bluuebunny/crossref_metadata_2025_split huggingface dataset:
Western European Union v Siedler, Belgian Court of Cassation, 21 December 2009
Authors: Schmitt Pierre 
Published: June 2017

Abstract
In this decision, the Belgian Court of Cassation adopted a far-reaching interpretation of the Waite and Kennedy jurisprudence of the European Court of Human Rights and its ‘reasonable alternative means’ test to assess if the immunity of an international organization was permissible with regard to the protection of ECHR rights. Not only did the Court of Cassation verify the existence of an internal dispute-settlement mechanism within the WEU—the internal appeals commission—but it also examined its quality with regard to fair trail requirements. Pursuant this check, the Court considered that the commission was not sufficiently independent and consequently rejected the immunity of the organization. Moreover, the Court ruled that, in case of rejection of immunity, the internal law of the organization was to be applied to the dispute, as opposed to domestic law.
OSS Nokalva, Inc. v European Space Agency, United States Third Circuit decision, 617 F.3d 756 (3d Cir. 2010)
Authors: Boon Kristen 
Published: June 2017

Abstract
The United States Court of Appeals for the Third Circuit rejected the long-held assumption that international organizations are entitled to absolute immunity under the domestic International Organizations Immunities Act (‘IOIA’). The legal question raised by this case is: does the language of the IOIA allow for the incorporation of subsequent changes to sovereign state immunity thereby conferring a restrictive, not absolute, immunity upon international organizations? The court applied the same concept of restrictive immunity to international organizations as has been developed and applied to sovereign states. This case has important implications for the evolution of immunities of international organizations over time.
Introduction
Authors: Marboe Irmgard 
Published: June 2017

Abstract
The calculation of compensation and damages plays an important role in international investment arbitration. Claimants are usually interested above all with the question of how much they can expect to receive after a possibly long-lasting legal procedure. In addition, general preventive reasons should also be kept in mind. It follows that the financial assessment of the legal claims should as closely as possible reflect economic realities. This means that generally accepted valuation standards and approaches should be applied which so far has not been self-evident in international legal disputes.
The Function of Compensation and Damages
Authors: Marboe Irmgard 
Published: June 2017

Abstract
This chapter analyses the function of compensation and damages in international investment disputes. It shows that compensation upon expropriation serves a different function than damages after an unlawful act, be it breach of a treaty, such as a BIT, or a contract. While the former aims at the restitution of the ‘value’ of the expropriated property, the latter aims at providing “reparation” for the damage caused by the unlawful act. It follows that expropriation compensation should be equivalent to the ‘objective’ value of the expropriated asset while an amount of damages may also include subjective valuation approaches.
Valuation Standards and Criteria
Authors: Marboe Irmgard 
Published: June 2017

Abstract
This chapter gives an outline of the legal framework of compensation and damages in international investment law. Starting from the standard of compensation upon expropriation under international law it analyses the difference between lawful and unlawful expropriations. It then examines the criteria for valuation in cases of State responsibility and breaches of contract. Furthermore, it addresses the appropriate valuation date as well as the issues of contributory negligence and the duty to mitigate damages. Finally, it discusses the question to what extent equitable considerations and the respondent State’s economic situation should have an influence on the financial outcome of the award.
International Standards, Bases of Value, and Valuation Approaches
Authors: Marboe Irmgard 
Published: June 2017

Abstract
Modern globalized economy has made it necessary to identify uniform or at least comparable principles for the valuation of economic assets. This chapter introduces some of the best known and influential valuation standards and guidelines, such as the USPAP, the AICPA Valuation Standard, the International Valuation Standards, World Bank and MIGA Guidelines as well as UNCC propositions. In addition, some of the most important valuation bases are discussed briefly, such as market value, investment value, special value, synergistic value, and contractual value.
Methods of Valuation in International Practice
Authors: Marboe Irmgard 
Published: June 2017

Abstract
This chapter analyses how the three most important valuation approaches – the market approach, the income approach, and the asset based or cost approach – are reflected in the practice of international investment tribunals. After a short description of the theoretical concept of the respective approaches at the beginning, the corresponding cases are presented and analysed in some detail. The discussion shows that also other approaches are applied in the practice of tribunals, such as mixed methods, insurance value, tax value or contract based valuation. Tribunals sometimes also consider additional types of damages, such as loss of reputation, liability to subcontractors, costs for damage limitation, repair and maintenance, as well as costs for pursuing the claim.
The Impact of U.S. Litigation
Authors: Armas Oliver J , Pieper Thomas N 
Published: June 2017

Abstract
This chapter provides an account of some of the salient aspects of the U.S. legal system that will help non-U.S. readers identify the “litigation baggage” U.S. lawyers may bring to an international arbitration. U.S.-trained lawyers acting as counsel or arbitrators in such cases will naturally bring with them into arbitration certain expectations that flow from their U.S. litigation experience (i.e., the so-called “litigation baggage”), which may differ from those of their non-U.S. trained colleagues. This is a direct product of the adversarial model employed by the U.S. common-law legal system. In the adversarial model, the lawyers take control of the litigation as advocates through much of the process. U.S. litigators will seek to be more involved in case management, feel greater entitlement to broad discovery, and prepare for a witness-oriented hearing.
Drafting Considerations for Clauses Designating New York as the Place of Arbitration
Authors: Friedland Paul D , Nyer Damien 
Published: June 2017

Abstract
This chapter offers recommendations for drafting arbitration clauses that provide for international arbitration in New York. It addresses preliminary issues that, irrespective of the chosen seat of arbitration, must be considered. The literature on this topic is extensive and is summarized accordingly, but the basic rule when drafting an arbitration clause is to start with a model clause. This is so whether or not the clause provides for arbitration in New York. In addition, the chapter also discusses considerations that are specific to arbitration clauses designating New York as the place of arbitration, and offers proposed wording. And, as explained in Chapter 1, the arbitration law applicable to arbitrations located in New York stems from the Federal Arbitration Act (FAA), the New York Convention and the Panama Convention, and the New York Civil Practice Law and Rules (CPLR).
Jurisdiction
Authors: Bermann George A 
Published: June 2017

Abstract
This chapter assesses the allocation of authority in New York, a matter largely governed, in view of its subject, by federal law. It examines the different scenarios in which the question arises, attempting to describe the degree of independent judgment or deference that courts and arbitrators exercise in each scenario. Determining the existence and scope of arbitral jurisdiction is crucial to the legitimacy of an arbitration, which, after all, is a matter of contract. It follows that a court, if called upon to enforce an arbitration agreement or award, should first assure itself that the parties could—and, indeed, did—consent to arbitral jurisdiction. The more difficult questions relate to when such judicial inquiry should occur, how vigorous it should be, and what issues fall within its scope.
Obtaining Preliminary Relief
Authors: Smit Robert H , Robinson Tyler B , Whittaker Janet M 
Published: June 2017

Abstract
This chapter examines the rules, laws, and practices in New York relating to preliminary measures in support of arbitrations that are international in character. Preliminary relief, also referred to as interim relief or preliminary measures, broadly refers to the interim prescriptive measures a court or arbitral tribunal may take to ensure that the arbitration will provide an effective forum for the resolution of the parties’ dispute. Preliminary relief may contemplate, inter alia, protection of assets or property that is the subject of the dispute, preservation or production of evidence relevant to resolving the dispute, or vindication of the jurisdiction of the arbitral tribunal to decide the dispute. It thus serves to protect the efficacy of the arbitral process by equipping parties in arbitration with tools for preventing another party’s frustration of the process. Both arbitrators and national courts can issue preliminary relief in aid of arbitration.
Arbitration Hearings in New York
Authors: Kehoe Edward G , Chrostin Jessica Beess und 
Published: June 2017

Abstract
This chapter provides an overview of relevant administrative and logistical considerations for parties and counsel arbitrating an international dispute in New York City. These are analyzed under federal and New York state law as well as the arbitration rules of the major arbitration centers with offices in New York City. It briefly outlines the rules applicable to the appointment of arbitral tribunals for international commercial arbitrations seated in New York. The chapter then identifies the persons qualified to participate in these arbitrations, and discusses other procedural minutiae relevant to arbitrations proceeding. Moreover, as New York City is a prime business and holiday destination, the chapter lists myriad facilities and services for participants to make use of, in order to further streamline the arbitration process.
Challenging and Enforcing International Arbitral Awards in New York
Authors: Pierce John V H , Carter Janet R , Cinotti David N 
Published: June 2017

Abstract
This chapter addresses the key issues involved in challenging and enforcing international arbitral awards in New York. First, it looks at the procedural issues that a party must consider when seeking to challenge or enforce an international arbitral award in New York. These include, among other things, the form, timing, and service of the application, and the satisfaction of subject-matter jurisdiction, personal jurisdiction, and venue requirements. Second, this chapter examines the substantive grounds available to a party that seeks to vacate, or resist recognition and enforcement of, an international arbitral award in New York. Depending on the circumstances, including the jurisdiction in which the award was made and the terms of the parties’ arbitration agreement, these grounds may be those set forth in the FAA, the New York Convention, and the CPLR.
The Single Point of Entry Approach to Bank Resolution
Authors: Jennings-Mares Jeremy , Pinedo Anna T , Ireland Oliver 
Published: June 2017

Abstract
This chapter analyses the single point of entry (SPOE) approach to bank resolution. The strategy involves the application of resolution powers at the level of the top holding or parent company by a single resolution authority. This resolution authority would probably be located in the jurisdiction responsible for the global consolidated supervision of the banking group. The assets and the continuity of operations of subsidiaries are preserved, which avoids the need to commence distinct resolution proceedings at lower levels within the group. Although a resolution led by the home resolution authority may require assistance from a host authority, in terms of the application of resolution tools locally to support the top level resolution, or to bail-in intra-group debt claims, the principle is that no distinct, independent resolution proceedings should be required, as regards local subsidiaries of the group. The chapter addresses both the UK and US approach to SPOE.
The Operation of the Single Resolution Mechanism in the Context of the EU State Aid Regime
Authors: Kokkoris Ioannis , Olivares-Caminal Rodrigo 
Published: June 2017

Abstract
This chapter addresses the initiatives of the European Commission to maintain the financial stability of the banking sector. It analyses the regulatory reforms on bank recovery and resolution introduced by the EU aimed at creating a Banking Union, and provides an overview of the Bank Recovery and Resolution Directive (BRRD) by taking into account the crisis management tool innovations. It also offers a critical appraisal of the Single Resolution Mechanism (SRM). The initiatives examined here are envisaged in a two-pronged approach: through the uniform rules of the Banking Union and in a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism (SRM) and a Single Resolution Fund (SRF) on one hand, and its interrelation with the state aid rules of the Treaty for the Functioning of the European Union (TFEU) on the other.
The English Law Treatment of Lehman’s Derivatives Positions
Authors: Firth Simon 
Published: June 2017

Abstract
The Lehman Brothers’ insolvencies were not the first to have been experienced in the derivatives market but the size of the outstanding positions was unprecedented. Moreover, the collapse of the group triggered a period of extreme market turbulence, in which the liquidity of many products dried up and their values collapsed. This was the background against which counterparties sought to close out their positions and extricate themselves from their relationships with various members of the group. The work involved in agreeing the resulting claims has been very complicated and has taken a great deal of time, often as a result of debates about the interpretation of standard agreements. The judgments that have been given are of considerable importance to the derivatives market as they have helped to clarify the meaning of standard documentation that remains in widespread use. From a vantage point of some eight years later, this chapter draws some conclusions about the operation of this documentation and presents a critique of the case law that has emerged from the insolvency proceedings.
The Valuation of LBT Notes
Authors: Faber Dennis , Vermunt Niels , Davies Gareth , Helmantel Mark 
Published: June 2017

Abstract
This chapter explores the main issues faced by the Lehman Brothers Treasury Co BV in the Netherlands (LBT) bankruptcy trustees in the valuation of (claims arising from) Notes and Certificates (LBT Notes). Legal and economic aspects of the definitive valuation principles adopted by LBT’s bankruptcy trustees are explained in detail. Although Dutch law applied to the valuation of insolvency claims, some references to foreign valuation regimes is made to illustrate alternative options for the valuation of certain types of insolvency claims or the need for statutory reform. The chapter first provides an overview of the procedure applied by the LBT bankruptcy trustees to establish valuation principles and the role of certain main stakeholders in this process. This chapter also looks at legal and economic aspects of the general valuation regime under the Dutch Bankruptcy Code (Faillissementswet) vis-à-vis the valuation of insolvency claims in the LBT proceedings and concludes with some observations on future legal reform.
International Arbitration in Korea
Authors: Kim Joongi 
Published: June 2017

Abstract
This book provides an introduction to more than 140 arbitral cases and commentaries in Korea. It introduces the arbitration community to the jurisprudence and scholarship of this underappreciated but well-developed jurisdiction. The book encompasses all the major current and historical arbitration cases in Korea, alongside practical and scholarly commentary. In keeping with the growth of international arbitration in Asia, Korea is emerging as an alternative centre of arbitration, and the number of international arbitration cases involving Korean parties remains substantial in major arbitration institutions such as the International Chamber of Commerce, Singapore International Arbitration Centre, and Hong Kong International Arbitration Centre. The Korean Commercial Arbitration Board (KCAB) continues to report substantial growth in the number of international arbitrations. Furthermore, Korea’s Arbitration Act, as well as the KCAB’s own International Rules, were revised in 2016.
The Arbitration Agreement
Authors: Kim Joongi 
Published: June 2017

Abstract
This chapter provides an overview of arbitration agreements in particular—what they entail and how these agreements are formed. Arbitration after all begins with an arbitration agreement between parties to settle a dispute by means of arbitration. Korea’s 2016 Arbitration Act adopts the Model Law definition of an arbitration agreement. It provides that, alongside written requirements, electronic expressions of intent such as those made by email and telex, and other expressions by electronic means, can also be considered as arbitration agreements if the intent of the parties can be confirmed. Further requirements have been laid down in the seminal 2003 case Republic of Korea v Rotem Co. The chapter then goes on to cite further cases that demonstrate the various aspects of an arbitration agreement, such as its institutions, scope, validity and effect, and so on.
The Parties
Authors: Kim Joongi 
Published: June 2017

Abstract
This chapter features court cases showing the various legal obligations and obstacles undergone by the parties to an arbitration agreement, as well as other participating actors, such as exclusions, delegations, successions, and so forth. Some cases involve attempts to bring in other entities, who are not parties to the arbitration, for different reasons. Another section looks at the roles played by agents and non-parties acting on behalf of parties in arbitration disputes. The chapter also reviews the cases that have considered when a corporate entity can be disregarded. Finally, the chapter looks at whether the effect of an arbitral award extends to a successor party, which, like most of the cases covered in this chapter, remains a contentious issue.
Applicable Law
Authors: Kim Joongi 
Published: June 2017

Abstract
This chapter focuses on the choice and enforcement of applicable law in arbitration agreements. In international arbitration cases, Article V(1)(a) of the New York Convention provides that the validity of an arbitration agreement should be first determined under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. Hence, if the parties have not chosen the applicable law for an arbitration agreement, ‘the default rule’ is that the law of the place of arbitration shall apply. This chapter addresses the question as it applies to Korea and considers cases where conflict or a misapplication of the law is in effect. Moreover, it also covers several cases in which courts have applied the Act on International Private Law (AIPL), Korea’s conflict-of-laws statute, to determine the applicable law.
Arbitration Procedure
Authors: Kim Joongi 
Published: June 2017

Abstract
This chapter provides case studies on the issues that arise during the arbitration procedure. It first details a case surrounding a disagreement over the language to be used in the proceedings under the KCAB Rules, before turning to other general topics regarding the arbitration procedure. The chapter here covers cases that reflect the essential steps in any arbitration proceedings: providing proper notice, document production and evidence, hearings, objections, and interim measures. Notably, the chapter shows how the 2016 Arbitration Act provides more extensive provisions than the 2006 Model Law in the taking of evidence by courts on behalf of an arbitration proceeding. At the same time, the Act has also incorporated most of the provisions on interim relief in the 2006 Model Law.
The Role of Courts and Law Regarding Counsel
Authors: Kim Joongi 
Published: June 2017

Abstract
This chapter details the role of courts regarding counsel in an arbitration proceeding. Korean courts will generally only review whether a case should be subject to arbitration or court litigation before an arbitral tribunal has been constituted. After constitution, they will defer to the arbitral tribunal. This development, however, is a recent one. From here the chapter explores a tribunal’s negative competence-competence ruling, which may be subject to court review, as well as the capacity of the courts to provide some measure of interim relief. The chapter also discusses objections during court proceedings, as well as the source of legal fees.
Host States
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
This chapter is organized into two parts. The first part discusses the role of Host States. States have the power to regulate, manage, and tax the mining sector. Mining is heavily regulated due to its significant environmental and social impact. Host States are also parties to international mining disputes either as contracting parties or as regulators. States or State-owned mining companies enter into commercial agreements with respect to their mineral resources, which can result in contractual disputes, both domestic and international. The second part of the chapter describes the principal systems of mineral tenure. These include the landownership regime, which is the traditional system for the original ownership of underground minerals in common law countries. The State ownership regime, under which minerals in the subsoil belong to the State or are administered by the State on behalf of the nation, represents the most common approach to mineral tenure in civil law countries.
Purchase and Joint Venture Disputes
Authors: Burnett Henry G , Bret Louis-Alexis 
Published: June 2017

Abstract
This chapter discusses mineral rights and joint-venture disputes. The sale and purchase of an individual mining project will generally come down to the transfer of mineral rights. Disputes arising in connection with the transfer of mineral rights usually concern the validity and extent of the rights sold and, in particular, the conveyance of the surface rights associated with the project. Such disputes are often contractual in nature, and can be resolved through domestic or international arbitration. Joint ventures involve a relationship between two or more parties, one of which (the operator) will manage the joint venture for the benefit of its co-venturers. Disputes may arise in connection with the operations and management of the joint venture, particularly in purely contractual joint ventures. A frequent matter of contention is the definition of annual work programs and budget and their approval. Disputes may also emerge in connection with the buy-out and valuation of minority interests.