bluuebunny/crossref_metadata_2025_split huggingface dataset:
Negotiation and the Transfer of Money
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter focuses on the concept of negotiation and the transfer of certain negotiable instruments, such as bills of exchange, cheques, and promissory notes. These instruments are defined as negotiable because they are all subject to the special regime for transfer, or negotiation, that represents an exception to the rule that choses in action cannot be transferred at common law. The practice of indorsing bills of exchange as a means of transferring the right to payment from one merchant to another appears to have arisen in the seventeenth century. Prior to that, bills of exchange had represented a means by which two merchants could exchange credit balances standing to their name, typically in different cities or countries. The practice of indorsing bills changed this: now the holder was the beneficiary of the right to payment, even if not a party to the original exchange transaction.
Transfer of Choses in Action on Trust
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter discusses the transfer of choses in action on trust. There are two different ways of constituting a trust, whether of a chose in action or of other property. A trust can be constituted either by the settlor declaring that property held by him is to be held by him on trust, or by the settlor transferring property to trustees and declaring the trusts on which such property is held by the trustees. The chief difference between these two mechanisms for the creation of a trust is that the latter involves the transfer of property from settlor to trustees, whereas the former does not. Where the trust property is a chose in action, the transfer of the property to trustees inevitably involves an assignment. To this extent, therefore, there is overlap in the requirements for a successful assignment and the requirements for a successful transfer to trustees.
The Transfer of Equity and Debt Securities
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter examines securities trading. Although securities are classed as choses of action, they have long been subject to special statutory schemes. In particular, the transfer of shares has long been subject to a registration requirement that importantly supplements the general law of assignment. The requirement for registration arose as a matter of historical necessity. Meanwhile, the modern statutory scheme relating to securities transfers was necessitated by the explosion of financial trading activity following the deregulation of the UK markets, or Big Bang, in the late 1980s. Almost all modern securities transactions are effected by means of electronic exchanges, which have replaced the open-outcry floor-based systems that operated in the past. The chapter then looks at the characteristics of these exchanges, the regulatory framework in which they operate, and the clearing houses on which they depend.
Extinction of Intangible Property
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter focuses on the extinction of intangible property. The transfer of an intangible does not involve the extinction of that intangible. It does, or should, entail the extinction of the assignor's interest in the intangible. The chapter looks at those circumstances in which an intangible is extinguished or lost against all the world: in other words, those cases where the intangible ceases to exist. In such a case, it is self-evident that rights in the thing must also cease: rights cannot exist in vacuo. Intangible property is, obviously, very different from tangible property, and the manner in which it can be extinguished differs in fundamental respects. Intangible property can be extinguished in one of three ways: through destruction, abandonment, or combination.
Insolvency and Assignment
Authors: Smith Marcus , Leslie Nico 
Published: July 2018

Abstract
This chapter discusses insolvency. Insolvency is significant in the law of assignment in a number of respects. In the first place, individual bankruptcy—although not the insolvency of companies—causes the bankrupt to be divested of his property, which automatically becomes vested in his trustee in bankruptcy upon the latter's appointment. So far as choses in action are concerned, this involves what can be termed a statutory assignment. The onset of insolvency—both individual and corporate—also causes the rules regarding assignments generally to change in certain respects. Thus, with the onset of insolvency: the rules regarding the assignability of present rights enforceable in the future change; the rules of champerty and maintenance change; and the rules of set-off change.
Ethics and Standards
Authors: Mccormick Roger , Stears Chris 
Published: July 2018

Abstract
In response to the issues that came to light as a result of the financial crises, the Parliamentary Commission on Banking Standards called for the establishment of a professional body to promote better standards of behaviour in banking. This chapter discusses the Banking Standards Board (BSB) and the FICC Market Standards Board (FMSB). The BSB commenced work in January 2016 and, at the time of writing, has twenty-two member banks and building societies. The aim to the BSB is to set standards of behaviour and competence for banks and building societies, and to define metrics against which they could benchmark. The FMSB was set up in 2015 ‘as a private sector response to the conduct problems revealed in global wholesale Fixed Income Currencies and Commodities (FICC) markets after the financial crisis’.
A Landmark Case and its Aftermath
Authors: Mccormick Roger , Stears Chris 
Published: July 2018

Abstract
This chapter discusses the case of Hazell v Hammersmith and Fulham London Borough Council, which had a profound effect on how the City of London perceived the dangers posed by legal risk. It involved a House of Lords decision on an ultra vires point — specifically, the power of the council in question to enter into ‘swap’ transactions. The case arose because this power was challenged by the auditor appointed by the Audit Commission. The surrounding circumstances and the unprecedented manner in which the City of London responded to the case provide both the classic case study and a historical explanation of why legal risk is seen to be so important and how seriously it is taken by those concerned with orderly financial markets.
Property Interests in Indirectly Held Investment Securities
Authors: Mccormick Roger , Stears Chris 
Published: July 2018

Abstract
This chapter discusses legal risk associated with property interests in indirectly held investment securities. It suggests that risks arise because, although there have been some recent reforms, the substantive law regarding the holding and disposal of corporate securities is still, to a significant extent, based on ‘paper’ securities rather than electronically recorded holdings. The chapter covers the Hague Convention on ‘The law applicable to certain rights in respect of securities held with an intermediary’, legal reforms around the world, the International Institute for the Unification of Private Law Convention (‘Geneva Securities Convention’), and Financial Markets Law Committee proposals.
Recharacterization
Authors: Mccormick Roger , Stears Chris 
Published: July 2018

Abstract
This chapter considers the risk of ‘recharacterization’, which refers to the court’s practice of deeming a transaction to be something other than what the parties intended. It argues that although English courts rarely indulge in recharacterization, there are policy considerations that may come into play and put the more adventurously structured transactions at risk. It is important that this risk, which is a legal risk, be understood and evaluated in the more extreme cases and that it is strictly confined to cases where the policy reasons for recharacterization are compelling. The remainder of the chapter discusses different ways of raising money, the risk of wrong labels, essential differences between sale and security, the lender’s dilemma, and the House of Lords’ decision in National Westminster Bank plc v Spectrum Plus Ltd.
Shifting the Burden of Evidence
Authors: Sourgens Frédéric Gilles , Duggal Kabir , Laird Ian A 
Published: July 2018

Abstract
This chapter explains the process of ‘shifting the burden of evidence’, otherwise known as the ‘shifting principle’. This is the proposition which occurs when the party who bears the initial burden puts forward evidence to support its initial claim. Here, the burden of evidence (or alternatively also termed as the ‘burden of production’, ‘burden of persuasion’, or ‘burden of proceeding’) shifts to the other party to rebut the evidence put forward. Shifting the burden of evidence is to be read in conjunction with the burden of proof principle discussed in the previous chapter. This is because it is only when the initial burden of the party making an allegation is met that the burden is shifted to the other party.
Introduction to the Bermuda Form
Authors: Scorey David , Geddes Richard , Harris Chris 
Published: July 2018

Abstract
This chapter first describes the three interrelated categories of problems identified by insurers leading up to the introduction of the Bermuda Form. These include the unreliability of stated policy limits of liability; exposure to injuries, damage and events taking place in the distant past; and uncertainty of what body or bodies of law would control the interpretation of a policy. It then discusses the hallmark features of the Bermuda Form, covering the occurrence first reported trigger and continuous policy, bifurcated occurrence definition/time element pollution exclusion, high per occurrence retention/broader principles of loss aggregation, no duty to defend the insured or pay sums on its behalf, expectation and experience of rate or level of injury or property damage, and law and principles governing interpretation/arbitration.
Conflict of Law Issues
Authors: Scorey David , Geddes Richard , Harris Chris 
Published: July 2018

Abstract
The Bermuda Form is not immune from conflict of law issues. Such issues arise from its very nature as an ‘international’ document that provides coverage to large and often multinational corporations in respect of legal liability arising from their global operations in a variety of jurisdictions. This chapter highlights some of the conflict of law issues that may be encountered when arbitrating disputes arising from Bermuda Form policies and suggests some possible solutions to assist in choosing between the myriad of potential and competing applicable laws. Topics covered include express choices of law in the Bermuda Form, the severability principle, potential applicable laws, proper law of the contract, proper law of the underlying claim, proper law of the conflict of law rules applied to the policy, proper law of the arbitration agreement, procedural law, and curial law.
Misrepresentation and Nondisclosure
Authors: Scorey David , Geddes Richard , Harris Chris 
Published: July 2018

Abstract
This chapter first discusses the law of misrepresentation and nondisclosure as it has developed in New York, since the law of that state is designated in the majority of Bermuda Form policies as governing the resolution of ‘any dispute, controversy or claim arising out of or related to the Policy’, which would clearly include a dispute about alleged misrepresentation in its procurement. The second part discusses English law. This is relevant for a number of reasons. It is not at all uncommon that the version of the Bermuda Form in play in respect of a given dispute will expressly adopt the law of England and Wales as controlling. This is often the case where the policy is issued to a multinational corporation whose management and headquarters are not located in the United States, or where the policy is not issued by an insurer resident in Bermuda.
The Arbitration Agreement
Authors: Scorey David , Geddes Richard , Harris Chris 
Published: July 2018

Abstract
This chapter provides an overview of practical and theoretical aspects of arbitrating disputes concerning Bermuda Form policies, building upon the contents of earlier chapters. A well known feature of the Bermuda Form is its dispute resolution mechanism, namely the requirement for arbitration in London to resolve any dispute between the policyholder and the insurer that cannot be resolved or settled by early negotiation. This requirement for London arbitration is contained in Article VI.N of Form XL004, in the ‘conditions’ section of the Bermuda Form. Article VI.N is a lengthy and detailed clause that contains several subclauses addressing distinct concepts and different aspects of the dispute resolution process and arbitration procedure.
Pre-Hearing Activities
Authors: Scorey David , Geddes Richard , Harris Chris 
Published: July 2018

Abstract
This chapter addresses a range of practical and legal matters relating to the conduct of a Bermuda Form arbitration up to and including the disclosure of documents, i.e. before the service of witness statements in the normal case. This timing distinction is an arbitrary but practical one, since there are sometimes issues on the disclosure of documents that continue after service of witness statements. The chapter addresses the authority of the arbitrators to establish rules and procedures; the fact that there are no pre-set procedures in ad hoc arbitrations under the English Arbitration Act 1996; and how in practice an arbitration in London can be expected to progress. It discusses points such as security for costs, the nature and content of the pleadings, other techniques used in litigation to identify the issues, problems that commonly arise on the disclosure of documents, and the thorny issue of privilege.
The Indian Intervention into (East) Pakistan—1971
Authors: Kritsiotis Dino 
Published: July 2018

Abstract
This contribution discusses the 1971 Indian intervention in east Pakistan. It sets out the facts and context of the crisis, the legal positions of the main protagonists (India and Pakistan), 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 is a precedent for humanitarian intervention.
The Soviet Intervention in Afghanistan—1979–80
Authors: Nolte Georg , Barkholdt Janina 
Published: July 2018

Abstract
This contribution discusses the intervention by the Soviet Union in Afghanistan (1979-1980). After recalling the facts and the context of this intervention, it sets out the legal positions of the main protagonists (the Soviet Union and Afghanistan) and examines the reaction of the international community of States. It then analyses the different grounds invoked by the Soviet Union as justification for the lawfulness of its intervention focusing on the claim of an intervention by invitation. In the final section it is argued that the negative reaction of a large majority of states to the justifications offered by the Soviet Union have led to a confirmation and clarification of the applicable law.
The Falklands/Malvinas War—1982
Authors: Henry Etienne 
Published: July 2018

Abstract
This chapter discusses the application of jus contra bellum in the 1982 Falklands/Malvinas conflict. After briefly setting out the relevant facts and summarizing the positions of the main protagonists of the conflict as well as the UN Security Council and General Assembly and other member states, it analyzes the legal issues raised by the application of Article 2(3), 2(4) and 51 of the UN Charter, before evaluating the precedential value of the case. Special attention is paid to the alleged right to use military force for the recovery of pre-colonial titles, to the thesis of the exhaustion of the obligation to settle international disputes peacefully and to the relationship between collective security and self-defence, especially in light of the cessation of hostilities ordered by UN Security Council Resolution 502 (1982).
South African Incursions into Lesotho—1982
Authors: Reinold Theresa 
Published: July 2018

Abstract
This chapter discusses the legality of South Africa’s incursion in Lesotho in 1982. After describing the facts of the case, it presents the legal arguments of the main protagonists – South Africa and Lesotho - and canvasses the positions taken by the UN General Assembly, the UN Security Council, as well as other important diplomatic players. It then assesses the legality of the intervention and discusses its impact on the progressive development of international law. It concludes that the incursion violated Article 2(4) of the UN Charter and that, in light of the overwhelmingly negative international reaction, the raid could not trigger an expanded reading of the right to self-defense, as was claimed by South Africa.
The US Airstrike Against the Iraqi Intelligence Headquarters—1993
Authors: Starski Paulina 
Published: July 2018

Abstract
This contribution analyses the normative implications of the US raid against the headquarters of the Iraqi Intelligence Service in 1993 in reaction to a foiled assassination attempt against former President Bush. It examines the legality of the operation, its precedential value and its evolutive potential regarding the regime on the ius contra bellum and specifically the right to self-defence. After dissecting the multiple contentious dimensions of the US claim of justification, the article concludes that the raid constituted an illegal ‘armed reprisal’. In light of observable state practice, its precedent-setting nature should not be overstated. However, albeit qualified as an ‘one-off incident’ the US raid did not leave the prohibition on the use of force and the contemporary discourse surrounding it untouched. Hence, it appears essential to demystify its frequently asserted evolutive potential particularly regarding the temporal limitations of Article 51 UN Charter to which this article is dedicated.
The Great African War and the Intervention by Uganda and Rwanda in the Democratic Republic of Congo—1998–2003
Authors: Green James A 
Published: July 2018

Abstract
This chapter considers the Great African War of 1998-2003. The first section sets out the factual context of the interventions of Uganda, Rwanda and (on a much lower scale) Burundi in the territory of the Democratic Republic of Congo (DRC). It also considers the counter-force employed by the DRC and other states acting in support of the DRC’s government. The second section considers the positions of the main state protagonists on both sides, as well as of international organisations and states not involved in the conflict. The third section analyses the legality of the actions of the various states involved, including – but not limited to – a consideration of the 2005 International Court of Justice merits decision in the Armed Activities (DRC v Uganda) case. The ad bellum implications of the conflict stretch beyond that decision, but the proceedings at the Court have become its primary legacy in this context.
The Modern ‘Penalty’ Rule
Authors: Halson Roger 
Published: July 2018

Abstract
Prior to decision of the UK’s Supreme Court in Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis (Consumers’ Association Intervening), (the Cavendish case) in 2015, the principles underlying the law relating to contractual liquidated damages and penalty clauses was last examined by the UK’s highest appellate court over 100 years ago in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd. The breadth and scope of the decision is obvious from the different commercial contexts of the two conjoined appeals in the Cavendish case. This chapter analyses the Supreme Court’s decision in these cases, covering the requirement of breach, applying the test for a penalty, the application of the penalty rule to obligations other than to make payments, and the relationship between the penalty rule and the equitable relief against forfeiture.
Introduction
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva 
Published: July 2018

Abstract
This introductory chapter talks about propriety security taken by creditors from debtors to support the repayment of loans or, much less frequently, the performance of other obligations. The security normally takes the form of a pledge, mortgage, or charge over the debtor’s property. The chapter also considers transactions that on a traditional analysis do not involve the taking of security but that have a similar economic function, in that a party that provides credit retains property rights over assets that in practice are being purchased by the debtor with the credit provided. These transactions involve what is often called ‘vendor credit’ as opposed to ‘lender credit’. The equivalent of security may also be produced by a host of other contractual devices, such as priority agreements, contractual set-off, and liens over sub-freights.
Types of interest
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva 
Published: July 2018

Abstract
This chapter examines how, under English law, there is a major conceptual divide between security interests and absolute interests. In relation to personal property, absolute interests are either ownership or possession. These are both rights in rem: they are enforceable against the whole world, including the liquidator or trustee in bankruptcy of a person against whom the right is asserted. Security interests are also rights in rem, but because they are given as security for an obligation, they are limited by being defeasible upon performance of that obligation. While English law will normally give effect to the intentions of the parties as expressed in the contract, there are some limits to the extent that the parties can change the nature of interests, and it is at this point that the court will recharacterize a transaction or an interest.
Non-Possessory Security
Authors: Beale Hugh , Bridge M G , Gullifer Louise , Lomnicka Eva 
Published: July 2018

Abstract
This chapter analyses the nature of mortgage. It is a non-possessory security whereby the mortgagor transfers ownership to the mortgagee subject to an obligation to retransfer ownership on satisfaction of the underlying obligation. Since equity will enforce the retransfer, the right to it is not personal but amounts to an equitable interest called the equity of redemption. The actual right to redeem can be a legal right, arising expressly from the contract of mortgage: if that legal right to redeem is not exercised, an equitable right to redeem arises. However, since equity will enforce even the legal right to redeem against third parties, the mortgagor has an equitable interest called the ‘equity of redemption’ from the commencement of the mortgage.
ECT and States’ Right to Regulate
Authors: Coop Graham , Seif Isabella 
Published: July 2018

Abstract
This chapter explores the Energy Charter Treaty (ECT) and states' right to regulate. The stability of a host state's regulatory framework is of prime importance for foreign investors, particularly in the energy sector. Changes in the host state's regulatory framework (for example, the reduction or removal of subsidies, or imposition or increase of taxes) can cause harm to the investment. Looking at concluded ECT cases, this chapter analyzes how tribunals have balanced states' substantive obligations to foreign investors under the ECT against their sovereign right to regulate within their own territory. In this context, the chapter touches upon recent cases in the renewable energy sector and discusses the extent to which investment protection under the ECT may lead to a so-called ‘regulatory chill’.