Freedom of establishment is one of the four fundamental freedoms of the European Union. The principle is that natural persons who are European Union Citizens, and legal entities formed in accordance with the law of a Member State and having its registered office, central administration or principal place of business within the EU, may take up economic activity in any Member State in a stable and continuous form regardless of nationality or mode of incorporation. This book examines the way in which EU law has influenced how national courts in Europe assert jurisdiction in cross-border corporate disputes and insolvencies, and the mechanism which allows them to decide which national law should apply to the substance of the dispute. The book also considers the potential for EU Member States to compete for devising national corporate and insolvency legislation that will attract incorporations or insolvencies.
Central to the book is the concept of national choice of law. In considering the impact of freedom of establishment on private international law for corporations, the book uniquely analyses both corporate and insolvency law together, presenting the topic in the broadest possible sense.
Importantly, the doctrine of abuse in corporate and insolvency law is covered, raising the question of 'forum shopping' and regulatory competition which underpins the intersection between freedom of establishment and private international law. Through examination of the most recent and leading judgments of the European Court of Justice in Centros and Cadbury Schweppes, the book derives certain conclusions as to the operation of the doctrine of abuse and the limits thereof in the context of freedom of establishment.
Being the first in the field to examine the leading ECJ cases of Inspire Art, Sevic and Cartesio regarding the real seat doctrine, the book makes the judgment that there is no incompatibility as such between the doctrine and the freedom of establishment.
Ultimately, the book analyses to what extent diversity in the corporate and insolvency laws of the Member States should be preserved, so as to encourage competition between jurisdictions in Europe.

In recent times there has been a dramatic change in the nature and scope of constitutional justice systems in the global south. New or reformed constitutions have proliferated, protecting social, economic, and political rights. While constitutional courts in Latin America have traditionally been used as ways to limit power and preserve the status quo, the evidence shows that they are evolving into a functioning part of contemporary politics and a central component of a system of constitutional justice. This book lays bare the political roots of this transformation, outlining a new way to understand judicial design and the very purpose of constitutional justice. Authors Daniel M. Brinks and Abby Blass use case studies drawn from nineteen Latin American countries over forty years to reveal the ideas behind the new systems of constitutional justice. They show how constitutional designers entrust their hopes and fears to dynamic governance systems, in hopes of directing the development of constitutional meaning over time.

Examining the notion, nature, and extent of consent in both commercial arbitration and investment arbitration, this book provides practitioners and academics with a thorough, case-related analysis of an issue which raises many questions. Whilst considering the evolution of arbitration and its consensual nature - enlargement of the parties' freedom to consent to arbitration, and development from commercial arbitration to investment arbitration - it addresses important theoretical questions to offer practical solutions. These include: how consent to arbitrate is expressed and when mutual consent to arbitration is reached; which law shall govern the arbitration agreement or, more particularly, consent as an element of the substantive validity of it; and, conversely, according to which law will a possible lack of consent be judged; how consent should be interpreted; which relationship exists between consent as part of the substantive validity of an arbitration agreement and its formal validity; which, if any, are the implied terms when consenting to arbitration; how consent to arbitrate influences procedural aspects (counterclaims, joinder, consolidation), and which solutions adopted by treaties, national laws or arbitration rules are, or would be, the most respectful of parties' consent in this respect; what in investment arbitration is the relationship between consent and most-favoured-nation clauses or the influence of umbrella clauses. The book includes original arguments and puts forward new suggestions with regard to the changeable consensual character of arbitration. It also provides a particular focus on problems that frequently arise in practice of international arbitration, for example issues related to complex multiparty arbitration and to jurisdictional questions in investment arbitration.

Utilizing Foucault's genealogical method, this book traces the history and development of the victim from feudal law, arguing that the historical power of the victim to police, prosecute, and punish offenders significantly informed the development of the modern criminal law and justice system. Leading to the repositioning of the victim into the twenty-first century, this book advocates the victim as an agent of change, presenting a new perspective for the relevance of the victim in today's justice system.

The tradition of the public inquiry has become a pivotal part of public life, and a major instrument of accountability in the United Kingdom. There have been over 30 significant public inquiries in the decade (including the BSE, Shipman, Hutton, Bloody Sunday and Billy Wright Inquiries). This book is written and edited by practitioners who have appeared in a large number of these significant inquiries. This new work is the first of its kind, and will function as a handbook for practitioners. The work examines and explains both statutory (in particular the Inquiries Act 2005 and the Inquiry Rules 2006) and non-statutory inquiries in chapters relating to the need for and purpose of the public inquiry, the mechanisms for establishing a public inquiry, terms of reference, the subject matter of inquiries, the relationship of inquiries to other legal proceedings, the constitution of an inquiry, the administration of an inquiry, evidence and procedure, public access to an inquiry, immunities and defamation, representation and funding, inquiry reports and the duty to be fair, ending the inquiry and challenging an inquiry. This book is fully indexed and cross-referenced, including extensive referencing to the position in other jurisdictions. With a Foreword written by Lord Brown.

- Clear and concise explanation of key principles, this is an ideal text for anyone taking the SQE1. - Includes practice questions in the text, and multiple choice questions online - together, the book will allow SQE candidates to practice the skills needed to pass the SQE exam. - One of a wider series of SQE1 textbooks.

The culture of defense work has undergone significant change over the course of the last twenty years. These changes may have generated confusion and uncertainty concerning the role of the defense lawyer in the modern era. If the lawyer is confused as to his role, is it possible to zealously advance the best interests of his client? While the role of the defense has been explored through the culture of their law firms, the individualized role of the defense lawyer in the context of criminal procedure and their contribution to adversarial justice is something that has not been exposed to scrutiny. This book explores how lawyers view their own individual role in the context of the changed obligations introduced by the CPIA 1996 and the CrimPR, looking at the defense lawyer as part of a system, rather than as part of a relationship. Through a theoretical lens, Ed Johnston provides a wider perspective on the changing nature of criminal justice and the place of a key actor within it to draw conclusions regarding the role of the defense lawyer in the modern era.

This book explores engagement between the trade and investment law regimes and the extent to which this is being driven by Preferential Trade and Investment Agreements (PTIAs). It provides an empirical analysis of engagement between the two regimes using data from 60 PTIAs and 60 Bilateral Investment Treaties concluded between 2005-2019 to see whether PTIAs result in increased engagement and whether they are doing so over time. The book explores eight of the factors identified as evidencing inter-regime engagement. These chapters look at when engagement is appropriate and to what extent it is appropriate in relation to each of these areas. Based on the findings of this book's empirical and comparative law analysis of PTIAs, BITs, and the trade and investment law regimes, the book examines whether the conclusion of PTIAs compared to BITs has resulted in increased levels of engagement between the trade and investment law regimes. This book does not put forth the view that convergence between trade and investment is always appropriate, but provides recommendations as to how treaties may be formulated and interpreted in a manner that takes inter-regime engagement into account with a view to ensuring the harmonious simultaneous development of the two regimes. The question of the future direction for engagement between the trade regime and the investment regime is very topical in light of changes to the architecture of both regimes at present.

This book examines the impact of EU trade and investment agreements on public services, a topic that continues to be the subject of heated political debate. It surveys a broad range of EU agreements and provides a comprehensive, up-to-date analysis of the rules and disciplines of such agreements that can affect the provision of public services. Going beyond the existing literature, it asks whether the treatment of public services in EU trade and investment agreements is coherent with the special status of public services in "internal" EU law, specifically internal market law, while also challenging the notion that trade and investment agreements automatically pose serious threats to public services. The book will be of keen interest to legal scholars and students specialising in EU and/or international economic law together with national and international policy-makers. Luigi F. Pedreschi is affiliated to the European University Institute in Florence, Italy, and currently works as a Research Associate at the Robert Schuman Centre for Advanced Studies, also located in Florence.

This book examines how alcohol intoxication impacts upon the memory of rape victims and provides recommendations for how best to investigate and prosecute such rape complaints. An estimated 75% of victims are under the influence of alcohol during a sexual assault and yet there is surprisingly little guidance on conducting interviews with complainants who were alcohol-intoxicated during the attack. This book will provide a distinctive, rigorous and important contribution to knowledge by reviewing the evidence base on the effects of alcohol on memory performance. The book brings together a range of academics from various disciplines, including psychology, law and criminology, and it discusses the implications for practice based on consultation with various criminal justice practitioners, including police officers, barristers who defend and prosecute rape cases and policy makers.

This book examines access to justice in summary criminal proceedings by considering the ability of defendants to play an active and effective role in the process. 'Access to justice' refers not just to the availability of legally aided representation, but also to the ability of defendants to understand and effectively participate in summary criminal proceedings more generally. It remains a vital principle of justice that justice should not only be done, but should also be seen to be done by all participants in the process. The book is based on socio-legal research. The study is ethnographic, based on observation conducted in four magistrates' courts in South East England and interviews with both defence lawyers and Crown prosecutors. Setting out an argument that defendants have always been marginalised through particular features of magistrates' court proceedings (such as courtroom layout and patterns of behaviour among the professional workgroups in court), the political climate in relation to defendants and access to justice that has persisted since 2010 has further undermined the ability of defendants to play an active role in the process. Ultimately, this book argues that recent governments have demanded ever more efficiency and cost saving in criminal justice. In that context, principles that contribute to access to justice for defendants have been seriously undermined.

This book analyzes the implementation of CSR reporting and codes of business conduct and ethics in the legal systems of the USA, Austria and China and their enforcement in international supply chain arbitrations. The book demonstrates that long-term profit maximization is increasingly intertwined with corporate ethics and CSR policies. In order to prevent window-dressing and greenwashing, certain control mechanisms and legal standards are required along the entire supply chain. This book introduces an ethics and CSR system recommending a reward-based whistleblowing mechanism, internal oversight by a CSR and Ethics Committee comprised of independent board members and at least one sustainability expert, and an external, independent and comprehensive assurance of CSR reports provided by auditing firms or newly formed governmental agencies consisting of certified CSR experts. The author emphasizes the significance for supply chain leaders to ensure contractual enforcement of their codes of business ethics and conduct along the supply chain. Against this background, the author created a comprehensive fictitious case scenario covering a supply chain dispute arising from the breach of the supply chain leader's code of business conduct and ethics by a lower-tier supply chain member. The author acknowledges the fact that in most of the cases the governing law of international supply chain contracts is English law or law based on English law. Thus, the author discusses potential contractual claims for damages arising from a loss of profits caused by a loss of reputation resulting from violations of core provisions of the chain leader's supplier code of conduct pursuant to English law. As international supply chain disputes usually involve more than two parties, and international arbitration is the ideal means for the resolution of these disputes, the book compares the arbitration rules for consolidations and joinders of some of the most significant international arbitration institutions: SIAC, ICC, AIAC, ICDR, VIAC, CIETAC and HKIAC. The book is directed at legal practitioners, legislators of various jurisdictions, board members of corporations, ethics and compliance officers, academics, researchers and students. It is the author's main goal that the book serves as an inspirational source for the establishment or the improvement of a corporate ethics and CSR system preventing window-dressing and greenwashing and covering the entire supply chain. Furthermore, it is intended that students develop a deeper understanding for the enforcement of corporate ethics and CSR policies.

The nomination and confirmation of Supreme Court justices has, in recent years, become a battleground like no other. Bruising Senate confirmation hearings for failed nominee Robert Bork and successful nominee Clarence Thomas left the reputation of all branches of government in disarray and the participants-and the nation-exhausted. The Senate's Constitutional prerogative to provide advice and consent to the President's nominations to the highest court in the land has given rise to political grandstanding and ideological battles. Less well known is how other players-interest groups, the news media, and, through their involvement, the general public-also affect the conduct and outcome of the Supreme Court nomination process. Electing Justice reveals how from the late 1960s on, the role of these other players grew in intensity to the point that the nomination process would be unrecognizable to its original devisers, the Framers of the Constitution. Over the past quarter century, live television coverage of Senate hearings, "murder boards" in preparation for those hearings, a flood of press releases, television and radio advertisements, and public opinion polls all characterize nominations. Unlike earlier, more elite-governed processes, the involvement of outside groups has become highly public and their effect on the outcome of some nominations is now widely accepted. How should we respond to this informal democratization of the selection process? The genie, Davis contends, cannot be put back into the bottle and we cannot return to a non-political, elite-driven ideal. Davis concludes with several controversial recommendations that preserve the public role while avoiding the excesses of past controversial nominations. By embracing the public's new role in the examination of nominees we can ensure a democratic process and secure an independent and accountable judicial branch.

Billings Learned Hand was one of the most influential judges in America. In Learned Hand: The Man and the Judge, Gerald Gunther provides a complete and intimate account of the professional and personal life of Learned Hand. He conveys the substance and range of Hand's judicial and intellectual contributions with eloquence and grace. This second edition features photos of Learned Hand throughout his life and career, and includes a foreword by Ruth Bader Ginsburg.
Gunther, a former law clerk for Hand, reviewed much of Hand's published work, opinions, and correspondence. He meticulously describes Hand's cases, and discusses the judge's professional and personal life as interconnected with the political and social circumstances of the times in which he lived.
Born in 1872, Hand served on the United States District Court for the Southern District of New York and the United States Court of Appeals for the Second Circuit. He clearly crafted and delivered thousands of decisions in a wide range of cases through extensive, conscientious investigation and analysis, while at the same time exercising wisdom and personal detachment. His opinions are still widely quoted today, and will remain as an everlasting tribute to his life and legacy.

This book offers a comprehensive introduction to China's judicial administration system. It presents in-depth analyses of the country's current judicial administration system, as well as a new theory on the system that is based on the realities of today's China, and provides guidance on reform. The book examines the system as a whole, as well as various specific aspects of judicial administration, putting forward bold theoretical proposals for improving China's judicial administration system and judicial system in general.

It is a pleasure to write this Foreword to the second, expanded edition of Ian Blackshaw's well-respected book on the extra-judicial settlement of sports disputes through mediation and arbitration. Prof Blackshaw is a master of his subject who explains in clear and straightforward terms the various forms of alternative dispute resolution (ADR) methods available for dealing with a wide range of different kinds of sports disputes, which are on the increase, not least because of the huge sums of money that are nowadays at stake in sport at the elite level. As I have written elsewhere, "[t]he unique investment of competitive egos, emotions, expec- tions, and money in international sports almost guarantees a dividend of highly charged disputes.... . [and] [t]he structure for resolving them is complex. " Dispute resolution, is one of the most critical issues which overshadow the sports arena. As Prof Blackshaw rightly points out however, ADR is "not a panacea" for settling all kinds of sports disputes, and so the role of the courts must not be underestimated. This is true in both Europe and the United States of America, where I practice and teach international sports law. The expanded version of this book includes a more in-depth study of the functions and role of the Court of Arbitration for Sport (CAS), based in Lausanne, Switzerland, and also a review of the contribution of CAS to an emerging so-called 'Lex Sportiva'.

The friendly settlement procedure is an important tool for the reduction of the European Court of Human Rights' (ECtHR) case load. Recent practice demonstrates that this procedure is increasingly resorted to by applicants and Contracting States. Friendly Settlements before the European Courtof Human Rights evaluates this largely unexplored instrument from doctrinal as well as practical perspectives, making recommendations to render the negotiations before the ECtHR more efficient and professional.
The book examines questions relating to the admissibility as well as to the practical manageability of friendly settlements. In contrast to ordinary civil proceedings, the friendly settlements procedure has a mixed legal character: while settlements are an inter-partes procedure, they are also binding under international law, as the ECtHR often hands them down in the form of a judgment. In this context, the question arises as to how far the proceedings can be 'privatized' and where the limits to the monetization of human rights violation lie. This book evaluates possible abuses and identifies the precautions that need to be taken in the framework of friendly settlements. This issue is linked to the question of whether the legal framework which governs the conclusion of a friendly settlement should be formulated in a more concrete manner, given that the position of the parties is unequal and that the role of the Court is hardly defined in this context. Furthermore, the book empirically examines whether the friendly settlement procedure is as advantageous in comparison to ordinary proceedings as others have argued. It also questions whether the friendly settlements procedure can provide the applicant with 'more money faster'.

This book addresses the process and principles of contract management in construction from an international perspective. It presents a well-structured, in-depth analysis of construction law doctrines necessary to understand the fundamentals of contract management. The book begins with an introduction to contract management and contract law and formation. It then discusses the various parties to a contract and their relevant obligations, whether they are engineers, contractors or subcontractors. It also addresses standard practices when drafting and revising contracts, as well as what can be expected in standard contracts general clauses. Two chapters are dedicated to contract clauses, with one focused on contract administration such as schedules, payment certificates and defects liability, and the other focused on contract management, such as terminations, dispute resolutions and claims. This book provides a useful reference to engineers, project managers and students within the field of engineering and construction management.

This book presents a comprehensive and systematic study of the principal aspects of the modern law of international commercial transactions. Based on diverse sources, including legislative texts, case law, international conventions, and a variety of soft-law instruments, it highlights key topics such as the international sale of goods, international transport, marine insurance, international finance and payments, electronic commerce, international commercial arbitration, standard trade terms, and international harmonization of trade laws. In focusing on the private law aspects of international trade, the book closely analyzes the relevant statutes, case law and the European Union (EU) and international uniform law instruments like the Rome I Regulation, the UN Convention on the Contracts for the International Sale of Goods (CISG), UNCITRAL Model Laws; non-legislative instruments including restatements such as the UNIDROIT Principles on International Commercial Contracts, and rules of business practices codified by the ICC such as the Arbitration Rules, UCP 600 and different versions of the INCOTERMS. The book clearly explains the key concepts and nuances of the subject, offering incisive and vivid analyses of the major issues and developments. It also traces the evolution of the law of international trade and explores the connection between the lex mercatoria and the modern law. Comprehensively examining the issue of international harmonization of trade laws from a variety of perspectives, it provides a detailed account of the work of major players in the field, including UNCITRAL, UNIDROIT, ICC, and the Hague Conference on Private International Law (HCCH). Adopting the comparative law method, this book offers a critical analysis of the laws of two key jurisdictions-India and England-in the context of export trade. In order to stimulate discussion on law reform, it explains the similarities and differences not only between laws of the two countries, but also between the laws of India and England on the one hand, and the uniform law instruments on the other. Given its breadth of coverage, this book is a valuable reference resource not only for students in the fields of law, international trade, and commercial law, but also for researchers, practitioners and policymakers.

This book maps the changes in court advocacy in England and Wales over the last three centuries. Advocacy, the means by which a barrister puts their client's case to the court and jury, has grown piecemeal and at an uneven pace; the result of a complex interplay of many influences. Andrew Watson examines the numerous principal factors, from the effect on juniors of successful styles deployed by senior advocates, changes in court procedure, reforms in laws determining who and what may be put before courts, the amount of media reporting of court cases, and public and press opinion about the acceptable limits of advocates' tactics and oratory. This book also explores the extent to which juries are used in trials and the social origins of those serving on them. It goes on to examine the formal teaching of advocacy which was only introduced comparatively recently, arguing that this, and new technology, will likely exert a strong influence on future forensic oratory. Speaking in Court provides a readable history of advocacy and the many factors that have shaped it, and takes a far wider view of the history of advocacy than many titles, analysing the 20th Century developments which are often overlooked. This book will be of interest to general readers, law practitioners interested in how advocacy has developed in courts of yesteryear, teachers of advocacy who want to locate there subject in history and impart this to their students, and to law students curious about the origins of what they are learning.

With a new Foreword by David Ormerod of the Law Commission. Within the criminal justice system of England and Wales, the Crown Court is the arena in which serious criminal offences are prosecuted and sentenced. On the basis of up-to-date ethnographic research, this timely book provides a vivid description of what it is like to attend court as a victim, a witness or a defendant; the interplay between the different players in the courtroom; and the extent to which the court process is viewed as legitimate by those involved in it. This valuable addition to the field brings to life the range of issues involved and is aimed at students and scholars of criminal justice, policy-makers and practitioners, and interested members of the general public.

This book examines the way international court judges are chosen. Focusing principally on the judicial selection procedures of the International Court of Justice and International Criminal Court, it provides the first detailed examination of how the selection process works in practice at national and international levels: what factors determine whether a state will nominate a candidate? How is a candidate identified? What factors influence success or failure? What are the respective roles of merit, politics, and other considerations in the nomination and election process?
The research was based on interviews, case studies and survey data in a range of different states. It concludes that although the nature and quality of nomination and election processes vary widely, a common theme indicates the powerful influence of domestic and international political considerations, and the significant role of a small group of diplomats, civil servants, lawyers, and academics, often without transparency or accountability. The processes allow overt political considerations to be introduced throughout the decision-making process in ways that may detract from the selection of the most highly qualified candidates and, ultimately, undermine independence. This is particularly evident in the election campaigning that has become a defining feature of the selection process, accompanied by widespread vote trading and reciprocal agreements between states. The effect of these practices is often to undermine the role of statutory selection criteria and to favour candidates from more politically powerful states. The book reviews new judicial selection models adopted or proposed in other international and regional courts, and considers a number of proposals for change to promote more independent, transparent, and merit-based nomination and election procedures.

This book assesses Afghanistan's transit trade with Pakistan in the context of WTO transit regime for landlocked countries and its impacts on Members' regional transit agreements. The key questions this book seeks to answer are the extent Afghanistan can benefit from WTO transit rules in demanding freedom of transit through the territory of Pakistan, how these rules influence the transit agreement concluded between Afghanistan and Pakistan, and finally how useful it would be to challenge Pakistan under the WTO dispute settlement system for its failure to provide Afghanistan freedom of transit and free access to and from the sea.

This new fourth edition of a well-established book is a timely response to the continuing development of the new rules of civil procedure in force in most of the jurisdictions of the English-speaking Caribbean. The new edition has been substantially revised to cover amendments to, and recent case law interpreting and applying, the Civil Procedure Rules of the various territories. It is essential reading for law students and legal practitioners in the region.