Law Commons^™

Enforcing Interstate Compacts In Federal Systems, Michael Osborn

Indiana Journal of Constitutional Design

The central goal of a federal system is for local government units to retain degrees of independence, specifically over matters of importance to that local unit. A logical corollary to that independence is the ability for local units to negotiate and contract with other local units on matters of importance. Therefore, it is not surprising that almost every federal system allows, either implicitly or explicitly, member states to form binding compacts with other states, the union government, or municipalities.1 Some federal democracies even allow member states to compact with foreign governments. Furthermore, almost every federal constitution includes a provision outlining …

Fascism And Monopoly, Daniel A. Crane

Michigan Law Review

The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Branch, this Article assesses the historical …

Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo

All Faculty Scholarship

The past year has witnessed an upsurge of international interest in due process in antitrust enforcement, reflected in two new comparative studies and International Competition Network’s (ICN’s) May 2019 adoption of its Recommended Practices for Investigative Process and Framework for Competition Agency Procedures and the Organization for Economic Cooperation and Development (OECD) Competition Committee’s discussion of the Draft Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement in June 2019. This article reviews those developments, traces key differences among them, and looks ahead to what comes next.

Promoting Predictability In Business: Solutions For Overlapping Liability In International Anti-Corruption Enforcement, Andrew T. Bulovsky

Michigan Journal of International Law

This Note evaluates solutions to the problems of overlapping liability in general and multi-jurisdictional disgorgement in particular. Part I traces the origins of international anti-corruption efforts and provides an overview of the Foreign Corrupt Practices Act (the “FCPA”). It then discusses the two most significant international anti-corruption conventions: the OECD’s Convention on Combatting Bribery of Foreign Officials in International Business Transactions (the “OECD Convention”) and the United Nations Convention Against Corruption (“UNCAC”). Part II lays out the problems created by the lack of a formal mechanism to prevent overlapping liability— a phenomenon that violates the common law concept known as …

Toward A Realistic Comparative Assessment Of Private Antitrust Enforcement, Daniel A. Crane

Book Chapters

Over the course of her extraordinary career, Eleanor Fox has contributed in many vital ways to our understanding of the importance of institutional analysis in antitrust and competition law. Most importantly, Eleanor has become the leading repository of knowledge about what is happening around the globe in the field of competition law and its enforcement institutions. At a time when much of the field of antitrust was moving in the direction of theoretical generalization, formal modeling, game theory, and the like, Eleanor tirelessly worked the globe to discover the actual practice of competition law in the world. She left no …

Given Today's New Wave Of Protectionsim, Is Antitrust Law The Last Hope For Preserving A Free Global Economy Or Another Nail In Free Trade's Coffin?, Allison Murray

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Articles

Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors …

Enforcement Of Corporate And Securities Laws In India: The Arrival Of The Class Action?, Vikramaditya S. Khanna

Book Chapters

Chapter from Enforcement of Corporate and Securities Law: China and the World. Howson, N.C. and Huang, R.H., eds.

Corporate governance in Asia has garnered a great deal of recent scholarly attention.1 One topic that permeates discussions across countries is the enforcement of corporate and securities laws – with some countries relying primarily on public enforcement (i.e. enforcement by government) while others rely on some combination of public and private enforcement (i.e. enforcement by private shareholders). Further, understanding how enforcement is operationalised and its concomitant strengths and weaknesses enables us to better appreciate the actual corporate governance situation in many …

Private Enforcement Of Company Law And Securities Regulation In Korea, Hwa-Jin Kim

Book Chapters

This chapter offers a brief overview of the private enforcement of corporate law and securities regulation in Korea, with particular reference to the current legislative efforts in the Korean National Assembly and recent court cases. This chapter also talks about Korea’s ill-fated and misguided adoption of the fraud-on-the-market theory in securities fraud litigation.

Enforcing Corporate Social Responsibility Codes Under Private Law: On The Disciplining Power Of Legal Doctrine, Jan M. Smits

Indiana Journal of Global Legal Studies

A central question in the debate on corporate social responsibility is to what extent CSR codes can be enforced among private parties. This contribution argues that this question is best answered by reference to the applicable doctrinal legal system. Such a doctrinal approach has recently regained importance in American scholarship, while it is still the prevailing method of legal analysis in Europe. Applying a doctrinal analysis of CSR codes allows for the possibility of private law enforcement, that is, enforcement by means of contract or tort, dependent on three different elements: the exact type of claim that is brought, the …

Corporate Codes In The Varieties Of Capitalism: How Their Enforcement Depends On The Differences Among Production Regimes, Gunther Teubner

Indiana Journal of Global Legal Studies

Globalization has reinforced the conflicts among the varieties of capitalism. The colliding units are not just nation states, but transnational production regimes, which cut through national boundaries. The conflicts lead global corporate codes, which are developed by international organizations, to take different directions when they are concretized on the enterprise level. They will be differently enforced according to whether they are located in Liberal Market Economies (LME), adapted to the New Sovereignty of enterprises, or in Coordinated Market Economies (CME) with greater components of social welfare state and economic democracy.

Different patterns of enforcement emerge particularly when the courts have …

A Treaty On Enforcing Human Rights Against Business: Closing The Loophole Or Getting Stuck In A Loop?, Pierre Theilbörger, Tobias Ackermann

Indiana Journal of Global Legal Studies

This Article takes a human rights law perspective on the issue of enforcing corporate social responsibility. While corporations receive a variety of rights under international law, they do not equally hold a corresponding set of duties. The Article assesses the merits and shortcomings of existing initiatives to bridge this gap, in particular the Special Representative to the Secretary-General's (legally nonbinding) Framework and Guiding Principles, as well as the most recent initiative at the United Nations Human Rights Council on developing a (legally binding) treaty on business and human rights. While emphasizing that existing legal frameworks-such as human rights law, international …

Corporate Codes As Private Co-Regulatory Instruments In Corporate Governance And Responsibility And Their Enforcement, Jan Eijsbouts

Indiana Journal of Global Legal Studies

Corporate Social Responsibility (CSR) codes have gained a prominent role as tools in self-regulation for companies to establish their basic values, norms, and rules that condition the conduct of directors, managers, employees, and-increasingly-of suppliers. This development must be seen in the light of two important paradigmatic changes in the concepts both of CSR and corporate governance. The former is no longer purely voluntary and the latter has become inclusive of CSR, each with far-reaching consequences for the raison d'itre and the place and function of the codes in the smart regulatory mix governing corporations. While the codes were based originally …

Fading Extraterritoriality And Isolationism? Developments In The United States, Austen L. Parrish

Indiana Journal of Global Legal Studies

Having the opportunity to deliver the twelfth Snyder Lecture is a privilege in part because of the distinguished scholars who have given the lecture in the past. It is also a privilege because of Earl Snyder himself. Earl was visionary in supporting these cross-Atlantic intellectual exchanges and ahead of his time in appreciating the value of studying transnationalism in its many forms. Today, in that tradition, my aim is to give you a sense of how the procedural rules of international civil litigation are developing and changing in the United States, and how those developments in turn affect more traditional …

Probabilistic Compliance, Alex Raskolnikov

Faculty Scholarship

Uncertain legal standards are pervasive but understudied. The key theoretical result showing an ambiguous relationship between legal uncertainty and optimal deterrence remains largely undeveloped, and no alternative conceptual approaches to the economic analysis of legal uncertainty have emerged. This Article offers such an alternative by shifting from the well-established and familiar optimal deterrence theory to the new and unfamiliar probabilistic compliance framework. This shift brings the analysis closer to the world of legal practice and yields new theoretical insights. Most importantly, lower uncertainty tends to lead to more compliant positions and greater private gains. In contrast, the market for legal …

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Scholarly Works

The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …

The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan

Erin Ryan

This very short essay reports on the 2014 amendments to China’s Environmental Protection Law, following a series of internationally reported air and water pollution crises leading to unprecedented public protests. The changes promise more meaningful oversight of industrial pollution and harsher penalties for violations, targeting not only polluters but officials who fail to enforce applicable regulations against them. The amendments also empower certain non-governmental organizations to bring environmental litigation on behalf of the public. Official news accounts openly acknowledge the government’s hope that increased public access to legal redress will reduce the growing trend of mass environmental protests. These are …

Enforcement In A Regime Complex, Sergio Puig

Sergio Puig

Today’s international business environment is fundamentally different than that of fifty years ago. Traditional trade meant selling into one nation goods that were made in another; now trade is mostly about making things in multiple countries and selling them everywhere. Yet the two main branches of public international law that address international business—international trade law and international investment law—have their providence and continue to be viewed as two discrete, separate systems. Through case studies, this Article explores how trade and investment are converging, and the resulting difficulties governments and private interests face when international rules are enforced. The tasks of …

'Quack Corporate Governance' As Traditional Chinese Medicine – The Securities Regulation Cannibalization Of China's Corporate Law And A State Regulator's Battle Against Party State Political Economic Power, Nicholas C. Howson

Articles

From the start of the People’s Republic of China’s (PRC) “corporatization ” project in the late 1980s, a Chinese corporate governance regime subject to increasingly enabling legal norms has been determined by mandatory regulations imposed by the PRC securities regulator, the China Securities Regulatory Commission (CSRC). Indeed, the Chinese corporate law system has been cannibalized by all - encompassing securities regulation directed at corporate governance, at least for companies with listed stock. This Article traces the path of that sustained intervention and makes a case — wholly contrary to the “quack corporate governance” critique much aired in the United States …

The Elaborate Paper Tiger: Environmental Enforcement And The Rule Of Law In China, Erin Ryan

Erin Ryan

Recent Changes In U.S. And U.K. Overseas Anti-Corruption Enforcement Under The Fcpa And The U.K. Bribery Law: Private Equity Compliance, Isaac A. Binkovitz

Michigan Business & Entrepreneurial Law Review

The following discussion provides a preliminary guide for those tasked with steering private equity firms through the shifting obstacle course of overseas anti-corruption compliance. Section I briefly reviews the centrality of overseas anti-corruption enforcement and its role in creating a more hospitable business climate in emerging markets. Section I also examines the American and British enforcement regimes in general before analyzing the most recent changes–specifically, changes as to the scope of liability and expansion of their jurisdiction. This section is designed to help determine whether investments or acquisitions fall within the purview of either enforcement regime. Section II discusses various …

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

La Experiencia Chilena Disuadiendo Ilícitos Corporativos, Diego G. Pardow

Diego G. Pardow

This paper analyzes the investigations on potential misconducts conducted by the Chilean public enforcer (Superintendencia de Valores y Seguros, “SVS”) between 1990 and 2012. The evidence reveals two groups of problems: on the one hand, the SVS has leaved a substantial region of the market unmonitored; on the other hand, the level of specific deterrence is generally low and relies greatly on indirect mechanisms of punishment. Such results suggest that future reforms should facili- tate private enforcement on both the extensive and the intensive margin. Whereas improving the performance of the SVS on the extensive margin should mitigate its monitoring …

Public Interest Litigation In India As A Paradigm For Developing Nations, Zachary Holladay

Indiana Journal of Global Legal Studies

Public interest litigation (PIL) in India can serve as a vehicle for creating and enforcing rights and is critical to the sustenance of democracy. PIL in India can address the needs of its citizens when legislative inertia afflicts the Indian National Congress. This Note discusses how PIL in India can serve as a model for other developing nations struggling with legislative inertia and can provide recourse to marginalized and disadvantaged communities. Furthermore, while PIL obscures the traditional boundaries of power in a liberal democratic polity, democracy is in fact strengthened by the expansion of standing to include any citizen who …

Enforcement And Recognition Of Foreign Judgments In United States Courts: A Practical Perspective , Cedric C. Chao, Christine S. Neuhoff

Pepperdine Law Review

No abstract provided.

Drept Privat Într-O Societate Post-Naţională: De La Reglementarea Ex Post La Reglementarea Ex Ante, Jan M. Smits

Jan M Smits

This contribution (in Romanian) shows how the role of law is changing as a result of globalisation and technological progress. It demonstrates how the traditional view of law as being produced by different nation-state legal orders, each claiming exclusive jurisdiction for a limited territory, is gradually making place for alternative types of ordering. The ex post reliance on the law to provide appropriate rules, enforcement and dispute resolution is replaced by a situation in which actors proactively avoid as much as possible the applicability of laws. This development towards delivering ‘legality’ without law is much more important in understanding the …

Enforcement Without Foundation? Insider Trading And China's Administrative Law Crisis, Nicholas C. Howson

Articles

China's securities regulator enforces insider trading prohibitions pursuant to non-legal and non-regulatory internal "guidance." Reported agency decisions indicate that enforcement against insider trading is often possible only pursuant to this guidance, as the behavior identified is far outside of the scope of insider trading liability provided for in statute or regulation. I argue that the agency guidance is itself unlawful and unenforceable, because: (i) the guidance is not the regulatory norm required by the statutory delegation of power; and (ii) the guidance is ultra vires because (a) it addresses something substantively different from what is authorized under the statutory delegation, …

Enforcing International Corrupt Practices Law, Paul D. Carrington

Michigan Journal of International Law

This Essay strives to advance the current international movement to deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in "developing" nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.

An Analysis Of Article 28 Of The United Nations Declaration On The Rights Of Indigenous Peoples, And Proposals For Reform, David Fautsch

Michigan Journal of International Law

The purpose of this Note is two-fold: first, to demonstrate why the standards set out in Article 28 require further clarification, and second, to propose reforms (both inside and outside of the United Nations framework) that might benefit indigenous peoples claiming land rights.

New Governance In The Teeth Of Human Frailty: Lessons From Financial Regulation, Cristie L. Ford

Cristie L. Ford

New Governance scholarship has made important theoretical and practical contributions to a broad range of regulatory arenas, including securities and financial markets regulation. In the wake of the global financial crisis, question about the scope of possibilities for this scholarship are more pressing than ever. Is new governance a full-blown alternative to existing legal structures, or is it a useful complement? Are there essential preconditions to making it work, or can a new governance strategy improve any decision making structure? If there are essential preconditions, what are they? Is new governance “modular” – that is, does it still confer benefits …