Dalhuisen on transnational and comparative commercial, financial and trade law:
Gespeichert in:
| Vorheriger Titel: | Dalhuisen, Jan Hendrik On international commercial, financial and trade law |
|---|---|
| 1. Verfasser: | |
| Format: | Buch |
| Sprache: | English |
| Veröffentlicht: |
Oxford [u.a.]
Hart
2007
|
| Ausgabe: | 3. ed. |
| Schlagworte: | |
| Online-Zugang: | Inhaltsverzeichnis |
| Beschreibung: | Früher u.d.T.: Dalhuisen, Jan H.: International commercial, financial and trade law |
| Beschreibung: | LIX, 1359 S. |
| ISBN: | 9781841137094 |
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Datensatz im Suchindex
| _version_ | 1804136424956493824 |
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| adam_text | DALHUISEN ON TRANSNATIONAL AND COMPARATIVE COMMERCIAL, FINANCIAL AND
TRADE LAW CONTENTS PREFACE TO THE THIRD EDITION V PREFACE TO THE SECOND
EDITION XI PREFACE TO THE FTST EDITION XVIII TABLE OF CASES AND
LEGISLATION XLVI 1 MODERN TRANSNATIONAL AND COMPARATIVE COMMERCIAL AND
FINANCIAL LAW AND ITS SOURCES PART I NATIONAL AND TRANSNATIONAL OR
INTERNATIONAL COMMERCIAL AND FINANCIAL LAW OR THE LAW CONCERNING
PROFESSIONAL DEALINGS (THE NEW LEX MERCATORIA OR LAW MERCHANT) 1.1.
INTRODUCTION 1 1.1.1 THE MEANING OF MODERN INTERNATIONAL COMMERCIAL AND
FINANCIAL LAW 1 1.1.2 THE ANTECEDENTS OF MODERN ATTITUDES TO
INTERNATIONAL COMMERCIAL LAW IN CIVIL AND COMMON LAW. THE MEANING AND
IMPACT OF STATISM, LEGAL POSITIVISM AND LEGAL FORMALISM 8 1.1.3 THE
IMPACT OF CIVIL AND COMMON LAW TRADITIONS ON THE MODERN TRANSNATIONAL
LAW MERCHANT AND ITS FORMATION. FLEXIBILITY AND LEGAL DYNAMISM 15 1.1.4
CIVIL AND COMMON LAW NOTIONS OF COMMERCIAL LAW 20 1.1.5 THE DEVELOPMENT
OF A SEPARATE COMMERCIAL LAW IN FRANCE AND GERMANY 25 1.1.6 OLD AND NEW
COMMERCIAL AND FINANCIAL LAW: INTERNATIONAL PROFESSIONAL LAW AND THE
REVIVAL OF THE INTERNATIONAL LAW MERCHANT OR LEX MERCATORIA. CONSTRAINTS
DERIVED FROM THE CONTINUING DOMESTIC NATURE OF BANKRUPTCY LAWS 28 1.1.7
INTERNATIONAL COMMERCIAL ARBITRATION AND INTERNATIONAL COMMERCIAL COURTS
35 1.1.8 STRUCTURE OF THIS CHAPTER 39 1.2 THE ORIGIN AND EVOLUTION OF
CIVIL AND COMMON LAW. THE SOURCES OF PRIVATE LAW. STATIST AND
NON-STATIST VIEW 41 1.2.1 THE EVOLUTION OF MODERN PRIVATE LAW AND ITS
SOURCES AND THEIR IMPORTANCE FOR THE DEVELOPMENT OF MODERN INTERNATIONAL
COMMERCIAL AND FINANCIAL LAW 41 1.2.2 THE EARLY DEVELOPMENT OF ROMAN LAW
41 1.2.3 CLASSICAL ROMAN LAW AND THE CORPUS IURIS CIVILIS 45 1.2.4 THE
REVIVAL OF ROMAN LAW IN WESTERN EUROPE: THE IUS COMMUNE 48 1.2.5 THE IUS
COMMUNE AND LOCAL LAW 51 CONTENTS 1.2.6 NATURAL LAW AND THE NATURAL LAW
SCHOOL: GROTIUS DE LURE BELLI AC PADS, ITS APPROACH AND IMPACT 55
1.2.7. NATURAL LAW, LEGAL PRINCIPLE AND POSITIVE LAW: THE STATUS OF
STATE LAW IN THE PHILOSOPHIES OF GROTIUS, HOBBES, LOCKE, KANT AND HEGEL.
62 1.2.8 THE GERMAN HISTORICAL AND ROMANTIC SCHOOLS. 64 1.2.9 THE
19TH-CENTURY CIVIL LAW CONCEPT OF NATIONAL CODIFICATIONS AND THE ROLE OF
INTERPRETATION. 67 1.2.10 20TH-CENTURY CONTINENTAL EUROPEAN LEGAL
THINKING IN PRIVATE LAW: BEGRIFFS-AND INTERESSENJURISPRUDENZ. MODERN
HERMENEUTICS. 71 1.2.11 DEVELOPMENT OF THE COMMON LAW. EQUITY. 75 1.2.12
THE COMMON LAW APPROACH TO SCHOLARSHIP, PRECEDENT, LEGISLATION AND
STATUTORY INTERPRETATION. 79 1.2.13 INTELLECTUALISATION AND
CONCEPTUALISATION IN COMMON LAW. MODERN AMERICAN ACADEMIC ATTITUDES
TOWARDS THE LAW AND ITS DEVELOPMENT: LEGAL FORMALISM AND REALISM.
POST-REALISM OR LEGAL FUNCTIONALISM: THE LAW AND... MOVEMENTS. 85 1.3
CIVIL AND COMMON LAW COMPARED. THE IMPACT OF MODERN REGULATORY AND
MANDATORY LAWS: PUBLIC POLICY AND GOVERNMENTAL INTERESTS. 96 1.3.1 THE
RELATION BETWEEN STATUTORY AND NON-STATUTORY LAW IN CIVIL AND COMMON
LAW. SOURCES OF LAW: GENERAL PRINCIPLES, CUSTOM AND STATUTORY
POSITIVISM. 96 1.3.2 LEGAL ATTITUDES IN CIVIL AND COMMON LAW: THE ROLE
OF INTERPRETATION AND THE APPROACH TO FACT AND LAW-FINDING. 104 1.3.3 20
TH CENTURY GOVERNMENT INTERVENTION IN PRIVATE LAW. GOVERNMENT POLICIES,
REGULATION AND MANDATORY DOMESTIC RULES. THE EFFECT OF GLOBALISATION AND
THE DENATIONALISATION OF PRIVATE LAW 109 1.4 CULTURAL, SOCIOLOGICAL AND
ECONOMIC UNDERCURRENTS IN THE FORMATION OF THE LAW. LEGAL ORDERS AND
THEIR MANIFESTATION 115 1.4.1 THE CONCEPT OF LEGAL ORDERS 115 1.4.2 LAW
AS CULTURAL PHENOMENON 117 1.4.3 SOCIOLOGICAL AND ECONOMIC
CONSIDERATIONS IN THE LAW. 125 1.4.4 THE COMPETITION BETWEEN
TRANSNATIONAL LAW AND MANDATORY STATE LAWS OR NATIONAL PUBLIC POLICIES.
129 1.4.5 THE INTERNATIONAL COMMERCIAL AND FINANCIAL LEGAL ORDER AND ITS
RELEVANCE: THE ROLE OF LEGAL THEORY, LEGAL HISTORY AND COMPARATIVE LAW.
134 1.4.6 THE OPERATION OF DIFFERENT LEGAL ORDERS: EVOLUTION OF A US
FEDERAL COMMERCIAL LAW, OF TRANSNATIONAL PRIVATE LAW CONCEPTS IN THE EU,
AND OF INTERNATIONAL HUMAN RIGHTS LAW IN THE COUNCIL OF EUROPE (EUROPEAN
COURT OF HUMAN RIGHTS). 139 1.5 TRANSNATIONAL PRIVATE LAW AMONG
PROFESSIONALS 142 1.5.1 THE GUIDING FUNCTION OF INTERNATIONAL COMMERCIAL
AND FINANCIAL LAW. THE NEW LEGAL ORDER IN THE PROFESSIONAL SPHERE. THE
LEX MERCATORIA V IUS COMMUNE APPROACH. 142 XXVI DALHUISEN ON
TRANSNATIONAL AND COMPARATIVE COMMERCIAL, FINANCIAL AND TRADE LAW 1.5.2
SPONTANEOUS SOURCES OF LAW: FUNDAMENTAL AND GENERAL LEGAL PRINCIPLE.
CUSTOM. 148 1.5.3 UNIFORM SUBSTANTIVE TREATY LAW AS ALTERNATIVE TO
PRIVATE INTERNATIONAL LAW. 153 1.5.4 THE HIERARCHY OF NORMS IN MODERN
INTERNATIONAL COMMERCIAL AND FINANCIAL LAW: THE ROLE OF FUNDAMENTAL AND
GENERAL PRINCIPLES, OF CUSTOM, UNIFORM TREATY LAW, COMPARATIVE DOMESTIC
LAW, AND PRIVATE INTERNATIONAL LAW. COMPLETENESS OF THE LEX MERCATORIA.
157 1.5.5 MANDATORY RULES OF DOMESTIC PUBLIC OR REGULATORY LAW AND THE
LEX MERCATORIA. 161 1.5.6 AGENTS OF INTERNATIONAL CONVERGENCE AND
HARMONISATION: THE ROLE OF UNIDROIT, UNCITRAL, THE ICC, THE HAGUE
CONFERENCE, THE EU, AND THE AMERICAN LAW INSTITUTE AND COMMISSIONERS ON
UNIFORM STATE LAWS IN THE USA; THE IMPACT OF THE INTERNATIONAL LEGAL
PRACTICE AND SCHOLARSHIP. 161 1.5.7 THE ROLE OF NATIONAL COURTS AND OF
INTERNATIONAL COMMERCIAL ARBITRATION. 166 PART II THE NATURE, STATUS AND
FUNCTION OF PRIVATE INTERNATIONAL LAW. 168 2.1 MODERN PRIVATE
INTERNATIONAL LAW. 168 2.1.1 THE UNDERLYING CONCEPT OF MODERN PRIVATE
INTERNATIONAL LAW. THE ROLE OF PARTY AUTONOMY. 168 2.1.2 EARLIER
APPROACHES, DRAWBACKS OF THE MODERN CONFLICT RULES. 172 2.2 THE MODERN
EUROPEAN AND US APPROACHES TO CONFLICTS OF LAWS. 178 2.2.1 REFINEMENT OF
THE EUROPEAN MODEL. 178 2.2.2 DEVELOPMENTS IN THE USA. 179 2.2.3 THE
VARIOUS MODERN US CONFLICT THEORIES. 182 2.2.4 THE EUROPEAN APPROACH OF
EXCEPTION CLAUSES: REASONABLE AND FAIR SOLUTIONS IN THE DUTCH PROPOSALS.
184 2.2.5 EMPHASIS ON THE FACTS RATHER THAN ON THE RULES: THE NATURE OF
THE RELATIONSHIP AND OF THE TRANSACTION. MODERN INTERPRETATION
TECHNIQUES AND THE EFFECTS OF INTERNATIONALISATION. 187 2.2.6 THE ISSUE
OF PUBLIC POLICY OR GOVERNMENTAL INTERESTS AND ITS IMPACT. THE NOTION OF
COMITY AND ITS APPLICATION. COMPETITION BETWEEN TRANSNATIONAL AND STATE
LAWS REVISITED. 190 2.2.7 STATES AS COUNTERPARTIES. 193 2.2.8 PRACTICAL
ISSUES CONCERNING CONFLICTING PUBLIC POLICIES: EFFECT ON THE LEX
MERCATORIA AND THE IMPORTANCE OF THE NOTION OF FORUM NON CONVENIENS. 196
2.2.9 PARTY AUTONOMY AND CONTRACTUAL CHOICE OF LAW. 201 2.3 INTERACTION
OF PRIVATE INTERNATIONAL LAW AND UNIFORM LAW. 205 2.3.1 PRIVATE
INTERNATIONAL LAW AND THE APPLICATION OF UNIFORM LAW. 205 2.3.2 THE
SITUATION WITH REGARD TO EU DIRECTIVES OF A PRIVATE LAW NATURE. 205
CONTENTS PART III THE DEVELOPMENT OF TRANSNATIONAL OR INTERNATIONAL
COMMERCIAL AND FINANCE LAW. 209 3.1 THE LEX MERCATORIA, INTERRELATION
WITH PRIVATE INTERNATIONAL LAW. 209 3.1.1 THE BACKGROUND TO THE REVIVAL
OF THE LEX MERCATORIA. 209 3.1.2 THE CONCEPT OF THE MODERN LEX
MERCATORIA AS A HIERARCHY OF NORMS. 211 3.1.3 THE MAJOR PROTAGONISTS OF
THE LEX MERCATORIA AND THEIR VIEWS: LEGITIMATION. 217 3.2 THE HIERARCHY
OF NORMS: ELABORATION. 219 3.2.1 FUNDAMENTAL LEGAL PRINCIPLE.
TRANSNATIONAL RULES OF CONTRACT FORMATION AND THE NORMATIVE
INTERPRETATION TECHNIQUE. PROCEDURE. 219 3.2.2 FUNDAMENTAL PRINCIPLES.
THE NOTION OF TRANSNATIONAL OWNERSHIP. A FRACTURED SYSTEM OF PROPRIETARY
RIGHTS. 222 3.2.3 MANDATORY CUSTOMS AND PRACTICES. 228 3.2.4 MANDATORY
UNIFORM TREATY LAW, CONTRACTUAL PROVISIONS (PARTY AUTONOMY), DIRECTORY
TRADE PRACTICES, DIRECTORY UNIFORM TREATY LAW AND COMMON OR GENERAL
LEGAL PRINCIPLES. 231 3.2.5 DOMESTIC LAWS, PRIVATE INTERNATIONAL LAW:
MANDATORY PROVISIONS AND PUBLIC POLICY OR REGULATORY ISSUES. 235 3.3
OPERATION OF THE LEX MERCATORIA AND OBJECTIONS TO IT 237 3.3.1 OPERATION
OF THE LEX MERCATORIA. 23 7 3.3.2 DIRECT REFERENCES TO THE LEX
MERCATORIA. 239 3.3.3 PARTIES CHOICE OF A DOMESTIC LAW V THE LEX
MERCATORIA. 241 3.3.4 OBJECTIONS TO THE LEX MERCATORIA APPROACH. 242
3.3.5 APPLICATION AND ENFORCEMENT OF THE LEX MERCATORIA. 244 2 DOMESTIC
CONTRACT LAWS, UNIFORM INTERNATIONAL CONTRACT LAW AND TRANSNATIONAL
CONTRACT LAW PRINCIPLES, INTERNATIONAL SALES AND CONTRACTUAL AGENCY 245
PART I DOMESTIC CONTRACT LAWS 245 1.1 INTRODUCTION. 245 1.1.1 MODERN
CONTRACT LAW: EMPHASIS ON NATURE OF THE PARTIES OR ON TYPE OF CONTRACT?.
245 1.1.2 MODERN CONTRACT THEORY. 249 1.1.3 THE CHALLENGE OF E-COMMERCE.
254 1.2 FORMATION AND INTERPRETATION OR CONSTRUCTION OF CONTRACTS IN
CIVIL AND COMMON LAW. 255 1.2.1 THE ROLE OF PARTIES INTENT IN CIVIL
LAW. THE NORMATIVE OR TELEOLOGICAL INTERPRETATION METHOD. THE COMMON LAW
APPROACH COMPARED. 255 1.2.2 THE CIVIL LAW NOTION OF GOOD FAITH AND ITS
MODERN USE IN INTERPRETATION. 262 DALHUISEN ON TRANSNATIONAL AND
COMPARATIVE COMMERCIAL, FINANCIAL AND TRADE LAW 1.2.3 CONSENSUS IN CIVIL
LAW AND ITS NORMATIVE INTERPRETATION: ALTERNATIVE VIEWS. 266 1.2.4
INTENT IN COMMON LAW: OFFER AND ACCEPTANCE, THE NOTIONS OF
CONSIDERATION, EXCHANGE OR BARGAIN. 269 1.2.5 THE PRACTICAL SIGNIFICANCE
OF THE CONSIDERATION REQUIREMENT IN COMMON LAW. 273 1.2.6 CONTRACTS:
CONSTRUCTION AND REMEDIES IN COMMON LAW. THE PAROLE EVIDENCE RULE. 275
1.2.7 THE COMMON LAW NOTION OF CONSIDERATION AND THE CIVIL LAW NOTION OF
CAUSA: INTERNATIONAL ASPECTS. 277 1.2.8 CUSTOM AND THE INTERPRETATION OF
CONTRACTS. 281 1.2.9 OTHER ASPECTS OF CONTRACTUAL VALIDITY: CAPACITY AND
AUTHORITY. 282 1.2.10 OTHER ASPECTS OF CONTRACTUAL VALIDITY:
FORMALITIES. 282 1.2.11 OTHER ASPECTS OF CONTRACTUAL VALIDITY:
DEFINITENESS. 283 1.3 THE CIVIL LAW NOTION OF GOOD FAITH AND THE COMMON
LAW ALTERNATIVES OF IMPLIED TERMS, NATURE OF THE RELATIONSHIP OF THE
PARTIES, AND RELIANCE. 284 1.3.1 THE NOTION OF GOOD FAITH IN CIVIL LAW.
284 1.3.2 GOOD FAITH IN COMMON LAW. ALTERNATIVES. EQUITY AND FIDUCIARY
DUTIES DISTINGUISHED. 293 1.3.3 GOOD FAITH IN THE UNIDROIT AND EUROPEAN
CONTRACT PRINCIPLES. 297 1.3.4 EU NOTION OF GOOD FAITH. 298 1.3.5 THE
LESSER NEED FOR LEGAL REFINEMENT IN THE PROFESSIONAL SPHERE:
INTERPRETATION, MISTAKE, GROSS DISPARITY AND DISCLOSURE DUTIES. 299
1.3.6 THE STATUS OF COMMERCIAL LETTERS OF INTENT. 300 1.3.7
PRE-CONTRACTUAL NEGOTIATION AND POST-CONTRACTUAL IMPLEMENTATION DUTIES
OF PROFESSIONALS: ABUSE OF RIGHTS. 301 1.3.8 FORCE MAJEURE,
RE-NEGOTIATION DUTIES AND HARDSHIP ADJUSTMENTS IN PROFESSIONAL
RELATIONSHIPS. 303 1.4 PERFORMANCE OF THE CONTRACT, DEFENSES, DEFAULT
AND EXCUSES, TERMINATION. 304 1.4.1 PERFORMANCE IN KIND/ SPECIFIC
PERFORMANCE. 304 1.4.2 LACK OF CONSENSUS OR DEFENSES TO PERFORMANCE:
INVALIDITY AND RESCISSION. 307 1.4.3 EXCUSES AND THE MEANING OF
PROMISES, CONDITIONS AND WARRANTIES IN CONNECTION WITH PERFORMANCE IN
COMMON LAW. CONDITIONS, REPRESENTATIONS/ WARRANTIES AND COVENANTS IN
FINANCIAL CONTRACTS. 311 1.4.4 DEFAULT OR BREACH AND DAMAGES. 314 1.4.5
FORCE MAJEURE AND CHANGE OF CIRCUMSTANCE. EXCUSES AND ALLOCATION OF RISK
IN SALES. 316 1.4.6 THE DEFINITION OF THE CONCEPT OF FORCE MAJEURE.
FRUSTRATION AND ECONOMIC IMPOSSIBILITY. DEVELOPMENT IN CIVIL AND COMMON
LAW. 319 1.4.7 UNFORESEEN CIRCUMSTANCES AND THE BALANCE OF THE CONTRACT:
HARDSHIP AND RENEGOTIATION DUTIES. 322 1.4.8 MODERN LEGISLATIVE
APPROACHES TO A CHANGE IN CIRCUMSTANCES: CONTRACTUAL HARDSHIP CLAUSES.
326 CONTENTS XXIX 1.5 PRIVITY OF CONTRACT. 328 1.5.1 PRIVITY OF CONTRACT
OR THIRD PARTY RIGHTS AND DUTIES UNDER A CONTRACT. 328 1.5.2 DEVELOPMENT
OF CONTRACTUAL THIRD-PARTY RIGHTS AND DUTIES IN CIVIL LAW. 334 1.5.3 THE
SITUATION IN COMMON LAW AND THE CHANGES IN THE USA AND ENGLAND. 336 1.6
THE UNIDROIT AND EUROPEAN PRINCIPLES OF CONTRACT LAW: VIENNA CONVENTION
AND UCC COMPARED. 339 1.6.1 THE APPLICABILITY, REACH, AND THE DIRECTORY
OR MANDATORY NATURE OF THE PRINCIPLES. 339 1.6.2 APPROACH TO CONTRACT
FORMATION: CAPACITY, FORMALITIES AND SPECIFICITY. 347 1.6.3 NOTIONS OF
GOOD FAITH AND REASONABLENESS: INTERPRETATION AND SUPPLEMENTATION OF THE
PRINCIPLES AND CONTRACTS THEREUNDER. FORCE MAJEURE AND HARDSHIP. 350
1.6.4 THE IMPACT OF CUSTOM. 355 1.6.5 CONSENSUS AND ITS FAILURE:
DEFENSES AND THE QUESTION OF CONTINUED VALIDITY. 356 1.6.6 PERFORMANCE,
DEFAULT AND FORCE MAJEURE EXCUSES: HARDSHIP. 357 1.6.7 PRIVITY OF
CONTRACT. 358 1.6.8 THE NATURE AND IMPACT OF THE PRINCIPLES. 358 1.7
DIRECTORY AND MANDATORY RULES OF CONTRACT 361 1.7.1 DIRECTORY AND
MANDATORY CONTRACT RULES IN DOMESTIC LAWS. 361 1.7.2 TREATMENT OF
DIRECTORY AND MANDATORY CONTRACT RULES IN PRIVATE INTERNATIONAL LAW. 363
1.7.3 MANDATORY UNIFORM INTERNATIONAL CONTRACT RULES. 365 1.7.4 THE
EFFECT OF THE FREEDOM OF MOVEMENT AND THE FREEDOM OF ESTABLISHMENT ON
THE APPLICATION OF DOMESTIC MANDATORY RULES. 365 PART II CONTRACTS FOR
THE INTERNATIONAL SALE OF GOODS 366 2.1 THE MAIN ASPECTS OF THE
INTERNATIONAL SALE OF GOODS. 366 2.1.1 INTRODUCTION. 366 2.1.2 THE
MINIMUM REQUIREMENTS OF THE SALES AGREEMENT: SPECIAL FEATURES AND RISKS
OF INTERNATIONAL SALES. 368 2.1.3 LEGAL RISK IN INTERNATIONAL SALES. 370
2.1.4 SPECIAL ARRANGEMENTS TO COVER THE RISKS OF INTERNATIONAL SALES.
373 2.1.5 INTERNATIONAL SALES AS CONTRACTS BETWEEN PROFESSIONALS:
APPLICABLE LAW. 374 2.1.6 CURRENCY AND PAYMENTS IN INTERNATIONAL SALES:
FREE CONVERTIBILITY AND TRANSFERABILITY OF MONEY. 377 2.1.7 THE TRANSFER
OF TITLE IN INTERNATIONAL SALES. 378 2.1.8 CONFORM DELIVERY AND THE
PASSING OF RISK IN INTERNATIONAL SALES. 379 2.1.9 THE PASSING OF RISK IN
CIVIL AND COMMON LAW. 382 2.1.10 PROPRIETARY SALES PRICE PROTECTION IN
CIVIL AND COMMON LAW. 387 DALHUISEN ON TRANSNATIONAL AND COMPARATIVE
COMMERCIAL, FINANCIAL AND TRADE LAW 2.2 ANCILLARY ARRANGEMENTS IN
INTERNATIONAL SALES. THE ROLE OF INTERMEDIARIES AND DOCUMENTS. 394 2.2.1
THE SAFE HARBOUR FUNCTION: AGENTS AND DOCUMENTS OF TITLE. 394 2.2.2 THE
USE OF AGENTS: THEIR POSITION. 395 2.2.3 THE USE OF NEGOTIABLE DOCUMENTS
OF TITLE: BILLS OF LADING AND WAREHOUSE RECEIPTS. 396 2.2.4 DOCUMENTS OF
TITLE IN PAYMENT SCHEMES: BILLS OF LADING. 397 2.2.5 THE USE OF
NEGOTIABLE INSTRUMENTS: BILLS OF EXCHANGE. 398 2.3 THE UNIFORM
INTERNATIONAL SALES LAWS. 400 2.3.1 ORIGIN AND SCOPE 400 2.3.2 THE
SYSTEM OF THE VIENNA CONVENTION: DIRECTORY OR MANDATORY RULES. 404 2.3.3
APPLICABILITY OF THE VIENNA CONVENTION. 405 2.3.4 THE SALES LAW OF THE
VIENNA CONVENTION. REMEDIES. 406 2.3.5 SUPPLEMENTATION AND
INTERPRETATION OF THE VIENNA CONVENTION. 411 2.3.6 THE INTERPRETATION OF
INTERNATIONAL SALES CONTRACTS UNDER THE VIENNA CONVENTION: MEANING OF
CONDUCT AND CUSTOM IN TERMS OF CONTRACT INTERPRETATION. 416 2.3.7
SUPPLEMENTATION OF THE VIENNA CONVENTION: PRIVATE INTERNATIONAL LAW AND
THE ROME CONVENTION ON THE LAW APPLICABLE TO CONTRACTUAL OBLIGATIONS.
418 2.3.8 THE MAIN RULES OF THE 1980 EU ROME CONVENTION ON THE LAW
APPLICABLE TO CONTRACTUAL OBLIGATIONS. 420 2.3.9 THE VIENNA CONVENTION
AND THE DIFFERENT TRADE TERMS IN INTERNATIONAL SALES. 424 2.3.10
INCOTERMS, THEIR STATUS AND RELATION TO THE UCC AND VIENNA CONVENTION.
427 2.3.11 THE VIENNA CONVENTION AND THE ICC MODEL INTERNATIONAL SALES
CONTRACT. THE 2004 PRINCIPLES OF EUROPEAN LAW: SALES. 429 2.4 THE LAW
MERCHANT CONCERNING INTERNATIONAL SALES. 429 PART III CONTRACTUAL AGENCY
430 3.1 THE GENERAL NOTION OF AGENCY. 430 3.1.1 THE USE OF AGENTS: THEIR
POSITION. 430 3.1.2 THE ROLE OF THE AGENT: EXPLICIT AND APPARENT
AUTHORITY. 434 3.1.3 THE NOTION OF INDEPENDENCE, APPARENT AUTHORITY AND
AGENCIES OF NECESSITY. 437 3.1.4 THE CONSEQUENCES OF AGENCY: CONFLICTS
OF INTERESTS, RIGHTS AND DUTIES OF THE AGENT. 439 3.1.5 UNDISCLOSED AND
INDIRECT AGENCIES. 441 3.1.6 THE CIVIL LAW INDIRECT AGENCY. THE
RELATIONSHIP BETWEEN PRINCIPAL AND THIRD PARTY. CUSTOMERS ASSETS. 442
3.1.7 THE ECONOMIC IMPORTANCE OF MODERN AGENCY. 446 3.2 INTERNATIONAL
ASPECTS OF AGENCY. 447 CONTENTS 3.2.1 PRIVATE INTERNATIONAL LAW ASPECTS
OF AGENCY. 447 3.2.2 TREATY LAW CONCERNING THE LAW APPLICABLE TO AGENCY.
449 3.2.3 THE LEX MERCATORIA AN D AGENCY. 451 3.2.4 THE EU COMMERCIAL
AGENT DIRECTIVE. 451 3 INTERNATIONAL PAYMENTS, PAYMENT SYSTEMS AND
MISTAKEN PAYMENTS 454 PART I THE NOTION AND MODALITIES OF PAYMENT 454 1
. 1 PAYMENT AND WAYS AND MEANS OF PAYMENT 454 1.1.1 WHAT IS PAYMENT? 454
1.1.2 THE NOTION OF MONEY AS UNIT OF ACCOUNT OR UNIT OF PAYMENT: MONEY
AS STORE OF VALUE. 459 1.1.3 PAPER CURRENCIES AND MODERN CURRENCY
ELECTION CLAUSES. 460 1.1.4 FREELY CONVERTIBLE AND TRANSFERABLE
CURRENCY. 462 1.1.5 THE DIFFERENT WAYS AND MEANS OF PAYMENT: PULL AND
PUSH SYSTEMS 464 1.1.6 CASH PAYMENTS AND THE BANK TRANSFER OPTION IN
COMMERCE AND FINANCE. 465 1.2 PAYMENT THROUGH BANK TRANSFERS. 467 1.2.1
THE NATURE OF BANK ACCOUNTS, THE CURRENT ACCOUNT AND ITS USE IN THE
PAYMENT CIRCUIT. 467 1.2.2 WHEN IS A BANK PAYMENT MADE? THE NATURE OF
THE PAYMENT INSTRUCTION AND QUESTION OF ACCEPTANCE AND THE LIBERATING
EFFECT OF THE PAYMENT. 469 1.2.3 THE LEGAL CHARACTERISATION OF BANK
TRANSFER PAYMENTS: ASSIGNMENT, NOVATION OR INDEPENDENT LEGAL STATUS.
LEGAL TOOLS UNDERPINNING THE NOTION OF FINALITY. 473 1.2.4 PAYMENT
MISTAKES AND RESTITUTION. 476 1.2.5 MODERN ELECTRONIC PAYMENT SYSTEMS.
CLEARING, FEDWIRE, CHIPS, CHAPS, GROSS AND NET PAYMENT SYSTEMS AND
INTERNATIONAL BANK TRANSFERS (SWIFT). 478 1.2.6 THE RISKS IN MODERN
PAYMENT SYSTEMS 481 1.2.7 THE EU SETTLEMENT FINALITY DIRECTIVE. 482 1.3
SET-OFF AS METHOD OF PAYMENT: NETTING. 483 1.3.1 LEGAL NATURE AND
CHARACTERISATION. 483 1.3.2 ELIGIBILITY. 485 1.3.3 CONTRACTUAL
ADAPTATIONS OF THE SET-OFF: SETTLEMENT, NOVATION AND CLOSE- OUT NETTING.
487 1.3.4 USE OF CONTRACTUAL NETTING CLAUSES: CONTRACTUAL NETTING AND
BANKRUPTCY. 491 1.3.5 THE ISDA SWAP AND DERIVATIVES MASTER AGREEMENTS.
SWAP AND REPO NETTING. THE NOTION OF CONDITIONALITY AND FLAWED ASSETS
AS AN ALTERNATIVE TO THE SET-OFF. THE EU COLLATERAL DIRECTIVE. 494 1.3.6
THE EVOLUTION OF THE SET-OFF PRINCIPLE. 496 PART II INTERNATIONAL
PAYMENTS 499 2.1 INTERNATIONAL PAYMENT ARRANGEMENTS TO MINIMISE PAYMENT
RISK. 499 2.1.1 CROSS-BORDER PAYMENTS AND THEIR RISKS. 499 DALHUISEN ON
TRANSNATIONAL AND COMPARATIVE COMMERCIAL, FINANCIAL AND TRADE LAW 2.1.2
PAYMENT IN OPEN ACCOUNT. RE-ESTABLISHING SIMULTANEITY THROUGH THE USE OF
INTERMEDIARIES. 501 2.1.3 WAYS TO REDUCE PAYMENT RISK. 502 2.1.4 WAYS TO
REDUCE PAYMENT RISK: THE ACCEPTED BILL OF EXCHANGE. 503 2.1.5 WAYS TO
REDUCE PAYMENT RISK: COLLECTION ARRANGEMENTS. 504 2.1.6 WAYS TO REDUCE
PAYMENT RISK: LETTERS OF CREDIT. THE DIFFERENT BANKS INVOLVED. 506 2.1.7
THE TYPES OF LETTERS OF CREDIT. 510 2.1.8 THE DOCUMENTS REQUIRED UNDER A
DOCUMENTARY LETTER OF CREDIT. 511 2.1.9 THE RIGHT OF REIMBURSEMENT OF
THE ISSUING BANK UNDER A LETTER OF CREDIT. 512 2.1.10 THE LETTER OF
CREDIT AS INDEPENDENT AND PRIMARY OBLIGATION: LEGAL NATURE OF LETTERS OF
CREDIT. THE PAY FIRST, ARGUE LATER NOTION. 513 2.1.11 NON-PERFORMANCE
UNDER LETTERS OF CREDIT: THE EXCEPTION OF FRAUD . 516 2.1.12
TRANSFERABLE LETTERS OF CREDIT AND BACK-TO-BACK LETTERS OF CREDIT. 517
2.1.13 WAYS TO REDUCE PAYMENT RISKS: AUTONOMOUS GUARANTEES. EXAMPLES.
STANDBY LETTERS OF CREDIT. 518 2.1.14 THE LAW AND/OR RULES APPLICABLE TO
COLLECTIONS, LETTERS OF CREDIT AND BANK GUARANTEES. THE ICC RULES AND
THEIR STATUS. THE LEX MERCATORIA. 520 1.2.15 THE UNCITRAL CONVENTION ON
INTERNATIONAL GUARANTEES AND THE WORLD BANK STANDARD CONDITIONS. 521 2.2
INTERNATIONAL SET-OFFS. 522 2.2.1 THE LAW APPLICABLE TO SET-OFFS AND
CONTRACTUAL NETTING. 522 2.2.2 THE LAW APPLICABLE TO NETTING AND SWAP
TRANSFERS 524 PART III MONEY LAUNDERING 526 3.1 TECHNIQUES AND REMEDIES.
526 3.1.1 OBJ ECTIVES AND MECHANISMS. 526 3.1.2 WHY ACTION? REMEDIES AND
THE OBJECTIVES OF COMBATING MONEY LAUNDERING. 528 3.2 INTERNATIONAL
ACTION. 529 3.2.1 THE GROUP OF TEN, THE COUNCIL OF EUROPE, AND THE
UNITED NATIONS. 529 3.2.2 THE EU 529 4 OWNERSHIP, POSSESSION AND
LIMITED, FUTURE, CONDITIONAL OR TEMPORARY LEGAL OR EQUITABLE PROPRIETARY
RIGHTS IN CHATTELS AND INTANGIBLES PART I LAWS OF MOVEABLE PROPERTY
(CHATTELS AND INTANGIBLE ASSETS) 531 1.1 INTRODUCTION 531 1.1.1
PROPRIETARY LAWS IN COMMON AND CIVIL LAW 531 1.1.2 TYPES OF ASSETS. 535
1.1.3 THE REQUIREMENT OF ECONOMIC VALUE AND COMMERCIABILITY. NOTIONS OF
IDENTITY, SPECIFICITY AND DEFINITENESS AND THEIR INHERENT CONSTRAINTS.
538 1.1.4. NATURE OF PROPRIETARY RIGHTS. 542 CONTENTS XXXIII 1.1.5
IMPORTANCE OF THE LAW OF CHATTELS AND INTANGIBLES IN CIVIL AND COMMON
LAW. THE TRADITIONAL PHYSICAL AND ANTHROPOMORPHIC APPROACH TO PROPERTY
RIGHTS. MODERN DEVELOPMENTS. 545 1.1.6 THE EFFECT OF FINANCIAL LAW AND
NEW FINANCIAL STRUCTURES. 549 1.2 THE TYPES OF PROPRIETARY RIGHTS IN
CIVIL LAW. 552 1.2.1 THE NATURE AND LIMITED NUMBER OF THE TRADITIONAL
PROPRIETARY RIGHTS IN CIVIL LAW: THE NUMERUS CLAUSUS NOTION. THE ROLE OF
PUBLICITY, ACTUAL KNOWLEDGE AND PHYSICAL POSSESSIONS. 552 1.2.2 THE WAY
PROPRIETARY RIGHTS ARE EXPRESSED AND PROTECTED IN CIVIL LAW: THE NOTIONS
OF OWNERSHIP, POSSESSION AND HOLDERSHIP OR DETENTION; CONSTRUCTIVE
POSSESSION AND HOLDERSHIP. 560 1.2.3 THE ACQUISITIVE PRESCRIPTION AND
ITS IMPORTANCE IN CIVIL LAW. DIFFERENCE WITH THE PROTECTION OF BONA FIDE
PURCHASERS. 564 1.2.4 PROPRIETARY DEFENSES IN BANKRUPTCY. 566 1.2.5 THE
CIVIL LAW RELATIVITY OR PRIORITY PRINCIPLE IN RESPECT OF PROPRIETARY
RIGHTS: THE DIFFERENCE WITH THE RELATIVITY OF OBLIGATORY RIGHTS. 569 1.3
THE TYPES OF PROPRIETARY RIGHTS IN COMMON LAW: THE PRACTICAL DIFFERENCES
WITH CIVIL LAW. MODERN FUNCTIONAL THEORIES. 570 1.3.1 LEGAL AND
EQUITABLE INTERESTS IN CHATTELS. 570 1.3.2 OWNERSHIP AND POSSESSION OF
CHATTELS IN COMMON LAW. 573 1.3.3 EQUITABLE PROPRIETARY INTERESTS IN
CHATTELS. 575 1.3.4 THE COMMON LAW SYSTEM OF PROPRIETARY DEFENSES: TORT
ACTIONS BASED ON BETTER RATHER THAN ABSOLUTE RIGHTS. 577 1.3.5
CONSTRUCTIVE POSSESSION IN COMMON LAW. THE ABSENCE OF ACQUISITIVE
PRESCRIPTION. STATUTES OF LIMITATION. 579 1.3.6 PRACTICAL DIFFERENCES
BETWEEN THE COMMON AND CIVIL LAW APPROACHES TO PROPRIETARY RIGHTS IN
CHATTELS. 580 1.3.7 APPROXIMATION OF THE COMMON AND CIVIL LAW SYSTEMS OF
PROPRIETARY LAW IN CHATTELS. USER, ENJOYMENT AND INCOME RIGHTS. THE
UNIFYING IMPACT OF MODERN FINANCIAL STRUCTURES AND THE REQUIREMENTS OF
MODERN RISK MANAGEMENT. THE NEED FOR AND EFFECT OF LEGAL
TRANSNATIONALISATION. 582 1.3.8 VIRTUES AND PITFALLS OF THE NUMERUS
CLAUSUS NOTION. MODERN FUNCTIONAL ANALYSES. 586 1.4 TRANSFER OF
PROPRIETARY RIGHTS IN CHATTELS IN CIVIL AND COMMON LAW. 590 1.4.1 THE
LEGAL REQUIREMENTS FOR THE TRANSFER OF CHATTELS. 590 1.4.2 THE
FORMALITIES OF A SALE: CONTRACT OR DELIVERY (PHYSICALLY OR
CONSTRUCTIVELY); DOUBLE SALES, THE REAL OR PROPRIETARY AGREEMENT IN
CIVIL LAW. 592 1.4.3 THE IMPORTANCE OF IDENTIFICATION. EFFECT ON THE
TRANSFER. SALES OF FUTURE ASSETS, BULK TRANSFERS, AND DE FACTO TRANSFERS
OF TITLE. 595 1.4.4 THE DEVELOPMENT OF THE RULES CONCERNING DELIVERY AS
A FORMAL REQUIREMENT OF TITLE TRANSFER IN CIVIL AND COMMON LAW. 598
1.4.5 LEGAL CAPACITY AND DISPOSITION RIGHT. CAUSES OF CONTRACTUAL
INVALIDITY. EFFECT ON THE TITLE TRANSFER. FUTURE, CONDITIONAL AND
TEMPORARY SALES. 600 1.4.6 THE TRANSFER AGREEMENT: THE ABSTRACT AND
CAUSAL SYSTEM OF OWNERSHIP TRANSFER. THE FINALITY ISSUE. 603 1.4.7 THE
ORIGIN OF THE ABSTRACT AND CAUSAL VIEWS OF TITLE TRANSFER. 608 XXXIV
DALHUISEN ON TRANSNATIONAL AND COMPARATIVE COMMERCIAL, FINANCIAL AND
TRADE LAW 1.4.8 DISPOSITION RIGHTS: THE NEMO DAT RULE AND THE
PROTECTION OF BONA FIDE PURCHASERS. 613 1.4.9 ORIGIN OF THE NEMO DAT
RULE AND OF THE PRINCIPLE OF BONA FIDE PURCHASER PROTECTION. 615 1.4.10
THE RETENTION RIGHT OF THE SELLER IN THE CASE OF DEFAULT OF THE BUYER.
620 1.5 PROPRIETARY RIGHTS IN INTANGIBLE ASSETS IN CIVIL AND COMMON LAW.
624 1.5.1 PROPRIETARY RIGHTS IN INTANGIBLE ASSETS AND THE POSSIBILITY
AND METHOD OF THEIR TRANSFER. THE MEANING OF NOTIFICATION AND THE
SITUATION IN DOUBLE ASSIGNMENTS. THE CIVIL LAW DEVELOPMENT. 624 1.5.2
THE DEVELOPMENT IN COMMON LAW. 630 1.5.3 THE TRANSFERABILITY OF CLAIMS
AND CONTRACTS. ASSIGNMENT OF RIGHTS AND DELEGATION OF DUTIES. THE
DEBTOR S DEFENSES AND THE IMPACT OF CONTRACTUAL RESTRICTIONS ON THE
TRANSFER. 633 1.5.4 THE ASSIGNABILITY OF FUTURE CLAIMS. 639 1.5.5
ASSIGNMENT, NOVATION, AMENDMENT, SUBROGATION AND SUBCONTRACTING. 642
1.5.6 DIFFERENT TYPES AND OBJECTIVES OF ASSIGNMENTS. 644 1.5.7 THE
BETTER RIGHT OF THE ASSIGNEE. THE NOTION OF ABSTRACTION, INDEPENDENCE
AND FINALITY. COMPARISON WITH NEGOTIABLE INSTRUMENTS. 647 1.5.8 THE
NOTION OF ABSTRACTION OR INDEPENDENCE AND THE LIBERATING EFFECT OF
PAYMENT BY THE DEBTOR. 650 1.5.9 THE RANKING BETWEEN ASSIGNEES, THE NEMO
DAT RULE IN ASSIGNMENTS. 652 1.5.10 CONTRACTUAL AND PROPRIETARY ASPECTS
OF ASSIGNMENTS. MANDATORY RULES. APPLICABLE LAW AND PARTY AUTONOMY. 654
1.5.11 SPECIAL ASSIGNMENT ISSUES: WARRANTIES, CONDITIONS AND DEFAULT.
656 1.5.12 BANKRUPTCY ASPECTS OF ASSIGNMENTS. RECOURSE AND NON-RECOURSE
FINANCING. 657 1.5.13 UNIFORM RULES CONCERNING ASSIGNMENTS. 660 1.6
TRUSTS, CONSTRUCTIVE AND RESULTING TRUSTS, TRACKING AND TRACING. AGENCY.
THE CIVIL LAW RESPONSE. 661 1.6.1 BASIC FEATURES OF THE COMMON LAW OF
TRUST. 661 1.6.2 THE PRACTICAL SIGNIFICANCE OF TRUSTS IN COMMON LAW
COUNTRIES. 667 1.6.3 CONSTRUCTIVE TRUSTS, TRACING AND TRACKING,
RESULTING TRUSTS, STATUTORY TRUSTS AND CHARITABLE TRUSTS. 668 1.6.4
TRUST AND AGENCY; TRUST AND BAILMENT. 670 1.6.5 RELATED CIVIL LAW
STRUCTURES. 671 1.6.6 PRIVATE INTERNATIONAL TREATY LAW AND TRUST LAW
PRINCIPLES. 673 1.7 SECURED TRANSACTIONS AND CONDITIONAL SALES. FLOATING
CHARGES. 675 1.7.1 THE IMPORTANCE OF CONDITIONAL SALES IN FINANCE AND
THE DIFFERENCE WITH SECURED TRANSACTIONS. 675 1.7.2 WHAT ARE
SALE-REPURCHASE AGREEMENTS OR FINANCE SALES? THE CHARACTERISATION ISSUE.
PROPERTY-BASED AND SECURITY-BASED FUNDING 676 1.7.3 THE EVOLUTION OF
CONDITIONAL AND TEMPORARY TRANSFERS IN CIVIL AND COMMON LAW. 679 1.7.4
WHEN ARE FINANCE SALES CONVERTED INTO SECURED TRANSACTIONS? 681 1.7.5
THE OPERATION OF FINANCE SALES. EFFECT OF THE CONDITIONALITY OF THE
TRANSFER. PROPRIETARY EFFECT OF CONDITIONS. DUALITY OF OWNERSHIP AND OF
POSSESSION IN CIVIL LAW. OPENNESS OF PROPRIETARY SYSTEMS? 686 CONTENTS
XXXV 1.7.6 EXAMPLES OF FINANCE SALES: FINANCE LEASES, REPOS AND
FACTORING. FINANCE SALES AS EXECUTORY CONTRACTS, CHERRY PICKING AND
NETTING. 688 1.7.7 THE OUTWARD SIGNS OF SECURITY INTERESTS AND
OWNERSHIP-BASED FUNDING. POSSESSION OR FILING. ATTACHMENT AND PERFECTION
OF SECURITY INTERESTS UNDER THE UCC. 691 1.7.8 FLOATING CHARGES IN
COMMON AND CIVIL LAW. EXTENDED RESERVATIONS OF TITLE. THE CONCEPTS OF
BULK TRANSFERS, ASSET SUBSTITUTION AND TRACING AND THE INCLUSION OF
FUTURE ASSETS. THE FACILITY TO SELL GOODS FREE AND CLEAR. 697 1.7.9
UNIFORM SECURITY LAW AND PRINCIPLES OF SECURITY LAWS. 699 1.8 PRIVATE
INTERNATIONAL LAW ASPECTS OF CHATTELS. 699 1.8.1 WHEN CONFLICTS ARISE.
699 1.8.2 THE APPLICATION OF THE LEX SITUS. 701 1.8.3 THE NOTIONS OF
EQUIVALENCE AND ADAPTATION; CONDITIONAL OWNERSHIP, SECURITY AND
RETENTION RIGHTS. 705 1.8.4 TRUSTS: THE 1985 HAGUE CONVENTION ON THE LAW
APPLICABLE TO TRUSTS AND THEIR RECOGNITION. 707 1.8.5 UNIFORM LAWS
CONCERNING THE PROPRIETARY ASPECTS OF CHATTELS. 712 1.8.6 THE LEX
MERCATORIA CONCERNING CHATTELS. 712 1.9 PRIVATE INTERNATIONAL LAW
ASPECTS OF ASSIGNMENTS. 713 1.9.1 THE VARIOUS ASPECTS OF ASSIGNMENTS.
CHARACTERISATION ISSUES. MANDATORY PROPRIETARY LAWS. 713 1.9.2 CURRENT
APPROACHES TO CHOICE OF LAWS ISSUES IN ASSIGNMENTS: THE LEGAL SITUS OF
DEBTS. 717 1.9.3 TREATY LAW APPROACHES TO THE LAW APPLICABLE TO
ASSIGNMENTS: THE CHOICE OF LAW PROVISION OF ARTICLE 12 OF THE ROME
CONVENTION AND THE DRAFT UNCITRAL RECEIVABLE FINANCING CONVENTION. NEW
PROPOSALS IN ROME I. 722 1.9.4 UNIFORM LAW CONCERNING PROPRIETARY RIGHTS
IN INTANGIBLES. 725 1.9.5 THE LEX MERCATORIA CONCERNING BULK
ASSIGNMENTS. 725 1.10 THE MODERN LAW OF CHATTELS AND INTANGIBLES. 726
1.10.1 TRADITIONAL AND NEW APPROACHES. 726 1.10.2 TRANSNATIONAL
PROPRIETARY RIGHTS PROMOTED BY INTERNATIONAL FINANCE. 730 1.10.3 PAUCITY
OF MODERN PROPERTY THEORY. 734 PART II NEGOTIABLE DOCUMENTS OF TITLE AND
NEGOTIABLE INSTRUMENTS. 742 2.1 THE ROLE OF DOCUMENTS. 742 2.1.1 BILLS
OF LADING AND WAREHOUSE RECEIPTS. 742 2.1.2 THE ORIGIN AND NATURE OF THE
BILL OF LADING AND ITS OPERATION IN THE PROPRIETARY ASPECTS OF THE
TRANSFER OF GOODS. 747 2.1.3 THE STATUS OF THE BILL OF LADING IN LEGAL
SYSTEMS THAT REQUIRE DELIVERY FOR TITLE TRANSFER. ABSTRACTION AND THE
CONCLUSIVE EVIDENCE RULE. THE SITUATION IN GERMANY AND THE NETHERLANDS.
749 2.1.4 THE STATUS OF THE BILL OF LADING IN LEGAL SYSTEMS THAT DO NOT
NORMALLY EQUIRE DELIVERY FOR TITLE TRANSFER: THE SITUATION IN FRANCE.
751 2.1.5 BILLS OF LADING AS QUASI-NEGOTIABLE INSTRUMENTS IN THE UK; THE
SITUATION IN THE USA. 751 DALHUISEN ON TRANSNATIONAL AND COMPARATIVE
COMMERCIAL, FINANCIAL AND TRADE LAW 2.1.6 CONSEQUENCES OF THE DIFFERENT
ATTITUDES TO DOCUMENTS OF TITLE WHEN GOODS ARE TRANSFERRED TO
TRANSFEREES OTHER THAN THROUGH A TRANSFER OF THE BILL OF LADING. 753
2.1.7 THE TRANSFER OF RISK. 754 2.1.8 THE NAMED OR STRAIGHT BILL OF
LADING AND SEA-WAY BILLS. 754 2.1.9 PRIVATE INTERNATIONAL LAW ASPECTS OF
BILLS OF LADING. 755 2.1.10 LEX MERCATORIA AND UNIFORM TREATY LAW
CONCERNING BILLS OF LADING. THE HAGUE, HAGUE-VISBY, AND HAMBURG RULES.
757 2.2 NEGOTIABLE INSTRUMENTS. 759 2.2.1 BILLS OF EXCHANGE. 759 2.2.2
ACCEPTANCE AND DISCOUNTING OF TIME DRAFTS. 762 2.2.3 THE PERSONS LIABLE
UNDER A BILL OF EXCHANGE: RECOURSE. 763 2.2.4 THE PRINCIPLE OF
INDEPENDENCE OR ABSTRACTION. 764 2.2.5 THE HOLDER IN DUE COURSE.
PERSONAL AND REAL DEFENSES. OTHER TYPES OF HOLDERS. 765 2.2.6 CHEQUES.
766 2.2.7 MODERN USE OF BILLS OF EXCHANGE AND CHEQUES. 766 2.2.8 BILLS
OF EXCHANGE AND COMPETING ASSIGNMENTS OF THE UNDERLYING CLAIM. 767 2.2.9
POSITION OF THE HOLDER IN DUE COURSE OF A BILL OF EXCHANGE COMPARED TO
THE BONA FIDE HOLDER OF A BILL OF LADING. 768 2.2.10 FOREIGN BILLS OF
EXCHANGE: PRIVATE INTERNATIONAL LAW ASPECTS. 768 2.2.11 UNIFORM TREATY
LAW. 771 2.2.12 THE LEX MERCATORIA CONCERNING BILLS OF EXCHANGE. 772 2.3
THE DEMATERIALISATION OF DOCUMENTS OF TITLE AND NEGOTIABLE INSTRUMENTS;
ELECTRONIC TRANSFERS. 773 2.3.1 THE TRADITIONAL USE OF DOCUMENTS OF
TITLE AND NEGOTIABLE INSTRUMENTS. THEIR INCONVENIENCES AND RISKS. SEAWAY
BILLS AND INDEMNITIES. 773 2.3.2 ELECTRONIC SYSTEMS AND THEIR IMPORTANCE
IN REPLACING TRANSPORTATION DOCUMENTS. THE CMI RULES AND BOLERO. USE OF
CENTRAL COUNTERPARTIES?. 776 2.3.3 THE SITUATION WITH REGARD TO BILLS OF
EXCHANGE: ELECTRONIC BANK TRANSFERS. THE FACILITY OF GLOBAL TRADE. 779
PART III INVESTMENT SECURITIES. 780 3.1 THE DIFFERENT TYPES OF SHARES
AND BONDS. 780 3.1.1 TRADITIONAL DISTINCTIONS. NEGOTIABLE INSTRUMENTS
AND TRANSFERABLE SECURITIES. DEMATERIALISATION AND IMMOBILISATION.
SECURITIES ENTITLEMENTS. 780 3.1.2 NEGOTIABILITY AND TRANSFERABILITY OF
INVESTMENT SECURITIES: USE OF SECURITIES ENTITLEMENTS TO ENHANCE
TRANSFERABILITY AND LIQUIDITY. 787 3.1.3 THE RISK FACTORS IN THE HOLDING
AND TRANSFER OF INVESTMENT SECURITIES: BANKRUPTCY ISSUES AND RISK
REDUCTION TECHNIQUES. THE EU SETTLEMENT FINALITY DIRECTIVE. 790 3.1.4
MODERN CLEARING AND SETTLEMENT SYSTEMS: INTERNATIONALISATION. 795 3.1.5
BOOK-ENTRY SYSTEMS FOR SHARES AND BONDS: DEPOSITORY RECEIPTS AND THE
EARLIER DEVELOPMENTS TOWARDS DEMATERIALISATION AND IMMOBILISATION. 797
3.1.6 THE LEGAL CHARACTERISATION OF BOOK-ENTRY ENTITLEMENTS. THE MANNER
AND CONSEQUENCES OF THEIR TRANSFER. TRANSFER INSTRUCTIONS AND THE NOTION
OF ABSTRACTION OR INDEPENDENCE AND FINALITY OF THE TRANSFER. THE CONCEPT
OF BONA FIDE TRANSFEREE. 799 CONTENTS XXXVII 3.2 THE
INTERNATIONALISATION OF CUSTODY AND SETTLEMENT SYSTEMS AND ITS
OPPORTUNITIES. 806 3.2.1 THE ROLE OF THE EUROMARKET FOR BONDS AND THE
EFFECT ON INTERNATIONAL SHARE TRADING. THE DOMINANT ROLE OF
INTERNATIONAL PRACTICES AND THE BANKRUPTCY LAW IMPLICATIONS. 806 3.2.2
LAW APPLICABLE TO TRANSACTIONS IN INVESTMENT SECURITIES OF THE BOOK-
ENTRY TYPE. 811 3.2.3 THE LEX MERCATORIA CONCERNING INTERNATIONAL
INVESTMENT SECURITIES TRANSACTIONS. 817 3.2.4 UNIFORM LAW: THE EU
FINANCIAL COLLATERAL DIRECTIVE. UNIDROIT PROJECT. 819 3.2.5. EU
ACTIVITIES IN THE FIELD OF CLEARING AND SETTLEMENT 822 5 MODERN
FINANCIAL PRODUCTS. 824 PART LSECURED TRANSACTIONS, FINANCE SALES, AND
OTHER FINANCIAL PRODUCTS AND SERVICES. 824 1.1 CIVIL AND COMMON LAW
APPROACHES. 824 1.1.1 INTRODUCTION 824 1.1.2 FINANCIAL PRODUCTS IN
COMMERCIAL BANKING SYSTEMS AND CAPITAL MARKETS. 826 1.1.3 THE EVOLUTION
OF SECURED TRANSACTIONS. DIFFERENT CREDIT CULTURES AND THE ROLE OF
FINANCE SALES. THE PREVALENCE OF DOMESTIC LAWS AND THE ISSUE OF LEGAL
TRANSNATIONALISATION. 830 1.1.4 INTERNATIONAL CONVERGENCE IN SECURED
TRANSACTIONS AND FINANCE SALES? 834 1.1.5 THE PROBLEMS OF AND NEED FOR
MODERN NON-POSSESSORY SECURITY INTERESTS IN PERSONAL PROPERTY AND THE
ALTERNATIVE USE OF FINANCE SALES. 836 1.1.6 FINANCE SALES AND SECURED
TRANSACTIONS DISTINGUISHED, THE RE- CHARACTERISATION ISSUE. DIFFERENT
RISK AND REWARD STRUCTURES. 841 1.1.7 FORMAL INTERNATIONAL HARMONISATION
ATTEMPTS IN THE AREA OF SECURED TRANSACTIONS AND FINANCE SALES. THE EU
SETTLEMENT FINALITY AND COLLATERAL DIRECTIVES. 846 1.1.8 NOTIONS OF
SEGREGATION AND PRIORITY. PROPRIETARY AND OTHER STRUCTURES OF
SEPARATION. BANKRUPTCY CONSEQUENCES. 849 1.1.9 PARTY AUTONOMY AND THE
CONTRACTUALISATION OR UNBUNDLING OF PROPRIETARY RIGHTS FOR FUNDING
PURPOSES. EQUITABLE PROPRIETARY RIGHTS. CLOSED OR OPEN SYSTEMS OF
PROPRIETARY RIGHTS? BONA FIDE PURCHASERS AND BONA FIDE CREDITORS
PROTECTION. GENERAL PRINCIPLES. THE EFFECT OF CONTRACTUAL NETTING
CLAUSES. 854 1.1.10 AUTONOMOUS TRANSNATIONAL AND DOMESTIC LEGAL
DEVELOPMENTS. 857 1.1.11 MAJOR DIFFERENCES IN DOMESTIC LAWS ON
PROPRIETARY FINANCIAL PROTECTION. SUBORDINATION AND ITS MEANING.
UNCERTAINTY IN INTERNATIONAL FINANCIAL DEALINGS. 860 1.1.12 THE IMPACT
OF THE APPLICABLE DOMESTIC BANKRUPTCY REGIME IN INTERNATIONAL FINANCIAL
TRANSACTIONS. THE US APPROACH AND THE EU BANKRUPTCY REGULATION. 864 1.2
THE SITUATION IN THE NETHERLANDS. 867 1.2.1 INTRODUCTION: THE NEW CIVIL
CODE OF 1992. 867 1.2.2 SECURITY SUBSTITUTES AND FLOATING CHARGES: THE
RESERVATION OF TITLE. 869 DALHUISEN ON TRANSNATIONAL AND COMPARATIVE
COMMERCIAL, FINANCIAL AND TRADE LAW 1.2.3 CONDITIONAL AND TEMPORARY
OWNERSHIP: THE LEX COMMISSORIA. 872 1.2.4 OPEN OR CLOSED SYSTEM OF
PROPRIETARY RIGHTS. 876 1.3 THE SITUATION IN FRANCE. 877 1.3.1
INTRODUCTION: THE VENTE A REMERE AND LEX COMMISSORIA. 877 1.3.2 THE
IMPACT OF THE NOTION OF THE SOLVABILITE APPARENTE . 879 1.3.3 THE
MODERN REPURCHASE AGREEMENT OR PENSION LIVREE . 880 1.3.4 THE
RESERVATION OF TITLE. 882 1.3.5 FINANCE SALES. THE PENSION LIVREE. THE
LOI DAILLY. 884 1.3.6. TITRISATION (FONDS COMMUNS DE CREANCES) AND THE
TRANSFER OF INTANGIBLE ASSETS IN FINANCE SCHEMES. 886 1.3.7 OPEN OR
CLOSED SYSTEM OF PROPRIETARY RIGHTS. 887 1.4 THE SITUATION IN GERMANY.
887 1.4.1 INTRODUCTION: THE DEVELOPMENT OF THE RESERVATION OF TITLE AND
CONDITIONAL TRANSFERS; FLOATING CHARGES. 887 1.4.2
SICHERUNGSIIBEREIGNUNG AND CONDITIONAL SALES. 892 1.4.3 FINANCE SALES.
895 1.4.4 CURBING EXCESS: OPEN OR CLOSED SYSTEM OF PROPRIETARY RIGHTS.
896 1.5 THE SITUATION IN THE UK. 898 1.5.1 INTRODUCTION: DIFFERENCES
FROM CIVIL LAW. 898 1.5.2 BASIC FEATURES OF CONDITIONAL OR SPLIT
OWNERSHIP INTERESTS. EQUITABLE AND FLOATING CHARGES. OPEN SYSTEM OF
PROPRIETARY RIGHTS. 900 1.5.3 THE DISTINCTION BETWEEN CONDITIONAL SALES
AND SECURED TRANSACTIONS: PUBLICATION REQUIREMENTS. 906 1.5.4
RESERVATION OF TITLE. 910 1.5.5 FINANCE SALES. 911 1.6 THE SITUATION IN
THE USA. 913 1.6.1 INTRODUCTION: THE APPROACH OF ARTICLE 9 UCC AND ITS
UNITARY FUNCTIONAL APPROACH TOWARDS FINANCE SALES. 913 1.6.2 THE UNITARY
FUNCTIONAL APPROACH AND FINANCE SALES: PROBLEM AREAS IN ARTICLE 9 UCC.
916 1.6.3 PROPRIETARY CHARACTERISATIONS. 921 PART II FINANCIAL PRODUCTS
AND FUNDING TECHNIQUES: MAJOR EXAMPLES OF SECURITY TRANSFERS AND FINANCE
SALES. OTHER FINANCIAL STRUCTURES. INTERNATIONAL AND REGULATORY ASPECTS.
924 2.1 FINANCE SALES AS DISTINGUISHED FROM SECURED TRANSACTIONS IN
CIVIL AND COMMON LAW: THE RECHARACTERISATION RISK. 924 2.1.1
INTRODUCTION. 924 2.1.2 THE PRACTICAL DIFFERENCES BETWEEN SECURITY- AND
OWNERSHIP-BASED FUNDING. THE RE-CHARACTERISATION ISSUE REVISITED. 927
2.1.3 LEGAL DIFFERENCES BETWEEN SECURITY- AND OWNERSHIP-BASED FUNDING.
THE EARLY OPERATION OF SPLIT-OWNERSHIP RIGHTS IN THE US. 929 2.1.4
NATURE, USE AND TRANSFERS OF CONDITIONAL AND TEMPORARY OWNERSHIP RIGHTS.
THE DIFFERENCE BETWEEN THEM. 939 CONTENTS XXXIX 2.1.5 THE DUALITY OF
OWNERSHIP IN FINANCE SALES. THE IMPACT OF THE FUNGIBILITY OF ASSETS. 945
2.1.6. INTERNATIONAL ASPECTS: PRIVATE INTERNATIONAL LAW APPROACHES TO
THE LAW APPLICABLE TO PROPRIETARY RIGHTS. BANKRUPTCY EFFECTS. 948 2.1.7
INTERNATIONAL ASPECTS: UNIFORM LAWS AND MODEL LAWS ON SECURED
TRANSACTIONS. THE EBRD EFFORT. 951 2.1.8 INTERNATIONAL ASPECTS: THE 2001
UNIDROIT CONVENTION ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT. 955
2.1.9 DOMESTIC AND INTERNATIONAL REGULATORY ASPECTS. 956 2.1.10
CONCLUDING REMARKS. TRANSNATIONALISATION. 957 2.2 MODERN SECURITY
INTERESTS: THE EXAMPLE OF THE FLOATING CHARGE 959 2.2.1 TYPES OF
FLOATING CHARGES OR LIENS. PROBLEM AREAS. 959 2.2.2. DIFFERENT
APPROACHES. COMPARATIVE LEGAL ANALYSIS. 962 2.2.3 MODERN PUBLICATION OR
FILING REQUIREMENTS. THEIR MEANING AND DEFECTS. RANKING ISSUES . 966
2.2.4 SPECIAL PROBLEMS OF BULK ASSIGNMENTS. 968 2.2.5 INTERNATIONAL
ASPECTS OF FLOATING CHARGES. LIMITED UNIFICATION ATTEMPTS. 971 2.2.6
DOMESTIC AND INTERNATIONAL REGULATORY ASPECTS. 972 2.2.7 CONCLUDING
REMARKS. TRANSNATIONALISATION. 973 2.3 MODERN FINANCE SALES: THE EXAMPLE
OF THE FINANCE LEASE. 974 2.3.1 RATIONALE OF FINANCE LEASING. 974 2.3.2
LEGAL CHARACTERISATION. 976 2.3.3 COMPARATIVE LEGAL ANALYSIS. 979 2.3.4
INTERNATIONAL ASPECTS OF FINANCE LEASING. 981 2.3.5CONVENTION OF 1988.
ITS INTERPRETATION AND SUPPLEMENTATION. 983 2.3.6 THE LEASING
CONVENTION S SPHERE OF APPLICATION, ITS DEFINITION OF FINANCE LEASING.
985 2.3.7 THE PROPRIETARY ASPECTS. 987 2.3.8 THE ENFORCEMENT ASPECTS.
987 2.3.9 THE CONTRACTUAL ASPECTS. 988 2.3.10 THE COLLATERAL RIGHTS. 990
2.3.11 DOMESTIC AND INTERNATIONAL REGULATORY ASPECTS. 992 2.3.12
CONCLUDING REMARKS. TRANSNATIONALISATION. THE MOBILE EQUIPMENT
CONVENTION. 992 2.4 RECEIVABLE FINANCING AND FACTORING. THE 1988
UNIDROIT FACTORING CONVENTION AND THE 2001 UNCITRAL CONVENTION ON THE
ASSIGNMENT OF RECEIVABLES IN INTERNATIONAL TRADE. 994 2.4.1. ASSIGNMENT
OF MONETARY CLAIMS IN RECEIVABLE FINANCING AND FACTORING. THE ISSUE OF
LIQUIDITY. 994 2.4.2 RECEIVABLE FINANCING AND FACTORING: ORIGIN AND
DIFFERENT APPROACHES. 998 2.4.3 FACTORING: THE CONTRACTUAL ASPECTS. 1001
2.4.4 FACTORING: THE PROPRIETARY ASPECTS. 1002 2.4.5 INTERNATIONAL
ASPECTS. THE UNCITRAL AND UNIDROIT CONVENTIONS. INTERNATIONALITY AND
APPLICABILITY. 1005 2.4.6 THE UNCITRAL AND UNIDROIT CONVENTIONS. THEIR
CONTENT, FIELD OF APPLICATION, INTERPRETATION AND SUPPLEMENTATION. THEIR
ROLE IN THE LEX MERCATORIA APPROACH. 1009 XL DALHUISEN ON TRANSNATIONAL
AND COMPARATIVE COMMERCIAL, FINANCIAL AND TRADE LAW 2.4.7 DETAILS OF THE
UNIDROIT FACTORING CONVENTION. 1011 2.4.8 DETAILS OF THE UNCITRAL
CONVENTION. ITS OPERATIONAL INSUFFICIENCY. 1014 2.4.9 DOMESTIC AND
INTERNATIONAL REGULATORY ASPECTS. 1016 2.4.10 CONCLUDING REMARKS.
TRANSNATIONALISATION. 1016 2.5 ASSET SECURITISATION AND CREDIT
DERIVATIVES. 1017 2.5.1 ASSET SECURITISATION. 1017 2.5.2 SYNTHETIC
SECURITISATION. CREDIT DERIVATIVES OR CREDIT SWAPS. THE TOTAL RETURN
SWAP AND CREDIT SPREAD OPTIONS. 1021 2.5.3. RISKS IN FINANCIAL
ENGINEERING. THE ENRON DEBACLE. 1024 2.5.4 THE RECHARACTERISATION RISK
IN SECURITISATIONS. 1026 2.5.5 INTERNATIONAL ASPECTS. 1028 2.5.6
DOMESTIC AND INTERNATIONAL REGULATORY ASPECTS. 1028 2.5.7 CONCLUDING
REMARKS. TRANSNATIONALISATION. 1029 2.6 PAYMENTS, PAYMENT SYSTEMS, MONEY
AND BANK ACCOUNTS AS COLLATERAL. THE PRINCIPLES AND IMPORTANCE OF
SET-OFF AND NETTING. 1030 2.6.1 THE NOTION AND MODES OF PAYMENT THE NEED
FOR FINALITY. 1030 2.6.2. BANK-TRANSFERS AND PAYMENT SYSTEMS. PULL AND
PUSH SYSTEMS, CREDIT AND DEBIT TRANSFERS. 1033 2.6.3 THE LEGAL NATURE
AND CHARACTERISATION OF MODERN BANK TRANSFERS. THE BANK ACCOUNT AS A SUI
GENERIS RIGHT OF THE ACCOUNT HOLDER. 1035 2.6.4 CLEARING AND SETTLEMENT
OF PAYMENTS IN THE BANKING SYSTEM. 1038 2.6.5 SET-OFF AS A FORM OF
PAYMENT. 1041 2.6.6 THE EXPANSION OF SET-OFF THROUGH CONTRACTUAL NETTING
CLAUSES. THEIR SPECIAL IMPORTANCE IN CLEARING AND SETTLEMENT AND IN
BANKRUPTCY. 1044 2.6.7 INTERNATIONAL ASPECTS. EU SETTLEMENT AND
COLLATERAL DIRECTIVES. 1048 2.6.8 DOMESTIC AND INTERNATIONAL REGULATORY
ASPECTS OF NETTING IN PARTICULAR 1048 2.6.9 CONCLUDING REMARKS.
TRANSNATIONALISATION. 1049 2.7 INVESTMENT SECURITIES ENTITLEMENTS AND
THEIR TRANSFERS (EITHER OUTRIGHT, CONDITIONALLY OR AS SECURITY).
SECURITIES SHORTING, BORROWING, AND REPLEDGING. CLEARING AND SETTLEMENT
1049 2.7.1 MODERN INVESTMENT SECURITIES. DEMATERIALISATION AND
IMMOBILISATION. BOOK-ENTRY SYSTEMS AND THE LEGAL NATURE OF SECURITIES
ENTITLEMENTS. 1049 2.7.2 SECURITIES TRANSFERS: TIERED OR CHAINED
TRANSFER SYSTEMS. THE LEGAL CHARACTER OF THE SECURITIES TRANSFER AND ITS
FINALITY. 1053 2.7.3 SECURITIES SHORTING, SECURITIES LENDING, PLEDGING
AND REPLEDGING OF SECURITIES. THE NOTION OF REHYPOTHECATION. 1056 2.7.4
MODERN CLEARING AND SETTLEMENT. CENTRAL COUNTER PARTIES (CCPS) AND THEIR
SIGNIFICANCE. 1060 2.7.5 INTERNATIONAL ASPECTS. EU SETTLEMENT FINALITY
AND COLLATERAL DIRECTIVES AND THE HAGUE CONVENTION ON THE LAW APPLICABLE
TO CERTAIN RIGHTS IN RESPECT OF SECURITIES HELD WITH AN INTERMEDIARY.
1063 2.7.6 REGULATORY ASPECTS . 1066 2.7.7 CONCLUDING REMARK.
TRANSNATIONALISATION. 1067 2.8 INVESTMENT SECURITIES REPOS. 1067 2.8.1
THE REPURCHASE AGREEMENT AS A PRIME ALTERNATIVE TO SECURED LENDING: ITS
LEGAL CHARACTERISATION. THE EFFECT OF THE RIGHT TO ON-SELL THE
SECURITIES 1067 CONTENTS XLI 2.8.2 THE DEVELOPMENT OF THE REPO IN
FUNGIBLE INVESTMENT SECURITIES: SECURITIES LENDING AND THE BUY/SELL BACK
TRANSACTION. 1072 2.8.3 MARGINING. 1074 2.8.4 THE NETTING APPROACH IN
REPOS. CLOSE-OUT NETTING. 1075 2.8.5 THE TBMA/ISMA GLOBAL MASTER
REPURCHASE AGREEMENT. 1075 2.8.6 INTERNATIONAL ASPECTS. 1077 2.8.7
DOMESTIC AND INTERNATIONAL REGULATORY ASPECTS. 1078 2.8.8 CONCLUDING
REMARKS. TRANSNATIONALISATION. 1078 2.9 DERIVATIVES, THEIR USE AND
TRANSFERS. THE OPERATION OF DERIVATIVES MARKETS. CLEARING AND SETTLEMENT
AND THE FUNCTION OF CENTRAL COUNTER PARTIES (CCP S). 1078 2.9.1 TYPES OF
FINANCIAL DERIVATIVES AND THEIR OPERATION. 1078 2.9.2 THE USE OF
DERIVATIVES. HEDGING. 1080 2.9.3 THE VALUATION OF DERIVATIVES, CONTRACTS
FOR DIFFERENCES. 1084 2.9.4 DERIVATIVES MARKETS AND THEIR OPERATIONS.
THE NOTION OF MARGIN. 1085 2.9.5 THE CONCEPT OF THE CENTRAL COUNTERPARTY
(CCP) AND ITS POTENTIAL. 1089 2.9.6 DERIVATIVES RISK AND NETTING FOR
SWAPS. 1091 2.9.7 LEGAL ASPECTS OF SWAPS. INTEGRATION AND CONDITIONALLY,
ACCELERATION AND CLOSE OUT. THE ISDA SWAP MASTER AGREEMENT. 1092 2.9.8
INTERNATIONAL ASPECTS. 1094 2.9.9 DOMESTIC AND INTERNATIONAL REGULATORY
ASPECTS. 1095 2.9.10 CONCLUDING REMARKS. TRANSNATIONALISATION. 1095 6
FINANCIAL SERVICES, PRODUCTS, RISKS AND REGULATION.
INTERNATIONALISATION, LIBERALISATION, AND RE- REGULATION. 1097 PART I
INTRODUCTION: FINANCIAL SERVICES ACTIVITIES, SERVICE PROVIDERS AND
FINANCIAL REGULATION. 1097 1.1 DOMESTIC AND CROSS-BORDER FINANCIAL
SERVICES. REGULATORY IMPACT 1097 1.1.1 FINANCIAL SERVICES AND FINANCIAL
REGULATION. 1097 1.1.2 THE RECYCLING OF MONEY. BANKING AND CAPITAL
MARKETS. 1098 1.1.3 FINANCIAL INTERMEDIARIES, THEIR OPERATIONS AND
REGULATION. FLOWS OF FINANCIAL SERVICES AND CAPITAL. MONETARY POLICIES.
1099 1.1.4 THE BASIC STRUCTURE OF FINANCIAL REGULATION. 1102 1.1.5 THE
OBJECTIVES OF MODERN FINANCIAL REGULATION. 1106 1.1.6 REGULATORY
OBJECTIVES AND MORAL HAZARD. STATUTORY REGULATORY AIMS. 1112 1.1.7
PRINCIPLE-BASED REGULATION. 1116 1.1.8 OFFICIAL AND UNOFFICIAL FINANCIAL
MARKETS. THE FUNCTIONAL APPROACH AND REGULATION OF PARTICIPANTS RATHER
THAN MARKETS. 1116 1.1.9 UNIVERSAL BANKS, CONGLOMERATE RISKS AND
SUPERVISION. 1120 1.1.10 MARKET ABUSE AND MISLEADING FINANCIAL
STRUCTURES 1122 1.1.11 INTERNATIONAL ASPECTS OF FINANCIAL REGULATION.
WHEN ARE FINANCIAL SERVICES INTERNATIONAL? 1124 1.1.12 INTERNATIONAL
FINANCIAL REGULATION. THE EU MODEL OR PASSPORT AND CONCEPT OF THE
GENERAL GOOD. 1128 1.1.13 THE INTERNATIONAL CAPITAL MARKET AND THE EU
PROJECT FOR A SINGLE EUROPEAN MARKET FOR FINANCIAL SERVICES. A SINGLE
EUROPEAN REGULATOR? 1130 XLII DALHUISEN ON TRANSNATIONAL AND COMPARATIVE
COMMERCIAL, FINANCIAL AND TRADE LAW 1.1.14 THE AMERICAN REGULATORY
APPROACH TO ISSUING ACTIVITY AND TO FINANCIAL SERVICES RENDERED IN THE
US BY FOREIGN ISSUERS AND INTERMEDIARIES. 1133 1.1.15 THE BASLE
CONCORDAT CONCERNING INTERNATIONAL BANKING REGULATION AND CONSOLIDATED
SUPERVISION. EFFORTS TO ACHIEVE A FRAMEWORK FOR INTERNATIONAL FINANCIAL
CONGLOMERATE SUPERVISION. THE JOINT FORUM. 1137 1.1.16 THE MODERN
INTERNATIONAL FINANCIAL ARCHITECTURE. THE FINANCIAL STABILITY FORUM.
1140 1.2 THE ESSENTIALS OF THE (COMMERCIAL) BANKING BUSINESS AND ITS
REGULATION. 1141 1.2.1 MAJOR ASPECTS OF BANKING. SUPERVISION AND THE
ROLE OF BANKS OF LAST RESORT. 1141 1.2.2 TYPES OF BANKS AND THEIR
OPERATIONS. 1144 1.2.3 COMMERCIAL BANKING PRODUCTS, UNSECURED AND
SECURED LOANS, LEASING, REPOS AND RECEIVABLE FINANCING, SYNDICATED
LOANS, TRADE FINANCE AND PROJ ECT FINANCE. 1146 1.2.4 COMMERCIAL BANKING
RISKS. 1149 1.2.5 BROAD AND NARROW BANKING. MARKET BASED MONITORING OF
BANKS. 1152 1.2.6 REGULATION AND BANKING REGULATORS. INTERNATIONAL
ASPECTS. 1154 1.2.7 INTERMEDIATION AND DESINTERMEDIATION OF COMMERCIAL
BANK 1156 1.2.8 THE BANKING OR CURRENT ACCOUNT RELATIONSHIP AND
AGREEMENT. A PUBLIC FUNCTION FOR BANKS? 1157 1.3 THE ESSENTIALS OF THE
SECURITIES BUSINESS AND ITS REGULATION. 1163 1.3.1 MAJOR TYPES OF
SECURITIES. NEGOTIABLE INSTRUMENTS, TRANSFERABLE SECURITIES AND
INVESTMENTS. BOOK-ENTRY SYSTEMS AND SECURITIES ENTITLEMENTS. 1163 1.3.2
SECURITIES MARKETS AND THEIR ORGANISATION. OFFICIAL MARKETS. 1168 1.3.3
UNOFFICIAL MARKETS, GLOBALISATION OF MARKETS, EUROMARKETS. 1170 1.3.4
THE PRIMARY MARKET AND SECURITY ISSUERS. INTERNATIONAL STYLE OFFERINGS.
1173 1.3.5 SECONDARY MARKET AND ITS TRADING SYSTEMS. 1173 1.3.6 INTERNET
OR ELECTRONIC TRADING. 1175 1.3.7 MODERN CLEARING, SETTLEMENT AND
CUSTODY. 1176 1.3.8 THE ROLE OF INVESTMENT BANKS AS UNDERWRITERS AND
MARKET MAKERS. 1179 1.3.9 THE ROLE OF INVESTMENT BANKS AS BROKERS AND
INVESTMENT MANAGERS. 1182 1.3.10 INSOLVENCY OF SECURITIES BROKERS. THE
NOTION OF SEGREGATION, TRACING AND CONSTRUCTIVE TRUST IN RESPECT OF
CLIENT ASSETS. 1184 1.3.11 INVESTMENT FUNDS OR COLLECTIVE INVESTMENT
SCHEMES. 1188 1.3.12 OTHER INVESTMENT BANKING ACTIVITIES. CORPORATE
FINANCE, MERGERS AND ACQUISITIONS, COMPANY VALUATIONS. 1190 1.3.13 THE
RISKS IN THE SECURITIES BUSINESS. SECURITIES REGULATION AND ITS FOCUS.
THE EUROPEAN AND AMERICAN APPROACHES. 1192 1.3.14 SECURITIES REGULATORS
. 1195 1.3.15 INTERNATIONAL ASPECTS OF SECURITIES REGULATION. 1196 1.4
MODERN FINANCIAL PRODUCTS. DERIVATIVES AND SECURITISATIONS. HEDGE FUNDS
AND THEIR OPERATIONS. PRIVATE EQUITY. 1198 1.4.1 MODERN DEVELOPMENTS IN
FINANCIAL PRODUCTS. 1198 1.4.2 THE USE OF DERIVATIVES. HEDGING. 1200
1.4.3 THE VALUATION OF DERIVATIVES. CONTRACTS FOR DIFFERENCES. 1203
CONTENTS XLIII 1.4.4 DERIVATIVES MARKETS AND THEIR OPERATIONS. CLEARING,
THE OPERATION OF CCP S AND THE NOTION OF MARGIN. 1205 1.4.5 DERIVATIVES
RISK, NETTING AND REGULATION OF DERIVATIVES ACTIVITY. 1209 1.4.6 LEGAL
ASPECTS OF SWAPS. INTEGRATION AND CONDITIONALITY, ACCELERATION AND CLOSE
OUT. THE ISDA SWAP MASTER AGREEMENT. 1210 1.4.7 ASSET SECURITISATION.
LEGAL ASPECTS AND RISKS. 1212 1.4.8 SYNTHETIC SECURITISATION. CREDIT
DERIVATIVES OR CREDIT SWAPS. 1216 1.4.9 SECURITIES LENDING, SHORT
SELLING AND PRIME BROKERAGE. 1218 1.4.10 HEDGE FUNDS AND THEIR
OPERATION. 1219 1.4.11 PRIVATE EQUITY. 1219 PART II INTERNATIONAL
ASPECTS OF FINANCIAL SERVICES REGULATION; DEVELOPMENTS IN GATT, THE EU
AND BIS/IOSCO/IAIS. 1220 2.1 FREE MOVEMENT OF GOODS, SERVICES, CURRENT
PAYMENTS AND CAPITAL AFTER WORLD WARN. 1220 2.1.1 CROSS-BORDER MOVEMENT
OF GOODS. GATT. 1220 2.1.2 CROSS-BORDER PAYMENTS AND MOVEMENT OF
CAPITAL. IMF. 1222 2.1.3 CROSS-BORDER MOVEMENT OF SERVICES. GATS. 1223
2.1.4 THE WTO. 1225 2.2 THE CREATION OF THE EEC AND ITS EVOLUTION INTO
THE EU. 1227 2.2.1 THE COMMON MARKET AND MONETARY UNION. THE VARIOUS
PILLARS OF THE EU. 1227 2.2.2 THE EU INSTITUTIONAL FRAMEWORK AND
LEGISLATION INSTRUMENTS. 1232 2.2.3 DEFINITION OF CROSS-BORDER SERVICES.
CONNECTION WITH FREE MOVEMENT OF GOODS AND PERSONS AND WITH THE RIGHT OF
ESTABLISHMENT. 1234 2.2.4 RESTRICTIONS ON THE BASIC FREEDOMS. REGULATED
SERVICES AND THE GENERAL GOOD CONCEPT. 1237 2.2.5 THE USE OF THE NOTION
OF THE GENERAL GOOD IN THE EU. 1239 2.2.6 EARLY FAILURE OF FULL
HARMONISATION IN REGULATED FINANCIAL SERVICES. 1241 2.3 EARLY EU
ACHIEVEMENTS IN THE REGULATED FINANCIAL SERVICE INDUSTRIES. 1243 2.3.1
BANKING. 1243 2.3.2 DETAILS OF THE EARLY BANKING DIRECTIVES AND
RECOMMENDATIONS. 1243 2.3.3 MORTGAGE CREDIT. 1245 2.3.4 THE EARLY
SECURITIES AND INVESTMENTS RECOMMENDATIONS AND DIRECTIVES. 1245 2.3.5
UCITS. 1248 2.4 THE GLOBALISATION OF THE FINANCIAL MARKETS AND THE
EFFECT ON THE LIBERALISATION OF FINANCIAL SERVICES. 1249 2.4.1 AUTONOMY
OF THE INTERNATIONAL CAPITAL MARKETS. 1249 2.4.2 THE EARLY DEVELOPMENT
OF THE EUROBOND MARKET AND ITS MAIN FEATURES. EURODEPOSITS. 1249 2.4.3
FURTHER DELOCALISATION, COMPETITIVE DEREGULATION. SITUATION IN THE USA.
1252 2.4.4 THE LEGAL STATUS OF EUROMARKET INSTRUMENTS AND UNDERWRITING
PRACTICES. 1253 2.4.5 CENTRAL BANK INVOLVEMENT. 1254 2.4.6 EFFECTS OF
THE FREE FLOW OF CAPITAL IN THE EU. THE 1988 DIRECTIVE ON THE FREE
MOVEMENT OF CAPITAL. 1254 XLIV DALHUISEN ON TRANSNATIONAL AND
COMPARATIVE COMMERCIAL, FINANCIAL AND TRADE LAW 2.4.7 THE 1988 DIRECTIVE
AND THE REDIRECTION OF SAVINGS AND TAX AVOIDANCE ISSUES. THE 2003
SAVINGS TAX DIRECTIVE. 1255 2.4.8 THE 1988 DIRECTIVE AND THE MOVEMENT OF
FINANCIAL PRODUCTS AND SERVICES. 1257 2.4.9 THE 1988 DIRECTIVE AND
MONETARY AND EXCHANGE RATE ASPECTS OF THE FREE FLOW OF CAPITAL. THE 1997
STABILITY PACT. 1258 2.4.10 THE SINGLE EUROPEAN MARKET FOR FINANCIAL
SERVICES AND ITS RELATIONSHIP TO THE EUROMARKETS. 1259 2.5 DEVELOPMENTS
IN THE BIS, IOSCO AND IAIS. CAPITAL ADEQUACY (BASEL I AND BASEL II).
1259 2.5.1 THE FUNCTIONS OF THE BIS, IOSCO AND IAIS. 1259 2.5.2 THE BIS
CAPITAL ADEQUACY APPROACH FOR BANKS. THE BASLE I ACCORD. CRITICISM.
OTHER REGULATORY BIS INITIATIVES. 1261 2.5.3 CREDIT RISK, POSITION RISK
AND SETTLEMENT RISK. OFF-BALANCE SHEET EXPOSURES. 1263 2.5.4 THE RISK
ASSETS RATIOS, RISK WEIGHTINGS AND QUALIFYING CAPITAL UNDER BASEL I.
1264 2.5.5 1993 BIS PROPOSALS FOR NETTING, MARKET RISK AND INTEREST RATE
RISK. THE 1996 AMENDMENT. 1265 2.5.6 CRITICISMS. THE BUILDING BLOCK
APPROACH. DERIVATIVES RISK. 1267 2.5.7 CAPITAL ADEQUACY CALCULATIONS
UNDER BASEL I. THE LEVEL PLAYING FIELD FOR BANKS AND THE EFFECT OF A
CHANGE IN THE MINIMUM CAPITAL REQUIREMENT. 1269 2.5.8 THE 1999 BIS
CONSULTATION DOCUMENT AND THE 2001 BIS PROPOSALS. BASEL II AND THE
AMERICAN SHADOW COMMITTEE. 1272 2.5.9 CAPITAL ADEQUACY CALCULATIONS
UNDER BASEL II. 1277 PART III THE THIRD GENERATION OF EU DIRECTIVES
COMPLETING THE INTERNAL MARKET IN FINANCIAL SERVICES AND THE 1998 EU
ACTION PLAN FOR A SINGLE MARKET IN FINANCIAL SERVICES. 1282 3.1 THE NEW
EU APPROACH TOWARDS THE REGULATED FINANCIAL SERVICES INDUSTRIES
FOLLOWING THE LIBERALISATION OF THE CAPITAL FLOWS IN 1988. 1282 3.1.1
THE ESSENCE OF THE NEW APPROACH: MUTUAL RECOGNITION OF HOME COUNTRY
RULE. LIMITED HARMONISATION. THE EUROPEAN PASSPORT. 1282 3.1.2
CROSS-BORDER ACTIVITIES THROUGH AN ESTABLISHMENT OR THROUGH DIRECT
SERVICES. DIFFERENT EU AND US APPROACHES. 1284 3.1.3 RESIDUAL HOST
COUNTRY RULES, THE CONCEPT OF THE GENERAL GOOD AND ITS ABUSES. 1286
3.1.4 DIVISION OF TASKS. NO SINGLE EU REGULATOR. REGULATORY COMPETITION.
1290 3.1.5 INTERACTION WITH GATS. 1291 3.1.6 THE EU RECIPROCITY
REQUIREMENTS. RELATION WITH THIRD COUNTRIES. NATIONAL TREATMENT AND
EFFECTIVE MARKET ACCESS. 1291 3.2 THE THIRD GENERATION OF EU DIRECTIVES
AND THE 1998 EU ACTION PLAN FOR FINANCIAL SERVICES. 1292 3.2.1 THE MAIN
FEATURES. 1292 3.2.2 LAMFALUSSY REPORT AND THE ROLE OF COMITOLOGY. 1296
CONTENTS XLV 3.2.3 SBD/CID: HOME COUNTRY RULE REACH. RESIDUAL HOST
COUNTRY POWERS. THE CONCEPT OF THE GENERAL GOOD. 1297 3.2.4 SBD/CID:
SCOPE OF THE BANKING PASSPORT. UNIVERSAL BANKING. 1299 3.2.5 SBD/CID:
PROCEDURE FOR OBTAINING THE PASSPORT. HOME AND HOST COUNTRY
COMMUNICATIONS. 1299 3.2.6 ISD AND MIFID: BASIC STRUCTURE. BACKGROUND
AND SCOPE. 1300 3.2.7 ISD/MIFID: HOME COUNTRY RULE, AUTHORISATION,
CAPITAL, PRUDENTIAL RULES. PROCEDURE FOR OBTAINING THE PASSPORT. THE
CONCEPT OF THE GENERAL GOOD REVISITED. 1301 3.2.8 ISD/MIFID: CONDUCT OF
BUSINESS. 1302 3.2.9 ISD/MIFID: REGULATED MARKETS, CONCENTRATION
PRINCIPLE AND STOCK EXCHANGE MEMBERSHIP.THE COMPETITION OF MODERN
INFORMAL MARKETS. BEST EXECUTION. 1305 3.2.10 CLEARING AND SETTLEMENT.
1307 3.2.11 ISD/MIFID: MEMBER STATES COMMITTEE. 1307 3.2.12 THE 2003
PROSPECTUS DIRECTIVE (PD). THE ISSUER S PASSPORT. 1307 3.2.13 THE 2003
TRANSPARENCY OBLIGATION DIRECTIVE(TD). 1311 3.2.14 THE EU APPROACH TO
CAPITAL ADEQUACY. 1311 3.3 OTHER EU REGULATORY INITIATIVES IN THE
FINANCIAL AREA. 1313 3.3.1 LARGE EXPOSURES. 1313 3.3.2 DEPOSIT
PROTECTION AND INVESTOR COMPENSATION. 1313 3.3.3 WINDING-UP OF CREDIT
INSTITUTIONS. 1313 3.3.4 PENSION FUNDS. 1314 3.3.5 INTERNATIONAL BANKING
SUPERVISION. BASLE CONCORDAT, EU IMPLEMENTATION, CONGLOMERATE
SUPERVISION . 1315 3.3.6 LEAD-REGULATOR CONCEPT. INTERNATIONAL
CO-OPERATION. 1316 3.3.7 THE E-COMMERCE DIRECTIVE. 1316 3.3.8
LONG-DISTANCE SELLING OF FINANCIAL PRODUCTS TO CONSUMERS. 1317 3.3.9 THE
TAKE-OVER BIDS DIRECTIVE. 1318 3.3.10 THE MARKET ABUSE DIRECTIVE. 1319
3.3.11 OTHER PARTS OF THE ACTION PLAN: UPDATE UCITS, ELECTRONIC MONEY,
MONEY LAUNDERING, CROSS-BORDER USE OF COLLATERAL, TAXATION OF SAVINGS
INCOME. 1319 3.3.12 PAYMENT SERVICES DIRECTIVE. 1320 INDEX 1321
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DALHUISEN ON TRANSNATIONAL AND COMPARATIVE COMMERCIAL, FINANCIAL AND
TRADE LAW CONTENTS PREFACE TO THE THIRD EDITION V PREFACE TO THE SECOND
EDITION XI PREFACE TO THE FTST EDITION XVIII TABLE OF CASES AND
LEGISLATION XLVI 1 MODERN TRANSNATIONAL AND COMPARATIVE COMMERCIAL AND
FINANCIAL LAW AND ITS SOURCES PART I NATIONAL AND TRANSNATIONAL OR
INTERNATIONAL COMMERCIAL AND FINANCIAL LAW OR THE LAW CONCERNING
PROFESSIONAL DEALINGS (THE NEW LEX MERCATORIA OR LAW MERCHANT) 1.1.
INTRODUCTION 1 1.1.1 THE MEANING OF MODERN INTERNATIONAL COMMERCIAL AND
FINANCIAL LAW 1 1.1.2 THE ANTECEDENTS OF MODERN ATTITUDES TO
INTERNATIONAL COMMERCIAL LAW IN CIVIL AND COMMON LAW. THE MEANING AND
IMPACT OF STATISM, LEGAL POSITIVISM AND LEGAL FORMALISM 8 1.1.3 THE
IMPACT OF CIVIL AND COMMON LAW TRADITIONS ON THE MODERN TRANSNATIONAL
LAW MERCHANT AND ITS FORMATION. FLEXIBILITY AND LEGAL DYNAMISM 15 1.1.4
CIVIL AND COMMON LAW NOTIONS OF COMMERCIAL LAW 20 1.1.5 THE DEVELOPMENT
OF A SEPARATE COMMERCIAL LAW IN FRANCE AND GERMANY 25 1.1.6 OLD AND NEW
COMMERCIAL AND FINANCIAL LAW: INTERNATIONAL PROFESSIONAL LAW AND THE
REVIVAL OF THE INTERNATIONAL LAW MERCHANT OR LEX MERCATORIA. CONSTRAINTS
DERIVED FROM THE CONTINUING DOMESTIC NATURE OF BANKRUPTCY LAWS 28 1.1.7
INTERNATIONAL COMMERCIAL ARBITRATION AND INTERNATIONAL COMMERCIAL COURTS
35 1.1.8 STRUCTURE OF THIS CHAPTER 39 1.2 THE ORIGIN AND EVOLUTION OF
CIVIL AND COMMON LAW. THE SOURCES OF PRIVATE LAW. STATIST AND
NON-STATIST VIEW 41 1.2.1 THE EVOLUTION OF MODERN PRIVATE LAW AND ITS
SOURCES AND THEIR IMPORTANCE FOR THE DEVELOPMENT OF MODERN INTERNATIONAL
COMMERCIAL AND FINANCIAL LAW 41 1.2.2 THE EARLY DEVELOPMENT OF ROMAN LAW
41 1.2.3 CLASSICAL ROMAN LAW AND THE CORPUS IURIS CIVILIS 45 1.2.4 THE
REVIVAL OF ROMAN LAW IN WESTERN EUROPE: THE IUS COMMUNE 48 1.2.5 THE IUS
COMMUNE AND LOCAL LAW 51 CONTENTS 1.2.6 NATURAL LAW AND THE NATURAL LAW
SCHOOL: GROTIUS' DE LURE BELLI AC PADS, ITS APPROACH AND IMPACT 55
1.2.7. NATURAL LAW, LEGAL PRINCIPLE AND POSITIVE LAW: THE STATUS OF
STATE LAW IN THE PHILOSOPHIES OF GROTIUS, HOBBES, LOCKE, KANT AND HEGEL.
62 1.2.8 THE GERMAN HISTORICAL AND ROMANTIC SCHOOLS. 64 1.2.9 THE
19TH-CENTURY CIVIL LAW CONCEPT OF NATIONAL CODIFICATIONS AND THE ROLE OF
INTERPRETATION. 67 1.2.10 20TH-CENTURY CONTINENTAL EUROPEAN LEGAL
THINKING IN PRIVATE LAW: BEGRIFFS-AND INTERESSENJURISPRUDENZ. MODERN
HERMENEUTICS. 71 1.2.11 DEVELOPMENT OF THE COMMON LAW. EQUITY. 75 1.2.12
THE COMMON LAW APPROACH TO SCHOLARSHIP, PRECEDENT, LEGISLATION AND
STATUTORY INTERPRETATION. 79 1.2.13 INTELLECTUALISATION AND
CONCEPTUALISATION IN COMMON LAW. MODERN AMERICAN ACADEMIC ATTITUDES
TOWARDS THE LAW AND ITS DEVELOPMENT: LEGAL FORMALISM AND REALISM.
POST-REALISM OR LEGAL FUNCTIONALISM: THE 'LAW AND.' MOVEMENTS. 85 1.3
CIVIL AND COMMON LAW COMPARED. THE IMPACT OF MODERN REGULATORY AND
MANDATORY LAWS: PUBLIC POLICY AND GOVERNMENTAL INTERESTS. 96 1.3.1 THE
RELATION BETWEEN STATUTORY AND NON-STATUTORY LAW IN CIVIL AND COMMON
LAW. SOURCES OF LAW: GENERAL PRINCIPLES, CUSTOM AND STATUTORY
POSITIVISM. 96 1.3.2 LEGAL ATTITUDES IN CIVIL AND COMMON LAW: THE ROLE
OF INTERPRETATION AND THE APPROACH TO FACT AND LAW-FINDING. 104 1.3.3 20
TH CENTURY GOVERNMENT INTERVENTION IN PRIVATE LAW. GOVERNMENT POLICIES,
REGULATION AND MANDATORY DOMESTIC RULES. THE EFFECT OF GLOBALISATION AND
THE DENATIONALISATION OF PRIVATE LAW 109 1.4 CULTURAL, SOCIOLOGICAL AND
ECONOMIC UNDERCURRENTS IN THE FORMATION OF THE LAW. LEGAL ORDERS AND
THEIR MANIFESTATION 115 1.4.1 THE CONCEPT OF LEGAL ORDERS 115 1.4.2 LAW
AS CULTURAL PHENOMENON 117 1.4.3 SOCIOLOGICAL AND ECONOMIC
CONSIDERATIONS IN THE LAW. 125 1.4.4 THE COMPETITION BETWEEN
TRANSNATIONAL LAW AND MANDATORY STATE LAWS OR NATIONAL PUBLIC POLICIES.
129 1.4.5 THE INTERNATIONAL COMMERCIAL AND FINANCIAL LEGAL ORDER AND ITS
RELEVANCE: THE ROLE OF LEGAL THEORY, LEGAL HISTORY AND COMPARATIVE LAW.
134 1.4.6 THE OPERATION OF DIFFERENT LEGAL ORDERS: EVOLUTION OF A US
FEDERAL COMMERCIAL LAW, OF TRANSNATIONAL PRIVATE LAW CONCEPTS IN THE EU,
AND OF INTERNATIONAL HUMAN RIGHTS LAW IN THE COUNCIL OF EUROPE (EUROPEAN
COURT OF HUMAN RIGHTS). 139 1.5 TRANSNATIONAL PRIVATE LAW AMONG
PROFESSIONALS 142 1.5.1 THE GUIDING FUNCTION OF INTERNATIONAL COMMERCIAL
AND FINANCIAL LAW. THE NEW LEGAL ORDER IN THE PROFESSIONAL SPHERE. THE
LEX MERCATORIA V IUS COMMUNE APPROACH. 142 XXVI DALHUISEN ON
TRANSNATIONAL AND COMPARATIVE COMMERCIAL, FINANCIAL AND TRADE LAW 1.5.2
SPONTANEOUS SOURCES OF LAW: FUNDAMENTAL AND GENERAL LEGAL PRINCIPLE.
CUSTOM. 148 1.5.3 UNIFORM SUBSTANTIVE TREATY LAW AS ALTERNATIVE TO
PRIVATE INTERNATIONAL LAW. 153 1.5.4 THE HIERARCHY OF NORMS IN MODERN
INTERNATIONAL COMMERCIAL AND FINANCIAL LAW: THE ROLE OF FUNDAMENTAL AND
GENERAL PRINCIPLES, OF CUSTOM, UNIFORM TREATY LAW, COMPARATIVE DOMESTIC
LAW, AND PRIVATE INTERNATIONAL LAW. COMPLETENESS OF THE LEX MERCATORIA.
157 1.5.5 MANDATORY RULES OF DOMESTIC PUBLIC OR REGULATORY LAW AND THE
LEX MERCATORIA. 161 1.5.6 AGENTS OF INTERNATIONAL CONVERGENCE AND
HARMONISATION: THE ROLE OF UNIDROIT, UNCITRAL, THE ICC, THE HAGUE
CONFERENCE, THE EU, AND THE AMERICAN LAW INSTITUTE AND COMMISSIONERS ON
UNIFORM STATE LAWS IN THE USA; THE IMPACT OF THE INTERNATIONAL LEGAL
PRACTICE AND SCHOLARSHIP. 161 1.5.7 THE ROLE OF NATIONAL COURTS AND OF
INTERNATIONAL COMMERCIAL ARBITRATION. 166 PART II THE NATURE, STATUS AND
FUNCTION OF PRIVATE INTERNATIONAL LAW. 168 2.1 MODERN PRIVATE
INTERNATIONAL LAW. 168 2.1.1 THE UNDERLYING CONCEPT OF MODERN PRIVATE
INTERNATIONAL LAW. THE ROLE OF PARTY AUTONOMY. 168 2.1.2 EARLIER
APPROACHES, DRAWBACKS OF THE MODERN CONFLICT RULES. 172 2.2 THE MODERN
EUROPEAN AND US APPROACHES TO CONFLICTS OF LAWS. 178 2.2.1 REFINEMENT OF
THE EUROPEAN MODEL. 178 2.2.2 DEVELOPMENTS IN THE USA. 179 2.2.3 THE
VARIOUS MODERN US CONFLICT THEORIES. 182 2.2.4 THE EUROPEAN APPROACH OF
EXCEPTION CLAUSES: REASONABLE AND FAIR SOLUTIONS IN THE DUTCH PROPOSALS.
184 2.2.5 EMPHASIS ON THE FACTS RATHER THAN ON THE RULES: THE NATURE OF
THE RELATIONSHIP AND OF THE TRANSACTION. MODERN INTERPRETATION
TECHNIQUES AND THE EFFECTS OF INTERNATIONALISATION. 187 2.2.6 THE ISSUE
OF PUBLIC POLICY OR GOVERNMENTAL INTERESTS AND ITS IMPACT. THE NOTION OF
COMITY AND ITS APPLICATION. COMPETITION BETWEEN TRANSNATIONAL AND STATE
LAWS REVISITED. 190 2.2.7 STATES AS COUNTERPARTIES. 193 2.2.8 PRACTICAL
ISSUES CONCERNING CONFLICTING PUBLIC POLICIES: EFFECT ON THE LEX
MERCATORIA AND THE IMPORTANCE OF THE NOTION OF FORUM NON CONVENIENS. 196
2.2.9 PARTY AUTONOMY AND CONTRACTUAL CHOICE OF LAW. 201 2.3 INTERACTION
OF PRIVATE INTERNATIONAL LAW AND UNIFORM LAW. 205 2.3.1 PRIVATE
INTERNATIONAL LAW AND THE APPLICATION OF UNIFORM LAW. 205 2.3.2 THE
SITUATION WITH REGARD TO EU DIRECTIVES OF A PRIVATE LAW NATURE. 205
CONTENTS PART III THE DEVELOPMENT OF TRANSNATIONAL OR INTERNATIONAL
COMMERCIAL AND FINANCE LAW. 209 3.1 THE LEX MERCATORIA, INTERRELATION
WITH PRIVATE INTERNATIONAL LAW. 209 3.1.1 THE BACKGROUND TO THE REVIVAL
OF THE LEX MERCATORIA. 209 3.1.2 THE CONCEPT OF THE MODERN LEX
MERCATORIA AS A HIERARCHY OF NORMS. 211 3.1.3 THE MAJOR PROTAGONISTS OF
THE LEX MERCATORIA AND THEIR VIEWS: LEGITIMATION. 217 3.2 THE HIERARCHY
OF NORMS: ELABORATION. 219 3.2.1 FUNDAMENTAL LEGAL PRINCIPLE.
TRANSNATIONAL RULES OF CONTRACT FORMATION AND THE NORMATIVE
INTERPRETATION TECHNIQUE. PROCEDURE. 219 3.2.2 FUNDAMENTAL PRINCIPLES.
THE NOTION OF TRANSNATIONAL OWNERSHIP. A FRACTURED SYSTEM OF PROPRIETARY
RIGHTS. 222 3.2.3 MANDATORY CUSTOMS AND PRACTICES. 228 3.2.4 MANDATORY
UNIFORM TREATY LAW, CONTRACTUAL PROVISIONS (PARTY AUTONOMY), DIRECTORY
TRADE PRACTICES, DIRECTORY UNIFORM TREATY LAW AND COMMON OR GENERAL
LEGAL PRINCIPLES. 231 3.2.5 DOMESTIC LAWS, PRIVATE INTERNATIONAL LAW:
MANDATORY PROVISIONS AND PUBLIC POLICY OR REGULATORY ISSUES. 235 3.3
OPERATION OF THE LEX MERCATORIA AND OBJECTIONS TO IT 237 3.3.1 OPERATION
OF THE LEX MERCATORIA. 23 7 3.3.2 DIRECT REFERENCES TO THE LEX
MERCATORIA. 239 3.3.3 PARTIES' CHOICE OF A DOMESTIC LAW V THE LEX
MERCATORIA. 241 3.3.4 OBJECTIONS TO THE LEX MERCATORIA APPROACH. 242
3.3.5 APPLICATION AND ENFORCEMENT OF THE LEX MERCATORIA. 244 2 DOMESTIC
CONTRACT LAWS, UNIFORM INTERNATIONAL CONTRACT LAW AND TRANSNATIONAL
CONTRACT LAW PRINCIPLES, INTERNATIONAL SALES AND CONTRACTUAL AGENCY 245
PART I DOMESTIC CONTRACT LAWS 245 1.1 INTRODUCTION. 245 1.1.1 MODERN
CONTRACT LAW: EMPHASIS ON NATURE OF THE PARTIES OR ON TYPE OF CONTRACT?.
245 1.1.2 MODERN CONTRACT THEORY. 249 1.1.3 THE CHALLENGE OF E-COMMERCE.
254 1.2 FORMATION AND INTERPRETATION OR CONSTRUCTION OF CONTRACTS IN
CIVIL AND COMMON LAW. 255 1.2.1 THE ROLE OF PARTIES' INTENT IN CIVIL
LAW. THE NORMATIVE OR TELEOLOGICAL INTERPRETATION METHOD. THE COMMON LAW
APPROACH COMPARED. 255 1.2.2 THE CIVIL LAW NOTION OF GOOD FAITH AND ITS
MODERN USE IN INTERPRETATION. 262 DALHUISEN ON TRANSNATIONAL AND
COMPARATIVE COMMERCIAL, FINANCIAL AND TRADE LAW 1.2.3 CONSENSUS IN CIVIL
LAW AND ITS NORMATIVE INTERPRETATION: ALTERNATIVE VIEWS. 266 1.2.4
INTENT IN COMMON LAW: OFFER AND ACCEPTANCE, THE NOTIONS OF
CONSIDERATION, EXCHANGE OR BARGAIN. 269 1.2.5 THE PRACTICAL SIGNIFICANCE
OF THE CONSIDERATION REQUIREMENT IN COMMON LAW. 273 1.2.6 CONTRACTS:
CONSTRUCTION AND REMEDIES IN COMMON LAW. THE PAROLE EVIDENCE RULE. 275
1.2.7 THE COMMON LAW NOTION OF CONSIDERATION AND THE CIVIL LAW NOTION OF
CAUSA: INTERNATIONAL ASPECTS. 277 1.2.8 CUSTOM AND THE INTERPRETATION OF
CONTRACTS. 281 1.2.9 OTHER ASPECTS OF CONTRACTUAL VALIDITY: CAPACITY AND
AUTHORITY. 282 1.2.10 OTHER ASPECTS OF CONTRACTUAL VALIDITY:
FORMALITIES. 282 1.2.11 OTHER ASPECTS OF CONTRACTUAL VALIDITY:
DEFINITENESS. 283 1.3 THE CIVIL LAW NOTION OF GOOD FAITH AND THE COMMON
LAW ALTERNATIVES OF IMPLIED TERMS, NATURE OF THE RELATIONSHIP OF THE
PARTIES, AND RELIANCE. 284 1.3.1 THE NOTION OF GOOD FAITH IN CIVIL LAW.
284 1.3.2 GOOD FAITH IN COMMON LAW. ALTERNATIVES. EQUITY AND FIDUCIARY
DUTIES DISTINGUISHED. 293 1.3.3 GOOD FAITH IN THE UNIDROIT AND EUROPEAN
CONTRACT PRINCIPLES. 297 1.3.4 EU NOTION OF GOOD FAITH. 298 1.3.5 THE
LESSER NEED FOR LEGAL REFINEMENT IN THE PROFESSIONAL SPHERE:
INTERPRETATION, MISTAKE, GROSS DISPARITY AND DISCLOSURE DUTIES. 299
1.3.6 THE STATUS OF COMMERCIAL LETTERS OF INTENT. 300 1.3.7
PRE-CONTRACTUAL NEGOTIATION AND POST-CONTRACTUAL IMPLEMENTATION DUTIES
OF PROFESSIONALS: ABUSE OF RIGHTS. 301 1.3.8 FORCE MAJEURE,
RE-NEGOTIATION DUTIES AND HARDSHIP ADJUSTMENTS IN PROFESSIONAL
RELATIONSHIPS. 303 1.4 PERFORMANCE OF THE CONTRACT, DEFENSES, DEFAULT
AND EXCUSES, TERMINATION. 304 1.4.1 PERFORMANCE IN KIND/ SPECIFIC
PERFORMANCE. 304 1.4.2 LACK OF CONSENSUS OR DEFENSES TO PERFORMANCE:
INVALIDITY AND RESCISSION. 307 1.4.3 EXCUSES AND THE MEANING OF
PROMISES, CONDITIONS AND WARRANTIES IN CONNECTION WITH PERFORMANCE IN
COMMON LAW. CONDITIONS, REPRESENTATIONS/ WARRANTIES AND COVENANTS IN
FINANCIAL CONTRACTS. 311 1.4.4 DEFAULT OR BREACH AND DAMAGES. 314 1.4.5
FORCE MAJEURE AND CHANGE OF CIRCUMSTANCE. EXCUSES AND ALLOCATION OF RISK
IN SALES. 316 1.4.6 THE DEFINITION OF THE CONCEPT OF FORCE MAJEURE.
FRUSTRATION AND ECONOMIC IMPOSSIBILITY. DEVELOPMENT IN CIVIL AND COMMON
LAW. 319 1.4.7 UNFORESEEN CIRCUMSTANCES AND THE BALANCE OF THE CONTRACT:
HARDSHIP AND RENEGOTIATION DUTIES. 322 1.4.8 MODERN LEGISLATIVE
APPROACHES TO A CHANGE IN CIRCUMSTANCES: CONTRACTUAL HARDSHIP CLAUSES.
326 CONTENTS XXIX 1.5 PRIVITY OF CONTRACT. 328 1.5.1 PRIVITY OF CONTRACT
OR THIRD PARTY RIGHTS AND DUTIES UNDER A CONTRACT. 328 1.5.2 DEVELOPMENT
OF CONTRACTUAL THIRD-PARTY RIGHTS AND DUTIES IN CIVIL LAW. 334 1.5.3 THE
SITUATION IN COMMON LAW AND THE CHANGES IN THE USA AND ENGLAND. 336 1.6
THE UNIDROIT AND EUROPEAN PRINCIPLES OF CONTRACT LAW: VIENNA CONVENTION
AND UCC COMPARED. 339 1.6.1 THE APPLICABILITY, REACH, AND THE DIRECTORY
OR MANDATORY NATURE OF THE PRINCIPLES. 339 1.6.2 APPROACH TO CONTRACT
FORMATION: CAPACITY, FORMALITIES AND SPECIFICITY. 347 1.6.3 NOTIONS OF
GOOD FAITH AND REASONABLENESS: INTERPRETATION AND SUPPLEMENTATION OF THE
PRINCIPLES AND CONTRACTS THEREUNDER. FORCE MAJEURE AND HARDSHIP. 350
1.6.4 THE IMPACT OF CUSTOM. 355 1.6.5 CONSENSUS AND ITS FAILURE:
DEFENSES AND THE QUESTION OF CONTINUED VALIDITY. 356 1.6.6 PERFORMANCE,
DEFAULT AND FORCE MAJEURE EXCUSES: HARDSHIP. 357 1.6.7 PRIVITY OF
CONTRACT. 358 1.6.8 THE NATURE AND IMPACT OF THE PRINCIPLES. 358 1.7
DIRECTORY AND MANDATORY RULES OF CONTRACT 361 1.7.1 DIRECTORY AND
MANDATORY CONTRACT RULES IN DOMESTIC LAWS. 361 1.7.2 TREATMENT OF
DIRECTORY AND MANDATORY CONTRACT RULES IN PRIVATE INTERNATIONAL LAW. 363
1.7.3 MANDATORY UNIFORM INTERNATIONAL CONTRACT RULES. 365 1.7.4 THE
EFFECT OF THE FREEDOM OF MOVEMENT AND THE FREEDOM OF ESTABLISHMENT ON
THE APPLICATION OF DOMESTIC MANDATORY RULES. 365 PART II CONTRACTS FOR
THE INTERNATIONAL SALE OF GOODS 366 2.1 THE MAIN ASPECTS OF THE
INTERNATIONAL SALE OF GOODS. 366 2.1.1 INTRODUCTION. 366 2.1.2 THE
MINIMUM REQUIREMENTS OF THE SALES AGREEMENT: SPECIAL FEATURES AND RISKS
OF INTERNATIONAL SALES. 368 2.1.3 LEGAL RISK IN INTERNATIONAL SALES. 370
2.1.4 SPECIAL ARRANGEMENTS TO COVER THE RISKS OF INTERNATIONAL SALES.
373 2.1.5 INTERNATIONAL SALES AS CONTRACTS BETWEEN PROFESSIONALS:
APPLICABLE LAW. 374 2.1.6 CURRENCY AND PAYMENTS IN INTERNATIONAL SALES:
FREE CONVERTIBILITY AND TRANSFERABILITY OF MONEY. 377 2.1.7 THE TRANSFER
OF TITLE IN INTERNATIONAL SALES. 378 2.1.8 CONFORM DELIVERY AND THE
PASSING OF RISK IN INTERNATIONAL SALES. 379 2.1.9 THE PASSING OF RISK IN
CIVIL AND COMMON LAW. 382 2.1.10 PROPRIETARY SALES PRICE PROTECTION IN
CIVIL AND COMMON LAW. 387 DALHUISEN ON TRANSNATIONAL AND COMPARATIVE
COMMERCIAL, FINANCIAL AND TRADE LAW 2.2 ANCILLARY ARRANGEMENTS IN
INTERNATIONAL SALES. THE ROLE OF INTERMEDIARIES AND DOCUMENTS. 394 2.2.1
THE SAFE HARBOUR FUNCTION: AGENTS AND DOCUMENTS OF TITLE. 394 2.2.2 THE
USE OF AGENTS: THEIR POSITION. 395 2.2.3 THE USE OF NEGOTIABLE DOCUMENTS
OF TITLE: BILLS OF LADING AND WAREHOUSE RECEIPTS. 396 2.2.4 DOCUMENTS OF
TITLE IN PAYMENT SCHEMES: BILLS OF LADING. 397 2.2.5 THE USE OF
NEGOTIABLE INSTRUMENTS: BILLS OF EXCHANGE. 398 2.3 THE UNIFORM
INTERNATIONAL SALES LAWS. 400 2.3.1 ORIGIN AND SCOPE 400 2.3.2 THE
SYSTEM OF THE VIENNA CONVENTION: DIRECTORY OR MANDATORY RULES. 404 2.3.3
APPLICABILITY OF THE VIENNA CONVENTION. 405 2.3.4 THE SALES LAW OF THE
VIENNA CONVENTION. REMEDIES. 406 2.3.5 SUPPLEMENTATION AND
INTERPRETATION OF THE VIENNA CONVENTION. 411 2.3.6 THE INTERPRETATION OF
INTERNATIONAL SALES CONTRACTS UNDER THE VIENNA CONVENTION: MEANING OF
CONDUCT AND CUSTOM IN TERMS OF CONTRACT INTERPRETATION. 416 2.3.7
SUPPLEMENTATION OF THE VIENNA CONVENTION: PRIVATE INTERNATIONAL LAW AND
THE ROME CONVENTION ON THE LAW APPLICABLE TO CONTRACTUAL OBLIGATIONS.
418 2.3.8 THE MAIN RULES OF THE 1980 EU ROME CONVENTION ON THE LAW
APPLICABLE TO CONTRACTUAL OBLIGATIONS. 420 2.3.9 THE VIENNA CONVENTION
AND THE DIFFERENT TRADE TERMS IN INTERNATIONAL SALES. 424 2.3.10
INCOTERMS, THEIR STATUS AND RELATION TO THE UCC AND VIENNA CONVENTION.
427 2.3.11 THE VIENNA CONVENTION AND THE ICC MODEL INTERNATIONAL SALES
CONTRACT. THE 2004 PRINCIPLES OF EUROPEAN LAW: SALES. 429 2.4 THE LAW
MERCHANT CONCERNING INTERNATIONAL SALES. 429 PART III CONTRACTUAL AGENCY
430 3.1 THE GENERAL NOTION OF AGENCY. 430 3.1.1 THE USE OF AGENTS: THEIR
POSITION. 430 3.1.2 THE ROLE OF THE AGENT: EXPLICIT AND APPARENT
AUTHORITY. 434 3.1.3 THE NOTION OF INDEPENDENCE, APPARENT AUTHORITY AND
AGENCIES OF NECESSITY. 437 3.1.4 THE CONSEQUENCES OF AGENCY: CONFLICTS
OF INTERESTS, RIGHTS AND DUTIES OF THE AGENT. 439 3.1.5 UNDISCLOSED AND
INDIRECT AGENCIES. 441 3.1.6 THE CIVIL LAW INDIRECT AGENCY. THE
RELATIONSHIP BETWEEN PRINCIPAL AND THIRD PARTY. CUSTOMERS' ASSETS. 442
3.1.7 THE ECONOMIC IMPORTANCE OF MODERN AGENCY. 446 3.2 INTERNATIONAL
ASPECTS OF AGENCY. 447 CONTENTS 3.2.1 PRIVATE INTERNATIONAL LAW ASPECTS
OF AGENCY. 447 3.2.2 TREATY LAW CONCERNING THE LAW APPLICABLE TO AGENCY.
449 3.2.3 THE LEX MERCATORIA AN D AGENCY. 451 3.2.4 THE EU COMMERCIAL
AGENT DIRECTIVE. 451 3 INTERNATIONAL PAYMENTS, PAYMENT SYSTEMS AND
MISTAKEN PAYMENTS 454 PART I THE NOTION AND MODALITIES OF PAYMENT 454 1
. 1 PAYMENT AND WAYS AND MEANS OF PAYMENT 454 1.1.1 WHAT IS PAYMENT? 454
1.1.2 THE NOTION OF MONEY AS UNIT OF ACCOUNT OR UNIT OF PAYMENT: MONEY
AS STORE OF VALUE. 459 1.1.3 PAPER CURRENCIES AND MODERN CURRENCY
ELECTION CLAUSES. 460 1.1.4 FREELY CONVERTIBLE AND TRANSFERABLE
CURRENCY. 462 1.1.5 THE DIFFERENT WAYS AND MEANS OF PAYMENT: PULL AND
PUSH SYSTEMS 464 1.1.6 CASH PAYMENTS AND THE BANK TRANSFER OPTION IN
COMMERCE AND FINANCE. 465 1.2 PAYMENT THROUGH BANK TRANSFERS. 467 1.2.1
THE NATURE OF BANK ACCOUNTS, THE CURRENT ACCOUNT AND ITS USE IN THE
PAYMENT CIRCUIT. 467 1.2.2 WHEN IS A BANK PAYMENT MADE? THE NATURE OF
THE PAYMENT INSTRUCTION AND QUESTION OF ACCEPTANCE AND THE LIBERATING
EFFECT OF THE PAYMENT. 469 1.2.3 THE LEGAL CHARACTERISATION OF BANK
TRANSFER PAYMENTS: ASSIGNMENT, NOVATION OR INDEPENDENT LEGAL STATUS.
LEGAL TOOLS UNDERPINNING THE NOTION OF FINALITY. 473 1.2.4 PAYMENT
MISTAKES AND RESTITUTION. 476 1.2.5 MODERN ELECTRONIC PAYMENT SYSTEMS.
CLEARING, FEDWIRE, CHIPS, CHAPS, GROSS AND NET PAYMENT SYSTEMS AND
INTERNATIONAL BANK TRANSFERS (SWIFT). 478 1.2.6 THE RISKS IN MODERN
PAYMENT SYSTEMS 481 1.2.7 THE EU SETTLEMENT FINALITY DIRECTIVE. 482 1.3
SET-OFF AS METHOD OF PAYMENT: NETTING. 483 1.3.1 LEGAL NATURE AND
CHARACTERISATION. 483 1.3.2 ELIGIBILITY. 485 1.3.3 CONTRACTUAL
ADAPTATIONS OF THE SET-OFF: SETTLEMENT, NOVATION AND CLOSE- OUT NETTING.
487 1.3.4 USE OF CONTRACTUAL NETTING CLAUSES: CONTRACTUAL NETTING AND
BANKRUPTCY. 491 1.3.5 THE ISDA SWAP AND DERIVATIVES MASTER AGREEMENTS.
SWAP AND REPO NETTING. THE NOTION OF CONDITIONALITY AND 'FLAWED ASSETS'
AS AN ALTERNATIVE TO THE SET-OFF. THE EU COLLATERAL DIRECTIVE. 494 1.3.6
THE EVOLUTION OF THE SET-OFF PRINCIPLE. 496 PART II INTERNATIONAL
PAYMENTS 499 2.1 INTERNATIONAL PAYMENT ARRANGEMENTS TO MINIMISE PAYMENT
RISK. 499 2.1.1 CROSS-BORDER PAYMENTS AND THEIR RISKS. 499 DALHUISEN ON
TRANSNATIONAL AND COMPARATIVE COMMERCIAL, FINANCIAL AND TRADE LAW 2.1.2
PAYMENT IN OPEN ACCOUNT. RE-ESTABLISHING SIMULTANEITY THROUGH THE USE OF
INTERMEDIARIES. 501 2.1.3 WAYS TO REDUCE PAYMENT RISK. 502 2.1.4 WAYS TO
REDUCE PAYMENT RISK: THE ACCEPTED BILL OF EXCHANGE. 503 2.1.5 WAYS TO
REDUCE PAYMENT RISK: COLLECTION ARRANGEMENTS. 504 2.1.6 WAYS TO REDUCE
PAYMENT RISK: LETTERS OF CREDIT. THE DIFFERENT BANKS INVOLVED. 506 2.1.7
THE TYPES OF LETTERS OF CREDIT. 510 2.1.8 THE DOCUMENTS REQUIRED UNDER A
DOCUMENTARY LETTER OF CREDIT. 511 2.1.9 THE RIGHT OF REIMBURSEMENT OF
THE ISSUING BANK UNDER A LETTER OF CREDIT. 512 2.1.10 THE LETTER OF
CREDIT AS INDEPENDENT AND PRIMARY OBLIGATION: LEGAL NATURE OF LETTERS OF
CREDIT. THE 'PAY FIRST, ARGUE LATER' NOTION. 513 2.1.11 NON-PERFORMANCE
UNDER LETTERS OF CREDIT: THE EXCEPTION OF'FRAUD'. 516 2.1.12
TRANSFERABLE LETTERS OF CREDIT AND BACK-TO-BACK LETTERS OF CREDIT. 517
2.1.13 WAYS TO REDUCE PAYMENT RISKS: AUTONOMOUS GUARANTEES. EXAMPLES.
STANDBY LETTERS OF CREDIT. 518 2.1.14 THE LAW AND/OR RULES APPLICABLE TO
COLLECTIONS, LETTERS OF CREDIT AND BANK GUARANTEES. THE ICC RULES AND
THEIR STATUS. THE LEX MERCATORIA. 520 1.2.15 THE UNCITRAL CONVENTION ON
INTERNATIONAL GUARANTEES AND THE WORLD BANK STANDARD CONDITIONS. 521 2.2
INTERNATIONAL SET-OFFS. 522 2.2.1 THE LAW APPLICABLE TO SET-OFFS AND
CONTRACTUAL NETTING. 522 2.2.2 THE LAW APPLICABLE TO NETTING AND SWAP
TRANSFERS 524 PART III MONEY LAUNDERING 526 3.1 TECHNIQUES AND REMEDIES.
526 3.1.1 OBJ ECTIVES AND MECHANISMS. 526 3.1.2 WHY ACTION? REMEDIES AND
THE OBJECTIVES OF COMBATING MONEY LAUNDERING. 528 3.2 INTERNATIONAL
ACTION. 529 3.2.1 THE GROUP OF TEN, THE COUNCIL OF EUROPE, AND THE
UNITED NATIONS. 529 3.2.2 THE EU 529 4 OWNERSHIP, POSSESSION AND
LIMITED, FUTURE, CONDITIONAL OR TEMPORARY LEGAL OR EQUITABLE PROPRIETARY
RIGHTS IN CHATTELS AND INTANGIBLES PART I LAWS OF MOVEABLE PROPERTY
(CHATTELS AND INTANGIBLE ASSETS) 531 1.1 INTRODUCTION 531 1.1.1
PROPRIETARY LAWS IN COMMON AND CIVIL LAW 531 1.1.2 TYPES OF ASSETS. 535
1.1.3 THE REQUIREMENT OF ECONOMIC VALUE AND COMMERCIABILITY. NOTIONS OF
IDENTITY, SPECIFICITY AND DEFINITENESS AND THEIR INHERENT CONSTRAINTS.
538 1.1.4. NATURE OF PROPRIETARY RIGHTS. 542 CONTENTS XXXIII 1.1.5
IMPORTANCE OF THE LAW OF CHATTELS AND INTANGIBLES IN CIVIL AND COMMON
LAW. THE TRADITIONAL PHYSICAL AND ANTHROPOMORPHIC APPROACH TO PROPERTY
RIGHTS. MODERN DEVELOPMENTS. 545 1.1.6 THE EFFECT OF FINANCIAL LAW AND
NEW FINANCIAL STRUCTURES. 549 1.2 THE TYPES OF PROPRIETARY RIGHTS IN
CIVIL LAW. 552 1.2.1 THE NATURE AND LIMITED NUMBER OF THE TRADITIONAL
PROPRIETARY RIGHTS IN CIVIL LAW: THE NUMERUS CLAUSUS NOTION. THE ROLE OF
PUBLICITY, ACTUAL KNOWLEDGE AND PHYSICAL POSSESSIONS. 552 1.2.2 THE WAY
PROPRIETARY RIGHTS ARE EXPRESSED AND PROTECTED IN CIVIL LAW: THE NOTIONS
OF OWNERSHIP, POSSESSION AND HOLDERSHIP OR DETENTION; CONSTRUCTIVE
POSSESSION AND HOLDERSHIP. 560 1.2.3 THE ACQUISITIVE PRESCRIPTION AND
ITS IMPORTANCE IN CIVIL LAW. DIFFERENCE WITH THE PROTECTION OF BONA FIDE
PURCHASERS. 564 1.2.4 PROPRIETARY DEFENSES IN BANKRUPTCY. 566 1.2.5 THE
CIVIL LAW RELATIVITY OR PRIORITY PRINCIPLE IN RESPECT OF PROPRIETARY
RIGHTS: THE DIFFERENCE WITH THE RELATIVITY OF OBLIGATORY RIGHTS. 569 1.3
THE TYPES OF PROPRIETARY RIGHTS IN COMMON LAW: THE PRACTICAL DIFFERENCES
WITH CIVIL LAW. MODERN FUNCTIONAL THEORIES. 570 1.3.1 LEGAL AND
EQUITABLE INTERESTS IN CHATTELS. 570 1.3.2 OWNERSHIP AND POSSESSION OF
CHATTELS IN COMMON LAW. 573 1.3.3 EQUITABLE PROPRIETARY INTERESTS IN
CHATTELS. 575 1.3.4 THE COMMON LAW SYSTEM OF PROPRIETARY DEFENSES: TORT
ACTIONS BASED ON BETTER RATHER THAN ABSOLUTE RIGHTS. 577 1.3.5
CONSTRUCTIVE POSSESSION IN COMMON LAW. THE ABSENCE OF ACQUISITIVE
PRESCRIPTION. STATUTES OF LIMITATION. 579 1.3.6 PRACTICAL DIFFERENCES
BETWEEN THE COMMON AND CIVIL LAW APPROACHES TO PROPRIETARY RIGHTS IN
CHATTELS. 580 1.3.7 APPROXIMATION OF THE COMMON AND CIVIL LAW SYSTEMS OF
PROPRIETARY LAW IN CHATTELS. USER, ENJOYMENT AND INCOME RIGHTS. THE
UNIFYING IMPACT OF MODERN FINANCIAL STRUCTURES AND THE REQUIREMENTS OF
MODERN RISK MANAGEMENT. THE NEED FOR AND EFFECT OF LEGAL
TRANSNATIONALISATION. 582 1.3.8 VIRTUES AND PITFALLS OF THE NUMERUS
CLAUSUS NOTION. MODERN FUNCTIONAL ANALYSES. 586 1.4 TRANSFER OF
PROPRIETARY RIGHTS IN CHATTELS IN CIVIL AND COMMON LAW. 590 1.4.1 THE
LEGAL REQUIREMENTS FOR THE TRANSFER OF CHATTELS. 590 1.4.2 THE
FORMALITIES OF A SALE: CONTRACT OR DELIVERY (PHYSICALLY OR
CONSTRUCTIVELY); DOUBLE SALES, THE REAL OR PROPRIETARY AGREEMENT IN
CIVIL LAW. 592 1.4.3 THE IMPORTANCE OF IDENTIFICATION. EFFECT ON THE
TRANSFER. SALES OF FUTURE ASSETS, BULK TRANSFERS, AND DE FACTO TRANSFERS
OF TITLE. 595 1.4.4 THE DEVELOPMENT OF THE RULES CONCERNING DELIVERY AS
A FORMAL REQUIREMENT OF TITLE TRANSFER IN CIVIL AND COMMON LAW. 598
1.4.5 LEGAL CAPACITY AND DISPOSITION RIGHT. CAUSES OF CONTRACTUAL
INVALIDITY. EFFECT ON THE TITLE TRANSFER. FUTURE, CONDITIONAL AND
TEMPORARY SALES. 600 1.4.6 THE TRANSFER AGREEMENT: THE ABSTRACT AND
CAUSAL SYSTEM OF OWNERSHIP TRANSFER. THE FINALITY ISSUE. 603 1.4.7 THE
ORIGIN OF THE ABSTRACT AND CAUSAL VIEWS OF TITLE TRANSFER. 608 XXXIV
DALHUISEN ON TRANSNATIONAL AND COMPARATIVE COMMERCIAL, FINANCIAL AND
TRADE LAW 1.4.8 DISPOSITION RIGHTS: THE 'NEMO DAT' RULE AND THE
PROTECTION OF BONA FIDE PURCHASERS. 613 1.4.9 ORIGIN OF THE 'NEMO DAT'
RULE AND OF THE PRINCIPLE OF BONA FIDE PURCHASER PROTECTION. 615 1.4.10
THE RETENTION RIGHT OF THE SELLER IN THE CASE OF DEFAULT OF THE BUYER.
620 1.5 PROPRIETARY RIGHTS IN INTANGIBLE ASSETS IN CIVIL AND COMMON LAW.
624 1.5.1 PROPRIETARY RIGHTS IN INTANGIBLE ASSETS AND THE POSSIBILITY
AND METHOD OF THEIR TRANSFER. THE MEANING OF NOTIFICATION AND THE
SITUATION IN DOUBLE ASSIGNMENTS. THE CIVIL LAW DEVELOPMENT. 624 1.5.2
THE DEVELOPMENT IN COMMON LAW. 630 1.5.3 THE TRANSFERABILITY OF CLAIMS
AND CONTRACTS. ASSIGNMENT OF RIGHTS AND DELEGATION OF DUTIES. THE
DEBTOR'S DEFENSES AND THE IMPACT OF CONTRACTUAL RESTRICTIONS ON THE
TRANSFER. 633 1.5.4 THE ASSIGNABILITY OF FUTURE CLAIMS. 639 1.5.5
ASSIGNMENT, NOVATION, AMENDMENT, SUBROGATION AND SUBCONTRACTING. 642
1.5.6 DIFFERENT TYPES AND OBJECTIVES OF ASSIGNMENTS. 644 1.5.7 THE
BETTER RIGHT OF THE ASSIGNEE. THE NOTION OF ABSTRACTION, INDEPENDENCE
AND FINALITY. COMPARISON WITH NEGOTIABLE INSTRUMENTS. 647 1.5.8 THE
NOTION OF ABSTRACTION OR INDEPENDENCE AND THE LIBERATING EFFECT OF
PAYMENT BY THE DEBTOR. 650 1.5.9 THE RANKING BETWEEN ASSIGNEES, THE NEMO
DAT RULE IN ASSIGNMENTS. 652 1.5.10 CONTRACTUAL AND PROPRIETARY ASPECTS
OF ASSIGNMENTS. MANDATORY RULES. APPLICABLE LAW AND PARTY AUTONOMY. 654
1.5.11 SPECIAL ASSIGNMENT ISSUES: WARRANTIES, CONDITIONS AND DEFAULT.
656 1.5.12 BANKRUPTCY ASPECTS OF ASSIGNMENTS. RECOURSE AND NON-RECOURSE
FINANCING. 657 1.5.13 UNIFORM RULES CONCERNING ASSIGNMENTS. 660 1.6
TRUSTS, CONSTRUCTIVE AND RESULTING TRUSTS, TRACKING AND TRACING. AGENCY.
THE CIVIL LAW RESPONSE. 661 1.6.1 BASIC FEATURES OF THE COMMON LAW OF
TRUST. 661 1.6.2 THE PRACTICAL SIGNIFICANCE OF TRUSTS IN COMMON LAW
COUNTRIES. 667 1.6.3 CONSTRUCTIVE TRUSTS, TRACING AND TRACKING,
RESULTING TRUSTS, STATUTORY TRUSTS AND CHARITABLE TRUSTS. 668 1.6.4
TRUST AND AGENCY; TRUST AND BAILMENT. 670 1.6.5 RELATED CIVIL LAW
STRUCTURES. 671 1.6.6 PRIVATE INTERNATIONAL TREATY LAW AND TRUST LAW
PRINCIPLES. 673 1.7 SECURED TRANSACTIONS AND CONDITIONAL SALES. FLOATING
CHARGES. 675 1.7.1 THE IMPORTANCE OF CONDITIONAL SALES IN FINANCE AND
THE DIFFERENCE WITH SECURED TRANSACTIONS. 675 1.7.2 WHAT ARE
SALE-REPURCHASE AGREEMENTS OR FINANCE SALES? THE CHARACTERISATION ISSUE.
PROPERTY-BASED AND SECURITY-BASED FUNDING 676 1.7.3 THE EVOLUTION OF
CONDITIONAL AND TEMPORARY TRANSFERS IN CIVIL AND COMMON LAW. 679 1.7.4
WHEN ARE FINANCE SALES CONVERTED INTO SECURED TRANSACTIONS? 681 1.7.5
THE OPERATION OF FINANCE SALES. EFFECT OF THE CONDITIONALITY OF THE
TRANSFER. PROPRIETARY EFFECT OF CONDITIONS. DUALITY OF OWNERSHIP AND OF
POSSESSION IN CIVIL LAW. OPENNESS OF PROPRIETARY SYSTEMS? 686 CONTENTS
XXXV 1.7.6 EXAMPLES OF FINANCE SALES: FINANCE LEASES, REPOS AND
FACTORING. FINANCE SALES AS EXECUTORY CONTRACTS, CHERRY PICKING AND
NETTING. 688 1.7.7 THE OUTWARD SIGNS OF SECURITY INTERESTS AND
OWNERSHIP-BASED FUNDING. POSSESSION OR FILING. ATTACHMENT AND PERFECTION
OF SECURITY INTERESTS UNDER THE UCC. 691 1.7.8 FLOATING CHARGES IN
COMMON AND CIVIL LAW. EXTENDED RESERVATIONS OF TITLE. THE CONCEPTS OF
BULK TRANSFERS, ASSET SUBSTITUTION AND TRACING AND THE INCLUSION OF
FUTURE ASSETS. THE FACILITY TO SELL GOODS FREE AND CLEAR. 697 1.7.9
UNIFORM SECURITY LAW AND PRINCIPLES OF SECURITY LAWS. 699 1.8 PRIVATE
INTERNATIONAL LAW ASPECTS OF CHATTELS. 699 1.8.1 WHEN CONFLICTS ARISE.
699 1.8.2 THE APPLICATION OF THE LEX SITUS. 701 1.8.3 THE NOTIONS OF
EQUIVALENCE AND ADAPTATION; CONDITIONAL OWNERSHIP, SECURITY AND
RETENTION RIGHTS. 705 1.8.4 TRUSTS: THE 1985 HAGUE CONVENTION ON THE LAW
APPLICABLE TO TRUSTS AND THEIR RECOGNITION. 707 1.8.5 UNIFORM LAWS
CONCERNING THE PROPRIETARY ASPECTS OF CHATTELS. 712 1.8.6 THE LEX
MERCATORIA CONCERNING CHATTELS. 712 1.9 PRIVATE INTERNATIONAL LAW
ASPECTS OF ASSIGNMENTS. 713 1.9.1 THE VARIOUS ASPECTS OF ASSIGNMENTS.
CHARACTERISATION ISSUES. MANDATORY PROPRIETARY LAWS. 713 1.9.2 CURRENT
APPROACHES TO CHOICE OF LAWS ISSUES IN ASSIGNMENTS: THE LEGAL SITUS OF
DEBTS. 717 1.9.3 TREATY LAW APPROACHES TO THE LAW APPLICABLE TO
ASSIGNMENTS: THE CHOICE OF LAW PROVISION OF ARTICLE 12 OF THE ROME
CONVENTION AND THE DRAFT UNCITRAL RECEIVABLE FINANCING CONVENTION. NEW
PROPOSALS IN ROME I. 722 1.9.4 UNIFORM LAW CONCERNING PROPRIETARY RIGHTS
IN INTANGIBLES. 725 1.9.5 THE LEX MERCATORIA CONCERNING BULK
ASSIGNMENTS. 725 1.10 THE MODERN LAW OF CHATTELS AND INTANGIBLES. 726
1.10.1 TRADITIONAL AND NEW APPROACHES. 726 1.10.2 TRANSNATIONAL
PROPRIETARY RIGHTS PROMOTED BY INTERNATIONAL FINANCE. 730 1.10.3 PAUCITY
OF MODERN PROPERTY THEORY. 734 PART II NEGOTIABLE DOCUMENTS OF TITLE AND
NEGOTIABLE INSTRUMENTS. 742 2.1 THE ROLE OF DOCUMENTS. 742 2.1.1 BILLS
OF LADING AND WAREHOUSE RECEIPTS. 742 2.1.2 THE ORIGIN AND NATURE OF THE
BILL OF LADING AND ITS OPERATION IN THE PROPRIETARY ASPECTS OF THE
TRANSFER OF GOODS. 747 2.1.3 THE STATUS OF THE BILL OF LADING IN LEGAL
SYSTEMS THAT REQUIRE DELIVERY FOR TITLE TRANSFER. ABSTRACTION AND THE
CONCLUSIVE EVIDENCE RULE. THE SITUATION IN GERMANY AND THE NETHERLANDS.
749 2.1.4 THE STATUS OF THE BILL OF LADING IN LEGAL SYSTEMS THAT DO NOT
NORMALLY EQUIRE DELIVERY FOR TITLE TRANSFER: THE SITUATION IN FRANCE.
751 2.1.5 BILLS OF LADING AS QUASI-NEGOTIABLE INSTRUMENTS IN THE UK; THE
SITUATION IN THE USA. 751 DALHUISEN ON TRANSNATIONAL AND COMPARATIVE
COMMERCIAL, FINANCIAL AND TRADE LAW 2.1.6 CONSEQUENCES OF THE DIFFERENT
ATTITUDES TO DOCUMENTS OF TITLE WHEN GOODS ARE TRANSFERRED TO
TRANSFEREES OTHER THAN THROUGH A TRANSFER OF THE BILL OF LADING. 753
2.1.7 THE TRANSFER OF RISK. 754 2.1.8 THE NAMED OR STRAIGHT BILL OF
LADING AND SEA-WAY BILLS. 754 2.1.9 PRIVATE INTERNATIONAL LAW ASPECTS OF
BILLS OF LADING. 755 2.1.10 LEX MERCATORIA AND UNIFORM TREATY LAW
CONCERNING BILLS OF LADING. THE HAGUE, HAGUE-VISBY, AND HAMBURG RULES.
757 2.2 NEGOTIABLE INSTRUMENTS. 759 2.2.1 BILLS OF EXCHANGE. 759 2.2.2
ACCEPTANCE AND DISCOUNTING OF TIME DRAFTS. 762 2.2.3 THE PERSONS LIABLE
UNDER A BILL OF EXCHANGE: RECOURSE. 763 2.2.4 THE PRINCIPLE OF
INDEPENDENCE OR ABSTRACTION. 764 2.2.5 THE HOLDER IN DUE COURSE.
PERSONAL AND REAL DEFENSES. OTHER TYPES OF HOLDERS. 765 2.2.6 CHEQUES.
766 2.2.7 MODERN USE OF BILLS OF EXCHANGE AND CHEQUES. 766 2.2.8 BILLS
OF EXCHANGE AND COMPETING ASSIGNMENTS OF THE UNDERLYING CLAIM. 767 2.2.9
POSITION OF THE HOLDER IN DUE COURSE OF A BILL OF EXCHANGE COMPARED TO
THE BONA FIDE HOLDER OF A BILL OF LADING. 768 2.2.10 FOREIGN BILLS OF
EXCHANGE: PRIVATE INTERNATIONAL LAW ASPECTS. 768 2.2.11 UNIFORM TREATY
LAW. 771 2.2.12 THE LEX MERCATORIA CONCERNING BILLS OF EXCHANGE. 772 2.3
THE DEMATERIALISATION OF DOCUMENTS OF TITLE AND NEGOTIABLE INSTRUMENTS;
ELECTRONIC TRANSFERS. 773 2.3.1 THE TRADITIONAL USE OF DOCUMENTS OF
TITLE AND NEGOTIABLE INSTRUMENTS. THEIR INCONVENIENCES AND RISKS. SEAWAY
BILLS AND INDEMNITIES. 773 2.3.2 ELECTRONIC SYSTEMS AND THEIR IMPORTANCE
IN REPLACING TRANSPORTATION DOCUMENTS. THE CMI RULES AND BOLERO. USE OF
CENTRAL COUNTERPARTIES?. 776 2.3.3 THE SITUATION WITH REGARD TO BILLS OF
EXCHANGE: ELECTRONIC BANK TRANSFERS. THE FACILITY OF GLOBAL TRADE. 779
PART III INVESTMENT SECURITIES. 780 3.1 THE DIFFERENT TYPES OF SHARES
AND BONDS. 780 3.1.1 TRADITIONAL DISTINCTIONS. NEGOTIABLE INSTRUMENTS
AND TRANSFERABLE SECURITIES. DEMATERIALISATION AND IMMOBILISATION.
SECURITIES ENTITLEMENTS. 780 3.1.2 NEGOTIABILITY AND TRANSFERABILITY OF
INVESTMENT SECURITIES: USE OF SECURITIES ENTITLEMENTS TO ENHANCE
TRANSFERABILITY AND LIQUIDITY. 787 3.1.3 THE RISK FACTORS IN THE HOLDING
AND TRANSFER OF INVESTMENT SECURITIES: BANKRUPTCY ISSUES AND RISK
REDUCTION TECHNIQUES. THE EU SETTLEMENT FINALITY DIRECTIVE. 790 3.1.4
MODERN CLEARING AND SETTLEMENT SYSTEMS: INTERNATIONALISATION. 795 3.1.5
BOOK-ENTRY SYSTEMS FOR SHARES AND BONDS: DEPOSITORY RECEIPTS AND THE
EARLIER DEVELOPMENTS TOWARDS DEMATERIALISATION AND IMMOBILISATION. 797
3.1.6 THE LEGAL CHARACTERISATION OF BOOK-ENTRY ENTITLEMENTS. THE MANNER
AND CONSEQUENCES OF THEIR TRANSFER. TRANSFER INSTRUCTIONS AND THE NOTION
OF ABSTRACTION OR INDEPENDENCE AND FINALITY OF THE TRANSFER. THE CONCEPT
OF BONA FIDE TRANSFEREE. 799 CONTENTS XXXVII 3.2 THE
INTERNATIONALISATION OF CUSTODY AND SETTLEMENT SYSTEMS AND ITS
OPPORTUNITIES. 806 3.2.1 THE ROLE OF THE EUROMARKET FOR BONDS AND THE
EFFECT ON INTERNATIONAL SHARE TRADING. THE DOMINANT ROLE OF
INTERNATIONAL PRACTICES AND THE BANKRUPTCY LAW IMPLICATIONS. 806 3.2.2
LAW APPLICABLE TO TRANSACTIONS IN INVESTMENT SECURITIES OF THE BOOK-
ENTRY TYPE. 811 3.2.3 THE LEX MERCATORIA CONCERNING INTERNATIONAL
INVESTMENT SECURITIES TRANSACTIONS. 817 3.2.4 UNIFORM LAW: THE EU
FINANCIAL COLLATERAL DIRECTIVE. UNIDROIT PROJECT. 819 3.2.5. EU
ACTIVITIES IN THE FIELD OF CLEARING AND SETTLEMENT 822 5 MODERN
FINANCIAL PRODUCTS. 824 PART LSECURED TRANSACTIONS, FINANCE SALES, AND
OTHER FINANCIAL PRODUCTS AND SERVICES. 824 1.1 CIVIL AND COMMON LAW
APPROACHES. 824 1.1.1 INTRODUCTION 824 1.1.2 FINANCIAL PRODUCTS IN
COMMERCIAL BANKING SYSTEMS AND CAPITAL MARKETS. 826 1.1.3 THE EVOLUTION
OF SECURED TRANSACTIONS. DIFFERENT CREDIT CULTURES AND THE ROLE OF
FINANCE SALES. THE PREVALENCE OF DOMESTIC LAWS AND THE ISSUE OF LEGAL
TRANSNATIONALISATION. 830 1.1.4 INTERNATIONAL CONVERGENCE IN SECURED
TRANSACTIONS AND FINANCE SALES? 834 1.1.5 THE PROBLEMS OF AND NEED FOR
MODERN NON-POSSESSORY SECURITY INTERESTS IN PERSONAL PROPERTY AND THE
ALTERNATIVE USE OF FINANCE SALES. 836 1.1.6 FINANCE SALES AND SECURED
TRANSACTIONS DISTINGUISHED, THE RE- CHARACTERISATION ISSUE. DIFFERENT
RISK AND REWARD STRUCTURES. 841 1.1.7 FORMAL INTERNATIONAL HARMONISATION
ATTEMPTS IN THE AREA OF SECURED TRANSACTIONS AND FINANCE SALES. THE EU
SETTLEMENT FINALITY AND COLLATERAL DIRECTIVES. 846 1.1.8 NOTIONS OF
SEGREGATION AND PRIORITY. PROPRIETARY AND OTHER STRUCTURES OF
SEPARATION. BANKRUPTCY CONSEQUENCES. 849 1.1.9 PARTY AUTONOMY AND THE
CONTRACTUALISATION OR UNBUNDLING OF PROPRIETARY RIGHTS FOR FUNDING
PURPOSES. EQUITABLE PROPRIETARY RIGHTS. CLOSED OR OPEN SYSTEMS OF
PROPRIETARY RIGHTS? BONA FIDE PURCHASERS AND BONA FIDE CREDITORS
PROTECTION. GENERAL PRINCIPLES. THE EFFECT OF CONTRACTUAL NETTING
CLAUSES. 854 1.1.10 AUTONOMOUS TRANSNATIONAL AND DOMESTIC LEGAL
DEVELOPMENTS. 857 1.1.11 MAJOR DIFFERENCES IN DOMESTIC LAWS ON
PROPRIETARY FINANCIAL PROTECTION. SUBORDINATION AND ITS MEANING.
UNCERTAINTY IN INTERNATIONAL FINANCIAL DEALINGS. 860 1.1.12 THE IMPACT
OF THE APPLICABLE DOMESTIC BANKRUPTCY REGIME IN INTERNATIONAL FINANCIAL
TRANSACTIONS. THE US APPROACH AND THE EU BANKRUPTCY REGULATION. 864 1.2
THE SITUATION IN THE NETHERLANDS. 867 1.2.1 INTRODUCTION: THE NEW CIVIL
CODE OF 1992. 867 1.2.2 SECURITY SUBSTITUTES AND FLOATING CHARGES: THE
RESERVATION OF TITLE. 869 DALHUISEN ON TRANSNATIONAL AND COMPARATIVE
COMMERCIAL, FINANCIAL AND TRADE LAW 1.2.3 CONDITIONAL AND TEMPORARY
OWNERSHIP: THE LEX COMMISSORIA. 872 1.2.4 OPEN OR CLOSED SYSTEM OF
PROPRIETARY RIGHTS. 876 1.3 THE SITUATION IN FRANCE. 877 1.3.1
INTRODUCTION: THE VENTE A REMERE AND LEX COMMISSORIA. 877 1.3.2 THE
IMPACT OF THE NOTION OF THE 'SOLVABILITE APPARENTE'. 879 1.3.3 THE
MODERN REPURCHASE AGREEMENT OR 'PENSION LIVREE'. 880 1.3.4 THE
RESERVATION OF TITLE. 882 1.3.5 FINANCE SALES. THE PENSION LIVREE. THE
LOI DAILLY. 884 1.3.6. TITRISATION (FONDS COMMUNS DE CREANCES) AND THE
TRANSFER OF INTANGIBLE ASSETS IN FINANCE SCHEMES. 886 1.3.7 OPEN OR
CLOSED SYSTEM OF PROPRIETARY RIGHTS. 887 1.4 THE SITUATION IN GERMANY.
887 1.4.1 INTRODUCTION: THE DEVELOPMENT OF THE RESERVATION OF TITLE AND
CONDITIONAL TRANSFERS; FLOATING CHARGES. 887 1.4.2
SICHERUNGSIIBEREIGNUNG AND CONDITIONAL SALES. 892 1.4.3 FINANCE SALES.
895 1.4.4 CURBING EXCESS: OPEN OR CLOSED SYSTEM OF PROPRIETARY RIGHTS.
896 1.5 THE SITUATION IN THE UK. 898 1.5.1 INTRODUCTION: DIFFERENCES
FROM CIVIL LAW. 898 1.5.2 BASIC FEATURES OF CONDITIONAL OR SPLIT
OWNERSHIP INTERESTS. EQUITABLE AND FLOATING CHARGES. OPEN SYSTEM OF
PROPRIETARY RIGHTS. 900 1.5.3 THE DISTINCTION BETWEEN CONDITIONAL SALES
AND SECURED TRANSACTIONS: PUBLICATION REQUIREMENTS. 906 1.5.4
RESERVATION OF TITLE. 910 1.5.5 FINANCE SALES. 911 1.6 THE SITUATION IN
THE USA. 913 1.6.1 INTRODUCTION: THE APPROACH OF ARTICLE 9 UCC AND ITS
UNITARY FUNCTIONAL APPROACH TOWARDS FINANCE SALES. 913 1.6.2 THE UNITARY
FUNCTIONAL APPROACH AND FINANCE SALES: PROBLEM AREAS IN ARTICLE 9 UCC.
916 1.6.3 PROPRIETARY CHARACTERISATIONS. 921 PART II FINANCIAL PRODUCTS
AND FUNDING TECHNIQUES: MAJOR EXAMPLES OF SECURITY TRANSFERS AND FINANCE
SALES. OTHER FINANCIAL STRUCTURES. INTERNATIONAL AND REGULATORY ASPECTS.
924 2.1 FINANCE SALES AS DISTINGUISHED FROM SECURED TRANSACTIONS IN
CIVIL AND COMMON LAW: THE RECHARACTERISATION RISK. 924 2.1.1
INTRODUCTION. 924 2.1.2 THE PRACTICAL DIFFERENCES BETWEEN SECURITY- AND
OWNERSHIP-BASED FUNDING. THE RE-CHARACTERISATION ISSUE REVISITED. 927
2.1.3 LEGAL DIFFERENCES BETWEEN SECURITY- AND OWNERSHIP-BASED FUNDING.
THE EARLY OPERATION OF SPLIT-OWNERSHIP RIGHTS IN THE US. 929 2.1.4
NATURE, USE AND TRANSFERS OF CONDITIONAL AND TEMPORARY OWNERSHIP RIGHTS.
THE DIFFERENCE BETWEEN THEM. 939 CONTENTS XXXIX 2.1.5 THE DUALITY OF
OWNERSHIP IN FINANCE SALES. THE IMPACT OF THE FUNGIBILITY OF ASSETS. 945
2.1.6. INTERNATIONAL ASPECTS: PRIVATE INTERNATIONAL LAW APPROACHES TO
THE LAW APPLICABLE TO PROPRIETARY RIGHTS. BANKRUPTCY EFFECTS. 948 2.1.7
INTERNATIONAL ASPECTS: UNIFORM LAWS AND MODEL LAWS ON SECURED
TRANSACTIONS. THE EBRD EFFORT. 951 2.1.8 INTERNATIONAL ASPECTS: THE 2001
UNIDROIT CONVENTION ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT. 955
2.1.9 DOMESTIC AND INTERNATIONAL REGULATORY ASPECTS. 956 2.1.10
CONCLUDING REMARKS. TRANSNATIONALISATION. 957 2.2 MODERN SECURITY
INTERESTS: THE EXAMPLE OF THE FLOATING CHARGE 959 2.2.1 TYPES OF
FLOATING CHARGES OR LIENS. PROBLEM AREAS. 959 2.2.2. DIFFERENT
APPROACHES. COMPARATIVE LEGAL ANALYSIS. 962 2.2.3 MODERN PUBLICATION OR
FILING REQUIREMENTS. THEIR MEANING AND DEFECTS. RANKING ISSUES . 966
2.2.4 SPECIAL PROBLEMS OF BULK ASSIGNMENTS. 968 2.2.5 INTERNATIONAL
ASPECTS OF FLOATING CHARGES. LIMITED UNIFICATION ATTEMPTS. 971 2.2.6
DOMESTIC AND INTERNATIONAL REGULATORY ASPECTS. 972 2.2.7 CONCLUDING
REMARKS. TRANSNATIONALISATION. 973 2.3 MODERN FINANCE SALES: THE EXAMPLE
OF THE FINANCE LEASE. 974 2.3.1 RATIONALE OF FINANCE LEASING. 974 2.3.2
LEGAL CHARACTERISATION. 976 2.3.3 COMPARATIVE LEGAL ANALYSIS. 979 2.3.4
INTERNATIONAL ASPECTS OF FINANCE LEASING. 981 2.3.5CONVENTION OF 1988.
ITS INTERPRETATION AND SUPPLEMENTATION. 983 2.3.6 THE LEASING
CONVENTION'S SPHERE OF APPLICATION, ITS DEFINITION OF FINANCE LEASING.
985 2.3.7 THE PROPRIETARY ASPECTS. 987 2.3.8 THE ENFORCEMENT ASPECTS.
987 2.3.9 THE CONTRACTUAL ASPECTS. 988 2.3.10 THE COLLATERAL RIGHTS. 990
2.3.11 DOMESTIC AND INTERNATIONAL REGULATORY ASPECTS. 992 2.3.12
CONCLUDING REMARKS. TRANSNATIONALISATION. THE MOBILE EQUIPMENT
CONVENTION. 992 2.4 RECEIVABLE FINANCING AND FACTORING. THE 1988
UNIDROIT FACTORING CONVENTION AND THE 2001 UNCITRAL CONVENTION ON THE
ASSIGNMENT OF RECEIVABLES IN INTERNATIONAL TRADE. 994 2.4.1. ASSIGNMENT
OF MONETARY CLAIMS IN RECEIVABLE FINANCING AND FACTORING. THE ISSUE OF
LIQUIDITY. 994 2.4.2 RECEIVABLE FINANCING AND FACTORING: ORIGIN AND
DIFFERENT APPROACHES. 998 2.4.3 FACTORING: THE CONTRACTUAL ASPECTS. 1001
2.4.4 FACTORING: THE PROPRIETARY ASPECTS. 1002 2.4.5 INTERNATIONAL
ASPECTS. THE UNCITRAL AND UNIDROIT CONVENTIONS. INTERNATIONALITY AND
APPLICABILITY. 1005 2.4.6 THE UNCITRAL AND UNIDROIT CONVENTIONS. THEIR
CONTENT, FIELD OF APPLICATION, INTERPRETATION AND SUPPLEMENTATION. THEIR
ROLE IN THE LEX MERCATORIA APPROACH. 1009 XL DALHUISEN ON TRANSNATIONAL
AND COMPARATIVE COMMERCIAL, FINANCIAL AND TRADE LAW 2.4.7 DETAILS OF THE
UNIDROIT FACTORING CONVENTION. 1011 2.4.8 DETAILS OF THE UNCITRAL
CONVENTION. ITS OPERATIONAL INSUFFICIENCY. 1014 2.4.9 DOMESTIC AND
INTERNATIONAL REGULATORY ASPECTS. 1016 2.4.10 CONCLUDING REMARKS.
TRANSNATIONALISATION. 1016 2.5 ASSET SECURITISATION AND CREDIT
DERIVATIVES. 1017 2.5.1 ASSET SECURITISATION. 1017 2.5.2 SYNTHETIC
SECURITISATION. CREDIT DERIVATIVES OR CREDIT SWAPS. THE TOTAL RETURN
SWAP AND CREDIT SPREAD OPTIONS. 1021 2.5.3. RISKS IN FINANCIAL
ENGINEERING. THE ENRON DEBACLE. 1024 2.5.4 THE RECHARACTERISATION RISK
IN SECURITISATIONS. 1026 2.5.5 INTERNATIONAL ASPECTS. 1028 2.5.6
DOMESTIC AND INTERNATIONAL REGULATORY ASPECTS. 1028 2.5.7 CONCLUDING
REMARKS. TRANSNATIONALISATION. 1029 2.6 PAYMENTS, PAYMENT SYSTEMS, MONEY
AND BANK ACCOUNTS AS COLLATERAL. THE PRINCIPLES AND IMPORTANCE OF
SET-OFF AND NETTING. 1030 2.6.1 THE NOTION AND MODES OF PAYMENT THE NEED
FOR FINALITY. 1030 2.6.2. BANK-TRANSFERS AND PAYMENT SYSTEMS. PULL AND
PUSH SYSTEMS, CREDIT AND DEBIT TRANSFERS. 1033 2.6.3 THE LEGAL NATURE
AND CHARACTERISATION OF MODERN BANK TRANSFERS. THE BANK ACCOUNT AS A SUI
GENERIS RIGHT OF THE ACCOUNT HOLDER. 1035 2.6.4 CLEARING AND SETTLEMENT
OF PAYMENTS IN THE BANKING SYSTEM. 1038 2.6.5 SET-OFF AS A FORM OF
PAYMENT. 1041 2.6.6 THE EXPANSION OF SET-OFF THROUGH CONTRACTUAL NETTING
CLAUSES. THEIR SPECIAL IMPORTANCE IN CLEARING AND SETTLEMENT AND IN
BANKRUPTCY. 1044 2.6.7 INTERNATIONAL ASPECTS. EU SETTLEMENT AND
COLLATERAL DIRECTIVES. 1048 2.6.8 DOMESTIC AND INTERNATIONAL REGULATORY
ASPECTS OF NETTING IN PARTICULAR 1048 2.6.9 CONCLUDING REMARKS.
TRANSNATIONALISATION. 1049 2.7 INVESTMENT SECURITIES ENTITLEMENTS AND
THEIR TRANSFERS (EITHER OUTRIGHT, CONDITIONALLY OR AS SECURITY).
SECURITIES SHORTING, BORROWING, AND REPLEDGING. CLEARING AND SETTLEMENT
1049 2.7.1 MODERN INVESTMENT SECURITIES. DEMATERIALISATION AND
IMMOBILISATION. BOOK-ENTRY SYSTEMS AND THE LEGAL NATURE OF SECURITIES
ENTITLEMENTS. 1049 2.7.2 SECURITIES TRANSFERS: TIERED OR CHAINED
TRANSFER SYSTEMS. THE LEGAL CHARACTER OF THE SECURITIES TRANSFER AND ITS
FINALITY. 1053 2.7.3 SECURITIES SHORTING, SECURITIES LENDING, PLEDGING
AND REPLEDGING OF SECURITIES. THE NOTION OF REHYPOTHECATION. 1056 2.7.4
MODERN CLEARING AND SETTLEMENT. CENTRAL COUNTER PARTIES (CCPS) AND THEIR
SIGNIFICANCE. 1060 2.7.5 INTERNATIONAL ASPECTS. EU SETTLEMENT FINALITY
AND COLLATERAL DIRECTIVES AND THE HAGUE CONVENTION ON THE LAW APPLICABLE
TO CERTAIN RIGHTS IN RESPECT OF SECURITIES HELD WITH AN INTERMEDIARY.
1063 2.7.6 REGULATORY ASPECTS . 1066 2.7.7 CONCLUDING REMARK.
TRANSNATIONALISATION. 1067 2.8 INVESTMENT SECURITIES REPOS. 1067 2.8.1
THE REPURCHASE AGREEMENT AS A PRIME ALTERNATIVE TO SECURED LENDING: ITS
LEGAL CHARACTERISATION. THE EFFECT OF THE RIGHT TO ON-SELL THE
SECURITIES 1067 CONTENTS XLI 2.8.2 THE DEVELOPMENT OF THE REPO IN
FUNGIBLE INVESTMENT SECURITIES: SECURITIES LENDING AND THE BUY/SELL BACK
TRANSACTION. 1072 2.8.3 MARGINING. 1074 2.8.4 THE NETTING APPROACH IN
REPOS. CLOSE-OUT NETTING. 1075 2.8.5 THE TBMA/ISMA GLOBAL MASTER
REPURCHASE AGREEMENT. 1075 2.8.6 INTERNATIONAL ASPECTS. 1077 2.8.7
DOMESTIC AND INTERNATIONAL REGULATORY ASPECTS. 1078 2.8.8 CONCLUDING
REMARKS. TRANSNATIONALISATION. 1078 2.9 DERIVATIVES, THEIR USE AND
TRANSFERS. THE OPERATION OF DERIVATIVES MARKETS. CLEARING AND SETTLEMENT
AND THE FUNCTION OF CENTRAL COUNTER PARTIES (CCP'S). 1078 2.9.1 TYPES OF
FINANCIAL DERIVATIVES AND THEIR OPERATION. 1078 2.9.2 THE USE OF
DERIVATIVES. HEDGING. 1080 2.9.3 THE VALUATION OF DERIVATIVES, CONTRACTS
FOR DIFFERENCES. 1084 2.9.4 DERIVATIVES MARKETS AND THEIR OPERATIONS.
THE NOTION OF MARGIN. 1085 2.9.5 THE CONCEPT OF THE CENTRAL COUNTERPARTY
(CCP) AND ITS POTENTIAL. 1089 2.9.6 DERIVATIVES RISK AND NETTING FOR
SWAPS. 1091 2.9.7 LEGAL ASPECTS OF SWAPS. INTEGRATION AND CONDITIONALLY,
ACCELERATION AND CLOSE OUT. THE ISDA SWAP MASTER AGREEMENT. 1092 2.9.8
INTERNATIONAL ASPECTS. 1094 2.9.9 DOMESTIC AND INTERNATIONAL REGULATORY
ASPECTS. 1095 2.9.10 CONCLUDING REMARKS. TRANSNATIONALISATION. 1095 6
FINANCIAL SERVICES, PRODUCTS, RISKS AND REGULATION.
INTERNATIONALISATION, LIBERALISATION, AND RE- REGULATION. 1097 PART I
INTRODUCTION: FINANCIAL SERVICES ACTIVITIES, SERVICE PROVIDERS AND
FINANCIAL REGULATION. 1097 1.1 DOMESTIC AND CROSS-BORDER FINANCIAL
SERVICES. REGULATORY IMPACT 1097 1.1.1 FINANCIAL SERVICES AND FINANCIAL
REGULATION. 1097 1.1.2 THE RECYCLING OF MONEY. BANKING AND CAPITAL
MARKETS. 1098 1.1.3 FINANCIAL INTERMEDIARIES, THEIR OPERATIONS AND
REGULATION. FLOWS OF FINANCIAL SERVICES AND CAPITAL. MONETARY POLICIES.
1099 1.1.4 THE BASIC STRUCTURE OF FINANCIAL REGULATION. 1102 1.1.5 THE
OBJECTIVES OF MODERN FINANCIAL REGULATION. 1106 1.1.6 REGULATORY
OBJECTIVES AND MORAL HAZARD. STATUTORY REGULATORY AIMS. 1112 1.1.7
PRINCIPLE-BASED REGULATION. 1116 1.1.8 OFFICIAL AND UNOFFICIAL FINANCIAL
MARKETS. THE FUNCTIONAL APPROACH AND REGULATION OF PARTICIPANTS RATHER
THAN MARKETS. 1116 1.1.9 UNIVERSAL BANKS, CONGLOMERATE RISKS AND
SUPERVISION. 1120 1.1.10 MARKET ABUSE AND MISLEADING FINANCIAL
STRUCTURES 1122 1.1.11 INTERNATIONAL ASPECTS OF FINANCIAL REGULATION.
WHEN ARE FINANCIAL SERVICES INTERNATIONAL? 1124 1.1.12 INTERNATIONAL
FINANCIAL REGULATION. THE EU MODEL OR PASSPORT AND CONCEPT OF THE
GENERAL GOOD. 1128 1.1.13 THE INTERNATIONAL CAPITAL MARKET AND THE EU
PROJECT FOR A SINGLE EUROPEAN MARKET FOR FINANCIAL SERVICES. A SINGLE
EUROPEAN REGULATOR? 1130 XLII DALHUISEN ON TRANSNATIONAL AND COMPARATIVE
COMMERCIAL, FINANCIAL AND TRADE LAW 1.1.14 THE AMERICAN REGULATORY
APPROACH TO ISSUING ACTIVITY AND TO FINANCIAL SERVICES RENDERED IN THE
US BY FOREIGN ISSUERS AND INTERMEDIARIES. 1133 1.1.15 THE BASLE
CONCORDAT CONCERNING INTERNATIONAL BANKING REGULATION AND CONSOLIDATED
SUPERVISION. EFFORTS TO ACHIEVE A FRAMEWORK FOR INTERNATIONAL FINANCIAL
CONGLOMERATE SUPERVISION. THE JOINT FORUM. 1137 1.1.16 THE MODERN
INTERNATIONAL FINANCIAL ARCHITECTURE. THE FINANCIAL STABILITY FORUM.
1140 1.2 THE ESSENTIALS OF THE (COMMERCIAL) BANKING BUSINESS AND ITS
REGULATION. 1141 1.2.1 MAJOR ASPECTS OF BANKING. SUPERVISION AND THE
ROLE OF BANKS OF LAST RESORT. 1141 1.2.2 TYPES OF BANKS AND THEIR
OPERATIONS. 1144 1.2.3 COMMERCIAL BANKING PRODUCTS, UNSECURED AND
SECURED LOANS, LEASING, REPOS AND RECEIVABLE FINANCING, SYNDICATED
LOANS, TRADE FINANCE AND PROJ ECT FINANCE. 1146 1.2.4 COMMERCIAL BANKING
RISKS. 1149 1.2.5 BROAD AND NARROW BANKING. MARKET BASED MONITORING OF
BANKS. 1152 1.2.6 REGULATION AND BANKING REGULATORS. INTERNATIONAL
ASPECTS. 1154 1.2.7 INTERMEDIATION AND DESINTERMEDIATION OF COMMERCIAL
BANK 1156 1.2.8 THE BANKING OR CURRENT ACCOUNT RELATIONSHIP AND
AGREEMENT. A PUBLIC FUNCTION FOR BANKS? 1157 1.3 THE ESSENTIALS OF THE
SECURITIES BUSINESS AND ITS REGULATION. 1163 1.3.1 MAJOR TYPES OF
SECURITIES. NEGOTIABLE INSTRUMENTS, TRANSFERABLE SECURITIES AND
INVESTMENTS. BOOK-ENTRY SYSTEMS AND SECURITIES ENTITLEMENTS. 1163 1.3.2
SECURITIES MARKETS AND THEIR ORGANISATION. OFFICIAL MARKETS. 1168 1.3.3
UNOFFICIAL MARKETS, GLOBALISATION OF MARKETS, EUROMARKETS. 1170 1.3.4
THE PRIMARY MARKET AND SECURITY ISSUERS. INTERNATIONAL STYLE OFFERINGS.
1173 1.3.5 SECONDARY MARKET AND ITS TRADING SYSTEMS. 1173 1.3.6 INTERNET
OR ELECTRONIC TRADING. 1175 1.3.7 MODERN CLEARING, SETTLEMENT AND
CUSTODY. 1176 1.3.8 THE ROLE OF INVESTMENT BANKS AS UNDERWRITERS AND
MARKET MAKERS. 1179 1.3.9 THE ROLE OF INVESTMENT BANKS AS BROKERS AND
INVESTMENT MANAGERS. 1182 1.3.10 INSOLVENCY OF SECURITIES BROKERS. THE
NOTION OF SEGREGATION, TRACING AND CONSTRUCTIVE TRUST IN RESPECT OF
CLIENT ASSETS. 1184 1.3.11 INVESTMENT FUNDS OR COLLECTIVE INVESTMENT
SCHEMES. 1188 1.3.12 OTHER INVESTMENT BANKING ACTIVITIES. CORPORATE
FINANCE, MERGERS AND ACQUISITIONS, COMPANY VALUATIONS. 1190 1.3.13 THE
RISKS IN THE SECURITIES BUSINESS. SECURITIES REGULATION AND ITS FOCUS.
THE EUROPEAN AND AMERICAN APPROACHES. 1192 1.3.14 SECURITIES REGULATORS
. 1195 1.3.15 INTERNATIONAL ASPECTS OF SECURITIES REGULATION. 1196 1.4
MODERN FINANCIAL PRODUCTS. DERIVATIVES AND SECURITISATIONS. HEDGE FUNDS
AND THEIR OPERATIONS. PRIVATE EQUITY. 1198 1.4.1 MODERN DEVELOPMENTS IN
FINANCIAL PRODUCTS. 1198 1.4.2 THE USE OF DERIVATIVES. HEDGING. 1200
1.4.3 THE VALUATION OF DERIVATIVES. CONTRACTS FOR DIFFERENCES. 1203
CONTENTS XLIII 1.4.4 DERIVATIVES MARKETS AND THEIR OPERATIONS. CLEARING,
THE OPERATION OF CCP'S AND THE NOTION OF MARGIN. 1205 1.4.5 DERIVATIVES
RISK, NETTING AND REGULATION OF DERIVATIVES ACTIVITY. 1209 1.4.6 LEGAL
ASPECTS OF SWAPS. INTEGRATION AND CONDITIONALITY, ACCELERATION AND CLOSE
OUT. THE ISDA SWAP MASTER AGREEMENT. 1210 1.4.7 ASSET SECURITISATION.
LEGAL ASPECTS AND RISKS. 1212 1.4.8 SYNTHETIC SECURITISATION. CREDIT
DERIVATIVES OR CREDIT SWAPS. 1216 1.4.9 SECURITIES LENDING, SHORT
SELLING AND PRIME BROKERAGE. 1218 1.4.10 HEDGE FUNDS AND THEIR
OPERATION. 1219 1.4.11 PRIVATE EQUITY. 1219 PART II INTERNATIONAL
ASPECTS OF FINANCIAL SERVICES REGULATION; DEVELOPMENTS IN GATT, THE EU
AND BIS/IOSCO/IAIS. 1220 2.1 FREE MOVEMENT OF GOODS, SERVICES, CURRENT
PAYMENTS AND CAPITAL AFTER WORLD WARN. 1220 2.1.1 CROSS-BORDER MOVEMENT
OF GOODS. GATT. 1220 2.1.2 CROSS-BORDER PAYMENTS AND MOVEMENT OF
CAPITAL. IMF. 1222 2.1.3 CROSS-BORDER MOVEMENT OF SERVICES. GATS. 1223
2.1.4 THE WTO. 1225 2.2 THE CREATION OF THE EEC AND ITS EVOLUTION INTO
THE EU. 1227 2.2.1 THE COMMON MARKET AND MONETARY UNION. THE VARIOUS
PILLARS OF THE EU. 1227 2.2.2 THE EU INSTITUTIONAL FRAMEWORK AND
LEGISLATION INSTRUMENTS. 1232 2.2.3 DEFINITION OF CROSS-BORDER SERVICES.
CONNECTION WITH FREE MOVEMENT OF GOODS AND PERSONS AND WITH THE RIGHT OF
ESTABLISHMENT. 1234 2.2.4 RESTRICTIONS ON THE BASIC FREEDOMS. REGULATED
SERVICES AND THE GENERAL GOOD CONCEPT. 1237 2.2.5 THE USE OF THE NOTION
OF THE GENERAL GOOD IN THE EU. 1239 2.2.6 EARLY FAILURE OF FULL
HARMONISATION IN REGULATED FINANCIAL SERVICES. 1241 2.3 EARLY EU
ACHIEVEMENTS IN THE REGULATED FINANCIAL SERVICE INDUSTRIES. 1243 2.3.1
BANKING. 1243 2.3.2 DETAILS OF THE EARLY BANKING DIRECTIVES AND
RECOMMENDATIONS. 1243 2.3.3 MORTGAGE CREDIT. 1245 2.3.4 THE EARLY
SECURITIES AND INVESTMENTS RECOMMENDATIONS AND DIRECTIVES. 1245 2.3.5
UCITS. 1248 2.4 THE GLOBALISATION OF THE FINANCIAL MARKETS AND THE
EFFECT ON THE LIBERALISATION OF FINANCIAL SERVICES. 1249 2.4.1 AUTONOMY
OF THE INTERNATIONAL CAPITAL MARKETS. 1249 2.4.2 THE EARLY DEVELOPMENT
OF THE EUROBOND MARKET AND ITS MAIN FEATURES. EURODEPOSITS. 1249 2.4.3
FURTHER DELOCALISATION, COMPETITIVE DEREGULATION. SITUATION IN THE USA.
1252 2.4.4 THE LEGAL STATUS OF EUROMARKET INSTRUMENTS AND UNDERWRITING
PRACTICES. 1253 2.4.5 CENTRAL BANK INVOLVEMENT. 1254 2.4.6 EFFECTS OF
THE FREE FLOW OF CAPITAL IN THE EU. THE 1988 DIRECTIVE ON THE FREE
MOVEMENT OF CAPITAL. 1254 XLIV DALHUISEN ON TRANSNATIONAL AND
COMPARATIVE COMMERCIAL, FINANCIAL AND TRADE LAW 2.4.7 THE 1988 DIRECTIVE
AND THE REDIRECTION OF SAVINGS AND TAX AVOIDANCE ISSUES. THE 2003
SAVINGS TAX DIRECTIVE. 1255 2.4.8 THE 1988 DIRECTIVE AND THE MOVEMENT OF
FINANCIAL PRODUCTS AND SERVICES. 1257 2.4.9 THE 1988 DIRECTIVE AND
MONETARY AND EXCHANGE RATE ASPECTS OF THE FREE FLOW OF CAPITAL. THE 1997
STABILITY PACT. 1258 2.4.10 THE SINGLE EUROPEAN MARKET FOR FINANCIAL
SERVICES AND ITS RELATIONSHIP TO THE EUROMARKETS. 1259 2.5 DEVELOPMENTS
IN THE BIS, IOSCO AND IAIS. CAPITAL ADEQUACY (BASEL I AND BASEL II).
1259 2.5.1 THE FUNCTIONS OF THE BIS, IOSCO AND IAIS. 1259 2.5.2 THE BIS
CAPITAL ADEQUACY APPROACH FOR BANKS. THE BASLE I ACCORD. CRITICISM.
OTHER REGULATORY BIS INITIATIVES. 1261 2.5.3 CREDIT RISK, POSITION RISK
AND SETTLEMENT RISK. OFF-BALANCE SHEET EXPOSURES. 1263 2.5.4 THE RISK
ASSETS RATIOS, RISK WEIGHTINGS AND QUALIFYING CAPITAL UNDER BASEL I.
1264 2.5.5 1993 BIS PROPOSALS FOR NETTING, MARKET RISK AND INTEREST RATE
RISK. THE 1996 AMENDMENT. 1265 2.5.6 CRITICISMS. THE BUILDING BLOCK
APPROACH. DERIVATIVES RISK. 1267 2.5.7 CAPITAL ADEQUACY CALCULATIONS
UNDER BASEL I. THE LEVEL PLAYING FIELD FOR BANKS AND THE EFFECT OF A
CHANGE IN THE MINIMUM CAPITAL REQUIREMENT. 1269 2.5.8 THE 1999 BIS
CONSULTATION DOCUMENT AND THE 2001 BIS PROPOSALS. BASEL II AND THE
AMERICAN SHADOW COMMITTEE. 1272 2.5.9 CAPITAL ADEQUACY CALCULATIONS
UNDER BASEL II. 1277 PART III THE THIRD GENERATION OF EU DIRECTIVES
COMPLETING THE INTERNAL MARKET IN FINANCIAL SERVICES AND THE 1998 EU
ACTION PLAN FOR A SINGLE MARKET IN FINANCIAL SERVICES. 1282 3.1 THE NEW
EU APPROACH TOWARDS THE REGULATED FINANCIAL SERVICES INDUSTRIES
FOLLOWING THE LIBERALISATION OF THE CAPITAL FLOWS IN 1988. 1282 3.1.1
THE ESSENCE OF THE NEW APPROACH: MUTUAL RECOGNITION OF HOME COUNTRY
RULE. LIMITED HARMONISATION. THE EUROPEAN PASSPORT. 1282 3.1.2
CROSS-BORDER ACTIVITIES THROUGH AN ESTABLISHMENT OR THROUGH DIRECT
SERVICES. DIFFERENT EU AND US APPROACHES. 1284 3.1.3 RESIDUAL HOST
COUNTRY RULES, THE CONCEPT OF THE GENERAL GOOD AND ITS ABUSES. 1286
3.1.4 DIVISION OF TASKS. NO SINGLE EU REGULATOR. REGULATORY COMPETITION.
1290 3.1.5 INTERACTION WITH GATS. 1291 3.1.6 THE EU RECIPROCITY
REQUIREMENTS. RELATION WITH THIRD COUNTRIES. NATIONAL TREATMENT AND
EFFECTIVE MARKET ACCESS. 1291 3.2 THE THIRD GENERATION OF EU DIRECTIVES
AND THE 1998 EU ACTION PLAN FOR FINANCIAL SERVICES. 1292 3.2.1 THE MAIN
FEATURES. 1292 3.2.2 LAMFALUSSY REPORT AND THE ROLE OF COMITOLOGY. 1296
CONTENTS XLV 3.2.3 SBD/CID: HOME COUNTRY RULE REACH. RESIDUAL HOST
COUNTRY POWERS. THE CONCEPT OF THE GENERAL GOOD. 1297 3.2.4 SBD/CID:
SCOPE OF THE BANKING PASSPORT. UNIVERSAL BANKING. 1299 3.2.5 SBD/CID:
PROCEDURE FOR OBTAINING THE PASSPORT. HOME AND HOST COUNTRY
COMMUNICATIONS. 1299 3.2.6 ISD AND MIFID: BASIC STRUCTURE. BACKGROUND
AND SCOPE. 1300 3.2.7 ISD/MIFID: HOME COUNTRY RULE, AUTHORISATION,
CAPITAL, PRUDENTIAL RULES. PROCEDURE FOR OBTAINING THE PASSPORT. THE
CONCEPT OF THE GENERAL GOOD REVISITED. 1301 3.2.8 ISD/MIFID: CONDUCT OF
BUSINESS. 1302 3.2.9 ISD/MIFID: REGULATED MARKETS, CONCENTRATION
PRINCIPLE AND STOCK EXCHANGE MEMBERSHIP.THE COMPETITION OF MODERN
INFORMAL MARKETS. BEST EXECUTION. 1305 3.2.10 CLEARING AND SETTLEMENT.
1307 3.2.11 ISD/MIFID: MEMBER STATES COMMITTEE. 1307 3.2.12 THE 2003
PROSPECTUS DIRECTIVE (PD). THE ISSUER'S PASSPORT. 1307 3.2.13 THE 2003
TRANSPARENCY OBLIGATION DIRECTIVE(TD). 1311 3.2.14 THE EU APPROACH TO
CAPITAL ADEQUACY. 1311 3.3 OTHER EU REGULATORY INITIATIVES IN THE
FINANCIAL AREA. 1313 3.3.1 LARGE EXPOSURES. 1313 3.3.2 DEPOSIT
PROTECTION AND INVESTOR COMPENSATION. 1313 3.3.3 WINDING-UP OF CREDIT
INSTITUTIONS. 1313 3.3.4 PENSION FUNDS. 1314 3.3.5 INTERNATIONAL BANKING
SUPERVISION. BASLE CONCORDAT, EU IMPLEMENTATION, CONGLOMERATE
SUPERVISION . 1315 3.3.6 LEAD-REGULATOR CONCEPT. INTERNATIONAL
CO-OPERATION. 1316 3.3.7 THE E-COMMERCE DIRECTIVE. 1316 3.3.8
LONG-DISTANCE SELLING OF FINANCIAL PRODUCTS TO CONSUMERS. 1317 3.3.9 THE
TAKE-OVER BIDS DIRECTIVE. 1318 3.3.10 THE MARKET ABUSE DIRECTIVE. 1319
3.3.11 OTHER PARTS OF THE ACTION PLAN: UPDATE UCITS, ELECTRONIC MONEY,
MONEY LAUNDERING, CROSS-BORDER USE OF COLLATERAL, TAXATION OF SAVINGS
INCOME. 1319 3.3.12 PAYMENT SERVICES DIRECTIVE. 1320 INDEX 1321 |
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| author | Dalhuisen, Jan H. 1943- |
| author_GND | (DE-588)1045212563 |
| author_facet | Dalhuisen, Jan H. 1943- |
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| building | Verbundindex |
| bvnumber | BV022371952 |
| callnumber-first | K - Law |
| callnumber-label | K1005 |
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| callnumber-subject | K - General Law |
| classification_rvk | PU 1540 |
| ctrlnum | (OCoLC)84151357 (DE-599)BVBBV022371952 |
| dewey-full | 343.03 |
| dewey-hundreds | 300 - Social sciences |
| dewey-ones | 343 - Military, tax, trade & industrial law |
| dewey-raw | 343.03 |
| dewey-search | 343.03 |
| dewey-sort | 3343.03 |
| dewey-tens | 340 - Law |
| discipline | Rechtswissenschaft |
| discipline_str_mv | Rechtswissenschaft |
| edition | 3. ed. |
| format | Book |
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| id | DE-604.BV022371952 |
| illustrated | Not Illustrated |
| index_date | 2024-07-02T17:07:30Z |
| indexdate | 2024-07-09T20:56:11Z |
| institution | BVB |
| isbn | 9781841137094 |
| language | English |
| oai_aleph_id | oai:aleph.bib-bvb.de:BVB01-015581103 |
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| spelling | Dalhuisen, Jan H. 1943- Verfasser (DE-588)1045212563 aut Dalhuisen on transnational and comparative commercial, financial and trade law Jan H. Dalhuisen Transnational and comparative commercial, financial and trade law 3. ed. Oxford [u.a.] Hart 2007 LIX, 1359 S. txt rdacontent n rdamedia nc rdacarrier Früher u.d.T.: Dalhuisen, Jan H.: International commercial, financial and trade law Internationaal betalingsverkeer gtt Internationaal handelsrecht gtt Internationaal privaatrecht gtt Recht Commercial law Export sales contracts Foreign trade regulation International finance Law and legislation Internationales Handelsrecht (DE-588)4027429-9 gnd rswk-swf Internationales Finanzrecht (DE-588)4162091-4 gnd rswk-swf Internationales Handelsrecht (DE-588)4027429-9 s DE-604 Internationales Finanzrecht (DE-588)4162091-4 s Früher u.d.T. Dalhuisen, Jan Hendrik On international commercial, financial and trade law SWB Datenaustausch application/pdf http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&local_base=BVB01&doc_number=015581103&sequence=000001&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA Inhaltsverzeichnis |
| spellingShingle | Dalhuisen, Jan H. 1943- Dalhuisen on transnational and comparative commercial, financial and trade law Internationaal betalingsverkeer gtt Internationaal handelsrecht gtt Internationaal privaatrecht gtt Recht Commercial law Export sales contracts Foreign trade regulation International finance Law and legislation Internationales Handelsrecht (DE-588)4027429-9 gnd Internationales Finanzrecht (DE-588)4162091-4 gnd |
| subject_GND | (DE-588)4027429-9 (DE-588)4162091-4 |
| title | Dalhuisen on transnational and comparative commercial, financial and trade law |
| title_alt | Transnational and comparative commercial, financial and trade law |
| title_auth | Dalhuisen on transnational and comparative commercial, financial and trade law |
| title_exact_search | Dalhuisen on transnational and comparative commercial, financial and trade law |
| title_exact_search_txtP | Dalhuisen on transnational and comparative commercial, financial and trade law |
| title_full | Dalhuisen on transnational and comparative commercial, financial and trade law Jan H. Dalhuisen |
| title_fullStr | Dalhuisen on transnational and comparative commercial, financial and trade law Jan H. Dalhuisen |
| title_full_unstemmed | Dalhuisen on transnational and comparative commercial, financial and trade law Jan H. Dalhuisen |
| title_old | Dalhuisen, Jan Hendrik On international commercial, financial and trade law |
| title_short | Dalhuisen on transnational and comparative commercial, financial and trade law |
| title_sort | dalhuisen on transnational and comparative commercial financial and trade law |
| topic | Internationaal betalingsverkeer gtt Internationaal handelsrecht gtt Internationaal privaatrecht gtt Recht Commercial law Export sales contracts Foreign trade regulation International finance Law and legislation Internationales Handelsrecht (DE-588)4027429-9 gnd Internationales Finanzrecht (DE-588)4162091-4 gnd |
| topic_facet | Internationaal betalingsverkeer Internationaal handelsrecht Internationaal privaatrecht Recht Commercial law Export sales contracts Foreign trade regulation International finance Law and legislation Internationales Handelsrecht Internationales Finanzrecht |
| url | http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&local_base=BVB01&doc_number=015581103&sequence=000001&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA |
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