission I of the Nineteenth Session of the Hague Conference established an informal Working Group to consider a convention based on the jurisdictional provisions on which broad agreement existed. The June 2001 Interim Text continued to read more like a double convention than the mixed convention the Special Commission had decided to prepare. Meanwhile, the Council on General Affairs and Policy of the Hague Conference established an Experts’ Group to consider the resumption of the Judgments Project in 2011.
Islamic Contract Law
Authors: Bantekas Ilias , Ercanbrack Jonathan G , Oseni Umar A , Ullah Ikram
Published: June 2024

This book is the first comprehensive treatment of Islamic contract law in the English language, and it serves as both a reference work and an authoritative statement of the law and the Fiqh underlying it. The book’s structure draws from the tradition of Western contract law books to enable non-expert readers to easily navigate its structure, sources, and application. It covers the complete spectrum of Islamic contract regulation, and includes chapters on the formation of contracts, the sources of Islamic contract law, the role of intention, legal capacity, the importance of the subject matter, as well as the prohibited elements of contracts. Further chapters discuss validity and defects, contractual terms, bilateral agreements, equity-based partnership contracts, ancillary and unilateral contracts, termination and damages, and the role of third parties. Finally, a chapter is devoted to the application of Islamic law in contemporary Muslim-majority legal systems.
General Principles and Sources of Islamic Contract Law
Authors: Oseni Umar A
Published: June 2024

This chapter introduces the general principles and sources of Islamic contract law. It also looks into the general theory of contract and the dichotomy between form and substance, which has triggered the unending debate surrounding the spirit of a transaction based on Islamic law. The trade relationships between the Muslim world and Western countries are underpinned by contractual agreements. Additionally, the consideration of the theory of contract is relevant in the modern structuring of Islamic financial or halal products. The chapter highlights the significance of classical principles of Islamic contract law and their modern relevance in structuring English-styled legal documentation. It also looks into the essential elements of a valid contract.
Contracts and Third Parties
Authors: Oseni Umar A
Published: June 2024

This chapter cites the implications of third parties in some circumstances of contractual rights and obligations. Due to third party reliance and its influence on the original bilateral contract, the principle of privity of contract and its exceptions within Islamic commercial law transcends parties who are directly related to the rights, duties, and obligations under the contract. Moreover, Islamic law provides rules applicable to tripartite contracts or contracts that confer rights or duties on third parties. The chapter explains the Islamic jurisprudence under hawala (contract of debt assignment), wakāla (agency contract), and kafāla (deed of guarantee). It also examines how bilateral contracts could have legal implications on the rights or obligations of third parties on the other.
Directors’ Duties
Authors: Drake David
Published: June 2024

This chapter reviews the general duties imposed upon directors that spring from their functional and normative role in conducting the company’s affairs and affecting its legal relations. It looks at the corporate law and the constitution of the company that provides directors with powers to make decisions on behalf of the company and to act in the company’s name. It also notes that the statutory general duties are specified to be owed by the director of a company to the company. The chapter discusses the breaches of the directors’ duties that are not uncommon grounds for personal claims, such as those brought by a shareholder on their own behalf or derivative claims brought by a shareholder on behalf of the company. It analyses the problem brought by the application of the directors’ duties to shadow directors at common law and in equity.
Derivative Claims
Authors: Lightman Daniel
Published: June 2024

This chapter concerns the practice and procedure of derivative claims, both at common law and under the Companies Act 2006. It considers the control of litigation in the name of the company and then analyses the differences between common law and statutory derivative claims. It goes on to discuss the relevant statutory provisions, rules, principles and practice directions that apply to all stages of a derivative claim, including pre-action conduct, the form of (and parties to) a derivative claim, the commencement of proceedings, the two stages of the application for permission to continue a derivative claim, the role of the company at the permission stage (and subsequently), costs indemnity orders, conditional fees, and procedure generally. This chapter also explores the relationship between a personal claim and a derivative claim, the use of section 996(2)(c) of the Companies Act 2006 to bring a derivative claim, how much and in what circumstances the statutory derivative claim is likely to be used, and whether derivative claims can be brought where the company is in receivership or liquidation. Finally, it addresses derivative claims in respect of foreign companies and multiple derivative claims.
Personal Claims
Authors: Drake David , Richardson Giles , Bryan Zahler
Published: June 2024

This chapter is concerned with personal claims that vindicate rights vested in members. It cites the enforcement of rights conferred on a member by the statutory contract constituted by the company’s articles of association as an example of personal claims. It also deals with the constraints imposed on personal claims by the reflective loss rule, which prevents a member from recovering compensation for a loss in respect of which the company itself has a cause of action. The chapter covers the statutory contract formed by the company’s articles of association, objections to alterations to the articles, and enforcement of directors’ duties. It discusses ultra vires transactions and shareholders’ agreements, which give rise to personal rights capable of enforcement.
Companies Act 2006, Section 994 Petitions: Procedure
Authors: Lightman Daniel , Elias Thomas
Published: June 2024

This chapter concerns the practice and procedure of bringing and defending section 994 petitions. It discusses the relevant rules, principles and practice directions that apply to all stages of an unfair prejudice petition, including the letter before action, the form of a 994 petition, case management, disclosure, trial, order following trial, and appeal. It also discusses strategic matters such as applications to amend, applications for interim relief, and applications to strike out or for summary judgment. This chapter also explores issues commonly encountered in 994 proceedings, such as the effect of delay, the funding of proceedings, and the importance of offers by a respondent to purchase a petitioner’s shares.
Just and Equitable Winding Up
Authors: Richardson Giles , Bryan Zahler
Published: June 2024

This chapter examines petitions for the winding up of a company on the grounds that it is just and equitable to do so under s 122(1)(g) of the Insolvency Act 1986 (IA 1986). It explains that IA 1986 stipulates that a company may be wound up if the court is of the opinion that it is just and equitable to do so. It also specifies the classes of persons who are entitled to present a winding-up petition according to IA 1986, noting that the term ‘contributory or contributories’ is used rather than ‘member or members’. The chapter discusses the holder of partly paid shares, who is liable to contribute to the assets of the company in the case of a winding up. It reviews the existence of sufficient interest if the petitioner can demonstrate that there will remain a monetary surplus for distribution amongst the company’s members.
Foreign Aspects
Authors: Elias Thomas
Published: June 2024

This chapter addresses the availability of relief where the company is not incorporated in England or Wales. It examines the principal problems which can arise where some of the parties are located outside the jurisdiction. It also discusses Part V of the Insolvency Act 1986 that governs the winding up of ‘unregistered companies’, which are any association or company in the UK that is not registered under the Companies Act 2006.
The Singapore International Arbitration Act
Authors: Goh Nelson , Lim Jonathan , Tan Paul
Published: June 2024

Over the past couple of decades, Singapore has successfully established itself as one of the major centres for international dispute resolution. The Singapore International Arbitration Act (SIAA), originally enacted in 1994 to give effect to the Model Law on International Commercial Arbitration, has been revised and amended four times over its lifetime, further strengthening Singapore's position as a hub for international arbitration. Following the latest amendments in 2020, this book presents an in-depth, section-by-section commentary of the SIAA, written with a strong coverage of the significant corpus of Singapore arbitration jurisprudence that has been developed by the Singapore Courts over the last decade or so. It provides up-to-date analysis of each section of the Act and relevant provisions of the UNCITRAL Model Law. While Singapore case law and the approach taken by the Singapore Courts is the main focus, the book also adopts a comparative and international lens on critical issues where the law remains in a state of progressive development. The book will be an indispensable resource for practitioners, students, and academics on the law and practice of arbitration in Singapore and other Model Law jurisdictions.
Arbitrability
Authors: Tan Paul , Goh Nelson , Lim Jonathan
Published: June 2024

This chapter discusses the concept of arbitrability and examines Section 11 of the IAA. Section 11 defines arbitrable disputes broadly, by stating that matters are presumed to be arbitrable unless they are “contrary to public policy”. The chapter discusses the test for determining whether a dispute is arbitrable, as well as the applicable choice of law rules for arbitrability. The chapter also discusses the types of disputes which the courts have found or are likely to find non-arbitrable, with a focus on two specific categories of disputes which have given rise to disputes on arbitrability: disputes involving an insolvent company, and claims involving Section 216 of the Companies Act. The chapter also discusses the relevant considerations in a situation whereby an arbitral tribunal is unable to award the relief sought.
Awards and Interest on Awards
Authors: Tan Paul , Goh Nelson , Lim Jonathan
Published: June 2024

This chapter examines Sections 18, 19, 19A, 19B, 19C, and 20 of the IAA, as well as Article 30 of the Model Law. Section 18 of the IAA and Article 30 of the Model Law provide a mechanism through which parties may record their settlement of their dispute in the form of a consent award. Section 19 of the IAA provides for the enforcement of awards rendered in an international arbitration seated in Singapore. Sections 19A and 19B of the IAA together provide that, once issued, an award — whether an interim, partial, or final award — is final and conclusive as to the merits of the issue or claim determined under that award. The chapter discusses the provision in Section 19A that clarifies that a tribunal may make more than one award at different points in time, each of which is final and binding; and the provisions in Section 19B which address the consequences of classifying a decision of an arbitral tribunal as an “award”. Section 19C of the IAA empowers the Minister for Law to appoint any person holding office in an arbitral institution or other organisation to authenticate any award or arbitration agreement or to certify copies thereof for the purposes of the enforcement of an award in a country which is a Contracting State to the New York Convention. Finally, the chapter concludes with a discussion of an arbitral tribunal’s power to award interest under Section 20 of the IAA.