bluuebunny/crossref_metadata_2025_split huggingface dataset:
Expropriation
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew 
Published: June 2017

Abstract
Chapter 8 deals with the protection from the expropriation of an investor’s property. It places this important protection against the background of its historical development before considering the particular formulations now commonly found in the key investment treaties. It then examines, case by case, the circumstances in which arbitral tribunals have found State conduct to be expropriatory, analysing the degree of State interference required to constitute expropriation as well as the kinds of governmental measures that may constitute expropriation; the nature of the claimant’s rights that are capable of being expropriated; and the importance of the distinction between direct and indirect expropriation.
Compensation
Authors: McLachlan Campbell , Shore Laurence , Weiniger Matthew 
Published: June 2017

Abstract
Chapter 9 examines the obligation upon the State committing the international wrong to make reparation through restitution or monetary compensation. It first considers the international law standards of compensation for expropriation before proceeding to discuss the range of options adopted in practice by arbitral tribunals. It then looks at practical application of the main methods of valuation used to determine the appropriate level of compensation, particularly the ‘discounted cash flow’ method, along with the issue of causation in international law. The chapter concludes with an analysis of five topics that are assuming greater practical importance in the approach of arbitral tribunals to remedies: the award of moral damages in exceptional circumstances; the claimant’s duties of mitigation of loss; the potential for the availability of non-pecuniary remedies; interest; and costs.
Interim Relief
Authors: Wolff Reinmar 
Published: June 2017

Abstract
This chapter discusses the interim relief measures issued during arbitration proceedings. Interim measures represent one of the most difficult areas in arbitration as it is characterized by the tribunal’s broad discretion and the need for a grant of enforcement by the state court. In a dispute, whether a party finally achieves its requested legal protection will depend on interim measures of protection: the disclosure of a trade secret, for example, cannot be undone even if an award or judgment later finds that the trade secret was illegal. While state court interim measures per se follow the general rules of civil procedural law at the place of their issuance, they pose a number of challenges at the interface between these general local civil procedure rules and the particularities of arbitration, particularly in cross-border disputes.
International Arbitration: Law and Practice in Switzerland
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio 
Published: June 2017

Abstract
This book expounds the theory of international arbitration law. It explains in easily accessible terms all the fundamental concepts of arbitration, from separability of the arbitration agreement to competence-competence over procedural autonomy, finality of the award, and many others. It does so with a focus on Swiss international arbitration law and jurisprudence, which are among the leading ones globally. Yet, its reach is broader than a commentary of Chapter 12 of the Swiss Private International Law Act as the foundations of international arbitration are common to most arbitration systems nowadays; the discussion contains numerous references to comparative law and developments. In addition to presenting the law extensively, the book discusses the practice of international tribunals. Written by two well-known specialists – Prof. Kaufmann-Kohler being one of the leading arbitrators worldwide and Prof. Rigozzi one of the foremost experts in sports arbitration – the work reflects many years of experience in managing arbitral proceedings involving commercial, investment and sports disputes. That knowhow is the basis for the solutions proposed to resolve the many practical issues that may arise in the course of an arbitration. It also informs the discussion of the arbitration rules addressed in the book, from the ICC Arbitration Rules to the Swiss Rules of International Arbitration, the CAS Code, and the UNCITRAL Rules. While the book covers commercial and sports arbitrations primarily, it also applies to investment arbitrations conducted under rules other than the ICSID framework.
The Law of the Arbitration
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio 
Published: June 2017

Abstract
This second chapter starts by clarifying the concept of ‘law of the arbitration’ or lex arbitri, underscoring that any arbitration needs to be governed by a national law of arbitration. The chapter then examines how to determine the national arbitration law that governs a specific arbitration by analysing the scope of application of the national arbitration law, especially Chapter 12 of the Private International Law Act (PILA), and distinguishing between international and domestic arbitrations. In this context, the chapter addresses the legal significance the seat of the arbitration, the practical considerations that should guide the selection of the seat, as well as the possibility for parties to arbitrations seated in Switzerland to opt in or out of the (international or domestic) regime governing the arbitration. Finally, the chapter describes the main features of national arbitration laws using Chapter 12 PILA as an example.
The Arbitration Agreement
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio 
Published: June 2017

Abstract
This chapter discusses the notion, content, and effects of the arbitration agreement, defined as an agreement to submit to arbitration all or certain disputes that have arisen or may arise between the parties in respect of a defined legal relationship, whether contractual or not, which may be in the form of a clause in a contract or of a separate ‘submission agreement’ (compromis arbitral). The chapter examines the principle of separability and the requirements for the validity of the arbitration agreement, namely arbitrability, written form, and substantive validity, including the agreement’s formation, interpretation, extension to third parties, and termination. Finally, it discusses to what extent defects of the arbitration agreement can be remedied by conduct.
The Jurisdiction of the Arbitral Tribunal
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio 
Published: June 2017

Abstract
Building upon the discussion on the validity and effects of arbitration agreements in chapter 3, this chapter examines the rules governing the jurisdiction of arbitral tribunals. It addresses a number of questions arising from the arbitral tribunal’s and the courts’ review of arbitral jurisdiction, from the implications of the principle of competence-competence to jurisdictional objections and the effects of parallel proceedings. Special attention is given to topics such as the so-called negative effect of competence-competence, the arbitration-specific lis pendens rule established in Article 186(1) bis PILA and the res judicata effect of prior arbitral or judicial decisions on jurisdiction. The chapter’s final section discusses anti-suit and anti-arbitration injunctions.
The Law Applicable to the Merits and the Award
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio 
Published: June 2017

Abstract
Before describing the main features of an award, this chapter discusses the determination of the law governing the merits of the dispute or lex causae. It considers the role of party autonomy in this respect and examines the scope and content of the potentially applicable substantive laws that may be chosen by the parties or selected by arbitral tribunals, from national laws to transnational rules of law (the so-called lex mercatoria) over trade usages and ex aequo et bono principles. It also discusses the relevance and impact of international public policy and overriding or internationally mandatory rules. Turning to the award, the last part of the chapter sets out a typology of arbitral decisions, addresses the required form and content of awards and discusses the deliberation process as well as issues such as institutional scrutiny, dissenting opinions, and the notification, publication, and effects of the award.
The Regulation of Payment Services
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter focuses on the EU's Payment Services Directive. It discusses the implementation of the Payment Services Directive; the meaning of the term ‘payment service’; the authorization requirement for entities that provide payment services; the different types of available authorizations and applicable conditions; ‘conduct of business’ requirements for the protection and information of service users; the rights and obligations of payment institutions and service users; rules on access to payment systems; powers of the UK Financial Conduct Authority (FCA); and the parallel development of the Single Euro Payments Area (SEPA).
Capital Adequacy, Liquidity, and Large Exposures
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter examines the current capital adequacy framework and associated provisions designed to ensure that a bank's business is managed on a prudent basis. It also considers other closely allied topics which may affect the stability of the banking system, namely, liquidity and large exposure requirement. Topics discussed include the origins of the Basel Standards; Basel 2 and Basel 3 rules; the calculation of risk-weighted assets; the nature and effect of credit risk mitigation techniques; market risk; operational risk; and reform on Basel 2.
Money Laundering Legislation
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter considers the impact of anti-money laundering and anti-terrorist financing legislation on a bank's business. It provides a broad international background to anti-money laundering initiatives. It also gives an overview of the UK regulatory environment. The chapter then explains customer identification requirements; the substantive money laundering offences created by the Proceeds of Crime Act 2002; anti-terrorism legislation; and the civil consequences of the anti-money laundering framework.
UK Bank Mergers and Business Transfers
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter considers Part VII of the Financial Services and Markets Act 2000 (FSMA), which introduced a new regime for the transfer of a banking business, together with broader legislation designed to facilitate cross-border mergers. It discusses the effect of Part VII; the scope of Part VII; procedures under Part VII; the effect of court sanction; the requirement for ring-fencing; the special rules applicable to ring-fencing transfer schemes; mergers and transfers of building societies and mutuals; and cross-border mergers regulations.
Bank Rescues and Financial Stability in the United Kingdom
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter considers recent UK legislation to deal with bank insolvencies and issues of systemic stability. It discusses the collapse of Northern Rock in 2007; the bespoke legislation — the Banking (Special Provisions) Act 2008 — introduced to deal with the nationalization of Northern Rock; the ensuing difficulties encountered by larger institutions; the Banking Act 2009; the terms of the government's asset protection scheme; and the Bank of England's role as ‘lender of last resort’.
Cross-Border Reorganization and Winding Up of Banks
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter focuses on the Directive of the European Parliament and of the Council on the Reorganisation and Winding up of Credit Institutions. It discusses the scope of the Directive; the impact of the Directive in the context of the reorganization or winding up of an EU credit institution; the consequences of the Directive in relation to the insolvency of institutions established outside the European Economic Area (EEA); and the assistance which the English courts may provide to the liquidator or receiver of a foreign financial institution.
Charges Over Receivables
Authors: Proctor Charles 
Published: June 2017

Abstract
A lender may wish to take security over debts owing, or to become owing, to its borrower. Often, a charge over the benefit of book debts owing to the borrower will simply form a part of the standard security package, and will be included as a part of a fixed and floating charge over the entire assets and undertaking of the borrower. This chapter discusses the essential validity of security over book debts; charge over foreign receivables; and the priority of successive charges over receivables.
Freezing Injunctions and International Banks
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter examines the position of a bank which is notified of the existence of a freezing injunction; it considers at the scope of its responsibilities and liabilities. The discussions cover the nature and effect of a freezing injunction; the action to be taken by a bank on receipt of notice of a freezing injunction; the impact of the injunction on the relationship between the bank and its customer; the relationship between the bank and the applicant for the injunction; the relationship between the bank and certain third parties; and the territorial issues raised by orders of this kind.
Financial Products as Investments under Bilateral Investment Treaties and Other Multilateral Instruments with Consents to Arbitration
Authors: Rivkin David W , Friedman Mark W 
Published: June 2017

Abstract
This chapter discusses the status of financial products as qualifying investments under bilateral and multilateral treaties that contain protections for foreign investment, including the signatory States' consent to submit investor-State disputes to international arbitration. It first describes how an investor and a State consent to proceed to arbitration under such a treaty. Second, it discusses how a qualifying investment is generally defined for purposes of investor-State treaty arbitration. Third, it addresses significant treaty and case law developments relating specifically to financial products — such as loan agreements, sovereign bonds, and derivatives — as qualifying investments. These developments shed light on the key questions of whether an investment exists; whether the investment was made in the territory of the host State; and whether the investment was made by the claimant investor. The chapter concludes with comments on the trend favouring inclusion of financial instruments within the definition of investment.
Remedies—Interim Measures
Authors: Collins Lawrence , Dhar Siddharth 
Published: June 2017

Abstract
This chapter discusses the power of a tribunal to grant interim relief and the standards applicable to the grant of interim relief. Parties may seek procedural interim protections in international arbitration to prevent the arbitral process from being undermined by a recalcitrant party, or to further the efficient disposition of the dispute. Common procedural protections that might be available from an arbitral tribunal include: anti-suit injunctions, to restrain a party to the arbitration agreement from bringing or pursuing competing proceedings in breach of the arbitration agreement; orders to protect the confidentiality of the proceedings; and orders to preserve evidence or to disclose important or relevant documents.
The Approval and Regulation of Individuals
Authors: Morris Simon 
Published: June 2017

Abstract
This chapter concerns the approval and the regulation of individuals—specifically the senior management and customer-facing staff of a firm. Following the collapse of institutions such as Northern Rock (2007), it was agreed that the regulator should engage more intensively with firms over senior management’s competence and technical skills. This chapter considers the requirement for approval, the application process for approval, the possibility of withdrawal of approval, and the penalty for performance of a controlled function without approval. It then considers the Financial Conduct Authority’s (FCA) power to prohibit an individual from performing certain functions, or to take disciplinary action against an individual guilty of misconduct. Finally, the FCA and Prudential Regulatory Authority’s (PRA) ability to make rules of conduct, and the application of the Statements of Principle and Code of Practice for Approved Persons (APER), are discussed.
Supervision and Other Powers
Authors: Morris Simon 
Published: June 2017

Abstract
This chapter examines the topic of Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) supervision. Supervision is the regulatory function of seeking to ensure that firms are complying with the regulators’ principles, rules, and other policies. Under the FCA and PRA self-regulation and light-touch supervision have been rejected in favour of approaches that ensure the resilience of the financial system. This chapter studies the process by which the regulators review authorised persons’ activities to check for compliance with their standards, together with five further regulatory processes or powers: change in control, powers over parent undertakings, short selling, the regulation of two specific market segments, and insolvency.
Bank Resolution and Bank Groups
Authors: Gleeson Simon , Guynn Randall 
Published: June 2017

Abstract
This chapter looks at how the structure of bank groups is factored into the resolution process. In analysing the resolution of banks and other legal entities, a focus on the legal entities alone is a form of false consciousness. Instead, the focus needs to be on resolving the overall financial enterprise of which the bank is a part. By focusing on resolving groups instead of individual legal entities, financial regulatory authorities around the world have developed the single-point-of-entry (SPE) resolution strategy, which has been widely accepted as the most promising solution to the too-big-to-fail problem. When applied to a banking group with a holding company at the top and operating subsidiaries at the bottom, only the top-tier holding company would be put into a bankruptcy or resolution proceeding. The holding company’s assets would then be used to recapitalize the operating subsidiaries, perhaps pursuant to secured capital contribution agreements, and keep them out of their own insolvency or resolution proceedings. The recapitalized group would then be stabilized and its residual value distributed to the failed holding company's stakeholders in satisfaction of their claims.
Fundamentals of Resolution Authority
Authors: Gleeson Simon , Guynn Randall 
Published: June 2017

Abstract
This chapter looks at the history and fundamental elements of resolution authority as it has been developed and used in the United States. The goal of resolution authority in the United States has been to deal with failed banks and other financial institutions in a manner that stems runs, avoids contagion and preserves critical operations, the same goal as deposit guarantee schemes. First introduced in the United States in 1933 as part of the deposit insurance programme for banks, resolution authority was originally little more than the method by which the Federal Deposit Insurance Corporation honoured its obligations to insured depositors before evolving to its current state. Resolution authority, as conceived in the United States, has two principal components—the core resolution powers and the claims process. The core resolution powers consist of the authority to quickly separate the assets and viable parts of a failed bank's business (the good bank) from its capital structure liabilities (the bad bank), so that its critical operations are preserved and runs and contagion are avoided. It is virtually always completed in the United States over a weekend commonly known as resolution weekend. The claims process involves determining the validity and amount of the claims of individual holders of capital structure liabilities in accordance with ordinary principles of due process and distributing the residual value of the good bank to such holders in satisfaction of their claims. The claims process typically takes at least six to nine months to be completed in order to comply with ordinary principles of due process for potential claimants.
Resolution Planning
Authors: Gleeson Simon , Guynn Randall 
Published: June 2017

Abstract
This chapter describes the resolution planning process in the United States for liquidating, reorganizing, or otherwise resolving systemically important financial institutions that have reached the point of non-viability. Resolution is the last stage along the full continuum of contingency planning from risk management, to early remediation, to recovery planning, to resolution planning, that is sometimes referred to as a ‘living will’. Activating a resolution plan would be a last resort, when various ex ante solutions designed to reduce the likelihood of failure have been unsuccessful. Preparing and regularly updating a resolution plan is required under Title I, section 165(d) of the Dodd‒Frank Act, which applies to all bank holding companies (BHCs) and foreign banking organizations with assets of $50 billion or more, as well as any non-bank financial institution that has been designated as systemically important.
Resolution in the European Union
Authors: Gleeson Simon , Guynn Randall 
Published: June 2017

Abstract
This chapter analyses the Bank Recovery and Resolution Directive and how it is applied to banks and investment firms alike. The BRRD establishes an improved resolution framework to be implemented among the member states of the European Union. The scope of its application is broader than most bank resolution regimes, since in the aftermath of the 2008 financial crisis, it became abundantly clear that the failure of an investment firm could do just as much damage to the financial system as the failure of a deposit taking bank. The chapter considers the legal framework governing the interaction of the EU Resolution Fund, the European Stability Fund, and the contributions of member states in resolving an EU bank.
United Kingdom—General Approach
Authors: Gleeson Simon , Guynn Randall 
Published: June 2017

Abstract
This chapter explains how the UK bank resolution is managed, as the United Kingdom is unusual amongst EU countries in a number of ways as regards resolution. In particular, the UK authorities have set out in their approach documents a detailed plan as to how resolution powers might be used in different circumstances, and these plans are described and analysed. The basis of the approach is the division of bank resolutions into three phases: the stabilization phase, in which the provision of critical economic functions is assured, either through transfer to a solvent third party or through bail-in to recapitalize the failed firm; the restructuring phase, during which any necessary changes are made to the structure and business model of the whole firm or its constituent parts to address the causes of failure; and the exit from resolution, where the involvement of the resolution authority in the failed firm and any successor firms comes to a close. The chapter also considers the special regimes—the bank insolvency regime, the bank administration regime, and the investment firm special administration regime.