bluuebunny/crossref_metadata_2025_split huggingface dataset:
Freedom of Expression Including Questions Related to Religious Conflicts, Religious Intolerance, and Extremism
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter examines freedom of religion or belief in relation to freedom of opinion and expression. While these rights have their distinct features and applications, they at the same time share many characteristics. Foremost among these is their role in protecting intellectual and communicative freedoms that contribute to a democratic discourse in pluralistic societies. In addition, the legal formulations in articles 18 and 19 of the International Covenant on Civil and Political Rights show striking similarities. It is all the more surprising that freedom of religion or belief and freedom of expression have come to be seen as allegedly standing in contradiction towards each other. Recapturing their close interrelatedness is also important for designing effective policies of combating incitement to acts of religious hatred, in line with the 2012 Rabat Plan of Action elaborated by the United Nations.
Derogation
Authors: Bielefeldt Heiner , Ghanea Nazila , Wiener Michael 
Published: June 2017

Abstract
This chapter explains the international law provision which allows the State to derogate from certain human rights. The possibility for States to derogate from certain rights ‘in time of public emergency which threatens the life of the nation’ may be considered as an unfavourable risk by human rights defenders. The Human Rights Committee, however, recognizes the derogation provision of the International Covenant on Civil and Political Rights (article 4) as being of paramount importance for the system of protection for human rights under the Covenant. It should be noted that not every disturbance or catastrophe qualifies as ‘a public emergency’ for the purposes of article 4(1) and such measures should be of an exceptional and temporary nature, only imposed to the extent strictly required by the exigencies of the situation, subject to a regime of international notification, and should not involve discrimination.
The Persistent Objector Rule in International Law
Authors: Green James A 
Published: June 2017

Abstract
The persistent objector rule is said to provide states with an ‘escape hatch’ from the otherwise universal binding force of customary international law. It provides that if a state persistently objects to a newly emerging norm of customary international law during the formation of that norm, then the objecting state is exempt from the norm once it crystallises into law. The conceptual role of the rule may be interpreted as straightforward: to preserve the fundamentalist positivist notion that any norm of international law can only bind a state that has consented to be bound by it. In reality, however, numerous unanswered questions exist about the way that it works in practice. Through focused analysis of state practice, this book provides a detailed understanding of how the rule emerged and operates, how it should be conceptualised, and what its implications are for the binding nature of customary international law. It argues that the persistent objector rule ultimately has an important role to play in the mixture of consent and consensus that underpins international law.
The History and Emergence of the Persistent Objector Rule
Authors: Green James A 
Published: June 2017

Abstract
This is the first of two chapters which examine the emergence and legal basis of the persistent objector rule. This chapter looks at its origin and validity. It tackles an important issue: whether the rule exists at all as a norm of public international law. Most scholars regard the rule as an aspect of the system, but an important number also have argued that it is an academic fiction with no basis in law. They say that it was simply designed by scholars to patch over a sketchy positivist understanding of international legal obligation based on consent. However, supporters of the rule have generally not provided much in the way of evidence for its existence. The chapter concludes that while the ‘roots’ of the persistent objector rule can be traced back well before 1945, there is insufficient evidence to assert that the rule in its modern incarnation had emerged prior to the Second World War.
The Consistency Criterion
Authors: Green James A 
Published: June 2017

Abstract
The need for consistency is identified regularly in the literature on the persistent objector rule, but this is often implicit or amalgamated/confused with the persistence criterion. This chapter aims to confirm the need for consistent objection, which is a requirement related to, but distinct from, persistence. It then assesses the rationale for the consistency criterion, before turning to the important question of what ‘consistent objection’ in fact entails. The chapter then considers whether a state's objections must be ‘absolutely consistent’ (in the sense of any contrary practice being terminal for its exemption from the relevant norm), or whether a generally consistent pattern of objection will suffice. The chapter also asks whether the silence of a state — in circumstances where it might reasonably be expected to object — can be interpreted as inconsistent practice. Finally, the chapter considers the notion of ‘substantive consistency’, meaning the consistency of a state's position as between related norms: does a persistent objector need to have a principled stance of objection across comparable norms?
The ICC and its Relationship to Non-States Parties
Authors: Cryer Robert 
Published: June 2017

Abstract
Reliable state cooperation remains one of the main challenges for the Court. The Rome Statute establishes a framework for the cooperation of States Parties with the Court, but it does not directly address issues related to the cooperation of non-States Parties who may be required to cooperate with the Court pursuant to UN Security Council referrals. Thus far, ICC practice has been contradictory in relation to duties of arrest and surrender, while the ASP has only gradually taken steps to enhance incentives for compliance. This chapter explores the source and nature of the rights and obligations of non-States Parties vis-à-vis the Court, in particular its relationship with certain powerful states (e.g. the United States), and ways to re-think the existing status quo.
Putting Complementarity in its Place
Authors: Seils Paul 
Published: June 2017

Abstract
The ICC has been less effective than might have been hoped in promoting national prosecutions, and this chapter argues that there are two reasons for this. In the first place, the Court has been used largely as a tactical instrument aimed at affecting ongoing crimes or in dealing with shorter-term interests from self-referring states. Second, even where the Court is able to act strategically with a view to promoting national action, the nature of what it can do and how it should do it is sometimes misunderstood or misapplied. The chapter focuses on a number of recalibrations that can help to reframe expectations. It examines in particular, ways to strengthen complementarity and the use of the phase of ICC preliminary examination by the OTP.
The Selection of Situations and Cases by the OTP of the ICC
Authors: Guariglia Fabricio , Rogier Emeric 
Published: June 2017

Abstract
Selecting situations and cases is one of the key challenges of prosecutorial practice at the ICC and in domestic jurisdictions. This chapter places ICC policies in perspective. It examines prosecutorial strategy and criteria developed by the OTP to determine the choice of situations and cases. It discusses the process and outcome of preliminary examinations, the relevance of triggering mechanisms, and the criteria guiding the selection of cases (independence, impartiality, objectivity, and non-discrimination), including the relevance and treatment of gravity and prosecutorial inaction. It replies to criticisms which have been raised in legal and academic commentary with respect to the selection policy of the Office. It stresses that selection of cases is an evidence-driven process. It argues that the best way to counter unfounded attacks is to scrupulously apply the ICC Statute and to be transparent in its decision-making process.
Indirect Perpetration
Authors: Weigend Thomas 
Published: June 2017

Abstract
Indirect perpetration is a mode of perpetration provided for in Article 25(3)(a) of the ICC Statute. According to the Statute, indirect perpetration requires that the perpetrator commits the offence ‘through another person’, regardless of whether that other person is criminally responsible. Drawing partly on German doctrine, the ICC has interpreted the concept of indirect perpetration to include using a hierarchical organization for making another person commit a crime (organizational control). The Court has also recognized the possibility that several persons jointly commit a crime as indirect perpetrators (indirect co-perpetration). This expansive view has raised objections inside and outside the ICC. The criticism of indirect co-perpetration does not seem justified, but it may be preferable to apply the concept of indirect perpetration without resorting to an organization as a means of control over another person’s will.
The ICC and Common Purpose—What Contribution is Required under Article 25(3)(d)?
Authors: Ambos Kai 
Published: June 2017

Abstract
This chapter discusses the nature and elements of common purpose liability under Article 25(3)(d) of the ICC Statute. It argues that Article 25(3)(d) represents a compromise that tries to combine opposition of state delegations to any form of anticipated (e.g. conspiracy) or organizational/collective liability (e.g. membership liability) with the need to have a form of individual participation in collective criminal enterprises, which is in line with the principles of legality and culpability. It distinguishes Article 25(3)(d) from the concept of joint criminal enterprise applied at other ICCs and tribunals (e.g. ICTY, ICTR, and SCSL), and argues that it is necessary to develop normative criteria for neutral acts of assistance under Article 25(3)(d).
Crimes against Humanity
Authors: Robinson Darryl 
Published: June 2017

Abstract
The most interesting and controversial jurisprudence of the ICC on crimes against humanity revolves around the interpretation of the policy element. Most of the literature has focused on the controversy over whether the organization behind a policy must be state-like. This chapter focuses instead on broader problematic trends in the jurisprudence of the ICC, as typified particularly by early decisions in the Gbagbo and Mbarushimana cases. It argues that some early ICC decisions have, in an apparently inadvertent manner, elevated the policy element and infused it with exceedingly formalized requirements. It defends the view taken in later decisions (e.g. Katanga) that ‘policy’ is a lesser threshold than ‘systematic’, that proof of planning is relevant but not necessary, and that policy need not reflect a unified purpose or motive.
Authors: Hayes Niamh 
Published: June 2017

Abstract
Sexual and gender-based violence is one of the intrinsic features of modern conflict. It has been part of mass atrocity crimes in several ICC situations, including the DRC, Uganda, the CAR, and Darfur. The ICC Statute contains the broadest range of sexual and gender-based crimes ever enumerated. It includes rape, sexual slavery, forced pregnancy, forced sterilization, enforced prostitution, and other forms of sexual violence as both crimes against humanity and war crimes, in both international and non-international armed conflict. This chapter critically examines the practice of the OTP over its first decade. It argues that a strong charging record was undermined by deficient evidence and investigation strategies, and recurring difficulties with the mode of liability and conservative interpretations of crimes and legal characterizations by the Pre-Trial Chamber. It further discusses changes brought about by the 2014 OTP Policy Paper on Sexual and Gender-Based Crimes.
The Role of the Appeals Chamber
Authors: Nerlich Volker 
Published: June 2017

Abstract
This chapter analyses the role and function of the Appeals Chamber of the ICC. The right to appeal under the Statute goes beyond what is mandated by human rights law. This contribution analyses the specificities of appeals in the ICC system, including the relationship of the Appeals Chamber to other Chambers, its jurisdiction over different types of appeal under Articles 81 and 82 (e.g. interlocutory appeal, and appeal against final decisions of the Trial Chamber), review and revision of sentences, and the relevant standards of review. The chapter contrasts approaches of the ICC with the practice of the Appeals Chambers of the ICTY and ICTR, which have used their first cases to clarify and develop the law. It shows that the ICC has taken an approach of judicial restraint. It argues that development of the law in small steps may be the most effective approach to building a lasting and meaningful role of the Appeals Chamber in the ICC system.
External Support and Internal Coordination—The ICC and the Protection of Witnesses
Authors: Eikel Markus 
Published: June 2017

Abstract
The protection of witnesses forms part of the core mandate of the Court. It is a crucial aspect of pre-trial and trial proceedings. The Statute divides institutional responsibilities among different organs (i.e. OTP, Registry, and Chambers), without clearly defining their roles. This Chapter re-visits this relationship and focuses on witness protection as an aspect of governance of the Court. It introduces Court practices, such as risk assessment or the ICC initial response system. It argues that the Court should rely on a comprehensive inter-organ approach in relation to protective measures. It shows that the Court is in need of increased support and cooperation from States Parties and other external actors in order to improve its protective capacity, including relocation. Promoting domestic capacity in the field of protective measures may be a possible way of improvement, but it would require sufficient expertise and neutrality.
The UK Regulatory Framework
Authors: McMeel Gerard 
Published: June 2017

Abstract
This chapter discusses the UK financial regulatory system. The two principal financial regulators are the Prudential Regulation Authority (PRA), responsible for the macro-prudential regulation and supervision of major institutions such as banks and insurance companies; and the Financial Conduct Authority (FCA), with a remit embracing the conduct of business of all financial firms and the micro-prudential supervision of smaller firms. The two regulators were created by the re-writing of the framework Act, the Financial Services and Markets Act 2000, by the Financial Services Act 2012. The chapter provisions of the 2000 Act and describes the FCA's and the PRA's Handbooks.
Negligence
Authors: McMeel Gerard 
Published: June 2017

Abstract
This chapter considers cases where the general principles of negligence play a role in establishing that the provider of financial advice or information is under a common law duty to take reasonable care and skill in respect of that activity. The seminal case establishing liability for negligent words (as opposed to deeds) was Hedley Byrne v Heller & Partners. More recently there has been considerable judicial vacillation over the appropriate test for establishing a duty of care in new situations. After some doubts, the principal test of assumption of responsibility has been rehabilitated. In addition, the three-stage approach and the incremental approach must be considered.
Standards of Conduct for Investment Advice, Stockbroking, and Portfolio Management
Authors: McMeel Gerard 
Published: June 2017

Abstract
This chapter discusses the development of investor protection rules. Since the implementation of the Financial Services Act 1986 (the 1986 Act) there have been four major phases of regulatory rules for investor protection in the retail financial sector. First, under the 1986 Act (from 1988-1994) there was the regime comprising the regulatory rules of various self-regulation organisations, principally the Life Assurance and Unit Trust Regulatory Organisation (LAUTRO) and the Financial Intermediaries, Managers, and Brokers Regulatory Association (FIMBRA). Secondly, under the same legislation (from 1994 to 2001), the Personal Investment Authority superseded LAUTRO and FIMBRA. Thirdly, under the Financial Services and Markets Act 2000 on 1 December 2001, the Conduct of Business Sourcebook (COB) component of the Financial Services Authority's Handbook of Rules and Guidance consolidated and superseded its various predecessor regulators' rulebooks for the conduct of investment business. The fourth phase arrived on 1 November 2007 with a brand COBS, with the additional S indicating a brand new rulebook superseding in full the COB which was in place from 2001 to 2007.
Regulated Collective Investment Schemes
Authors: Dunn Tom 
Published: June 2017

Abstract
Regulated funds continue to attract retail investors due to the diverse investment opportunities and economies of scale they offer. Developments in the structuring of funds, their distribution, and wholesale changes to the regulatory environment mean that the fund industry in the UK continues to change at a rapid pace. This chapter examines the law governing collective investment schemes and their operators in the UK, focusing on funds marketed to the retail public.
Remedies
Authors: Fentem Ross 
Published: June 2017

Abstract
This chapter considers the law on remedies for investor losses. It explains how the advice, recommendation, information, or opinion tendered by the financial adviser must be considered from three perspectives: that of the specific person, who is the object of the adviser's retainer; in respect of the specific purpose for which the advice was sought; and in reference to the specific transaction into which the individual enters in reliance on the advice given. It then discusses damages under the Financial Services and Markets Act 2000; compensation for specific produces, including protection policies, pension products, mortgage products, and investment products; incidental heads of claim; regulatory remedies; judicial review of decisions of the FCA, the FSCS manager, and the FSO.
Financial Services and Solicitors
Authors: Virgo John 
Published: June 2017

Abstract
A variety of professional firms, including accountants and actuaries, offer investment advice and conduct investment business in the course of trading. This can attract an authorization requirement under the provisions of the Financial Services and Markets Act 2000. This chapter focuses on solicitor firms. It describes the regime as it applies to solicitor firms, both as regulated historically and in relation to such firms carrying on mainstream investment business activity after 1 December 2001.
Financial Markets in Hong Kong
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Kwok-Sang Tse Maurice 
Published: June 2017

Abstract
This new edition provides a guide to the main areas of financial regulation and financial law in Hong Kong. Given the massive changes in financial regulation globally as a result of the 2008 global financial crisis and post-crisis international regulatory reforms, this book addresses these changes in Hong Kong markets and their legal and regulatory frameworks, as well as the implications of these changes to future market development. The book is in five parts. The first part considers the evolution of Hong Kong’s role as a financial centre and the development of its financial regulatory structure, one that is perhaps unusually complex given the size of the jurisdiction. The second part discusses the regulation of the banking, securities, and insurance sectors, including the regulatory powers of the Hong Kong Monetary Authority (HKMA), the Securities and Futures Commission of Hong Kong (SFC), the Office of the Commissioner of Insurance (OCI), and the forthcoming independent Insurance Authority (IA). The third part covers regulation of financial products and services, including securities offerings and listings, investment products and asset management, financial derivatives, and takeovers and mergers. The fourth part addresses market conduct and misconduct, including corporate governance, market abuse, and financial crime. Finally, the fifth part examines the international context, focusing on the relationship between Hong Kong’s financial markets and regulation and mainland China as well as key issues for Hong Kong’s role as a major global financial centre.
Financial Regulatory Structure
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang 
Published: June 2017

Abstract
This chapter describes the overall legal and regulatory framework supporting financial markets in Hong Kong. This is developed in tandem with, and in response to, their characteristics. Regulatory reforms in the financial markets of Hong Kong have typically been developed after a financial crisis and market failure. However, while Hong Kong has not always had effective systems of financial regulation, it has been steadily strengthening its regulatory framework both for financial markets and institutions. This chapter argues that the increasing effectiveness of its legal and institutional regulatory framework has enhanced its development as an international financial centre over the past two decades and will be vital to its continued success in the future. The chapter concludes by outlining the common objectives of the Hong Kong financial regulators today.
Securities Regulation
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang 
Published: June 2017

Abstract
This chapter outlines the evolution of the system of securities regulation in Hong Kong and the regulation of financial intermediaries, products, and services in the context of securities. Prior to 1987, capital market regulation in Hong Kong was minimal, with all the various exchanges operating largely on the basis of self-regulation in the context of the common law framework. The market crash of October 1987 triggered a review of the regulatory framework. Significantly, during the last decade the Hong Kong securities and futures market has gone through a profound transformation from a largely domestic market to an international market with active trading in equity and derivative products. The chapter concludes by stating that Hong Kong’s legal and regulatory framework for securities is comprehensive and of an international standard. However, at the same time the system’s many divisions allow certain risks to be unaddressed.
Insurance Regulation, the Office of the Commissioner of Insurance, and the Insurance Authority
Authors: Arner Douglas W , Hsu Berry FC , Goo Say H , Johnstone Syren , Lejot Paul , Tse Maurice Kwong-Sang 
Published: June 2017

Abstract
This chapter looks in detail at the legal and regulatory framework for insurance in Hong Kong. The chapter examines the regulation of financial intermediaries, products, and services in the context of insurance. It concludes that Hong Kong’s regulatory system for insurance is comprehensive and of an international standard. The legal and regulatory framework for the insurance market in Hong Kong consists of the Insurance Companies Ordinance (ICO), a statutory body called the Office of the Commissioner of Insurance (OCI), and self-regulatory measures. These are supplemented by a large body of common law. However, at the time of writing, this is set to change, with the establishment of a new independent Insurance Authority (IA) with a much broader regulatory remit.