bluuebunny/crossref_metadata_2025_split huggingface dataset:
Rights and Duties Arising Out of the Obligation to Make Reparation
Authors: Haldemann Frank 
Published: July 2018

Abstract
Principle 31 deals with rights and duties arising out of the obligation to make reparation. It reflects a significant trend in recent international affairs: the call for ‘reparations’ as a means of ‘correcting’ legacies of serious and widespread human rights abuses. The idea of a general individual right as codified in Principle 31 is consistent with existing international law, but arguably has no strong legal basis. The Principle opens with a strong normative claim: ‘Any human rights violation gives rise to a right to reparation’. This claim is far from self-explanatory and raises a variety of questions about its meaning and foundations, such as the question of what it is to have a right to reparation. After providing a contextual and historical background on Principle 31, this chapter discusses its theoretical framework and highlights some of the legal, and predominantly international practices relevant to the Principle.
Reparation Procedures
Authors: d'Argent Pierre , de Ghellinck Isabelle 
Published: July 2018

Abstract
Principle 32 deals with the procedural aspect of the right to reparation, that is, the right for victims of human right violations to access remedial procedures. It addresses three issues: the right to access remedial procedures, procedural requirements of national reparation programmes, and regional and international procedures. While the obligation of states to provide effective remedies is enshrined in most of, if not all, the key international human rights treaties, Principle 32 provides for a right to all victims to access remedies. ‘Reparation’ and ‘remedies’ are both envisioned as victims’ rights, but the distinction between them is vague. After providing a contextual and historical background on Principle 32, this chapter discusses its theoretical framework and how the reparation procedure, judicial or administrative, dealing with gross violations of human rights at national or international level has been implemented.
Publicizing Reparation Procedures
Authors: Laplante Lisa J 
Published: July 2018

Abstract
Principle 33 focuses on the obligation of the State to publicize ‘ad hoc procedures’ for the distribution of reparations. The ‘publicity principle’ assures the right to compensation, restitution, non-material, symbolic reparations and other remedies and places the onus on policymakers to implement outreach campaigns that inform victims of these right and how to access them. Principle 33 emanates from the idea that ‘a reparation mechanism has little practical value if potentially eligible victims are not aware of the opportunity to make claims or are not given timely information on how to do so in a language they can understand’. After providing a contextual and historical background on Principle 33, this chapter discusses its legal framework and practice, with emphasis on United Nations guidelines and principles; international mass claims processes; international courts, commissions and committees; and country specific practice.
Scope of the Right to Reparation
Authors: Grosman Lucas S 
Published: July 2018

Abstract
Principle 34 deals with the scope of the right to reparation, which includes restitution, compensation, rehabilitation, and satisfaction. In order to determine what each measure entails, the Impunity Principles should be read in conjunction with the Reparation Principles, adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005. Principle 34 also outlines the content of certain rights owed to families of victims of forced disappearance, namely: the right to be informed of the fate or whereabouts of the disappeared and the right to obtain the body of the victim, once it has been identified. These rights have a substantial and a remedial dimension, and thus contribute to the reparation of the harm. This chapter first provides a contextual and historical background on Principle 34 before discussing its theoretical framework and practice.
General Principles
Authors: Mayer-Rieckh Alexander , Duthie Roger 
Published: July 2018

Abstract
Principle 35 deals with guarantees of non-recurrence of human rights violations, along with some general principles and objectives. It outlines ‘institutional reforms and other measures’ as the means of achieving prevention through their contribution to the rule of law, respect for human rights, and public trust in government institutions. It also highlights the importance of adequate representation of women and minority groups as well as broad public consultation in the process. Four ‘objectives’ are listed in Principle 35: the first repeats the notion of the rule of law and the next three refer to specific measures that are among those included in Principles 36–38. This chapter first provides a contextual and historical background on Principle 35 before discussing its theoretical framework and practice. It concludes with a critical assessment of the notion of guarantees of non-recurrence itself.
Reform of State Institutions
Authors: Mayer-Rieckh Alexander , Duthie Roger 
Published: July 2018

Abstract
Principle 36 deals with institutional reform in the aftermath of human rights violations. It contains measures that focus on state institutions responsible for violations and seek to identify the causes of the violations. The measures aim to reform structures and systems that allowed, facilitated, or promoted violations, and have the potential to act as an enabling condition for other transitional justice mechanisms by weakening or removing institutional sources of opposition. This chapter first provides a contextual and historical background on Principle 36 before discussing its theoretical framework and practice. It also examines the shift in emphasis from purges, to vetting, to broader institutional reform; the influence of historical context in Latin America and Eastern Europe in particular on the articulation of the measures; and the emphasis on the preventive function of the measures.
Nature and Characteristics of Intangibles
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter discusses the fundamentals of property law, particularly considering the nature of property interests, and the distinction between rights in rem and in personam, or between property interests and personal interests. The law of property is concerned not with things, but rather with interests (or rights) in things. Whereas the thing itself may be (but is not always) tangible, the interest in (or relating to) the thing is inevitably intangible or abstract. The distinction between property interests and personal interests may be expressed as the difference between owning something and being owed something. The chapter then considers the English law classification of things, and the place of choses in action within that classification; the characteristics of choses in action; and the extent to which ownership in choses of action or intangibles can be shared, divided, or otherwise fragmented.
Debts
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter focuses on debts. A debt is a right to demand payment of money at a stipulated time. That stipulated time may be a future specific date, or the debt may be payable on demand or on the occurrence of some defined future event. In order to be a debt, the money must be due as a matter of legal obligation, that is, arising out of a contract or a deed. At times—particularly for accounting and tax purposes—attempts are made to further classify debts. One classification of debt is known as ‘book debt’. Book debts are best defined as debts in some way connected with the creditor's trade, or debts connected with and growing out of the creditor's trade. The chapter then looks at syndicated loans, where two or more banks severally lend to a single borrower, and the nature of debts as property.
Rights Under a Contract
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter studies rights under a contract. Contractual rights exist between, and are only enforceable by, the parties to the contract. In other words, contractual rights and obligations are essentially bilateral. Two principles of the common law tend to prevent third parties from enforcing the contract: a contract for the benefit of a third party cannot be enforced directly by that party; the promise cannot be indirectly enforced by the contracting party. The chapter then considers the statutory exception to the rule that exists in the shape of the Contracts (Rights of Third Parties) Act 1999, as well as the nature of contractual rights as property.
Intellectual Property
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter examines intellectual property. The governing principles relating to intellectual property are very different from the principles that underlie other choses, like rights under contracts or debts. Like shares, intellectual property rights are characterized by specific statutory rules relating to their creation, as well as to their transfer. Intellectual property rights can be divided under six heads: patents; copyright; moral rights; industrial design rights; trademarks; and confidential information. In each case, the holder of the right is able—by virtue of ownership—to prevent others from doing what they otherwise could do. Each of these intellectual property rights has four different aspects: the intellectual property right itself; rights of action for infringement; validity challenges; and licensing.
Documentary Intangibles and Negotiable Instruments
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter studies documentary intangibles and negotiable instruments. An intangible thing, by its nature, is not a physical object. However, there are instances where intangibles are equated to physical objects. Examples are bills of exchange, promissory notes, bearer shares, depository receipts, and certificates of deposit. There are two different kinds of documentary intangibles: negotiable instruments and transferable instruments. Negotiable instruments are documents embodying obligations which are not only transferable on the transfer of the document, but which have the attribute of ‘negotiability’. Meanwhile, transferable instruments are documents which embody obligations which are transferable, but which do not have the attribute of negotiability. The chapter then considers the implications for documentary intangibles of technological developments such as dematerialization, where paper documents are replaced by electronic documents or electronic systems.
Transfer of Choses in Action: Historical Overview
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter discusses the transfer of choses in action. Choses in action have their origin in rights that are personal and, for this reason, non-transferable. This approach of the common law did not change, even when the scope of choses expanded so as to include choses that could not possibly be regarded as personal. Second, as a matter of policy, the common law wished to discourage the acquisition of rights of action by third parties for fear of unduly oppressing the debtor or obligee. The chapter then looks at the intervention of equity. Equity's intervention effectively overtook the common law, with equity taking a much more favourable approach to the question of the transfer of choses in action.
Conceptual Underpinnings
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter examines the manner in which choses in action can be assigned when they are not embodied in a negotiable instrument. Assigning a chose in action involves the transfer of that chose from the assignor to the assignee. Leaving aside the legal consequences of such an act, the legal requirements necessary to effect an assignment ought to be straightforward and easy to state. However, this is not the case. The English law of assignment is highly and unnecessarily complex. This is for a number of reasons: complexity arising out of the number of different ways in which a chose in action can be transferred; complexity arising out of the interrelationship between the various forms of equitable assignment; complexities arising out of the interrelationship between the various different statutory modes of assignment; and complexity arising out of the interrelationship between equitable and statutory assignments.
Transfer of Insurance Contracts
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter studies insurance contracts. A contract of insurance is one whereby one party (the insurer) promises in return for a money consideration (the premium) to pay to the other party (the assured) a sum of money or provide him with some corresponding benefit, upon the occurrence of one or more specified events. Their assignability is complicated by two factors. First, there are a number of different rules whereby an assignment can be effected, in addition to the equitable and statutory (section 136 of the Law of Property Act 1925) methods. Second, when considering the assignment of insurance contacts, it is important to be clear about what it is that is being assigned. The chapter then considers the transferability of the assured's right under four types of insurance: indemnity insurance; life insurance; marine insurance; and reinsurance.
Transfer of Leases
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter discusses the manner in which leases can be transferred or assigned. Leases constitute an important exception to the general rule that burdens cannot be assigned. The assignment of any lease, no matter what its duration, must be effected formally by deed. This is so even where the lease could have been created informally. Additionally, so far as leases of over seven years are concerned, the transfer must be registered in order to be effective. There is a fundamental distinction between a legal and an equitable lease. A legal lease comes into being when the requisite formalities for the creation of such a lease have been complied with. Meanwhile, an equitable lease comes into being when, although the requisite formalities have not been complied with, there is nevertheless a contract for a lease to which equity will give effect.
Assignment of Burdens
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter studies the assignment of burdens. In general, while a benefit or right under a contract is assignable, a burden or obligation under that same contract will not be assignable. The rule that burdens cannot be assigned needs to be considered in the context of those choses—notably contracts, but also leases and shares—that contain both benefits and burdens. However, there are a number of limited exceptions to the general rule. These include the unpaid vendor's lien over land; the rule that the burden of a restrictive covenant over freehold land can bind successive owners of that land; the transfer of obligations contained in leases through successive landlords and tenants; the assumption of obligations by a new shareholder on the transfer of the legal title in the shares to him; and the doctrine of ‘conditional benefits’ which applies to the assignment of rights under a contract.
The Assignment of Bare Rights to Litigate: Champerty and Maintenance
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter examines the doctrines of champerty and maintenance—the most prominent examples of a public policy limitation on the ability to assign. The doctrines of champerty and maintenance trace their origins back to the earliest days of the common law, and indeed were the basis for the common law's traditional antipathy to all assignments. Champerty is traditionally described as a species of maintenance or ‘an aggravated form of maintenance’ that is said to occur ‘when the person maintaining another stipulates for a share of the proceeds or the action or dispute or other contentious proceedings where property is in dispute’. The chapter then explains the effect of champerty and maintenance on an assignment or other contract.
Personal Obligations
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter focuses on personal obligations. As has been described, one of the reasons contractual burdens are generally unassignable is because the beneficiary of the promise cannot, without his consent, be deprived of his rights as against his contractual counterparty. Here the concern is with the converse situation, where the beneficiary of a right wishes to transfer that right to someone else. The chapter then considers the reasons for the rule that a personal contractual obligation should not be assignable to a third party, analyses the test established by the relevant case law for determining whether a particular obligation is indeed a personal obligation, and sets out a number of the ways in which this test has been applied to specific factual scenarios.
Prohibitions On Assignment
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter studies the prohibitions on assignment. Depending on how it is framed, a prohibition on assignment can have a number of different effects. This will always be a question of construction. For example, a clause that appears to be directed towards prohibiting assignment may in fact prohibit only novation, or sub-contracting, or only outright assignments and not assignments that are executed by way of security. Likewise, a prohibition on assignment has been held to extend even to the grant of a charge, notwithstanding the fact that a charge is distinct from an assignment. In the specific context of prohibitions on assignment, at least four different types of term were identified. The chapter looks at these various possible terms, and their validity and enforceability.
Consequences and Effects of An Assignment
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter discusses the consequences and effects of an assignment. Although the paradigm of transfer applies clearly to multilateral intangible property, it applies much less easily to bilateral intangible property. Interests in multilateral intangible property are fully fledged property rights, good against ‘all the world’. Bilateral intangible property, whilst undoubtedly having some of the characteristics of property, lacks this characteristic of universal enforceability. In the case of bilateral intangible property, the right that is transferred remains, for all its transferability, a personal right as against an identified debtor. There is no question of a right subsisting against ‘all the world’. Rather, there is a right—originally owed by the debtor to the assignor—that is transferred from the assignor to the assignee.
Priorities and The Loss of Title
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter examines priorities and the loss of title. Even though the thing which an owner owns continues to exist, it is possible for that owner to lose his rights over that thing in circumstances other than where he has voluntarily disposed of his ownership. Obviously, if an owner voluntarily disposes of his interest in a thing, he loses his rights over the thing. Priority disputes concern the case where two rivals claim the same thing or where one person claims a right in a thing ranking more highly than another's claim in the same thing. Different questions arise where a subsidiary interest is created out of a larger set of rights. Where such subsidiary interests are created, and they conflict in the sense that two persons claim the same interest, the rival claims of the owners of these rights fall to be determined by the priority rules considered in this chapter.
Vindication Of An Owner’s Rights
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter studies the manner in which an owner of property can vindicate his rights if they are interfered with by another. An owner who has been wrongfully deprived of his property, whether that property is tangible or intangible, and whether the claim is brought as a claim in tort (as a claim in conversion) or in equity (as an ‘equitable vindicatio’), must frame that claim as a ‘following’ claim and/or as a ‘tracing’ claim. When an owner seeks to follow property, he is seeking to identify his property in the hands of another. Essentially, in order to follow property, an owner must show: that he was unlawfully deprived of property that he owned; that the person he is asserting his claim against holds that property; and that he has a better right to the property than the person holding it.
Involuntary Transfers
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter examines involuntary transfers, that is, assignments or transfers that occur not by virtue of a party's or parties' choice, but by operation of law. Involuntary transfers occur in a number of contexts. One of these has already been considered, namely the statutory assignment of a bankrupt's property to his trustee in bankruptcy. A further type of statutory assignment that occurs in an insurance context—the assignment of an insured's rights against his liability insurer to a third party, to the extent of the insured's liability to that third party by virtue of the Third Parties (Rights Against Insurers) Act 1930—has also been examined. As such, the chapter focuses on three types of involuntary transfer: subrogation; divorce and dissolution; and succession.
Assignment and The Conflict of Laws
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter discusses the conflict of laws. Conflict of laws questions are typically analysed under three heads: jurisdiction; choice of law; and the enforcement of foreign judgments. Questions of jurisdiction refer to the rules that determine whether or not an English court will assume jurisdiction over a particular dispute. Choice of law questions arise where an English court (having jurisdiction to determine a dispute) is presented with a dispute, or issues arising out of a dispute, having a foreign law element; choice of law rules provide the mechanism for determining what law should apply to which issue. Meanwhile, issues relating to the enforcement of foreign judgments refer to the rules which determine when a foreign judgment is enforceable in an English court. Since no special issues of enforcement arise in the assignment context, this chapter focuses on questions of jurisdiction and choice of law.
Legal and Conduct Risk in the Financial Markets
Authors: McCormick Roger , Stears Chris 
Published: July 2018

Abstract
This third edition on legal risk has been expanded to include much new material specifically on conduct risk. It has been updated to take into account developments in the law and professional standards concerning such risks and associated values in the context of the financial markets. Significant (and in some cases, endemic) conduct-related scandals, such as the widespread mis-selling of financial products and LIBOR manipulation, exposed by the financial crisis, have resulted in legal and regulatory change in equal measure (and profound effect) to that of the prudential and financial stability concerns captured in the second edition. Consequently this new edition fully examines the current approach to trust, ethics, and conduct within the broader framework of reputational and legal risk. In doing so, it clarifies what constitutes legal risk in contemporary financial markets and how to manage it, drawing on examples and case studies. Other developments in areas such as the resolution/insolvency of banks, the revision of the UK regulatory structure from the Financial Services Authority to the Financial Conduct Authority and Prudential Regulation Authority, and the recently made new crime of reckless management of a bank are all considered in full. There is also discussion of trends in areas ripe for development such as fiduciary duty amongst financial markets participants.