bluuebunny/crossref_metadata_2025_split huggingface dataset:
Abdi Hosh Askir v Boutros Boutros-Ghali, Joseph E. Connor et al., US District Court SDNY, 29 July 1996, 933 F. Suppl. 368 (SDNY 1996)
Authors: Ruys Tom 
Published: June 2017

Abstract
The present case affirms the immunity from legal process of the United Nations and UN personnel acting in their official capacity in procedures before national courts (regardless of allegations of malfeasance). Although the Court refrains from explicitly pronouncing on the consequences of possible discrepancies between immunities granted under domestic law and international law, it acknowledges that the 1946 General Convention on the Privileges and Immunities of the United Nations provides immunity from ‘every form of legal process’, the only exception being express waiver by the United Nations itself. In the margin, it sheds light on the scope of the doctrine of ‘restrictive immunity’, by holding that acts that form part and parcel of military and humanitarian peacekeeping operations (including the occupation of property to house troops etc.) involve the exercise of governmental functions rather than private commercial activity and thus benefit from immunity.
League of Arab States v T M., Belgian Court of Cassation, ILDC 42 (BE 2001), 12 March 2001
Authors: Ryngaert Cedric 
Published: June 2017

Abstract
In League of Arab States, the Belgian Court of Cassation held that the League could not rely on its immunity from jurisdiction before Belgian courts, as, absent parliamentary approval, the Headquarters Agreement between Belgium and the League could not have domestic legal consequences. The Court added that there was no general principle of public international law in the sense of art. 38(1)(c) ICJ Statute to the effect of international organizations enjoying immunity from jurisdiction. This decision is in line with decisions from other jurisdictions, which require a treaty basis for international organization immunity to be successfully invoked. It contrasts however with an earlier decision by the Dutch Supreme Court (Spaans), pursuant to which the immunity of international organizations follows from customary international law.
Entico Corporation Ltd v UNESCO, 18 March 2008, [2008] EWHC 531 (Comm), [2008] 2 All ER (Comm) 97
Authors: Wickremasinghe Chanaka 
Published: June 2017

Abstract
Entico v UNESCO provides the most detailed examination to date by a court in the UK of the relationship between the immunity of an international organization, UNESCO, and the right of access to a court, as it is implied in the interpretation of art. 6 of the European Convention on Human Rights. It raises an interesting question about the applicability of the much-cited judgment of the European Court of Human Rights in Waite and Kennedy in the context of a UN Specialised Agency. The case teaches us that the huge variety of international organizations means that the extent of their immunities must be fashioned in the case of each organization to meet their particular functional needs. This suggests that the national court needs to approach generalizations with care, and a full appreciation of the international legal context that governs the organization in question.
Conclusions
Authors: Marboe Irmgard 
Published: June 2017

Abstract
The concluding chapter summarizes the most important economic and legal principles and filters out guidelines for the calculation of compensation and damages in the practice of international investment disputes. The legal standard mandated by the bases of claims represents the starting point for the choice of the appropriate valuation approaches and methods. With regard to the decision on interest, tribunals must establish the appropriate rate of interest, the period of interest, and decide if interest should be compounded. This is necessary in relation to pre-award and post-award interest.
Introduction
Authors: Carter James H , Fellas John 
Published: June 2017

Abstract
This introductory chapter presents New York City as the leading venue for international commercial arbitration in the United States. It estimates that at least one-third of all significant international commercial arbitrations in the United States take place within the city. New York’s role as a financial and legal capital leads to the choice of New York governing law for many commercial documents, often resulting in a choice of New York as the venue for any disputes arising from those documents. The city’s leading position in international commercial arbitration also derives from the fact that a number of leading arbitration institutions are based in New York. The local court system strongly supports international arbitration; and the community of supporting organizations, such as the New York International Arbitration Center, bar associations, universities, and others is quite strong.
The Law Applicable to International Arbitration in New York
Authors: Lindsey David M , Lahlou Yasmine 
Published: June 2017

Abstract
This chapter focuses on applicable arbitration law in the context of arbitration agreements and awards that fall under the New York Convention or the Panama Convention, and how those two treaties interact with the U.S. Federal Arbitration Act (FAA), New York state law, and possibly foreign law in the context of international arbitration in New York. It first summarizes the FAA and explains FAA preemption of state law that is inconsistent with the FAA. The chapter then discusses the application of the Conventions and difficult issues that can arise when determining the applicable law. In particular, it focuses on choice of law issues that arise when enforcing the agreement to arbitrate under Article II of the New York Convention. U.S. courts have struggled to employ a consistent choice of law analysis when interpreting the “null and void” provisions in Article II(3) of the Convention.
The Application of New York Law to Contracts
Authors: Rivkin David W , Friedman Mark W , Taft William H 
Published: June 2017

Abstract
This chapter provides a brief overview of some basic principles of New York law that are relevant to the interpretation and enforcement of contracts. New York contract law is derived from common law, statutes, and administrative sources. The chapter first addresses New York choice-of-law rules. Next, it turns to the elements of a contract and New York laws and presumptions regarding contract formation. It then examines the elements and consequences of a breach of contract, before turning to a number of claims ancillary to a contractual breach. Finally, the chapter concludes with some special issues that may arise under New York contract law.
Damages in International Arbitration
Authors: Salomon Claudia 
Published: June 2017

Abstract
This chapter addresses the implications of the substantive law of the State of New York for the proof and calculation of damages. In international commercial arbitration, the category of damages, as well as the nature of proof required, is determined by the agreement of the parties. Absent such an agreement, tribunals will be guided by the substantive law of the arbitration. And generally, for damages to be recoverable, an aggrieved party must prove that the opposing party’s conduct directly and proximately caused the claimed damages. Although an in-depth analysis of theories and standards of proof for establishing causation is beyond the scope of this chapter, the requirement that a party prove, with a reasonable degree of certainty, damages proximately caused by a respondent’s actions explains New York law’s general skepticism about anticipated lost profits for a prospective business opportunity as a class of damages.
Class Action Arbitration
Authors: Baker William H 
Published: June 2017

Abstract
This chapter outlines the practices relevant to class arbitration, a relatively recent phenomenon in the United States. Most of these arbitrations are exclusively between domestic parties and often arise out of arbitration clauses inserted in the fine print of consumer or employment contracts. In some cases, however, foreign companies have entered into what may have appeared to be simple, single-party arbitration clauses, only to find themselves embroiled in class action arbitrations. In fact, it behooves international arbitration practitioners to be aware of class action arbitration law and procedures in New York and in the United States generally. The chapter thus enumerates significant developments in class arbitration law in the U.S. in recent years, which have come about due to a series of U.S. Supreme Court decisions.
Recovery and Resolution Planning
Authors: Singh Dalvinder 
Published: June 2017

Abstract
This chapter analyses the impact of recovery and resolution planning on the regulation and supervision of financial institutions. It argues that recovery and resolution planning places issues associated with crisis prevention and resolvability at the forefront of regulation and supervision rather than at the tail end. However, one challenge associated with this requirement is the level of discretion authorities have with regards to the technical requirements associated with formulating and reviewing the plans. The chapter explores the extent to which that discretion is structured and assisted by the introduction of European Banking Authority guidelines and technical standards. It concludes with a reflection of how recovery and resolution planning is likely to improve forward-looking risk-based supervision.
Resolution
Authors: Binder Jens-Hinrich 
Published: June 2017

Abstract
This chapter presents an introduction and brief analysis of the resolution toolbox and accompanying powers found in the Bank Recovery and Resolution Directive (BRRD). Following an account of the key trends in the design of modern bank insolvency regimes the concept of resolution, as well as the key policy objectives of the BRRD are analysed. It then examines the conditions for resolution, and the general principles for resolution as set out by articles 32, 33, and 34 of the BRRD. The chapter concludes with a discussion of the four ‘resolution tools’ stated in articles 37–58 and the capital instruments described in articles 59–62.
Derivatives and Bail-in under the EU Bank Recovery and Resolution Directive
Authors: Benzler Marc , Hissnauer Christian 
Published: June 2017

Abstract
This chapter investigates issues arising from derivatives as liabilities subject to bail-in. It also analyses requirements on the valuation of derivatives, with a particular focus on the recognition of netting agreements. The final version of the Bank Recovery and Resolution Directive (BRRD) has settled the issue of the inclusion of liabilities arising from derivatives into the bail-in. It now remains to be seen how the problems surrounding the application of the bail-in tool to such liabilities will be resolved. The German Recovery and Resolution Act or Sanierungs- und Abwicklungsgesetz (SAG) provides some insight in this regard. While it does clarify some aspects of the BRRD, it is for the most part implementing the BRRD word by word. The chapter concludes with an examination of the impact of the various resolution powers with respect to liabilities arising from derivatives under any bail-in.
The Implementation of the EU Bank Recovery and Resolution Directive’s Derivative Bail-in Powers in the UK
Authors: Connelly Stephen 
Published: June 2017

Abstract
This chapter explores the implementation of the EU Bank Recovery and Resolution Directive’s (BRRD) bail-in powers in the UK. Special bail-in powers have been in the legislative sights of HM Treasury (HMT) since the Independent Commission on Banking’s report in 2011. The chapter considers inter alia the following issues raised by the power to bail-in derivatives in the Banking Act 2009: what is a ‘derivative’ and does HMT agree with the BRRD’s definition; the critical role of close-out netting, and whether this is appropriate for all derivatives in the widest sense; the appropriateness of safeguards for protected liabilities and excluded liabilities, e.g. secured interests; and practical matters like valuation.
Third Country Cooperation Mechanisms within the Bank Recovery and Resolution Directive
Authors: Russo Costanza 
Published: June 2017

Abstract
This chapter argues that cooperation and coordination under the Bank Recovery and Resolution Directive (BRRD) may still be suboptimal as states can still prioritize their national interest. By making a distinction between coordination and cooperation it is also argued that while relevant authorities can, in principle, take a joint decision over the willingness to achieve a common goal, they may still act in an uncoordinated way. This may undermine the effectiveness of international supervisory action and in turn financial stability within, and possibly outside, the EU. The chapter reveals the complex layers of cooperation; its relevant problems; and the extent to which these have been addressed by regulators. It focuses on cooperation and coordination between the EU and third countries with a specific attention to the provisions included in the BRRD.
The Funding of Bank Resolution
Authors: Mayes David G 
Published: June 2017

Abstract
This chapter examines the funding of a bank recovery or resolution under the Bank Recovery and Resolution Directive (BRRD) and the associated Single Resolution Regulation (SRR). The BRRD assures that bank problems have a minimum impact on the wider economy and on the living conditions and standards of ordinary people. Meanwhile, the SRR sets out how the BRRD is to be applied for the countries participating in the Single Supervisory Mechanism (SSM). The chapter explores the problems of assessing the costs of resolving failing banks. It explains the New Zealand scheme and the authorities’ assessment of the potential impact of various resolution and recovery measures on the economy. It also discusses the ways in which the BRRD/SRR might be implemented in order to minimize the risks to society at large.
The European Deposit Guarantee Directive
Authors: Hanten Mathias 
Published: June 2017

Abstract
This chapter analyses the German Deposit Protection landscape and provides three short case studies which reveals how deposit protection is structured. It also assesses the impact of the Deposit Protection Directive (DPD 3) and the Bank Recovery and Resolution Directive (BRRD) on this landscape. DPD 3 aims to enable the institutions to bear the risk of depositor compensation and to avoid state aid. On this basis the Directive specifies that all Deposit Guarantee Schemes (DGS) must be financed ex ante. On the other hand, the BRRD, through the Restructuring and Resolution Act, gives the resolution authority the power to bail-in a bank’s shareholders and creditors in the event of resolution.
Financial Market Infrastructures in Stress Scenarios
Authors: Papathanassiou Chryssa 
Published: June 2017

Abstract
This chapter examines the crucial role of Financial Market Infrastructures (FMIs) during a crisis. It addresses the three asymmetries surrounding the rules on FMIs’ defaults and looks at how to improve the legal soundness of crisis prevention and crisis management measures for FMIs. The first asymmetry stems from the fact that different bankruptcy procedures are applied to different systemically important financial market participants, as well as the fact that conflicts of laws arise from the bankruptcy of entities with cross-border operations. The second arises from the expansion of FMI services and relates primarily to two otherwise benign features which central counterparties (CCPs) offer to their members for the products they clear: credit risk mitigation and loss mutualization. The third and final asymmetry stems from the fact that supervisory authorities have been insufficiently attuned to each other’s legitimate interests and have focused resolutely on their own markets.
The Liquidation of Lehman Brothers Inc, the New York Brokerage of the Lehman Global Enterprise
Authors: Caputo Kenneth J , Giddens James W , Kiplok Christopher K 
Published: June 2017

Abstract
This chapter explores the statutory and regulatory regime in place in 2008 that governed the operation and liquidation of Lehman Brothers Inc. (LBI) and highlights key legal issues in the liquidation. Section I provides an overview of the Securities Investor Protection Act (SIPA) statute. Section II describes LBI, its role as the broker-dealer in the global Lehman enterprise, and the story of its collapse in September 2008. Section III highlights some hallmarks of the LBI liquidation, including the emergency sale to Barclays, account transfers, the transfer of all of LBI’s subsidiaries on the eve of LBI’s filing, the atomization of foreign affiliates with different regulatory regimes, and the role of LBI as a counterparty in the financial products market, which led to a substantial general estate. Section IV addresses the impact of the broker-dealer liquidation under SIPA on the treatment of complex financial instruments. Section V reflects on lessons learned.
Lessons from Lehman
Authors: Moers Mayer Thomas , Eggermann Daniel M 
Published: June 2017

Abstract
‘Substantive consolidation’ is the deemed merger of a bankrupt corporation with one or more other corporations, so that the assets of all the corporations are pooled and their value distributed to the creditors of all the entities. It penalizes creditors of more solvent debtors and rewards creditors of less solvent debtors. It is supposedly an ‘extraordinary remedy’ that is nevertheless frequently threatened in complex chapter 11 bankruptcy cases. This chapter describes the remedy of substantive consolidation, the facts in Lehman’s chapter 11 cases that made it the critical issue, and the threat of ‘involuntary settlement’ that avoided years of litigation and produced a fully consensual plan. The threat of an ‘involuntary settlement’ was a huge success in the Lehman case but the technique is very powerful and potentially very dangerous, as the chapter concludes.
Lehman Brothers and Equitable Subordination in Cross-Border Proceedings
Authors: Denman Harrison L 
Published: June 2017

Abstract
The collapse of Lehman Brothers in 2008 had consequences that spread across the world. In the aftermath, Lehman affiliates from outside the United States were forced to commence their own localized insolvency proceedings. The issues multiplied even further, as even within a single country, multiple wholly-owned affiliates were forced to fill their own cases. This chapter addresses a single narrow aspect of these intercompany issues raised in the context of the Lehman cases, when viewed from the perspective of an entity subject to reorganization under chapter 11 in the United States. Specifically, this chapter asks and seeks to answer: to what extent can a US debtor seek to equitably subordinate a claim asserted by an entity that is itself subject to a separate reorganization proceeding? That may depend on whether the entity potentially subject to equitable subordination is a debtor in a foreign jurisdiction pursuant to a foreign insolvency statute.
Extended Liens
Authors: Anderson Hamish 
Published: June 2017

Abstract
During the course of the Lehman insolvencies it was discovered that the Lehman companies had used a number of different standard documents to record their terms of business which included provision for a security interest over the counterparty’s property. The important distinguishing feature of some of those security interests was that the relevant Lehman entity purported to take security not only for sums due to it but also for sums due to any other Lehman entity. Such security interests came to be known as ‘extended liens’—a label which is potentially misleading for an English lawyer because the security interests in question were more likely to be correctly characterized as floating charges. ‘Lien’ in this context is merely a generic term for different types of security interest. The chapter looks at the efficacy of extended liens.
The Management and Distribution of LBIE’s Client Assets
Authors: Ereira OBE David 
Published: June 2017

Abstract
This chapter starts by introducing some background information and legal issues raised by the operation of the Lehman business in Europe. Dealing with client assets was an extremely complex and critical aspect of the entire administration in Europe and raised fundamental issues for the operation of the financial markets and the courts. In order to appreciate the scale and complexity of the issues involved it is necessary to put this aspect of the administration into both a factual and legal context. The chapter asks: why did LBIE, the main hub company for Lehman business in Europe, hold client assets? The chapter relates this to English trust law and trust law principles.
Introduction
Authors: Kim Joongi 
Published: June 2017

Abstract
This introductory chapter provides a brief overview of the scope of international arbitration in Korea. From modest beginnings, Korea has managed to establish a modern arbitration system that has become a common means of dispute resolution that operates under a consensual framework based on party autonomy. Korea’s accelerated growth in arbitration has been closely intertwined with its economic development, as it catapulted itself from one of the poorest countries in the world to recently joining the Paris Club of the world’s largest creditors, all in the span of fifty years. The chapter thus describes the historical development of arbitration in Korea and how its arbitration is practiced. It also includes a short outline of Korea’s legal industry in general, before finally discussing a few explanatory notes for reference in later chapters.
The Arbitral Tribunal
Authors: Kim Joongi 
Published: June 2017

Abstract
This chapter discusses Korean arbitral tribunals. Korean courts have been strict in applying the provisions in the Arbitration Act regarding these. The courts have not hesitated to set aside awards when they have found that the parties have not complied with provisions concerning tribunal requirements or where tribunals have had conflicts of interest. Under the new 2016 Arbitration Act, furthermore, when the parties fail to appoint an arbitrator or reach agreement on a sole arbitrator or the chair, the court can now designate an institution such as the Korean Commercial Arbitration Board (KCAB) to appoint the arbitrator. The KCAB has accumulated considerable experience and has greater institutional knowledge than the courts concerning the expertise of potential arbitrators, particularly international ones. With these developments in mind, the chapter reviews some formative cases which have shaped these tribunals in their current incarnation.
Recognition and Enforcement
Authors: Kim Joongi 
Published: June 2017

Abstract
This chapter discusses the recognition and enforcement of arbitral awards. Domestic awards are recognized and enforced under the provisions of the Arbitration Act, which are virtually the same as the provisions in the New York Convention. As per the Model Law, if an arbitration is seated in Korea it is considered a domestic arbitration. In addition, the 2016 Arbitration Act now provides that recognition or enforcement of an arbitral award can occur in far more simplified fashion, through an enforcement decision by a court, as is the case in such civil law countries as Germany and Japan. Furthermore, under the amended Article 37.1, a domestic and foreign arbitral award will be recognized as long as grounds to set it aside do not exist.
Setting Aside an Arbitral Award
Authors: Kim Joongi 
Published: June 2017

Abstract
This chapter considers the grounds for setting aside an arbitral award. It looks at cases where set-asides have occurred—due to invalid agreements, an excess of jurisdiction, the formation of a tribunal, and public policy arguments. The Arbitration Act’s provisions concerning set-aside closely follow the Model Law and New York Convention. The chapter, however, also discusses other pre-Model Law grounds for a set-aside, such as when ‘a decision has been omitted regarding an important matter that would affect the judgment’. Moreover, the chapter explores the effects of a set-aside, before closing with some arguments raised by leading arbitration scholars.