Part VI Early Perceptions of Legal Risk, 22 Settling Differences

2018 ◽  
Author(s):  
Mccormick Roger ◽  
Stears Chris
Keyword(s):  
Financial Markets ◽  
Case Law ◽  
The Other ◽  
London Borough ◽  
Legal Risk ◽  
Borough Council ◽  
Significant Case ◽  
Legal Uncertainty ◽  
The Law

This chapter examines some of the other legal uncertainty issues, principally in relation to set-off and netting, that were troubling various sectors of the financial markets at around the time of the Hazell v Hammersmith and Fulham London Borough Council and Re Charge Card Services Ltd cases. It first looks at a number of general, but very important, concerns that lawyers in the market had in relation to the operation of set-off and netting. Second, it considers a particular form of transaction that featured many of those (and other) concerns. Finally, it examines some of the more significant case law and legislative developments. In reviewing these issues, readers should bear in mind the huge importance that ‘certainty’ in this area of the law has now assumed.

Part VI Early Perceptions of Legal Risk, 20 A Landmark Case and its Aftermath

2018 ◽  
Author(s):  
Mccormick Roger ◽  
Stears Chris
Keyword(s):  
Financial Markets ◽  
Historical Explanation ◽  
London Borough ◽  
Legal Risk ◽  
House Of Lords ◽  
Audit Commission ◽  
Borough Council ◽  
City Of London ◽  
The City

This chapter discusses the case of Hazell v Hammersmith and Fulham London Borough Council, which had a profound effect on how the City of London perceived the dangers posed by legal risk. It involved a House of Lords decision on an ultra vires point — specifically, the power of the council in question to enter into ‘swap’ transactions. The case arose because this power was challenged by the auditor appointed by the Audit Commission. The surrounding circumstances and the unprecedented manner in which the City of London responded to the case provide both the classic case study and a historical explanation of why legal risk is seen to be so important and how seriously it is taken by those concerned with orderly financial markets.

Zawezwanie do próby ugodowej. Brak skutku przedawnienia terminu przedawnienia

2017 ◽  
Vol 70 (0) ◽  
pp. 39-48
Author(s):  
Jerzy Akińcza
Keyword(s):  
Case Law ◽  
Civil Code ◽  
Practical Application ◽  
Judicial Practice ◽  
Legal Uncertainty ◽  
The Law

An important problem of practical application of the law is invalid perpetuated judicial practice. It connects call for mediation with art. 184 of the Civil Code, with the effects of limitations of art. 123 § 1 of the Civil Code. Summoning to a conciliation hearing isn’t directly aimed at the fulfillment of the provision, therefore cannot be identified with legal transactions, to be determined content of 123 § 1 of the Civil Code. Practice currently carried out in the case law leads to a prolonged state of legal uncertainty, actual creditor victimization and denying institutions of antiquity.

The Law of Interim Release in the Jurisprudence of the International Criminal Tribunals

2008 ◽  
Vol 8 (3) ◽  
pp. 589-626 ◽  
Author(s):  
Clemens Müller
Keyword(s):  
International Criminal ◽  
Case Law ◽  
The Other ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
International Criminal Tribunals ◽  
Depth Study ◽  
Rules Of Procedure ◽  
The Law ◽  
The Right

AbstractThe right of interim release during trial is an international recognized fundamental right of the accused which is deduced from the presumption of innocence. Although the ICTY has shifted to a more liberal practice, the other tribunals and the ICC are still applying the law of interim release in a restrictive manner. Decisions on interim release are not guided by clearly decisive factors to be applicable for every single accused in each case. Rather an examination of the particular facts of the case and the personality or character of the accused, surrounded by a framework of requirements set forth in the Rules of Procedure and Evidence, determine the practice on interim release. The way international criminal tribunals apply the law of interim release is, like international criminal proceedings as such, of a design sui generis. This article summarises the case-law concerning interim release at the international criminal tribunals. It gives an in-depth study on the requirements set forth in the Rules of Procedure and Evidence which the accused must fulfil to be provisional released.

Introduction

2018 ◽  
Author(s):  
Mccormick Roger ◽  
Stears Chris
Keyword(s):  
Financial Markets ◽  
Financial Institutions ◽  
Financial Services ◽  
Financial System ◽  
The Other ◽  
Legal Risk ◽  
The People ◽  
European Banking ◽  
Prospective Risk

This introductory chapter first sets out the book’s purpose, which is to describe and explain legal and conduct risk, and suggest possible approaches to the management of these risks. Legal risk is defined as risk arising in the operation and practices of the financial markets. They are a part of the spectrum of risks that are inherent in the operations of banks and other financial institutions, affecting the lives of the people who work there and the customers who put their trust in them as well as, in more extreme cases, the financial system itself. On the other hand, the European Banking Authority defines conduct risk as ‘the current or prospective risk of losses to an institution arising from an inappropriate supply of financial services including cases of wilful or negligent misconduct’.

Remoteness of damage in negligence: a rotten structure collapses

1999 ◽  
Vol 58 (1) ◽  
pp. 1-48
Author(s):  
Janet O'Sullivan
Keyword(s):  
London Borough ◽  
Borough Council ◽  
Appeal Decision ◽  
The Law ◽  
Court Of Appeal

INThe Wagon Mound (No. 1) [1961] A.C. 388, Viscount Simmonds expressed the hope that, by replacing directness (and its attendant “insoluble” problem, the search for breaks in the chain of causation) with reasonable foreseeability as the test for remoteness of damage in negligence, “the law will be simplified and . . . palpable injustice will be avoided”. Lawyers have long recognised that the first of these aspirations has failed dismally. Regrettably, the Court of Appeal decision in Jolley v. Sutton London Borough Council [1998] 1 W.L.R. 1546 provides a stark example of failure on both counts.

scholarly journals PRIVALOMAS AKCIJŲ PARDAVIMAS IR PIRKIMAS – INSTITUTO ESMĖ IR KAI KURIE PROBLEMINIAI ASPEKTAI

Teisė ◽  
2014 ◽  
Vol 90 ◽  
pp. 101-125
Author(s):  
O. Fruzerova
Keyword(s):  
Financial Markets ◽  
Case Law ◽  
Close Link ◽  
Squeeze Out ◽  
The Law ◽  
Takeover Bids

Pagrindinis straipsnio tikslas – pateikti privalomo akcijų pardavimo ir pirkimo instituto analizę ir atskleisti probleminius šio instituto taikymo aspektus. Kadangi privalomas akcijų pardavimas ir pirkimas, kurį reglamentuoja Lietuvos Respublikos vertybinių popierių įstatymo 37 straipsnis, yra tiesiogiai susijęs su oficialaus siūlymo institutu, straipsnyje taip pat nagrinėjami tam tikri aktualūs oficialaus siūlymo, ypač Lietuvos teismų praktikos, klausimai. Straipsnis skiriamas finansų rinkos dalyviams, investuotojams, teisininkams ir šia sritimi besidomintiems mokslininkams. The main goal of this article is to analyze the essence and main features of squeeze-out and sell-out rights and to reveal the problematic aspects of the application of this institute in practice. Taking into consideration the close link between the squeeze-out and sell-out rights, established in Article 37 of The Law on Securities, and takeover bids, this article also reveals some relevant aspects of Lithuanian case law and takeover bids regulation. The article should be relevant to the participants of financial markets, investors, lawyers and researches.

Part VII Characteristics of Legal Risk, 24 Sources of Legal Risk

2018 ◽  
Author(s):  
Mccormick Roger ◽  
Stears Chris
Keyword(s):  
Financial Markets ◽  
Financial Institutions ◽  
Soft Law ◽  
Law And Finance ◽  
Legal Risk ◽  
Legal Advice ◽  
Cross Border ◽  
Legal Risks ◽  
Judicial Reasoning ◽  
The Law

This chapter considers the various sources of legal risk. Understanding the sources of legal risk is at least as important as understanding the component parts of a detailed definition. Only in this way can we understand why legal risks arise in the first place. Developing such an understanding is crucial to designing systems and procedures intended to manage the risks. The sources of legal risk include the behaviour of financial institutions (i.e. limited legal awareness, failure to implement legal advice, exploiting the letter of the law, and outsourcing), the nature of financial markets (i.e. financial innovation, new market sectors and convergence, and cross-border business), problems with the law (i.e. bad law, policy concerns, inaccessible law, and unpredictable judicial reasoning), and the interaction of law and finance (i.e. hard and soft law, interaction of soft law and consumerism, and globalization).

Notes: The incorporation of standard terms into contracts: Is it sufficient that the terms are ‘available on request’?

2021 ◽  
Vol 138 (4) ◽  
pp. 748-760
Author(s):  
Tjakie Naude
Keyword(s):  
Twentieth Century ◽  
Comparative Study ◽  
South African ◽  
Case Law ◽  
The Other ◽  
Recent Case ◽  
The Internet ◽  
Electronic Contracts ◽  
The Law ◽  
Standard Terms

South African case law has long held that standard terms may be incorporated into a contract by mere reference, and that it is unnecessary for the user of the terms to make the text of the terms available to the other party. The so-called railway ‘ticket cases’ from the early twentieth century started this approach. More recent case law involving contracts concluded by fax has confirmed the possibility of incorporation of standard terms by mere reference, without the text of the terms having been made available. This contribution argues that times have changed with increased access to the internet, and that the user of standard terms can reasonably be expected to make their text available to the other party, for example by making them available on a website. It draws on comparative study of the UN Convention on Contracts for the International Sale of Goods and the Unidroit Principles of International Commercial Contracts. It also shows that legislation requires standard terms to be made available anyway in the consumer context, as well as in the case of electronic contracts. Writers of books on the law of contract should discuss the relevant rules.

Part VIII Examples of Legal Risk, 27 Vague Laws

2018 ◽  
Author(s):  
Mccormick Roger ◽  
Stears Chris
Keyword(s):  
Financial Markets ◽  
England And Wales ◽  
Legal Risk ◽  
Market Abuse ◽  
Proceeds Of Crime ◽  
Legal Uncertainty ◽  
The Uk ◽  
Over Time ◽  
The Way

This chapter continues the discussion of examples of legal risk, focusing on over-ambitious legislation, the Proceeds of Crime Act 2002 (POCA 2002), and market abuse. In the UK, there is a tendency pass laws with ambitious titles, that suggest they can, for example, ‘prevent’ fraud or terrorism. However, the truth of the matter is that no amount of legislation will ever eradicate bad behaviour simply by making it an offence. Over time, legislation may have an influence on moral perceptions in society and that, in turn, may affect the way a substantial number of people behave. One example of over-ambitious legislation is the POCA 2002. This law has been criticized by the Financial Markets Law Committee as giving rise to legal uncertainty, especially with regard to ‘in what circumstances conduct outside England and Wales is criminal within the meaning of POCA’.

scholarly journals Explaining and trusting expert evidence: What is a ‘sufficiently reliable scientific basis’?

2020 ◽  
Vol 24 (3) ◽  
pp. 233-254
Author(s):  
Tony Ward
Keyword(s):  
Case Law ◽  
Scientific Basis ◽  
Essential Elements ◽  
The Other ◽  
Expert Evidence ◽  
Judicial Decisions ◽  
The Law ◽  
The Relationship ◽  
Rule Out

Through a series of judicial decisions and Practice Directions, the English courts have developed a rule that expert evidence must have ‘a sufficiently reliable scientific basis to be admitted’. There is a dearth of case-law as to what degree of reliability is ‘sufficient’. This article argues that the test should be interpreted as analogous to one developed in the law of hearsay: expert evidence (scientific or otherwise) must be ‘potentially safely reliable’ in the context of the evidence as a whole. The implications of this test will vary according to the relationship between the expert evidence and the other evidence in the case. The article identifies three main patterns into which this relationship falls. Whether the jury relies upon the evidence will depend upon what they regard as the best explanation of the evidence and how far they trust the expert. Whether their reliance is safe (as a basis for conviction) depends on whether they could rationally rule out explanations consistent with innocence, and whether the degree to which they take the expert’s evidence on trust is consistent with prosecution’s burden of proving the essential elements of its case, including the reliability of any scientific techniques on which it relies.

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