• The Law and Practice of International Banking, 2nd edition

      Penn, Graham; Haynes, Andrew (Sweet & Maxwell Ltd., 2009)
      The new edition of Law and Practice of International Banking is fully updated and revised to include new areas such as securitisation and regulatory aspects of derivatives, in addition to providing an authoritative guide to the latest developments in this rapidly evolving area of law. The complex underlying principles of the subject, along with emerging issues of major importance, will be fully covered, with the authors adopting a highly practical approach throughout. CONTENTS: * Governing the law * Jurisdiction * Sovereign risk * Term loans * Primary and secondary syndication * Events of default * Swaps * Standby and commercial letters of credit * Security * Guarantees * Exchange controls * Withholding taxes * Securitisation * Eurobonds * Capital adequacy * Taxation issues
    • Pre-appointment administration fees - papering over the cracks in pre-packs?

      Walton, Peter (Sweet & Maxwell, 2008)
      Considers the remuneration of insolvency practitioners for work done on pre-packaged administrations (pre-packs). Examines the proposed amendments to the Insolvency Rules 1986 dealing with pre-appointment expenses, the rights of unsecured creditors, management buy-outs and conflicts of interest, and concerns over the transparency and legitimacy of pre-packs.
    • Crime Reduction

      Moss, Kate (Routledge (Taylor & Francis), 2008)
      Across the globe, challenging and contentious issues about community safety and security increasingly exercise governments and police forces—as well as, for example, town planners and car-park designers. Consequently, as a specialist area within the wider discipline of criminology, crime reduction has never before enjoyed such prominence in public and scholarly discourse. With research on and around the subject flourishing as never before, this new title in the Routledge Major Works series, Critical Concepts in Criminology, meets the need for an authoritative reference work to make sense of the subdiscipline’s colossal literature and the continuing explosion in research output and practice. Edited by Kate Moss, a prominent academic in the field, Crime Reduction is a four-volume collection of foundational and cutting-edge scholarship. The first volume in the collection (‘Approaches to Reduction’) brings together the best research on the different approaches to crime reduction, including its classification and theory, and ideas of what is preventable. The work gathered here also includes criticisms of crime reduction, not least research around the phenomena of displacement and sustainability. Volume II (‘Motivation of the Criminal Inclination’) collects the most important work on issues of crime reduction, particularly those concerned with what one thinker has described as ‘structure and psyche’. The scholarship in this volume draws both on the structural perspective (which emphasizes the view that reduction is achievable only through economic and social change, especially by ameliorating inequality or levels of social exclusion), and the ‘psyche’ approach (which regards crime principally as a product of the human spirit and seeks to change criminal inclination and activity by policies of, for example, deterrence, incapacitation, and reform). The notion of situational crime reduction has been a particularly active area of research in recent years. But the idea that changes to the social and physical settings in which crime may occur can reduce its frequency or impact is far from uncontroversial. Volume III (‘Situational Crime Reduction’) assembles the best thinking in this area tackling, for example, ethical dilemmas about the impact of some reduction strategies on our freedom and privacy rights, as well as the difficult and profound implications that arise from the increasing extent to which crime reduction has become the de facto responsibility of private rather than state organizations. The final volume in the collection (‘Crime Prevention in Action’) gathers together the best cutting-edge work to highlight key examples of empirical crime reduction research in action. It includes research focusing on: the need to incentivize crime reduction to persuade more people to take responsibility for reducing a greater variety of crime; the effects of apparently subtle strategies (such as changes to street lighting); and anticipatory changes (whereby crime seems to reduce in advance of reduction initiatives). Volume IV also includes assessments of the future developments in the field. Crime Reduction is fully indexed and includes a comprehensive introduction, newly written by the editor, which places the collected material in its historical and intellectual context. An essential reference collection, it is destined to be valued by scholars, students, and practitioners as a vital one-stop research and pedagogic resource.
    • Security and Liberty: Restriction by Stealth

      Moss, Kate (Palgrave Macmillan, 2008)
      In considering the problems of legislating to reduce crime, this book highlights evidence of the veritable deluge of legislation which has reached the statute books over the last ten years and asks, what are the reasons for this? It provides an overview of some of the ways in which citizens are currently criminalized by legislation and gives specific examples of various other stealthy ways in which essential civil liberties have recently been restricted. Generating new insights on crime reduction this study asks, is legislating to reduce crime really a good idea, or are there better ways of doing it and if so, what are these and why are they better? Why might it be wrong to over-legislate and what sort of societies could be produced from a propensity to over-legislate? CONTENTS: * The Retreat from Liberty * Constitutional Origins of Erosion * The Culture of Control * Detention Without Trial * Football Banning Orders * Secure Borders * Implications for Crime Reduction and Criminology
    • Money laundering: from failure to absurdity

      Haynes, Andrew (Emerald Group Publishing Limited, 2008)
      Purpose – The purpose of this paper is to examine the UK law relating to money laundering in the aftermath of the three statutory instruments that came into effect in December 2007. In particular the suitability and impact of the law is considered. Design/methodology/approach – The method adopted is to analyse the current content of the law and consider whether the approach utilised in its drafting will result in the aims behind the law being achieved. Findings – The result of this analysis is to conclude that the law as drafted is not designed in a way that can be effectively applied and that in addition the entire approach is flawed. In particular there are five key areas where problems arise: there is a requirement to report suspicion or knowledge of criminal offences or proposed terrorist acts but not other proposed criminal offences; the requirement to report only relates to information that comes into the reporter’s possession in the course of their trade or profession; the 2007 Regulations create requirements that many of those on whom they are imposed will not be able to effectively apply; the new s.333A appears to limit the offence of tipping off to the regulated sector but will not work as drafted; and in addition there are clear human rights issues associated with the overall regime. Originality/value – This original and topical paper explains the law as it now exists and provides analysis of its impact and undoubted failings.
    • Codifying the Law on Evidential Burdens

      Glover, Richard M. (Vathek Publishing, 2008)
      This article examines the concept of the evidential burden and argues that the decision in R v Malinina illustrates that the concept of the evidential burden is in desperate need of clarification. It will be contended that, ultimately, codification would be the best means of achieving that end.
    • The direction and control of corporations: law or strategy?

      Yeoh, Peter (Emerald Group Publishing Limited, 2007)
      Purpose – To review and analyse the legal implications of the CA 2006 in respect of directors’ duties and powers, and in particular sections 172(1) and 471. Design/methodology/approach – The use of business management theories complements the primary use of the legal doctrinal approach as applied in this study. Findings – Section 172(1)'s wordings generate ambivalent legal implications for directors’ general duties as codified. It appears to give discretionary powers to directors where the review of the six statutory factors is concerned. However, directors will need to treat these seriously when read in conjunction with section 471. The latter pertains to directors’ disclosure obligations for the newly expanded business review section of the directors’ annual report. Available corporate evidence suggests that some corporate directors go beyond the minimum mandatory standards for environmental and social (Corporate Social responsibility, CSR) issues. They have benefited from the integration of their CSR policies and practices with their corporate strategic plans and actions. Some have even forged effective partnership with non-governmental organisations (NGOs) and other stakeholders to co-create businesses. Practical implications – This investigation provides strategic insights and practical thinking to investors, corporate directors, state planners, NGOs, and other corporate stakeholders. Originality/value – Previous legal analysis on general directors’ duties focused on the law. This study advanced corporate legal theory further with the use of insights from contemporary business theories and practices.
    • Criminal Justice in Hong Kong

      Jones, Carol; Vagg, John (Routledge (Taylor & Francis), 2007)
      Containing a wealth of archival material and statistical data on crime and criminal justice, Criminal Justice in Hong Kong presents a detailed evaluation of Hong Kong’s criminal justice system, both past and present. Exploring the justice system and the perceptions of popular culture, this book demonstrates how the current criminal justice system has been influenced and shaped over time by Hong Kong’s historical position between ‘East’ and ‘West’. Jones and Vagg’s examination of the justice system not only takes into account geographical changes, like the erection of the border with communist China in 1950 but also insists that any deep understanding of the current system requires a dialogue with the rich and complex narratives of Hong Kong’s history. It explores a range of questions, including: * How were Hong Kong's criminal justice institutions and practices formed? * What has been its experience of law and order? * How has Hong Kong's status as between 'East' and 'West' affected its social, political and legal institutions? Careful and detailed, this analysis of one of the most economically successful, politically stable and safe yet frequently misrepresented cities, is a valuable addition to the bookshelves of all undergraduate and postgraduate students studying Asian law. (Routledge)
    • Pause for Thought

      Glover, Richard M. (Reed Elsevier (UK) Ltd, 2007)
      Discusses the extent to which criminal offences should be tried with a presumption of the burden of proof being on the defendant, referring to the views expressed by Lord Scarman and case law developments, including the House of Lords decision in R. v Lambert (Steven). Considers the intentions of Parliament for reverse burdens of proof to be imposed, such as under the Misuse of Drugs Act 1971 ss.5 and 28, and the effects which the introduction of human rights legislation has had. Reviews the Criminal Law Revision Committee report on the use of the reverse burden of evidential proof.
    • Corporate Manslaughter: A Radical Reform?

      Griffin, Stephen (Vathek Publishing Ltd, 2007)
      Presents a critique of the offence of corporate manslaughter introduced by the Corporate Manslaughter and Corporate Homicide Bill 2006. Compares the statutory offence with the common law position. Raises doubts about the proposed legislation in terms of identifying a senior manager to breach the relevant duty of care, the gross negligence test and the difficulty of establishing a senior management failure in companies with complex management structures.
    • Should private equity funds be further regulated?

      Yeoh, Peter (Palgrave Macmillan Ltd., 2007)
      This paper examines the current concerns over the systemic risk posed by the fast-expanding private equity funds. Such worries appear to emerge as a consequence of controversies generated by private equity and hedge funds over their lack of transparency in asset valuations and use of excessive debts, and more importantly over their general manner of operation. While market imperfections feature to some extent, this investigation argues that these are not significant enough to warrant formal regulatory mechanisms. It further argues for the continuance of a light-touch regulatory framework, as this industry works best under a flexible governance framework. Additionally, this paper suggests that a shared commitment to the wider regulatory objectives by regulators, the regulated and their advisers through regular dialogues is likely to produce a more favourable outcome of appropriate market behaviour.
    • Investigation of Evaluative and Facilitative Approaches to Construction Mediation

      Brooker, Penny (Emerald Group Publishing Limited, 2007)
      Purpose – The paper seeks to examine the debate on mediator style and provide empirical evidence on mediator orientation, which has implications for party choice and the development of professional standards for construction mediators in the UK. Design/methodology/approach – This paper analyses the theoretical arguments and distinctions in mediator style and assesses the available evidence relating to the utilisation of evaluative or facilitative mediator approaches in the UK and US construction industry. The paper reports on data from qualitative interviews with construction lawyers experienced in using mediation in the UK to assess the level of evaluative conduct experienced. Findings – The findings suggest that interviewees had experienced a mix of evaluative and facilitative interventions by mediators. The data support the contention that construction mediation in the UK mirrors the experience of the USA and is becoming “lawyer-driven” and adversarial, with mediators utilising evaluative techniques which some members of the legal profession prefer. Research limitations/implications – The qualitative data are based on a small sample of mediation users in the UK construction industry. However, interviewees were selected from respondents to a randomly conducted large-scale postal survey of commercial and construction lawyers. All interviewees were repeat users of the process and all but one had received training in mediation or are practising lawyer-mediators. Practical implications – The data provide evidence of different mediator techniques currently utilised in the UK construction industry and the practices of lawyers in the mediation process. The findings have implications for party choice and should inform the development of professional standards in construction mediation practice. Originality/value – The paper provides original data on the practices of mediators and lawyers in construction mediation.
    • Generating More Heat than Light? Debates on Civil Liberties in the UK

      Moran, Jonathan (Oxford University Press, 2007)
      This article deals with the debate over civil liberties in the United Kingdom, particularly the argument that civil liberties have been unreasonably restricted in the UK as part of the state's counter-terrorist policy. Arguments that the UK is facing an unprecedented threat to its civil liberties are examined, as are counter-arguments, including the idea that defenders of civil liberties display an excessive pessimism. The article argues that civil liberties have been constrained, but a focus on counter-terrorism shows the situation is not as bad as critics think. The main threat to civil liberties may come from outside the field of counter-terrorist operations and lies in some developments in normal criminal investigation and public order but more importantly, the processes and practices of the public and private sector (particularly surveillance) as part of what is termed the ‘risk society.’
    • Corporate governance models: is there a right one for transition economies in Central and Eastern Europe?

      Yeoh, Peter (Emerald Group Publishing Limited, 2007)
      Purpose – Poland along with other members of the transition economies of Central and Eastern Europe (CEE) have adopted a hybrid corporate governance model, which draws inspirations from both the insider-oriented system as exemplified in Germany and the outsider-oriented system as exemplified in the UK. The paper aims to examine the effectiveness of the transplantation process in Poland. Design/methodology/approach – The paper looks at common actual practices prevailing in the country itself and compares this with those in Germany and the UK. The research approach relies on a limited case analysis, drawing data primarily from the public domain. Findings – Poland's hybrid corporate governance system appears to align with the country's socio-economic-legal framework and also takes into account the common positive features found in both the insider-oriented system and the outsider-oriented system; and in particular the emphasis on transparency and accountability, proper corporate asset management, and investors’ protection safeguards. However, it would appear that the process of corporate governance monitoring and enforcement in Poland may need to be improved. It is also observed that Poland is increasingly looking towards the Anglo-Saxon model of corporate governance as it developed its own system, largely because of the relatively greater success of the latter, the influence of influential global institutional investors in Continental Europe, and the diminishing influence of the German model, which itself is now contemplating fundamental reforms. Practical implications – The transition economies of CEE like Poland requires the practice of sound corporate governance to ensure more efficient mobilisation of their economic resources. Originality/value – The paper shows that good corporate governance should help to attract more foreign investments into transition economies to help accelerate growth and enhance their balance of payments positions; and reduce gradually the extent of state involvement in the business sector.
    • Regulatory offences and reverse burdens: the 'licensing approach'

      Glover, Richard M. (Vathek Publishing Ltd, 2007)
      Highlights inconsistencies in the case law on burdens of proof and the presumption of innocence and proposes the adoption of a "licensing approach" as a means of resolving the problem of reverse legal burdens. Considers the meaning of burden of proof and the impact of the concept of the "gravamen" of an offence on the reverse legal burden. Discusses the "licensing" justification for the different treatment of regulatory and "truly criminal" offences and proposes a definition of "regulatory offence" based on this approach.
    • Market abuse, an analysis of its nature and regulation

      Haynes, Andrew (Sweet and Maxwell Ltd., 2007)
      Examines the operation of market abuse law under legislation including the Financial Services and Markets Act 2000 and European Parliament and Council Directive 2003/6 (the Market Abuse Directive). Reviews the potential offences, the range of investments to which the regime applies, the reporting requirements and key features of the Financial Services Authority (FSA) regulations, including what constitutes insider dealing. Details the approach of the FSA conduct of business rules to issues such as investment research and conflicts of interest, and their application in enforcement actions.
    • Dissolving the People: Lawyers and the Liberal Political Complex in Hong Kong

      Jones, Carol (Oxford: Hart Publishing, 2007)
      Across the world political liberalism is being fought for, consolidated and defended. That is the case for nations that have never enjoyed a liberal political society, for nations that have advanced towards and then retreated from political liberalism, for nations that have recently shifted from authoritarian to liberal political systems, and for mature democracies facing terrorism and domestic conflict. This book tests for the contemporary world the proposition that lawyers are active agents in the construction of liberal political regimes. It examines the efficacy of a framework that postulates that legal professions not only orient themselves to a market for their services but can frequently be seen in the forefront of actors seeking to institutionalise political liberalism. On the basis of some 16 case studies from across the world, the authors present a theoretical link between lawyers and political liberalism having wide-ranging application over radically diverse situations in Asia and the Middle East, North and South America, and Europe. They argue that it is not the politics of lawyers alone but the politics of a 'legal complex' of legally trained occupations, centred on lawyers and judges, that drives advances or retreats from political liberalism, that political liberalism itself is everywhere in play, in countries with established democracies and those without liberal politics and that it is now clear that the legal arena is a central field of struggle over the shape of political power. The case studies presented here provide powerful evidence that the nexus of bar and bench in transitions towards or away from political liberalism is a force which has universal application. (Hart)
    • Financial Services Authority Regulation and Risk-based Compliance (2nd rev. ed.)

      Bazley, Stuart; Haynes, Andrew (Tottel Publishing, 2006)
      Previously entitled "Risk-Based Compliance" this unique guide to the role of risk-based FSA regulation compliance in the financial services industry has been fully updated and comprehensively re-written. Focusing on the latest due diligence mechanisms, the guidance and information provided ensures financial services organisations can accurately and confidently comply with their legal responsibilities. This advice and information includes: operating a risk-based approach to regulation, FSA supervision of regulated firms, financial services and markets tribunals, the EU's Financial Services Action Plan, and the FSA Tribunal decisions. (Tottel Publishing)
    • Severe (Psychopathic) Personality Disorder: A Review

      Moss, Kate; Prins, Herschel (Barnsbury Publishing, 2006)
      Reviews the historical development of clinical understanding about the concept, causes, and management of severe (psychopathic) personality disorder. Considers the legal implications of a diagnosis of psychopathic disorder, including where a patient is deemed to be untreatable. (Legal Journals Index)
    • Sheldrake Regulatory Offences and Reverse Legal Burdens of Proof

      Glover, Richard M. (Web Journal of Current Legal Issues, 2006)
      This article examines the reverse legal burden of proof upheld by the House of Lords in Sheldrake v The Director of Public Prosecutions [2004] UKHL 43 in relation to the offence ‘being drunk in charge’ of a motor vehicle, contrary to the Road Traffic Act 1988 s.5(1)(b), and the defence under s5(2). It considers two main arguments that arose from Sheldrake. First, that the section 5(2) defence that there was no likelihood of the defendant driving while over the limit forms part of the gravamen of the section 5(1)(b) offence and that, accordingly, a reverse legal burden amounts to a breach of the presumption of innocence. It is argued that this analysis, approved by the Divisional Court but largely overlooked by the House of Lords, is per Lord Bingham “too simple and only partially correct”. Secondly, it will be considered whether some offences, such as ‘being drunk in charge’, may be classified as regulatory on the basis that the offence was concerned with a lawful activity that the defendant voluntarily engaged in that presented a serious risk or danger to public health and safety. It is argued that in this context a reverse legal burden may normally be presumed.