The purpose of this thesis is to analyse the concept of nationality for corporate investors under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (,ICSID Convention'). Pursuant to Article 25 of the ICSID Convention, ICSID arbitration tribunals have jurisdiction to resolve legal disputes arising out of an investment between an ICSID Contracting State and a national of another ICSID Contracting State, provided the disputing parties have consented, in writing, to submit their disputes to the ICSID jurisdiction. Article 25 requires the corporate investor to hold a certain nationality, but it does not lay down a method for the determination of that nationality. It is argued in this thesis that interpretation of the concept of 'nationality' for corporate investors by most ICSID tribunals risk an unwarranted extension of host state consent to arbitrate. This unwarranted extension of consent exposes the respondent host states to claims by an unlimited number of investors, including those that have not obtained the host state's consent to arbitrate required under the ICSID Convention. In the absence of a sound assessment of the jurisdictional requirements, tribunals risk resolving disputes over which they do not have jurisdiction. This raises serious questions on the legitimacy, and validity of the decisions rendered by ICSID tribunals which are not subject to any meaningful review and which often have significant impact on the general public. Against this background, a re-evaluation of the concept of corporate nationality is offered, which aims at mitigating the concerns on legitimacy and certainty that arise from jurisdictional defects. This attempt is guided by a balanced approach to the disputing parties' rights and interests and with a greater emphasis on economic realities rather than formal appearances. In this connection, the purpose and special characteristics of the corporate entity and the exceptional nature of the ICSID dispute settlement mechanism are placed at the centre of the analysis. Finally, it is argued that the 'real seat' theory, found in various civil law jurisdictions, should be central to the assessment off corporate investors' nationality under the ICSID Convention.

A number of common law countries such as Canada, New Zealand and the United States have already successfully implemented the CISG. Furthermore, leading civil law countries such as Germany and the Scandinavian countries have also implemented the UN Convention there is reason to believe that if applied by the UK, it will prove beneficial. From a political perspective, the United Kingdom reflects a negative image as being a reluctant participant in international trade law initiatives. UK law does not have a special body of rules applicable to international sales; it has a body of common rules which are not devised for international transactions. This thesis suggests that the CISG may be transformed in the UK legal order through two legislative models: 1. À la carte Model The CISG is an ‘à la carte’ Convention; provisions may be selected from the CISG in the same way we choose a meal from a restaurant’s menu. This is the à la carte model. In other words, the UK when creating the Act transforming the CISG in the UK legal order may amend the UN Convention 1980 in order to adjust it to the UK legal system. In that sense, the UK may declare at the time of ratification, according to Article 92 of the CISG, to either omit part II or III of the Convention. This model comprises of three sub-models and if implemented will be an ‘add on’ to the Sale of Goods Act 1979. 2. Parallel Model In legislative terms, the CISG could exist parallel to the Sales of Goods Act 1979, parties wishing to enter into an international transaction may conclude a contract either on CISG terms or under the Sales of Goods Act 1979. In this model a CISG Act will be required. This model will satisfy both the traders who wish to employ modern law especially designed for international contracts and those who are rather conservative and prefer to employ the old and familiar Sales of Goods Act 1979.

No description available.

The thesis consists of an analysis of provisions regulating sale of goods law within Russian Federation. The analysis focuses upon problems arising from the underdeveloped nature of Russian sale of goods law in relation to damages. The primary idea underlying this thesis is an attempt to analyse the principles behind the concept of damages as found in Russian law with a view to identifying contentious issues and suggest improvements. Along with the Russian law of sale the thesis includes comparative examination of the English law of sales, with some reference to German and US law. This comparative analysis makes it possible to assess Russian legal regulation from the perspective of the essential feature of the modem sale of goods - market economy framework. The thesis attempts to provide a conceptual legal explanation of the current inconsistencies existing in the Russian law of sale regulating damages under sales contracts. The problems of the Russian law of sale to which this thesis is dedicated are explained by the fact that current Russian legislation and the legal practice in this area do not correspond to modem legal and economic requirements, especially in the light of economic globalisation. It is inconsistent not only with legal principles applied in economically developed countries, but there are also discrepancies within Civil Code of the Russian Federation itself, which make the identification of a remedy in the form of damages difficult. The experience of English law, which has been chosen by the writer to act as a model law for the improvement of Russian law, is used to identify amendments, which must take place in order to make the Russian Civil Code effective for the application of damages under sales contracts.

Several years have passed since the relationship between the laws governing foreign investment and environmental protection started to receive well-deserved attention. Despite a vast quantity of recommended methods and emphasis on the importance of environmental considerations, recent awards have proved that the outcomes can still be surprising. Within this context, and as a possible response to this fear of unsettled conflict, this study explores the possibility of application of one particular principle of international environmental law, namely the Precautionary Principle. The overarching aim of this thesis is to provide a comprehensive analysis of the content and the function of the precautionary principle. This will to provide an interpretative tool for investment tribunals. To this end, this thesis adopts a two-pronged approach. The first approach will analyse environment-related investment disputes to find the current state of play and understand the existing patterns. This analysis will demonstrate that when interpreting treaty provisions in disputes with environmental components, tribunals need to take into account the peculiarities of environmental regulation and the different mechanisms in the field. Having concluded the current state of play in environment-related investment dispute settlement. The second part of this thesis, which consists of two chapters, will explore the evolution of environmental policing, and will identify the different mechanisms that have been established to ensure effective protection. It will examine the precautionary principle as one of the crucial methods for responding to the limitations of previous mechanisms. It will also discuss the principle's core elements and different functions (procedural and substantive) under the international law. Following a comprehensive analysis of different international environmental instruments, a precautionary test will be introduced, for application by investment tribunals. This study is first and foremost an attempt to contribute to the current dialogue by providing a conceptual framework for the precautionary principle. Despite some piecemeal studies on the role that the principle could play in investment treaty arbitration, no systemic research has yet been conducted to provide a conceptual framework for its application under an investment treaty. Moreover, while touching upon controversies regarding the status of the principle, this research will suggest different paths to apply the principle as a soft law instrument, capable of guiding the interpretation of treaty provisions. Most importantly, by providing a benchmark through the elements of the precautionary principle, this research will suggest that the principle could function as a double-edged sword by suggesting an objective test, which is a set of questions that could inform the tribunals' decision.

The thesis seeks to engage in and contribute to the debate about the new lex mercatoria. Proponents of the concept claim that a body of law is emerging beyond the boundaries of nation-states which may govern cross-border commercial transactions without geographical restraints. Opponents, however, contend that this elusive 'a-national' law does not exist and maintain that law cannot be divorced from the state. The thesis evaluates the proponents' claims that the lex mercatoria is a universal, a-national autonomous legal system developed spontaneously by merchants. In order to contribute to the debate, the thesis aims to remedy its existing deficiencies by relying on analytical arguments, opening up the discussion to other fields of the law and clarifying key issues of terminology. To complete this task, the thesis proceeds in three stages. First, it provides an overview of the debate and selects the most promising account of the lex mercatoria, which perceives it as consisting exclusively of trade usages. Second, it lays down the framework for the proposed analytical account by clarifying key terms, such as the meaning of 'trade usages'. Third, it engages in the detailed analysis of a rule of the lex mercatoria and its status as an alleged a-national legal system. This stage of the analysis opens up the discussion to public international law and jurisprudence. The thesis argues that it is necessary to adopt a paradigm-shift in our approach to 'law' if we are to grasp the notion of 'a-national' law. The potential dangers of this proposed paradigm-shift, however, are numerous and the thesis attempts to alleviate these risks. The purpose of the thesis is to steer the discourse in the direction of analytical arguments, rather than to end the debate. It proposes one way in which an analytical account of the lex mercatoria may be offered.

No description available.

The financial crisis of 2007/8 has had a significant impact on the place of social policy objectives in the Common Market. As laws have been reformed over the years since the failure of Lehman Brothers set in motion a domino effect among high risk investment banks and financial institutions throughout the economically advanced nations of this world, both employment protection and corporate rescue have been found, at times, in the spotlight. While the corporate rescue culture of the European Union promotes the rehabilitation of businesses in financial distress in preference to liquidation where possible, it also emphasises reducing unemployment and social exclusion. The social implications of corporate rescue must therefore be considered, rather than taking a purely economic approach, emphasising creditor wealth maximisation during insolvency proceedings. EU social policy has generated a number of employment regulations, such as the Acquired Rights Directive, which are arguably the greatest obstacle to promoting corporate rescue. Thus there is an enduring conflict that subsists between the aims of corporate rescue and employment protection regulation. Substantial employment protection damages the effectiveness of corporate rescue by deterring acquisitions in view of the potential liability attached to transferring employees. Ineffective corporate rescue may then have an adverse effect on the economy and job security due to increased company failures and job losses. Employees attached to the sale of a business in a corporate rescue procedure can represent a liability, reducing the intrinsic value of that business and potentially reducing the number of businesses successfully rehabilitated through the use of corporate rescue mechanisms. The obstruction to successful corporate rehabilitation represented by employment protection must therefore be balanced with corporate rescue in order to successfully promote the rescue culture. An examination of the approaches taken by different jurisdictions, in this case the United Kingdom and France due to their important influence in the EU as well as their archetypically different legal systems should help elucidate how the tension could be managed in order to achieve a balance between them. The form of examination is particularly important if an effective reform is to be introduced. As such, a comparative historical methodology concentrating on the path dependent legal developments of both jurisdictions will be applied in order to discover the fundamental historical, economic, social, political, and cultural differences between the UK and France that have influenced their approaches to social policy and corporate insolvency law. Legal developments cannot be explained by examining a legal rule in isolation, but must account for the social and economic pressures operating on the law from the outside as well as the established ways in which the issues are dealt with internally. Even when economic and social conditions are similar at the time that a parallel rule is promulgated, the differences in historical journeys to arrive at similar rules can explain why different jurisdictions do not approach new problems in the same way. This thesis will analyse the legal position of employment protection and corporate rescue in the UK and France through a historical comparative analysis of the political, social, and economic developmental context. Based on the understanding of each jurisdiction’s path dependent position within the legal framework of the EU, reform of the ARD will be recommended that attempts to balance the aims of corporate rescue and employment protection in the event of business transfers occurring during corporate rescue procedures. Given that the regulation of this policy intersection is made within the EU legal framework, the comparative historical analysis methodology will assist in identifying the most effective reform that will fit within the varied legal systems of the EU Member States, and also help to predict how such a reform may be implemented over time. This Thesis will provide an innovative contribution to the existing knowledge and literature in the area of social policy in insolvency by using a comparative, historical, path dependent methodology to reveal a potentially effective approach to introducing unique legal reform to the conflicted intersection in the ARD of the promotion of the rescue culture by ensuring effective business transfers in corporate rescue procedures, while providing a balanced protection for employees affected by corporate restructuring.

The failure of Lehman Brothers ("Lehman") in September 2008 resulted in the world's largest ever insolvency proceedings. Almost eight years later, these have yet to be concluded. Much of the work of the lawyers involved with the Lehman insolvency has concerned questions of the ownership of assets held by the various Lehman entities at the time of its failure. Resolution of these matters has been no mean feat in view of the complex financial arrangements that Lehman had put in place. Practitioners and judges have had to (amongst other things) legally deconstruct transactions, interpret transaction documents and correctly allocate assets amongst the parties claiming them. The cross-border nature of the Lehman business and the fact that most of the assets in question were intangible, intermediated securities complicated matters further. These intermediated securities often formed part of the collateral used by Lehman for conducting its own business so that assets belonging to the ultimate investors became increasingly removed from their direct ownership. This doctorate seeks to understand the consequences for investors of the law relating to the holding of intermediated securities in the event of the insolvency of an intermediary and to consider whether the existing rules that govern such arrangements are fair and effective. Through an examination of selected English law and US Lehman cases, this Thesis explores the role of location in determining the law governing the proprietary effect of transactions involving intermediated securities and what, if any, conflict of laws issues arose as a consequence of the Lehman collapse. It concludes that, despite limited assistance from the case law in answering the question, the rules applied in the Lehman insolvency were, largely, both effective and fair to investors, albeit in the long term. Nevertheless, issues concerning the cross-border recognition of rights to intermediated securities remain and, with them, the challenge of achieving further harmonisation in an increasingly complex and fragmenting world. In view of the difficulties in imposing "top down" harmonisation or standardisation of laws across jurisdictions, the "bottom up" approach of the UNIDROIT Convention on Intermediated Securities provides the most realistic solution.

The proliferation of multinational company groups in global trade brings new challenges to cross-border insolvency and subjects creditors to an excessive amount of legal uncertainty, which may put them at a disadvantage. This Thesis examines the extent to which European insolvency regulations, namely, the European Insolvency Regulation 2000 (EIR 2000) and the Recast European Insolvency Regulation 2015 (New Recast EIR 2015) enhance legal certainty and reduce the opportunity for abusive forum shopping, to the benefit of creditors in cross-border insolvency cases of multinational company groups. This Thesis provides an original approach to analysing this problem by first examining the issue from a company law perspective and a conflict of laws perspective. The Thesis then critically examines the EIR 2000 and demonstrates that the notion of the Centre of Main Interest (COMI) on its own is not capable of providing a satisfactory solution to the problem of the lack of legal certainty, especially as the regulation and the jurisprudence of the courts do not greatly help in adding more certainty to the meaning of the COMI. This is followed by examining proposals for enhancing legal certainty outside the EIR 2000, before critically examining the New Recast EIR 2015 by analysing the new provisions on secondary proceedings, the clarifications of the notion of the COMI, and the new chapter on groups. The Thesis concludes by acknowledging that the New Recast EIR 2015 has filled many of the gaps of the EIR 2000 and contributed to enhancing legal certainty in the cross-border insolvency of Multinational Corporate Groups (MCGs) for the benefit of creditors, but there is still room for improvement, especially as many of the tools found in the New Recast EIR 2015 are voluntary in nature. The concluding chapter ends by identifying new areas of potential research in this field.