Exploring the limits of the concept of legitimate expectations in investment treaty law : a study in comparative law and the development of international lawNowak, Lucja Magdalena January 2015 (has links)
This thesis aims to identify more clearly the rationale, the constituent elements and the methodology of the concept of legitimate expectations in the field of investment treaty law. It addresses the problems associated with the concept's development in the application of the standards of fair and equitable treatment and indirect expropriation. The thesis adopts a comparative perspective. More developed legal regimes have been referring to legitimate expectations and to a similar concept of investment- backed expectations. Their experiences can assist in addressing questions about the concept's nature in investment treaty law. The enquiry focuses on seven such regimes, namely those of: the USA, England, Australia, European Union, European Convention on Human Rights, general international law and World Trade Organisation. The analysis shows that the concept of legitimate expectations is equitable. It safeguards fairness and trust in the actions of public authorities. It demands balancing of the private interest behind legitimate expectations and the public interest underlying the measures that frustrate them. The analysis identifies three common types of legitimate expectations, namely: legitimate expectations related to the legal and factual situation of an investment, legitimate expectations arising from specific representations and legitimate expectations related to invalidation of State acts. It also identifies the limits of the concept. It should cover neither expectations of immunity from general legislative or regulatory changes, nor investor's subjective expectations of treatment, nor expectations of a proprietary nature. The comparative analysis clarifies the concept's limits, the methodology required for its application and the fundamental questions the tribunals need to address. This greater clarity will facilitate a comprehensive case-by-case discussion among system participants. This discussion will contribute to the development of a concept capable of balancing the private and public interests persuasively and thus of supporting the long-term sustainability of the investment treaty system as a whole.
La sortie d'une société anonyme organisée par un pacte d'actionnaires / The exit of a limited company set up by shareholders agrementLotfi, Ibtissam 14 December 2013 (has links)
Non disponible / Not available
Risk regulation in Islamic banking : does Saudi Arabia need to adopt the risk regulation practices of Basel?Sharbatly, Abdulaziz January 2016 (has links)
Proponents of Islamic finance often argue that the success of Islamic banks in the UK and Malaysia during the 2007-8 Financial Crisis is proof of the proposition that all Islamic banks (IBs) are immune from sub-prime-mortgage type shocks. The implementation of Basel practices in Saudi Arabia will be very difficult and is likely through various challenges. However, it is arguable that such practices may bring about change in a substantial way in the UAE market. Thus, this thesis will discuss features of IBs in the UK and Malaysia, and discuss the areas in which the Saudi market is mired in less risk than conventional markets in the UK and Malaysia. Using a qualitative methodology, this research sought to answer the primary research question, that is, “Does Saudi Arabia Need to Adopt the Risk Regulation Practices of Basel?” To be able to accurately answer this main question, it is necessary to determine whether the standardisation of accounting practices and regulatory principles can enhance Islamic finance organisations. It is likewise necessary to determine whether the Basel framework can be internalized by Islamic financial institutions to solve issues such as the inadequate coordination of financial markets in Saudi Arabia. The research sought to consider whether legal secularisation could be reconciled with Islamic models of finance in order to standardise banking processes across jurisdictions. It is vital to discuss this research problem as it is evident that Islamic banks are, by design, “safer” than conventional banks, which take fewer risks than conventional banking systems. Its ability to withstand the 2007-8 Financial Crisis can serve as example to other banking systems to follow to prevent the debilitating effects such a crisis can provide to the global financial system and the worldwide economy as a whole. This paper also discusses inherent risks in dealing with Saudi banks caused by structural weaknesses in the Saudi economy, further caused by a lack of transparency. Research from the content analysis and literature review demonstrated that certain components of Malaysian banking and banking in the UK, including Basel Frameworks (I, II, and III) can be adopted by the Islamic financial model in order to improve the overall banking structure in Saudi Arabia. Whilst Islamic accounting standards do not need to be as rigorous as some Basel Frameworks discussed in the study, implications for positive social change in Saudi Arabia include adopting policies which specialise in clearing defining risk management and policies which focus on improving corporate governance and bolstering transparency in Saudi markets. The central argument of this research therefore, is that the incorporation of pertinent Basel components, as well as those from the Malaysia and UK banking system, into the KSA banking system, will bring about improvements to the latter’s overall banking structure.
A comparative analysis of takaful and conventional insurance, with a special reference to the Saudi insurance lawAlbalawi, Khalaf Mohammed January 2017 (has links)
Conventional insurance is considered unlawful under Islamic law, as it involves at least three forbidden elements, gharar (uncertainty), maisir (speculation) and riba (interest). In order to align insurance with Islamic principles, takaful (Islamic insurance) was introduced. Takaful is based on the concepts of mutual assistance and tabarru' (voluntary contribution). In a typical takaful undertaking, the risk funds of the participants (policyholders) operate on a mutual basis, but are managed by the takaful operator, which is a company with shareholders. This study intends to make a comparative analysis between takaful and conventional insurance in general, and to present a literary appraisal of the regulations related to Saudi insurance law in particular. The study explores the evolution of insurance and examines the legitimacy of the subject under Islamic law. This study is a qualitative one that focuses on exploring, describing and explaining new insights about the issues under investigation using a doctrinal research technique. Doctrinal legal research is concerned with the examination of the law by analysing legal rules, principles and doctrines and how they have been developed and applied to a given issue. Legal rules are laid down in statutes and cases. Publications, such as law textbooks and journal articles, examine and describe the development of the legal doctrines. The findings show that, as Saudi Arabia is a Muslim country, it should put in place a reliable takaful framework to cater to the needs of its citizens. This study demonstrates that the current laws governing cooperative insurance do not comply with the tenets of Sharī'ah law, as the concept of insurance contains a number of articles that run against the principles of Islam. The study concludes that the development of a takaful framework for Saudi Arabia should include the enactment of a reliable law that forms an appropriate takaful framework. It is essential that an Islamic insurance act much like the one currently in use in Malaysia be established in Saudi Arabia. Furthermore, it is vital that this act consider the number and dynamic nature of the Islamic schools of thought. The thesis also advocates for a law of supervision over cooperative insurance companies and for the revision of their implementation regulations. This would entail adaptations suggested by expert Sharī'ah authorities and Islamic economists, thus ensuring consistency with the tenets of Sharī'ah principles.
Institutional investors and investment managers' involvement in corporate government in the UK : are they able and willing to hold corporate managers to account?Al-Hawamdeh, Ahmed January 2004 (has links)
It was stated by the Cadbury Committee (1992) that: 'the basic system of governance in Britain is sound. The principles are well known and widely followed.' This thesis argues that such a statement is in fact exaggerated as far as public listed companies are concerned. Despite the fact that changes have occurred in the share ownership structure of U.K. public listed companies, leading to the concentration of share ownership in the hands of institutional investors and investment managers, the economic and legal framework of the market still fails to support them, as the market's main financial players, in holding corporate managers to account, and hence achieving a sound corporate governance system. The objective of this thesis was to examine the economic and legal frameworks of the present corporate governance system and its influence on institutional investors and investment managers with regards to their role in holding corporate managers to account. In doing so, the thesis went through three phases. In the first phase, the thesis introduces the U.K. corporate governance model, concluding that it relies almost solely on shareholders in holding corporate managers to account. The fact that institutional investors and investment managers hold the majority of shares in U.K. public listed companies makes them the obvious candidates to play such a role. Yet, the economic framework of the market does not particularly motivate institutional investors and investment managers to do so. Whilst some institutional investors and investment managers may still be undeterred by this, the question posed was does then, the market's legal framework, offer such institutional investors and investment managers the support to hold corporate managers to account In light of this question, the second phase of this thesis examined whether contract negotiation, litigation and the use of proxies and voting are viable means available to shareholders in holding corporate managers to account. Contract negotiation and litigation were found to fall short of doing so, whilst the voting and proxy system, although not widely used by institutional shareholders and investment managers, might in the future, hold part of the answer. If institutional investors and investment managers are still undeterred by the economic and legal obstacles, they may resort to dialogue among themselves and with investment managers, as a means to holding corporate managers accountable. Yet, as exemplified in the third phase of this thesis, shareholders are over regulated when it comes to both dialogue amongst themselves as well as with corporate managers, leaving it to the extreme will and determination of shareholders to take initiatives in attempting to hold corporate manager to account something that many institutional investors and investment managers may in fact, lack.
Is a global regime regulating the exercise of jurisdiction in civil and commercial cases a feasible reality or a utopian dream? : a comparative perspectiveJarvis, Nichola Rachel January 2007 (has links)
The purpose of this thesis is to evaluate whether it is possible to create a global jurisdiction and judgements convention governing civil and commercial matters in light of the recent inability at The Hague to produce an acceptable text on the subject. In order to ascertain whether this failure means that it is impossible to achieve a worldwide convention, this thesis compares the jurisdictional regimes of the United States, the Brussels Regime and the traditional rules of England to determine whether the differences operating under these systems are irreconcilable. It is revealed that litigants often exploit divergences stemming from these systems, altering the balance between the parties and causing unfairness. These revelations highlight the benefits to be gained from a unified, solitary jurisdiction and judgements system. This leads to the question as to whether these benefits carry sufficient weight to procure a text on the subject after these advantages failed to tempt the delegations at The Hague after a decade of work on the project. From these discussions, this thesis identifies several factors that contributed to the downfall of the project at The Hague, which include the United States' insistence that the provisions operate within constitutional restrictions, an inappropriate methodology based on compromise and discontent with the provisions and general approach of the suggested text. The strict adherence to using the Brussels Regime as a 'model' for the text also substantially contributed to the downfall of the project. However, it was apparent that the problems stemming from the reconciliation of the civil and common law traditions had little effect on the outcome.
Environmental protection of the host states in international investment law : treaty reinterpretation, provision design and experience from ChinaRen, Q. January 2015 (has links)
This thesis aims to evaluate the scope of environmental protection in the host states against the states’ obligations to protect and promote foreign investments, and to identify how the existing international investment treaty practice and dispute settlement practice are insufficient in light of considering the environmental interests of the host states in the standards of treatment, including the fair and equitable treatment, national treatment, most-favoured-treatment, and non-expropriation standard. This thesis argues that the existing regime of international investment law does not provide an appropriate framework for the protection of the host states’ environmental interests, especially in the countries with economic and social transition (like China) where the domestic need for environmental protection is emerging and growing significantly. In contributing to the means through which the host states are able to regulate foreign investments without otherwise violating treaty obligation, this research proposes: (1) interpreting investment treaty provisions by introducing more environmental consideration, and (2) rethinking and reshaping the current pro-investor mechanism of international investment law through embracing the provision of broad environmental exception.
The doctrine of parol agreement trusts and fraud in equity : an historical-doctrinal analysis of equity's jurisdiction under the head of fraud to impose trusts arising out of parol agreementsGregory, William Allan January 2016 (has links)
This thesis examines, through the most comprehensive historical-doctrinal analysis to date, the nature and extent of equity’s jurisdiction to impose trusts arising out of parol agreements. The central argument of this thesis is that all such trusts are enforced pursuant to a single doctrine of equity which arises to prevent fraud. This doctrine, which is uncovered and elucidated in this thesis, is named ‘the doctrine of parol agreement trusts’. It is argued that the ‘fraud’ which brings the doctrine into play will occur if the recipient of property knowingly reneges on a parol agreement subject to which she took the property and upon which the other party thereto relied. Moreover, it is demonstrated that trusts arising for the prevention of fraud were, until the early twentieth century, not seen as express, resulting or constructive trusts, but that, according to modern nomenclature, they are best regarded as constructive trusts. This thesis also challenges several modern orthodoxies. It is proven that the leading case of Rochefocuauld v Boustead was reported imperfectly, and that all previously presented accounts of the facts are inaccurate. Furthermore, it is categorically demonstrated that secret trusts are enforced for the prevention of fraud, but that this is not inconsistent with the notion that secret trusts are dehors the will. The juxtaposition between parol agreement trusts and related equitable innovations such as mutual wills, proprietary estoppel and ‘common intention’ constructive trusts is also examined, as well as the doctrine’s relationship with contract law and the law of agency, with a view to providing a doctrinal solution to some modern controversies in these areas. The historical-doctrinal relationship between parol agreement trusts and other types of constructive trusts is also examined with surprising results which suggest doctrinal affinities with the liability which affects knowing recipients. Finally, it is suggested that the manner in which modern commentators and some judges have eschewed fraud as a justification for parol agreement trusts and other related trusts may represent an unwelcome development.
Harasani, Hamid Mohamed
High-net-worth Muslim investors are increasingly investing and accruing wealth in the United Kingdom and the demand for Shariah-compliant wealth-planning structures, such as Waqfs, is growing. This study accepts that Waqf law, as applied today, has its shortcomings and that it must be reformed. Further, as the study focuses on the United Kingdom (specifically on common law as applied in England and Wales), the apparent incongruence of Waqfs and trusts is acknowledged and highlighted by this study’s analysis of three seminal British colonial cases that treated private Waqfs. The two main differences between Waqfs and trusts are their respective stances on perpetuities and ownership. While Islamic law, as understood by most not all jurists, mandates perpetuity for Waqfs, English law has a rule against perpetuities. Also, conventionally, while the trustee is seen as the legal owner of an English trust’s property, most Islamic jurists maintain that no one owns Waqf property; it is deemed to be owned by God. Using a combination of the comparative legal method and hermeneutics, this thesis reconciles Islamic law with English trust’s law in these two main areas. The study does not find it necessary for one legal system to reign supreme over the other, as such solutions will be questioned by the internal subjects of the dominated legal system, undermining the efficacy of this study. Rather, reconciliation is a mutual step to congruence taken by both legal systems. In the area of perpetuities, the thesis finds that neither Islamic Waqfs must be perpetual, nor common law trusts must have a rule against perpetuities. Regarding ownership theories, the multiplicity of rendered theories in both legal systems presents more than one avenue of reconciliation. Overall, the study finds that private Waqfs and private trusts can be reconciled without undermining the internal hermeneutic standpoints of both legal systems.
To what extent does the Libyan shareholder protection regime offer equivalent protection to that found in similar selected corporate law systems?Jeeballah, Abubaker Musbah Imsayib January 2016 (has links)
The application of “majority rule” within the company has the potential to lead to unfair results either for the minority shareholders or for the company itself, hence, it is the task of the legislature to provide minority shareholders with a matrix of rules that seek to protect them from misguided managerial behaviour. In that regard, this thesis set out to examine to what extent the Libyan shareholder protection regime offers equivalent protection to that found in the English and Moroccan corporate law regimes. It evaluates the current level of protection that is offered to minority shareholders in Libya in comparison with that available in England and Morocco in order to participate in a reform programme aimed at establishing a sufficient system of corporate governance in Libya via enhancing the rules that protect the minority shareholder. The reliance on a comparative study in this thesis is based on an assumption that law should be assessed from a wide perspective and the experience of other jurisdictions should be taken into account in order to reform the current law by establishing a high standard level of protection for the minority shareholders. Such reform would grant shareholders a degree of confidence which is considered a necessary step to attract investments and develop the economic strength of the whole country. The conclusion of this work reveals several weaknesses and serious shortcoming in the Libyan corporate law regime, thereby it provides a basis for suggestions on how to improve minority shareholder protection in Libya based on the English and Moroccan experience. In that process, some suggestions and recommendations are provided which is the purpose of this work and the hope is that they will be taken on board in any proposal for reform in Libya. The study recommends a reform in the existing rules of minority shareholder protection in order to create an effective system of safeguards for the minority shareholders. Such reforms promise domestic and foreign investors that all companies under Libyan laws are managed, directed and controlled by upright, truthful, honest and efficient managers. This work will also pave the way for further studies that might be conducted in order to further enhance a robust system of corporate governance in Libya which would contribute to the growth of the national economy.
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