bluuebunny/crossref_metadata_2025_split huggingface dataset:
Guarantees of Independence, Impartiality, and Competence
Authors: Nuzov Ilya , Freeman Mark 
Published: July 2018

Abstract
Principle 7 deals with guarantees of three separate but interrelated aspects of commissions of inquiry: independence, impartiality and competence. This principle emphasizes the need for guarantees of independence, impartiality and competence in two different realms: the process leading to a commission’s establishment, and the commission’s ultimate terms of reference. As such, the scope of Principle 7 overlaps with Principle 6, which deals with the establishment of truth commissions, and Principle 8, which deals with the mandates of commissions of inquiry. This chapter first provides a contextual and historical background on Principle 7 before discussing its theoretical framework and the ways in which the values espoused in Principle 7 are exercised by states in practice.
Publicizing the Commission’s Reports
Authors: Harwood Catherine , Stahn Carsten 
Published: July 2018

Abstract
Principle 13 deals with the publication of the commission’s reports. The principle of publicity is a key component of the United Nations’ Updated Impunity Principles. Through full publication and wide dissemination of a report, the right to the truth is realized. An authoritative account of violations might also promote accountability and reconciliation. A final report should be widely accessible, taking into consideration cultural and technological contexts. However, commissions may receive information confidentially and exclude some information from reports for security reasons and to avoid interference with witnesses and commissioners. This chapter first provides a contextual and historical background on Principle 13 before discussing its theoretical framework and how commissions have adopted confidentiality measures to protect witnesses and victims.
Measures for Facilitating Access to Archives
Authors: Cadelo Valentina , Peterson Trudy Huskamp 
Published: July 2018

Abstract
Principle 15 requires States to adopt measures that facilitate access to archives for victims, persons implicated in human rights violations, and individuals undertaking historical research. Access to records/archives means making them available for consultation as a result both of legal authorization and the existence of finding aids. Authorizing access to archives, particularly those of governments, is a political act. After providing a contextual and historical background on Principle 15, this chapter discusses its theoretical framework as well as its implementation, focusing on how international and national courts have taken a variety of positions on access. While the theoretical and best practice framework for access to archives exists, the chapter argues that implementation of Principle 15 is far from satisfactory. It also highlights important challenges that persist due to the reluctance of states to provide access to information, often linked to national security concerns.
Jurisdiction of International and Internationalized Criminal Tribunals
Authors: Schabas William A 
Published: July 2018

Abstract
Principle 20 is concerned with the jurisdiction of international and internationalized criminal tribunals regarding the prosecution of war crimes and other atrocities. The word ‘impunity’, defined at the beginning of the United Nations Updated Set of Principles, implies punishment or some similar sanction. It inexorably directs us towards judicial activity of criminal courts or the lack of it. The first sentence of Principle 20 is addressed to the national justice system, while the second sentence focuses on the international and internationalized criminal tribunals and their relationship to national courts. The final sentence of Principle 20 requires States to ‘fully satisfy their legal obligations’ with respect to international and internationalized criminal tribunals. This chapter first provides a contextual and historical background on Principle 20 before discussing its theoretical framework and how it has been observed in practice.
Restrictions on the Right of Asylum
Authors: Harvey Colin 
Published: July 2018

Abstract
Principle 25 deals with restrictions on the right of asylum. In the global struggle against impunity, Principle 25 takes account of the concern that the institution of asylum might be used to evade criminal justice and accountability. Its goal is to ensure that there are no ‘safe havens’ for war criminals and those who have committed crimes against humanity. The primary focus is on denial of status to make sure that the institution of asylum is not used to avoid facing the responsibility to challenge and combat impunity. This chapter first provides a contextual and historical background on Principle 25 before discussing its theoretical framework and how the exclusion clauses of refugee law have been applied in practice.
Restrictions on Extradition/Non Bis in Idem
Authors: Roth Robert 
Published: July 2018

Abstract
Principle 26 deals with restrictions on extradition and the principle non bis in idem. More specifically, it addresses obstacles to extradition and double jeopardy (ne bis in idem), two issues that both place restrictions rather than prohibitions on the exercise of criminal jurisdiction than interdictions to assert jurisdiction. The principle ne bis in idem and extradition law have evolved from a ‘State-oriented’ approach into an ‘individual-oriented approach’. Principle 26 highlights a series of controversial issues, including the denial of extradition to countries enforcing the death penalty to the so-called ‘shield trials’, and tries to strike a balance between the fight against impunity and the enhancement of individual rights for persons facing trials, even for ‘serious crimes under international law’. This chapter first provides a contextual and historical background on Principle 26 before discussing its theoretical framework and how the Principle has been applied in practice.
Restrictions on the Jurisdiction of Military Courts
Authors: Aoláin Fionnuala Ní 
Published: July 2018

Abstract
Principle 29 deals with restrictions on the jurisdiction of military courts. Under this Principle, the adjudication of human rights violations by military courts is explicitly excluded, and ordinary domestic courts are mandated as the only appropriate venue of judicial oversight. Nevertheless, military courts remain functionally important for the routine and uncontroversial deployment of military law consistent with international law. The chapter first provides a contextual and historical background on Principle 29 before discussing its theoretical framework and how military courts are used in various countries such as Ireland and Turkey. Issues arising when civilians find themselves within the jurisdiction of military courts are also examined, along with the difficulties of ensuring fair trials in military courts. This chapter shows that military courts, while certainly serving important functions within the military forces of states, remain subject to human rights and humanitarian law compliance.
Reform of Laws and Institutions Contributing to Impunity
Authors: Duthie Roger , Mayer-Rieckh Alexander 
Published: July 2018

Abstract
Principle 38 calls for the repeal or abolition of laws and institutions that contribute to impunity for human rights violations. It considers habeas corpus as a fundamental and non-derogable individual right, and calls for the enactment of ‘legislative measures necessary to ensure protection of human rights and to safeguard democratic institutions and processes’, along with a ‘comprehensive review of legislation and administrative regulations’. This chapter first provides a contextual and historical background on Principle 38 before discussing its theoretical framework and practice. It shows how this Principle has evolved from an initial narrower focus only on emergency legislation and courts in preparatory reports and prior versions to a broader focus on legislative and institutional reform to combat impunity. It also cites examples of legislative reform in countries such as Morocco, Guatemala, Northern Ireland, Sierra Leone, and Uganda, particularly where truth commission recommendations have addressed the matter.
The Law of Assignment
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This book is the leading text on the law relating to intangible property or choses in action. Its clear and approachable structure covers all forms of intangible property (debts, rights under contract, securities, intellectual property, leases, rights/causes of action, and equitable rights), considering the nature of intangible property, how it comes into being, and how it is transferred or assigned. The first part of the book analyses the general principles regarding intangibles and their transfer, and the second examines the practical considerations relating to particular types of intangibles, securities, insurance contracts, leases, and intellectual property under the law. This new edition includes new chapters on powers of attorney and factoring, areas particularly important to legal practice. Other significant developments include the expansion of the chapter on leases to include leasing of chattels, and more material on securities, especially regarding the operation of settlement systems.
Rights or Causes of Action
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter examines the rights or causes of action. There are three different types of right of action: private law rights of action; public law rights of action, in the form of judicial review; and public law rights of action, in the form of prosecutions, particularly private prosecutions. While private law rights of action are choses in action, and assignable, public law rights of action, whether in the form of judicial review or prosecution, are not. The chapter then looks at the nature of a private law right of action, particularly the concept of a ‘cause of action’ and what happens to a cause of action when the claim it contains is either judicially determined or settled by compromise. It also considers the nature of a judgment and its transferability.
Leases
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter focuses on leases. Leases are most commonly associated with transactions involving land, and have been a feature of the law of real property since the Middle Ages. However, other forms of lease have become increasingly prominent in modern times. There are now major industries concerned with the leasing of chattels, such as vehicles or aircraft, and leases of intangible rights have become commonplace in the world of intellectual property. The key feature of such leases is that the lessee obtains the right to exclude others from using the relevant chattel or intellectual property. This is in contrast to a mere licence, by which the licensee obtains only the right to use the chattel or property himself. The chapter looks specifically at leases over land—its nature, historical origins, and whether they can be properly classified as choses in action.
Equitable Assignment of Choses in Action
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter studies the requirements that are necessary for an effective assignment of choses in action. In order to effect the assignment or a chose in action: the assignor must have manifested an intention to transfer the chose; the thing being assigned must be a chose in action, in present existence, certain or capable of being ascertained; the identity of the assignee must be clear; and the appropriate forms and formalities must have been satisfied. These requirements apply both to legal and equitable assignments. However, since legal assignments can only be affected by statute, the forms and formalities required for a legal assignment are those set out in the relevant legislation, and addressed elsewhere.
Transfer of Intellectual Property
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter focuses on how intellectual property rights are transferred, and the consequences and implications of this. Although the transfer of a patent was originally governed by the common law, the common law rules have long since been superseded by statutory provisions that govern the transfer of the legal title in a patent. The present provision is contained in section 30 of the Patents Act 1977. Meanwhile, section 90(1) of the Copyright, Designs and Patents Act 1988 provides that copyright is transmissible by assignment, by testamentary disposition, or by operation of law, as personal or moveable property. The chapter also considers the transfer of moral rights, industrial design right, and trademarks.
Intangibles Not Transferable by Reason of Public Policy
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter discusses intangibles not transferable by reason of public policy. In the case of certain sums receivable in the future, reasons of public policy preclude their assignment. The cases in this area tend to have a Dickensian feel to them—such as the rule that no effectual assignment can be made of the salaries or pensions of public officers payable to them for the purpose of keeping the dignity of their office or to ensure the due discharge of their duties—but the same sort of policy underlies the current statutory prohibitions on the assignment of social security benefits and pay in respect of a person's service in Her Majesty's military forces.
Introduction
Authors: Mccormick Roger , Stears Chris 
Published: July 2018

Abstract
This introductory chapter first sets out the book’s purpose, which is to describe and explain legal and conduct risk, and suggest possible approaches to the management of these risks. Legal risk is defined as risk arising in the operation and practices of the financial markets. They are a part of the spectrum of risks that are inherent in the operations of banks and other financial institutions, affecting the lives of the people who work there and the customers who put their trust in them as well as, in more extreme cases, the financial system itself. On the other hand, the European Banking Authority defines conduct risk as ‘the current or prospective risk of losses to an institution arising from an inappropriate supply of financial services including cases of wilful or negligent misconduct’.
Legal and Conduct Risk in the London Market
Authors: Mccormick Roger , Stears Chris 
Published: July 2018

Abstract
This chapter reviews how the City of London and the English courts have dealt with legal risk issues. Bodies such as the Legal Risk Review Committee, Financial Law Panel, and Financial Markets Law Committee are now considered part of the ‘legal infrastructure’ of the wholesale financial markets. Also — and in a broad legal and conduct risk context — the rules, policies, and practices of the Financial Conduct Authority are of great, and growing, significance. Two highly influential bodies — The Banking Standards Board and the FICC Market Standards Board — are now tasked with defining and sustaining good practice standards for the banking and wholesale markets respectively, and to this extent, the work of these bodies will represent norms of behaviour that can be expected in the lawful discharge of duties.
The Initial Response to the Financial Crisis by the EU and Elsewhere
Authors: Mccormick Roger , Stears Chris 
Published: July 2018

Abstract
This chapter discusses the various laws, regulations, and comparable measures that were passed or proposed in response to the financial crisis in the EU and elsewhere. It covers the responses of the de Larosière Report, G20, the Basel Committee on Banking Supervision, and the Financial Stability Board. The de Larosière Report, for instance, was commissioned by the President of the European Commission in October 2008 and delivered on 25 February 2009. The report sought ‘to give advice on the future of European financial regulation and supervision’ and has formed the basis of many of the responses to the financial crisis at EU level. The G20 issued a comprehensive communiqué on the crisis at the London ‘Summit’ of 2 April 2009, covering a number of macro-economic and other ‘architectural’ issues.
The Impact of the Libor Scandal
Authors: Mccormick Roger , Stears Chris 
Published: July 2018

Abstract
The financial market crisis of 2007 was also a crisis of conduct. The events immediately before, during, and after the crisis that stand out, deserve analysis, and indeed, have given rise to some of the most substantial post millennial legal and regulatory changes. This chapter sets the scene, framing the ‘rebuilding trust agenda’ that arose after a plethora of misconduct events — epitomised by the Libor scandal. Using the findings of the Conduct Costs Project, a project of the CCP Research Foundation that collates data on the ‘Conduct Costs’ of twenty of the world’s foremost financial institutions, the chapter highlights the extent to which concerns over a conduct crisis are justified. It concludes by prefacing the issues of sustainability, ethics, standards, accountability, and disclosure that are then taken up in greater detail in later chapters.
Financial Services Act 2012
Authors: Mccormick Roger , Stears Chris 
Published: July 2018

Abstract
This chapter charts the passage of the Financial Services Act 2012 (FS Act 2012), from its policy conception through its consultation phase, and to its enactment. The FS Act 2012 received royal assent on 19 December 2012 and came into effect from 1 April 2013. The Act comprised 10 parts and 21 schedules and formally amended the Bank of England Act 1998, the Financial Services and Markets Act 2000, and the Banking Act 2009, to give effect to the reforms. The enactment of the FS Act 2012 represented a significant change in not only the regulatory structure, but the regulatory approach to supervision and enforcement. The new mantra was far a more holistic and intrusive form of regulation. Whether viewed from the perspective of the prudential thresholds, conduct of business requirements and new product intervention powers, or in light of the enhanced investigatory and enforcement priorities and a focus on individual accountability, the reforms were significant.
Legal and Conduct Risk in a Globalizing Financial Market
Authors: Mccormick Roger , Stears Chris 
Published: July 2018

Abstract
This chapter discusses legal and conduct risk associated with the globalized financial market. It argues that the involvement of banks in both globalization and the financial crisis has increased the risk of banks being a target for criticism for the social ills and misfortunes associated with either of these phenomena. Such criticism often leads to lawsuits, political action, or adverse regulatory measures; and sometimes a combination of these things. The remainder of the chapter covers the globalization debate and context; how legal risk is affected by, and has sources in, current and enduring political and social objectives; the media’s influence on to the culture of fear and ‘zero risk tolerance’; the limits of global law; reactions to globalization; and the need for legal certainty.
Burden of Proof in Investor-State Arbitration
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A 
Published: July 2018

Abstract
This chapter discusses the concept of the burden of proof in investor-state arbitration. The basic rule regarding the burden of proof in international law is that the party who makes an assertion must prove it. The rule has its origins in the traditions of Roman, common, and civil law countries, and is not new or unique to investment arbitration. In fact, this principle has been widely recognized by several international dispute settlement panels, as well as other international agencies. Not every set of arbitration rules explicitly includes this rule, however, although there is near unanimity by tribunals and commentators in its application.
Different Standards of Proof in Investor-State Arbitration
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A 
Published: July 2018

Abstract
This chapter highlights the three commonly identified standards of proof in investor-state arbitration. The first is the prima facie evidence standard, which involves an examination of the facts as alleged by the claimant to see whether such facts would amount to a breach of the treaty and otherwise fall within the jurisdiction of the tribunal. The second standard is the preponderance of evidence or the balance of probabilities. This standard requires an evaluation of all the evidence produced by both parties on a particular issue and this evaluation ultimately results in the tribunal determining which party’s evidence is more likely than not to be true. Finally, there is the heightened standard of proof. Here, the standard is higher than a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt.
Iura Novit Curia and Proof of Law
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A 
Published: July 2018

Abstract
This chapter examines one of the most underestimated areas of proof in investor-state arbitration—the proof of law. The first evidentiary principle governing proof of law is the maxim of iura novit curia, or the tribunal or court knows the law. The principle is fraught with difficulty when applied to investor-state arbitration. The practice of investor-state arbitration on its face disproves the assumption that tribunals know the law in a non-trivial sense. This difficulty does not mean, however, that iura novit curia is wholly inapplicable to investor-state arbitration. Rather, as the chapter shows, the principle must be carefully circumscribed in order to avoid potential annullable error.
Inferences from Evidence or Its Absence
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A 
Published: July 2018

Abstract
This chapter discusses the use of inferences. The use of inferences means that the tribunal makes a determination of fact that is not premised upon direct evidence. The tribunal thus is convinced of the truth of a fact despite the absence of a document or witness testimony that would establish that fact first hand. Such findings of fact are relatively frequent, especially when documents are scarce and witness testimony is self-serving. An inference refers thus to a conclusion that as a matter of plausibility a fact must be true in light of other relevant and probative record evidence as well as party conduct in the arbitral proceedings. Moreover, the plausibility of an inference is governed by the same standard of proof as the proof of the relevant fact by direct evidence.
Witnesses and Experts
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A 
Published: July 2018

Abstract
This chapter gives the first full-length treatment of the law and principles of evidence applicable to witness and expert testimony. One of the most underdeveloped areas in the literature concerns witnesses and experts. Witnesses and experts are crucial parts of any investor-state arbitration. In fact, most if not all investor-state arbitrations rely upon the testimony of witnesses and experts in order to prove central factual and legal issues in dispute between the parties. Hence, the chapter covers direct as well as cross-examination and aims to provide a better understanding to parties in framing witness statements as well as to counsel and tribunals in managing cross-examination at a hearing.