bluuebunny/crossref_metadata_2025 huggingface dataset:
Capacity Agreements
Authors: Maguire Graeme , Wheeler Joanne , Williams Rhys
Published: March 2021

In a competitive communications environment, capacity agreements enable operators at every level to offer their customers more choices, to develop innovative new product offerings, and to increase revenue and market opportunities. This in turn encourages increased competition and enhanced efficiency in communications facilities.
Theory and Rationale
Authors: Langford Rosemary Teele
Published: March 2021

This chapter critically examines the theoretical underpinnings of fiduciary law and of company law, presenting the rationale of conflicts regulation within that landscape. This is important given the changing terrain of fiduciary law. The duties to avoid conflicts and profits (the conflicts and profits rules) are a central feature of fiduciary law—indeed many scholars argue that these are now the only properly recognized (or ‘peculiarly’ fiduciary) duties. The chapter includes discussion of the concept of fiduciary loyalty and the practical importance of fiduciary classification. It examines the policy rationales for the duties.
Consequences of Breach
Authors: Rosemary Teele Langford Dr
Published: March 2021

This chapter provides an outline of the consequences of breach of the duties discussed in this book and, in particular, of the duty to avoid conflicts (the conflicts rule) at general law and under statute. This includes discussion of third party liability based on the rule in Barnes v Addy, which may be very valuable in certain circumstances. It highlights the available remedies, as well as issues arising in the framing and application of the remedies. It also draws attention to the role played by the unfair prejudice (or oppression) remedy in relation to directors’ conflicts. Given that this remedy is favoured by shareholders, and that a number of unfair prejudice cases concern directors’ conflicts, it is important to outline its contours. Indirect enforcement, and any significant differences in enforcement mechanisms between the jurisdictions, will be considered. The chapter does not provide a comprehensive outline in relation to all remedies or the detail of every aspect of the remedies discussed. There is, at times, clear divergence between the application of certain remedies in different jurisdictions—a complete and comprehensive comparative critical analysis of remedies would fill an entire book on its own.
Abuse of Process
Authors: Hamer Kenneth
Published: March 2021

Many regulators provide that the procedure before a fitness to practise panel shall begin with the panel hearing and determining any preliminary legal arguments or objections to the charge. For example, See: General Medical Council (Fitness to Practise) Rules 2004, rule 17(2). Nursing and Midwifery Council (Fitness to Practise) Rules 2004, rule 24(2) and General Pharmaceutical Council (Fitness to Practise and Disqualification etc) Rules 2010, rule 31(2).
Amendment
Authors: Hamer Kenneth
Published: March 2021

The disciplinary rules of most regulatory bodies provide for amendment at a substantive hearing of the charge or allegation provided it can be done without unfairness to the practitioner. Many regulators’ rules provide for amendment at any time during the hearing: see, for example, those of the General Medical Council, Bar Standards Board, and Chartered Institute of Management Accountants. Other bodies provide for amendment at any stage before the panel makes its findings of fact: see, for example, the Nursing and Midwifery Council, General Dental Council, and General Pharmaceutical Council.
Appeals
Authors: Hamer Kenneth
Published: March 2021

Appeals by a practitioner or registrant to the High Court are governed by Civil Procedure Rules, Part 52. See the list of statutory appeals relating to healthcare professionals, architects, solicitors, and barristers in Practice Direction (PD) 52D.
Bias
Authors: Hamer Kenneth
Published: March 2021

Lord Lloyd-Jones JSC, giving the judgment of the Board (Baroness Hale of Richmond PSC, Lord Wilson, Lord Sumption, Lord Hughes, Lord Lloyd-Jones JJSC), said that these appeals raised the question of whether a judge who has presided at an aborted trial by jury ought to have recused himself from sitting on an appeal against conviction by the defendants following their conviction on the same charges at a further trial by jury in which he played no part. At a trial in July 2007, before Isaacs J (as he then was), the trial of the defendants on a charge of murder of a police officer, attempted murder of another person, and firearms offences was aborted on the first day of the judge’s summing up. During the course of the trial, Isaacs J made a series of rulings and rejected submissions of ‘no case to answer’ made by all three defendants. In July 2013, following a retrial before another judge, the three defendants were each convicted, and thereafter they appealed against their conviction and sentence to the Court of Appeal of the Commonwealth of The Bahamas.
Civil Restraint Orders
Authors: Hamer Kenneth
Published: March 2021

Civil Procedure Rules, rule 3.11 and Practice Direction 3C—Civil Restraint Orders (civil restraint orders may be: a limited civil restraint order where a party has made two or more applications that are totally without merit and is limited to the particular proceedings in which it is made; an extended civil restraint order not exceeding two years where a party has persistently issued claims or made applications that are totally without merit; or a general civil restraint order not exceeding two years where a party against whom the order is made persists in issuing claims or making applications that are totally without merit, in circumstances in which an extended civil restraint order would not be sufficient or appropriate).
Conditions of Practice Orders
Authors: Hamer Kenneth
Published: March 2021

The panel found that U’s fitness to practise was impaired by reason of both deficient professional performance and his physical or mental health, and directed that his registration be subject to conditions for a period of nine months, with immediate effect. At a General Medical Council (GMC) performance assessment, U was found to be well below the majority of his peers and fell below the minimum standard of the Royal College of Anaesthetists in eight out of ten examinations. On U’s appeal on sanction, Hickinbottom J said, at [16]–[18], that the hallmark of suspension is identified in section 35D(2)(b) of the Medical Act 1983: for a determined period, the registration of the relevant doctor is divested of all effect. Suspension prevents the doctor from practising during the period of suspension. Conditions on registration under section 35D(2)(c) presuppose that the doctor will continue to be effectively registered and will continue to practise, but subject to conditions that enable them to deal with their health or deficiency issues, whilst protecting patients—as well as the integrity of the medical profession—from harm.
Disclosure, Confidentiality, Data Protection, and Freedom of Information
Authors: Hamer Kenneth
Published: March 2021

The appellant was charged with an inappropriate and improper examination of Ms B, alleged to have taken place at a consultation on 20 August 1997. On the first morning of the hearing, a photocopy of Ms B’s diary for the entry of 20 August was produced, which referred to a consultation with the appellant at 3.40 p.m. The appellant’s case was that his surgery did not open until 4.30 p.m. on that day, and his first appointment was at 5 p.m. At the hearing before the Professional Conduct Committee (PCC), the charge was proved and the appellant’s name was ordered to be erased from the medical register. On appeal to the Privy Council, it was submitted that Ms B’s diary should have been disclosed to the appellant prior to the date of the hearing.
Impairment of Fitness to Practise
Authors: Hamer Kenneth
Published: March 2021

Each of the healthcare regulators provides in differing terms that a registrant’s fitness to practise shall be regarded as impaired by reason only of certain defined matters, such as misconduct, deficient professional performance, a conviction or caution, adverse physical or mental health, a lack of knowledge of English, or a finding of impairment by another regulator. Examples of the statutory provisions governing impairment.
Legal Assessors
Authors: Hamer Kenneth
Published: March 2021

The rules of each regulator will invariably provide for the appointment of suitably qualified persons to act as legal assessors or legal advisers, to give advice to the regulator’s tribunals or committees on questions of law or other functions arising in connection with any matter under consideration by the tribunal or committee. The statute will specify the qualifications required to be a legal assessor. For example, the Veterinary Surgeons Act 1966, Schedule 2, paragraph 6(1) (for the purposes of advising the disciplinary committee on questions of law arising in disciplinary cases, there shall in all such cases be an assessor to the committee who shall be a person who has a ten-year legal qualification in England Wales, Scotland, or Northern Ireland) and the Opticians Act 1989, section 23D(1) (appointment of legal advisers who must have a legal qualification of at least five years). Legal assessors, when advising tribunals or committees, are required to do so in the presence of the parties or their representatives, or, when advice is given in private, to notify the parties or their representatives of the advice that they have given.
Reasons
Authors: Hamer Kenneth
Published: March 2021

General Osteopathic Council (Professional Conduct Committee) (Procedure) Rules 2000, rules 31 (the chair shall announce the committee’s findings and its reasons for those findings, with regard both to the facts of the case and to whether the osteopath has been found guilty of unacceptable professional conduct or of serious incompetence) and 36–38 (the chair shall announce the committee’s decision with regard to sanctions and the committee shall notify the osteopath of its decision, its reasons for reaching that decision, and the osteopath’s rights of appeal)
References by the Professional Standards Authority
Authors: Hamer Kenneth
Published: March 2021

Other Relevant Chapters 67.01
Reopening and Review of Decisions
Authors: Hamer Kenneth
Published: March 2021

The issue in this case was whether and in what circumstances a judge who had announced their decision was entitled to change their mind. The issue arose in the context of fact-finding hearings in care proceedings in a family court, but, as the Supreme Court said, at [1], it could obviously arise in any civil or family proceedings. The judge gave an oral judgment, later transcribed, which concluded that the father was the perpetrator of non-accidental injuries to a child and an order was drawn up to that effect. Before the order was sealed or entered, the judge gave a second judgment holding that, after further consideration of the evidence, she was unable to find to the requisite standard which of the parents had injured the child and that it could have been either of them.
Service
Authors: Hamer Kenneth
Published: March 2021

Regulators’ rules provide for the giving of notice to the practitioner of any hearing before the fitness to practise tribunal or disciplinary committee. The notice of hearing will invariably specify the date, time, and venue of the hearing, and details of the allegation against the practitioner and the facts upon which it is based, and will inform the practitioner of their right to attend the hearing and to be represented at it, and to adduce evidence, as well as inform the practitioner of the power of the tribunal or committee to proceed in the practitioner’s absence and the tribunal or committee’s powers of disposal. The rules of many regulators will invariably also contain provision as to the method of service of the notice of hearing, such as by being delivered to the practitioner personally, by leaving it at the practitioner’s registered address, or last known address if that is more likely to reach them, by sending by registered post or recorded delivery, and additionally by first-class post, or by an email address that the practitioner has provided for the purpose of fitness to practise proceedings. The rules will frequently provide that notice of a substantive or review hearing shall be given to the practitioner no later than twenty-eight days before date of the hearing, although notice of a hearing in relation to interim orders will be required to be given only within such time in advance of the hearing as may be reasonable in all of the circumstances of the case.
Undertakings and Warnings
Authors: Hamer Kenneth
Published: March 2021

In healthcare cases, undertakings may be agreed at an early stage with the registrant or warnings issued to the registrant by case examiners or the investigation committee.
The Creation of the Court of First Instance and of the Appeal
Authors: Naômé Caroline
Published: March 2021

Chapter 1 describes the ECJ’s situation in the 1980s and the negotiations which led to the creation of the Court of First Instance and the transfer of certain areas of jurisdiction from the Court of Justice to that court. Those changes in the EU Court structure created the need for an additional legal remedy: the ‘appeal’. The appeals system was then adjusted to accommodate later developments, such as the creation of the Civil Service Tribunal and the recast of the Rules of Procedure of the Court of Justice. Nowadays, it is the reform of the General Court which has the greatest impact on appeals before the Court of Justice.
The Effects of Appeals
Authors: Naômé Caroline
Published: March 2021

The general rule is that an appeal before the Court of Justice (ECJ) does not have suspensory effect. There is only one exception, in the case of regulations. This chapter describes the options open to the parties to try to mitigate the effects of the length of the appeal procedure. They may apply for interim measures, request an expedited procedure or request priority treatment.
Grounds of Appeal
Authors: Naômé Caroline
Published: March 2021

This chapter examines the possible grounds of appeal before the Court of Justice (ECJ). It distinguishes four categories of grounds, relating respectively to: (i) the competence of the court sitting at first instance and whether that court respected the scope of its jurisdiction; (ii) the conduct of the procedure at first instance, in relation to matters such as respect for the rules governing the organisation and functioning of the General Court (GCEU), the use of measures of inquiry, and protection of the rights of the defence; (iii) the way in which the General Court handled the case and wrote its judgment, particularly in the light of the duty to state reasons and the obligation to respond to the heads of claim and pleas of the parties; and (iv) the decision on the substantive issues.
Article 4(11). Consent
Authors: Bygrave Lee A , Tosoni Luca
Published: March 2021

Article 5 (Principles relating to processing of personal data) (see also recitals 33, 39 and 50); Article 6(1)(a) (Lawfulness of processing on basis of consent) (see too recital 40); Article 7 (Conditions for consent) (see also recital 42); Article 8 (Conditions applicable to child’s consent in relation to information society services) (see too recital 38); Article 9(2)(a) (Processing of special categories of personal data on basis of consent) (see too recital 51); Article 13 (Information to be provided where personal data are collected from the data subject) (see too recitals 60–62); Article 14 (Information to be provided where personal data have not been obtained from the data subject); Article 17 (Right to erasure) (see too recital 65); Article 20 (Right to data portability) (see too recital 68); Article 22 (Automated individual decision-making, including profiling) (see too recital 71); Article 49(1)(a) (Transfer of personal data to third country or international organisation on basis of consent) (see too recitals 111–112).
Article 4(20). Binding corporate rules
Authors: Tosoni Luca
Published: March 2021

Article 4(7) (Definition of ‘controller’); Article 4(8) (Definition of ‘processor’); Article 4(18) (Definition of ‘enterprise’); Article 4(19) (Definition of ‘group of undertakings’); Article 46(2)(b) (Transfers subject to appropriate safeguards); Article 47 (Binding corporate rules); Article 49 (Derogations for specific situations concerned with transfer of personal data to third countries and international organisations); Article 57(1)(s) (Supervisory authorities’ tasks); Article 58(3)(j) (Supervisory authorities’ powers); Article 64(1)(f) (Opinion of the Board); Article 70(1)(c) and (i) (Tasks of the Board).
Article 22 Automated individual decision-making, including profiling
Authors: Bygrave Lee A
Published: March 2021

Article 3(2)(b) (Monitoring of data subjects’ behaviour); Article 4(4) (Definition of ‘profiling’); Article 5(1)(a) (Fair and transparent processing) (see also recitals 39 and 60); Article 5(2) (Accountability); Article 6 (Legal grounds for processing of personal data); Article 8 (Conditions applicable to children’s consent in relation to information society services); Article 12 (see too recital 58); Article 13(2)(f) (Information on the existence of automated decision-making); Article 14(2)(g) (Information on the existence of automated decision-making); Article 15(1)(h) (Right of access regarding automated decision-making); Article 21 (Right to object) (see also recital 70); Article 23 (Restrictions); Article 35(3)(a) (Data protection impact assessment) (see too recital 84); Article 47(2)(e) (Binding corporate rules); Article 70(1)(f) (EDPB guidelines on automated decisions based on profiling).
Article 25 Data protection by design and by default
Authors: Bygrave Lee A
Published: March 2021

Article 4(5) (Definition of ‘pseudonymisation’) (see too recital 28); Article 5(2) (Accountability) (see too recital 11); Article 6(4)(e) (Compatibility); Article 22 (Automated individual decision-making, including profiling) (see too recital 71); Article 24 (Responsibility of controllers); Article 28 (Processors) (see too recital 81); Article 32 (Security of processing) (see too recital 83); Article 34(3)(a) (Communication of personal data breach to data subject) (see too recitals 87–88); Article 35 (Data protection impact assessment) (see too recital 84); Article 40 (Codes of conduct); Article 83(2)(d) and 83(4) (Fines); Article 89(1) (Safeguards relating to processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes).
Article 37 Designation of the data protection officer
Authors: Rigaudias Cecilia Alvarez , Spina Alessandro
Published: March 2021

Article 30 (Records of processing activities) (see too recital 82); Article 33 (Notification of a personal data breach to the supervisory authority) (see too recital 85); Article 35 (Data protection impact assessment) (see too recitals 90–91); Article 36 (Prior consultation) (see too recital 94); Article 38 (Position of the data protection officer) (see too recital 97); Article 39 (Tasks of the data protection officer) (see too recitals 77 and 97).
Article 41 Monitoring of approved codes of conduct
Authors: Kamara Irene
Published: March 2021

Article 24 (Responsibility of the controller) (see too recitals 74–77, 83); Article 35 (Data protection impact assessment) (see too recital 84); Article 40 (Codes of conduct); Article 46 (Transfers subject to appropriate safeguards) (see too recitals 108–109); Article 57 (Tasks); Article 58 (Powers); Article 64 (Opinion of the Board); Article 70 (Tasks of the Board); Article 83 (General conditions for imposing administrative fines) (see too recitals 150–151); Article 93 (Committee procedure).
Article 42 Certification
Authors: Leenes Ronald
Published: March 2021

Article 5(2) (Principle of accountability); Article 24(3) (Responsibility of the controller); Article 25(3) (Data protection by design and by default); Article 28(5) (Responsibilities of the processor) (see too recital 81); Article 32(3) (Security of processing); Article 43 (Certification bodies); Article 46(2)(f) (Transfers subject to appropriate safeguards); Article 55 (Competence of the supervisory authorities); Article 56 (Tasks of the supervisory authorities); Articles 57(1)(n)–(q) (Tasks of the supervisory authorities) (see too recital 77); Article 58(h) (Powers of the supervisory authorities); Article 63 (Consistency mechanism); Article 64(1)(c) (Opinion of the Board); Article 70(1)(n)–(q) (Tasks of the Board); Article 93(4)(b) (General conditions for imposing administrative fines).
Article 45 Transfers on the basis of an adequacy decision
Authors: Kuner Christopher
Published: March 2021

Recital 6; recital 102; Articles 13(1)(f) and 14(1)(f) (Information to a data subject); Article 15(1)(c) (Right to access information about data recipients in third countries); Article 23(2)(d) (Member States can restrict individuals’ rights but must provide for safeguards to prevent abuse or unlawful transfer) (see too recital 153); Article 28(3)(a) (Provisions of a data processing agreement stipulating controller’s instructions regarding data transfers); Article 30(1)(e) and (2)(c) (Internal records about data transfers); Article 40(2)(j) (Data transfer codes of conduct); Article 44 (General principles for transfers); Article 70(1)(s) (Assessment by the Board of the level of protection in a third country); Article 83(5)(c) (Fines for non-compliance with data transfer restrictions); Article 96 (Relationship with previously concluded agreements of the EU Member States).
Article 59 Activity reports
Authors: Hijmans Hielke
Published: March 2021

Article 57 (DPA tasks) (see too recital 129); Article 57(1)(u) (Obligation for supervisory authorities to keep internal records of infringements of the GDPR and of measures taken under Article 58(2)); Article 58 (DPA powers) (see too recital 129); Article 71 (European Data Protection Board annual report); Article 97 (European Commission reports on the evaluation and review of the GDPR).
Article 60 Cooperation between the lead supervisory authority and the other supervisory authorities concerned
Authors: Tosoni Luca
Published: March 2021

Article 4(16) (Definition of ‘main establishment’) (see too recital 36); Article 4(22) (Definition of ‘supervisory authority concerned’) (see also recital 36); Article 4(23) (Definition of ‘cross-border processing’); Article 4(24) (Definition of ‘relevant and reasoned objection’) (see too recital 124); Article 50 (International cooperation for the protection of personal data) (see too recitals 102 and 116); Article 55 (Competence of the supervisory authorities) (see too recitals 122 and 128); Article 56 (Competence of the lead supervisory authority) (see also recitals 124–128); Article 57(1)(g) (Supervisory authorities’ task to cooperate with other supervisory authorities) (see too recitals 123 and 133); Article 58 (Powers of supervisory authorities) (see too recitals 122 and 129); Article 61 (Mutual assistance) (see too recitals 123 and 133); Article 62 (Joint operations of supervisory authorities) (see too recital 134); Article 63 (Consistency mechanism) (see too recitals 13, 136 and 138); Article 64 (Opinion of the Board) (see also recitals 135–136); Article 65 (Dispute resolution by the Board) (see too recitals 136 and 143); and Article 66 (Urgency procedure) (see too recitals 137–138).
Article 65 Dispute resolution by the Board
Authors: Hijmans Hielke
Published: March 2021

Article 4(16) (Definition of the main establishment) (see too recital 36); Article 4(24) (Definition of a relevant and reasoned objection) (see too recital 124); Article 60(4) (Objection by a concerned supervisory authority to a draft decision of the lead supervisory authority); Articles 60(7)–(9) (Procedure to adopt a final decision by a supervisory authority); Article 63 (Consistency mechanism) (see too recitals 123, 135 and 150 in fine); Article 64 (Cases when opinions of the Board are mandatory); Article 66 (Derogations from the consistency mechanism in case of urgency) (see too recitals 137–138); Article 74(1)(b) (Notification of binding decisions by the Chair of the Board); Article 74(1)(c) (Chair of the Board to ensure the timely performance of the Board’s tasks); Article 75(6)(g) (Secretariat to prepare, draft and publish decisions on the settlement of disputes between supervisory authorities) (see too recital 140); Article 76(1) (Confidentiality of Board’s discussions when necessary).
Article 89 Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes
Authors: Svanberg Christian Wiese
Published: March 2021

Article 4 (Definitions) (see too recital 26); Article 5 (Principles relating to processing of personal data); Article 6 (Lawfulness of processing) (see too recital 50); Article 9 (Processing of special categories of personal data) (see too recitals 52–53).
Article 93 Committee procedure
Authors: Tosoni Luca
Published: March 2021

Article 28(7) (Standard contractual clauses); Article 40(9) (Codes of conduct); Article 43(9) (Certification mechanisms); Article 45(3) and (5) (Adequacy decisions); Article 46(2)(c)–(d) (Standard data protection clauses); Article 47(3) (Binding corporate rules); Article 61(9) (Format and procedures for mutual assistance); Article 67 (Exchange of information); Article 70(1) and (3) (Tasks of the Board); and Article 92 (Exercise of the delegation).
Preventing and Resolving Conflicts of Jurisdiction in Eu Criminal Law: A European Law Institute Instrument
Authors: Ligeti Katalin , Vervaele John , Klip André
Published: March 2021

This edited volume is based on the European Law Institute's project, 'The Prevention and Resolution of Conflicts of Exercise of Jurisdiction in Criminal Law', co-ordinated by the European Law Institute (ELI) and the University of Luxembourg. The project ran from 2013 to 2017 and was conducted under the auspices of the ELI and the Luxembourg National Research Fund (FNR). The study sought to explore options for a coherent regulatory mechanism for the prevention and settlement of conflicts of jurisdiction in criminal law. Currently, there is no binding instrument establishing a mechanism to resolve conflicts of (exercising) jurisdiction in criminal matters in the EU, although such a mechanism is essential for the effective functioning of a European criminal justice area based on mutual recognition. Building on empirical research and a comparison with civil law solutions to the problem of conflicts of jurisdiction, this volume seeks to impact the EU policy debate by proposing three fully-formed models for legislative action, coupled with extensive analysis of related themes.
The legal basis for preventing and resolving conflicts of criminal jurisdiction in the TFEU
Authors: Wasmeier Martin
Published: March 2021

Since the European Union (EU) has received powers to adopt legally binding acts in the area of judicial cooperation in criminal matters, the Treaties expressly referred to conflicts of jurisdiction as one of the issues to be tackled. Under the Amsterdam Treaty, the Union could adopt decisions and framework decisions with the aim of ‘preventing conflicts of jurisdiction between Member States’ (ex-​Article 31(d) of the Treaty on European Union (TEU)). The Treaty of Nice (26 February 2001) added the coordination of prosecutions through Eurojust.
Access
Authors: Craig Paul
Published: March 2021

The previous chapters were concerned with the foundations of judicial review and judicial architecture. The focus now turns to principles of administrative law that are relevant for the way in which policy is delivered by the EU.
Law, Fact, and Discretion
Authors: Craig Paul
Published: March 2021

The discussion in the earlier chapters revealed the link between procedural and substantive judicial review. This chapter focuses on some central precepts of substantive review. The discussion begins with the meaning accorded to the concepts of law, fact, and discretion in EU law. This will be followed by examination of the test for review for questions of law. The focus then shifts to review of fact and discretion. The test for review and the meaning accorded to it in the early case law will be explicated. This will be followed by examination of the more recent jurisprudence, and it will be seen that the EU Courts have used the tests for review more intensively than hitherto, although there may be some modification of this in some recent case law. The final two sections of this chapter contain broader reflections on the standard of review emerging from the case law in relation to fact and discretion respectively.
Legal Certainty and Legitimate Expectations
Authors: Craig Paul
Published: March 2021

The connected concepts of legal certainty and legitimate expectations are to be found in many legal systems, although their precise legal content may vary. These concepts are used in a number of different ways and it is important to distinguish them in order to avoid confusion. Legal certainty and legitimate expectations are general principles of EU law and hence are binding not only on EU institutions, but also on Member States when they act in the scope of EU law.
International Trust Disputes, Second Edition
Authors: Kempster Steven , McMillan Morven , Meek Alison
Published: March 2021

The new edition of this leading work continues to provide full analysis of the legal and practical aspects arising in trusts disputes, with attention to jurisdiction-specific issues covering ten of the most relevant territories. Since the last edition the law has developed at a fast pace and trust disputes continue to increase as international trusts reach the second, third and sometimes fourth generation of beneficiary. In particular, there have been changes made to the law of succession in England and Wales (Intestacy Rules 2014) and case law such as Ilott v The Blue Cross [2017] which consider the implications for family provision under the Inheritance (Provision for Family and Dependants) Act 1975. Developments relating to the position of trusts in matrimonial disputes are analysed and the issues for trust disputes and rights to information under The Data Protection Act (Dawson Damer v Taylor Wessing [2017]) are also included. Other important case law which is now considered include Pitt v Holt, re Futter [2013] and the development of the law of mistake thereafter, and the Pugachev litigation on sham trusts. International Trust Disputes provides a comprehensive and thorough treatment of this topic. Acting as a specialist guide for practitioners, it offers a survey of the special considerations that may arise with regard to trust disputes as well as a definitive guide to the issues which may be encountered in the jurisdictions where disputes are most likely to take place.
No-Contest Clauses
Authors: Warnock-Smith Shân
Published: March 2021

‘No-contest clauses’ are designed to discourage or eliminate challenges to the validity of trusts or wills or to the transfer of property to trustees or, sometimes and more widely, to the decisions of trustees or personal representatives. Since it is not possible in law to prevent a beneficiary from launching a challenge because that would attempt to oust the jurisdiction of the court, the technique usually employed is to exclude a complaining beneficiary from benefit or to provide that her interest is forfeit either permanently or while the challenge is maintained or at the discretion of the trustees. The extent to which it is legally possible to effect an exclusion or to forfeit the interest is considered in this chapter. The principal reasons for their inclusion are considered below.
Retirement, Replacement, and Removal of Trustees and Other Office Holders
Authors: Richardson Giles
Published: March 2021

The case law of trust jurisdictions is replete with reported decisions about the departure from office of trustees (and other office holders, such as protectors) and the terms of such departures. In this chapter, the focus will be on the position in England and Wales.
Involvement of Charitable Interests
Authors: Evans Nicola
Published: March 2021

This chapter explores the issues to consider where charitable interests are involved in disputes. English charities have specific legislation and regulation applicable to them and the meaning of ‘charity’ differs from jurisdiction to jurisdiction (even within the United Kingdom). They also take different legal forms, not limited to a trust, so regard must be had to the appropriate representation for the charity in any dispute.
The Annual General Meeting
Authors: Kosmin Leslie , Roberts Catherine
Published: March 2021

The annual general meeting of a company has been an established part of the corporate landscape since the passing of the first Companies Act in 1862. The annual general meeting provides shareholders with the opportunity to consider the contents of the company’s annual financial statements, the reports of the directors and auditors, to choose the composition of the board of directors of the company, to appoint or re-appoint the auditors and to question the management about their conduct of the company’s affairs in the previous year. It is the forum at which the shareholders, in companies both large and small, have the opportunity to ‘have their say’. If the concept of shareholder democracy means anything, it is reflected in the obligation of companies to hold an annual general meeting for their shareholders. However, as will be discussed in this chapter, changes of fashion and the impact of modern practicalities have given rise to a new approach to the annual general meeting in recent years, with the result that such a meeting is in the UK only required as a matter of law for public companies and, since the introduction of the Company (Shareholders’ Rights) Regulations 2009, for private companies that
The Role of the Chairman at Meetings of Directors
Authors: Kosmin Leslie , Roberts Catherine
Published: March 2021

It is usual for a valid board meeting to be chaired by one of the directors who will act as the chairman of the board. The chairman is the person who has control of the conduct of the meeting. The person who occupies the position of chairman of the board of directors holds an important position in the hierarchy of a company. It is the responsibility of the chairman to manage the board meeting and, in consultation with the chief executive officer and the company secretary, to set the agenda for board meetings. In managing a board meeting a chairman must ensure that all members of the board receive accurate and proper information in a timely manner so as to enable them to take informed management decisions.
Angola
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Located in South-Western Africa, Angola is the seventh largest country in Africa, with an area of 1,246,700 square kilometres (km) bordered by Namibia, the Democratic Republic of Congo, Zambia, and the Atlantic Ocean. It has a population of over 29 million people and has a population density of twenty-four people per km. Its capital city is Luanda, which functions as the country’s main port as a result of its location. Luanda is also the country’s economic and cultural centre; in 2018 the city was inhabited by 2,487 million of the country’s entire population. The other main cities are significantly smaller: Huambo is the second-largest city, with a population of 226,177 people, followed by Lobito, with a population of 207,957 people, then Benguela, Lubanga, and Malanje. Business hours are generally weekdays, Monday to Friday, 0800–1300 and 1400–1700. Most companies operate on Saturdays and Sundays, with some banks being open on Saturdays from 0800–1200. However, government departments only operate during weekdays. The currency used is the Kwanza (Kz).
Burkina Faso
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Burkina Faso is a landlocked country in West Africa, surrounded by six countries: Benin, Ghana, Ivory Coast, Mali, Niger, and Togo. It has an area of 274,200 square kilometres (km) and has a population of 18.6 million inhabitants. Its capital is Ouagadougou, where the biggest airport of Burkina Faso, Ouagadougou International Airport, is found. By 2021, a new airport should be operational at Dosin, located 30 km north from the capital. Having no access to the sea, Burkina Faso relies on the ports of its neighbouring countries for its commercial exchanges. Eighty per cent of the external trade of Burkina Faso is conducted by sea. The main ports available to Burkina Faso are Cotonou, Lomé, Téma, Takoradi, and Abidjan. In practice, the autonomous port of Abidjan is the main port of maritime entry and exit into Burkina Faso, having regained its lost market share caused by the crisis in Ivory Coast in September 2002. International roads link Ouagadougou to all neighbouring ports and a railway line operates between Ouagadougou and Abidjan.
Central African Republic
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

The Central African Republic (Centrafrique) is a landlocked country bordered by Chad, Sudan, South Sudan, the Democratic Republic of the Congo, the Republic of the Congo, and Cameroon. It is 622,984 square kilometres (km) and has a population of 4.7 million. Centrafrique has a long history of political instability and the latest security and humanitarian crisis of 2013 has deeply affected the country, leading to the displacement of approximately 25 per cent of the population. Although the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) has been deployed since April 2014 and democratic elections took place in 2016, Centrafrique is still very much a country in crisis, where violent conflict is all too common.
Nigeria
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

The Federal Republic of Nigeria, known as Nigeria, is the most populous country in Africa and is situated on the Gulf of Guinea in West Africa. It is bordered by Benin, Niger, Cameroon, Chad, and the Atlantic Ocean on the southern border. Nigeria has a total area of 923,763 square kilometres (km) for a population of 190.9 million (2017). The capital of the country is Abuja with an estimated population of 2.153 million. Lagos, the former capital, with a population of over 9 million, is the country’s leading commercial and industrial city. Other main cities include Kano, Onitsha, Aba, Ibadan, Port Harcourt, and Kaduna. The normal working week is from Monday to Friday, from 0800 to 1600. The currency used in Nigeria is the naira (N).
Togo
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Found in West Africa, Togo which is sandwiched between Ghana and Benin, shares a border in the north with Burkina Faso, and has a 56 km coastline on the Gulf of Guinea. With an area of 56,785 square kilometres (km), it is one of the smallest countries in Africa. Its population was 7.6 million in 2016 and is rapidly growing. The capital and largest city of Togo is Lomé. It is the administrative and industrial centre of the country and also hosts the only commercial port. The currency used is FCFA (West African franc). The official language is French.
Tackling Injustice
Authors: Susskind Richard
Published: March 2021

With the building blocks of ‘justice according to the law’ now to hand, the task in this chapter is to shift emphasis and argue that policy-makers and activists who seek beneficial change should focus as much on reducing injustice as pursuing justice. I do not wish to abandon or discourage the pursuit of justice, but I fear if that is our only strategy, we are running two risks. The first is that we will fail to bring about the just arrangements and institutions to which many philosophers and lawyers refer when they speak about justice. The second risk is that, if we set our sights only on achieving some broad aspiration of justice, we might not effect any meaningful change at all.
Architecture
Authors: Susskind Richard
Published: March 2021

I often advise my law firm clients that ‘you can’t change the wheel on a moving car’. I say this in response to the exasperated look that appears on leaders’ faces when they contemplate the scale of technological change they are soon likely to face. Daily, I meet senior lawyers who recognize that transformation is needed but cannot see how they might move seamlessly from their current business—successful, already over-stretched complexes of people and processes—to the new world. It would be fine if they could press a pause button for a couple of years and put in place a new business at their leisure. But they cannot imagine in what they frequently call ‘the real world’ how they can fundamentally change their business while keeping it running along or, to be honest, while squeezing every last drop out of the old economic model.
Case Studies
Authors: Susskind Richard
Published: March 2021

I have generally found that lawyers and judges are more easily per¬suaded by evidence than argument. For every argument, no matter how sophisticated, the competent lawyer can launch a credible counter-argument. Stronger evidence is harder to reject. Leaving the theory behind, then, what evidence is there to suggest that on¬line courts are a social innovation that is worth pursuing? As I write in early 2019, it is early days for online courts. We are at the foothills, with mountain ranges yet to climb. Extended courts are quite common but online judging (at scale) remains unusual. Nonetheless, the examples we do have are inspiring, compelling, and give a strong sense, I believe, of developments that are likely to unfold globally in the coming decade.
Disclosure
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

One crucial feature of the criminal trial in England and Wales has always been the duty of the prosecution to disclose the evidence which is at its disposal to the defence. The rationale for this duty is the disparity of resources between the Crown on the one hand (with its access to the investigative facilities of the police and specialist services such as those of forensic scientists), and the individual accused of an offence on the other hand. In an effort to ensure a fair trial for the accused, and to achieve ‘equality of arms’ as far as possible between the Crown and the accused, there developed a common-law duty owed by the prosecution to the defence. This duty had two aspects:
The Verdict
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

When the judge has finished his summing-up, a court usher takes an oath to keep the jury in some ‘private and convenient place’, to prevent anybody speaking to them without leave of the court, and not to speak to them himself ‘except it be to ask them if they are agreed upon their verdict’. Having so sworn, the usher, who is referred to as the jury bailiff, leads the jury to their room and stations himself outside. During the period of their retirement the jury are kept together so that through discussion and argument they can arrive at a unanimous verdict (or, at least, at a verdict upon which the requisite majority of them are agreed: see 21.34 to 21.37). As far as possible, they are kept apart from everybody else, because no outside influences should affect a jury’s verdict. They and they alone must reach a decision on the guilt or innocence of the accused, and they should reach that decision solely on the basis of the evidence and speeches they have heard in court combined with their own experience of life and good sense. Three interconnected rules are designed to ensure that nothing untoward occurs while the jury are considering their verdict.
Procedure Before Sentencing
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

This Chapter, and the three which follow, summarize the sentencing process, placing emphasis upon its procedural aspects. For more detail, reference should be made to Blackstone’s Criminal Practice 2019, D 20 and Part E.
Sentences other than Custody
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

Chapter 24 dealt with the range of custodial penalties at the court’s disposal. The great majority of offenders, however, are dealt with by some means other than custody, and this Chapter is concerned with the non-custodial options.
Enforcement
Authors: Lodge Hugo D
Published: March 2021

By way of context, OFSI issues monetary penalties for sanctions breaches, under section 146 of the Policing and Crime Act 2017. This basic mechanism is preserved by the 2018 Act.
The Principle of Subsidiarity
Authors: Fabbrini Federico
Published: March 2021

‘“[T]hree correcting words of the legislator and entire libraries are turned into maculature.” Worse still: three additional words and entire libraries may be filled again with learned commentaries.’ It is in these apt terms that Robert Schütze has described the principle of subsidiarity. Since its introduction into the constitutional fabric of European Union (EU) law in 1992, a flurry of scholarly research has focused on the principle of subsidiarity, approaching the subject from multiple perspectives—be it legal theory, law and politics, or law and economics—and contextualizing its meaning in multiple legal and policy areas—from environmental law, to the internal market, from education, to social policy, and now criminal law. This widespread interest for subsidiarity is not surprising: as a core constitutional principle of the EU legal order, subsidiarity stands at the crossroads of questions about EU federalism and separations of powers, functionalism and institutional design, and the ends and means of European integration through law.
Primary Legislation and Legislative Procedures
Authors: Türk Alexander H.
Published: March 2021

The evolution of EU legislation and its legislative procedures can be seen as a reflection of the development of European integration from an administrative regime to a constitutional system more generally. The Coal and Steel Community of 1951 was to perform its functions with actors, legal instruments, and procedures for their adoption, which, despite their supranational nature, were inspired by national notions of administrative law. The idea that a representative and democratically accountable institution would adopt binding legal acts for its citizens seemed at this stage far-fetched. Even though the European Community Treaty of 1957, owing to its more broadly framed policies, envisaged an increased law-making activity, the dominance of executive actors (Commission and Council) in the adoption of legal acts with little or no input from the European Assembly was not conducive to an assessment of such acts as comparable to national legislation. On the other hand, it could not be argued that such acts were typically administrative either. Their normative content made them more comparable to national executive laws.
Preliminary References
Authors: Broberg Morten , Fenger Niels
Published: March 2021

A reference for a preliminary ruling is a request from the national court of a Member State to the Court of Justice of the European Union to give an authoritative interpretation of an EU act or a decision on the validity of such an act. In this situation, the Court of Justice does not function as a court of appeal that rules on the outcome of the main proceedings before the referring court: it makes judgment neither on the facts in the main proceedings nor on the interpretation and application of national law. Moreover, in principle it does not itself pronounce on the concrete application of EU law in the main proceedings before the referring court. Finally, while a preliminary ruling is normally given in the form of a judgment, the ruling is addressed to the referring court and not to the parties to the main proceedings. Only the referring court’s subsequent decision can be enforced against those parties. The preliminary reference procedure is therefore an expression of the interplay and allocation of tasks between national courts and the Court of Justice.