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

Abstract
Chapter 6 explores the central concept of ‘investment’. It first considers the core question of the definition of ‘investment’ under the ICSID Convention and under investment treaties. It then takes up four important issues: (1) the time when an investment is made in relation to the temporal scope of the treaty protections; (2) the extent to which pre-contract investment may obtain treaty protection; (3) the place of an investment; and (4) the role of host State law in defining ‘investment’. It then analyses a set of problems that arise out of indirect investments: the relation between the losses suffered by a subsidiary in the host State and the investor’s investment; the rights of minority shareholders; claims brought by holding companies; corporate restructuring as a means to gain the advantage of investment treaties; the position of ultimate beneficiaries; and the position of portfolio investments.
Introduction
Authors: Rieder Markus S , Kreindler Richard 
Published: June 2017

Abstract
This introductory chapter presents a brief overview of the practice of commercial arbitration in Germany against the background of German state court litigation. The term ‘commercial’ here refers to arbitration related to civil law disputes between parties and public international law (especially investment treaty-based) arbitration on the one hand and consumer arbitration on the other hand. Historically, the tradition of arbitration in Germany has its roots in the 1879 version of the Zivilprozessordnung (ZPO), which remained substantially unchanged up until 1997 when it was reformed in order to adapt it to the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration of 1985 with the intention to strengthen the attractiveness of Germany as a locale for international arbitration. The chapter also explores the advantages and disadvantages of arbitration compared to German state court litigation, and discuss special types of arbitration and means of alternative dispute resolution.
The Arbitration Agreement
Authors: Rieder Markus S , Kreindler Richard 
Published: June 2017

Abstract
This chapter explores the arbitration agreement from a variety of perspectives, first looking at the required content and the validity of an arbitration agreement. As an agreement, it is subject to grounds before invalidity and, once found valid, subject to interpretation. In order to qualify as an arbitration agreement, it must relate to a dispute within a defined legal relationship and must provide for arbitration for binding conflict resolution. The chapter then outlines the scope, effects, and issues of the termination of an arbitration agreement. Under German practice, the personal scope of the arbitration agreement extends to its parties, and in certain limited circumstances, it may also extend to third parties. The chapter concludes with typical additional contents of arbitration agreements, in particular with regard to the place of arbitration, the language of the proceedings, the selection of the applicable substantive law, and the selection ad hoc or institutional arbitration.
The Arbitral Tribunal
Authors: Rieder Markus S , Kreindler Richard 
Published: June 2017

Abstract
This chapter examines the arbitral tribunal which resolves dispute by way of arbitration. It discusses the number of arbitrators, the procedure of appointing arbitrators, the selection of arbitrators, the challenge, termination of the office and replacement of arbitrators, as well as the arbitrator agreement — a topic that has more attention in Germany than in other jurisdictions. The study is important as the arbitral tribunal is one of the most important strategic steps in any arbitration. In most cases, the parties and their counsel to believe that picking the right panel is a preeminent precondition for achieving the desired outcome. The chapter describes how under German law, the principles of independence and impartiality of an arbitration are non-derogable cornerstones of any arbitral proceedings. Essentially, they form part of the German procedural ordre public which are considered indispensable constitutional requirements in order for arbitral proceedings to be equivalent to state court litigation.
The Arbitral Proceedings
Authors: Rieder Markus S , Kreindler Richard 
Published: June 2017

Abstract
This chapter addresses the legal framework applicable to proceedings before arbitral tribunals seated in Germany. On this basis, it first discusses the typical structure and frequent steps of arbitral proceedings. Regarding the initiation of arbitral proceedings, German law follows a three-step model consisting of: request for arbitration, constitution of the arbitral tribunal and initial pleadings by claimant (statement of claim) and respondent (statement of defence). German ad-hoc proceedings usually contain few mandatory formalities for the request for arbitration. Pursuant to the ZPO, its minimum contents are designation of the parties, designation of the subject matter of the dispute, and reference to the applicable arbitration agreement. The chapter concludes by examining a wide range of special situations, highlighting the steps taken by the German Institute of Arbitration (DIS) during events such as multi-party arbitration, as well as issues of fraud, money laundering, and corruption.
The Arbitral Award
Authors: Wolff Reinmar 
Published: June 2017

Abstract
This concluding chapter examines the arbitral award given at the outcome of the arbitration proceedings. It describes the different ways German arbitration law resolves the dispute — by decision of the arbitral tribunal and by settlement of the parties — and the rules which the arbitral tribunal applies when deciding on the merits and costs. Traditionally, arbitration is characterized by, on the one hand, largely flexible arbitral proceedings and, on the other hand, an outcome, the award that not only is tantamount to a state court judgment but also is equipped with restricted remedies and facilitated means of enforcement both domestically and internationally. In conformity with German court tradition, arbitral tribunals in Germany often encourage the parties to consider making a settlement. To facilitate enforcement of the terms of any such settlement, it may be recorded by the arbitral tribunal in the form of an award on agreed terms.
The Concept and Sources of Arbitration
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio 
Published: June 2017

Abstract
This introductory chapter analyses the concept of arbitration, distinguishing it from other alternative dispute resolution (ADR) methods, in particular mediation, conciliation, and expert determination. Having traced the historical roots and evolution of international arbitration, it then discusses the advantages and drawbacks of choosing to settle disputes by way of arbitration. The chapter further presents the main sources of arbitration law, from national laws and international treaties – in particular the New York Convention – over arbitration rules, soft law, jurisprudence, and scholarly writings. It then considers the role of Switzerland as a place of arbitration, discussing its long-standing dispute-settlement tradition and the arbitration-related bodies and institutions operating in the country. Finally, as an introduction to the next Chapters, the discussion briefly sets out the situations in which the arbitration process can come into contact with the courts.
The Arbitral Tribunal
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio 
Published: June 2017

Abstract
This chapter examines the constitution of the arbitral tribunal, including the parties’ participation in that process, which is often seen as one of the advantages of arbitration over litigation. Even if the parties influence the composition of the tribunal, the office of the arbitrators is a judicial one, as their award will be considered the equivalent of a court judgment. Accordingly, the chapter discusses the fundamental requirements of independence and impartiality of arbitrators, as well as the rules governing their challenge and replacement. On this topic, the chapter considers in particular the relevance of the recently revised IBA Guidelines on Conflicts of Interest. The differences in the procedural regimes between ad hoc and institutional arbitrations are addressed throughout the analysis. The contractual dimension of the arbitrators’ relationship with the parties is addressed in the chapter’s last section, devoted to the so-called receptum arbitri.
The Proceedings before the Arbitral Tribunal
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio 
Published: June 2017

Abstract
This chapter considers how arbitral proceedings unfold once the tribunal is constituted (as discussed in chapter 4), up until the deliberation phase (which is addressed in chapter 7). It starts by identifying the rules that govern the conduct of arbitral proceedings and then examines the interaction between those rules, before describing, by reference to current best practices, the different steps in a ‘standard’ international arbitration. The discussion illustrates, in particular, the articulation between fundamental principles of due process and the parties’ autonomy and arbitrators’ powers in organizing arbitral proceedings. The presentation of arbitral practice is supplemented by a number of model procedural documents: terms of reference for ICC arbitrations, terms of appointment, and a set of specific procedural rules suitable for both institutional and ad hoc arbitration, as well as a standard letter on the appointment of an arbitral secretary. The chapter’s final section is devoted to provisional measures.
The Annulment and Enforcement of the Award
Authors: Kaufmann-Kohler Gabrielle , Rigozzi Antonio 
Published: June 2017

Abstract
Contrary to judgments, arbitral awards are final in the sense that they are not subject to appeals. This chapter examines the very limited remedy of annulment or setting aside of the award in accordance with Article 190(2) PILA, emphasizing that the annulment grounds in that provision are essentially concerned with the manner in which justice was rendered, as opposed to the content of the decision. The chapter also covers all aspects of the annulment procedure before the Swiss Supreme Court, from the admissibility of the action to cost allocation. In that context, it addresses the possibility for parties not seated in Switzerland to waive their right to seek the annulment of the award (Article 192(1) PILA). The chapter further discusses the revision of the award, and, in its final section, the recognition and enforcement of foreign arbitral awards by the Swiss courts in accordance with the New York Convention.
The Law and Practice of International Banking
Authors: Proctor Charles 
Published: June 2017

Abstract
This book provides authoritative analysis of current practice in international banking and the law that applies to it. Topics covered include: syndicated loans, security structures, derivative products, and mis-selling claims. The book tackles areas which have particular relevance to current practice. Amongst these are cross-border matters such as worldwide freezing injunctions, foreign disclosure orders, the bankers' duty of confidentiality, and the impact of sanctions on banking transactions. In particular, the book provides examination of various matters arising out of the Lehman collapse and the failure of the Icelandic banking system. This second edition reviews a significant accumulation of case law in these areas. Reflecting the continued growth of the Islamic finance market, there is also a section on this highly specialized but increasingly important area. The new edition provides consideration of the new UK and EU regulatory regimes, analysing the respective responsibilities of the UK Prudential Regulation Authority (PRA) and the UK Financial Conduct Authority (FCA), and the establishment of new banking authorities in the EU. A separate chapter examines the new capital adequacy and liquidity regimes that will apply to banks in the wake of Basel 3. It also reflects on the impact of the crisis following on from the initial assessments made in the first edition. The book examines the new regimes for ‘ring-fencing’ of retail banking business and for the resolution of failing banks, introduced at both the UK and EU levels. The text also includes a new chapter examining the challenges that the banking system would face in the event that a Member State elected to withdraw from the Eurozone — a fate which appeared to hang over Greece during the crisis and which could recur if the single currency zone faces renewed strains.
EU Banking Law
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter discusses EU banking law, which has significantly influenced banking regulation in the UK. It covers the background to the EU Directives in the field of banking law; deposit-taking prohibition; the authorization process; the relevance of the freedoms created by the EU Treaties; the right to establish a branch in other Member States; the right to provide services in other Member States; the provision of banking services from within an institution's home State; the free movement of capital and banking services; and a Commission Interpretative Communication on territoriality questions arising in the field of EU banking law.
The Market Regulators
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter explains the various authorities involved in UK banking market regulation. It first considers the role of the UK Financial Services Authority (FSA), including its statutory objectives and powers under the Financial Services and Markets Act 2000. It then discusses the role of the Bank of England in the fields of financial stability and monetary policy; the role of Her Majesty's Treasury; the development of regulatory bodies at the European level, largely in response to the credit crunch and the problems to which it gave rise; and some recent international initiatives.
Sources of Bank Liability
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter considers sources of bank liability. It examines claims which may be made against banks as a result of loans made to corporate customers, especially where the bank has to intervene in some way to protect its interests in a facility that is becoming impaired. It also looks at the position of banks as sellers of sophisticated and complex products, such as collateralized debt obligations, credit default swaps, and similar instruments. By their very nature, these instruments will be sold to larger corporate customers with considerable financial resources.
Guarantees
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter provides an overview of the law of guarantees as it applies in a banking context. It discusses the purpose, definition, and characteristics of a guarantee; the formal requirements applicable to the creation of a guarantee; the distinction between a guarantee and an indemnity; the interpretation of, and liability under, a guarantee; the application of legislation on unfair contract terms; the rules applicable to individual and corporate capacity; the duties of the bank to the guarantor; the discharge of the guarantor; certain vitiating factors; termination by the guarantor; and the rights of the guarantor following payment.
Types of Security
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter considers the nature of the security which the borrower creates; the specific characteristics of security created over particular types of asset; and which lender is entitled to priority in the case of competing layers of security on the same asset. The discussions cover fixed charges, floating assets, categories of priority claims, statutory priorities, priority as against other secured creditors, and priority as against unsecured creditors.
Financial Collateral Arrangements
Authors: Proctor Charles 
Published: June 2017

Abstract
When a charge is taken over cash or securities transferred or held in a recognized clearing and settlement system, the security position of the charge is in some respects reinforced. The European Commission has been concerned with managing systemic risk in such settlement systems. This chapter examines the two key measures to support the stability of such systems: firstly, the Directive on Settlement finality in Payment and Securities Systems; and, secondly, the Directive on financial collateral arrangement.
The Banker–Customer Contract in Private International Law
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter revisits the banker–customer relationship. The contractual nature of the relationship considered in Chapter 15 assumed that the bank was established in England and that its customer was also resident in the same country. However, that analysis is by no means of universal. Multinational companies, for instance, may need to have bank accounts in a number of different countries; wealthy individuals may opt to maintain accounts with banks in more advanced jurisdictions to gain access to portfolio management or other services. Banks may promote their services to overseas customers and wish to take security over assets situate outside England. How do these affect the legal nature of the banker–customer relationship? The chapter discusses the governing law of the banker–customer relationship; the effect and consequences of the applicable law; the law governing capacity and authority; and the situs of deposit obligations.
The Banker’s Duty of Confidentiality
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter examines the nature and scope of the bank's duty of confidentiality, and the exceptions to it. It considers the difficulties which may confront a bank with branches in several countries and whose business may therefore be subjected to several different systems of law. The discussions cover the system of law applicable to the duty; the general nature and scope of the duty; disclosure under compulsion of law; disclosure in the interests of the bank itself; disclosure in the public interest; disclosure with the consent of the customer; damages for breach of the duty; the Data Protection Act 1998; wider duties of confidence; duties of confidentiality to third parties; and other duties of confidentiality.
Execution Proceedings and Foreign Deposits
Authors: Proctor Charles 
Published: June 2017

Abstract
The banker–customer relationship is governed by the law of the country in which the account-holding branch is located. Thus, it follows that action taken by a foreign court or government cannot have an impact on either the ownership of, or the contractual terms applicable to, a deposit placed with a bank branch situated in England. This chapter examines the extent to which the English courts have attempted to make orders which may have an extra-territorial effect, in the sense that they seek to affect the rights and obligations of banks with respect to deposits placed with branches outside the jurisdiction. It considers third party debt orders; the attitude of the English courts in extra-territorial cases; the case law; and special cases.
Liability for Branch Deposits and the Impact of Foreign Law
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter examines the extent to which a bank based in England is liable to meet the deposit obligations of its foreign branches if, for some reason, they are prevented from doing so directly. It considers the impact of a foreign branch; the consequences of an outbreak of war; the effect of a foreign expropriation law; the effect of other forms of seizure; exchange control laws; the effect of a foreign moratorium; and blocking orders.
Economic Sanctions
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter considers the impact of sanctions imposed by the UK on banks in England. It also discusses the sources of sanctions legislation. A regime of economic sanctions imposed by the UK will invariably be a matter of high policy. It is therefore unsurprising that compliance is mandatory for UK entities under all circumstances, regardless of the law applicable to any relevant contracts or any other matter. Banks must both ensure compliance and take the necessary steps to ensure that it does not incur any liability to affected customers.
Harmonization and the Development of the International Islamic Financial Markets
Authors: Proctor Charles 
Published: June 2017

Abstract
This chapter focuses on the need for standardization and harmonization within the Islamic financial markets. It discusses the imperatives of standardization; the tawarruq and the sukuk as illustrations of the need for a harmonized approach; enforcement issues; the nature and scope of harmonization; standardized documentation; Shariah rulings; the regulatory framework; capital adequacy; and taxation.
The Modern Role of Arbitration in Banking and Finance
Authors: Golden Jeffrey , Werner Peter 
Published: June 2017

Abstract
The International Swaps and Derivatives Association (ISDA) published its first Arbitration Guide on September 9, 2013 to provide its members with an overview of and guidance on: dispute settlement by arbitration; key features of arbitral procedure and relevant distinctions with litigation in domestic courts; and reasons why ISDA members might consider arbitration for complex product disputes arising under their ISDA Master Agreements. This chapter explores the themes which inspired derivative market interest in the 2013 ISDA Arbitration Guide and, in turn, inspired the collaboration that led to the publication of this volume. In so doing, it draws attention to a much wider range of financial market disputes than just those relating to complex products and the relevance of arbitration to this broader category of disputes about banking and finance.
Arbitral Institutions
Authors: Cohen Smutny Abby , Polášek Petr 
Published: June 2017

Abstract
This chapter surveys arbitral institutions and arbitration rules relevant to the resolution of international financial disputes. It focuses on four factors that are important in the context of financial disputes: the selection and qualifications of the arbitrators; the speed and efficiency of the proceeding; the confidentiality of the proceeding; and the costs of the arbitration. Arbitral institutions covered include the Panel of Recognized International Market Experts in Finance (P.R.I.M.E. Finance), the International Court of Arbitration of the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the International Centre for Dispute Resolution (ICDR), the International Centre for Settlement of Investment Disputes (ICSID), the Dubai International Arbitration Centre (DIAC), the Hong Kong International Arbitration Centre (HKIAC), and the Singapore International Arbitration Centre (SIAC).
Alternative Dispute Resolution
Authors: Willis Tony , Wood William 
Published: June 2017

Abstract
This chapter begins with a definition of mediation and its relationship to litigation and arbitration, along with some information about its use and recognition internationally. It then discusses the application of mediation to disputes in the financial services sector. It offers practical guidance on the mediation process followed by a discussion of other forms of non-adjudicative dispute resolution. The chapter concludes that mediation is an established, robust, and powerful means of resolving disputes that is especially suited to disputes in the financial services sector. PRIME experts are uniquely qualified to assist in several roles as experts, as advisors, as arbitrators and mediators.