Legal Lights issue 21 by Thomson Reuters

CELEBRATING 125 YEARS OF SCRUTTON P26

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FEATURES

CONTENTS

LAYING DOWN THE LAW

CONFLICT OF LAWS, SHARIA RULES AND DISPUTE RESOLUTION

125TH ANNIVERSARY OF SCRUTTON

ALSO INSIDE 6 ARTICLE Laying down the Law

THE STATUTE OF THE INTERNATIONAL RENEWABLE ENERGY ACT

20 ARTICLE The Statute of the International Renewable Energy Act 26 ARTICLE – FEATURE Scrutton on Charterparties and Bills of Lading: 125th Anniversary Edition 34 ARTICLE Conflict of Laws, Sharia Rules and Dispute Resolution

Find out more: 0800 018 9797 helpdesk@lawtel.com lawtel.com

38 PRODUCTS 2011 Construction Titles from Sweet & Maxwell 40 AUTHOR PROFILE Dr Felix Hauck LL.M. 42 BOOKSHOP What’s new in our Book Shop 46 LEGAL BREAK

LEGAL LIGHTS • ISSUE 21

WELCOME

REUTERS/ Jose Manuel Ribeiro

WELCOME TO THE SUMMER ISSUE OF LEGAL LIGHTS This year sees some exciting new titles from our sister publishers in the US and Hong Kong, mentioned in this issue of Legal Lights. Our featured article, 125 years of Scrutton on Charterparties, explains how this book has developed since its first edition, 125 years ago. Now in its 22nd edition, it still remains a very poplar title in this area of the law.

Cover image: REUTERS/ Gary Hershorn

In this issue we also highlight upcoming editions from our Construction, Common Law Library, Shipping, Arbitration and Gas & Energy suites from Sweet & Maxwell, along with some interesting articles on each of these practice areas.

EDITOR Robyn Clayton robyn.clayton@thomsonreuters.com

Daniel Greenberg, speaks to us about his latest title, Laying Down the Law, which published in May.

DESIGN Khuong To, Thomson Reuters (Legal) in-house design

We hope you enjoy it! Robyn Clayton

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KEY LITIGATION TITLES COMING SOON… SEPTEMBER

Charlesworth & Percy on Negligence 1st Supplement to the 12th Edition

OCTOBER

NOVEMBER

DECEMBER

Arlidge, Eady & Smith on Contempt

McGregor on Damages

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OCTOBER

NOVEMBER

12 – 16 October/Frankfurt Frankfurt Book Fair

2 – 8 November/Ghana Ghana Book Fair

11 – 15 October/Dublin American Bar Association International Law Fall Meeting 30 October – 4 November/Dubai International Bar Association 31 October – 4 November/Miami UIA Miami

LEGAL LIGHTS • ISSUE 21

ARTICLE

LAYING DOWN THE LAW DANIEL GREENBERG

PARLIAMENTARY COUNSEL, 1991 – 2010

When one considers that there are few remaining areas of the law of the United Kingdom that are wholly or even mainly a product of the common law, it is a source of surprise, not to mention dismay, that those parts of university and other courses that deal with the mechanisms of the law continue to concentrate primarily on the development of the common law, and deal only cursorily, if at all, with the intricacies of the legislative 6

process. It is true that most students will, possibly as part of their English Legal System course, be given an outline of how the most commonly known forms of legislation are made; but considering that almost every practitioner in the law today has to construe and apply an increasing variety of kinds of legislation in the course of his or her daily practice, and considering how much attention the courts now permit themselves to

ARTICLE

THE AIM OF THE BOOK …TO EXPOSE SOME OF THE FINER DETAILS OF THE PRACTICE AND PROCESSES BY WHICH LEGISLATION IS MADE, AND TO INVITE THE READER TO DRAW CONCLUSIONS FROM THOSE DETAILS AT A PRACTICAL LEVEL.

REUTERS/Iean-Paul Pelissier

give to the Parliamentary and other political background to legislation in construing it, it is troubling how little attention is given to preparing lawyers to understand and apply the legislation that will form the framework of their entire practices. Everyone, of course, knows a little bit about the legislative process, as part of the general knowledge that we all pick up from the media and LEGAL LIGHTS • ISSUE 21

elsewhere. There are even some rather recondite details of legislation that are sufficiently often the subject of comment on the news to have become surprisingly familiar to those interested in practical politics: for example, most people who follow the political news will have heard of “ping pong” in its form not as a ballgame but as the process of dialogue between the two Houses of Parliament that takes place when a Bill reaches its final stages.

Although some of the finer details are surprisingly well-known, however, some of the most basic and important details, without which a person cannot expect to be able to understand and apply legislation correctly, are surprisingly and troublingly unknown. By the time the High Court judiciary are apparently incapable of recognising the difference between a financial provision that is inserted in a Bill in 7

REUTERS/ Kim Kyung-Hoon

ARTICLE

order to achieve a substantive effect in relation to the expenditure of public money, and a provision which is inserted purely for a transient purpose relating to Parliamentary procedure and having no intended legal effect beyond Royal Assent, it is clear that something needs to be done to further the education of the legal community generally in matters relating to the legislative process. This article is not, of course, the first occasion on which a concern of this kind has been raised; nor will it be addressed, if at all, by any one simple solution. As a modest contribution to progress in this area, however, the new book â&#x20AC;&#x153;Laying Down the Lawâ&#x20AC;?, to be published by Sweet and Maxwell in May 2011, offers legal practitioners and others with a strong interest in the legislative and political processes, an opportunity to benefit from the

authorâ&#x20AC;&#x2122;s twenty years of experience as Parliamentary Counsel. The aim of the book is to draw on that experience so as to expose some of the finer details of the practice and processes by which legislation is made, and to invite the reader to draw conclusions from those details at a practical level. For example, lawyers and politicians are by now all familiar with the basic concept of the rule in Pepper v Hart, according to which the courts now permit themselves to have recourse to Hansard for the purposes of construing legislation in instances of ambiguity. In Laying Down the Law, the author spends a few paragraphs on describing at some level of practical detail the different arrangements by which Ministers inform themselves, and are informed, during the process of debate; he invites the courts and others, therefore, to speculate on whether all

ARTICLE

ministerial pronouncements deserve to be given the same kind of weight, or whether the constraints under which some are produced suggest that they may be less than entirely reliable. The general scheme of the book is to divide the discussion into three areas: the first focuses on the different roles of different people in the legislative process – Ministers, special advisers, departmental lawyers, back-benchers, House authorities and others; the second focuses on aspects of the legislative process that may not be familiar even to those with some experience of politics – the legislative programme, the drafting process, the effect of the rules of scope, hybridity, the amendment procedures, Queen’s Consent and the financial rules of the Commons; and the last deals with a number of particular problems relating to the drafting and preparation of legislation – the balance between primary and secondary legislation, plain English, explanatory material, the use of examples, precedent, mistakes in legislation, purpose clauses and Pepper v Hart.

LEGAL LIGHTS • ISSUE 21

Particularly in the last section of the book, it is unashamedly an expression of the author’s own particular point of view, rather than purporting to be a balanced presentation of all possible arguments on each issue. The reader is not, however, likely to be misled; a chapter entitled “the Pestilential Power of Precedent” is a fairly predictably one-sided presentation of the argument in favour of innovation and experiment in legislative drafting. Since consistency has sufficient champions already, and appears to be advanced as a virtue that must be accepted without question, it is perhaps excusable to put the minority opposing view with a certain degree of force. The reader of this book will not find in it a large quantity of highly technical material. At the outset the author explains his intention not to attempt to reinvent the wheel, and redirects the reader to a number of other sources of detailed and purely technical information. This is much more of a commentary based on experience, although it certainly aims along the way to expose a number of practical details that will not be found elsewhere, including in Erskine May or any of the other standard technical works.

REUTERS/ Alessia Pierdomenico

It is hoped that the book will be of service to legal academics and practitioners, academics in the fields of politics and public affairs, and a range of others who need or wish to acquire additional information about how law is made. Daniel Greenberg is the author of Laying Down the Law, just published by Sweet & Maxwell.

REUTERS/ Kim Kyung-Hoon

INSPIRED TITLES FOR STUDENTS Sweet & Maxwell is the leading dedicated publisher of academic legal books and information services in the UK. We publish: – Over 150 textbook titles, covering every subject area and a range of difficulty levels – Nutcases and Nutshells revision guides, with a new look across 15 subjects – A range of legal skills and reference titles, popular with students around the world

Download your new Academic Stocklist at: sweetandmaxwell.co.uk/booksellers/ catalogues-stock.aspx

ARTICLE

RECENT DEVELOPMENTS IN KUWAIT’S CAPITAL MARKETS On 28 February 2010 Law No. 7 of 2010 regarding the establishment of the Capital Markets Authority (the “Law”) was published in Kuwait’s Official Gazette. With its promulgation an independent Capital Market Authority (the “CMA”) was established. The goal of the CMA is to serve as the regulatory body overseeing the Kuwait Stock Exchange (the “KSE”), companies listed on the KSE as well as all other securities related activities such as brokerage, credit rating services, clearing services, investment advisory services and collective investment schemes. Established in 1962, the KSE is the second oldest stock exchange in the Arab world after the Egyptian Exchange. Until the creation of the CMA the KSE was self regulated by a body called the KSE Committee,

which was overseen by the Ministry of Commerce and Industry. For many years the Kuwait government had been facing wide criticism that the KSE did not meet international standards. Insider trading was rampant, listing requirements were very loose and minority protection rights almost nonexistent all of which acted as a barrier to attracting capital into the country. In addition, the global financial crisis hit Kuwaiti investment companies considerably hard. The country has approximately 100 registered investment companies (46 of which are listed on the KSE) and several other industrial and real estate companies with large investment portfolios. Listed investment companies alone constituted about 20 percent of the total market capitalization of Kuwaiti listed companies at the end of the third quarter in 2008 and about 15 percent in 2009, a higher share than in most other industrialized economies. Although regulated by the Central Bank of Kuwait (the “CBK”), there was no in-depth oversight over their activities.

APPOINTMENT OF THE BOARD OF COMMISSIONERS As part of the implementation of the Law the Kuwaiti Cabinet in September 2010 passed a decree for the appointment of Board of Commissioners of the CMA. The Board of Commissioners consists of five members and is lead by the Chairman, Mubarak Al-Falah. Finding the right expertise that was free of the strict conflict of interest rules set out by the Law proved very difficult. The fact LEGAL LIGHTS • ISSUE 21

REUTERS/ Toru Hanai

>> 11

ARTICLE

Until the creation of the CMA regulatory oversight was shared… >>

that the appointment of the Board of Commissioners took six months following the promulgation of the Law was an ominous sign that the implementation of the Law would not be a simple task.

THE EXECUTIVE REGULATIONS As a first step, the Board of Commissioners was tasked with issuing and implementing the Executive Regulations which are designed to implement the Law (the “Regulations”). The Regulations came into effect on 13 March 2011. Prior to their enactment there had been no open debate or discussion between the CMA and market participants on the Regulations and market participants have clearly been taken by surprise by the strict requirements that they now need to comply with. The Regulations are divided into eleven chapters. The first four chapters include the definitions and individual chapters on the task, obligations and composition of the CMA, licensed stock exchanges (currently only the KSE) and clearing agencies. The fifth chapter covers all matters related to regulated entities and activities. This includes licensing requirements as well as compliance and reporting rules. This is followed by chapters on auditing and accounting of regulated entities, public takeover rules, the creation and management of investment funds, rules regarding the issuance of securities prospectuses, disclosure rules regarding interest and beneficiary holding of listed securities and finally a chapter on penalties and disciplinary matters.

DECISIONS AND GUIDELINES As part of the implementation of the Law and the Regulations the Board of Commissioners regularly 12

issues resolutions and guidance notes. To date the following areas have been addressed: (i) schedule of fees to be paid to the CMA for regulated activities, (iii) guidance on capital increases and decreases of shareholding company, (iv) registration requirements for auditors of entities regulated by the CMA, (v) requirements for the qualification of licensed persons to perform licensed activities and (vi) approving accepted accounting standards. Of the above resolutions issued by the Board of Commissioners, the most highly debated and controversial

resolution has been Resolution No. (2) of 2011, issued on 12 April 2011, on the fees payable to the CMA. In particular these fees proposed to be charged to foreign investment funds to market in Kuwait has been set at 1% of the total value of the units intended to be marketed in Kuwait. As this amount is uncapped it places a substantial financial burden and is potentially a major deterrent for foreign investment funds wanting to market their funds in Kuwait.

ARTICLE

be held in one portfolio entity (currently set at 10%) as well as borrowing restrictions. Irrespective of the fact that some of these requirements can not be fulfilled by many foreign investment funds, specifically private equity funds, these regulations will certainly lead to greater regulatory costs in order to ensure foreign investment fund sponsors remain in compliance with all of the rules and may discourage the marketing of such funds to investors in Kuwait, including sophisticated Kuwaiti investors who might otherwise be in a better position to judge the risks involved in making an investment than a retail investor.

FINDING ITS BEARINGS The CMA Law is clearly a step in the right direction to ensure better transparency, governance and the quality of securities activities in Kuwait. However, the manner in which the Law was rolled out, the lack of communication and guidance and fact that the new regulations are still flawed in many regards, has put the local market into a state of paralysis. It will take some time until the CMA and the market participants find their bearings in this new world.

THE RIGHT REGULATORY AUTHORITY Until the creation of the CMA regulatory oversight was shared between the KSE Committee for listed companies, the CBK for banks and investment companies and the Ministry of Commerce and Industry for corporate matters of all companies (including corporate registrations, shareholders meetings and the appointment and removal of board members).

REUTERS

FOREIGN INVESTMENT FUNDS Next to the high fees set for the marketing of foreign investment funds in the country, the Regulations include further hurdles for foreign fund operators to access Kuwaiti investors. These include the requirement to retain a CMA-licensed local promoter and distributor, the requirement to publish annual audited financial statements of each investment fund, the prior approval of the CMA to any amendments of the Articles of Association of an investment fund and limits on the amount of equity that can LEGAL LIGHTS • ISSUE 21

This existing framework, which at best could have been described as flawed, was flung into total disarray with emergence of the CMA. Regrettably, no guidance was issued in respect of the demarcation of oversight rights between the various existing regulatory authorities. Specifically the demarcation of regulatory oversight between the CBK and the CMA remains unclear. With the exception of public statements made by both the CMA and the CBK, including one statement that stated that investment companies would have to choose if they were to offer financial services or investment services, no official guidance has been issued on this question to date.

This article was prepared by Abdul Aziz Al-Yaqout, Regional Managing Partner of DLA Piper Middle East and Rami Zayat, Senior Legal Consultant of DLA Piper Kuwait. DLA Piper Kuwait is a joint venture between (NEN) Al Wagayan, Al Awadhi & Al Saif and DLA Piper Middle East LLP, which is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities.

For further information please refer to www.dlapiper.com

REACHING NEW HEIG A GLIMPSE OF WHAT OUR SISTER PUBLISHERS ARE PUBLISHING

PRODUCT

GHTS

BUSINESS LAWS SERIES FROM WEST Encompassing the major aspects and business laws of each nation’s legal systems. This series covers new titles written by experts from leading law firms in the region.

BUSINESS LAWS OF SAUDI ARABIA 2010 EDITION

Alem & Associates, Riyadh Office, in association with Attayyar Law Firm This title analyses the major aspects of the Saudi legal system and provides a comprehensive overview of the Saudi laws that are relevant to local and foreign investors conducting business in the kingdom. The 11 chapters cover corporate formation, taxation, intellectual property law, real estate, construction, and more. November 2010, 9780314930330 £110 / €83

BUSINESS LAWS OF KUWAIT AND QATAR 2011 EDITION

By DLA Piper Middle East, LLP This title encompasses the major aspects of the Kuwaiti and Qatari legal systems and provides an overview of the laws relevant to conducting business in Kuwait and Qatar. It provides foreign counsel and their clients with an excellent introduction to the various laws and practices affecting business investment and operations in these countries. Topics covered by the 28 different chapters include incorporation rules; taxation; employment; environmental law; intellectual property; and many more. March 2011, 9780314938398 £120 / €140 LEGAL LIGHTS • ISSUE 21

PRODUCT

CHINA LAW LIBRARY FROM SWEET & MAXWELL ASIA REUTERS/Ahmed Jadallah

BUSINESS LAWS OF LEBANON 2010 – 2011 EDITION

By Alem & Associates Written by a team of experts from a leading Lebanese law firm, this title explains the major aspects of the Lebanese legal system and provides a comprehensive overview of the Lebanese laws relevant to local and foreign investors conducting business in Lebanon. Each chapter highlights fundamental aspects of topics relevant to foreign investment. Includes English translations of selected Lebanese laws, updated annually March 2011, 9780314933201 £120 / €140

BUSINESS LAWS OF THE UNITED ARAB EMIRATES 2011 EDITION

By Akin Gump Strauss Hauer & Feld, LLP This title covers the major aspects of the country’s legal system and gives the reader a detailed overview about the UAE laws relevant to conducting business there, in particular by multinational corporations and investors. March 2011, 9780314600974 £120 / €140

MERGERS AND ACQUISITIONS IN CHINA Step by step procedures on initiating mergers and acquisitions including what courtesies must be followed. Mergers and acquisitions continue to be the most important topic for businesses in China. This title offers up-to-date analysis of key issues and pitfalls facing foreign businesses in M&A transactions. The authors, widely recognized for their knowledge of Chinese Law and procedure, can help you understand the actions you need to take and their possible outcomes, so your clients avoid legal and business difficulties. May 2011, 9789626613573 £233 / €338

PRODUCT

The China Law Library is a new reference library from Sweet & Maxwell Asia bringing you a comprehensive focus on corporate and commercial law and practice in China. Individual volumes within the series have been specifically written for practitioners by authors with international expertise and knowledge. Each title offers authors’ opinions and advice on the practical implications, presenting options for practitioners to follow. REUTERS/Nicky Loh

INTELLECTUAL PROPERTY RIGHTS IN CHINA Key insights, extensive analysis and relevant discussions from expert IP practitioners in China. Renowned author and editorial team of IP Practitioners in China Including advice from Dr. Zhipei Jiang, former Chief Justice of IPR Tribunal Supreme People’s Court of the PRC. Complete coverage • Trademark, copyright and patent laws • Topics include domain names, anti-unfair competition law, anti-monopoly law, and border control (among others)

COMPETITION LAW IN HONG KONG AND CHINA

SHAREHOLDERS AGREEMENTS & JOINT VENTURES IN CHINA

Provides confidence to practitioners and companies operating under China’s competition law regimes.

One-stop source that helps you educate yourself quickly and assist business clients.

China enacted an Anti-Monopoly Law in August 2008 that affects many companies operating in China. There are heavy fines for infringements of the law and threats of negative exposure for those who don’t fully understand how the new laws operate. Getting to grips with the real impact of the legislation is not easy; this book will give you a depth of understanding you will not find simply by reading the relevant legislation and official materials.

This title provides current, comprehensive information to establish effective, legally correct shareholder agreements and joint ventures in China. Its respected author, Owen D. Nee Jr., offers you the legal expertise he has gained from almost 30 years of assisting multinational corporations doing business in China. May 2009, 9789626613597 £287 / €417

May 2009, 9789626613597 £285 / €414

Feb 2011, 9789626614099 £233 / €338

For more information visit sweetandmaxwell.co.uk LEGAL LIGHTS • ISSUE 21

AUTHOR PROFILE

AUTHOR PROFILE DR. RAYMOND LEUNG

Prof. Leung, Raymond Hai Ming

Now the second largest economy in the world, China has made tremendous strides in recent years in bringing its legal and business infrastructure in-line with its economic profile on the world stage. Accordingly international practitioners from the UK and Europe need sophisticated, in-depth works written by those who have to tackle these matters on a daily basis so that they can ensure that their client’s interests are protected and deals structured properly.

China Arbitration Handbook with Tort Law in China planned for December of 2011. The plan for 2012 includes 4-5 more titles including Contract Law 2Ed, Trademark Law, and Insurance Law to name a few. The key strengths of the China Law Library titles are the editors, authors, contributors and the in-depth, practical approach. At Sweet & Maxwell Hong Kong we are literally able to assemble a ‘who’s-who’ of leading judicial and government officials, practitioners and academics, both local and international. A sampling of contributors to recent titles include: Dr. Zhipei Jiang, former Chief Justice of IPR Tribunal Supreme People’s Court of the PRC (Intellectual Property Rights in China), Owen Nee (Mergers and Acquisitions in China 2Ed), Dr. Raymond H. M. Leung (China Arbitration Handbook) among the many more. Individual volumes within the series have been written for practitioners offering authors’ opinions and advice on practical implications, presenting options and giving examples for practitioners to follow. Additionally,

the titles certainly have analytical elements that will also appeal to academics and their accessible style and practical nature further broaden their appeal to include business leaders in key industries that have transactional interests in China. In short, the titles comprehensively cover the hottest topics in business and legal discussions internationally about developments in China and are the reference books for doing business in China. And one of those hot areas of law and business in recent years in China (and greater Asia) is in the area of dispute resolution and arbitration. As the amount of business being done by UK, European and western companies in China continues to grow at an almost exponential rate, it’s inevitable that there are going to be more cases that require dispute resolution and arbitration. And as China continues to move away from its culturally traditional ways of entering into contracts and agreements and resolving disputes, towards adopting more western commercial and legal practices, there is, of course, an equally growing demand for advice and

Much of the feedback from the market on existing materials was that they were often too simplistic with a more academic approach. In creating the China Law Library we recognized that readers were looking for more sophisticated resources and that they wanted to hear from people who had hands-on, practical experience in these matters. With this in mind, The China Law Library from Sweet & Maxwell Hong Kong brings a comprehensive focus on corporate and commercial transactional law and practice in China. There are currently five volumes in print, including the just published Mergers and Acquisitions 2Ed and 18

REUTERS/David Gray

AUTHOR PROFILE

information from western businesses with interests in China on how to safeguard these interests. Speaking with the General Editor of the newest title in the series, the China Arbitration Handbook, Dr. Raymond Leung. An example he uses to illustrate the basic need for expert, practical advice is something as common as a UK or European developer or investor going to China to do business and that the usual way of doing that is to set-up a subsidiary. “If you find yourself in a dispute in China, under Chinese Law, you are required to go to arbitration or litigation in terms of the dispute,” Dr. Leung says, “and whether you’re a foreign or domestic business entity will have an impact on how this matter proceeds. Working through a subsidiary, do you know if your organization will be treated as a domestic or foreign entity?” There are differing views and debates about this, but even beyond this basic point, Dr. Leung points out that there are several different arbitration commissions and there been over 30 guidelines issued on arbitration law from the Supreme Court. So not only do you need a clear view on your legal standing as an entity, one has to choose the right arbitration commission.

“THE VENUE MUST BE VERY CLEAR, CHOOSE THE WRONG ONE, FOR EXAMPLE BEIJING RATHER THAN GUANGZHOU, AND IT’S POSSIBLE THE OUTCOME OF THE ARBITRATION WILL BE INVALID AND THAT THEN MAY LEAD TO LITIGATION

”

Selection of the right arbiter is key of course. In some commissions there are foreign arbiters, others only Chinese. What the Chinese Arbitration Handbook does (as do all the China Law Library titles) is provide expert guidance on these and other topics. LEGAL LIGHTS • ISSUE 21

REUTERS/Bobby Yip

Dr. Leung notes that contributors to the China Arbitration Handbook include Secretaries General from key Arbitration Commissions in China, a Supreme Court High Judge among many experienced practitioners. Additionally, there are well over 200 references within the book itself that will appeal to academics. But it is the practical nature of the book that makes it a, “brilliant reference book for doing business in China,” Dr. Leung. Prof. Leung, Raymond Hai Ming is an experienced mediator and arbitrator. He has been involved in a great number of mediation and arbitration cases related to construction, property, import/export, telecommunications, loan agreements and shareholders’ disputes. In addition to Prof. Leung’s position as Founding President and Governor of the Hong Kong Mediation Centre, he has promoted and provided training in mediation and arbitration for over 25 years. He was the General Editor of the book “Hong Kong Mediation Handbook” published by Sweet & Maxwell in 2009, Editor in Chief of the Hong Kong Mediation Centre’s Journal on Mediation. He was also the Past President of the Hong Kong Institute of Arbitrators and a member of the Working Party for the Reform of the Law of Arbitration and draft Arbitration Ordinance in Hong Kong. The Arbitration Ordinance was passed in November 2010. He was on the Law Reform Committee on the Conditional Fee. He is Member of the Building Department’s Appeal Tribunal Panel, Member of the Mediation Task Force of Department of Justice. He is teaching a Master

course in dispute resolution at the Hong Kong University of Science & Technology. He has also been appointed as an accredited mediator or arbitrator in a number of arbitration and mediation organizations in Hong Kong (HKIAC, HKMC), mainland China (CIETAC, Beijing, Wuhan, Guangzhou, Shenzhen, Dalian, Shenyang, Huizhou, Weihai, Xinjiang, & Harbin Arbitration Commissions) and overseas. Prof. Leung is also a qualified engineer of FICE, FASCE, FHKIE, PEng, RPE, FHKICM, FHKIArb, and Senior Member of IEEE, with a Master’s degree in Construction Management from the University of Toronto, Canada and a Doctor of Philosophy in Information Engineering from the Chinese University of Hong Kong. He is currently the Chief Executive Officer of C & L Holdings Ltd., involved in China business, contract advisory and investment. He has worked in both the property and construction sectors for major corporations for the last 34 years, including work for Gammon, Sun Hung Kai Property, Wharf, Dragages, and others. In addition to property and construction experience, Prof. Leung also has extensive experience in the telecommunications and information engineering sector, including fibre optics construction and data centres, etc. Prof Leung is also involved in a number of boards and committees in the Hong Kong community.

ARTICLE

REUTERS/Mario Anzuoni

International Energy Law Review 2011

THE STATUTE OF THE INTERNATIONAL RENEWABLE ENERGY AGENCY (IRENA): A ROAD SET FOR THE PROMOTION OF RENEWABLE ENERGY PETER KAYODE ONIEMOLA

Introduction It is now acknowledged internationally that moving towards sustainable energy includes the increase in the use of renewable energy sources.1 The growing consensus points to the fact that to cope with the challenges of increasing global energy demand, climate change and rising energy prices, the world needs a massive promotion of renewable energy.2 1

J. Gururaja, “Energy for Sustainable Development: Review of National and International Policies” (2003) 27 Natural Resources Forum, 53, 57.

“The role of IRENA in the Context of other International Organisations and Initiatives” http://www.irena.org/downloads/

The consensus on the important role of renewable energy has been both scientific and political.3 The need to address the problem of energy security, climate change and economic development are the main drivers for the promotion of renewable energy.4 The energy crises of the 1970s first created the impetus for the consideration of renewable energy as an alternative energy source to enhance energy security, which was later intensified by the growing concerns over climate change Role_IRENA_IO.pdf [Accessed April 11, 2011].

C. Fischer and L. Preonas, “Combining Policies for Renewable Energy: Is the Whole Less than the Sum of Its Parts?” http:// www.rff.org/documents/RFF-DP-10-19.pdf [Accessed April 11, 2011].

C. Fischer and L. Preonas, “Combining Policies for Renewable Energy: Is the Whole Less than the Sum of Its Parts?”

ARTICLE

in the 1990s.5 That is, the drive for renewables has been largely influenced by price volatility and later by climate change debates.6 With the increase in global energy consumption, rising prices of fossil fuels, depletion of fossil fuel resources, and the environmental problems associated with fossil fuels, the exclusive reliance on fossil fuel has negative consequences.7 The concerns identified above have led to concerted efforts to promote renewable energy by international institutions and nongovernmental organisations through their programmes and initiatives. Multilateral and bilateral institutions have in divergent ways sought to create support for renewable energy. However it was only recently that the international *I.E.L.R. 73 community established the International Renewable Energy Association (“IRENA”) under the Statute of IRENA, exclusively 5

C. Fischer and L. Preonas, “Combining Policies for Renewable Energy: Is the Whole Less than the Sum of Its Parts?”

United Nations Environment Programme and New Energy Finance Ltd, “Global Trends in Sustainable Energy Investment 2008”, cited in C. Clement-Davies, J. Blount, M. Girard, A. Evans and P. Woodruff, “Renewables investment” (2009) 6 International Energy Law Review 213, 213.

A. Nowamooz, “Inadequacy of Transmission Lines: A Major Barrier to the Development of Renewable Energy” (2008) 3 Environmental and Energy Law and Policy Journal, 176, 176.

LEGAL LIGHTS • ISSUE 21

devoted to the promotion of renewable energy. It is hoped that IRENA will create a road for the promotion of the use of renewable energy.

International Attention to Renewable Energy and the Emergence of IRENA Renewable energy is witnessing considerable growth with global attention placed on it. Renewable energy constituted 19 per cent of the world’s energy consumption in 2009.8 The growth rate of renewable energy capacity was between 10 and 60 per cent annually for many technologies from the end of 2004 through 2009.9 Efforts to enhance collaborative support for renewable energy through declarations and actions have been made by many international institutions. Some of these institutions are international lending institutions, which have contributed to financing renewable energy projects.10 Within 8

REN21, Renewables 2010 Global Status Report (REN21 Secretariat, Paris 2010), p.19.

REN21, p.19.

10 Richard L. Ottinger and Rebecca Williams, “Renewable Energy Sources for Development” (2002) 32(2) Environmental Law, 102, 141 – 142.

the UN system, different bodies have in varied ways been participating in energy related activities.11 The United Nations, through such agencies as the United Nations Development Programme (“UNDP”), United Nations Industrial Development Organization (“UNIDO”), United Nations Department of Economic and Social Affairs (“UNDESA”), the World Bank and the Global Environmental Facility (“GEF”) has contributed to the promotion of renewable energy.12 These agencies have been involved in capacity building, technical assistance, the funding of renewable energy projects and public-private partnership as outlined in their respective objectives and declarations. Using its programmes, the World Bank has been providing support for renewable energy policy and development, capacity building, investment financing and technical assistance either directly or in collaboration with other agencies

11 J. Gururaja, “Energy for Sustainable Development: Review of National and International Policies” at 56. 12 Y. O. Omorogbe, “Promoting Sustainable Development through the Use of Renewable Energy: The Role of the Law” in D. N. Zillman, C. Redgwell, Y. O. Omorogbe and L. K. BarreraHernandez (eds), Beyond the Carbon Economy: Energy Law in Transition (New York: Oxford University Press, 2008), p.47.

ARTICLE

such as the GEF. The World Bank spent $220 million on new renewable energy and $690 million on investment in large hydropower in 2007 with an additional $130 million in GEF co-financing.13 The World Bank Clean Technology Fund is intended to assist

REUTERS/Lucy Nicholson

publicly and privately financed projects in developing countries that deploy clean energy technologies.14 In 2009 the commitment of the World Bank alone to renewable energy was $1.38 billion and another $177 million on large hydropower, excluding GEF funds and carbon finance.15 GEF’s direct funding for renewable energy projects was $51.2 million, while associated cofinancing was $386.8 million.16 At regional level, efforts have also been geared towards the development of renewable energy. For instance, within 13 REN21, Renewables 2007 Global Status Report (REN21 Secretariat, Paris and Worldwatch Institute, Washington DC) 17. 14 A. Cosbey, J. Ellis, M. Malik, and H. Mann, Clean Energy Investment: Project Synthesis Report (Winnipeg: International Institute for Sustainable Development, 2008), p.41.

the European Union (“EU”), several efforts have been made to promote the development of renewable energy within the EU. The various directives of the European Parliament and Council17 and a range of actions and programmes have largely influenced *I.E.L.R. 74 the promotion and development of renewable energy in Europe.18 The New Partnership for Africa’s Development recognises the importance of meeting energy needs and has set goals for improved electricity access in rural areas of Africa.19 Various sub-regional initiatives exist in Africa, such as the Economic Community of West African State (“ECOWAS”), which has a Regional White Paper on a Renewable Energy Policy, as well the Southern Africa Development Community (“SADC”), which has signed its Energy Protocol.20 Many international non governmental organisations are emerging. They include the Renewable Energy 17 See for instance Council Directive (EC) 2001/77 on the promotion of electricity produced from renewable energy sources in the internal electricity market [2001] OJ L283; Council Directive (EC) 2003/30 on the promotion of the use of biofuels or other renewable fuels for transport [2003] OJ L123; Council Directive (EC) 2003/54 on common rules for the internal market in electricity [2003] OJ L176; Council Directive (EC) 2009/28 on the promotion of the use of energy from renewable sources [2009] OJ L140. See also Inigo del Guayo, “Biofuels: EU Law and Policy” in D. N. Zillman, C. Redgwell, Y. O. Omorogbe and L. K. Barrera-Hernandez (eds), Beyond the Carbon Economy: Energy Law in Transition, pp.265-286. 18 M. Durstewitz, “International Policies for Renewable Energy” in F. Kreith and D. Y. Goswami (eds), Handbook of Energy Efficiency and Renewable Energy (Roca Raton: Taylor & Francis Group, 2007) 1-14 to 1-18; Commission (EC), “Green Paper: European Union Strategy for Sustainable Competitive and Secure Energy” COM (2006) 105 final, 8 March 2006; Commission (EC), “An EU Strategy for Biofuels” COM (2006) 34 final, 8 February 2006; Commission (EC), “Renewable Energy Road Map -- Renewable Energies in the 21st Century: Building a more Sustainable Future” COM (2007) 848 final, 10 January 2007. 19 Omorogbe, “Promoting Sustainable Development through the Use of Renewable Energy: The Role of the Law” p.48.

15 REN21, p.29. 16 REN21, p.29.

20 Omorogbe, “Promoting Sustainable Development through the Use of Renewable Energy: The Role of the Law” p.49.

and Energy Efficiency Partnership, Renewable Energy Policy Network for the 21st Century, Johannesburg Renewable Energy Coalition, International Network for Sustainable Energy, Renewable Energy Policy Network for the 21st Century, International Renewable Energy Alliance, World Council for Renewable Energy, International Hydropower Association, National Hydropower Association, International Solar Energy Society and so on. There is a need to bring all the above initiatives into a common forum. Recognising this need, a preparatory conference for the establishment of IRENA was held from April 10 to 11, 2008 in Berlin, Germany. The process for the establishment of IRENA yielded a milestone on January 26, 2009 at Bonn, Germany, with the representatives of 124 states, the European Community, international organisations and 40 other organisations attending the conference on the establishment of IRENA.21 The conference passed a resolution on establishing a Preparatory Commission for IRENA with responsibility to prepare for the first meeting of the Assembly and the effective and early coming into force and implementation of the Statute of IRENA.22 The Statute of the International Renewable Energy Agency (IRENA) is the first 21 ‘Report of the Conference on the Establishment of the International Renewable Energy Agency’ (IRENA/FC/CR) http:// www.irena.org/downloads/Founconf/IRENA_FC_conference_ report_26_01_2009.pdf [Accessed April 11, 2011]. 22 Resolution on Establishing a Preparatory Commission for the International Renewable Energy Agency (IRENA). (IRENA/FC/ res.1) http://www.irena.org/downloads/Founconf/IRENA_FC_ conference_report_26_01_2009.pdf [Accessed 20 February 2011].

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REUTERS/Toby Melville

international law treaty that is created to specifically address the promotion of renewable energy at international level. The total number of signatories to the IRENA Statute is 149, with 56 countries already ratifying the statute as at February 21, 2011.23 The IRENA treaty came into force on July 8,

2010 upon its ratification by the 25th signatory by June.24 IRENA has its interim head quarters at Abu Dhabi, United Arab Emirates.25 The establishment of IRENA is an indication of the growing consensus 24 REN21, p.36.

23 http://www.irena.org/ourMission/index.aspx?mnu=mis [Accessed April 11, 2011].

LEGAL LIGHTS • ISSUE 21

on the need to promote renewable energy. The institutions carrying out various activities on the promotion of renewable energy are numerous and it is hoped that with IRENA, the activities of these institutions will be promoted under a single umbrella. IRENA is intended to create an environment for finance and know-how and collaborate

25 REN21, p.36.

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REUTERS/Mario Anzuoni

with other organisations on renewable energy. IRENAâ&#x20AC;&#x2122;s goal is ultimately to increase the share of renewable energy worldwide.26 As provided by Article II of the Statute of IRENA:

The Agency shall promote the widespread and increased adoption and the sustainable use of all forms of renewable energy, taking into account: a) national and domestic priorities and benefits derived from a combined approach of renewable energy and energy efficiency measures, and b) the contribution of renewable energy to environmental preservation, through limiting pressure on natural resources and reducing deforestation, particularly tropical deforestation, desertification and biodiversity loss; to climate protection; to economic growth and social cohesion including poverty alleviation and sustainable development; to access to and security of energy supply; to regional development and to intergenerational responsibility.

26 REN21, p.36.

Conclusion The importance of renewable energy in addressing climate change and energy needs is well acknowledged. Climate change becomes prevalent with the increase in fossil fuel combustion, industrial activities, deforestation and other anthropogenic activities. At international level, many forums have emerged for the generation of ideas on the promotion of renewable energy. Bilateral and multilateral bodies have been playing varied roles in the awareness, development of capacity building, investment and funding in renewable energy. The establishment of IRENA and the coming into force of the Statute of IRENA give credence to the important role of renewable energy. The pace and road to enhance international co-operation and promotion in the development of renewable energy and the gradual emergence of an all-encompassing treaty on renewable energy can be said to have been set through the Statute of IRENA.â&#x20AC;&#x192; Peter Kayode Oniemola27 27 Doctoral Research Candidate, School of Law, University of Aberdeen, Scotland.

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LEGAL LIGHTS • ISSUE 21

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ARTICLE – FEATURE

SCRUTTON ON CHARTERPARTIES AND BILLS OF LADING: 125TH ANNIVERSARY EDITION

T.E. Scrutton published the first edition of his seminal work on Charterparties and Bills of Lading in 1886. The book was instantly popular and has remained so: there have been twenty one subsequent editions, the latest of which – the 22nd – is being published by Thomson Reuters, Sweet and Maxwell 125 years after the book’s debut. Thomas Edward Scrutton was born into a ship owning family in 1856 and he grew up near the East India dock watching the arrival and departure of the family fleet. Scrutton did not follow his father and brother into the family firm: after leaving Mill Hill School he had a brilliant academic career, first at University College, London and then Trinity College Cambridge. However, through his family connections he retained a thorough understanding of the shipping trade, and it was the combination of this practical knowledge and the excellence of his legal scholarship which made Charterparties the leading shipping law textbook.

In the preface to that first edition Scrutton stated that he had “endeavoured to reduce the rather chaotic mass of details which make up commercial law to a series of principles in the form of a digest”, the law being set out “in the form of propositions with illustrative cases” ENDEAVOURED supplemented by TO REDUCE THE “notes discussing RATHER CHAOTIC the numerous legal MASS OF DETAILS difficulties which WHICH MAKE UP arise”: the familiar COMMERCIAL trinity of article, LAW TO A SERIES case illustration OF PRINCIPLES and notes which have featured in all IN THE FORM OF subsequent editions. A DIGEST That structure appears to have been heavily influenced by the codification movement of the nineteenth century, and the “digests” of cases which often preceded statutory codes. The reviews were favourable. “An entirely new work has long been needed and we are glad to

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ARTICLE – FEATURE

2 1

3, 4

find that is now been supplied”, the Law Times proclaimed, noting “as a practical and accurate work it would be difficult to improve upon it. It is clear, concise and not too exhaustive and for this reason we do not doubt that it will prove serviceable both to businessmen and to lawyers”. Frederick Pollock, in the Law Quarterly Review, thought that “it is no exaggeration to say that Mr. Scrutton’s mastery of his subject, from the point of view both of the lawyer and of the man of business, has enabled him to achieve as high a degree of success as the nature of the case would well admit”. Presciently, he concluded that “we shall be surprised if such a complete and well-executed work does not take a high place among standard text-books”. Due in part to his encyclopaedic knowledge of case law – he is said to have known his own book by heart Scrutton became one of the leading practitioners in the Commercial Court after it was established in 1895. Following his appointment to the Bench in 1910, and to the Court

of Appeal in 1916, he was involved in determining many of the leading cases on shipping law which he then annotated and analysed in his book. He also wrote a leading text on copyright law, although this ended with its fourth edition.

the greater part of these were called for because the previous print-run sold out. Their involvement came to an end with the 11th edition, and more particularly with the enactment of the Carriage of Goods by Sea Act 1924, bringing the Hague One of the distinguishing Convention IT IS NO EXAGGERATION features of Charterparties was – and legal TO SAY THAT MR. the rapidity with which new standardisation SCRUTTON’S MASTERY editions followed. The second of the terms on OF HIS SUBJECT, FROM edition took only three and a which goods THE POINT OF VIEW half years, and, in the manner would be carried of new editions, boasted “nearly BOTH OF THE LAWYER under bills of a hundred cases affecting its AND OF THE MAN OF lading – into contents” since its predecessor. BUSINESS, HAS ENABLED effect. The preface It was followed three years later HIM TO ACHIEVE AS HIGH to that edition, by the third, with “between A DEGREE OF SUCCESS published in 1923, seventy and eighty new cases”. noted “there is AS THE NATURE OF By 1904, and the fifth edition, at present before THE CASE WOULD his former pupil and colleague in Parliament a WELL ADMIT chambers Frank Mackinnon had Bill to amend joined in him in writing the book, the law with and they went onto produce a respect to the further six editions. Mackinnon was carriage of goods by sea” and asked also a commercial lawyer of distinction, that “the proposed legislation … also rising to the ranks of the Court receive the most careful consideration of Appeal. Happily for the authors, in Parliament” because “if there is any

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Thomas Edward Scrutton

First page of Scrutton first edition

3, 4. T E Scrutton in action

LEGAL LIGHTS • ISSUE 21

Scrutton first edition packshot

His appointment to the Bench in 1910 (overleaf)

ARTICLE – FEATURE

value at all in freedom of contract, it should not be interfered with except after full deliberation and the most urgent necessity”. Scrutton served for eighteen years in the Court of Appeal, including a particularly productive period with Sir John Eldon Bankes and Sir James Atkin in what is generally regarded as the strongest constitution of the English Court of Appeal to have sat. He was never promoted to the House of Lords – many blamed his temperament, which led city solicitors to instruct counsel to protest against his rudeness to them when he sat in the Commercial Court, and resulted in a very public falling out with another judge, Sir Henry McCardie, in 1932. Scrutton died on a golfing holiday in 1934, when aged 78.

For a book so closely associated with its author that there must have been doubts as to whether it could survive without his hand on the tiller. However, the book passed into the safe hands of S.L. Porter and W.L. McNair – the first a future Lord of Appeal, the second a distinguished High Court judge. They in turn have been succeeded by Sir Alan Mocatta, Lord Mustill and Stewart C. Boyd Q.C. For its 22nd edition, Scrutton on Charterparties welcomes its first judicial editor since Sir Alan Mocatta, following the appointment of Sir Bernard Eder – the book’s general editor and leader of the team of authors - to the High Court Bench. Like Scrutton, Sir Bernard practiced as one of the leading shipping and commercial lawyers at the bar, and like Scrutton began his judicial career by moving from the world of bills of lading, charterparties and insurance slips to trying serious crime on the North East Circuit. The remainder of the editorial team comprises Professor Howard Bennett, Steven Berry Q.C., David Foxton Q.C. and Chris Smith Q.C.

The new edition comprehensively reviews the new authorities in England and other Commonwealth jurisdictions since the 21st edition was published in 2008. In addition, in order to mark the 125th anniversary, it includes an extended biographical note on Scrutton, and a number of features which those lucky enough to own a copy of the first edition will recognise. If the book is half so well received as its illustrious forebear, the editorial team will be delighted.

CELEBRATING THE 125TH ANNIVERSARY OF THIS CeLeBratinG the 125th CLASSIC TEXT anniverSary oF thiS CLaSSiC text SCRUTTON ON CHARTERPARTIES AND BILLS OF LADING Sir Bernard eder, Steven Berry QC, david Foxton QC, ChriStopher Smith QC, proFeSSor howard Bennett

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• Lays out the nature, validity, and construction of each type of Charterparty • Provides a first port of call for research when drafting and disputing contracts September 2011, 978-0-414-04590-3 £285 / €406

• Covers the 100 new related cases since the last edition • Special features for the 125th Anniversary Edition include a biography of Scrutton written by the authors, articles and obituaries on Scrutton, plus a re-examination of key historic cases

• Provides a guide to the nature and uses of a Bill of Lading • Covers 50 types of bills and waybills • Provides a detailed analysis of common standard form clauses and examines the legal principles that apply to them • Includes a new Chapter providing key commentary on the Rotterdam Rules • Includes all the important new cases and Supreme Court decisions November 2011, 978-0-414-04852-2 £350 / €508

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LEGAL LIGHTS • ISSUE 21

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CONFLICT OF LAWS, SHARIA RULES AND DISPUTE RESOLUTION ARBITRAL TRIBUNALS; CONFLICT OF LAWS; ISLAMIC LAW ZIA AKHTAR The adoption of Sharia law in the United Kingdom is leading to the expanded powers of adjudication for the Muslim Arbitration Tribunal.

The Arbitration Act 1996 has created alternative avenues for solving disputes that have circumvented the courts in England.1 It provides procedures for overcoming private international law issues where they relate to jurisdiction, choice of law and recognition of foreign judgments. These avenues have been added to with the inauguration of the Muslim Arbitration Tribunal (the MAT) in 2007 whose awards are recognised in the UK courts and enforced in the same way as a court ruling or other arbitral award. This forum is a civil jurisdictional tribunal and encompasses a broad autonomy for developing a corpus juris in different branches of law. The MAT came into being as an adjunct to the courts by its remit which was to process disputes between Muslims in personal and commercial law. Its preamble is set out in the Rules of Procedure and states that the MAT is, “a viable alternative for the Muslim community seeking to resolve disputes in accordance with Islamic Sacred Law and without having to resort to costly and time consuming litigation.”2 There are at least two members on its panel, one a scholar of Sharia law and the other a qualified lawyer in England or Wales. The tribunal’s remit extends to matters dealing with forced marriages and domestic violence, including the Forced Marriage (Civil Protection) Act 2007, inheritance disputes and commercial and debt disputes.

a viable alternative for the Muslim community seeking to resolve disputes in accordance with Islamic Sacred Law and without having to resort to costly and time consuming litigation

There is potential to extend the jurisdiction of the MAT to the financial REUTERS/Stefan Wermuth andbusiness sector in which it can exercise Islamic trust principles. This hasbrought the MAT into the limelight. The extension of the MAT’s jurisdiction into these sectors is possible thanks to the notion that contracts concluded abroad based on a foreign law can be administered by a court in England and the fact that the United Kingdom government has sactioned Sharia based jurisdiction in the United Kingdom.3 The approval of the UK Government came seven months after the Archbishop of Canterbury, Rowan Williams suggested that the establishment *

The author is Zia Akhtar who is a member of Grays Inn and an expert on international minority affairs. He has written articles in many UK and international journals including Trust Law International, Solicitors Journal, Judicial Review, Leeds and Yorkshire Lawyer, Muslim Lawyer and the Contemporary Issues in Law Journal.

Section 1 of the Arbitration Act 1996 that states that the “the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest that where there can be settled out of court”.

See http://www.matribunal.com/procedure_rules.html [Accessed March 23, 2011]

Abul Taher, “Revealed: UK’s first official Sharia courts” Sunday Times, September 14, 2008.

ARTICLE

of Sharia law courts in the future “seems unavoidable” in Britain4 and the then Lord Chief Justice Lord Phillips heralded the start of reliance on Muslim law in the settlement of marital and financial disputes.5 He was quoted as suggesting that there was no reason why religion could not be the basis for mediation or the resolution of disputes in various communities and that those communities could be governed by their own laws to the extent permitted within the confines of English law.6 In the field of family law the MAT has been proactive and issued a report that has been critical of forced marriages. The report entitled “Liberation from Forced Marriages”7 stated, “that over 70% of the marriages which include a foreign spouse have some element of coercion or force and the true extent was that it was not in the hundreds but in the thousands.” Section 6.2 of the report recommends that the British citizen sponsoring a foreign spouse to settle in the United Kingdom should be invited by voluntary submission to give an oral deposition to the Judges of the MAT, to satisfy them that the marriage entered into was neither forced nor coerced. The voluntary deposition, if successful, would result in a written declaration from the MAT that the marriage was entered into without any force or coercion. However, it is in the field of commercial law that the tribunal now stands at a crossroads. An incentive to expand into this field has, since August 2010, been provided by the issuance of Sharia compliant bonds registered by Islamic banks in the United Kingdom. These have the potential to increase the stock exchange transactions of sukuks exponentially.8 The British government has introduced these assets into the commodities market giving them a global range. There are reported to be US$19 billion of Sharia compliant assets in the UK9 providing two million Muslims in the United 4

See http://www.alarabiya.net/articles/2008/02/08/45353.html [Accessed March 23, 2011].

Lord Phillips was the first Chief Justice to be appointed under the Constitutional Reform Act of 2005 when he took over the role of the head of the judiciary from the lord chancellor.

See http://www.telegraph.co.uk/…/Muslims-in-Britain-should-be-able-to-live-under- Sharia-law-says-top-judge.html [Accessed March 23, 2011]. Similar

See http://www.matribunal.com/…/MAT%20Forced%20Marriage%20Report.pdf [Accessed March 23, 2011]. Similar

The Accounting and Auditing Organisation for Islamic Financial Institutions has given the definition of sukuk as amounting to the “certificates of equal value representing undivided shares in the ownership tangible assets, usufructs and services or (in the ownership of) the assets of particular projects or special investment activity”.

International Financial Services London report published January 2010 at http://www.ifsl.org.uk/media/2373/IFSL_Islamic_Finance_2010.pdf [Accessed March 23, 2011].

LEGAL LIGHTS • ISSUE 21

REUTERS/Beawiharta Beawiharta

ARTICLE

Kingdom with the opportunity to invest in shares and be governed by rules that prohibit interest or riba payments.10 The fiscal framework that will enable the MAT to act as a forum is backed by regulations in the Financial Services and Markets Act 2000—(Regulated Activities) (Amendment) Order 2010. This ordinance exempts certain taxation requirements for Muslims as long as they conform with the Financial Service Authority’s statutory objectives.11 It will enable them to operate their investment portfolios by purchasing the bonds that the Accounting and Auditing Organisation for Islamic Financial Institutions designated a “sukuk”. These amount to the, “certificates of equal value representing undivided shares in the ownership of tangible assets, usufructs and services or (in the ownership of) the assets of particular projects or special investment activity.”12 The infrastructure in place to deal with the workings of the MAT emanates from the legal schools that exist in the country. There are knowledgeableexperts in Britain who can interpret the terms of reference recognised by the Schools of Islamic law. These ensure there is expertise available in the form of educational institutions through more than 50 colleges in the United Kingdom providing Sharia compliant finance qualifications. The Chartered Institute for Securities and Investment has a program of diplomas and the Islamic Finance Council UK has worked with the CISI to develop a pioneering Scholar Professional Development diploma which teaches conventional finance to Sharia scholars on an international basis. It is in its discretion to ignore the contractual principles of the common law that the MAT is an innovation. The UK courts have traditionally determined disputes on the basis of inferring expert evidence of foreign law based on its own inherent jurisdiction—not on limiting its jurisdiction under prior agreements that are framed under a religious code. If the position of the parties is that their terms will be governed under the Sharia based principles then the MAT will be the most appropriate forum in which to air disputes. The precedent for this can be found in the Court of Appeal ruling in Musawi v RE International (UK) Ltd.13. The parties asserted that their contracts both before and after 1990 were regulated by Shia Sharia legal principles that voided the effect of the Contracts (Applicable Law) Act 1990.14 The Court held that the “law” in an agreement that has an arbitration clause chosen under s.46(1)(b) of the Arbitration Act 1996. Its scope “allows the 10 Riba is a loan with the condition that the borrower will return better and more than the amount that has been lent. http://www.inter-islam.org/ Prohibitions/intrst.htm#Illegal [Accessed March 23, 2011]. 11 The Financial Services and Markets Act 2000 (FSMA) sets out four statutory objectives which are market confidence —maintaining confidence in the financial system; financial stability—contributing to the protection and enhancement of the UK financial system; consumer protection— securing the appropriate degree of protection for consumers; and the reduction of financial crime—reducing the extent to which it is possible for a business to be used for a purpose connected with financial crime. See http:wwwfsa.govuk/pages/about/aims/statutory/index shtml [Accessed March 23, 2011]. 12 See http://www.aaoifi.com/aaoifi_sb_sukuk_Feb2008_Eng.pdf [Accessed March 23, 2011]. 13 Musawi v RE International (UK) Ltd [2007]EWHC 2981 (Ch). 14 Section 2 (2) states that arts 7(1) and 10(1) of the Rome Convention shall not have the force of law. http:www.legislation.gov.uk/ ukpga/1990/36/section/2[Accessed March 23, 2011].

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REUTERS/Goran Tomasevic

parties the freedom to apply a set of rules or principles which do not in themselves constitute a legal system”. Such a choice may thus include a non-national set of legal principles (such as under the 1994 UNIDROIT Principles of International Commercial Contracts) or, more broadly, general principles of commercial law or the lex mercatoria.15 In this instance the parties had agreed that the Ayatollah Araki, who by common agreement has “at all material times been a highly qualified Shia Islamic scholar and Islamic judge” and would arbitrate any dispute that may arise from their contract. At the time of the arbitration he was President of the Islamic Centre in England which is a centre for the teaching of Shia Islam. The Court gave effect to the arbitration agreement and the common law position was held to be in accordance with that interpretation.The interpretation of contracts that have been concluded abroad will raise issues of public policy and jurisdiction that have to be addressed by the English courts. However, the developing consensus seems to be that there is room for Sharia law to exist as a parallel source of law in those aspects of adjudication where there is a legally binding contract that can be enforced under English law. The development of the MAT will allow the resolution of disputes by recourse to religious principles thanks to the exemptions stated in the Arbitration Act. 15 http://www.unidroit.org/english/principles/contracts/main.htm [Accessed March 23, 2011].

This article has been taken from the International Arbitration Law Review 2011 published by Sweet & Maxwell. Also available on Westlaw UK Vol 14 Issue 2, ISSN: 1367-8272

LEGAL LIGHTS • ISSUE 21

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John Scriven and Nigel Pritchard

Assisted by contributors from Keating Chambers

• Presents a guide to the components of engineering, procurement and construction contracts and associated contracts employed in major projects.

• Provides detailed commentary on all issues relating to construction contracts

• Examines the issues arising in respect of contracts related to EPC contracts including letters of intent, bonds and guarantees and direct agreements • Covers other related project contracts including: joint venture agreements and consultant’s appointments September 2011 978-0-414-04518-7 £215 / €312

NEW 9TH EDITION

• Up-to-date references to case law, journals and other source material • Includes Commentary on JCT Standard Form of Building Contract and Nominated Sub Contract December 2011 978-0-414-0479-2 £395 / €573

PRODUCT

NEW TITLE

NEW 4TH EDITION – OUT NOW

KEATING ON NEC CONTRACTS

CONSTRUCTION INSOLVENCY

David Thomas QC assisted by a team from Keating Chambers

Richard Davis

• Goes through the aims and creation of the NEC • Explains the structure of ECC contracts and clarifies how the contract works in practice • Gives you practical guidance on drafting and interpreting the contract helping you to find the best way to use the contracts for your situation November 2011 978-1-847-03331-4 £179/ €260

LEGAL LIGHTS • ISSUE 21

Security, Risk and Renewal in Construction Contracts • Provides commentary and critical analysis on the principles of law behind construction insolvency • Provides comprehensive coverage of case law across the UK and Commonwealth • Includes brand new sections and a case study by Neil Burton April 2011 978-0-414-04609-2 £180 / €261

AUTHOR PROFILE

DR FELIX HAUCK LL.M. In this issue we speak to Dr Felix Hauck, Attorney at Law for Dompatent and author of the first edition of Practitioner’s Manual for Trademark Prosecution and Litigation in the EU

The Practitioner’s Manual for Trademark Prosecution and Litigation in the EU creates a new genre of trademark law literature. As the book title already indicates, it targets international trademark professionals, in particular trademark attorneys and trademark lawyers. It provides them with the know how they need to handle their clients’ European trademark matters in a smart and efficient way. The Practitioner’s Manual not only conveys a basic understanding of the Community Trademark law, the Member States’ trademark laws and their respective procedural rules; it also contains very practical information, such as useful weblinks, fee schedules and case law statistics. Furthermore, the book’s clear structure and the FAQ format used for the country sections make it easy to find the information needed in a very short time. The author, Dr Felix Hauck has been practicing trademark law for more than 10 years with a focus on international trademark work. He is head of the trademark and design litigation department of the renowned German IP attorney firm von Kreisler Selting Werner in Cologne. He has carefully chosen a multinational team of experienced and well-esteemed trademark practitioners who added sections for the U.K., France, Italy, Spain and eight other Member States to his German country section.

What prompted you to write this book? I missed a book that contains all the kind of information which a trademark practitioner often needs for his daily practice. A typical example: A client thinks about filing an opposition against a similar trademark application in Spain. What information do I need to give the client a well-balanced advice? I should know about the registration details of the conflicting marks, the amount of official fees and lawyers’ fees for the opposition proceedings, the duration of the opposition proceedings, the stages and cost of appeal, the deadlines and so on. Of course, it would be possible to contact a local lawyer to obtain all the required information. But that normally takes more time – time your client may not want to pay for, if the trademark matter is not that important, or time you do not have, if your client wants to give you the necessary instructions immediately to get the matter off the table.

What does the book cover? The first part of the book covers with all due brevity the harmonized EU trademark law on which the national trademark laws of the Member States are based. In particular, it includes a short commentary on the EU trademark directive with the most practice-relevant decisions of the European Court of Justice. The second part deals with the specific Community trademark system that co-exists with the national trademark systems of the Member States. It outlines in a FAQ format the judicial system, the different proceedings before the Office for Harmonisation of the Internal Market and the procedure to enforce a Community trademark.

The third part sets out ways of obtaining and enforcing trademark rights in the single EU Member States. In a country by country approach, the Manual briefly explains the available trademark prosecution proceedings before the national trademark offices and the ways to enforce a national trademark or a Community trademark in court and out of court. The country by country analysis includes topics which are particularly relevant for practitioners such as fees and reimbursement of fees, deadlines and legal remedies. All in all, 13 Member States are covered including Germany, the U.K., France, Italy and Spain. The Manual ends with a presentation of trademark prosecution & litigation strategies. This is a very interesting field. On the prosecution side, the co-existence and the interplay between the Community trademark system, the Madrid system and the national systems offer a wide variety of filing options. I have chosen some typical filing situations to compare the systems as regards the cost and the chances of registering, maintaing and enforcing trademarks in the EU. At the enforcement level, litigators should be well aware of the differences between enforcing a Community trademark and a national trademark. So, claimants litigating on the basis of a Community trademark may, for example, chose between different jurisdictions in specific cases.

What makes the book so valuable for international trademark practitioners? The Practitioner’s Manual is specifically tailored to the international dimension of today’s trademark work. Most international clients want to have one central legal advisor who co-ordinates

AUTHOR PROFILE

all trademark matters in a cost-efficient and effective way - regardless of where they occur. This takes more than simply outsourcing work to local trademark attorneys. The central advisor must form an opinion on whether and to what extent it makes sense from a commercial point of view to take action abroad. The Practitioner’s Manual provides useful information for this opinion-making process. It is absolutely clear that the book cannot replace and is not meant to replace a local attorney’s advice in individual cases. However, it may serve to improve the supervision of and the communication with the local attorneys. Having a basic understanding of the possible courses of action and the related cost is certainly of great use for discussing the best possible route of action with your local attorney.

Is the book also useful for trademark professionals from outside the EU? Yes, definitely! The Practitioner’s Manual also outlines the main features of the EU, the harmonised EU trademark law and the Community trademark system. This is a very good starting point for trademark professionals who have not dealt with European trademark matters so far.

PRACTITIONER’S MANUAL FOR TRADEMARK PROSECUTION AND LITIGATION IN THE EU Dr Felix Hauck ISBN: 978-0-414-04621-4 Hardback, October 2011 £125/ €182

The Practitioner’s Manual for Trademark Prosecution and Litigation in the EU brings together in one place all the practical information needed for obtaining and enforcing trademark rights in the EU. Setting out the information country by country for the 13 most important EU Member States and the EU and structured to mirror the workflow of trade mark enforcement, it provides quick, clear reference for those unaccustomed to the laws of the country being researched. Complete coverage:

• Adopts a country by country approach, making it easy to compare proceedings for enforcement claims for each jurisdiction • Shows how the trademark laws of the EU member states have been harmonised, as well as looking at the non-harmonised areas of law • Brings you commentary on the Community Trademark Directive including the must-know decisions of the European Court of Justice, in particular with respect to the question of likelihood of confusion

LEGAL LIGHTS • ISSUE 21

BOOK SHOP

WHAT’S NEW IN PERSONAL INJURY Facts and Figures General Editor: Robin de Wilde QC • Brings together all the information needed for assessing special damages information • Provides up-to-date financial and statistical information – updated annually • Includes the 6th edition of the Ogden Tables October 2011 9780414047730 £54 / €79

BANKING AND FINANCE Practical Company Law & Corporate Transactions

A Practitioners Guide to Commodity Finance

Mark stamp, Linklaters LLP

Consultant Editor: Geoffrey Wynne, SNR Denton LLP

• A complete guide to the principles, practice and procedure for all aspects of corporate transactions • Fully updated to cover all aspects of the Companies Act 2006, FSA and City Code-related developments, the new UK Corporate Governance Code and the Stewardship Code • In-depth analysis of takeovers and mergers, private company and business sales, acquisitions and demergers

• Covers the impact of post credit crisis reforms, including the latest revised Basel Accord and other national and international regulations to help ensure that you are aware of your compliance obligations

• Includes a wealth of worked examples, case studies and flow charts, all cross-referenced to the main text

• Includes in-depth discussion of risk and risk transfer issues, regulation and due diligence, and also covers Islamic finance aspects

October 2011

December 2011

9780414043121 £125 / €182

• Guides the reader through all the steps involved in commodity financing operations, from preexport financing to enforcement of security and insolvency issues

9780414045392 £150 / €218

BOOK SHOP

OUR BOOK SHOP ARBITRATION Wade Commentary on LCIA Rules (Wade, York & Clifford) Adopts an article-by-article approach to provide a detailed practical commentary on the LCIA Arbitration Rules, supported by relevant case law and LCIA decisions, and includes a comparative analysis of equivalent provisions in other Rules. A model set of typical forms for an LCIA Arbitration is provided. December 2011 9781847035608

INSURANCE ADR Principles and Practice

MacGillivray on Insurance

Henry Brown; Arthur Marriott, QC

Professor John Birds; Simon Milnes; Ben Lynch

This new edition will contain content on the theory, principles and practice of alternative dispute resolution. In particular mediation, providing understanding, guidance and authority about the different ways of working. It will explore and integrate models of practice; examine strategies and provide precedents; assist practitioners, policy makers and the judiciary in addressing the issues affecting practice; and generally provide an encyclopaedic work of reference for experienced practitioners and students alike.

MacGillivray on Insurance Law is a trusted and authoritative work that brings you detailed analysis of insurance risks. The second supplement to the 11th edition brings this essential title up to date with changes to the law since September 2010, taking into account the key legislative developments and judicial decisions. Part of the Insurance Practitioner’s Library, this title is frequently cited in court and is a welcome addition to your insurance law library.

£169 / €246

LEGAL LIGHTS • ISSUE 21

December 2011

October 2011

9780414044784

9780414047914

£215 / €312

£145 / €312

BOOK SHOP

INTERNATIONAL LAW

COMMERCIAL LAW

COMPETITION LAW

Private International Law

Christou International Agency Distribution & Licensing Agreements

Kerse & Khan: EC Antitrust Procedure, 6th Edition

Paul Beaumont; Peter McEleavy Now in its 3rd Edition this is a supremely comprehensive work on private international law, one which has been held in the highest esteem since its groundbreaking 1st edition written by the outstanding jurist Professor Alexander (Sandy) Anton in 1967. This new edition has been completely revised by Paul Beaumont and Peter McEleavy, taking account of the significant developments in theory and practice since 1990. This book is the most up to date treatment of the increasing panoply of EU law on private international law

August 2010 9780414013452 £155

This popular work offers practical guidance on the negotiation and drafting of international agency, distribution and manufacturing agreements. It provides expertly drafted precedents, supported by general and clause-by-clause commentary on the legal and commercial aspects of their drafting and application.

November 2011 9780414043152 £198.90 / €288.66

Christopher Kerse; Nicholas Khan Explains how the European Commission investigates infringements of EU competition law. Deals with topics such as the Commission’s investigative powers, procedural rights of the parties concerned, the method for setting fines and judicial review against Commission decisions, as well as the relationship between the enforcement of EU competition law by the Commission and by national courts and competition authorities.

December 2011 9781847039095 £275 / €399

DIFC Courts Philip Punwar, FULBRIGHT & Jaworski L.L.P in Dubai • Authored annotations/comments on the rules – covers Registrar and Practice Directions, DIFC decisions, UK and other jurisdiction decisions where relevant • Includes appendices setting out the rule of law which establishes the authority of the DIFC • Includes list of DIFC forms, the laws that apply by practice area, court fees • Is up to date with the new Part 54 Insolvency and the recent revision across all of the rules September 2011 9780414022676 £350 / €508

BOOK SHOP

INTELLECTUAL PROPERTY CIPA Guide to the Patents Acts, 7th Edition

Kerly’s Law of Trade Marks and Trade Names, 15th Edition

Tritton on Intellectual Property In Europe, 4th Edition

Professor David Llewelyn; James Mellor, QC; Tom Moody-Stuart; David Keeling; Iona Berkeley

Guy Tritton Contributing authors: Richard Davis, Ashley Roughton, and Tom St Quintin

• Includes the Patents Act, Patents Rules and relevant sections of the Copyright, Patents and Designs Act

Now in it’s 15th edition, Kerly is the same authoritative work that you’ve come to expect, but with the all latest cases, legislation, commentary and analysis you need to keep with today’s trade mark practice and procedure.

The fourth edition of this popular text thoroughly examines the wide range of laws regulating intellectual property in Europe.

• Offers a broad perspective of the law, with commentary and analysis as well as reference to thousands of key case decisions

• Provides clear explanations, detailed commentary and authoritative guidance on all areas of trade mark law

• Provides coverage of all intellectual property rights in one source; patents, copyright, designs, trade marks and plant varieties, considering the practical dimensions of each one as well as the substantive law

November 2011

• Covers classification, registration, different types of marks, enforcement, infringement and litigation

• Provides expert commentary on the practical aspects of IP, such as licensing, franchising, joint ventures and enforcement

• Not only deals with UK Trade Mark law, but also puts the English law into its European context, discussing relevant European case law and legislation

• Examines intellectual property and competition law, highlighting ways in which the two areas overlap

Chartered Institute of Patent Attorneys Editor: Paul Cole Consultant Editor: Stephen Jones • A complete guide to all the relevant patents legislation, addressing the technical and legal issues that can arise

9780414018631 £250 / €363

• Incorporates the latest legislative changes and case-law December 2011

December 2011 9780414042308 £245 / €256

9781847037701 £295 / €428

LEGAL LIGHTS • ISSUE 21

LEGAL BREAK

TAKE SOME TIME OUT WITH A FEW BRAIN TEASERS

WHERE IN THE WORLD? Can you name these three cities from our Reuters image bank?

REUTERS/Mark Blinch

REUTERS/Bobby Yip

REUTERS/Mike Segar

SUDOKU

Fill in the numbers. Look out for the answers in the 22nd issue.

1 4

2 9

6 8

3 8 3

Easy

1 7

7 Hard

3 4

9 6 4

BRINGING IT ALL TOGETHER

COMPLETE COVERAGE OF PERSONAL INJURY LAW Facts & Figures 2011/12

Occupational Illness Litigation

Kemp & Kemp

Accidents Abroad

Journal of Personal Injury Law

Medical Negligence

Lawtel Personal injury

Personal Injury Pleadings

Personal Injury and quantum reports

Personal Injury Toolkit

Kemp on Lawtel

Find out more visit sweetandmaxwell.co.uk/personalinjury

REUTERS/Marcelo Del Pozo

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