Business Law International

Articles

Vol. 16, No. 2, May

The 'Conduct Crisis': Will Banks Ever Get It Right?
'The level of fines and other conduct costs now being imposed has demonstrated that practices that may inflate profits in the short term can turn out to cause substantial damage over a longer term horizon.'1IntroductionNumbers tell a story. In the case...
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Re-Examining Bondholders' Rights in Exchange Offers
IntroductionUsed in its broadest sense, the term 'exchange offer' refers to any transaction by which a company offers one security in return for another security. However, over the years, 'exchange offer' has acquired a more specialised and narrower...
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A New Departure in Irish Company Law: The Companies Act 2014 - an Overview
Executive summaryThe Companies Act 2014 (the 'Act'), which is expected to come into force on 1 June 2015, is the first major review and consolidation of company law in Ireland in over 50 years. It brings about a significant reform of the Irish company...
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Finnish Asphalt and Timber Cartel Damages Cases
Finnish private enforcement of competition law has been very active during the last few years. Two cases in particular have had a significant impact on national case law and may also have precedent value in other European Union Member States. In the...
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Denial of (De)mutual Benefits: Case Note on Mandeville V the Manufacturers Life Insurance Company
IntroductionIn Mandeville v The Manufacturers Life Insurance Company,1 the Ontario Court of Appeal decided that a mutual insurance company did not owe a duty of care to preserve the rights of policyholders to share in the profits of a hypothetical future...
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Disclosure and Due Diligence in the International Capital Markets
Disclosure and Due Diligence in the International Capital Markets Roger Wedderburn-Day Jordan Publishing (2014); 300 pages; £100 (paperback), £90 (ePDF and ePub); ISBN: 978 1 84661 959 5.This handbook will be useful to any practitioner involved in the...
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Lord Mansfield: Justice in the Age of Reason
Lord Mansfield: Justice in the Age of Reason Norman 5 Poser McGill-Queen's University Press (2013); 432 pages (hardback); £27.99; ISBN-10: 0773541837; ISBN-13: 978-0773541832Professor Norman Poser's biography of England's greatest judge and longest-serving...
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Vol. 16, No. 1, January

SEC Enforcement in the Financial Sector: Addressing Post-Crisis Criticism
The public outcry against financial institutions and their leadership as a result of the financial crisis continues unabated. And increasingly there is criticism of the response of the government and federal agencies, in particular the Department of...
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Bitcoin Basics: A Primer on Virtual Currencies
In the past five years, virtual currencies, or 'cryptocurrencies' have evolved tremendously and are quickly establishing themselves as a payment system. Today, virtual currencies are a multibillion-dollar venture with dual potential as both an investment...
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Expecting the Unexpected: The Force Majeure Clause
IntroductionIn August 2014, steel and mining company ArcelorMittal announced that it was suspending an expansion project to triple its iron ore production in Liberia owing to the Ebola epidemic in West Africa.* 1 2 3 A few days earlier, Brazilian sugar...
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Developments in Whistleblowing
Corporate wrongdoing continues to occupy a prominent place in business headlines, and with it the issue of how to manage whistleblowing. Every corporate scandal, from bribery to price-fixing, inevitably involves at least a few insiders who were aware,...
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The Use of Arbitration in the Financial Services Industry
IntroductionThe subject of this article is the use of arbitration in the financial services industry. As explained below, financial institutions have historically been sceptics about arbitration. This article explores the reasons for their traditional...
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ABN AMRO Bank NV V Bathurst Regional Council
Rating agency's duty of care to investors upheld in AustraliaIn a landmark decision in 2012, the Federal Court of Australia found, among other things, that rating agency Standard & Poor's (S&P) owed investors a duty of care in respect of a financial...
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Vol. 15, No. 3, September

Foreign Bribery Gaps and Sealants: International Standards and Domestic Implementation
IntroductionThe promise, offer or provision of money, goods or other benefits to a foreign public official (FPO) in order to influence favourable business deals - otherwise known as foreign bribery or transnational bribery - is a form of grand corruption,...
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US Corruption Proceedings in Germany
IntroductionUnited States corruption proceedings do not stop at domestic borders. Provisions such as the Sarbanes-Oxley Act and the Foreign Corrupt Practices Act are specifically designed to reach beyond state borders and also to be effective in third...
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Remedies in Chinese Merger Control Law - Themes, Recent Cases and Developments
IntroductionChina has become an important player in the review of international merger transactions, and is applying a distinctive approach with regard to remedies, which has significant implications for merging parties and their advisers. The merger...
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Is Canada's Anti-Corruption Law in Step with International Trends?
IntroductionCanadian businesses, business leaders and their legal advisers need to be aware of the recent changes to Canadian anti-corruption legislation, enforcement strategies and recent court decisions to ensure compliance and mitigate risk. Recent...
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Corporate Counsel in the Era of Dispute Management 2.0
This article will address the topic of dispute management by corporate counsel, how to optimise it adequately to fit the requirements of our modern age and achieve its purpose: strive for 'win-win' solutions to, if possible, resume business relationships...
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Litigation as an Abuse: European Commission and US Courts Draw a Line under 'Patent Wars' While Adopting a Common Approach on Standard Essential Patents
IntroductionOn 29 April 2014, the European Commission issued two landmark competition decisions relating to a series of disputes that have commonly become known as 'patent wars'. The decisions are important because they clarify for the first time whether,...
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An International Issue: 'Loss of Profits' and 'Consequential Loss'
A recent decision by the New York Court of Appeals in Biotronik AG v Conor Medsystems Ireland Ltd1 has caused a stir among legal practitioners in New York. The court held that the lost profits arising from a collateral contract with a third party constituted...
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European Debt Restructuring Handbook: Leading Case Studies from the Post-Lehman Cycle
European Debt Restructuring Handbook: Leading Case Studies from the Post-Lehman Cycle Kon Asimacopoulos and Justin Bickle (Consulting Eds) Globe Law and Business (2013); 208 pages (hardback); £135.00; ISBN 9781-905783-65-6.This handbook brings together...
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Legal Professional Privilege for Corporations: A Guide to Four Major Common Law Jurisdictions
Legal Professional Privilege for Corporations: A Guide to Four Major Common Law Jurisdictions Andrew Higgins Oxford University Press (2014); 320 pages; £125 (hardback); ISBN: 978 0198702689.This scholarly and detailed analysis of the rules on legal professional...
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Vol. 15, No. 2, May

Disparate Treatment of the Corporate Citizen: Stark Differences across Borders in Transnational Lawsuits
The United States (US) has seen a dramatic increase in transnational lawsuits, many of which arise from alleged wrongs that occurred in Latin America and other civil law countries. Among other things, the availability of punitive damages and the Alien...
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Amendments to the EU Prospectus Directive Regime
IntroductionSeveral changes to the Prospectus Directive1 were adopted in an amending directive2 in 2010, with a deadline for implementation into national law by EU Member States of 31 July 2012. The changes have led to a number of practical changes for...
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Deferred Prosecution Agreements - in Jeopardy of Falling Short?
IntroductionOn 24 February 2014, section 45 of and Schedule 17 to the Crime and Courts Act 2013 came into force, making deferred prosecution agreements (DPAs) available in the United Kingdom to companies that have uncovered potential criminal liability...
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Non-Controlling Minority Skareholdings in EU Merger Control
IntroductionTransactions between undertakings fall within the scope of European Union (EU) merger control if (1) the transaction has a so-called Community dimension, that is, certain turnover thresholds are met1 and (2) there is a change of control in...
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Contingent Liabilities Revisited: In Re Nortel; in Re Lehman
IntroductionWhen do you incur an obligation: when you see a watch in a shop window and think of buying it, or when you decide to do so? The House of Lords, in In re Sutherland dec'd,1 ruled that it is when you commit yourself to a certain course of action....
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The Stockholm Administrative Court of Appeal's Ruling in the Nordic Capital Case - Taxation of Carried Interest
IntroductionOn 19 December 2013, the Administrative Court of Appeal in Stockholm announced a much-awaited ruling regarding NC Advisory AB, the Swedish advisory company to Nordic Capital's funds (Case no 8755-8764-12). The question in the case was how...
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Sun Capital Decision Continues to Rile US Private Equity Industry
The 'Sun Capital' decision handed down last year by the United States Court of Appeals for the First Circuit1 continues to garner significant attention from the US private equity industry. Despite widespread industry views to the contrary, the Court...
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Canadian Anti-Corruption Law and Compliance
Canadian Anti-Corruption Law and Compliance Norm Keith Markham, Ontario: LexisNexis Canada Inc (2013); 213 pp; $90 (paperback); ISBN 9780433475156.In this timely book, the author reviews the anti-corruption framework that applies to Canadian businesses...
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Vol. 15, No. 1, January

Between Scylla and Charybdis: Identifying and Managing Secondary Sanctions Risks Arising from Commercial Relationships with Iran
IntroductionIn recent years, the United States has significantly expanded economic sanctions against Iran in an effort to persuade non-US persons to curtail a range of business activities with Iran. The imposition of such measures, which this article...
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Product Liability in the People's Republic of China
The rapid economic boom in the People's Republic of China (PRC) has become a legend. While the impetus for the boost originally came from the country being a good location for production and manufacturing for industrialised nations, emphasis has now...
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Recognition and Enforcement of Islamic Finance in the Middle East
IntroductionAll Arab states - from Morocco in the west through to Oman in the east - are civil law countries and, with the exception of Lebanon, prescribe Islam as the religion of the state in their constitution. With the exception of Jordan, all to...
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In Search of a Convenient Forum: Evolving Jurisdictional Considerations for Employers
Marsland: backgroundIn early May 2013, trucks began hauling the first loads of copper ore out of the Cerovo mine, located deep in the mountains of eastern Serbia. Located just outside the hardscrabble mining town of Bor, not far from the Bulgarian border,...
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Unified Patent Court: Harmonising Patent Law throughout Europe?
Current EU patent packageSince 1977, the European Patent Office (EPO) has provided a centralised procedure to grant patents. Today a patentee can apply to 38 countries that have signed the European Patent Convention (EPC). The current 'classical' European...
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Liability to Tax and Treaty Benefits
BackgroundEligibility for relief under a double taxation treaty depends upon a person (be they individual or entity) being a resident of one or other of the contracting states. This is a logical requirement - such treaties are entered into by the governments...
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Vol. 14, No. 3, September

Editors' Note
We are pleased to present this second 'themed' issue of Business Law International. In this issue, we explore various recent developments in insolvency law, focussing on issues that transcend national boundaries.Insolvency law is the legal bedrock for...
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The Bankruptcy Ladder of Priorities
GeneralIt is often said that the most fundamental principle of bankruptcy is the pari passu or pro rata or equal payment of creditors - each proportionately out of the pool of the bankrupt's estate pro rata according to his debt. The ancient Latin tags...
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Truth or Illusion? COMI Migration and Forum Shopping under the EUI Insolvency Regulation
One of the avowed purposes of Council Regulation (EC) No 1436/2000 (the 'Regulation') is the avoidance of incentives to forum shop.1 Forum shopping is described in recital (4)2 as transferring assets or judicial proceedings from one Member State to another...
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COMI Migration and UK and EU Corporate Tax
The migration of a debtor's 'centre of main interests' (COMI) may well be desirable for insolvency purposes. However, a change of COMI is not without other implications. Falling within the laws of a certain country for EU Insolvency Regulation purposes...
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Uses and Abuses of Collective Action Clauses in Sovereign Bonds
The topic of collective action clauses in sovereign bonds has recently attracted much attention. In particular:* These clauses were retroactively inserted by a Greek law into existing bonds governed by Greek law in February 2012 as part of the reorganisation...
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Prest V Petrodel Resources and VTB Capital V Nutritek: A Robust Corporate Veil
This article discusses the UK Supreme Court's decisions in Prest and VTB Capital and in particular the circumstances in which the corporate veil might be pierced. Following these decisions, it is arguable that the bar for situations in which the corporate...
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Vol. 14, No. 2, May

New Requirements Imposed on the European Alternative Investment Funds Industry
On 19 December 2012, the European Commission (the 'Commission') adopted implementing measures ('Level 2' or the 'Regulation')1 in relation to the Directive on Alternative Investment Fund Managers (the 'AIFMD' or 'Directive') .2 The Regulation supplements...
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Oversight Mechanisms at the EBRD
The European Bank for Reconstruction and Development (EBRD), whose membership consists of 63 countries and two intergovernmental institutions, the European Union and the European Investment Bank (EIB), was founded in 1991 to assist the countries of Central...
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P.R.I.M.E. Finance: A New Dispute Resolution Facility for Conflicts Relating to Complex Financial Products
Recent years have shown that parties to financial disputes are less inclined to litigate their disputes before the courts in many jurisdictions. In particular, parties from the emerging markets may experience difficulties having foreign judgments enforced...
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Doing Deals in Africa - Reflections on What Is Different and What Is Not
Globalisation has certainly translated into opportunity and prosperity for businesses and investors around the world, but of particular interest is the key role now being played by certain emerging countries, known as the BRICS (Brazil, Russia, India,...
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Case Note: Duty of Care, Rating Agencies and the 'Grotesquely Complicated' Rembrandt: Bathurst Regional Council V Local Government Financial Services Pty Ltd (No 5)
In Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) {Bathurst) / the Federal Court of Australia considered the liability of rating agencies for the rating, sale and purchase of a structured financial product called a 'constant...
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Case Note: HMRC V George Anson
UK Court of Appeal Upholds Previous Decision that US LLC is Fiscally OpaqueThe UK Court of Appeal released its decision in the case of HMRC v George Anson1 on 12 February 2013. This decision confirms the HMRC's longstanding position on the UK tax treatment...
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Vol. 14, No. 1, January

Rights and Duties of Directors, Eleventh Edition
Rights and Duties of Directors, Eleventh Edition Martha Bruce FCI5 Bloomsbury Professional (2011); 698 pages (paperback); ISBN-10: 184766699X; ISBN-13: 978-1847666994.The global financial crisis and a number of recent high-profile corporate failures...
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Case Note Petróleo Brasileiro SA V ENE Kos 1 Limited
In May 2012 the Supreme Court heard an appeal concerning the rights of the owners of a time-chartered ship to payment for its continued use by a charterer after lawful withdrawal of the vessel for non-payment of hire.1The question before the Supreme...
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Antitrust on the Internet: A Comparative Assessment of Competition Law Enforcement in the Internet Realm
Web-based businesses have become potential targets of antitrust concerns across the world with the proliferation of information, the growth of internetrelated businesses and over two billion users of the internet worldwide as of the end of 2011 -1 As...
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How the Greek Debt Reorganisation of 2012 Changed the Rules of Sovereign Insolvency
This article explores how the Greek debt reorganisation of 2012 changed the rules of sovereign insolvency. It considers the ways in which this particular sovereign bankruptcy could affect future sovereign bankruptcies.The author believes that there are...
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Vol. 13, No. 3, September

The Mobile Executive: A Short Comment
Today's mobile executive would readily echo Voltaire's comment in 1838: 'Is it not an absurd and terrible thing that what is true in one village is false in another? What kind of barbarism is it that citizens must live under different laws? When you...
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The Mobile Executive: English Employment Law
In today's increasingly international business environment it is ever more common for executives to spend some of their career overseas. This article considers the English employment law considerations that apply to executives from England working overseas...
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The Mobile Executive: US Employment Law
Broad overview of US employment lawEmployment law in the US is a complex patchwork of statutory law, administrative and regulatory law, and common law. Moreover, these laws originate not only on the national level, but also from each of the 50 US states...
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US/UK Tax Issues for Internationally Mobile Executives
In an increasingly global marketplace, international assignments have become commonplace and cross-border employment and tax issues have come to the fore. Because of their common language, culture and financial prominence, the links between the United...
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Head North, Mobile Executives! Special Tax Advantages in the Nordic Countries
In the mid-1990s, around the time that Nokia Corporation was making its watershed breakthrough on the road to becoming a global handset monolith, serious discussions were held in Finland about the country's high tax burden on foreign employees' salaries.1...
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Debt Restructuring, First Edition
Debt Restructuring, First Edition Editors: Nick Segal and Look Chan Ho Oxford University Press (201 1); 520 pages; £128 (hardback); ISBN-10: 0199579695; ISBN-13: 978-0199579693.This book is an interesting collaboration between its authors on different...
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Vol. 13, No. 2, May

2012 London Olympics: Dispute Resolution in a Commercial Context
The world eagerly awaits the commencement of the 2012 Summer Olympic and Paralympic Games in London, United Kingdom (the 'London Games') . The spirit of Olympism abounds everywhere. The coming Olympics generates energy, passion and pride for citizens...
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FATCA and Funds - Where Are We Now?*
FATCA is the acronym for the United States Foreign Account Tax Compliance Act, which, by the time it was signed into law by President Obama in 2010, had become part of the Hiring Incentives to Restore Employment Act 2010. While new legislation is frequently...
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WTO Rules and Argentina's Import Controls
The WTO, as the evolution of GATT 1947, seeks to promote international trade free of non-tariff restrictions, except for those allowed under WTO agreements.Currently, more than 150 countries are members of the WTO and Argentina is one of them.1 Therefore,...
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Social Media Usage in the Workplace around the World - Developing Lami and Practices
The business world is witnessing an ongoing and rapid proliferation in the use of social media such as Facebook and Linkedln. Although this has many benefits, hardly a week goes by without yet another new story of a business damaging its reputation as...
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Case Note Trade War in the Skies: Air Transport Association of America and Others V Secretary of State for Energy and Climate Change
'What has started out as a solution for environmental issues has become a source of commercial warfare, and that should be a worry for all of us.'1 Tom Enders, the Airbus Chief Executive, said in a conference before the Singapore Airshow.This strong...
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Case Note: Vodafone International Holdings BV (Vodafone NL): A Critical Review of Pre- and Post-Ruling Impact and Future Course of Action
The Supreme Court of India has held1 that the transfer of shares in an offshore entity between two non-resident persons/entities cannot be taxed in India where the plea put forward is that the underlying assets determining the value of the shares were...
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Directors' Liability and Indemnification: A Global Guide, Second Edition
Directors' Liability and Indemnification: A Global Guide, Second Edition Consulting Editor: Edward Smerdon Globe Law and Business (2010); 445 pages; £145 (hardback); ISBN-10: 1905783345. ISBN-13: 978 1905783342.It is important for directors to understand...
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Minority Shareholders: Law, Practice & Procedure, Fourth Edition
Minority Shareholders: Law, Practice & Procedure, Fourth Edition Victor Joffe QQ David Drake, Giles Richardson, Daniel Lightman and Timothy Collingwood Oxford University Press (201 1); 608 pages; £160 (hardback); ISBN-10: 0199601313. ISBN-13: 978...
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Vol. 13, No. 1, January

New Global Standards for Business and Human Rights
Business and human rights became a major global policy concern in the 1990s, generated by: the emergence of far-flung and complex global supply chains and allegations of slave labour; oil, gas and mining companies moving into increasingly tough neighbourhoods...
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OECD 50th Anniversary: The Updated OECD Guidelines for Multinational Enterprises and the New OECD Recommendation on Due Diligence Guidance for Conflict-Free Mineral Supply Chains
At the Council Meeting at Ministerial Level held on 25 May 2011 under the Chairmanship of the US Secretary of State, Hillary Rodham Clinton, governments from 42 countries adhering to the Declaration on International Investment and Multinational Enterprises,...
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Overview of Umbrella Clauses
According to a well-established rule of customary international law, a violation of a contract entered into with a foreign investor by a host state does not give rise per se to international responsibility on the part of the state.This principle derives...
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Odds: Gambling, Law and Strategy in the European Union
Contemporary business law contributions argue that legal knowledge or 'legal astuteness' can lead to a sustainable competitive advantage.1 Past meses and treatises have led more academic research to endeavour the confluence between law and strategy.2...
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Case Note: Residence and Taxation: The Gaines Cooper Case
The case of R (on the application of Gaines-Cooper) ? Commissioners for Her Majesty's Revenue & Customs1 (the ' Gaines-Cooper case') attracted considerable industry and press attention during its progression through the UK courts. The Supreme Court...
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Case Note: Belmont Park Investments Pty Limited V BNY Corporate Trustee Services Ltd [2011] UKSC 38
The insolvency of Lehman Brothers in September 2008 reignited interest in a principle of English insolvency law that has come to be known as the anti-deprivation principle. This principle, which stretches back to at least the early years of the 19th...
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Principles of International Financial Law
Principles of International Financial Law Colin Bamford Oxford University Press (201 1); 384 pages; £95 (hardback); ISBN: 978 0 19 958930 2.This work is aimed at financial lawyers whose advice is sought in connection with the structuring of financial...
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