bluuebunny/crossref_metadata_2025_split huggingface dataset:
Aspects of the Early Cases
Authors: Parra Antonio R 
Published: June 2017

Abstract
This chapter focuses on key aspects of the cases brought to ICSID in its first two decades. Section I examines the ways in which successive Secretaries-General handled the registration of requests to institute proceedings and, in particular, their “screening” of such requests. Patterns in the constitution of the conciliation commissions and arbitral tribunals are traced in Section II, as are the first experiences of the Centre with the resignation and challenge of arbitrators. Section III discusses the distinctly pragmatic approaches of arbitral tribunals in this period to jurisdictional issues, especially the requirement of consent. There was controversy in the early 1980s as to the availability, in the context of an ICSID case, of court-ordered provisional measures. The controversy is reviewed in Section IV, which also looks at the first instances of arbitral provisional measures under Article 47 of the ICSID Convention. Section V examines the underlying interpretations of Article 42(1) of the Convention. Three ad hoc committee decisions rendered under Article 52 of the Convention are the subject of Section VI. Most of the few court proceedings for the enforcement of ICSID awards took place in these early years; the proceedings are reviewed in the concluding Section VII.
Conflicts of Interest
Authors: Grundmann Stefan , Hacker Philipp 
Published: June 2017

Abstract
This chapter discusses conflicts of interest in services regulated by MiFID, mainly with respect to the MiFID II regime, but taking the abundantly discussed MiFID I regime as a background, because the basic structure and many single solutions remain broadly unchanged. It combines legal and social science theories with an analysis of substantive law solutions and presents them with an evolutionary perspective, focusing on detailed analysis of the new regime. It first exposes the foundations—the most important theoretical approaches to a regulation of conflicts of interest and the legislative bases and history—and then proceeds to analyse the five different stages and situations step by step. It begins by characterizing the type of approach taken in the legislative regime, then moving to the main features of innovation in the transition from MiFID I to MiFID II, and finally discussing in greater detail the substantive solution found in MiFID II.
Inducements
Authors: Silverentand Larissa , Sprecher Jasha , Simons Lisette 
Published: June 2017

Abstract
This chapter discusses the MiFID II inducement rules. During the negotiations on MiFID II, it became clear that inducements were a topic on which there was no easy agreement between the Member States. While certain Member States pressed for a total ban on inducements, others were unwilling to impose such strict rules. The political compromise allowed for deviating rules by those Member States requesting stricter rules. This may seem counter to the European legislator’s general approach to limit Member State options by creating ‘single rulebooks’ and greater regulation. The authors express disappointment that, on such an important topic, the European market will continue to have deviating rules per Member State. The Dutch legislator has already indicated that it will make use of this; according to the authors, other Member States where stricter rules apply may do likewise, leaving an un-level playing field for investment firms regarding the use of inducements.
Agency and Principal Dealing under MiFID I and MiFID II
Authors: Busch Danny 
Published: June 2017

Abstract
This chapter examines whether allowing the extent of the protection afforded to an investor under MiFID to be largely dependent on the distinction between dealing on own account on the one hand and trading on behalf of the client (and other forms of investment service) on the other is justified. The author submits that it is not. The distinction between dealing on own account and trading on behalf of the client is tenuous, arbitrary and easy to manipulate. According to the author, MiFID II provides no practicable criterion either, and resorts to the artifice of reclassifying certain types of dealing on own account as acting on behalf of the client. Finally, both the UK Government and the Dutch Supreme Court take the view that duties of care must also apply where an investment firm acts solely as an investor’s contractual counterparty.
Governance and Organization of Trading Venues
Authors: Ferrarini Guido , Saguato Paolo 
Published: June 2017

Abstract
This chapter shows that MiFID II brings modest changes to trading venues in the EU: newly introduced Organized Trading Facilities (OTFs) will be the reference venues for a significant portion of derivatives trading; and regulated markets (RMs) and Multilateral Trading Facilities (MTFs) regimes have been aligned, with specific provisions to strengthen the governance of venues and operators. However, trading venues which have developed into Financial Markets Infrastructures (FMI) groups providing trading and post-trading services test the capacity of the current regime—and MiFID II itself—to oversee their activities and guarantee competition and stability. MiFID II does not explicitly take FMI groups into account; only three sets of rules address some of their potential risks. The authors conclude that this regulatory gap might threaten financial market stability, and regulators should consider a regulatory intervention, such as the experience of the regulatory and supervisory colleges of CCPs under EMIR and the regulatory framework of the financial conglomerates directive.
EU Financial Governance and Transparency Regulation
Authors: Moloney Niamh 
Published: June 2017

Abstract
This chapter outlines the main features of the extensive new transparency regime which will apply to trading in a wide range of asset classes under MiFIR. By contrast with MiFID I, which limited transparency requirements to the equity markets and which contained extensive exemptions and waivers, MiFIR adopts a maximalist approach to transparency. The most extensive transparency requirements apply to the three forms of ‘trading venue’ for multilateral trading which are established under the MiFID II/MiFIR venue classification system (RM, MTF and OTF). Bilateral/OTC trading between counterparties is subject only to post-trade transparency requirements. Overall, MiFIR’s regulatory design has been shaped by a driving concern to protect liquidity, particularly in non-equity asset classes. Indeed, exemptions, waivers, suspensions, and calibrations, designed to protect liquidity, are a recurring feature of the new transparency regime.
MiFID II In Relation to Other Investor Protection Regulation
Authors: Colaert Veerle 
Published: June 2017

Abstract
The study of the interaction between different pieces of EU financial legislation becomes ever more important—and difficult. In this contribution the author clarifies the relationship between the MiFID II and several other closely related directives, such as the Insurance Distribution Directive, the PRIIPs Directive and the UCITS Directive. The analysis reveals numerous inconsistencies and interpretation difficulties. The author argues that while some of the shortcomings are inherent to the EU piecemeal approach, other problems should and could have been avoided, by adopting a holistic approach of financial regulation and supervision.
Shadow Banking and the Functioning of Financial Markets
Authors: Wymeersch Eddy 
Published: June 2017

Abstract
This chapter considers the financial activity taking place outside the traditional and often unregulated financial sphere of the securities markets, which has become substantial and diverse, and is often called ‘shadow banking’, a misnomer. These activities, mapped by the Financial Stability Board, include a variety of entities which specialise in certain financial activities, or provide financial services as part of their overall product offer. They create risks of a ‘systemic’ nature, leading to major financial disruption and contagion. Although thought to be on the border of the traditional securities systems, these matters and the related regulation have a considerable impact on the framing of certain classes of securities and may determine the safety of the overall system, including that of the final investor.
Investment-Based Crowdfunding
Authors: Ferrarini Guido , Macchiavello Eugenia 
Published: June 2017

Abstract
This chapter explores the policy and regulatory issues generated by investment-based crowdfunding in Europe. Firstly, it argues that crowdfunding raises serious investor protection concerns, particularly when directed to retail investors. As governments try to stimulate innovation and the formation of new enterprises, a trade-off is created between investor protection and economic growth. The laws of the EU and its Member States try to solve this trade-off in different ways, as the chapter shows with reference to MiFID and the laws of the UK, France, Italy, Spain and Germany. Secondly, it shows that MiFID II, while enhancing investor protection and furthering harmonization, does not create all the conditions needed for a pan-European crowdfunding market. At the same time, MiFID II narrows the potential for exemptions under which some Member States have adopted special regimes for crowdfunding, therefore restricting the scope for an enabling approach to investment-based crowdfunding at national level.
Putting the Client First
Authors: Rees Peter J 
Published: June 2017

Abstract
This chapter considers the question of whether arbitration remains client-focused. It looks at two aspects of modern arbitration practice which may not be as client focused as they could, and should, be. The first is the need to reduce the time and cost of arbitration; the second is the fear of arbitral tribunals that their awards will be open to challenge. The discussion starts from the very basic and very obvious proposition that clients’ interests are most likely to be aligned before there is a dispute. Once a dispute has arisen, even the most reasonable of clients can become unreasonable. Thus, if anything is going to be done to address the expensive and time-consuming aspects of the dispute resolution process, it needs to be done before the dispute starts. It needs to be in the rules which will apply to the arbitration.
Some Reflections on the Making of International Arbitration Agreements for the Resolution of Commercial Disputes
Authors: Saville Lord 
Published: June 2017

Abstract
This chapter presents some thoughts on international arbitration. It begins with brief descriptions of the New York Convention and the UNCITRAL Model Law, which serve as the foundations of international dispute resolution. It then discusses arbitration agreements, the role of institutions, the role of law, and the disadvantages of arbitration. It argues that international commercial arbitration has become much more like that of the London Commercial Court; more often than not lawyers are called in from the outset. Pleadings, discovery, and the like are commonplace. The arbitral process has also become more expensive, notwithstanding substantial efforts by arbitral institutions and others to limit costs. It further suggests that where the tribunal considers that the dispute can be dealt with fairly and more cheaply without the full panoply of such legal procedures as the parties’ lawyers propose, that they make certain that the parties themselves, not just their lawyers, are made aware of the tribunal’s view.
Arbitrability Decisions Before, During, and After Arbitration
Authors: Barceló John J 
Published: June 2017

Abstract
The arbitration agreement is the cornerstone of international commercial arbitration. Disputes over the agreement’s existence, validity, and scope-the essential elements for a controversy to be arbitrable-arise at each of the three fundamental stages of the arbitration/litigation process. This chapter discusses the arbitrability issue at each stage of the arbitration/litigation process. Stage One, before a national court where one party seeks to litigate the merits of the dispute and the other party petitions to have the dispute sent to arbitration. Stage Two, when the parties are before the arbitrable tribunal itself. Stage Three, when the party who wins an award asks a national court to enforce it, or the party who loses asks a national court to set it aside or refuse to recognize and enforce it.
The Law Governing the Arbitration Agreement
Authors: Nazzini Renato 
Published: June 2017

Abstract
This chapter examines the law applicable to the arbitration agreement when there is no express choice of such a law. It does not aim to set out a test, or a set of tests, of universal validity or application. Rather, its objective is to review the current state of play and sketch out a framework for the development of a possible ‘transnational’ solution to the problem. The chapter first explains why a separate enquiry into the law governing the arbitration agreement is necessary and what the implications of such a separate enquiry are. Second, it reviews three possible approaches to determining the law governing the arbitration agreement: the application of the law chosen by the parties to govern their substantive rights and obligations; the application of the law of the seat of the arbitration; and the application of ‘transnational’ rules.
The Expert Witness in International Arbitration
Authors: Cremades Bernardo M 
Published: June 2017

Abstract
This chapter raises the question of whether expert witnesses are necessary or indeed appropriate in international arbitration. The expert’s role in arbitration proceedings is to testify and assist the tribunal. The expert is also a witness, but, in contrast to the legal framework for experts in court proceedings, in international arbitration they do not have to be independent of the parties. The majority of experts appearing before arbitral tribunals are employees or habitual sub-contractors of one of the parties. Regardless of an arbitrator’s background, they will require the support of an expert as they increasingly come into contact with sectors such as construction, energy, telecommunications, and concessions. However, the proliferation of expert witnesses in arbitration proceedings, and above all the phenomenon of the team of experts, have become the cause of confusion and delays.
The Law is what the Arbitrator had for Breakfast
Authors: Schultz Thomas , Kovacs Robert 
Published: June 2017

Abstract
This chapter examines the factors that influence and motivate the behaviour of arbitrators, specifically income, reputation, fame, prestige, doing justice, and the objective of avoiding the reprimand elicited by an annulment of the award or its unenforceability. It suggests that a better understanding of these factors contributes to a better understanding of arbitration, the law that applies and should apply to it, and the law created by it. The analysis follows a simple path, mirroring the main steps taken by classical law and economics studies on judicial behaviour. It takes the main types of incentives and constraints identified in these studies and applies them to the behaviour of arbitrators.
Functus Officio?
Authors: Fullelove Greg 
Published: June 2017

Abstract
This chapter examines the meaning of the principle of functus officio. The expression is used to refer to the point when the arbitral tribunal has discharged its duty in full and can no longer act. This point is generally held to be when the tribunal has concluded all matters with which it has jurisdiction to deal pursuant to a particular arbitration agreement. But while the principle itself may be superficially straightforward, its scope and application in certain cases have raised issues. The chapter asks: When can the tribunal be sure that its mandate is complete, i.e. officio functus est? When, if ever, can the arbitrators definitively say that they are ‘free’ of their duties in an arbitration? It suggests that it would be wrong to believe that a tribunal has certainly finished its work when it sends the final award to the parties. In many jurisdictions and under the leading arbitration rules, there will still be a continuing but reduced mandate to correct, interpret, and/or revise the award and perhaps to issue additional awards.
The Costs and Funding of International Arbitration
Authors: Tirado Joe , Meagher Daniel R , Gupta Arpan 
Published: June 2017

Abstract
The costs and funding of international arbitration are an integral part of the dispute process and not mere consequence. As the costs for the end-users of international arbitration continue to rise, there is a greater emphasis on recovering them, a dismay about how arbitration is ‘out of control’, together with a variety of efforts at reforms designed to reduce costs and foster efficiency. This chapter first considers the different cost elements involved in international arbitration proceedings. These include institutional charges, arbitral tribunal fees and expenses, external counsel’s fees, costs of witnesses, and miscellaneous costs. It then explores the funding mechanisms which are increasingly available to parties in international arbitration, including conditional fee arrangements (CFAs), damages-based agreements (DBAs), and insurance products.
Optimizing the use of Mediation in International Arbitration
Authors: Waincymer Jeffrey 
Published: June 2017

Abstract
This chapter considers the question of whether an arbitrator may also adopt a mediation function or whether the dual roles are antithetical. It tests that hypothesis by engaging in a cost-benefit analysis of differing scenarios when mediation is utilized in an arbitral context. The prime comparison is between parallel mediation with a separate neutral and the alternative of a dual-role neutral. The three key points are: there should be much more mediation occurring at the international level, regarding both potential and actual arbitral disputes; a commercially minded arbitrator concerned for the parties’ good faith should encourage mediation where appropriate, in particular, when an adjudicated outcome will not be in the interests of either, usually because the dispute is a small part of a long-term relationship that can risk that relationship no matter who wins; and, while informed party autonomy should always support a dual-role neutral, in most factual permutations, informed parties could be expected to prefer parallel mediation provided there is full cooperation between mediator and arbitrator. The chapter argues that the relative benefits of the use of dual-role neutrals would be greatly outweighed by the costs in fairness and efficiency, and the inevitable need for a sub-optimal design of either or both dispute processes. The benefits would also be separately outweighed by the risks of significant disruption to any ensuing arbitration if a dual-role neutral fails to achieve a settlement.
Judicial Review of the Merits of Arbitration Awards under English Law
Authors: Rix Bernard 
Published: June 2017

Abstract
This chapter considers the history of judicial review of the merits of arbitration awards in the courts of England. Topics discussed include arbitration before and during the nineteenth century; the English Arbitration Act 1979; the decision in The Nema, a case which concerned the possible frustration of a seven-voyage consecutive voyage charter due to a prolonged strike at the loading port; and section 69 of the English Arbitration Act 1996. The chapter concludes by referring to Lord Wilberforce’s parliamentary observation cited by Lord Steyn in Lesotho Highlands Development Authority v Impregilo SpA. The case raised an issue under section 68(2)(b) of the 1996 Act as to whether the arbitral tribunal had ‘exceed[ed] its powers’. The House of Lords held that an erroneous exercise of a power that was possessed was a mere error of law and not the same thing as acting in excess of powers that were not possessed; and that therefore the award could not be challenged. In the context of arbitration, the House of Lords was determined to allow no possibility that errors of law might be dressed up as decisions in excess of powers. That would have opened the floodgates to the opportunities for judicial intervention in the merits of disputes.
The Principled English Ambivalence to Law and Dispute Resolution Beyond the State
Authors: Mills Alex 
Published: June 2017

Abstract
This chapter examines what appears to be an ambivalence in English law towards non-state forms of law and dispute resolution. It begins by focusing on the fact that an English court will not recognize the validity of a choice of non-state law in a contract, but will nevertheless recognize and enforce an arbitral award based on the application of non-state law, identically chosen by the parties. It then deals with the English courts’ attitude to the recognition and enforcement of a foreign arbitral award which has been set aside by the courts of the seat of the arbitration, under which the arbitral award is neither voided, nor necessarily still enforceable. In both of the contexts examined in this chapter-the question of the validity of a choice of non-state law, and the question of the enforceability of an arbitral award set aside by the courts of the arbitral seat-the underlying issue is the extent to which English law and courts are receptive to non-state norms and normative processes, and the extent to which they remain in a paradigm under which states are the exclusive sovereign actors. In both contexts, the English legal system strikes a balance.
Public Policy Rules in English Arbitration Law
Authors: Brekoulakis Stavros L 
Published: June 2017

Abstract
This chapter argues that the doctrine of public policy currently adopted by legal discourse in arbitration is conceptually and methodologically confusing, and outdated. It is conceptually confusing because there is usually no explanation about how the content of public policy is ascertained or whether the doctrine functions as a legal principle or a set of legal rules. The doctrine of public policy, as a structured set of legal rules, can be better conceived of as a doctrine of national law. The rules of public policy can also be ascertained from a careful analysis of the historical context and jurisprudential development of the doctrine. The chapter first looks into the concept and function of public policy in English law and jurisprudence. It then focuses on the role of public policy in English private international law, before finally ascertaining the rules of public policy in English arbitration law.
The Role of Abuse of Process in Protecting the Integrity of Arbitration Awards
Authors: Sandy David J 
Published: June 2017

Abstract
Although arbitration awards are final and binding, losing parties may sometimes commence a second set of proceedings on slightly different grounds from the first in an attempt to raise doubt over the status and enforceability of the first award and/or to delay enforcement. In England, the doctrine of abuse of process has been utilized to prevent a second action being pursued. The English courts have developed the principle to prevent collateral attacks on prior judgments and, now, arbitral awards and by so doing, ensure the finality of judgments and awards. This chapter outlines the reasoning behind these decisions and asks whether there is a basis upon which such powers should be available in arbitration more generally, whatever the seat, rules, procedural or governing law. Should the principle of abuse of process, in so far as it prevents a collateral attack on a prior arbitration award, be a power which is generally available to tribunals? If so, what is the source of that power and how should it be exercised? Will arbitration benefit from the recognition of this principle? The chapter suggests that, in most cases, the source of the principle of abuse of process can be more readily found in the parties’ private agreement rather than having to be located in the public policy of any system of law which might be applicable.