REINOUT M. WIBIER, Tilburg University
Email: r.m.wibier@uvt.nl

This article describes how security can be taken over financial collateral under Dutch and under English law. The definition of financial collateral in the EU Collateral Directive is used for the purpose of this article and this Directive has a prominent position in this article. Dutch law is compared to English law as the dominant law in the field of financial collateral arrangements. This dominance is a result of the dominance of the London capital-markets and the flexibility of English law for creating security rights. In relation to the Collateral Directive this article shows that it fails to address one of the most important aspects of financial collateral arrangements: the recognition of collateral arrangements governed by foreign law. It is argued that the Directive's approach of introducing minimum standards for substantive law does not suffice to achieve the Directive's main objectives.

This article also introduces entirely new ways of dealing with financial collateral arrangements by introducing a new contractual approach. This contractual approach could be relevant for any jurisdiction where the rights of an accountholder against the bank can be qualified as contractual. This is true for the Netherland and (probably) England and is likely to be true for many more jurisdictions, in light of the definition of cash used in the Collateral Directive: 'money credited to an account in any currency, or similar claims for the repayment of money, such as money market deposits'. The fact that money credited to an account is viewed as a claim for repayment by the EU-legislature shows that a contractual approach of using cash deposits as collateral may have enormous potential. Finally, the contractual approach is tested in relation to collateral which takes the form of securities held through intermediaries. Although the approach would be less straightforward than for cash collateral, it also offers new opportunities for solving problems in this respect.

JANE ANDREWARTHA, Clyde & Co LLP
Email: jane_andrewartha@clyde.co.uk

This survey of recent developments summarizes the joint report of the Law Commission and the Scottish Law Commission on problems in the Marine Insurance Act of 1906, especially those relating to warranties, misrepresentation, and non-disclosure, and describes new legislation proposed by the Commissions. It also takes note of recent decisions of the High Court and Court of Appeal in cases presenting issues of demurrage, the safe-port warranty in a voyage charter party, dead freight, ship owner liability for mis-delivery, and recoverable damages, appeal from arbitration; and injunctions (anti-suit and freezing).

REBECCA WONG, Nottingham Trent University - Nottingham Law School - Academic Legal Studies
Email: R.Wong@ntu.ac.uk

This paper will consider the current privacy laws as applied to healthcare in the UK, taking into account the UK Data Protection Act 1998, which implements the European Data Protection Directive 95/46/EC. Whilst the data protection laws in the UK deals with the overall protection of an individual's personal information, there are certain issues that still need to be addressed by UK Courts including the subject of anonymous data; sensitive data; electronic patient records and genetic databases. To understand these issues, we will need to understand the context in which the UK data protection laws apply and the recent caselaw emerging from the UK courts and the European Court of Justice. Part II will consider the scope of the Data Protection Act 1998 followed by a discussion of genetic data. The discussion of anonymous and pseudonymous data is then considered before examining health records with final concluding remarks.

PATRICK JOSEPH BORCHERS, Creighton University School of Law
Email: borchers@creighton.edu

While history records resistance, choice-of-law and choice-of-forum clauses enjoy widespread enforcement in the United States and Europe today as a recognition of the value of party autonomy in transactions increases. Yet not all such clauses can be enforced -- imagine a murder-for-hire contract that attempted to circumvent strong forum policy against murder through a choice-of-law clause. The methods by which the United States and Europe determine whether such clauses should be unenforceable differ, and their substantive results are also diverging. As a general matter, European courts will not enforce a party's choice to evade so-called "mandatory rules," to deprive a consumer of the benefit of his home state's laws, or to deprive an employee of his home state's protections. Historically, American courts recognized similar exceptions but eschewed categorical exceptions in favor of a flexible and case-by-case "public policy" exception. Today, American courts are increasingly willing to enforce clauses even if they fall within what could be termed categorical exceptions to party autonomy in Europe.

HANNAH L. BUXBAUM, Indiana University School of Law-Bloomington
Email: hbuxbaum@indiana.edu

For all the scholarly attention paid to the role of mandatory rules in civil litigation, the doctrine regarding their use has never been fully developed. Certainly courts considering contracts governed by foreign law will sometimes override that law, applying a mandatory rule of the forum in its place. But in its most expansive articulation, the "mandatory rules" theory would also permit courts in certain circumstances to apply the mandatory law of a third country - a direction in which courts have declined to go. This article examines one of the justifications forwarded by early proponents of this more expansive approach: that ready application of foreign law would promote a form of judicial comity, effectuating the important interests of other nations. It inquires whether the international litigation climate today - in the age of globalization - might be hospitable to further development of the doctrine as a tool of judicial cooperation. It concludes that in fact the current trend is toward a contraction, not an expansion, of the doctrine, in part because forum courts increasingly forego application of even their own mandatory law in favor of party-chosen law. It suggests that arguments favoring broader application of foreign mandatory rules may be inextricably tied to political imperatives and to a base level of substantive similarity between the forum and foreign policies in question, and that for these reasons as well the doctrine will remain limited in scope.