Philip Corsano

The arrival of the Arctic in mainstream diplomacy is really a function of the ability to navigate its waters. Polar hard ice cover is receding and seasonal first year ice cover is easier to navigate through in winter. Russia has been experimenting with new nuclear ice-breakers which carve passages in 3 meter ice . China, an non Arctic maritime nation is attracted to the region’s riches and has made several “freedom of navigation” passages through this Arctic wilderness.

The main finding of this article is that there is an objective way to determine whether a swap is insurance or speculation through an industry method, the “delta hedge argument”. 

In this case, Busto Arsizio had to prove Deutsche Bank knowingly or recklessly made false or misleading representations about material elements of an interest rate swap, [‘IRS’] intending to induce Busto into the contract. The court found no evidence of misrepresentation, given the risk disclosures in the written agreements. 

This paper argues that EJC clauses in International Swaps Dealers Association Master Agreements [‘ISDA MA’] can potentially be challenged based on principles of misrepresentation and unfair bargaining under English law.  Risk disclosures cannot apply where a fundamental contractual term is so ambiguous that the contract cannot be given business effect.  A second conclusion is that where contractual interpretation rules in one jurisdiction are not ad idem with English law, conflicts of law rules must be followed, as well as public policy, not just blind adherence to an Exclusive Jurisdiction Clause [‘EJC’].

This case deals with four levels of law:

1. Italian law and the application of rulings through the EU Rome 1 framework;
2. English contract law principles;
3. The application of the EJC of English law in Italian law, on the presumption of no substantial distinction between Italian and English rules of construction;
4. Public policy and the application of the European Convention [ECHR] rights.

Swaps transactions assume that borrowers have a view on the course of interest rates, something which been proven to be highly unpredictable and therefore speculative.  In most cases, a local authority will not have the financial expertise to determine the financial risks inherent in such a swap agreement and will therefore have to enter into some form of financial advice with a party who may also be a counterparty to the agreement.  In this case, Deutsche Bank [DB] acted first as an adviser to the Comune di Savona, [governed by an consulting agreement subject to Brussels recast – with Milan jurisdiction] and then as a counterparty in an interest rate swap agreement governed by the ISDA Master Agreement, subject to English law.

Although the  Trasta case arose in the context of the application of pan-EU banking regulations, it raises broader fundamental aspects of “standing requirements” to pursue legal remedies before EU courts.  The issue is an old chestnut in EU law and raises the formalistic limitations of EU law judicial review that have been in effect since Plaumann , which many, including this author, believe sit uncomfortably with the “substantive interpretation” traditions of EU law.  Which parties can bring an action for annulment under Art 263 TFEU before the Court of Justice of the EU [“CJEU’]?  In particular how are admissibility rights to be interpreted in the right to effective judicial protection enshrined in Art 47 of the Charter of Fundamental Rights?

This paper will seek to uncover the assumptions underlying Art 2 TEU regards the EU’s engagement with the Member States [‘MS’] and with the third countries alike is based on values that have culminated in the Lisbon Treaty and the EU Charter of Fundamental Rights [‘EUCFR’].

We will try to address two questions.

i. The first is whether the assumption of the existence of an EU Teleology actually informs the EU’s engagement with Member States and third countries: a classic review of EU public law issues of conferral, subsidiarity [and inevitably] proportionality.  The CJEU has used Art’s 2 and 19 TEU as a bridge for the application of rights in Member States.  We will review the concern that Art 2 TEU’s use is as a mere “proclamation” rather than a conferrer of rights.  Art 2 values underscoring rights have been concretized since the Lisbon Treaty through the EU Charter of Fundamental rights, [‘Charter’ or EUCFR].  We shall investigate the risk to stability of the CJEU’s interpretation of Art 2 TEU.

ii. The second is, how if at all, are private rights of citizens affected by the implementation in MS law by the EUCFR, especially the key Article 47 interpreted with reference to Art 2 TEU values?  The most difficult issue we address is -whether Art 2 TEU renders operational effective judicial protection Charter rights?  The significance for Art 47 of the Charter is that Art 2 TEU is extremely open to interpretation – especially with reference to the rule of law.  In order to be directly effective and justiciable - Art 2 TEU Treaty provisions must be clear, precise and unconditional .  We may question whether these rigid criteria only apply to directives, or secondary legislation ?  We shall see that the values mentioned in Art 2 TEU are not directly linked with the competences and policy areas of the Union.  What we hope to discover is whether the Charter applies only when implementing Union law [Art 51 of Charter] or whether with respect to the direct effect of Charter rights in EU law, a more nuanced approach may be perceived through the combined effect of Art 2 TEU, Art 19 TEU and Art 47 of the Charter?  Namely a distinction between : first, a ‘mandatory effect’, meaning that a provision is sufficient in itself to entail a right or obligation;  and second, the ‘unconditional nature’, meaning that a right does not need ‘to be given concrete expression by the provisions of EU or national law.  In short, has Art 47 of the Charter become the link between the guarantee effective judicial protection of EU fundamental rights in Member States?

EU Values: Art 2 & 19 of the TEU. How important are these values [Teleology] in the development of an Independent source of international law?

We will try to address two questions.
i.
The first is whether the assumption of the existence of an EU Teleology actually informs the EU’s engagement with Member States and third countries: a classic review of EU public law issues of conferral, subsidiarity [and inevitably] proportionality. The CJEU has used Art’s 2 and 19 TEU as a bridge for the application of rights in Member States. We will review the concern that Art 2 TEU’s use, has been more as a “proclamation” rather than a conferrer of rights. Art 2 values underscoring rights have been concretized since the Lisbon Treaty through the EU Charter of Fundamental rights, [‘Charter’ or EUCFR]. We shall investigate the risk to stability of the CJEU’s interpretation of Art 2 TEU.
The second is, how if at all, are private rights of citizens affected by the implementation in MS law by the EUCFR, especially the key Article 47 interpreted with reference to Art 2 TEU values? We shall see that these values are not directly linked with the competences and policy areas of the Union.

The arrival of the Arctic in mainstream diplomacy is really a function of the ability to navigate its waters.  Polar hard ice cover is receding and seasonal first year ice cover is easier to navigate through in winter.  Russia has been experimenting with new nuclear ice-breakers which carve passages in 3 meter ice .

China, an non Arctic maritime nation is attracted to the region’s riches and has made several “freedom of navigation” passages through this Arctic wilderness.

What happens when a secret trust fails in English law? Secret Trusts are a conundrum. That is why they feature iso prominently in LLB Trust examinations. Let's take an example. Adam [a Testator age 80] contacts his friend Bruce to ask him a favour. He asks Bruce if he can be a legatee for him for a property he wishes to hold and distribute for Claire, his long-time secret lover with whom he has a child Debbie. He does not want Eve his wife to know that this property is to be held for Claire. So he swears Bruce to secrecy. He intends Bruce to hold this property cottage on the Gower Peninsula for Claire, who in turn is instructed to hold on a life interest, with residual for her daughter Debbie. Adam then dies and in his will he leaves £400,000 in cash for his wife Claire, and a cottage on the Gower Peninsula worth £180,000 to his friend Bruce. So we can see a few problems from the start. The first is has Bruce told Claire that he is legatee for her life-tenancy in the Gower Cottage and that she is told hold the residual estate for her daughter Debbie? If she is unaware of Adam's intention for her to benefit from a life interest in the cottage and residual for Debbie, , then how evidentially can this property be held for Claire? It is somewhat of a waste of time and a good lawyer would not propose such a trust solution. Furthermore, as we know from §53(1)b LPA 1925, all transfers of real property must be "evidenced" in writing. Was there any writing? But the big issue is whether this is an express trust that can be recognized consistent with §9 of the Wills Act 1837 which require compliance with formalities, absent in this case, [2 witnesses who are not beneficiaries to attest to Adam's signature on the Will]. Equity cannot allow statute to be used as an instrument of fraud. The fraud here would be that if no-one knows that Bruce holds for Claire, then Bruce can just ignore the oral trust. He can justify this by stating that §9 of the Wills Act requires a signed and witnessed will for the legacy to be valid. WHAT ARE THE STEPS FOR RECOGNIZING A SECRET TRUST.