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is england a better place to locate your financial activity than new york? November 6, 2014

Posted by Bradley in : law , add a comment

If you are an investor in Argentina’s exchange bonds (the ones governed by English law) perhaps so. Mr Justice Newey was asked by some of these investors for:

a declaration that the €225 million [held by BNY Mellon] is held on the English law trust…, .. a declaration that, as a matter of English conflicts of law, an order of a foreign Court is ineffective in varying a contract governed by English law and .. an interim injunction restraining the Bank … from dealing with or disposing of the €225 million (or any other funds paid to it by the Republic in respect of the euro-denominated Exchange Bonds) other than by paying the money to the beneficial holders of the bonds…

The Judge suggested that had Judge Griesa been informed that an English court took the view that the provisions of the relevant trust meant that Argentina had no interest in the moneys in question such that BNY Mellon could not be required to return them to Argentina he might have based his decision not to order Argentina to return the money on this reason rather than on the fact that the FSIA does not authorize attachment or execution of sovereign property located outside the United States:

I have in the end been persuaded that a declaration from an English Court that the €225 million is held on trust for the holders of the euro-denominated Exchange Bonds and the second defendant (and, correspondingly, that the Republic has no beneficial interest in the money) is likely to be of interest to an American Court having to consider issues relating to the funds. It is noteworthy that, when he denied the turnover motions, Judge Griesa did so by reference to the Foreign Sovereign Immunities Act, not on the basis that the Republic could have no interest in the funds, an issue which he did “not reach”. Had there been a ruling from an English Court, the Judge might have felt able to proceed on the basis that the Republic could have no interest in the €225 million. Again, Judge Griesa might not have thought in terms of the money simply being returned to Argentina (as he did at the hearing on 27 June 2014) had it been evident from an English order that it was held on trust exclusively for the holders of the relevant bonds and the second defendant.

I am not at all sure about whether this would have changed the basis for Judge Griesa’s decision. The judge decided to allow an opportunity for the holdout creditors to express their views on the proposed declarations before making them. But it looks very much as though BNY Mellon will be in an uncomfortable position when the dust settles.

the justiciability of torture claims: uk version October 30, 2014

Posted by Bradley in : Uncategorized , add a comment

In Belhaj v Straw the English Court of Appeals (the Master of the Rolls, Lord Dyson, Lord Justice LLoyd Jones (who was the principal drafter of the judgment of the court) and Lady Justice Sharp) have allowed a range of claims that Jack Straw, Mark Allen, the FCO and the Home Office were involved in unlawful renditions to Libya (involving allegations of torture) to proceed. The Court rejected arguments (which had succeeded in the court below, although the Judge, Simon J. expressed some concern) that the acts complained of implicated the act of state doctrine which makes acts of a foreign state on its own territory non-justiciable in English courts. The Court of Appeal found that the act of state doctrine did not prevent the litigation because it involved claims of violations of international law and fundamental human rights and because the alleged acts perpetrated by the US took place outside the US. The Court of Appeal noted that English law did not require deference to the views of the executive as to the likely impact of exercising jurisdiction on foreign relations (in contrast to the situation in the US). The question was whether the court should go beyond precedent and hear a case which would require an investigation into the validity of the conduct of a foreign state (all of the claims would involve an assessment of acts of foreign states).

The Court said:

a fundamental change has occurred within public international law. The traditional view of public international law as a system of law merely regulating the conduct of states among themselves on the international plane has long been discarded. In its place has emerged a system which includes the regulation of human rights by international law, a system of which individuals are rightly considered to be subjects. A corresponding shift in international public policy has also taken place… These changes have been reflected in a growing willingness on the part of courts in this jurisdiction to address and investigate the conduct of foreign states and issues of public international law when appropriate….The abhorrent nature of torture and its condemnation by the community of nations is apparent from the participation of states in the UN Convention against Torture (to which all of the States concerned with the exception of Malaysia are parties) and the International Covenant on Civil and Political Rights (to which Libya, Thailand, the United States and the United Kingdom are parties) and from the recognition in customary international law of its prohibition as a rule of jus cogens, a peremptory norm from which no derogation is permitted. While it is impermissible to draw consequences as to the jurisdictional competence of national courts from the jus cogens status of the prohibition on torture… it is appropriate to take account of the strength of this condemnation when considering the application of a rule of public policy….there is a compelling public interest in the investigation by the English courts of these very grave allegations. The only ground on which it could be contended that there is any exemption from the exercise of jurisdiction in the present case is because of the alleged involvement of other states and their officials in the conduct alleged. Notwithstanding our view that the present proceedings would entail an investigation of the legality of the conduct of those foreign officials, the fortuitous benefit the act of state doctrine might confer on the respondents is a further factor supporting the application of this public policy limitation.

I’d like to know whether this is the sort of issue on which Cameron would think that a British Human Rights Act should take the same, or a different, approach.

civil society and multilateral institutions October 29, 2014

Posted by Bradley in : governance , add a comment

The UN Special Rapporteur on Freedom of Peaceful Assembly and of Association, Maina Kiai, published a report yesterday arguing that multilateral institutions should make efforts to allow the voices of non-state, non-business entities to be heard:

In recent times, non-State actors have challenged the State-centric approach to global governance and are demanding a place at the negotiating table. Civil society in particular insists that discussions and decisions of multilateral institutions should focus on people’s concerns and human rights rather than being confined to geopolitical and economic interests that primarily occupy States and corporations. The Special Rapporteur believes that the concept of multilateralism should be expanded beyond action by States alone to include the effective participation of a variety of voices within those States. With this in mind, the report highlights the challenges experienced by civil society actors in having an effective voice at the multilateral level.

The report points out that this is particularly important as supra-national decision-making has more and more impact on domestic policy.

warning on blending: irresistible! October 22, 2014

Posted by Bradley in : governance , add a comment

The EU’s Court of Auditors has warned the new EU Commission about the need to focus on issues of management in blending public and private finance in development assistance in a new report:

The 30 projects examined by the Court were all judged to be relevant for the regions and countries concerned. However, the approval process under‑taken by the Commission was not thorough, and the decisions to award the grants, at a particular level, were frequently not convincingly evidenced. Guidance on what criteria the Commission should use in its decision‑making was also lacking. Once grants were approved, the advance disbursements were unnecessarily high. The Commission’s monitoring did not ensure that the added value of grants was achieved in all cases.

formidable women… femmes formidables September 30, 2014

Posted by Bradley in : gender , add a comment

Today, reading Sergio Puig’s article, Social Capital in the Arbitration Market (the link is to the SSRN version, although I read the published version in volume 25 of the European Journal of International Law at 387-424 (2014)) – a fascinating social network analysis of international arbitration based on ICSID data – I was struck by a reference to the existence of a small number of “formidable women” (e.g. at p 407) in the group of prominent and mostly male arbitrators (“grand old men”). Professor Puig attributes the “formidable women” description to Jason Yackee’s article Controlling the International Investment Law Agency. I’m not sure what I think about this descriptor. It may be intended as complimentary, even a recognition that women have to be even better than men to be part of the club. But I have some reservations. I do know I’d rather be described as formidable in French than in English!

the vaguely united kingdom – devolution for manchester? September 21, 2014

Posted by Bradley in : governance , add a comment

Reading about the Scottish referendum it seemed to me that many of the arguments for independence applied to parts of England beyond London and the Home Counties. Those parts of the country which aren’t doing as well as the South East, the “desolate” parts where fracking has been thought to be acceptable. Places with proud histories and vibrant presents ignored by southern elites. So it’s not a surprise to read on The Guardian’s web pages:

The Scottish referendum has prompted northern English councils to demand more powers from Westminster, with local leaders complaining that England is “totally overgoverned” from London.

cambridge international symposium on economic crime August 31, 2014

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This week I am going to this symposium (my very preliminary paper is here).

um alumna appointed to german constitutional court May 23, 2014

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Doris König, an alumna of the Law School, recently President of the Bucerius Law School in Hamburg, has just been appointed to a 12 year term as Justice on the German Constitutional Court.

article on interconnectedness May 21, 2014

Posted by Bradley in : financial regulation , add a comment

In the Texas International Law Journal, Breaking Up is Hard to Do: The Interconnection Problem in Financial Markets and Financial Regulation: A European (Banking) Union Perspective.

wolterskluwer/aspen casebook petition May 7, 2014

Posted by Bradley in : consumers , add a comment

I just signed the petition here to urge this publisher to abandon its plan to require students to return their books at the end of the semester.