bluuebunny/crossref_metadata_2025_split huggingface dataset:
Environmental and Social Disputes
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
This chapter examines the principal manifestations of social and environmental risks facing mining companies, emphasizing those resulting in international arbitration disputes. Environmental disputes can arise when mining companies fail to abide by environmental norms and regulations; or when these norms or regulations changes during the life of a mining project. Mining companies responsible for environmental contamination or pollution may be responsible for the cleanup of pollution to land or water supplies and to compensate victims of pollution. It is therefore imperative for mining companies to identify the environmental risks associated with their operations and to ensure that they strictly comply with applicable regulations. Social disputes may arise when two or more stakeholders in a project disagree about the material (economic) or immaterial (political, strategic, moral, religious, environmental, etc.) implications of access to and use of natural resources; it is very important to distinguish between discrete conflictual episodes that will necessarily occur in connection with large natural resource projects, and structural differences between stakeholders which can lead to the project’s demise.
Advocacy in International Mining Disputes
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
Parties involved in an international mining dispute will want to make sure they are not only adequately represented by counsel, but have the best advocates possible. The effective presentation of the client’s claims and/or defences by counsel generally includes written advocacy (pleadings, memorials, and post-hearing submissions, if any); conveying the client’s position (i.e., “telling the story”) through written witness testimony or examination of the other side’s witnesses; and putting forth expert testimony on topics where such testimony may be necessary to help the arbitral tribunal understand key issues including, almost invariably, damages. This chapter discusses key advocacy concepts as they relate to mining disputes, with a particular focus on damages and valuation issues relevant to disputes in the mining sector.
Preserving Confidentiality in International Mining Disputes
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
International mining disputes often involve highly sensitive technical and financial information that parties may want to protect from those outside of the dispute process and, indeed, even from the other side in the dispute process itself. While most arbitral rules contain general provisions regarding privacy, they do not provide a clear framework for how sensitive or confidential information is to be protected from disclosure. This is largely because it is for the parties to agree upon how confidential information is to be protected or, if necessary, for an arbitral tribunal to decide based upon an application of a party to protect certain information after both sides have had an opportunity to be heard. This chapter discusses document production in international arbitration; the strategic importance of maintaining confidentiality in international mining disputes; and procedural devices to preserve confidentiality in international mining disputes.
The Amicable Resolution of International Mining Disputes
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
For many executives and other participants in the mining industry, litigation or arbitration is an avenue of last resort; the resolution of disputes is a priority. This chapter focuses on the informal resolution of international or domestic disputes, often referred to as alternative dispute resolution (ADR). The various forms of ADR differ from international arbitration in that they provide for a non-binding means to assist the parties in attempting to reach an amicable consensual resolution of the dispute. While mediation and conciliation are the most widely used form of non-arbitration ADR, parties also use other forms of ADR such as expert determinations, mini-trials, and neutral evaluations. One of the incentives for parties to amicably resolve an intentional mining dispute is that it gives them the opportunity to restore or improve the original bargain. The final section of the chapter discusses the timing and procedural steps of ADR.
The Significance of Commercial Customs, Usages, and Practices in the Resolution of Commercial Disputes
Authors: Thomas Rhidian 
Published: June 2017

Abstract
This chapter examines the related but distinct concepts of practice, custom, and usage; and how and the extent to which they ‘form part of the fabric’ of shipping law. It suggests that although it might be more accurate to speak of commercial custom, usages, and practices as an influence on the development of commercial law rather than as a source, they are very clearly part of the fabric of commercial jurisprudence. Their contribution may have diminished as the practice of domestic and international commerce has become more closely managed, professionalized, bureaucratic, and harmonized, with a proliferation of standard form documentation, and the promulgation of unified rules of practice. But their potential influence and contribution remains. These concepts are of equal application to litigation and arbitration, and the same legal framework and preconditions to validity apply, as also do the rules relating to burden and standard of proof.
The Modern International Conventions Governing the Carriage of Goods by Sea
Authors: Sturley Michael F 
Published: June 2017

Abstract
The two most recent international conventions governing the carriage of goods by sea—the Hamburg Rules and the Rotterdam Rules—include provisions that limit the enforcement of arbitration clauses in international commercial transactions. This chapter examines the arbitration provisions of those two recent conventions, explaining the theory behind their unusual approach. Although the arbitration provisions may seem illogical when considered in isolation, when examined in context they form a sensible part of a larger regime. Critics may question the policy choices that have been made in crafting those regimes, but those choices were largely driven by commercial considerations as affected stakeholders agreed on a compromise solution to a practical problem. In the end, the arbitration provisions are a sensible way to give effect to those policy choices.
Maritime Arbitration in Spain
Authors: Alba Manuel 
Published: June 2017

Abstract
This chapter examines the ‘delocalization’ of shipping disputes resulting from the widespread use of standard arbitration clauses channelling disputes to major arbitration centres, even if those disputes involve parties having no connection with such centres. It argues that such delocalization deprives certain countries or regions of the progressive accrual and consolidation of a transnational maritime law. Prior to the recent overhaul of Spanish maritime arbitration, the completely out-dated state and scarce usefulness of Spanish domestic maritime law had among its causes the lack of any vibrant maritime arbitration. The experience of Latin-American states likewise suggests that the state of the law somehow goes hand in hand with the existence of minimally specialized and satisfactory dispute resolution methods in the maritime field. These conclusions emphasize the importance of arbitration to the development of substantive law in a highly globalized field such as shipping.
Maritime Arbitration in China
Authors: Yu Guo 
Published: June 2017

Abstract
This chapter discusses recent developments in the resolution of maritime disputes in China. It explores the strengths and weaknesses of the litigation and arbitration services provided in arbitration centres on the Chinese mainland. Efforts to strengthen the appeal of arbitration in China have borne only modest fruit. This is due to a number of factors, including the wider accessibility of courts as compared to arbitration centres; the default options in standard form contracts adopted by BIMCO and others, which tend to refer to the centres in London, New York, and Singapore; and the lack of an ad hoc option in Chinese arbitration services. The tendency to arbitrate abroad can have significant consequences for Chinese companies, who have to make their case in a foreign language, following an unfamiliar procedure, and at a much higher cost than they would have to bear locally. The chapter concludes by proposing ways to address these issues.
The Contribution of Arbitration to the Law
Authors: Rix Bernard 
Published: June 2017

Abstract
This chapter reflects on the overall role of a maritime arbitrator. It emphasizes that the process of arbitrator selection tends to focus on their knowledge, experience, and expertise. They also have the duty to reason their awards—a duty owed not just to the losing party but perhaps more widely if one wishes to speak of a genuine transnational maritime law. The corollary of this is the need for transparency to ensure their accountability. While this might seem to conflict with the principle of confidentiality, this is probably because this principle is misunderstood: hearings should continue to be held in private to protect the confidentiality of evidence, however it does not necessarily follow that awards (appropriately anonymized) should be kept confidential ‘for all time’. As for the autonomy of the lex maritima itself, the chapter argues that one must not ignore its intimate and mutually enriching relationship with national laws.
The Scope of MiFID II
Authors: Lieverse Kitty 
Published: June 2017

Abstract
In this chapter the main changes to the scope of MiFID in MiFID II are listed and discussed. MiFID II changes the scope of the supervision of investment firms and business related to this industry. The revision and—in some cases—extension of the definition of ‘financial instrument’ affects the scope of MiFID II supervision. Advisory and distribution services for structured deposits by investment firms and credit institutions have been brought within the scope of MiFID II. The scope of some exemptions to MiFID II has been revised. The broader scope of MiFID II has an effect beyond the applicability of MiFID II regulation: the prudential requirements are as a starting point linked to the MiFID II qualification, although with specific exemptions. Linking prudential supervision to the MiFID II qualification, rather than to the prudential risk profile of the underlying services and activities, is subject to review and reconsideration.
Governance of Investment Firms Under MiFID II
Authors: Binder Jens-Hinrich 
Published: June 2017

Abstract
In response to widespread concerns about the quality of governance arrangements in financial intermediaries as a source of systemic risk, the revised framework for the regulation of investment services in the EU has reinforced the governance requirements that have been in place for a long time, and increased significantly their complexity and intensity. Investment firms, subject to both the CRD IV and the MiFID II, must now comply with numerous regulatory requirements. While the underlying policy—to address systemic implications of financial intermediation irrespective of the business model—is consistent, the equal treatment of banks and investment firms under broadly identical regulatory frameworks, albeit with additional requirements imposed by MiFID II, is nonetheless questionable, in view of the diversity of existing business models and activities. Starting with an analysis of the underlying history and policy of the new approach, this chapter seeks to identify potential weaknesses and implications for its implementation.
The Overarching Duty to Act in the Best Interest of the Client in MiFID II
Authors: Enriques Luca , Gargantini Matteo 
Published: June 2017

Abstract
This chapter analyses the scope, contents, and implications of MiFID II’s new framework as regards the duty to act in client’s best interest. It considers the duty as an autonomous source of obligations for investment firms and as a guidance principle for both EU bodies in charge of implementing MiFID II and judges and supervisory authorities interpreting more specific duties. It also discusses the implications of extending the duty to intrinsically at arm’s length activities such as dealing on own account and self-placement.
Independent Financial Advice
Authors: Giudici Paolo 
Published: June 2017

Abstract
The quickest policy indication for increasing households’ trust in financial markets, to the benefit of the economic system, seems to be the offer of professional financial advice on affordable terms. The problem is how to convince investors to pay for advice, and how to protect investors who do not want to pay for advice from conflicted advice and from hard sell under the guise of personal recommendation—an area where MiFID I has not performed well. MiFID II’s answer is to pose a new set of information duties on financial advisors with the clear intention of nudging investors towards independent, fee-only advice. The intention is good. However, the new regime raises many important issues, including the ambiguity of the ‘independent’ suit, the interaction between the product governance regime and the suitability assessment, the regulatory inconsistency that it is emerging between investment advice and portfolio management, and the potential costs of the written statement of suitability.
MiFID II/MiFIR’s Regime for Third-Country Firms
Authors: Busch Danny , Louisse Marije 
Published: June 2017

Abstract
This chapter examines the scope of MiFID II/MiFIR’s regime for third-country firms. It explains MiFIR’s regime for third-country firms and MiFID II’s regime for third-country firms. It discusses the friction between both regimes in case a third-country firm provides investment services to eligible counterparties, professional clients, and retail investors. Next, it takes a detailed look at the initiative test. The conclusion sets out the provisions of MiFID II/MiFIR’s third-country regime.
Commodity Derivatives
Authors: Alibrandi Antonella Sciarrone , Grossule Edoardo 
Published: June 2017

Abstract
This chapter considers the MiFID II/MiFIR regulation of the commodity derivatives sector, one of the areas most affected by the financial markets reform process, particularly the MiFID I review. It analyses the position limits regime, and the new rules amplifying the regulatory and supervisory powers of ESMA, of national competent authorities (NCAs) and trading venues, which introducing a range of interventionist tools that can affect operators’ investment business. The chapter also stresses the need to introduce a specific regulation depending on different commodity derivatives. The main provisions and the specific technical standards are analysed, paying particular attention to controversial measures such as the definition of the ancillary activities, the methodology to calculate the position limits, and the authorities’ new powers.
Algorithmic Trading and High-Frequency Trading (HFT)
Authors: Conac Pierre-Henri 
Published: June 2017

Abstract
This chapter analyses the MiFID II rules on algorithmic trading (AT), including high-frequency trading (HFT). The author argues that AT raises serious issues of volatility and systemic risk, and HFT issues of systematic front-running of investors. However, opinions are divided on the benefits and risks of these techniques, especially HFT. MiFID II takes a technical approach mostly focused on prevention of a repeat of the 2010 ‘Flash Crash’ with provisions on market abuse. The ESMA 2012 Guidelines remain the most effective regulation to frame the development of HFT, able to tackle market developments with relative speed. However, with implementation of the directive still far away, prosecution of market abuse among HFT traders by legislators and supervisors could lead to a de facto ban of HFT in some Member States. However, the author argues that supervisors would need to allocate scarce resources to it, at great cost, and only the most motivated supervisors will do so.
MiFID II and Equity Trading
Authors: Fox Merritt B 
Published: June 2017

Abstract
This chapter provides a U.S. perspective on the MiFID II equity trading regulation. The author concludes that a comparison of the EU and U.S. market structure rules, and the concerns that generated them, suggests four three key differences. Relative to the United States, the EU shows (i) more concern with having an effective price formation process, (ii) more concern with the possibility that HFTs contribute to price instability and engage in market abuse, (iii) less concern with promoting competition among trading venues. These differences have characterized the MiFID I era and are reflected in MiFID II as well, although MiFID II does evince somewhat greater concern about competition among trading venues than was true before.
Public Enforcement of MiFID II
Authors: Gortsos Christos V 
Published: June 2017

Abstract
This chapter systematically assesses the provisions of MiFID II (Articles 67-88) on supervision, enforcement, and cooperation by competent authorities. It addresses the role of Member States’ competent authorities within the MiFID II regime, with particular emphasis on the competent authorities’ supervisory powers, their power to impose administrative sanctions and measures, as well as criminal sanctions, and redress procedures. It considers cooperation arrangements between Member States’ competent authorities, the obligation to cooperate with the ESMA, and cooperation with third countries. Finally, these rules are briefly assessed on the basis of three elements pertaining to financial supervision, which, in the author’s view, are essential for the preservation of financial stability and the attainment of other goals underlying (public) capital markets law, and which are addressed by MiFID II’s provisions: micro-prudential supervisory effectiveness, the efficient and unobstructed exercise of competent authorities’ sanctioning powers, and the effectiveness of supervisory cooperation arrangements.
Explaining Arbitration Law
Authors: Park William W 
Published: June 2017

Abstract
This chapter considers the challenges in explaining arbitration law. Unlike most fields of law that provide guidance on how courts decide cases, arbitration law tells judges when not to decide disputes, in deference to private decision-makers selected by the litigants. However, if one side regrets a decision to arbitrate, or the parties diverge about what the arbitration clause covers, courts may be asked to assist in implementing the arbitration agreement or resulting award. At such moments, arbitration law normally includes two limbs: first, to hold parties to their bargains to arbitrate; second, to monitor the basic integrity of the arbitral process, so the case will be heard by a fair tribunal that listens before deciding, stays within its mission, and respects the limits of relevant public policy. The chapter then discusses case studies that illustrate two issues that persistently vex courts and commentators: allocating tasks between judges and arbitrators; and determining what law applies to an arbitration clause.
How Easy is it not to Take Adequate Care of the Proper Expectations of the Parties?
Authors: Rubino-Sammartano Mauro 
Published: June 2017

Abstract
This chapter argues that arbitrators must pay sufficient attention to the legitimate expectations of parties. In line with this, it surveys possible-or even involuntary-breaches of the expectations of the parties. It discusses common problems such as not allowing sufficient time to the proceedings; not allowing the parties to present their case adequately; the temptation to rush; effects of disliking counsel; and lack of a full de novo review. It concludes that the approach of many arbitrators is to render an award which would produce for them respect or even admiration, or the wish, at least in Continental Europe, to write a brilliant intellectual treatise. However, this is not an expectation of the parties. While some parties just wish to always win, in particular when they know they are wrong, the innocent party, the honest man or woman, expects that the arbitrator will decide the dispute with diligence and humanity.
Silent Talk
Authors: Young Michael 
Published: June 2017

Abstract
Language is a fundamental part of legal practice: without it, lawyers cannot function. But despite its importance, the applicable language is addressed rarely in a dispute resolution clause. Given its potent impact, the parties often disagree over which language (or languages) should apply where the clause is silent. This chapter considers the tools available to an arbitral tribunal to identify the language of the arbitration and to maintain the applicable language of the proceedings, while affording the parties flexibility in how they present their cases and ensuring that the matter proceeds efficiently. As with all discretions, this exercise must be carried out properly and fairly. In reaching their decisions, tribunals should not be confined by strict presumptions or priorities; they must assess all of the available indicia, weighing each element in the balance.
Is International Arbitration Becoming Too Confrontational and Counter-Intuitive? And Some Guidelines as to How Not to Irritate a Tribunal!
Authors: Heilbron Hilary 
Published: June 2017

Abstract
International arbitration is becoming increasingly fractious, ill-tempered, and combative, as each side deploys tactics to argue its case. All too frequently, lawyers lose sight of the fact that it is the tribunal whom they need to win over to their cause. Aggravating a tribunal, whether by aggressive and combative advocacy or by an ill-presented case, is counter-productive. This chapter addresses the causes of this growing tendency and how to deal with it from the perspective of both oral and written advocacy and presentation. It suggests that the real problem is a developing culture of using the arena of arbitration as a stage to play out the parties’ anger against each other, using their lawyers as the means to do so. As a response, tribunals, in the first procedural order for the hearing, or appended to it, need to lay down some basic rules.
Ethics in Arbitration
Authors: Hacking Lord , Berry Sophia 
Published: June 2017

Abstract
The problem of party misconduct in international arbitration is on the rise, as evidenced by the level of attention this issue has attracted from practitioners and institutions, as well as scholars, at recent conferences, and in articles, books, and blog posts. This chapter first explores the forms of party misconduct and the steps arbitral institutions and practitioners need to take in order to curb misconduct. Party misconduct can include: attempts to stop hearings progressing; abuse of the document disclosure process; discourteous behaviour; acts to surprise the opposition; applications for anti-arbitration injunctions and other approaches to national courts; issues of ex parte communications; and witness tampering. The remainder of the chapter considers the means by which arbitrator misconduct should be tackled.
Cross-Examination of Fact Witness Statements in International Arbitration
Authors: Newman Lawrence W 
Published: June 2017

Abstract
This chapter discusses cross-examination of witness statements in international arbitration. The direct testimonies of witnesses in international arbitration are increasingly being presented in the form of their written statements-called ‘witness statements’. Some witness statements can be fairly innocuous, perhaps referring to or commenting on documents in the record. Others, however, not only touch on certain subject-matter areas, leaving out areas that are harmful to a party’s case, but they may also distort accounts of certain meetings or other events, or even lie about them. Such statements, if left alone and taken seriously by the tribunal, have a deleterious effect on the case of the opposing party, and must therefore be dealt with by assessing the ways in which a harmful statement by a fact witness may be responded to.