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Articles 1 - 30 of 45
Full-Text Articles in Law
“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic
“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic
ExpressO
At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, …
Reflections On The Admiralty Prospects Of Mixed Policies, Graydon S. Staring
Reflections On The Admiralty Prospects Of Mixed Policies, Graydon S. Staring
Graydon S. Staring
The existence of admiralty jurisdiction determines not only access to a federal court sitting in admiralty, but also, when suit is brought elsewhere, the law to be applied. The recent Kirby decision in the Supreme Court and Folksamerica decision in the Second Circuit open the prospect of a more liberal access to admiralty jurisdiction and to the law of marine insurance, where the policy applies, or may apply, to non-marine risks.
Natural Forum And The Elusive Significance Of Jurisdiction Agreements, Tiong Min Yeo
Natural Forum And The Elusive Significance Of Jurisdiction Agreements, Tiong Min Yeo
Research Collection Yong Pung How School Of Law
The Singapore court's power to stay its proceedings by reason of its not being the appropriate forum the proceedings ought not to be continued is underpinned by the common law principle enunciated in The Spiliada that generally a trial should be heard in its natural forum. The Rainbow Joy adds significantly to Singapore law on forum non conveniens on two important points. First, it establishes that it is not necessary to show that the alternative forum abroad is constituted as a court of law. Secondly, the case establishes that whether there is a defense claim on the merits is an …
The Federal Common Law Of Foreign Relations, Joel M.L. Huotari
The Federal Common Law Of Foreign Relations, Joel M.L. Huotari
Northern Illinois University Law Review
This comment asserts that mere foreign policy implications should not be enough to establish federal jurisdiction over the litigation of an otherwise exclusively state law claim, as some circuits have allowed. The Second, Fifth and Eleventh Circuits have allowed such state law claims to be removed to the federal courts. The Ninth Circuit, however, rejects the proposal that the federal courts are somehow better equipped to hear cases which implicate foreign policy concerns. Questions of foreign policy are generally not the subject matter of the judicial branch, but of the legislative and executive branches. Members of Congress and of the …
Casenote: Killing Life Partners: Why Viatical Settlements Constitute Securities – In Light Of The Sec V. Mutual Benefits Corporation And Other Recent Cases Explicitly Rejecting Life Partners, Brian Levin
ExpressO
No abstract provided.
Driving Misjoinder: The Improper Party Problem In Removal Jurisdiction, Laura J. Hines, Steven S. Gensler
Driving Misjoinder: The Improper Party Problem In Removal Jurisdiction, Laura J. Hines, Steven S. Gensler
ExpressO
This Article explores, and ultimately embraces, a new exception to the complete diversity rule in removal cases: the doctrine of procedural misjoinder. We argue that the doctrine offers federal courts a vital tool with which to police joinder gamesmanship. Absent this power, plaintiffs may preclude defendant access to federal courts by the relatively simple expedient of joining in state court largely unrelated claims against or on behalf of non-diverse parties. The resulting lawsuit thus fails the complete diversity test, rendering such cases removal-proof. Like fraudulent joinder, the long-standing practice of ignoring non-diverse parties against whom no valid claim may be …
Fighting Fraud On Faith: Federal Securities Regulation And The Limits Of Disclosure, Shannon R. Selden
Fighting Fraud On Faith: Federal Securities Regulation And The Limits Of Disclosure, Shannon R. Selden
ExpressO
In the past ten years, Congress passed three major reform acts to address two diametrically opposed concerns: It first restrained what it believed was an excess of securities fraud litigation, then responded to an explosion of securities fraud. This Article contends that despite the competing provocations and ambitions of the reforms, they share an unwarranted adherence to the principle of disclosure as the best means to attack market malfeasance: The Article examines the basis for and consequences of that undeserved legislative fidelity. Applying behavioral economics and cultural theory to the recent legislation and its underpinnings, the Article concludes that a …
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
ExpressO
No abstract provided.
The Hague Convention On Choice Of Court Agreements, Antonin I. Pribetic
The Hague Convention On Choice Of Court Agreements, Antonin I. Pribetic
Antonin I. Pribetic
The Hague Choice of Court Convention, concluded on June 30th, 2005, represents a significant step forward towards improved harmonization of international trade law by providing greater certainty and predictability for parties involved in business-to-business (B2B) agreements and transnational litigation. The Hague Choice of Court Convention offers a viable alternative to arbitration as a method of transnational dispute resolution. At a minimum, functional reciprocity between Contracting States is more likely to be achieved through this multilateral treaty, which codifies the private international law principles of comity, good faith and order and fairness, espoused by most common law courts, including the Supreme …
Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward
Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward
ExpressO
Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to improve our …
The Drafting Process For A Hague Convention On Jurisdiction And Judgments With Special Consideration Of Intellectual Property And E-Commerce, Knut Woestehoff
The Drafting Process For A Hague Convention On Jurisdiction And Judgments With Special Consideration Of Intellectual Property And E-Commerce, Knut Woestehoff
LLM Theses and Essays
This thesis is a study of the drafting process for the Hague Convention on Jurisdiction and Judgments. It will be demonstrated why the original goal of a broad treaty was given up in favor of a draft convention that only applies in international cases to exclusive choice of court agreements concluded in civil and commercial matters in the business-to-business setting. The reader will get an understanding of how the participating nations and interest groups influenced the negotiations and modified the outcome of the discussions. Special consideration was given to the matters of intellectual property and e-commerce, which were nearly completely …
From International Law To Law And Globalization, Paul Schiff Berman
From International Law To Law And Globalization, Paul Schiff Berman
ExpressO
International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …
Towards A Cosmopolitan Vision Of Conflict Of Laws: Redefining Governmental Interests In A Global Era, Paul Schiff Berman
Towards A Cosmopolitan Vision Of Conflict Of Laws: Redefining Governmental Interests In A Global Era, Paul Schiff Berman
ExpressO
It has now been ten years since the idea of global online communication first entered the popular consciousness. And while the internet has undoubtedly opened up new worlds of interaction and cooperation across borders, this increased transnational activity has also at times inspired parochialism, at least among the legislatures and courts of nation-states around the globe. Thus, we have seen a slew of national laws and court decisions purporting to regulate a wide variety of online activities, from gambling to chat rooms to auction sites, and seeking to enforce territorially based rules regarding trademarks, contractual relations, privacy norms, “indecent” content, …
"A Formstone Of Our Federalism": The Erie/Hanna Doctrine & Casebook Law Reform, Robert J. Condlin
"A Formstone Of Our Federalism": The Erie/Hanna Doctrine & Casebook Law Reform, Robert J. Condlin
University of Miami Law Review
No abstract provided.
The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins
The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins
University of San Diego Public Law and Legal Theory Research Paper Series
In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises …
“Indian Country” And The Nature And Scope Of Tribal Self-Government In Alaska, Geoffrey D. Strommer, Stephen D. Osborne
“Indian Country” And The Nature And Scope Of Tribal Self-Government In Alaska, Geoffrey D. Strommer, Stephen D. Osborne
Alaska Law Review
No abstract provided.
International Antisuit Injunctions: Enjoining Foreign Litigations And Arbitrations - Beholding The System From Outside, Marco Stacher
International Antisuit Injunctions: Enjoining Foreign Litigations And Arbitrations - Beholding The System From Outside, Marco Stacher
Cornell Law School J.D. Student Research Papers
Antisuit injunctions are issued by a court to prevent a party from bringing suit in another forum. They are a powerful tool available to American courts to implement their decision on jurisdiction. It goes without saying that granting such an injunction de facto affects the capability of the other forum to hear the dispute, which conflicts with the principle of comity. American courts therefore only enjoin a party from proceeding in another forum if certain criteria are satisfied. This paper discusses these criteria in the context of international litigations and arbitrations. It analyzes the case law on this issue and …
Re Canada Post Corp And Cupw, Innis Christie
Re Canada Post Corp And Cupw, Innis Christie
Innis Christie Collection
A previous Grievance which alleged improper staffing was successful and resulted in an Award which required that the affected employees receive an offer for the positions they would have had if filled properly. The Arbitrator retained jurisdiction regarding the implementation of the Award. A subsequent hearing regarding the Grievor resulted in an order to offer her the position she had been denied. The Grievor accepted the position, but with her own conditions. This hearing is to consider if she accepted the position or, by adding conditions, rejected the offer.
Countering Terrorism: From Wigged Judges To Helmeted Soldiers - Legal Perspectives On America's Counter-Terrorism Responses, Jackson Nyamuya Maogoto
Countering Terrorism: From Wigged Judges To Helmeted Soldiers - Legal Perspectives On America's Counter-Terrorism Responses, Jackson Nyamuya Maogoto
San Diego International Law Journal
This Article aims to evaluate the international legal perspectives attendant to U.S. counter-terrorism measures and policy and the attendant strictures an implications. Part II commences by grappling with the uneasy relationship that legal and political complexities have foisted on the UN's ability to address terrorism and the difficult issue of the definition of terrorism. Within the context of this part, the Article also addresses the two dominant counter-terrorism paradigms-law enforcement and conflict management. Part III oves on to evaluate the law enforcement paradigm which treats terrorism as a crime engaging domestic law enforcement. This part offers a discussion of the …
Voluntary Vs Mandatory Corporate Governance: Towards An Optimal Regulatory Framework, Anita I. Anand
Voluntary Vs Mandatory Corporate Governance: Towards An Optimal Regulatory Framework, Anita I. Anand
ExpressO
This article fills a gap in the legal literature by comparing mandatory corporate governance regimes to voluntary corporate governance regimes. It encourages market participants, including regulators, to acknowledge that firms have incentives to adopt enhanced governance practices voluntarily and to make disclosure about the same. The article argues that an optimal governance regime is a hybrid one in which adoption of best practice guidelines is voluntary but disclosure of corporate governance practices is mandatory. Such a regime is optimal because it balances the benefits and costs to all stakeholders, particularly issuers and investors. The cost analysis should be completed by …
Four More Years... Of The Status Quo? How Simple Principles Can Lead Us Out Of The Regulatory Wilderness, Adam Thierer
Four More Years... Of The Status Quo? How Simple Principles Can Lead Us Out Of The Regulatory Wilderness, Adam Thierer
Federal Communications Law Journal
No abstract provided.
Broadcast Flags And The War Against Digital Television Piracy: A Solution Or Dilemma For The Digital Era?, Debra Kaplan
Broadcast Flags And The War Against Digital Television Piracy: A Solution Or Dilemma For The Digital Era?, Debra Kaplan
Federal Communications Law Journal
With the advent of digital TV, many homes in the U.S. are now on the cutting edge of what is likely to be a sea change in how this country watches TV. While these homes can now begin to enjoy the numerous benefits of the technology, regulators and industry experts are working to craft responses to problems, both actual and anticipated, that the technology creates. Mindful of the piracy issues that came with the popularity of digital file formats in the music industry, the FCC addressed piracy in the digital TV context by endorsing the use of "broadcast flags" on …
The Potential Passage Of Proposed Senate Bill 578 And Its Implication On Hicks V. Nevada And Twenty Years Of Supreme Court Jurisprudence, Richard L. Warren
The Potential Passage Of Proposed Senate Bill 578 And Its Implication On Hicks V. Nevada And Twenty Years Of Supreme Court Jurisprudence, Richard L. Warren
American Indian Law Review
No abstract provided.
Inter-American System, Claudia Martin
Inter-American System, Claudia Martin
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Lagrand And Avena Establish A Right, But Is There A Remedy? Brief Comments On The Legal Effect Of Lagrand And Avena In The U.S, Malvina Halberstam
Lagrand And Avena Establish A Right, But Is There A Remedy? Brief Comments On The Legal Effect Of Lagrand And Avena In The U.S, Malvina Halberstam
ILSA Journal of International & Comparative Law
The United States is obligated under international law to review and reconsider the conviction and sentence of persons who were not informed of their right to request that their Consul be notified of their arrest and to meet with him, as provided for by Article 36 of the Vienna Convention on Consular Relations.
The 2005 Philip C. Jessup International Lawmoot Court Competition. The Case Concerning The Vessel The Mairi Maru, Isla Journal Of International & Comparative Law
The 2005 Philip C. Jessup International Lawmoot Court Competition. The Case Concerning The Vessel The Mairi Maru, Isla Journal Of International & Comparative Law
ILSA Journal of International & Comparative Law
In April of 2001, an agreement was entered into between Appollonia (Applicant) and Maguffin (not party to this case) for the exportation of MOX, produced by an Appollonian State-owned power plant. Since then, Appollonia has exported MOX to Maguffin via shipments traveling through the waters of Raglan (Respondent), located halfway between Appollonia and Maguffin.
Law Beyond Borders: Jurisdiction In An Era Of Globalization, Introduction To The Symposium, Robert A. Sedler
Law Beyond Borders: Jurisdiction In An Era Of Globalization, Introduction To The Symposium, Robert A. Sedler
Law Faculty Research Publications
No abstract provided.
Juvenile Execution, Terrorist Extradition, And Supreme Court Discretion To Consider International Death Penalty Jurisprudence, Prof. Elizabeth Burleson
Juvenile Execution, Terrorist Extradition, And Supreme Court Discretion To Consider International Death Penalty Jurisprudence, Prof. Elizabeth Burleson
Prof. Elizabeth Burleson
European human rights law and multilateral conventions have raised United States death penalty policy to an international level. Treaties and international institutions have impacted the extradition of capital offenders and influenced the development of human rights law within the United States. Refusal to extradite without assurances that the death penalty will not be imposed has continuing ramifications for the implementation of transnational counter-terrorism measures. Determining a contemporary standard of decency regarding cruel and unusual punishment, what shocks the public conscious, or what constitutes torture depends upon what societal parameters one uses. The Supreme Court's readiness to examine international developments in …
Interim Measures In International Human Rights: Evolution And Harmonization, Jo M. Pasqualucci
Interim Measures In International Human Rights: Evolution And Harmonization, Jo M. Pasqualucci
Vanderbilt Journal of Transnational Law
In this Article, the Author undertakes a comprehensive study of interim measures ordered in human rights cases before six international enforcement bodies--the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights, the United Nations Human Rights Committee, the United Nations Committee against Torture, and the Inter-American Commission on Human Rights. An order of interim measures may require that the State take positive action, such as providing protection for human rights activists or journalists, or it may call upon the State to refrain from taking action, such as not extraditing a person or delaying …
Emasculating The Philosophy Of International Criminal Justice In The Iraqi Special Tribunal, Farhad Malekian
Emasculating The Philosophy Of International Criminal Justice In The Iraqi Special Tribunal, Farhad Malekian
Cornell International Law Journal
In this article in the Symposium on Milosevic & Hussein on Trial, the author argues that the principle of international tribunality of jurisdiction is a form of globalization of international criminal justice that has the purpose of preventing the problems seen in the Iraqi Special Tribunal (IST) & the monopolization of international law by the United Nations Charter. Examination of historical, contemporary, & prospective approaches to the system of international law concerning the prosecution & punishment of individuals questions whether the laws of the IST reflect the basic foundations of international criminal justice. The principles of the Criminal Justice System …