bluuebunny/crossref_metadata_2025 huggingface dataset:
Applicable Laws
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This chapter analyses the different applicable laws that govern international arbitration. International arbitration, unlike its domestic counterpart, usually involves more than one system of law or of legal rules. It identifies five different systems of law that may have a bearing on an international arbitration in practice: the law governing the arbitration agreement and the performance of that agreement; the law governing the existence and proceedings of the arbitral tribunal (the lex arbitri); the law, or the relevant legal rules, governing the substantive issues in dispute (generally described as the ‘applicable law’, the ‘governing law’, ‘the proper law of the contract’, or ‘the substantive law’); other applicable rules and non-binding guidelines and recommendations; and the law governing recognition and enforcement of the award.
Establishment and Organisation of an Arbitral Tribunal
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This chapter describes the creation of the arbitral tribunal, the step in the arbitration process that follows the decision to start arbitration. Choosing the right arbitral tribunal is critical to the success of the arbitral process. It is a choice that impacts not only on the parties to the particular dispute, but also on the reputation and standing of the process itself. It is, above all, the quality of the arbitral tribunal that makes or breaks the arbitration, and it is one of the unique factors distinguishing arbitration from national judicial proceedings. There are several different methods of appointing an arbitral tribunal, of which the chapter enumerates and discusses the six most usual: by agreement of the parties; by means of the list system; by the co-arbitrators appointing a presiding arbitrator; by a professional institution or a trade association, such as the ICC; and by a national court.
Powers, Duties, and Jurisdiction of an Arbitral Tribunal
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This chapter discusses an arbitral tribunal’s different powers, duties, and jurisdiction during arbitration proceedings. These arise from a complex mixture of the will of the parties, the law governing the arbitration agreement, the law of the place of arbitration, and the law of the place where recognition or enforcement of the award is to be sought. Parties confer powers upon the tribunal either directly or indirectly. A direct conferment occurs when the parties agree upon the powers that they wish the arbitrators to exercise, while indirect conferment happens when parties agree that the arbitration is to be conducted under pre-established rules. The chapter then describes the duties of an arbitrator, which may be divided into three categories: duties imposed by the parties; duties imposed by law; and ethical duties. Both the powers and duties comprise a tribunal’s jurisdiction, with the parties determining the extent of its validity.
Conduct of the Proceedings
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This chapter outlines the conduct of the tribunal and the parties during arbitration proceedings. In general, an arbitral tribunal must conduct the arbitration in accordance with the procedure agreed by the parties. If it fails to do so, the award may be set aside, or refused recognition and enforcement. However, the freedom of the parties to dictate the procedure to be followed in an international arbitration is not unrestricted. The procedure must comply with any mandatory rules and public policy requirements of the law of the juridical seat of the arbitration. It must also take into account the provisions of the international rules on arbitration, such as those of the ICC, which aim to ensure that arbitral proceedings are conducted fairly. Accordingly, a balance must be struck between the parties’ wishes concerning the procedure to be followed and any overriding requirements of the legal regime that governs the arbitration.
Role of National Courts during the Proceedings
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This chapter examines the role that national courts play at the beginning, during, and end of arbitration proceedings. Arbitration is dependent on the support of the courts, which alone have the power to intercede when one party seeks to sabotage proceedings. This intervention may be possible at the beginning of the arbitral process in the context of the enforcement of the arbitration agreement, the establishment of the tribunal, and challenges to jurisdiction. National courts may also intervene during proceedings: it may be necessary for the arbitral tribunal or a national court to issue orders intended to preserve evidence, to protect assets, or in some other way to maintain the status quo pending the outcome of the arbitration. Under the UNCITRAL Rules and Model Law, such orders are called ‘interim measures’. The chapter also describes how national courts exercise judicial control over the resulting award.
Award
Authors: Blackaby Nigel , Partasides Constantine , Redfern Alan , Hunter Martin
Published: June 2017

This chapter considers the different categories of arbitration award issued by the arbitrary tribunal. The tribunal may be called upon to decide procedural disputes, or to make partial awards that decide issues between parties on a partial or final basis. Under the English Arbitration Act 1996, all awards are ‘final’, in the sense that they dispose ‘finally’ of the issues decided in them, and they are ‘binding’ on the parties. A final award, in this sense, is usually the outcome of arbitral proceedings that have been contested throughout. However, it may embody an agreed settlement between the parties, in which case it is generally known as a ‘consent award’, or an ‘award on agreed terms’. Another category is an award in proceedings in which a party has failed or refused to participate, which type of award is usually described as a ‘default award’.
Introductory Chapter
Authors: Llamzon Aloysius P
Published: June 2017

This introductory chapter sets out the book's two main purposes: first, to study the phenomenon of corruption in international investment, the growing movement under international law to prevent and criminalize such behaviour, and its relationship with international investment law and arbitration; and second, to develop a working framework for investment arbitration decision-making when issues of corruption arise. An overview of the subsequent chapters is also presented.
The Nature of Transnational Corruption
Authors: Llamzon Aloysius P
Published: June 2017

This chapter provides a working definition of transnational corruption, including its history and the elements that constitute the ‘corruption equation’. It then takes a closer look at contemporary corruption by considering two extremes: that of developing States with kleptocratic rulers, and mature industrial democracies. It concludes that in a global environment of contractual uncertainty, corporate actors are under considerable pressure to maintain the economic viability of present and future projects, and ‘the persistence of experienced operators’ in those industries is necessary to produce reasonable returns. In many cases, to help compensate for such uncertainty, corruption is used as a tool to ensure certainty in two areas that may adversely affect their investment: political uncertainty and economic uncertainty.
A Typology of Corruption in Foreign Investment
Authors: Llamzon Aloysius P
Published: June 2017

This chapter categorizes the many modalities of transnational corruption within two groups — transactional and variance bribery. Transaction bribes are payments routinely and often impersonally made to a public official to secure or accelerate the performance of that official's duties. The payment is not made in order to secure the public official's divergence from a substantive norm. Instead, the payment is made simply to ensure that the public official performs his duty more efficiently, hence the term ‘grease money’ or the euphemism ‘facilitation payment’. Variance bribes involve payments made in order to obtain a favourable result through a deviation from the proper application of a norm. The bribe might be paid in order to suspend the operation of a legal prescription, or in order to have a public official exercise his discretion in a manner favourable to the payer.
International Efforts to Combat Corruption in Foreign Investment
Authors: Llamzon Aloysius P
Published: June 2017

This chapter discusses how various actors in the world community have sought to combat transnational corruption. The most important of these actors are, of course, States, and the discussion begins with the efforts of the US through the Foreign Corrupt Practices Act. It then turns to the OECD Anti-Bribery Convention and the various regional instruments inspired by that treaty, culminating in the UN Convention Against Corruption. It considers efforts by multinational companies to institute norms and codes of conduct to guide their foreign investment relationships; and the response of international institutions, particularly the World Bank and international civil society. The chapter ends with an appraisal of the strengths and vagaries of the current regime of international anti-corruption law.
Mere Corruption? On the Reluctance to Decide Corruption Issues
Authors: Llamzon Aloysius P
Published: June 2017

This chapter examines the apparent inability of anti-corruption norms to affect outcomes in investment arbitration. It considers the possible reasons behind most arbitrators' lack of engagement with corruption issues, including the possibility that corruption actually does affect decision outcomes, albeit without reasoning or through ‘proxies’.
State Responsibility for Corruption
Authors: Llamzon Aloysius P
Published: June 2017

This chapter examines the law on State responsibility for corruption. It argues that the application of the international law on responsibility to transnational corruption issues in investment arbitration should involve bringing States to account for the fulfilment of their national and international anti-corruption obligations, before the issue is allowed to be used for mostly exculpatory reasons. Transnational corruption cannot be combated effectively by focusing and punishing only the foreign investor, which is only one side of the equation. Corruption-plagued states are doomed to repeat the failures of governance that have persisted in their public spheres so long as they are not asked to do more.
Concluding Chapter
Authors: Llamzon Aloysius P
Published: June 2017

This chapter discusses the competing policy goals that vie for supremacy in every decision made by investment arbitrators concerning corruption. It considers all the policies that underpin the system of international investment arbitration — investor protection, good governance, and economic development — vis-à-vis international anti-corruption norms, leading to the proposal of an alternate typology for transnational corruption that may better assist arbitrators in the resolution of difficult corruption-related issues.
Approaching Legal Issues in a Project Finance Transaction
Authors: Fletcher Phillip
Published: June 2017

Although each project has unique characteristics, which may vary depending on such matters as the host jurisdiction and sector,there are legal issues and risks that are common to most projects. The process of assessing those risks and determining whether and how they can be mitigated is central to structuring a successful transaction that will be sufficiently robust to withstand the economic, technical, political, and legal challenges that are likely to arise over the frequently long-term tenor of the project’s debt.This chapter identifies the broad categories of risks that must be considered, and outlines a methodology for doing so. The chapter also introduces a discussion of the unique features of project finance credit and security documents, and of the process required to close complex transactions.
Project Participants and Structures
Authors: Davies Aled , Pendleton Andrew
Published: June 2017

An understanding of the objectives and goals of the key participants (including host governments, private sponsors, advisers, project companies, construction contractors, operators, suppliers, and offtakers) is absolutely critical to the successful negotiation of a project financing. The challenge of structuring a transaction lies in reconciling the different objectives of those interested parties to ensure that each stands to benefit from the project and is therefore committed to its success.The first part of this chapter examines the key participants through the life of a project by addressing the following simple questions: (i) who are they, (ii) what are their roles, and (iii) what are their motivations? The second part gives an overview of the typical ownership structures employed for a project.
Sources of Funding
Authors: Ransome Clive , Dunnett Geoffrey
Published: June 2017

This chapter provides an overview of the various sources of funding, the cost of funding, access to the debt markets, and the considerations of key participants in current market conditions. As the project finance market evolves, new funders and funding techniques emerge. This chapter explores how contractual relationships between the equity participants and debt providers are structured and how risk is allocated between different types of funders. It discusses the role that sponsors, export credit agencies, multilateral agencies, development finance institutions, and commercial banks play in the project finance market. Finally, the chapter considers the role and use of letters of intent, term sheets, commitment letters, and mandate letters, and analyses the key documentation issues of relevance to the market participants.
Project Risks
Authors: Dewar John , Irwin Oliver
Published: June 2017

This chapter considersthe identification, assessment, allocation, negotiation, and management of the risks associated with a particular project(such as delay risk, cost overruns, technology risk, off-take risk, revenue risk, operating risk, supply risk, currency risk, political risk and environmental and social risk). A project’s value is based principally on its ability to generate revenue during its operating phase. Both the sponsors and the lenders need to be able to effectively identify and manage the risks associated with that project. This chapter also identifies how those risks can be managed and minimized. In addition the chapter contains an analysis under English law of the possible impact on risk allocation in a project arising from the effects of any supervening event.
Allocation of Risks in Project Documentation
Authors: Dewar John , Taufatofua Chris
Published: June 2017

Achieving the optimal risk allocation in the project document structure is critical to the successful delivery of any project. This chapter outlines the key considerations that help determine how the project risks are typically approached in the context of the key project documents, including concession agreements, construction contracts, offtake agreements, feedstock supply agreements, and operation and maintenance agreements. Particular focus is given to the need to achieve a project document structure and risk allocation that is ‘bankable’, while emphasizing the importance of a risk allocation that strikes a balance between (i) identifying the most appropriate counterparty to manage a particular risk as well as (ii) ensuring such counterparty is appropriately incentivized to manage such risk.
International Projects—Sector Focus
Authors: Dewar John
Published: June 2017

This chapter describes a number of international projects in various areas: oil and gas; mining projects; conventional power; renewable energy; nuclear power projects; and the infrastructure of public and private partnerships. Oil and gas projects span a broad range of activities from upstream ‘exploration and production’ projects to downstream LNG and petrochemicals projects. The second part of the chapter begins with a brief overview of the current American, UK, French, Japanese, Korean, and Saudi Arabian power markets focusing on current electricity generation mix policies in these markets and the current and future place of conventional power therein. The text then looks at renewable energy projects. These share many of the characteristics of conventional power projects. However, there are certain crucial differences which will impact upon the contractual structure and risk allocation employed in the development of these projects. Nuclear power projects are perhaps the most challenging power/infrastructure projects to develop and finance. The chapter finally provides a discussion of the applicability of project finance principles and disciplines to a unique and challenging segment of the power/infrastructure sector.
Documentation of Project Bonds
Authors: Peterson Tim , Harrow Shoshanna
Published: June 2017

Project bonds issued in the international capital markets are used as a source of, or to refinance, project capital. Project bonds are securities and therefore subject to regulations requiring adequate disclosure for investors and restrictions on where and to whom the bonds may be marketed. Advantages of project bonds as compared to loans include improved operational flexibility and the potential for improved price, size, and tenor. Relative disadvantages include regulatory and credit rating requirements, consent and intercreditor issues, and the inability to have multiple drawdowns. The chapter describes the Rule 144A and Regulation S exemptions from US registration, their attendant selling restrictions, the due diligence process, and typical project bond documentation, including the offering circular, underwriting agreement, and indenture.
Ancillary Finance Documentation
Authors: Benger Philip , Holmes Patrick
Published: June 2017

This chapter begins with a discussion of various financial and other varieties of sponsor support which may be provided to a project, including, among other things, shareholder loans, contractual undertakings intended to mitigate completion risk, and ongoing sponsor commitments, post-completion. It provides an overview of security arrangements, considering particular issues that may arise in foreign jurisdictions or in light of the types of asset being secured, and examines how lenders are afforded ‘step-in’ rights in relation to key project contracts through direct agreements. Finally, the chapter discusses legal opinions and their purpose, with particular focus on issues in relation to those where a project is one of the first of its kind in a particular country.
The Doctrine of Res Judicata Before International Commercial Arbitral Tribunals
Authors: Schaffstein Silja
Published: June 2017

There are currently no rules in international commercial arbitration law and practice assuring the coordination between arbitral awards and/or national court judgments rendered in identical or related cases. This lack of coordination is unsatisfactory, particularly in light of the ever-growing tendency of parties to submit their commercial disputes to international commercial arbitration and the increasing complexity of international arbitration. Today, international commercial transactions and the disputes to which they give rise regularly involve multiple parties, contracts and issues. As a consequence, these disputes (or certain aspects of these disputes) are increasingly tried in multiple fora. In such circumstances, difficult issues regarding the res judicata effects of prior judgments or awards are likely to arise before international commercial arbitral tribunals. The central hypothesis underlying this research is that transnational principles of res judicata should be elaborated for international commercial arbitral tribunals. This solution is justified for several reasons. First, it is justified given the differences among domestic laws regarding res judicata and the difficulties surrounding the formulation of appropriate conflict-of-laws rules. Second, it avoids inappropriate analogies between international arbitration proceedings and litigation. Finally, the solution provides guidance and ensures a certain degree of fairness, certainty and predictability, which is expected by arbitration users. This research seeks to achieve its aims in two stages: Part One examines the doctrine of res judicata in litigation, analysing the doctrine as applied in different domestic laws, as well as in private and public international law. Part Two aims to determine whether and to what extent the res judicata doctrine may be applied by international commercial arbitral tribunals. It aims to demonstrate that transnational principles of res judicata should be elaborated and will seek to formulate such principles.
The Doctrine of Res Judicata in Domestic Laws
Authors: Schaffstein Silja
Published: June 2017

This chapter analyses and compares the application of the res judicata doctrine in common and civil law countries. Res judicata is the principle that a matter may not, generally, be relitigated once it has been judged on the merits. The doctrine of res judicata is well established in common law jurisdictions, and allows for several res judicata pleas, namely the plea of cause of action estoppel, issue estoppel, former recovery, or abuse of process. On the other hand, the doctrine of res judicata in civil law countries recognises only one plea. In France, for instance, the doctrine of res judicata is referred to as ‘autorité de chose jugxée’. A judgment obtains ‘autorité de chose jugée’ when it is rendered, whether or not a means of recourse is available against the judgment.
Res Judicata in International Commercial Arbitration—A Problem
Authors: Schaffstein Silja
Published: June 2017

This chapter addresses problems concerning the doctrine of res judicata in international commercial arbitration. It also asks the following questions: What are the possible consequences of the occurrence of res judicata issues in international commercial arbitration? Expressed differently, what interests are at stake? Duplicative proceedings of res judicata require vast resources. The parties are required to invest considerable amount of time, money, and efforts in proceedings which they already went through, without having any good reason to suppose that the second proceedings will lead to a more accurate decision than the first one. These situations only gave an additional burden on the party who prevailed in the first proceedings. Also, these proceedings create risk of inconsistent decisions. Coexistence of inconsistent decisions could seriously undermine the very existence of the arbitral process.
Search for an Appropriate Approach
Authors: Schaffstein Silja
Published: June 2017

This chapter presents possible approaches in dealing with the problem of the res judicata doctrine in international commercial arbitration, namely the conflict-of-laws approach, comparative law approach, and transnational approach. The conflict-of-laws approach defines clear and generally accepted conflicts-of-law rules allowing arbitrators to determine the law or laws governing res judicata. The determination of conflict-of-laws rules will depend on the characterisation of res judicata as being of substantive or procedural nature. The comparative law approach compares different domestic laws to determine generally accepted res judicata principles common to a majority of states. Lastly, the transnational approach formulates uniform, autonomous res judicata principles that are better adapted to the particularities of international commercial arbitration created for litigation.
International Legal Sources II—the United Nations Security Council Resolutions
Authors: Png Cheong-Ann
Published: June 2017

This chapter looks at the work of the United Nations Security Council, which it states is, in addition to the United Nations conventions, central to global anti-terrorism efforts. The Security Council, as one of the principal organs of the United Nations (UN), is the body that the UN Charter vests with primary responsibility for the maintenance of international peace and security. The chapter looks at the composition and running of the Security Council. Chapter VI of the UN Charter enables the Security Council to take certain measures in situations where the continuation of a dispute is likely to threaten international peace and security. Chapter VII of the UN Charter enables the Security Council to take relatively far-reaching measures that are mandatory obligations for UN members, including the use of force, and it has a fair degree of discretion in the adoption of these measures. The chapter looks at a number of UN Security Council resolutions in detail.
International Legal Sources III—FATF Recommendations
Authors: Png Cheong-Ann
Published: June 2017

This chapter looks at the role and development of the Financial Action Task Force (FAFT). The FAFT was formally established at the G7 Summit in Paris in July 1989 by the Heads of State or Government of the G7 countries and the President of the European Commission. The main concern motivating the establishment of the FATF was the proliferation of drug production and drug-related activities, including the laundering of drug proceeds. The G7 leaders understood that decisive action at the national and international levels would be needed to deal with this concern. The chapter looks at how the FAFT has changed since its founding. Today, the objectives of the FATF are to set the international standard, and promote effective implementation of measures, for combating money laundering, financing of terrorism, and other related threats to the integrity of the international financial system. It works to generate the necessary political will to bring about national legislative and regulatory reforms in these areas. It also monitors the progress of its members in implementing necessary measures.
International Legal Sources IV—the European Union and the Council of Europe
Authors: Tzanakopoulos Antonios
Published: June 2017

This chapter examines the European Union (EU) from the perspective of public international law. Financial crime, this chapter argues, is an international phenomenon that requires international solutions. This recognition has resulted in states cooperating on a number of different levels in order to streamline their responses to international financial crime. This chapter deals with the EU in two guises: as an independent source of international obligation for its member states, imposing discreet international obligations on them, which may even function so as to turn non-binding recommendations of international bodies into hard law, and as a peculiar entity interposing itself between international obligations from other sources (such as international treaties or UN Security Council binding resolutions) and domestic implementation of these obligations. The fact that some EU law has a more remote international source (such as a UN Security Council Resolution) may affect the degree and nature of the judicial scrutiny to which this body of law may be subject. The chapter looks first at sanctions and next at money laundering, both from the perspective of the EU.
International Legal Sources V—the UN Security Council Delisting Procedure
Authors: Grant Tom
Published: June 2017

This chapter considers a particular aspect of the UN Security Council sanctions regime: the procedure for removing individuals or entities from the Sanctions List. The novelty of the delisting procedure justifies considering it in some detail. The delisting procedure is the main response at the international level to the human rights question raised by the Security Council sanctions regime. Because certain consequences for an individual follow at the national level from the fact of the individual having been listed, a procedure that goes to the listing itself holds particular interest for those to whom the regime might apply. The chapter concludes that the delisting procedure will continue to evolve as the Security Council grapples with procedural fairness and individual rights with which it has not historically had much to do.
The Professions and Financial Crime
Authors: Kirk David , Thornton-Dibb Andrew
Published: June 2017

This chapter looks at corrupt professionals who facilitate crimes involving laundered money. Against a background where global law enforcement is targeting money laundering in order to seek to reduce organised crime, corruption, drug dealing, and terrorist finance, it is obvious that professionals, acting either as unwitting enablers, or as criminal conspirators, are under scrutiny as never before. They must therefore be aware of the extent to which they might be targeted by criminals to assist them in money laundering schemes. The chapter looks at several reasons that professionals might be targeted in this way. Some professionals are open to persuasion, and may knowingly lend themselves to such money laundering schemes or schemes of terrorist finance. In doing so, these professionals will be committing breaches both of the criminal law and of their own professional guidelines. The vast majority of professionals, however, will not knowingly participate in such schemes. The chapter examines the various issues that need to be considered here.
Claims Arising under UK Private Law
Authors: Evans James
Published: June 2017

Banks are in the front line of the battle against fraud and money laundering. The importance of denying banking facilities to criminals and fraudsters, especially where there is corruption among those who hold public office and the trust of their people, has been recognized in the context of claims made against banks under English law. An abiding theme of English commercial law is the desire to establish rules that are certain so that participants in commercial activity ‘know what ground to go upon’. However such certainty is difficult to achieve in circumstances where legal obligations will arise from subjective matters, such as a bank employee’s suspicion that a customer might be involved in unlawful activity. This notwithstanding, the chapter states, English law seeks to ensure that agents and professionals are obliged to provide information to relevant authorities and that sufficient protection is provided to suspicious agents (including banks). The overall purpose of this chapter is to provide an overview of claims which may be made under English law against or by a bank (or financial institution) involved in a dispute with a customer or third party relating to the source, fate, ownership of, or freedom to deal with, money held by the bank or institution.
Knowing Receipt
Authors: Douglas Zachary , Bodnar Andrew
Published: June 2017

This chapter deals with issues related to knowing receipt. For an equitable claim for knowing receipt to succeed, the claimant must establish the disposal of his money in breach of fiduciary duty and, secondly, the beneficial receipt of that money by the defendant which is traceable as the claimant’s money where, thirdly, the defendant had the requisite degree of knowledge of the breach of fiduciary duty. This claim has been said to be the equitable counterpart of the common law action for money had and received. The chapter then looks at a real scenario of a case of knowing receipt. It also examines the relevant jurisdiction and applicable law, including the law applicable to the issue of liability for knowing receipt.
Dishonest Assistance
Authors: Douglas Zachary , Bodnar Andrew
Published: June 2017

This chapter deals with issues relating to dishonest assistance. To succeed with an equitable claim for dishonest assistance, the claimant must establish, firstly, the existence of a trust or fiduciary relationship, secondly, which has been breached, thirdly, with the assistance of the defendant, and fourthly, in circumstances where the defendant has been dishonest. The claim for dishonest assistance is not a restitutionary claim; it is a form of accessory liability based on fault, and hence the defendant’s state of mind assumes a critical role in the cause of action. If the defendant is liable for dishonest assistance, then he is personally liable to account to the claimant and hence the remedy is personal and not proprietary. Although described as an equitable claim, and notwithstanding that the quantum of damages is usually calculated by reference to the value of the breach of trust, the remedy for dishonest assistance is damages. The chapter then looks at a real scenario of a case of dishonest assistance. It also examines the relevant jurisdiction and applicable law, including the characterization of the issue of liability for dishonest assistance.
Conspiracy
Authors: Douglas Zachary , Bodnar Andrew
Published: June 2017

This chapter analyses the situation of conspiracy. A claim in tort for unlawful means conspiracy requires the claimant to establish that, firstly, he has suffered a loss, secondly, that it was as a result of unlawful action, which was thirdly, taken pursuant to a combination or agreement between the defendant and another person or persons, fourthly, to injure the claimant by unlawful means. The intention to injure does not have to be the sole or predominant purpose of the defendant’s actions. The chapter then looks at a real scenario of a case of conspiracy. It also looks at the relevant jurisdiction and applicable law, including cases where the defendants are domiciled in England, in another Member State, or in a non-Member State and cases where the defendants are domiciled in different locations from each other.
Anti-terrorism Legislation
Authors: Peddie Jonathan
Published: June 2017

The previous two chapters looked at the notion that the management of proceeds of crime and counter-terrorism have ceased to be independent legislative endeavours for governments, and increasingly form an inter-dependent set of measures together with other, international initiatives including the various international sanctions regimes. This chapter, and the ones that follow, look at the identification of illegal conduct, restraint, recovery of proceeds and close scrutiny and prosecution of perpetrators, and intelligence-led management of the threat to the UK’s economic and national security interests. On the one hand, terrorism amounts to criminal conduct to which the provisions of POCA 2002 apply as they do to the proceeds of any criminality, and there is clear interplay between the relevant regimes. Yet, on the other hand, the legislation considered in this chapter creates specific powers concerning those involved in terrorist acts, those who promote and facilitate it and the methods through which such individuals may be starved of financial means. The chapter looks at the Terrorism Act 2000; the Anti-Terrorism, Crime and Security Act 2001; and the Terrorism Asset Freezing etc Act 2010. It then considers the role of the wider UK enforcement and intelligence community. Finally, it takes a look at the Serious Crime Act 2007.
Cooperation between the United States and the United Kingdom in the Prevention and Prosecution of Financial Crime
Authors: Hudson D Zachary
Published: June 2017

This chapter starts by looking at the special relationship between the United States and the United Kingdom and how it relates to cooperation regarding the prevention and prosecution of financial crime. The chapter provides a primer on some of the formal and informal aspects of judicial and regulatory cooperation between the United States and the United Kingdom. Specifically, it discusses formal cooperation pursuant to the Treaty on Mutual Legal Assistance in Criminal Matters (the ‘U.S.-UK MLAT’), the Extradition Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland (the ‘U.S.-UK Extradition Treaty’), and other transnational and international agreements and understandings. It also discusses recent notable instances of more informal cooperation such as coordination regarding the cases of Bruno Iksil and the Royal Bank of Scotland.
Treaties on Transit of Energy via Pipelines and Countermeasures
Authors: Azaria Danae
Published: June 2017

This monograph examines the relationship between treaties providing for uninterrupted energy transit and countermeasures under the law of international responsibility. It analyses the obligations governing energy transit through pipelines in multilateral and bilateral treaties, looking at the WTO Agreement, the Energy Charter Treaty, and sixteen bespoke pipeline treaties. It argues that a number of transit obligations under these treaties are indivisible, reflecting the collective interests of states parties. The analysis is placed in the historical and normative landscape of freedom of transit in international law. After setting out the content and scope of obligations concerning transit of energy, it distinguishes countermeasures from treaty law responses, and examines the dispute settlement and compliance supervision provisions in these treaties. Building on these findings, the work discusses the availability and lawfulness of countermeasures as, on the one hand, a means of implementing the transit state’s responsibility for interruptions of energy transit via pipelines; and, on the other hand, circumstances that preclude the wrongfulness of the transit state’s interruptions of transit. The competing interests of the transit state and those of the states dependent on the pipeline make this question one of the most controversial aspects of modern international law.
The Scope and Content of Obligations Regarding Transit of Energy
Authors: Azaria Danae
Published: June 2017

Chapter 3 analyses the scope and content of treaty obligations regarding transit, revealing a variety of primary rules. The exercise in this chapter assists in the determination of when and how a breach of transit obligations takes place, thus providing the framework for the discussion in all the following chapters. Treaty obligations regarding transit are classified as obligations of conduct or of result. Finally, security exceptions in the GATT, the ECT and other language in bespoke pipeline agreements and the Model Inter-Governmental Pipeline Agreement prepared by the Energy Charter Secretariat, is examined with a view to establishing whether they constitute special circumstances precluding wrongfulness displacing countermeasures under customary international law or whether they form part of primary obligations incumbent on treaty parties.
Treaty Provisions Concerning Dispute Settlement and Compliance Supervision
Authors: Azaria Danae
Published: June 2017

Chapter 6 demonstrates the diversity of dispute settlement provisions, and considers the rules concerning standing to resort to dispute settlement. It assesses whether by agreeing to treaty clauses on dispute settlement or compliance oversight mechanisms treaty parties have contracted out of countermeasures in the form of suspending compliance with obligations in the treaty breached, as well as with international obligations outside the treaty breached in response to breaches of treaty obligations regarding transit of energy. It explains that when treaty provisions on dispute settlement do not exclude countermeasures, the latter may be unlawful when the wrongful conduct has ceased and interim measures are available.
Countermeasures against the Responsible Transit State
Authors: Azaria Danae
Published: June 2017

This chapter analyses the availability of countermeasures, as a means of implementing the responsibility of the transit state (or international organization), in a particular form: that of suspending performance of obligations in the treaty breached by the transit state. Such exclusion may result either from the nature of obligations to be suspended as a countermeasure or from special treaty provisions that exclude countermeasures as circumstances precluding wrongfulness. Additionally, it examines the conditions of lawfulness of countermeasures under customary international law and explains that these conditions may restrict the choice as to the form that countermeasures may take, when they are available within and outside the treaty breached by the responsible transit treaty party.
General Conclusion
Authors: Azaria Danae
Published: June 2017

Faced with the need to cooperate in order to access energy sources and energy markets, states increasingly conclude treaties with a view to guaranteeing uninterrupted transit of energy via pipelines. Although bilateralisable treaty obligations regarding transit of energy remain dominant, a trend towards genuinely multilateral obligations regarding transit is appearing in treaty practice, along with a trend of multilateralization on an institutional level. The indivisible nature of obligations and the emphasis that treaty parties place on uninterrupted energy flows via each pipeline may signal a trend away from unilateralism- countermeasures remain a preferred a means of implementing responsibility, but treaty rules are being established that may prohibit unilateral countermeasures, as circumstances precluding wrongfulness.
Introduction
Authors: Bamford Colin
Published: June 2017

The chapter introduces the subject by discussing the special nature of financial law and the markers that distinguish it from other areas of legal practice, and argues that financial law requires a deeper degree of understanding of the development of legal principles than do other areas. It then summarises the characteristics of the topics selected for treatment in the later chapters.
The Legal Nature of the International Bond Market
Authors: Bamford Colin
Published: June 2017

The chapter explains the history of the international bond market, from its origins in the nineteenth century issues of loan stock, through the development of the Eurodollar market after World War II and the adoption of bonds as a way for corporate borrowers to access that market. It then discusses the evolution of the documentation used, paying particular attention to the concept of negotiability, which facilitated the ready transfer of bonds. It goes on to consider the idea of immobilization and the growth of securities clearing organisations. In this context, it considers recent developments in Europe, brought about by the requirements of the ECB. The chapter then turns to an analysis of the legal relationships created by the structure of bonds and the way they are traded, and ends with a discussion of the move to the dematerialization of the market.
Credit Support in Financial Markets
Authors: Bamford Colin
Published: June 2017

This chapter brings together the numerous mechanisms and ideas that have the effect of supporting a payment obligation, in the sense that the use of one (or more) of these concepts makes it more likely that the obligation will be fulfilled. This objective can be achieved in a number of ways: a third party may accept liability alongside the obligor, as in the case of someone who assumes a joint liability; or the supporter may take a secondary role as a guarantor. The chapter then looks at the forms of support that are available on a commercial basis, in particular performance bonds and export credit facilities. It considers the mechanisms that provide support by a more indirect route, such as comfort letters and credit derivatives. It concludes by examining a form of support that reaches its destination from the opposite direction: subordination, both in the form of general subordination of the creditor to the claims of all other creditors, and as subordination to the claims of a particular creditor.
The Construction of Financial Contracts
Authors: Bamford Colin
Published: June 2017

The chapter considers the way in which courts in common law countries interpret financial contracts. It begins by drawing a contrast between the objective of the approach adopted by common law countries (the objective approach) and that which underpins the construction method used in civil law countries (the subjective approach). It argues that the objective approach is more suitable for the purposes of the international financial markets. The chapter then discusses the difference between the meaning of a contractual term and the affect that the operation of the term produces. The chapter moves on to consider the principles by which common law courts determine the meaning of contracts, before concluding with a description of the rules dealing with rectification and with the implication of terms in contracts.
The Arms Trade Treaty: A Commentary
Authors: Andrew Clapham , Stuart Casey-Maslen , Gilles Giacca , Sarah Parker
Published: June 2017

The United Nations Arms Trade Treaty (ATT) became binding international law in late 2014, and although the text of the treaty is a relatively concise framework for assessing whether to authorize or deny proposed conventional weapons transfers by states parties, there exists controversy as to the meaning of certain key provisions. Furthermore, the treaty requires a national regulatory body to authorize proposed transfers of conventional weapons covered by the treaty, but does not detail how such a body should be established and how it should effectively function. This book explains in detail each of the treaty provisions, the parameters for prohibitions or the denial of transfers, international co-operation and assistance, and implementation obligations and mechanisms. As states ratify and implement the treaty over the next few years, the commentary provides invaluable guidance to government officials, commentators, and scholars on the meaning of its contentious provisions. This volume describes in detail which weapons are covered by the treaty and explains the different forms of transfer that the ATT regulates. It covers international human rights, trade, disarmament, humanitarian law, criminal law, and state-to-state use of force, as well as the application of the treaty to non-state actors.
Introduction
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This introductory chapter explores the history and development of arms trade treaties. The UN Disarmament Commission views arms transfers as a deeply entrenched phenomenon of contemporary international relations. Traditionally, the issue was linked largely to the issue of neutrality during time of war. Prior to recognition of conflicting parties as belligerents, ‘transfer of arms to opposition groups was an unfriendly act that could lead to war, while transfer of arms to governments was not’. The first international instrument to regulate the arms trade in the modern era was actually a treaty about slavery: the 1890 Brussels General Act, which intended to put an end to the crimes engendered by the traffic in African slaves. The chapter also turns to the global context by briefly discussing the ATT, the first global treaty governing arms transfers.
Art.1 Object and Purpose
Authors: Stuart Casey-Maslen , Andrew Clapham , Gilles Giacca , Sarah Parker
Published: June 2017

This chapter examines Article 1 of theATT, which sets out the objectives and purpose of the ATT. The provision is divided into two parts, the first of which outlines the ‘object’ of the treaty, while the second part summarizes the ATT’s ‘purpose’. Article 1 sets the ‘highest possible common international standards’ for regulating the international trade in conventional arms; preventing and eradicating illicit trade and preventing diversion are stipulated as the treaty’s object. The purpose of the ATT is to contribute to international and regional peace, security, and stability; reduce human suffering; and promote co-operation, transparency, and responsible action by states parties in international trade in conventional arms, thereby ‘building confidence’ among them.