bluuebunny/crossref_metadata_2025 huggingface dataset:
Evidence in International Investment Arbitration
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A
Published: July 2018

This book is a guide for practitioners representing a party in investment arbitration disputes, and offers academics a perspective on the practical elements affecting the treatment of evidence in the area. The book uses a comparative approach to demonstrate the points of commonality and uniformity in the transnational foundations of the law of evidence as it affects international investment arbitration, providing theoretical and practical guidance on the treatment of evidence at all stages of such disputes. It examines the rules of evidence as recognized in the traditional rules of international law; the theory and function of international investment law dispute resolution against which the role of evidence must be assessed; practical management of the evidence-gathering process in investment arbitration disputes; and what to anticipate as challenges in the gathering and pleading of evidence in these disputes. The chapters cover a broad range of evidence-based topics, including: the burden and standard of proof, presumptions and inferences, witness and expert evidence, exclusionary rules including privileged and confidential documents, and annulment.
The Bermuda Form
Authors: Scorey QC David , Geddes Richard , Harris Chris
Published: July 2018

The Bermuda Form, Interpretation and Dispute Resolution of Excess Liability Insurance, Second edition Providing analysis and interpretation on the construction of the Bermuda Form, this second edition also addresses the dispute resolution process and covers the legal and practical issues which arise in the international arbitration of large and complex disputes under it. The volume has been thoroughly revised to take into account the major changes in the governing New York law since the first edition, as well as significant English case law such as AstraZeneca v ACE & XL. This case has had major implications for the interpretation of issues such as the recoverability of defence costs, assertion, and proof of legal liability. The resulting trend towards brokers and insurers drafting endorsements intended to clarify intent, and the nature and efficacy of these endorsements, are also analysed in this edition. The implications for policyholders and insurers of the ACE Insurance Form 007 are also discussed at length. Providing analysis of disputes involving the Bermuda Form, particularly concerning arbitrations, this book gives access to an otherwise closed arena.
Law of Construction and Interpretation Clause
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter focuses on Article VI.O of the Bermuda Form XL004, the Law of Construction and Interpretation Clause. Article VI.O does not merely adopt a system of law to govern the parties' contractual rights, It also engages in a profound modification of the chosen law and carves out from the corpus of New York law certain principles and canons of construction that would, from an insurer's perspective, be unduly favourable to policyholders and that might otherwise apply. The chapter discusses the structure of Article VI.O, summary of Article VI.O, prohibited principles, and the basic legal principles of construction under New York law that are consistent with an even-handed approach to contractual interpretation.
The Coverage Clause
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter focuses on the Coverage Clause in Article I of the Bermuda Form XL004. Article I is the shortest of the major policy divisions. Despite its brevity, it provides an outline or framework of the Bermuda Form policy as a whole, including references to the most important terms, each of which is defined in Article III of Form XL004 and without which the policy cannot reasonably be understood. The Coverage Clause is central to the operation of the Bermuda Form. It describes in general terms the nature, overall scope, and fundamental principles of the coverage provided. The chapter discusses the persons and entities insured, the subject-matter of the coverage, and notice as a pre-condition to coverage.
The Occurrence First Reported Trigger
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter first compares Bermuda Form policies to other policies such as occurrence-based policies and claims made policies. It then turns to the Bermuda Form policy's ‘occurrence first reported’ regime. Under this policy, the policyholder has sole control and responsibility for linking the occurrence to the relevant policy, via its affirmative act of giving notice of the subject occurrence to the insurer. In order to determine coverage for an occurrence, one looks solely to the policy as it exists as at the time notice of that occurrence (as defined) is given to the insurer. Importantly, that does not necessarily mean that coverage is determined according to the policy as it existed at the beginning of the relevant policy period.
Integration and Aggregation
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter discusses how the Bermuda Form deals with the question of how and when multiple personal injuries, instances of property damage, or offences within the ambit of advertising liability, may be combined and treated as a single occurrence, as defined. This is a key determination in the Bermuda Form, principally because the insurer's obligation attaches only where the ultimate net loss — paid by reason of liability for personal injury, property damage, or advertising liability of a type that qualifies pursuant to the definition of an occurrence — exceeds the amount of the scheduled per occurrence retention. While nothing in the policy form so specifies, in practice, insurers using this form historically agreed to engage only in excess of very large retentions.
Requirement of Notice of Claim
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter discusses policyholder's obligation to provide notice of a claim to the insurer under the Bermuda Form. First, the requirement of written notice is expressly stated to be a condition precedent to any liability on the part of the insurer to provide an indemnity, thereby reflecting the general approach of New York law to the need to provide notice to an insurer. Second, as an ‘occurrence reported’ model of liability insurance, the written notice of a claim fixes the contractual limits, terms, and exclusions that will then apply to the occurrence for which notice has been provided. The central importance of notice to the Bermuda Form is highlighted by the fact that an entire section of Form XL004 is devoted to this topic, namely Article V.
Attachment Point, Underlying Coverage, Limits of Liability
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter discusses Article II of the Bermuda Form, which addresses the mathematics of the policy. The Article lays out the framework that translates the general grant of coverage into an actual financial response. It sets out the principles that determine at what point the insurer's liability to the policyholder is engaged; the relevance and consequences of underlying insurance; how the level of policy response to an excess liability is determined; and how it is limited. It also addresses the financial complications that may develop when a policyholder notifies an occurrence to the insurer, and subsequently notifies an integrated occurrence that includes the earlier notified individual occurrence. Finally, the Article addresses the special circumstances relevant to the presence of an insured joint venture, partnership, or other similarly organized, non-corporate entity in the equation.
Conditions Under the Bermuda Form
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter discusses Article VI of the Bermuda Form, entitled ‘Conditions’, which details the working of the relationship between insurer and policyholder. It sets out how and to whom they communicate with one another; when communication is necessary; how disputes are to be resolved; how and by whom policy elections are exercised; and in general, addresses all of the commonly arising issues of inter parties conduct, viz., how the parties to the policy interact with one another. In most cases, the conditions in the Bermuda Form are not significantly different from those contained in prior forms. In a number of cases, the conditions will have been examined in detail in other parts of this book.
Waiver/Estoppel
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter discusses the law on waivers and estoppel. Waiver, like affirmation, election, and repudiation is an issue intimately connected to the operation and effect of the parties' contractual rights and obligations, and determined by the proper law of that contract, i.e. New York law as amended by Article VI.O of Form XL004. The identification of the proper law of an estoppel is more problematic. In general, estoppels relating to the insurance relationship rooted in a Bermuda Form policy are invariably addressed by the parties, and treated by tribunals, as governed by the proper law of the contract, which, in the usual case, is New York law pursuant to the Law of Construction and Interpretation Clause. Other estoppels, such as issue estoppel or estoppel per rem judicatam, may apply English law as the lex fori.
Use of the Bermuda Form for Reinsurance
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter focuses on the (inwards) facultative reinsurance provided by a Bermuda Form insurer of specific risks notionally or actually underwritten by captive insurers. It highlights a number of features of the reinsurance policies employed by the major insurers and certain of the issues that can arise therefrom. A definitive discussion is not possible, not least because of the wide varieties of wordings used by insurers. At one end of the spectrum, some established insurers have developed sophisticated pro forma reinsurance policy wording that they regularly use; at the other end of the spectrum, one finds policies drafted on an ad hoc basis that borrow extensively from the Bermuda Form — with varying degrees of success and comprehensibility.
Team Assembly
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter is primarily intended as a practical guide to the assembly of a legal team to handle a Bermuda Form arbitration. As discussed in earlier chapters, the paradigm arbitration pursuant to Article VI.N of the Form XL004, or a similar form, is one in which the underlying facts have generally arisen because of liabilities incurred in the United States, the law governing the Bermuda Form policy is that of New York, and that takes place in London pursuant to the English Arbitration Act 1996. But within the ‘usual’ model, the nature of the disputes often differs. For example, a case may turn on detailed argument as to the proper construction of the policy; it may involve heavily contested facts as to the gravamina of the underlying causes of action; due to the nature of the Bermuda Form, the underlying facts can involve one incident or a multiplicity of individual accidents; similarly, a typical claim may be concerned with property damage or personal injury claims where medical issues are in dispute. Each possible permutation of legal and factual issues may give rise to the need for different sets of legal skills.
Commencement of the Arbitration
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter discusses the procedures involved in the commencement of arbitration. Just as an arbitration agreement must be in writing, arbitral proceedings must also be commenced by way of a written notice unless the parties have agreed otherwise. The claimant's lawyers will usually commence proceedings by sending a formal notice of arbitration or request for arbitration — the precise nomenclature chosen is irrelevant. This advises the other party of a request to arbitrate, sets out the basis of the request, and appoints an arbitrator. A Bermuda Form arbitration could be validly commenced as easily by putting similar information in the form of a letter to the opposing party, or to their lawyers. The remainder of the chapter covers the selection of arbitrators, replacement of arbitrators, issues of jurisdiction of an arbitral tribunal, and court applications.
Interest and Costs
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

A tribunal will ordinarily have to make determinations as to what award of costs it will make, and, where appropriate, what award of interest it should make. In some cases, a tribunal will not invite submissions on interest and costs until it has made a ruling on the substantive merits; in other cases, the tribunal will invite the parties to make submissions at the close of the hearing. The method adopted is a decision for the arbitrators to take, absent agreement between the parties. This chapter discusses legal and practical questions that frequently arise for the parties and the arbitrators in relation to questions of interest and costs in Bermuda Form case. It assumes that no provision has been made in the Bermuda Form policy or in any arbitration agreement to set out expressly the powers of the tribunal as regards an award of interest.
Challenges and Enforcement
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter addresses, on a general and introductory basis, issues relating to potential challenges to an award after it has been delivered by a tribunal in a Bermuda Form arbitration. Arbitrations pursuant to Article VI.N of the Bermuda Form often raise difficult legal and factual points, whether on the substantive dispute, or, more occasionally, on procedural questions including issues of jurisdiction. The chapter discusses available venues and limited grounds for challenge, challenges in US courts, enforcement proceedings, confidentiality of arbitration proceedings, tension between necessity of use of award in enforcement proceedings and confidentiality of arbitration, and the enforcement of specific performance award.
The Arbitrators’ Ethical Duties
Authors: Scorey David , Geddes Richard , Harris Chris
Published: July 2018

This chapter deals with a number of legal and practical questions that arbitrators might face regarding their personal positions in a Bermuda Form arbitration. On the basis that the curial law of the arbitration is English law, the chapter first considers the legal basis on which arbitrators are appointed and act. It then turns to the rights and obligations of arbitrators in the context of the Bermuda Form from a UK perspective. These include the requirement that arbitrators should be impartial at the time of appointment and throughout a reference, the duty of disclosure of potential conflicts faced by arbitrators, and the practical problems that may arise when an arbitrator is appointed by a party in more than one reference. Next, it addresses other matters of potential relevance to arbitrators and candidates for appointment under the Bermuda Form.
The Korean War—1950–53
Authors: White Nigel D
Published: July 2018

This chapter examines the background of the Korean War, the positions of those states and UN organs involved in the conflict as the war ebbed and flowed across the Korean peninsula, and the many questions of legality it raised. Although its legal basis is disputed (sometimes analysed as collective self-defence or intervention at the request of the established government), the evidence presented in this chapter is that the Korean War helped to shape a decentralised UN collective security system, a model in which the UN Security Council acts under Chapter VII to mandate willing states to tackle aggressors or other threats to the peace. Furthermore, the peculiarity of the politics in the UN at the time allowed only a small window of opportunity for action by the Security Council, leading to another vision of collective security in which the UN General Assembly would play a more central role.
The Suez Crisis—1956
Authors: Hofer Alexandra
Published: July 2018

This chapter examines the intervention led by France, the United Kingdom and Israel against Egypt in 1956. After recalling the facts of the Suez Canal Crisis, it examines the legal positions of the main protagonists (Israel, France, the United Kingdom and Egypt) and the reactions of United Nations member states. The intervention’s legality is then assessed against the international legal framework governing the use of force as it stood in 1956. The final section analyses the intervention’s precedential value and its impact on the jus ad bellum. It is argued that if the intervention initially undermined the United Nations, the forceful reaction of UN member states affirmed the importance of the UN Organization and its principles.
The Soviet Intervention in Hungary—1956
Authors: Lieblich Eliav
Published: July 2018

In late October 1956, the Soviet army crushed a burgeoning rebellion in Hungary, ostensibly upon the invitation of the Hungarian government, and allegedly in conformity with the provisions of the Warsaw Pact. While the intervention was widely condemned, international law could not prevent the Soviet invasion nor secure the USSR's withdrawal from Hungary. Seven decades later, this Chapter analyses the Soviet intervention under jus ad bellum. It focuses on the positions of relevant actors in real-time, as well as on the enduring aspects of the affair. As the Chapter reveals, the Hungary intervention presented dilemmas that plague the law on the use of force even in contemporary times. It raised questions that remain burning today, such as the role of consent in legalizing external forcible intervention, the ability of international law to face superpowers, and the dialectics between effectiveness and legitimacy in the determination of lawful authority during internal strife.
The U-2 Incident—1960
Authors: Park Ki-Gab
Published: July 2018

This chapter examines the aerial incident between the US and URSS that occurred on May 1960: an unauthorized incursion into Soviet airspace by a US reconnaissance plane U-2. This incident led to a serious international dispute. This chapter explains the relevant facts and context of the dispute. It then analyzes the position of the main protagonists and reactions of third states and international organizations, especially those expressed in UN Security Council debates. It deals with three main questions of legality, namely espionage, principle of sovereignty over air space and definition of aggression. The U-2 incident confirms that in order to protect its aerial sovereignty, a state is in principle permitted to use force in the face of an unauthorized incursion by a foreign military aircraft.
The Belgian Intervention in the Congo—1960 and 1964
Authors: Kolb Robert
Published: July 2018

This chapter examines the interventions by Belgium in the Congo at the beginning of the 1960s. After recalling the facts of the crisis, it examines the legal positions of the main protagonists and the reactions of United Nations member states. The central issue turned around the legality of an intervention based on the consent of the local government and the issue of the forcible rescue of citizens abroad. The chapter concludes that the Congo precedent contributed to the shaping of modern international law on these issues.
The Indian Intervention in Goa—1961
Authors: Ruys Tom
Published: July 2018

This contribution discusses the 1961 Indian intervention in Goa. It sets out the facts and context of the crisis, the legal positions of the main protagonists (India and Portugal), and the international community’s reactions. It then tests the legality of the Indian intervention against the international legal framework governing the use of force as it stood at the time of the events. The final section examines if, and to what extent, the case has had an impact on the further development of the jus ad bellum, in particular whether it has contributed to an exception to the prohibition on the use of force for the recovery of 'pre-colonial' title.
The US Intervention in the Dominican Republic—1965
Authors: Walter Christian
Published: July 2018

This chapter analyzes the intervention of US American troops in the Dominican Republic in 1965. After setting out the facts and the broader historical context, the positions of the main protagonists and the reactions of third states and international organizations are described in detail. For that purpose, two phases are distinguished: a first, unilateral phase during which the US American troops operated solely on a national basis, and a second phase, which is characterized by a multinational force operating under the auspices of the OAS. In its legal assessment, the chapter concludes that during the first phase the operation may be seen as justified on the grounds of protecting US American citizens abroad. In the second phase, the operation is qualified as a regional peace-keeping operation for which no authorization is needed under Article 53 of the UN Charter.
The Intervention in Czechoslovakia—1968
Authors: Hafner Gerhard
Published: July 2018

This contribution discusses the intervention of five member states of the Warsaw Pact Organization under the leading role of the Soviet Union in the CSSR in August 1968, which terminated the “Prague Spring” in a forceful manner. After presenting the facts of this intervention and its reasons, it describes the legal positions of the protagonists of this intervention as well as that of the states condemning it, as presented in particular in the Security Council. It then examines the legality of this intervention against general international law and the particular views of the Soviet doctrine existing at that time, defending some sort of socialist (regional) international law. This case stresses the requirement of valid consent for the presence of foreign troops in a country and denies the legality of any justification solely based on the necessity to maintain the political system within a state.
The Yom Kippur War—1973
Authors: Dubuisson François , Koutroulis Vaios
Published: July 2018

This contribution discusses the hostilities that opposed Israel against Egypt, Syria and the armed forces of other Arab states, which took place in October 1973. After setting out the context of this confrontation, which is directly linked to the 1967 Six Days War, it presents the legal positions of the main protagonists (Israel, Egypt, Syria) as well as those of third states and international organizations. The third section examines the legality of this resort to force under jus ad bellum and concludes that the military operations on behalf of the Arab states can be justified as an exercise of the right to self-defence. Finally, the conclusions discuss the limited precedential value of this specific incident with respect to the interpretation of the prohibition to use force in international relations.
The Larnaca Incident—1978
Authors: Antonopoulos Constantine
Published: July 2018

This contribution examines the 1978 Egyptian commando operation at Larnaca International Airport in Cyprus. It sets out the facts and context of the incident, the legal positions of the states involved (Egypt and Cyprus) and the international community’s reactions. It then evaluates the legality of the Egyptian operation by reference to the international legal framework governing the use of force as it stood at the time of the events. The final section examines if, and to what extent, the case has had an impact on the further development of the ius ad bellum, in particular whether it has contributed to an exception to the prohibition on the use of force for the protection of a state’s nationals abroad.
The Vietnamese Intervention in Cambodia—1978
Authors: Fox Gregory H
Published: July 2018

This chapter discusses Vietnam’s 1978 invasion of Cambodia. It begins with a history of the antagonism between the two countries, then reviews the Cambodian border incursions that ultimately prompted the invasion and then describes the invasion itself. Drawing on the extensive debate over the intervention in the United Nations Security Council and General Assembly, the chapter then reviews three legal justifications offered at the time by the two countries and third parties: (i) a self-defense claim that Vietnam properly responded to a Cambodian armed attack, (ii) humanitarian intervention to stop the horrific abuses of the Khmer Rouge regime, and (iii) an invitation by an anti-Khmer Rouge faction of Cambodians. The chapter concludes that while the Vietnamese action is most frequently cited as an example of humanitarian intervention, few states (including Vietnam) made that claim at the time. The self-defense argument is more plausible while the invitation claim does not appear consistent with known facts.
Operation Litani—1978
Authors: Williamson Myra
Published: July 2018

This chapter examines Israel’s invasion of southern Lebanon on 14 March 1978, often referred to as ‘Operation Litani’. First, the chapter discusses the immediate and long-term causes of the Israeli invasion: the former includes the ‘Coastal Road Massacre’ that occurred on 11 March 1978, whilst the latter includes the effects of the Palestinian presence in southern Lebanon. The second section analyses the positions of the main antagonists, setting forth the positions adopted by Israel, Lebanon, the PLO, Jordan, the US, Syria, Egypt, Kuwait and the United Nations’ Security Council. The third section discusses the legality of this use of force, purportedly an act of anticipatory self-defence to prevent future attacks. Finally, the chapter offers a brief conclusion on the precedential value of this incident. It concludes that the Israeli use of force, which was unanimously condemned by the Security Council, was unlawful.
The US Hostage Rescue Operation in Iran—1980
Authors: Forteau Mathias , Ying Xiu Alison See
Published: July 2018

The present contribution discusses the US hostage recuse operation in Iran in 1980. After the presentation of the relevant facts and context of the (eventually aborted) operation, including the official positions of the US and Iran as publicly expressed at that time, the present contribution assesses the legality of the operation, taking into account the reactions of other states and competent international organizations. The legality of the operation is assessed under Article 2(4) and 51 of the UN Charter and other possible exceptions under customary international law such as self-help. It concludes that it is doubtful that the operation was in conformity with international law.
The Iran–Iraq War—1980–88
Authors: de Guttry Andrea
Published: July 2018

This contribution discusses the 1980-1988 Iran-Iraq war. After presenting the facts and context of the crisis (on which the parties strongly disagreed), this chapter examines the legal positions of the main actors involved in the war (Iran and Iraq), and discusses the reaction, or lack thereof, of the international community, and specifically of the United Nations. The legality of the military operations carried out by both parties is then investigated. The final section analyses if, and to what extent, the case has had an impact on the further development and evolution of the concepts of self-defence and of preventive self-defence and comments on the limited role played by the United Nations during most part of the war.
Israel’s Airstrike Against Iraq’s Osiraq Nuclear Reactor—1981
Authors: Ruys Tom
Published: July 2018

This contribution discusses Israel’s 1981 air strike against the nuclear reactor of Osiraq, Iraq. It sets out the facts and context of the operation, the legal arguments invoked by Israel and the reactions within the international community. It then tests the legality of the Israeli intervention against the international legal framework governing the use of force, having regard in particular to the right of self-defence, as well as to potential alternative legal bases. The final section examines if, and to what extent, the case has had an impact on the further development of the jus ad bellum, focusing in particular on its relevance for the debate on the permissibility of pre-emptive self-defence.
The US Intervention in Nicaragua—1981–88
Authors: Kammerhofer Jörg
Published: July 2018

This chapter focuses on the US intervention in Nicaragua from 1981 to 1988, as a contribution to the state practice on the law on the use of force and the right to self-defence under both UN Charter and customary law. After an overview of the background of the so-called ‘contra war’ and of the salient facts regarding the US intervention in that conflict, it discusses the positions of the two parties on the facts and law, and takes note of the reaction of the international community, focusing on the debates at the UN. The next section focuses on the legality of the operation; the ICJ’s holdings in its 1986 Nicaragua judgment form the backbone of that discussion, while taking note of dissent and comment both inside and outside the Court. The contribution concludes by discussing the precedential value and effect of this conflict, and of the ICJ case.
The Intervention of the United States and other Eastern Caribbean States in Grenada—1983
Authors: Hajjami Nabil
Published: July 2018

This chapter examines the legality of the 1983 American-led intervention in Grenada. It recalls the positions of the main protagonists of the crisis, including international organisations such as the United Nations, the Caribbean Community and the Organisation of Eastern Caribbean States. It then analyses the justifications of the American administration, which are mainly based on three different grounds: the protection of citizens abroad; the activation of regional mechanisms and the intervention by invitation. The conclusion assesses the precedential value of the Operation Urgent Fury. Regarding its wide condemnation, the chapter argues that reactions to the American-led intervention in Grenada can finally be deemed as a strong reaffirmation of the prohibition of the use of force in international law.
The ECOWAS Intervention in Liberia—1990–97
Authors: Villani Ugo
Published: July 2018

This contribution examines the intervention of ECOWAS in Liberia following the civil war begun at the end of 1989. After recalling the historical context of the Liberian crisis, the decisions of ECOWAS, and the establishment of the Cease-fire Monitoring Group for Liberia (ECOMOG), it considers the positions of member states of ECOWAS, of the OUA, and especially of the Security Council. Then the contribution discusses the legality of the operation of ECOMOG, according to the ECOWAS system, as well as to general international law and the United Nations Charter, particularly Article 53 relating to regional organizations. The final section examines the impact of the intervention in Liberia on the development of the ECOWAS role in the maintenance of peace and security. It concludes that such intervention confirms that both humanitarian emergencies and civil wars now constitute threats to international peace and security and shows the usefulness of integrated forms of cooperation between regional organizations and the Security Council.
The Gulf War—1990–91
Authors: De Wet Erika
Published: July 2018

This contribution discusses the Gulf War of 1991-1991. It sets out the facts and context of the Iraqi invasion of Kuwait in August 1990, followed by the adoption of United Nation Security Council Resolution 678 (1990) and the subsequent military reaction by the United States-led international coalition. It assesses the reaction of the main protagonists and that of the broader international community to these events. In doing so, it also assesses the legal basis of the military response by the international coalition of the ‘willing and able’ against Iraq. It determines whether it was based on Article 42 of the United Nations Charter, or collective self-defence in terms of Article 51 of the United Nations Charter. The final section examines if and to what extent this case has had an impact on (the legal basis) of military measures taken in the interest of collective security in the post-Cold War era.
Intervention in Iraq’s Kurdish Region and the Creation of the No-Fly Zones in Northern and Southern Iraq—1991–2003
Authors: Gazzini Tarcisio
Published: July 2018

This chapter discusses the main legal issues related to the military operations carried out by the United States, the United Kingdom and France for the protection of the Kurds in Northern Iraq as well as the Shiites and Marsh Arabs in Southern Iraq between the conclusion of the Gulf War (1990-91) and the 2003 military intervention in Iraq. Particular attention is paid to the legal effects of the relevant Security Council resolutions as well as the claim to intervene on humanitarian grounds.
The Intervention in Bosnia and Herzegovina—1992–95
Authors: Klein Pierre
Published: July 2018

This contribution gives an account of the actions undertaken under the auspices of the United Nations in order to restore peace and security in Bosnia and Herzegovina between 1992 and 1995, in the context of the dissolution of the former Yugoslavia. It describes the measures taken by the UN Security Council, the mandate and deployment of UNPROFOR —the UN peacekeeping operation in Bosnia and Herzegovina— and the actions undertaken in support thereto by other organizations such as NATO and the Western European Union. This chapter also discusses the legal issues that gave rise to discussion in that context (particularly regarding the extent of the authorization to use force given by the Security Council and the degree of control exercised —or not— thereon) and the impact of this precedent on the rules relating to the use of force in self-defence, on the one hand, and on the use of coercive measures under Chapter VII of the Charter in co-operation with regional organizations or arrangements, on the other.
The ECOWAS Intervention in Sierra Leone—1997–99
Authors: Breau Susan
Published: July 2018

This chapter analyses the intervention by the Economic Community of West African state forces, known as ECOMOG, into Sierra Leone from 1997-1999. After a brief review of the very complex facts surrounding this intervention and the generally positive reaction from the international community, this chapter reviews the legal justifications for this intervention and tests them against the jus ad bellum existing at that time. Reasons given were the restoration of a democratically elected government, self-defence, humanitarian intervention, intervention by consent or invitation and retrospective authorisation by the Security Council to a regional peacekeeping operation. None of these are found to have met the tests for legality within jus ad bellum. A final justification argues that this case study is a precedent as an African exception to the prohibition on the use of force with delegation or assumption of powers by an African regional organisation. This would be a troubling challenge to the United Nations Charter regime but might well be part of a larger trend of African use of force initiatives.
The US Strikes in Sudan and Afghanistan—1998
Authors: Cannizzaro Enzo , Rasi Aurora
Published: July 2018

This Chapter focuses on the aerial strikes of the U.S. against Afghanistan and Sudan in 1998, in response to terrorist attacks against the U.S. embassies in Tanzania and in Kenya, attributed to Al Qaeda. The events and the reactions thereto are presented in the first two sections. The third section is devoted to the assessment of the legality of the US strikes. In particular, the authors will discuss the qualification of the strikes as a form of pre-emptive self-defence. The last section contextualises the 1998 strikes in an evolutionary perspective. In the authors’ view, these interventions have constituted a trial run for the doctrine of pre-emptive war, fully developed by the US Administration after the 9/11 terrorist attacks.
The Iraq War—2003
Authors: Weller Marc
Published: July 2018

This contribution discusses the Iraq War of 2003. It begins by setting out the facts and context of the US and British invasion. It then considers the legal justifications put forward by the intervening states and assesses the reaction of the international community to these events. It then tests the legality of the intervention against the international legal framework governing the use of force as it stood at the time of the events. In particular it considers whether UNSC Resolution 1441 provided a legal basis for the use of force against Iraq. The final section examines if, and to what extent, the case had an impact on the further development of the jus ad bellum. The Iraq War of 2003 did indeed have an effect on the erosion of the prohibition of the use of force, however it was a cumulative effect, rather than an immediate and decisive one.
The Israeli Intervention in Lebanon—2006
Authors: Tams Christian J , Brückner Wenke
Published: July 2018

This contribution discusses the Israeli intervention in Lebanon in July 2006. It offers an overview of the facts and context of the intervention and sets out the legal positions taken by the main protagonists (Israel and Lebanon), by third states and by international organizations. The contribution proceeds to analyse the key legal questions raised by the intervention, viz. whether or not Israel was entitled to rely on self-defence and whether its conduct respected the limits of self-defence, including the requirement of proportionality. It argues that the reaction to Israel’s intervention during 2006 reflected a growing support for an expansive notion of self-defence and confirmed the importance of proportionality as an outer limit to self-defence (which Israel, in the view of most, failed to respect).
The Turkish Intervention Against the PKK in Northern Iraq—2007–08
Authors: Trapp Kimberley N
Published: July 2018

This contribution examines the armed Turkish intervention (against the Kurdish Workers’ Party (PKK)) in northern Iraq in late 2007/2008. The chapter sets out the context of the armed intervention by Turkey, including a brief account of the broader conflict between Turkey and the PKK, before recalling in some detail the facts of the 2007/2008 intervention. The second section further explores the positions of the main protagonists (Turkey, Iraq and the US) and the rather muted reactions of the broader international community, by way of situating the discussion regarding the legality of the intervention. The final section examines the precedential value of the intervention insofar as defensive force against non-state actors is concerned.
Israeli Military Operations Against Gaza: Operation Cast Lead (2008–09), Operation Pillar of Defence (2012), and Operation Protective Edge (2014)
Authors: Henderson Christian
Published: July 2018

This chapter examines three interventions by Israel into Gaza: Operation Cast Lead (2008-9), Operation Pillar of Defense (2012) and Operation Protective Edge (2014). It sets out the facts and context of each of these three interventions, the legal positions of the main protagonists, and the reaction that each of the interventions received. The chapter moves on to assess the legality of the interventions and also whether they have any precedential value, in particular for the right of self-defence and the so-called ‘accumulation of events’ theory.
The NATO Intervention in Libya—2011
Authors: Deeks Ashley
Published: July 2018

This contribution discusses the Security Council-authorized intervention by NATO in Libya in 2011, in response to the Libyan government’s extensive violence against civilians. It sets out the facts and context of the crisis, the legal positions of the main protagonists (NATO states on one side and Russia and China on the other), and the international community’s reactions. It then surveys the debates about whether NATO’s use of force exceeded the Security Council authorization. Finally, it evaluates the precedential value of the intervention, including its effect on Russia’s and China’s willingness to authorize force in future Chapter VII situations and the intervention’s influence on the idea of a “responsibility to protect”, including its role in revealing the difficulty of calculating the proportionality of humanitarian responses.
The Intervention in Côte d’Ivoire—2011
Authors: Tladi Dire
Published: July 2018

This chapter examines the intervention in Côte d’Ivoire by French and UN Forces following the disputed elections in Côte d’Ivoire. It begins by setting out the facts that led to the 2011 post-election violence and the sets out the facts surrounding the intervention by French and UN Forces. It then sets out the positions of the main protagonists (mainly France, ECOWAS, the United States and the UN Secretariat) and the positions of other member States of the United Nations (in particular Russia, Brazil and South Africa). The chapter then assesses the intervention, in particular by the French forces, against the content of the authorising resolution (UNSC Res 1975). It also assesses whether the responsibility to protect doctrine could provide authority for the intervention.
The Intervention of the Gulf Cooperation Council in Bahrain—2011
Authors: Verdebout Agatha
Published: July 2018

This contribution examines the Gulf Cooperation Council’s (GCC) Saudi led intervention in Barhrain. Following a brief overview of the events that shook the island in 2011, it analyses the legal arguments brought forth by the main protagonists (Bahrain, Saudi Arabia, United Arab Emirates and GCC) to justify the intervention, and the reactions these triggered in the international community. It then discusses the intervention’s legality in light of the different doctrines of ‘intervention by invitation’ in situations of domestic unrest. As a conclusion, it argues that the general lack of attention that this intervention has received on the part of the media and of third states makes its precedential value hard to assess.
The Military Operations Against the ‘Islamic State’ (ISIL or Da’esh)—2014
Authors: Corten Olivier
Published: July 2018

This chapter discusses the military operations against the Islamic State (ISIL or Da’esh) in Iraq as in Syria. After recalling the relevant facts and the context, it exposes the legal positions of the intervening states as well as those of the other states. In a third section some doubts are expressed concerning the legality of the operations based on the argument of self-defence, particularly when it implies the bombing of the Syrian territory without the consent of its government. In the same vein, a final section shows that the majority of states has not accepted the ‘unwilling or unable’, ‘limited sovereignty’, or ‘self-help’ necessity arguments, or, for that matter, the permissibility of preventive or pre-emptive self-defence. Accepting such arguments would undoubtedly imply at the very least a new interpretation of the UN Charter.
The Historical Origins of the ‘Penalty’ Rule
Authors: Halson Roger
Published: July 2018

The penalty doctrine has recently been subject to extensive review in the highest appellate courts of the Supreme Court of the UK and the High Court of Australia. Despite the agreement between senior appellate tribunals in the two major common law jurisdictions on the importance of a historical perspective, both propose subtly different historical analyses to justify very different conclusions about the ambit of the modern common law jurisdiction to set aside so-called penalties. This disagreement makes necessary an investigation of the history of the control of penalty clauses back to its earliest origins, in order to understand the modern doctrine. This chapter discusses the early history prior to 1600, later history from 1600 to 1915, and the case of Dunlop Pneumatic Tyre Co v New Garage and Motor Co (1915).
The Rationale for the ‘Penalty’ Jurisdiction
Authors: Halson Roger
Published: July 2018

This chapter examines whether the current law with regard to stipulated damages clauses can be justified by reference to a single, or multiple, policy objectives. In the Cavendish case, counsel for Cavendish urged the Supreme Court to abolish the penalty rule. The Supreme Court mainly examined the penalty jurisdiction from a historical and comparative perspective but more briefly canvassed other rationales. The chapter considers all of the ‘justificatory’ arguments discussed in Cavendish and other cases, as well as those advanced in academic writing. It begins by looking at the context of the penalty jurisdiction in the broader law of contract. In other words, the relationship between the penalty jurisdiction and the principle of self-determination, often summarised as the freedom to contract, is discussed.
Specific Contracts and Contractual Provisions
Authors: Halson Roger
Published: July 2018

This chapter examines specific contract types where stipulated damages provisions are frequently used, and thus will overlap with some material in the preceding chapters. The contracts examined include: contracts of employment; construction and engineering contracts; ‘shipping’ contracts, including charterparties and boatbuilding contracts; pervasive forms of contractual terms found in different contractual sub genres, including so-called take or pay clauses, and provisions for the payment of interest at an enhanced rate. Notwithstanding the wide range of contracts surveyed, the chapter only seeks to give an illustrative, rather than an exhaustive, account of the contexts in which stipulated damages clauses are encountered.
UK Financial Services Reform
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter examines the reform of financial services regulation in the UK. The objective of the UK's most recent regulatory reforms has been to strengthen the role and function of the Bank of England at the centre of the UK financial system. This was considered necessary, in particular, in light of the need to monitor and manage the financial markets as a whole. The chapter outlines the regulatory background to the establishment of the integrated system of financial control set up under the Financial Services and Markets Act 2000 and its amendment, in particular, under the Banking Act 2009, Financial Services Act 2010, and Financial Services Act 2012 (FSA 2012). It also considers the principal events surrounding the financial crisis in the UK and the immediate official response to it. Finally, it discusses the role and function of the Bank of England under the revised regulatory structure.
Enforcement
Authors: Walker George , Purves Robert , Blair Michael
Published: July 2018

This chapter explains how the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) exercise their disciplinary enforcement powers under the Financial Services and Markets Act 2000 (FSMA) to address breaches of regulatory rules and principles by firms and individuals. The FCA's approach to the exercise of its disciplinary powers may be described as being one of ‘credible deterrence’, whereas the PRA prefers early intervention and remedial action in advance of a potential issue arising, rather than exercising its disciplinary enforcement powers after the event. The chapter examines the power of the FCA and the PRA to impose sanctions, their enforcement decision making procedures, powers to investigate breaches of regulation, powers and procedure to conduct and settle enforcement proceedings, approach to financial penalties, and policy for third party rights. The role of the Upper Tribunal in hearing contested cases is also discussed.