Books: 'Jurisdictional clauses'

1

Sparka, Felix. Jurisdiction and Arbitration Clauses in Maritime Transport Documents. Berlin, Heidelberg: Springer Berlin Heidelberg, 2010. http://dx.doi.org/10.1007/978-3-642-10222-6.

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Sparka, Felix. Jurisdiction and arbitration clauses in maritime transport documents: A comparative analysis. Heidelberg: Springer, 2010.

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Sparka, Felix. Jurisdiction and arbitration clauses in maritime transport documents: A comparative analysis. Heidelberg: Springer, 2010.

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4

Törber, Gunnar. The contractual nature of the optional clause. Oxford, United Kingdom: Hart Publishing, 2015.

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5

International Congress of Comparative Law (14th 1994 Athens, Greece). Les clauses d'exception en matière de conflits de lois et de conflits de juridictions, ou, le principe de proximité: XIVe congrès international de droit comparé = Exception clauses in conflicts of laws and conflicts of jurisdictions, or, the principle of proximity : XIVth International Congress of Comparative Law. Dordrecht: M. Nijhoff Publishers, 1994.

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6

Wolf, Ronald Charles. The practitioners' treatise on international joint ventures: Basic structures, essential documents, special problems, common and civil law jurisdictions with multiple clauses and forms. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2015.

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7

Lupoi, Michele Angelo. Conflitti transnazionali di giurisdizioni. Milano: A. Giuffrè, 2002.

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8

Ribstein, Larry E. The law market. New York: Oxford University Press, 2009.

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9

Katia, Yannaca-Small. Part III Guide to Key Jurisdictional Issues, 16 The Umbrella Clause: Is the Umbrella Closing? Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0016.

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‘Umbrella clauses’ are inserted in treaties to provide additional protection to investors and are directed at covering investment agreements that host countries frequently conclude with foreign investors. Inclusion of umbrella clauses in investment treaties provides a mechanism to make host States’ promises ‘enforceable’ and comes as an additional protection of investor-state contracts, which raises the controversial issue of whether the umbrella clause seeks to elevate contractual breaches to treaty breaches. For a better understanding of the clause, this chapter (i) gives an overview of its history; (ii) briefly discusses the significance of the language included in a number of bilateral investment treaties; and (iii) looks at the effect, scope and conditions of application of the umbrella clause as interpreted by arbitral tribunals.

10

Campbell, McLachlan, Shore Laurence, and Weiniger Matthew. Part II Ambit of Protection, 5 Nationality. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780199676798.003.0005.

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Chapter 5 examines the nationality of the claimant as a jurisdictional condition to the ambit of protections afforded by investment treaties. It first provides an overview of the nationality requirement in investment law before discussing the role of precedent in resolving three key controversial jurisdiction ratione personae issues: (1) the dual nationality of individuals; (2) the problems arising from corporations under foreign control; and (3) the restructuring of corporate nationality in order to seek to achieve the benefits of treaty protection. The chapter analyses the nationality and control requirements of both the ICSID Convention and of investment treaties themselves. It concludes with the effectiveness of denial of benefits clauses.

11

Marshall, Brooke. Asymmetric Jurisdiction Clauses. Oxford University Press, 2022.

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12

Roger, Halson. Liquidated Damages and Penalty Clauses. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198785132.001.0001.

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This book focuses on liquidated damages and penalty clauses, and analyses the common law jurisdiction to control stipulated damages clauses, as well as the distinction between enforceable liquidated damages clauses and unenforceable penalty clauses. The first part of the book examines the historical origin of the control of these clauses; the second part describes the current control of such clauses and their legal effect, while the third part of the book critically examines the various rationales that have been proposed to justify their regulation. The final part of the book describes analogous provisions and how to avoid drafting contractual clauses that are rendered unenforceable by the penalty rule. The book examines approaches in several common law jurisdictions in addition to England and Wales, including the United States, Australia, New Zealand, and Canada, and brings together principles developed in distinct commercial law contexts (such as shipping contracts) to enable comparison between particular contractual settings.

13

Sparka, Felix. Jurisdiction and Arbitration Clauses in Maritime Transport Documents. Springer, 2010.

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14

William A, Schabas. Part 13 Final Clauses: Clauses Finales, Art.124 Transitional provision/Disposition transitoire. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198739777.003.0129.

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This chapter comments on Article 124 of the Rome Statute of the International Criminal Court. Article 124 entitles a State, in becoming a party to the Statute, to declare that it does not accept the jurisdiction of the Court with respect to war crimes alleged to have been committed by its nationals or on its territory. Thus, if a State declares that it does not accept the Court's jurisdiction over war crimes, does this mean that its nationals cannot be prosecuted, even if the crime is committed on the territory of another State Party, as would ordinarily be the case? Does article 124 allow the creation of a privileged group of nationals who are insulated from prosecution by the Court for war crimes, wherever they are committed?

15

William A, Schabas. Part 13 Final Clauses: Clauses Finales, Art.121 Amendments/Amendements. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198739777.003.0126.

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This chapter comments on Article 121 of the Rome Statute of the International Criminal Court. Article 121 is the general provision on amendment of the Rome Statute. After the expiry of seven years from the entry into force of the Statute, any State Party may propose amendments. The proposed amendment is voted upon at the next session of the Assembly of States Parties. An amendment only enters into force when seven-eighths of the States Parties have deposited instruments of accession or ratification. A State that does not agree may withdraw from the Statute with immediate effect. A special regime is established for changes to the subject-matter jurisdiction of the Court.

16

William A, Schabas. Part 13 Final Clauses: Clauses Finales, Art.120 Reservations/Réserves. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198739777.003.0125.

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This chapter comments on Article 120 of the Rome Statute of the International Criminal Court. Article 120 prohibits reservations to the Statute. The Vienna Convention on the Law of Treaties defines reservation as a unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. Although prohibiting reservations as such, the Statute authorizes certain declarations. Specifically, States may declare the language of correspondence and other details for purposes of legal assistance, and that they agree to accept prisoners from the Court. Two declarations expressly provided by the Rome Statute are, in reality, reservations. Both exclude the State Party from the subject-matter jurisdiction of the Court with respect to certain categories of crime.

17

Suteu, Silvia. Eternity Clauses in Democratic Constitutionalism. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198858867.001.0001.

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This book makes a critical contribution to the growing literature on constitutional unamendability, as well as to the broader scholarship in the field of comparative constitutional change. It represents a unique analysis of unamendability in democratic constitutionalism that engages critically and systematically with its perils, offering a much-needed corrective to existing understandings of this phenomenon. This book takes seriously the democratic challenge that eternity clauses pose and argues that this goes beyond the old tension between constitutionalism and democracy. It adopts a contextual approach that allows for more nuanced understandings of constitutional amendment rules and substantive limits on amendments. It also looks beyond the usual suspects typically discussed in this literature and brings to the fore a variety of case studies from non-traditional jurisdictions. Together, these insights illuminate the prospects of unamendability fulfilling its main intended aim, that of protecting constitutional democracy.

18

Törber, Gunnar. Contractual Nature of the Optional Clause. Bloomsbury Publishing Plc, 2017.

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19

Kupelyants, Hayk. Jurisdiction and Cognate Matters. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198807230.003.0004.

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Chapter 3 examines the international jurisdiction in sovereign debt disputes and particularly the following matters: service of proceedings; the jurisdiction under the Brussels Regulation, the jurisdiction under English national rules; individual standing of beneficial bondholders; class actions. The chapter also examines the issue of pre-emptive strikes in sovereign debt litigation, in other words whether private creditors may initiate legal actions before the conclusion of the sovereign debt restructuring and how courts may constrain such litigation. The chapter argues that the English courts may stay proceedings if they are brought in contravention of the powers of bondholders under majority action clauses. The chapter lastly addresses the issue of whether the majority may modify the bonds after the English court has issued a judgment.

20

Hayk, Kupelyants. 3 Jurisdiction and Cognate Matters. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198807230.003.0004.

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Chapter 3 examines the international jurisdiction in sovereign debt disputes and particularly the following matters: service of proceedings; the jurisdiction under the Brussels Regulation, the jurisdiction under English national rules; individual standing of beneficial bondholders; class actions. The chapter also examines the issue of pre-emptive strikes in sovereign debt litigation, in other words whether private creditors may initiate legal actions before the conclusion of the sovereign debt restructuring and how courts may constrain such litigation. The chapter argues that the English courts may stay proceedings if they are brought in contravention of the powers of bondholders under majority action clauses. The chapter lastly addresses the issue of whether the majority may modify the bonds after the English court has issued a judgment.

21

Roger, Halson. 4 The Rationale for the ‘Penalty’ Jurisdiction. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198785132.003.0004.

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This chapter examines whether the current law with regard to stipulated damages clauses can be justified by reference to a single, or multiple, policy objectives. In the Cavendish case, counsel for Cavendish urged the Supreme Court to abolish the penalty rule. The Supreme Court mainly examined the penalty jurisdiction from a historical and comparative perspective but more briefly canvassed other rationales. The chapter considers all of the ‘justificatory’ arguments discussed in Cavendish and other cases, as well as those advanced in academic writing. It begins by looking at the context of the penalty jurisdiction in the broader law of contract. In other words, the relationship between the penalty jurisdiction and the principle of self-determination, often summarised as the freedom to contract, is discussed.

22

Roger, Halson. 1 The Historical Origins of the ‘Penalty’ Rule. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198785132.003.0001.

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The penalty doctrine has recently been subject to extensive review in the highest appellate courts of the Supreme Court of the UK and the High Court of Australia. Despite the agreement between senior appellate tribunals in the two major common law jurisdictions on the importance of a historical perspective, both propose subtly different historical analyses to justify very different conclusions about the ambit of the modern common law jurisdiction to set aside so-called penalties. This disagreement makes necessary an investigation of the history of the control of penalty clauses back to its earliest origins, in order to understand the modern doctrine. This chapter discusses the early history prior to 1600, later history from 1600 to 1915, and the case of Dunlop Pneumatic Tyre Co v New Garage and Motor Co (1915).

23

Daniel, Clarry. III Trust Arbitration as a Matter of National Law, 11 The Removal of Trustees by Arbitration: Australia and England. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198759829.003.0011.

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This chapter analyzes the supervisory function of the court in trust litigation and describes the extent to which that role can be fulfilled by arbitrators. It uses the Rinehart case as an example, in which a family feud over a trust holding assets valued at upwards of AU$9 billion generated a dispute regarding the removal of Gina Rinehart as trustee in which issues arose as to the applicability and validity of an alternative dispute resolution (ADR) clause. It argues that disputes concerning the removal of trustees can be submitted to arbitration whilst preserving the Court’s distinct supervisory jurisdictions over arbitration and trust administration as means to different ends. Whilst a supervisory jurisdiction is attached to arbitration, thereby facilitating the enforcement of arbitral awards, a distinct supervisory jurisdiction over trust administration is preserved that facilitates the ongoing performance of the trust above and beyond arbitration.

24

Craig, Tevendale, and Bakstad Samantha. Part I Commercial Arbitration in the Energy Sector, 2 Upstream Oil and Gas Disputes. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198805786.003.0002.

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This chapter focuses on Joint Operating Agreements (JOAs). A JOA is an agreement between two or more companies which defines their respective rights and obligations in the exploration of a hydrocarbon project. The purpose of the JOA is for the participating companies to share risks (costs) and rewards (revenues) in relation to the project, and to define their respective roles. Among other things, the chapter discusses leading model form JOAs, as well as the interpretation and application of clauses typically found in JOAs, such as exculpatory or liability limitation clauses, pre-emption clauses, and clauses dealing with the consequences of a party's default or forfeiture. It also analyzes case law from various jurisdictions regarding implied or statutory obligations, such as duties of ‘good and fair dealing’ and fiduciary duties amongst the partners.

25

St John, Taylor. Layering. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198789918.003.0007.

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Chapter six probes how investor–state arbitration was layered into investment treaties. The ICSID Secretariat played a pivotal role in the initial spread of clauses providing access to arbitration in treaties, and the available evidence does not bring forth any other actors that could have played this role. Shortly after the ICSID Convention came into force, the ICSID Secretariat released Model Clauses providing guidance on how to consent to ICSID’s jurisdiction, and as part of the World Bank, the Secretariat had privileged access to governments. At the Secretariat’s recommendation, governments even enshrined direct access to ICSID in their domestic law. The Secretariat’s promotion of advance consent in BITs was crucial for creating “investment treaty arbitration”: following the Secretariat’s advice, several European states inserted advance consent clauses in their model BITs, and these clauses subsequently became standard practice for BITs around the world.

26

Tomuschat, Christian. State Responsibility and the Individual Right to Compensation Before National Courts. Edited by Andrew Clapham and Paola Gaeta. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780199559695.003.0031.

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Normally, states parties to an armed conflict settle the financial consequences of that conflict in the traditional way, if ever they reach agreement, by concluding comprehensive treaties that embrace also all the claims that their nationals may have acquired on account of the conflict. The most common form of reparation consists of lump sum payments that do not differentiate between the different groups of victims. Remedies for individuals are not available within the framework of international humanitarian law (IHL) at the international level. This chapter explores state responsibility and the individual right to compensation before national courts, in particular violations of IHL. It looks at compensation claims before the courts of the alleged wrongdoing state, as well as those claims outside the alleged wrongdoing state. It considers national reparation programmes, tort claims arising from military operations during non-international armed conflict, tort claims arising from international armed conflict, the territorial clause,jus cogensversus jurisdictional immunity, implications for public policy, and universal jurisdiction for reparation claims.

27

Kokkini-Iatridou, D. Les Clauses d'Exception En Matiere De Conflits De Lois et De Conflits De Jurisdictions - Ou le Principe De Proximite:Exception Clauses in Conflicts of ... - or the Principle of Proximity. Springer, 1994.

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28

William W, Park. Part I International Arbitration Law, Arbitral Jurisdiction, and Arbitral Institutions, 1 Explaining Arbitration Law. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0002.

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This chapter considers the challenges in explaining arbitration law. Unlike most fields of law that provide guidance on how courts decide cases, arbitration law tells judges when not to decide disputes, in deference to private decision-makers selected by the litigants. However, if one side regrets a decision to arbitrate, or the parties diverge about what the arbitration clause covers, courts may be asked to assist in implementing the arbitration agreement or resulting award. At such moments, arbitration law normally includes two limbs: first, to hold parties to their bargains to arbitrate; second, to monitor the basic integrity of the arbitral process, so the case will be heard by a fair tribunal that listens before deciding, stays within its mission, and respects the limits of relevant public policy. The chapter then discusses case studies that illustrate two issues that persistently vex courts and commentators: allocating tasks between judges and arbitrators; and determining what law applies to an arbitration clause.

29

Bernard H, Oxman. 18 Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198715481.003.0018.

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The settlement of disputes between States is generally not regulated by municipal law and municipal courts but by international law regulated by treaty. Because States are not subject to the jurisdiction of international tribunals absent express consent, an important function of dispute settlement clauses in treaties is to indicate whether such consent is granted and, if so, with respect to which disputes before which tribunals. This chapter discusses the following: the obligation of states to settle disputes peacefully; the duty to arbitrate or adjudicate disputes under the United Nations Convention on the Law of the Sea (LOSC); choice of forum for compulsory settlement of LOSC disputes; nature of dispute; procedural and substantive limitations on jurisdiction under Section 2 of Part XV of the LOSC; and institutional constraints on the exercise of jurisdiction.

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Faber, Dennis, Niels Vermunt, Jason Kilborn, and Kathleen van der Linde, eds. Treatment of Contracts in Insolvency. Oxford University Press, 2013. http://dx.doi.org/10.1093/oso/9780199668366.001.0001.

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This is the second title in the new Oxford International and Comparative Insolvency Law Series. Virtually any insolvency needs to deal with the matter of contractual obligations and this book focuses on the extent to which insolvency law interferes with those obligations and relationships. As with the first volume in the series, the topic is addressed through national reports from nineteen of the main economically developed countries, all of which follow a uniform structure. This format enables easy comparison between the jurisdictions and substantially enhances the accessibility of material on a jurisdiction to foreign lawyers. It is essential for all commercial lawyers to consider the implications of insolvency (whether of their client or of the counter-party) on any contract that is under discussion, particularly where there are international aspects to the transaction. This work provides authoritative guidance on the consequences of insolvency on the contractual relationship covering issues such as performance, rights of counterparties, and the special treatment of specific contracts. Also considered are the effects of pre-insolvency negotiated contractual remedies such as flip clauses, automatic termination, acceleration clauses, close out netting provisions, flawed/conditional rights and penalty provisions. There is also guidance given on striking a balance between competing interests in an insolvency situation, for example social concerns raised by some employment contracts. Quality, uniformity and the high level of detail of National Reports are the key benefits of this book. The topic of the treatment of contracts is one in which there are significant differences internationally making this volume a valuable reference tool for practitioners, scholars, and postgraduate students alike.

31

Reinisch, August. Introductory Note. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190848194.003.0034.

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In 2015, the jurisprudence of International Centre for Settlement of Investment Disputes (ICSID) tribunals and ad hoc committees largely followed established lines. However, the awards on jurisdiction in the Poštová banka and the Ping An cases evidenced very restrictive approaches to what is required in order to uphold jurisdiction over ICSID claims. On the substance of claims, the tribunals in Tidewater and in Quiborax reaffirmed the legality requirements of expropriations, a string of cases clarified the contours of the fair and equitable treatment standard, while the ad hoc committees in the Daimler and the Kılıç cases continued to diverge on the scope of most-favoured nation (MFN) clauses.

32

Reyes, Anselmo, and Weixia Gu, eds. Multi-Tier Approaches to the Resolution of International Disputes. Cambridge University Press, 2021. http://dx.doi.org/10.1017/9781108854306.

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Multi-tier dispute resolution (MDR) entails an early attempt at mediation followed by arbitration or litigation if mediation is unsuccessful. Seemingly, everyone acknowledges MDR's attractiveness as a means of resolving disputes due to its combination of the flexibility and informality of mediation with the rigour and formality of arbitration or litigation. Yet, the question is why, except in China and some Asian jurisdictions, MDR is not resorted to around the world and MDR clauses in commercial contracts remain relatively uncommon. This book responds to that question by (1) surveying global regulatory approaches frameworks for MDR, (2) comparing MDR trends in Asia and the wider world, (3) identifying MDR's strengths and weaknesses, and (4) prescribing ways to address MDR's weaknesses (the enforceability of MDR clauses, the difficulties arising when the same person acts as mediator and decision-maker in the same dispute, and the enforcement of mediated settlement agreements resulting from MDR).

33

Tang Hang, Wu, and Tan Paul. III Trust Arbitration as a Matter of National Law, 15 Singapore: Trust Disputes and Arbitration. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198759829.003.0015.

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This chapter examines the question of the arbitrability of trust disputes in Singapore. In so doing, it discusses various issues which are said to present obstacles to the arbitration of trust disputes, and their applicability and relevance in the Singapore context. These are: whether an arbitration clause in a trust deed is considered to be an agreement to arbitrate; whether arbitrations are impermissible for ousting the courts’ jurisdiction; whether a clause in a trust which purports to be an arbitration agreement can bind the beneficiaries of a trust; whether arbitration can satisfy the requirement for proper representation of unascertained, unborn and legally incompetent beneficiaries; and whether trust disputes are inherently arbitrable. It shows that at least for disputes between beneficiaries and the trustee of a donative trust, there is some uncertainty whether a clause referring matters to arbitration is binding on the beneficiaries.

34

Tjakie, Naudé. Ch.2 Formation and authority of agents, Formation V: Arts 2.1.19–2.1.22—Standard terms, Art.2.1.22. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0039.

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This commentary focuses on Article 2.1.22 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning battle of forms. The ‘battle of forms’ arises where the parties reach agreement on the essential terms, usually through a reply to an offer which identifies itself as an acceptance, but both parties indicate, more or less automatically, that their respective standard terms should govern the contract. Since the standard terms often conflict with each other, the question arises whether a contract has actually been concluded at all and, if so, which of the inconsistent standard terms should apply in a given situation. In this regard, Art 2.1.22 follows the ‘knock-out’ doctrine. This commentary discusses battle of forms and the general rules on offer and acceptance, requirements for application of the knock-out rule, result of applying the knock-out rule, battle of conflicting choice of law clauses and jurisdiction clauses, and other possible solutions to the battle of forms and the case for the knock-out doctrine.

35

Emir, Astra. 5. Equal Pay. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198814849.003.0005.

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This chapter considers those provisions of the Equality Act 2010 that deal with equal pay. These include equality of terms and the sex equality clause (s 66); equal work (s 65), ie like work, work rated as equivalent and work of equal value; the defence of material factor (s 69); sex discrimination in relation to contractual pay (s 71); the maternity equality clause (s 73); discussions about pay (s 77); and gender pay gap reporting (s 78). Also covered are rules on jurisdiction (s 127); burden of proof (s 136); time limits (s 129); remedies (s 132); death of a claimant; and backdating awards.

36

Reinisch, August. Introductory Note. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190923846.003.0031.

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In 2016, the jurisprudence of ICSID tribunals and ad hoc committees largely followed established lines. However, two jurisdictional decisions evidenced that the Salini test seems to have been almost eviscerated. The use of the GATS MFN clause to access investment arbitration was rejected in Menzies and forged documents led to the inadmissibility of investment claims in Churchill Mining. The Philip Morris case addressed core issues of host state regulatory measures and investment protection standards. Several cases clarified the role of compensation as a legality requirement for expropriation, while others made the due diligence standard states owe under full protection and security more precise and one tribunal held that an investor could not even import more favourable substantive standards under the applicable MFN clause. Two annulment committees ruled on the impartiality and independence of arbitrators and the issue of “surprise arguments.”

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Assefa, Fiseha. Part III The Relationship Between the Judiciary and the Political Branches, 11 Relations Between the Legislature and the Judiciary in Ethiopia. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198759799.003.0012.

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This chapter examines the relationship between the judiciary and the legislature in Ethiopia. The country has adopted a parliamentary system of government, but by contemporary standards, it has some unusual features. Its governments have historically blended judicial and executive functions, leaving the position of the judiciary somewhat unclear, and the Supreme Court has not tended to assert its power. There are signs of the use of legislative overrides to reverse individual decisions, and of ouster clauses to transfer jurisdiction on various issues from the courts to administrative tribunals within the executive. Although lower courts have attempted to review decisions of these tribunals, the Supreme Court has overruled them on the basis that it lacks jurisdiction. The highest ranks of the judiciary therefore seem to be accepting of a vision of the separation of powers in which other branches define the judicial role.

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George A, Bermann. Part II Investor-State Arbitration in the Energy Sector, 9 ECT and European Union Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198805786.003.0009.

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This chapter also looks at issues that typically arise in Energy Charter Treaty (ECT) cases. In particular, it explores those cases in which respondent states have made use of EU law in mounting a jurisdictional or substantive defence under the ECT. First, regarding EU law as a jurisdictional defence, the chapter looks both at intra-European BIT cases and intra-European ECT cases. Regarding the latter, the chapter addresses, among other things, the critical question of whether the ECT is applicable to disputes between an EU member state and a national of another EU member state, or whether such application is precluded by an implicit ‘disconnection clause’ under the ECT, as argued by the EU Commission. Second, regarding EU law as a substantive defence, the chapter analyzes scenarios in which EU law arguably requires conduct, on the part of a member state, that the ECT itself forbids, or vice versa.

39

Meza, Rita Villanueva. Electronic commerce & jurisdiction: Are forum selection clauses in online contracts enforceable? An analysis focused on Canadian and American case law and the works on jurisdiction of The Hague Conference of Private International Law. 2004.

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40

Tjakie, Naudé. Ch.2 Formation and authority of agents, Formation V: Arts 2.1.19–2.1.22—Standard terms, Art.2.1.19. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0036.

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This commentary focuses on Article 2.1.19 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning contracting under standard terms. Art 2.1.19 stipulates that where one party or both parties use standard terms in concluding a contract, the general rules on formation apply, subject to Articles 2.1.20–2.1.22. It spells out three cumulative criteria for provisions to qualify as ‘standard terms’: the terms must be drafted in advance; they must be for general and repeated use by one party; and they must actually be used without negotiation with the other party. This commentary discusses express vs implied incorporation of standard terms as well as special requirements for incorporation of arbitration and jurisdiction clauses.

41

Campbell, McLachlan, Shore Laurence, and Weiniger Matthew. Part II Ambit of Protection, 4 Parallel Proceedings. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780199676798.003.0004.

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Chapter 4 deals with a complex set of problems that have arisen in determining the relationship between parallel claims in investment arbitration and other forms of dispute resolution, including proceedings in host State courts. Five issues which arbitral tribunals have had to confront in considering the impact of other forms of dispute resolution upon their jurisdiction are explored in particular: (1) the distinction between breach of contract and breach of treaty; (2) election, waiver, and ‘fork in the road’; (3) prior resort to local remedies; (4) internationalised contract claims and ‘umbrella clauses’; and (5) parallel treaty arbitration. The chapter considers the extent to which the general doctrines of lis pendens, res judicata, election, waiver, and abuse of process are capable of application in investment treaty arbitration.

42

Tina, Wüstemann, and Huber Roman. III Trust Arbitration as a Matter of National Law, 17 Trust Arbitration in Switzerland. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198759829.003.0017.

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This chapter argues that Switzerland’s importance as centre for trust services as well as its longstanding tradition in international arbitration make it a perfect venue for trust arbitration, particularly in light of the scarcely developed arbitration law and practice in several offshore trust jurisdictions. Against this background, it examines whether trust disputes can be arbitrated in Switzerland, with a particular focus on the recognition of arbitration clauses in trust deeds. While Switzerland does not provide for the institution of trusts in its substantive law, it has ratified the Hague Trust Convention with took effect from 1 July 2007 and has enacted new conflict of law provisions, in particular Articles 149a to 149e of the Private International Law Statute (PILS), which operate so as to allow the full ‘implantation’ (or incorporation) of foreign trusts into Swiss law.

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Kaj, Hobér. Part II Investor-State Arbitration in the Energy Sector, 8 Overview of Energy Charter Treaty Cases. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198805786.003.0008.

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This chapter analyzes rendered awards and pending Energy Charter Treaty (ECT) cases using detailed statistical data on the disputes overall (including the number of cases brought and their outcomes), the parties involved (including the types of investors making use of the ECT, and most frequent respondent states), the underlying investment (including the different energy sectors concerned), and the arbitration rules used. It also discusses a number of issues that often arise in ECT cases. First, the chapter looks at jurisdictional objections regularly raised by respondents, including the provisional application of the ECT under Article 45; the ‘denial of benefits’ clause of Article 17(1); and the definition of an ‘investment’ under Article 1(6). The chapter then analyzes selected merits issues that have been addressed in the ECT awards rendered to date. Finally, this chapter considers the future of the ECT.

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Kent, Roach. Part V Rights and Freedoms, A Litigating and Interpreting the Charter, Ch.32 Charter Remedies. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780190664817.003.0032.

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This chapter argues that interpretative remedies have qualified the supremacy clause in section 52(1) of the Constitution Act, 1982 and should only be used when courts can avoid making choices best left to the legislature. It also suggests that suspended declarations of invalidity facilitate dialogue between courts and legislatures but should, as in the recent assisted dying case, be administered so that litigants not suffer irreparable harm during the suspension. Rights may be better enforced and developed in the criminal than the civil trial context because stronger remedies such as exclusion of evidence are available whereas most awards of Charter damages have been modest. Canadian courts prefer declarations or individual remedies such as damages or habeas corpus over the use of injunctions and the retention of jurisdiction. This has impoverished Charter rights relating to conditions of confinement, illustrating how remedies affect and even shape rights.

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Goodrich, Peter. Aquatopia. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199670055.003.0010.

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Jurisdiction over the water has always been a somewhat chimerical and fluid legal topic. For the Romans it was the exemplum of what is held by all in common, a public good and so by connotation a sacred thing. Arguing against the standard interpretation of common law imperialism based on superficial readings of Mare clausum, this chapter argues that in a fully humanistic vein Selden in the main supported the idea of holding the oceans and seas in common. Selden puts much textual energy and inventiveness into protecting the ports and the shores of islands such as Britain, but, as to the ocean itself, he cites the story of King Canute and argues that God alone owns those aquatopic spaces.

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James H, Carter, and Fellas John, eds. International Commercial Arbitration in New York. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198753483.001.0001.

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New York is a leading venue for international commercial arbitration, home to the headquarters of the International Centre for Dispute Resolution, the international branch of the American Arbitration Association, and many leaders in the international arbitration field. New York also serves as the locus of several prominent arbitration firms’ central offices. This book encompasses five years of developments in New York and other U.S. international arbitration law since the first edition appeared. Every chapter has been updated, and the new edition includes an entirely new chapter on the legal and practical aspects of conducting an arbitration hearing in New York, covering such subjects as rights to appear as a representative of a party, subpoenas to compel attendance of witnesses, confidentiality of proceedings, and witness testimony and instructions. Each chapter elucidates a vital topic, including the existing New York legal landscape, drafting considerations for clauses designating New York as the place of arbitration, and material and advice on selecting arbitrators. The book also covers a series of topics at the intersection of the arbitral process and the New York courts, including jurisdiction, enforcing arbitration agreements, obtaining preliminary relief, and discovery. Class action arbitration, challenging and enforcing arbitral awards, and biographical materials on New York-based international arbitrators are also included.

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Watt, Gary. Equity & Trusts Law Directions. 7th ed. Oxford University Press, 2021. http://dx.doi.org/10.1093/he/9780198869382.001.0001.

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Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This book explains the key topics covered on equity and trusts courses. The content of the text is designed to emphasise the relationship between equity, trusts, property, contract and restitution to enable students to map out conceptual connections between related legal ideas. There is also a focus on modern cases in the commercial sphere to reflect the constantly changing and socially significant role of trusts and equity. The book starts by introducing equity and trusts. It then includes a chapter on understanding trusts, and moves on to consider capacity and formality requirements, certainty requirements and the constitution of trusts. Various types of trusts are then examined such as purpose, charitable, and variation trusts. The book then describes issues related to trusteeship. Breach of trust is explained, as is informal trusts of land. There is a chapter on tracing, and then the book concludes by looking at equitable liability of strangers to trust and equitable doctrines and remedies. This new edition includes coverage of significant recent cases, including the Supreme Court decision on interest to be paid by tax authorities on monies owed; the Supreme Court decision on the test of dishonesty applicable to civil matters; the Privy Council decision on the division of investment property acquired by cohabitants; the Court of Appeal decisions on Quistclose trusts; fiduciary duties in arms-length contracts; transactions prejudicing creditors; beneficiary anonymity in variation of trust cases; exemption clauses; discretion exercised beyond trustee’s authority; implications of GDPR for trustee disclosures; trustee personal liability; causation and equitable compensation; statutory relief for a professional trustee’s breach of trust; use of proprietary estoppel to reward work undertaken in farming families; costs of seeking court’s directions; injunctions ordered against persons unknown; equitable jurisdiction to rectify agreements.

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Ribstein, Larry E., and Erin A. O'Hara. Law Market. Ebsco Publishing, 2009.

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Ribstein, Larry E. Law Market. Oxford University Press, 2009.

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Drowning in Tyranny. Vancouver, WA: Patriot Corps, 2013.

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Books on the topic 'Jurisdictional clauses'

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