bluuebunny/crossref_metadata_2025 huggingface dataset:
Avoidance Of Excessive Delay
Authors: Andrews Neil
Published: November 2023

It is assumed that there exists in modern industrialized society a central impulse . . . to bring about the efficient administration of justice, as well as bureaucratic rationality in other kinds of social services. Yet, in fact the court systems in many modern regimes are chronically in a condition of severe neglect, like public parks, public education, and public streets in the same communities.
Interim Relief
Authors: Andrews Neil
Published: November 2023

Two considerations underlie the subject matter of this chapter. First, litigation can be very slow, and so it becomes expedient for the courts to have power to issue provisional or interim relief pending final disposal of the action. Secondly, in more cases than not, the court’s interim decision (whether to award interim relief or to deny it) becomes the sole judicial consideration of the substantive dispute in the action, because that interim decision induces the claimant to abandon the action, or it provides the basis for a mutual settlement, or the action does not reach trial for some other reason (for example, the claimant decides to abandon it through lack of funds or the claim is struck out by the court as procedurally defective or hopeless).
The Small Claims Jurisdiction
Authors: Andrews Neil
Published: November 2023

Typical claims falling within the ‘small claims’ jurisdiction are indicated in the standard forms which accompany the rules: small personal injury claims, for example ‘whip-lash’ claims arising from minor road traffic accidents; building or vehicle repair disputes; small disputes between landlord and tenant; and claims concerning holiday or wedding photographs. Lord Woolf in his Interim Report also noted that in the mid-1980s a significant majority of claimants in this forum were businesses rather than private individuals. This procedure might have been intended primarily for the benefit of individual consumers. But the evidence just cited shows that in fact business claimants tend to predominate.
Privilege Against Self-Incrimination
Authors: Andrews Neil
Published: November 2023

The privilege against self-incrimination is the right not to answer questions or produce material which might have the effect of incriminating oneself or one’s spouse. Although it offers protection against compulsion to disclose criminal liability, the privilege can arise for consideration as part of both the criminal and civil process. In this chapter, naturally, the focus is upon exercise of this privilege during the civil process.
Public Interest Immunity
Authors: Andrews Neil
Published: November 2023

This doctrine is the modern version of ‘Crown Privilege’. The latter terminology was unsatisfactory. This was because questions of ‘public interest’ cannot be confined to matters relating to the Crown but embrace a much broader band of interested parties, including charities operating in the public interest, such as the National Society for the Prevention of Cruelty to Children.3 Lord Scarman in 1980 regretted the change of terminology because in his view the term ‘Crown Privilege’ imposed a useful brake upon expansion of the doctrine.
Foreign Aspects Of Evidence
Authors: Andrews Neil
Published: November 2023

There is nothing to prevent a party from obtaining on a voluntary basis, that is without any co-operation by a foreign court or authority, a witness statement from someone who is abroad, or from obtaining documentary evidence from that person in similar circumstances. Such evidence can then be adduced in an English civil action. In both cases, the evidence will be received as hearsay evidence under the Civil Evidence Act 1995. Thus the witness statement might be used even if the witness does not attend in person at the English trial. That the witness does not attend in person will affect the weight of his statement, because he will not be available to be cross-examined on the statement.
Transnational Civil Procedure
Authors: Andrews Neil
Published: November 2023

The topic ‘judicial co-operation’ was highlighted by the European Council at its special meeting in Tampere in 1999. It was that meeting which witnesses creation of an area of freedom, security and justice in the European Union. The Tampere Presidency’s conclusions restated the value of increased judicial co-operation and enhancing access to law.3 These rubrics embrace promoting mutual recognition of judicial decisions.
The Law Under the European Convention
Authors: Clayton Richard , Tomlinson Hugh
Published: November 2023

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reason able time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Closure, Trust, and Reputation
Authors: Burt Ronald S
Published: November 2023

Trust remains an unresolved concern. The problem is illustrated in Figure 3.1. In situation A, network entrepreneur Robert has initiated a bridge relation with Jessica, a person in another group. He is asking Jessica to join him in supporting an idea. The idea looks good, but costs and benefits are not clear. Indeed, they cannot be clear. The idea is new. It has no concrete precedent in the company.
Introduction
Authors: Atiyah P S , Smith Stephen A
Published: November 2023

The law of contract is part of the law of obligations, that is to say, it is concerned with obligations that people owe to others as a result of the relations and transactions in which they become involved. Broadly, this is a part of private law, in the sense that obligations of a public character, such as constitutional or political obligations, are neither treated by the law nor thought of by lawyers as part of the law of obligations.
Definition and Classification
Authors: Atiyah P S , Smith Stephen A
Published: November 2023

In the previous chapter, it was explained that the law of contract is usually described as the law dealing with self-imposed obligations, that is to say, promises and agreements. This has been the orthodox view since at least the emergence of the modern law of contract in the nineteenthcentury.1 But it was also noted that this view has not gone unchallenged. It may be useful, therefore, to spend a few moments considering why this definition has been adopted and its main implications for a book on the law of contract. The latter discussion also provides a brief outline of this book’s general structure.
Beyond Offer and Acceptance: Formalities, Intent to Create Legal Relations, and Consideration
Authors: Atiyah P S , Smith Stephen A
Published: November 2023

While we saw in the last chapter that most contracts are created by promises or agreements, making a promise or agreement (or any other arrangement that satisfies the offer and acceptance requirements) is not generally sufficient to create a contract under English law.
Unenforceable Terms and Contracts
Authors: Atiyah P S , Smith Stephen A
Published: November 2023

Generally speaking, when the requirements for the creation of a valid contract have been satisfied—that is to say, there has been an offer and acceptance of reasonable certainty; the parties have capacity, there is consideration; and any necessary formalities have been complied with—the resulting agreement will be legally enforceable. But sometimes the courts refuse to enforce a transaction (or parts of a transaction) even when these requirements are present because of its ‘connection’—the word is deliberately vague—to an activity of which the law disapproves. An agreement to commit a crime, for example, is normally unenforceable. Other examples include gambling agreements and agreements in restraint of trade.
Misrepresentation
Authors: Atiyah P S , Smith Stephen A
Published: November 2023

While there is no general rule allowing for a contract to be set aside should one party fail to disclose material facts during negotiations, it is a strict and universal rule that such a right exists where one party is induced to enter a contract on the basis of the other’s false representation. In principle, such relief may be available even where the ‘representor’ was not at fault and even if the misrepresentation concerned a trivial aspect of the contract. Moreover, a person who has been induced to enter a contract by a misrepresentation will often have the additional right to claim damages in tort for any loss caused by the misrepresentation.
Duress and Undue Influence
Authors: Atiyah P S , Smith Stephen A
Published: November 2023

The law is reluctant to allow a direct plea that a contract should be set aside because one party was in a vulnerable or weak bargaining position. All persons over the age of eighteen and of sound mind are generally treated as of equal capacity for the purposes of contracting. Nevertheless, from time to time the law will step in to redress imbalances between stronger and weaker parties. Occasionally the intervention is indirect as when, for instance, courts invoke special rules that protect parties subject to exemption clauses or that protect consumers against certain types of unfair terms.
Extraterritorial Jurisdiction
Authors: Sender Marta Pertegás
Published: November 2023

The emerging interest on the private international law of intellectual property is a common phenomenon at academic circles and among intellectual property practitioners across Europe. The root question addressed throughout Europe is whether parallel patent rights covering different countries can be adjudicated by a single national forum. Two opposed standpoints can be defended. First, the ‘orthodox view’1 and the policy arguments behind it accept the principle of the territoriality of intellectual property rights as being axiomatic. It follows from the territoriality principle, inter alia, that the courts of the State under the laws of which the intellectual property right has arisen have exclusive jurisdiction over matters pertaining to those rights.
Cross-border Patent Enforcement Strategies
Authors: Sender Marta Pertegás
Published: November 2023

Cross-border litigation is not ‘the new brave world that the private international lawyers have planned for the I.P. lawyers’.1 It is probably becoming the habitual mechanism for a patentee to face an infringement of parallel patents in several countries. In fact, cross-border litigation and cross-border patent infringement are two sides of the same coin.
General Conclusions
Authors: Sender Marta Pertegás
Published: November 2023

On the basis of the foregoing analysis, it is now possible to describe the 6.01 phenomenon of cross-border patent enforceability in no more than three epithets. First, cross-border patent enforceability is a necessary step in the internationalization of patent law. Second, it is an available enforcement tactic under the current jurisdictional standards. Third, its development is as yet unpredictable because it depends upon the ability of national courts to cope with difficulties associated with international litigation, such as having recourse to different legal systems.
Legal Capital Rules and Modern Securities Markets-the Case for Reform, as Illustrated by the U.K. Equity Markets
Authors: Ferran Eilis
Published: November 2023

This chapter looks at the appropriate role for general company law in protecting the interests of investors in a modern environment where powerful external controls can be exerted through the capital, and other, markets. Using legal capital rules that apply to new shares as the specific example around which to base the discussion, it considers the interplay between state intervention and self-regulation by markets participants.
The Impact of Transparency Regulation on Company Law
Authors: Ebke Werner F
Published: November 2023

Transparency rules have gained increasing attention, both in theory and practice, as a means for monitoring corporations and their managers. This chapter will explore the current and the possible future impact of transparency regulation on corporate governance.
Impact of Take-overs and their Regulation on French Company Law and Practice
Authors: Faugerolas* Laurent
Published: November 2023

When a tender offer is launched, it gives rise to an exceptional situation in the life of a company by putting divergent interests face to face. On the one hand, there is the interest of the target, which is naturally to pursue its business in order to make profits.
The Changing Role of Institutional Investors-A German Perspective
Authors: Gerke Wolfgang , Bank, Matthias , Steiger Max
Published: November 2023

This chapter examines the future role of institutional investors in Germany and the way they will influence the German financial market taking into account the latest developments of information technology. Increasing market transparency will considerably decrease margins in asset management and increase the share of indexed assets of institutional investors.
Do Good Governance Recommendations Change the Rules for the Board of Directors?
Authors: Rossi Guido
Published: November 2023

This chapter examines the effects of corporate governance rules on the behavior of the board of directors. After asserting that neither corporate laws nor securities regulations change original corporate structures, it asserts that path dependency and countries’ political environment are the primary factors affecting corporate behavior.
Do Good Governance Recommendations Change the Rules for the Board of Directors?
Authors: Pettet Ben
Published: November 2023

This chapter is presented as the “Discussion Report” to chapters written by Mr. Jonathan Rickford and Professor Guido Rossi. Both their chapters are expert and thoughtful and, intriguingly reach quite different conclusions.
Do Good Governance Recommendations Change the Rules for the Board of Directors?
Authors: Vandenberghe Lutgart
Published: November 2023

Opinions differ in respect to the drivers and effects of corporate governance recommendations. Independent monitoring is an essential instrument, while substance must prevail over form. Emphasis should be placed on changing the attitude and behavior of business leaders.
The Impact of Insider Trading Rules on Company Law
Authors: Goshen Zohar
Published: November 2023

It is my privilege to write a ‘Discussion Report’ to a thoughtful and illuminating paper with excellent analysis and presentation of the topic by Professor Heinz Dieter Assmann.
The Impact of Financial Markets on Issues of Group Law
Authors: Lutter Marcus
Published: November 2023

The influence and the importance of the capital markets and their laws on the groups of companies is extraordinarily great. In this regard, one need only consider group accounting, the duties to inform shareholders about developments in the group, both on a regular basis and on special occasions, and last but not least, the take-over rules.
Thou Shalt Not Sow Thy Vineyard with Divers Seeds? The Case Against the Harmonization of Private Law
Authors: Procaccia Uriel , Segal Uzi
Published: November 2023

This chapter argues that inter-jurisdictional legal harmonization ought to be undertaken with great caution. The purpose of rules is to address economic and social problems. Many such problems are regional. To the extent that these problems are different across regions, each region requires a different, not a harmonized, legal solution.
Decision-making in the Area of Freedom, Security, and Justice
Authors: Monar* Förg
Published: November 2023

At the beginning of the 1990s justice and home affairs (hereinafter JHA) did not yet exist as a policy-making area; since then it has been the fastest growing such area of the EU. Now-under the ambitious title of an ‘area of freedom, security and justice’ (hereinafter AFSJ)-it has become a major integration objective, codified in Article 2 TEU, to which the Tampere European Council of October 1999 has added a very ambitious political agenda. Since the entry into force of the Treaty of Amsterdam more than 200 Council acts regarding the development of the AFSJ have been adopted. In the aftermath of the unprecedented terrorist attacks of l 1 September 200 I the speed of decision-making has again increased in certain areas, especially in judicial cooperation in criminal matters.
Enhanced Cooperation or Flexibility in the Post-Nice Era
Authors: Usber Fohn A
Published: November 2023

The Treaty of Amsterdam introduced general provisions on what it termed ‘closer cooperation’, which might briefly be summarized as involving Member States being authorized by the EU as a whole to make use of the institutions, procedures and mechanisms laid down by the Treaties to go further than the generality of the Member States. One of the major reforms effected by the Treaty of Nice is to amend those provisions so as to make their use much more of a practical possibility; in the process, the concept of closer cooperation has been renamed ‘enhanced cooperation’. However, the general provisions introduced by the Treaty of Amsterdam have not yet been used, so one is tempted to ask why they have been revised. While this may in itself possibly be regarded as a justification for their amendment, it may be suggested that, quite apart from the fact that there was only a period of 18 months between the entry into force of the Treaty of Amsterdam and the negotiation of the Treaty of Nice, these provisions were and are intended to find their vocation in the context of an enlarged EU.
Developing a Constitution for the Union
Authors: Vibert Frank
Published: November 2023

At the Laeken European Council in December 2001 the EU forma11y launched a debate about ‘The future of Europe’ and agreed on a wide ranging agenda for the next intergovernmental conference (IGC) to be held in 2004. The IGC will mark a new departure for governments in the EU because, for the first time, the focus of an IGC will centre on the constitutional character of the Union rather than on new functional objectives such as the single market, the single currency or enlargement. These earlier, functionally oriented IGCs certainly had constitutional consequences for the Member States. But now there is a clear change in emphasis. Governments are preparing for negotiations on procedures and institutions without attaching the discussion to some major new policy departure. What is more, the Laeken Declaration cautiously raises the question whether the simplification and reorganization of the Union’s Treaties ‘might not lead in the Long run to the adoption of a constitutional text in the Union’. There is wide spread support within the Convention for aiming at the text of a ‘constitutional treaty’.
The Rule of Law in the European Union
Authors: Arnull* Anthony
Published: November 2023

In the aftermath of the Second World War, the rule of law occupied a prominent place in international efforts to safeguard human rights and maintain peace and security. Like human rights, however, the rule of law was not mentioned in the original European Community Treaties. The omission was not rectified until Maastricht, when the term appeared in the preamble to the Treaty on European Union and new provisions on a common foreign and security policy and development cooperation. Since then, the concept has assumed an increasing profile in the affairs of the Union. In June 1993, the Copenhagen European Council included the rule of law among the criteria which the candidate countries of Central and Eastern Europe would have to meet before accession. At Amsterdam, the rule of law was specified as one of the principles on which the Union was to be regarded as founded: The Treaty on European Union was amended to restrict the right to apply for membership of the Union to European States which respect those principles. forever, a serious and persistent breach of such a principle by a Member State might henceforward lead to the suspension of its rights.
The EU Charter of Fundamental Rights
Authors: Jacobs* FG
Published: November 2023

In this chapter I am asked to consider the Charter not only in a technical legal perspective but in the broader context of the debate on the legitimacy and accountability of the European Union. That context seems a particularly appropriate one, because the Charter’s significance may prove to be greater in that context than in terms of its immediate legal effects. If the Charter is examined in a narrower legal perspective in terms of its content, its scope and its status, it might seem to have relatively little significance. It would, however, be unwise to prejudge the impact of the Charter even in that perspective. In any event, it will be useful to recall the main features of the Charter.
The Principle of Non-Discrimination in the Post-Nice Era
Authors: Ellis Evelyn
Published: November 2023

The subject-matter of this chapter is the two anti-discrimination directives which were adopted in 2000. Together these instruments forbid discrimination on the grounds of race, religion, age, disability and sexual orientation. Being directives, they will have fu11 binding force throughout the Union once their implementation periods have expired, but they require legislation to be passed by the Member States to incorporate their provisions into the national legal systems. After this has happened, the instruments will govern both the public and the private sectors.
Protecting Fundamental Rights and Social Rights: An Economic Analysis
Authors: Funk Lotbar
Published: November 2023

At the Nice Summit in December 2000 it became clear that previously vague ideas about the finality of the integration process require more exact definition. However, political debate about the future of Europe, and particularly the division of work between the European, national and regional levels, has been dominated by two extreme alternatives. Minimalist nation-statists favour a reduction of political integration and its replacement by an extended free trade zone. Maximalist federalists push for ‘ever closer union’ and a federation of European states supported by a constitutional agreement with clearly defined jurisdictions and democratic legitimation and monitoring in a union of peoples rather than of states. In this chapter I consider further alternatives. In addition to statism, a constitutionalist alternative to maximalist federalism, based on economic analysis, is considered. Moreover, recent developments suggest that new forms of governance are emerging in Europe.
EMU and the Lisbon Goals in an Enlarged European Union
Authors: Mullineux Andy W , Ryan Cillian
Published: November 2023

One of the challenges facing the EU is the rate at which it can undertake new initiatives while ensuring that previous experiments have been successfully completed. Thus, the Union is still in the process of ensuring compliance with the principles of the single market, while undertaking one of the greatest currency experiments in modern history, and simultaneously looking to the East and planning for its future expansion. Thus the expansion agreed at Nice is taking place within the context of a developing internal European economy with a new currency seeking legitimacy and strength. Externally the Union is facing an increasingly g1obalized world economy where the main world currencies are jockeying for position in a renewed debate over rate fixing, currency boards and adoption of common currencies. Indeed Robert Mundell, a Nobel Prize-winning economist and strong supporter of EMU, has recently advocated the adoption of a new world currency at a variety of forums.
The Governance White Paper, the Commission and the Search for Legitimacy
Authors: Wincott* Daniel
Published: November 2023

If their rhetoric is anything to go by, Europe’s political leaders believe that the EU faces a crisis of legitimacy. Discussion of bringing Europe ‘closer’ to its citizens is regular fare when they gather to discuss the future. It is widely agreed that the popular ‘permissive consensus’ on which the European Community was based for its first thirty years has ended. As many Europeans now seem actively hostile to the Union as are enthusiastic about it. For many others, EU issues simply fall outside the core of their social and political concerns. Political leaders in the Member States and at the European level sense a threat from the increasing evidence of disconnection and some hostility about the EU among the peoples of Europe, which exists alongside enduring elements of enthusiasm. Legitimacy questions hover around the (now more or less permanent) IGC process. However, each IGC ends not with a bang, but with a whimper, as expectations that the ‘big issues’ would be addressed are disappointed, often being deferred to yet another IGC. Yet these perceived problems have not prevented the Union from continuing to deepen (for example through monetary union) or to widen (the on-going issue of eastern enlargement).
The New Deal and Commercial Banking Lending
Authors: White Eugene N
Published: November 2023

In the 1990s American banks radically restructured their asset portfolios to better manage risks. They moved away from borrowing short and lending long-term towards more closely matching maturities or hedging risks. One key feature of this transformation was a decline in the importance of banks’ ‘traditional lending’ operations. This traditional lending was not a simple market-driven outcome but was largely shaped by New Deal regulations. In response to the economic collapse of the Great Depression, the New Deal sought to increase bank lending by encouraging banks to forgo their established practice of short-term lending. Although much of the New Deal legislation attempted to make banks into safer, more conservative institutions, its policies towards lending had the result of increasing risk by increasing duration.
A Historical Account of Japan’s Life Insurance Companies in the 1920s and 1930s
Authors: Tatsuki Mariko
Published: November 2023

The Japanese life insurance industry had two dimensions in its early days. At first, basic life insurance was provided by traditional friendly societies, which had developed in the proto-industrial days of the Tokugawa era. This was referred to as ‘pseudo-life-insurance’ after the introduction of modern insurance in the late nineteenth century. Modern scientific life insurance, on the other hand, was introduced from the West after the Meiji Restoration, and it competed with pseudo insurance.The pseudo-insurance companies had taken root so deeply in the life of the populace that they continued to prosper for quite some time after modernization following upon the Meiji Restoration. These companies had no scientific standards such as mortality tables or policy reserves. When the government conducted an investigation of the life insurance industry in 1894, it found among the several dozen companies it checked that only ten or so kept mortality tables.
Securities Markets and a Securities Company in Interwar Japan: The Case of Yamaichi
Authors: Kasuya Makoto
Published: November 2023

The Japanese government first introduced a banking system and a stock exchange system after the Meiji Restoration. While the establishment and operation of both these systems contributed significantly to Japan’s subsequent economic development, most historical studies have tended to focus on the development of the banking system (including many publications in English), with little attention having been paid to the stock exchange system. The Japanese banking system, known now as the ‘main bank sys- tem’, is thought to have played a major role in Japan’s postwar high economic growth. But even before this, the contribution to financing by capital, reserves, and corporate bonds was high before the outbreak of the Japanese–Chinese War in 1937.
The Meaning of Restorative Justice and Accountability
Authors: Roche Declan
Published: November 2023

Four values are suggested as the key to understanding restorative justice—personalism, participation, reparation, and reintegration. Because there is a tendency in restorative justice writing to see these key values as present in all informal modes of justice (and absent from all formal ones), advocates may have been led to underestimate the importance of ensuring that programmes are accountable. In particular, the popular notion that restorative justice is not a form of punishment but rather the revival of a universal, pre-state tradition of compassionate justice can encourage a false sense of security about the nature of informal justice.
Multiple Uses of Deliberative Accountability
Authors: Roche Declan
Published: November 2023

Susan listened to her son attempt to describe the harm he had suffered as a result of the attack six months earlier. His facial injuries had been so serious that he had required plastic surgery. When he had finished speaking, Susan took over: ‘And the harm we suffered was made worse by the failure of the police to treat this matter seriously. You (looking at the investigating officer) never returned our calls, and as far as we could tell, didn’t care about our case. It’s taken six months for this case to be dealt with—Why?’ All eyes turned to the investigating officer. ‘I’m sorry—sitting here, hearing what you’re both saying—I must admit I had no idea that Adam’s injuries were so serious. You see, I thought this was just a schoolyard scuffle, and I was sort of snowed under with other work at the time, but I should have given it more attention. I’m sorry I didn’t’.
Evidence, Proof, and Facts: An Introductory Essay
Authors: Murphy Peter
Published: November 2023

In this book, I have tried to bring together extracts from important primary and secondary sources, which will serve as a useful reference for those undertaking an in-depth study of the subject increasingly called ‘Evidence, Proof, and Facts’, as well as an introduction for those new to the subject. These sources represent the thought of intellectual giants, not only in the field of law, but also, and indeed primarily, in the fields of philosophy and science. They speak for themselves without the need for commentary. Nonetheless, as a discrete legal discipline, Evidence, Proof, and Facts is still somewhat novel, and it is, therefore, useful to define the issues to which the sources speak, to identify the principal areas within the subject in which academic debate has taken place.
Judicial Reasoning about Facts
Authors: Murphy Peter
Published: November 2023

The word ‘relevant’ means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Epilogue
Authors: Rausing Sigrid
Published: November 2023

In October 2002, eight years after I had left, I went back to the collective farm in order to pose the question asked by Winston in George Orwell’s Nineteen Eighty- Four: was life better or worse before the Revolution—or, in this case, was life better or worse after independence and decollectivization? At first sight the village looked, if anything, poorer than it had been. The ground between the blocks of flats had been dug up, and there were graffiti on the derelict old workshop building next to the shop.
The Right To Bail
Authors: Corre Neil , Wolchover David
Published: November 2023

The right to be bailed, Sir James Stephen observed, ‘is as old as the law of England itself and is explicitly recognised by our earliest writers’ (A History of the Criminal Law of England, 3 vols, London: Macmillan, 1883 (hereafter HCL), vol. i, p. 233). He notes, for example, that Glanville recognised the right ‘in curt and general terms’ (Tractatus de Legihus et Consuetudinibus Regni Angliae, xiv, c. 1). In early English criminal justice there was no preliminary inquiry prior to the holding of the sheriff’s tourn or, in more serious cases, the commission of oyer and terminer and general gaol delivery.
Conditions Other Than Surety Or Security
Authors: Corre Neil , Wolchover David
Published: November 2023

The imposition of ‘requirements’ with which a defendant must comply as a condition for being admitted to bail is such an everyday occurrence in the criminal courts that it is easy to lose sight of the fact that the power to impose such requirements other than sureties is of comparatively recent origin. The power to attach ‘special’ conditions (as they were then known) to the granting of bail was introduced bys. 21 of the CJA 1967. The aim was to reduce the number of defendants in custody by providing a means of restricting defendants’ liberty while still allowing them bail. At the Report stage on the Criminal Justice Bill the Home Office Minister, Mr Dick Taverne, explained:
Bail Pending Appeal
Authors: Corre Neil , Wolchover David
Published: November 2023

The right to bail enacted by s. 4 of the BA 1976 is inapplicable to convicted offenders who have initiated appeal proceedings following the imposition of a custodial sentence. They may be granted bail but, in contrast with the statutory right, the decision lies within the discretion of the court enjoying jurisdiction to grant it.

Where a person in custody has given notice of appeal to the Crown Court against the decision of a magistrates’ court the magistrates’ court, may, subject to s. 25 of the CJPOA 1994, grant bail: MCA 1980, s. 113(1), as amended by the CJPOA 1994, s. 168(2) and sch. 10, para. 44.

Where a person in custody has applied to a magistrates’ court, under s. 111 of the MCA 1980, to state a case for the opinion of the High Court on a question of law or jurisdiction, the magistrates’ court may, subject to s. 25 of the CJPOA 1994, grant bail: MCA 1980, s. 113(1), as amended by the CJPOA 1994, s. 168(2) and sch. 10, para. 44.
Custody Time Limits
Authors: Corre Neil , Wolchover David
Published: November 2023

Custody time limits are the statutory fixed periods beyond which accused persons may not be held in custody pending their trial. They were introduced in response to a recommendation of the House of Commons Home Affairs Select Committee in 1983–4 (Remands in Custody, HC 252) following concerns which were aptly explained in the following passage of a Home Office study:

Such limits were seen as a potential way of expediting the progress of cases through courts. Lengthy delay in hearing cases has a number of adverse effects: the quality of evidence deteriorates (due to fai1ing memories, and the nonavai1ability of witnesses); all parties – victims, suspects and witnesses – suffer a prolongation of anxiety; frequent adjournments increase courts’ expenditure; the population of prisoners on remand awaiting trial increases and contributes to prison overcrowding.
The Role and Duties of the Advocate On Matters of Bail
Authors: Corre Neil , Wolchover David
Published: November 2023

Where the prosecution have no objection to bail the prosecuting advocate should make this quite clear to the court. The duty should not be fudged by a prosecutor who personally feels that on balance bail can safely be granted but who, on the other hand, wishes to avoid incurring criticism for not opposing bail if subsequently the defendant should abscond or break conditions in some other way.

It is essential for the prosecutor to approach and address the court on the basis of explicitly recognising that the bail decision is a matter for the court and not for the prosecution.
The Powers of the Arbitraltribunal and Interim Measures of Protection
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

A distinction should be made between the powers of the arbitral tribunal and its jurisdiction. The jurisdiction of the arbitral tribunal defines the scope within which the arbitral tribunal may act. The powers of the arbitral tribunal are the tools of the arbitral tribunal for the conduct of the arbitration. In the event that the arbitral tribunal acts in excess of jurisdiction then any subsequent award will be set aside. However, if the arbitral tribunal exceeds its powers the award may be valid. The validity of the award will depend on whether the arbitral tribunal has acted in a way which has rendered the arbitral process substantially unfair. If a party’s case has been seriously prejudiced by the acts of the arbitral tribunal then any subsequent award will usually be set aside. However, where there is no prejudice to a party but a mere technical breach of the powers of the tribunal then the award will not generally be overturned.
Evidence, The Award, And Remedies
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

It is common to find that arbitration rules and legislation deal only briefly with the conduct of the arbitration. The United Nations Commission on International Trade Law (UNCITRAL) Model Law, for example, provides that it is for the arbitral tribunal to ‘conduct the arbitration in such manner as it considers appropriate’.1 There are, however, certain obligations imposed on the arbitral tribunal. Where, for example, a party requests that there is an oral hearing then the arbitral tribunal is required to hold a hearing for the presentation of evidence and oral argument.2 The reason that issues of procedure are dealt with only in a cursory manner in many arbitration rules and most arbitration legislation is that the arbitration process can be used in many types of disputes. It can be used from complex construction or shipping cases to simple consumer disputes or trade arbitrations. It is therefore impossible to draft a single set of rules for the conduct of the arbitration which will be appropriate in all cases.
Recognition and Enforcement of the Award
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

An award is no more than a piece of paper and the obtaining of an award by one party does not guarantee payment from the other party. A party who succeeds in obtaining an award in its favour may therefore have to enforce that award. The enforcement of an award can only be done through national courts. The enforcing party must therefore request that the courts in the place where the other party has assets to make an order seizing those assets to the value of the award. The court in which an enforcing party will have to make its application for enforcement will therefore often be in a country other than that where the arbitration had its seat.
Extending Time To Commence Arbitration Proceedings
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

A contract may include a contractual time bar clause that limits the period when a claim can be commenced. Contractual time bar clauses are common in shipping agreements, in trade association rules and in some engineering and construction contracts. The purpose of a contractual time bar clause is to ensure that any disputes that may arise are dealt with swiftly.
The Arbitration Agreement
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

Section 6(1) of the Arbitration Act 1996 defines an arbitration agreement as ‘an 20.01 agreement to submit to arbitration present or future disputes (whether they are contractual or not)’. For Part I of the Arbitration Act 1996 to apply, the arbitration agreement must be made in writing. The dispute need not be confined to contractual matters3 and, depending on the wording of the arbitration agreement, may include claims in tort. However the dispute must be capable of being arbitrated. There is no prescribed manner for the drafting of an arbitration agreement. The parties may specify a procedure for the arbitration in their agreement or simply refer to an administered arbitration scheme. The arbitration agreement may be contained in an underlying contract between the parties from which the dispute arises, or it may be contained in a separate contract. Alternatively, the parties may incorporate a set of terms and conditions that contain an arbitration clause into a contract. This will constitute a valid arbitration agreement if the effect is to make the arbitration clause part of the contract.
Challenging the Arbitral Tribunal’S Jurisdiction In The Proceedings
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

In a commercial dispute the arbitral tribunal derives its jurisdiction to resolve the parties’ dispute from the arbitration agreement. It provides the arbitral tribunal with its power to determine the issues which the parties have agreed should be resolved by arbitration. If no such agreement exists then the arbitral tribunal should not proceed with the arbitration. Equally, the arbitral tribunal should not proceed if it does not possess the qualifications specified in the arbitration agreement or the dispute is not within the scope of the arbitration.
Challenging and Appealing the Award
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

Under section 67 of the Arbitration Act 1996 a party may challenge an arbitral tribunal’s award on the basis that he had no jurisdiction to conduct the arbitration. The provisions in section 67 of the Arbitration Act 1996 are distinct from the court’s power in section 32 to make a determination of a preliminary point of jurisdiction. An application under section 32 is made in the course of the arbitration proceedings. The right to challenge under section 67 is a right which exists only after an award has been made. Section 67 of the Arbitration Act 1996 is a mandatory section and cannot be excluded by the parties.
Appointments and Jurisdictional Clauses
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

The seat of the arbitration shall be [place or country]. [The arbitral tribunal may, after consultation with the parties, conduct hearings and meetings at any location it considers appropriate unless otherwise agreed by the parties.]This additional provision is common in many institutional arbitration rules; for example, Article 14.2 of the ICC Rules of Arbitration.
Commencing the Arbitration
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

On [date] the Claimant and Defendant entered into a contract for [set out terms]. The contract contained an agreement to refer disputes to arbitration at clause [ ].
Joinder and Consolidation Clauses
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

Where a dispute has been referred to arbitration under this contract and the Contractor is in a related dispute with a Sub-Contractor which is substantially the same as the matter referred to arbitration hereunder, the parties consent to the joinder of the Sub-Contractor as a party to the arbitration and to the reference of such related dispute to the arbitrator appointed hereunder and further agree that the arbitrator shall have power to order the consolidation of such arbitration proceedings and/ or to order the holding of concurrent hearings.
Procedural Clauses
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

The arbitration has now been commenced and a set of Directions has been issued by arbitrator. You now need to consider your obligations to disclose documents in your control. The arbitrator has ordered documents to be disclosed in accordance with the requirements set out within the Civil Procedure Rules. You are therefore required to prepare a list of all documents which you have or have had in your possession, or which you have or had a right to possess or inspect or copy and which fall within any of the following categories: documents which support your opponent’s case.
The Award
Authors: Tweeddale Andrew , Tweeddale Keren
Published: November 2023

The Arbitration Act 1996 does not specifically provide a time limit for the making of an initial award where the parties have not agreed this. This is a matter for the arbitral tribunal subject to the court’s power to remove the arbitral tribunal for failing to use ‘all reasonable dispatch’ in making the award.However where the award is remitted back to the arbitral tribunal in whole or in part the arbitral tribunal must make a new award within three months of the date of the order for remission or such longer or shorter period as the court may direct.2 In the absence of clear words the fact that the parties have agreed a power to extend the time for making an award does not necessarily exclude the power of the court to do so under section 50 of the Arbitration Act 1996. Most institutional arbitration schemes have rules dealing with extensions of time for the making of an award. For example Article 24(1) of the International Chamber of Commerce (ICC) Rules requires that the arbitral tribunal produce a final award within six months. In such a case where the time for making an award is limited by or pursuant to the arbitration agreement, the parties or the arbitral tribunal may apply to the court for an extension of time for the making of the award.
The Mediating Role of the University: Leiden University, Its Structure and Function during the First Two Centuries of its Existence
Authors: Otterspeer Willem
Published: November 2023

On 8 February 1575, at seven o’clock on that Tuesday morning, a huge crowd thronged Leiden’s biggest church, the former Saint Peter. Those who had responded to the placards and ‘exclamations’- proclamations circulated as far as Delft, Gouda, and Rotterdamgathered around reverend Pieter Cornelisz. There, in that cold, bare church, Leiden University was commended to God’s grace. It would praise His name and edify His community, as well as serve the industry and prosperity of city and country. ‘Salvation’ and ‘experience in all honest and laudable arts’ were what this headstrong Protestant demanded from the new university. And ‘learning’ too, of course, pinched though it was between beatitude and benefit.
Auctioneers: Restrictions On Trading
Authors: Frsa Brian W Harvey , Llb Franklin Meisel
Published: November 2023

The profession of auctioneer is, as compared with the other professions today, relatively uncontrolled. The law does not require any minimum qualifications for practice, membership of a professional body is not obligatory, and there are no compulsory accounting rules designed to protect ‘consumers’. However, there are some general restrictions on trading in connection with the form of business association utilized and as regards licence requirements.
Capacity And Authority
Authors: Frsa Brian W Harvey , Llb Franklin Meisel
Published: November 2023

An auctioneer is a particular kind of agent. Pre-eminently he is employed by the vendor of property to effect a sale but, frequently, an auctioneer may also act as agent of the purchaser for limited purposes. In the course of transacting his business he may additionally act in some other legal capacity, for example as bailee with a duty to care for the property in his possession. The fact that an auctioneer may also act as agent for the purchaser does not, it seems, prevent him from selling his own property and thus acting as a principal; as he is not an agent of the purchaser for all purposes, no conflict of interest arises. However, in this chapter we are principally concerned with an auctioneer’s position as agent of the vendor. (The ambit of the auctioneer’s authority as agent of the purchaser is considered in chapter 5 below.)