Law Commons^™

An 'Unconventional Truth': Conflict Of Laws Issues Arising Under The Cisg, Antonin I. Pribetic

Antonin I. Pribetic

This article discusses the applicability of the CISG from a Canadian conflict of laws perspective - both in terms of jurisdiction and choice of law. The analysis is framed by providing an outline of the key jurisdictional and choice of law principles developed within Canadian jurisprudence. Following a brief contextual overview of the CISG, Articles 1(1) (a) and 1(1) (b) and Article 6 of the CISG are highlighted, with specific reference to recent Canadian and foreign judicial decisions and foreign arbitral awards involving Canadian parties. The article concludes with a clarion call to justice stakeholders, particularly, Canadian commercial lawyers and …

When The Corporate Luminary Becomes Seriously Ill: When Is A Corporation Obligated To Disclose That Illness And Should The Securities And Exchange Commission Adopt A Rule Requiring Disclosure?, Allan Horwich

Allan Horwich

WHEN THE CORPORATE LUMINARY BECOMES SERIOUSLY ILL: WHEN IS A CORPORATION OBLIGATED TO DISCLOSE THAT ILLNESS AND SHOULD THE SECURITIES AND EXCHANGE COMMISSION ADOPT A RULE REQUIRING DISCLOSURE? By Allan Horwich* ABSTRACT Recent speculation and rumors about the health of senior corporate executives of public companies (most notably Steve Jobs of Apple Inc.) and the advanced age of many leaders in the corporate community prompt a consideration of when, if at all, there must be public disclosure of the ill health of a person whose involvement in a corporation is perceived as vital to the continued financial success or independence …

A Troubled House Of Cards: Examining How The “Housing And Economic Recovery Act Of 2008” Fails To Resolve The Foreclosure Crisis, Chad Emerson

Chad Emerson

No abstract provided.

Electronic Commerce And Legal Protection For Consumers In Spain, Juan-Antonio Mondejar-Jimenez

Juan-Antonio Mondejar-Jimenez

Electronic commerce is becoming increasingly common at international level and is the object of analysis by various fields and scientific disciplines.

Guaranteeing the security of transactions is of fundamental importance if electronic commerce is to expand correctly. In this regard, legal protection for electronic commerce transactions is an area that is gaining in interest for scientific literature. The Spanish Information Society Services and Electronic commerce Act describes various aspects that need to be further developed in this field.

This document analyses the new contractual forms arising from the “Information Society” and the legal issues associated to the latter, as well …

Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy

Michael H LeRoy

Judicial review of arbitration awards is highly deferential, but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III court rulings by …

Contract Formation And The Entrenchment Of Power, Danielle K. Hart

Danielle K Hart

Conventional wisdom has it that modern contract law evolved at least in part to address problems created (or ignored) by the classical legal system. Consequently, modern contract law is different from classical contract in ways that make the current system work better than the regime it ostensibly replaced. For this to be true, however, the changes made by modern contract have to be effective in rectifying the problems engendered by classical contract law. But herein lays the problem. Modern contract identified coercion in the bargaining process that produces a bad bargain as a problem serious enough to warrant a solution. …

The New Basel Accord: Taking Cues From The Asian Financial Crisis, Megha Sharma

Megha Sharma

In complex financial relations, banks have a crucial role to play. They are the promoters of growth and they contribute in strengthening economies. For the same reason, considerable emphasis is laid on ensuring that banks do not default. Banks are the custodians of savings and generator of funds. At the international front, a crucial initiative in this direction was taken by the Basel Committee on Banking Supervision. The Basel Committee has come out with two Accords till date, namely, the International Convergence of Capital Measurement and Capital Standards, released in 1988 and International Convergence of Capital Measurement and Capital Standards, …

Selling Goods Internationally: The Scope Of The 1980 United Nations Convention On Contracts For The International Sale Of Goods (Cisg), Susan J. Martin-Davidson

Susan J Martin-Davidson

What is an international sale of goods? The answer to this question is critically important to trillions of dollars worth of transactions that are now governed by the UN Convention on Contracts for the International Sale of Goods. Lawyers facing an issue in the interpretation of the CISG must consult a daunting body of conflicting and minimally informative resources in many languages. The interpretive difficulties are particularly acute in deciding the scope of the Convention and the transactions to which it applies. This article examines the unresolved ambiguities in terms such as “sale of goods,” “place of business,” and “validity,” …

Stripping Down The Subprime Crisis, Whitney R. Travis

Whitney R Travis

In Nobelman v. American Savings Bank, the Supreme Court held that a literal reading of the Bankruptcy Code disallowed a Chapter 13 debtor from modifying the rights of a mortgage lender’s claim, secured by a primary residence. The decision thereby required a Chapter 13 debtor to pay the entire amount of the mortgage lender’s claim in order to retain possession of his home. Considering the debtor can modify the rights of nearly every other creditor in bankruptcy, one might wonder why mortgage lenders hold such an elite status. In his concurring opinion, Justice Stevens stated:

At first blush it seems …

The Role Of Private Sector Investment In International Microfinance And The Implications Of Domestic Regulatory Environments, William A. Langer

William A Langer

The Role of Private Sector Investment in International Microfinance and the Implications of Domestic Regulatory Environments

By William Langer

Microfinance – the practice of providing small, working capital loans and other financial services to poor individuals unable to obtain access to commercial sources of credit – has been able to transform the lives of over 100 million microentrepreneurs and their families in various regions throughout the world. Despite this impressive achievement, microfinance currently reaches only 10% of the estimated demand for microfinance services, comprised of approximately 1 to 1.5 billion self-employed poor persons worldwide. Practitioners agree that in order to …

Supplying The Adverb: Corporate Risk-Taking And The Business Judgment Rule, David Rosenberg

David Rosenberg

The business judgment rule precludes judicial review of most decisions by corporate directors. The rule is necessary to protect directors from potential liability for “good faith” decisions that ultimately end in failure. Courts and legal commentators have long emphasized the importance that the rule has in promoting the kind of risk-taking by corporations that has resulted in new ideas, new technologies and new markets. In recent years, Delaware courts have shown so much deference to risk-taking that they have misapplied the still-evolving doctrine of good faith. Professor Rosenberg argues that courts should use the same standards of good faith to …

Manipulating Court Doctrine For The Good Of The Common Law And Compulsory Arbitration, Richard L. Barnes

richard l barnes

No abstract provided.

Implications Of The Uk Companies Act 2006 For Institutional Investors And The Corporate Social Responsibility Movement, Gordon L. Clark, Eric R. W. Knight

Eric R Knight

Non-governmental organisations, activists, and the public-at-large hold large firms accountable on many issues including their environmental footprints and the social standards of their suppliers around the world. For those coming from European social democratic traditions, stakeholders have a legitimate voice in the affairs of the corporation especially in two-tiered governance regimes that separate supervision from management. Notwithstanding attempts to re-write their proper roles and responsibilities, the Anglo-American corporation is widely believed to be the medium for the accumulation of shareholder value.

Recently, however, a counter-argument has emerged suggesting that the UK Companies Act 2006 broke with this tradition to embrace …

Is Arbitration Under Attack? Exploring The Recent Judicial Skepticism Of The Class Arbitration Waiver And Innovative Solutions To The Unsettled Legal Landscape, Ramona L. Lampley

Ramona L. Lampley

This article explores the hotly debated field of enforcing arbitration clauses with binding class-action waivers. While the enforcement of arbitration clauses generally, and those with class-action waivers specifically, has undergone much debate in the past three years in both the academic and judicial fora; this article casts a new look on the analysis. Instead of advocating simply for or against the enforcement of the class-action waiver, this article analyzes the dialogue between the consumer products industry and the consuming public, via the court system. This dialogue has resulted in a “new wave” of consumer products arbitration agreements: agreements that are …

Repairing (The Doctrine Of) Irreparable Harm: Economic Analysis Of Preliminary Injunctions, Barak Medina, Ofer Grosskopf

Barak Medina

In deciding whether to grant a preliminary injunction courts compare the expected irreparable harm if the injunction is not issued to the irreparable harm that would result if the injunction is issued. An injury is considered irreparable only as far as it “cannot be cured by a remedy after trial.” This Article demonstrates that to maximize social welfare (“efficiency”) the definition of irreparable harm must be modified. From a social-welfare perspective, harms to one party which do not correlate to corresponding benefits to the other party are deadweight-losses, regardless of the availability of a remedy that may merely reallocate them …

The British Approach To Consumer Financial Disputes: A Model For Reform In Insurance Law And Beyond, Daniel Benjamin Schwarcz

Daniel Benjamin Schwarcz

Much of insurance law and regulation is concerned with compensating consumers who have been wrongly denied coverage. But policyholders nonetheless have relatively few realistic options for challenging an insurer’s adverse coverage determination. Litigation is often too slow and costly for those who have recently suffered significant financial loss. Meanwhile, the alternative dispute resolution options that do exist – such as the mediation services that insurance regulators offer or the existing variants of insurance arbitration – are generally either ineffective or unavailable for most disputes. This Article proposes a new way forward by looking to the United Kingdom’s innovative Financial Ombudsman …

The Reverse-Robin-Hood-Cross-Subsidy Hypothesis: Do Credit Card Systems Effectively Tax The Poor And Reward The Rich?, Steven Semeraro

Steven Semeraro

Robin Hood and his band of merry men infamously, if apocryphally, robbed from the rich and gave to the poor. Over the last decade, some economists have postulated that credit card companies do the opposite – forcing low-income cash customers to pay higher prices for retail goods that effectively fund the frequent flier miles and other rewards that go predominantly to affluent cardholders. Because the credit card systems prohibit surcharging, everyone pays the same price. But, these analysts reason, merchants inflate their prices across the board to cover the cost of credit card acceptance. While credit card customers are rewarded …

The Antitrust Economics (And Law) Of Surcharging Credit Card Transactions, Steven Semeraro

Steven Semeraro

When a customer uses a credit card, the merchant pays a small percentage of the purchase price to the bank that issued the card. This cost of card acceptance, known as the interchange fee, adds up to big money . . . really big. This year, the credit card companies anticipate that interchange fees will total $48 billion, an increase of nearly 300% since 2001. Merchants can do little to influence these fees, because credit cards are critical to their businesses and the systems’ rules prohibit surcharging. In recent years, commentators with growing levels of confidence have suggested that this …

Failure's Futures: Controlling The Market For Information In Corporate Reorganization, Jonathan C. Lipson

Jonathan C. Lipson

This Article identifies and explores an important gap in bankruptcy theory and policy, with significant implications for the coming wave of major business failures: How to manage information about financially distressed businesses?

The paper makes three claims. First, Chapter 11 of the United States Bankruptcy Code plays a unique informational role, as it creates mechanisms to explain a debtor’s failure and to promote reinvestment. Second, the information functions performed by this system face internal and external threats. Internally, bankruptcy reorganization increasingly resembles an unregulated securities market, dominated by sophisticated, wealthy investors whose motives and strategies are often highly opaque. Their …

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

this article addresses both the theoretical and practical elements of M&A due diligence regarding IP and IT, with an emphasis on recent developments.

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

No abstract provided.

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

This article is intended to address both the theoretical and practical elements of M&A due diligence associated with intellectual property and information technology issues.

At The Intersection Of Property And Insolvency: The Insolvent Company's Encumbered Assets, Riz Mokal

Riz Mokal

This is the working paper for an invited article published in (2008) 20(2) Singapore Academy of Law Journal 495.

When a company becomes subject to winding-up proceedings, it is widely thought to lose beneficial ownership of its property. The property is held, instead, on a ‘statutory trust’ to discharge the company’s liabilities. The attribution of this ‘proprietary’ effect to the commencement of winding-up has, however, created significant confusion. Faring particularly poorly is our understanding of the status of those of the company’s assets in which others held proprietary rights prior to this point, notably, assets the company’s title to which …

Going From The Frying Pan Into The Fire? A Critique Of The U.S. Treasury’S Newly Proposed Section 987 Currency Regulations, Joseph L. Tobin

Joseph L Tobin

In September 2006, the IRS proposed new regulations for taxation of currency gains and losses for U.S. corporations' foreign branches. The IRS has announced that it would like to finalize them as soon as possible, perhaps as early as the summer of 2008. The new regulations withdraw the old section 987 regulations of 1991. The IRS believes these new regulations are necessary in order to prevent taxpayers from taking "artificial" currency losses on assets such as land and machinery -- assets which do not vary with the exchange rate, according to the IRS. The new regulations propose to stop these …

Ceo Postings: Leveraging The Internet’S Communications Potential While Managing The Message To Maintain Corporate Governance Interests In Information Security, Reputation And Compliance, Margo E. K. Reder

Margo E. K. Reder

CEO POSTINGS –

LEVERAGING THE INTERNET’S COMMUNICATIONS POTENTIAL WHILE MANAGING THE MESSAGE TO MAINTAIN CORPORATE GOVERNANCE INTERESTS IN INFORMATION SECURITY, REPUTATION AND COMPLIANCE

By Margo E. K. Reder

For approximately eight years, Whole Foods Market, Inc. [Whole Foods] CEO John Mackey posted messages to Yahoo! Financial’s online message board for Whole Foods. Rather than using his real name, Mr. Mackey like many posters to chat rooms, created an online alter ego and posted his comments under a pseudonym. As “Rahodeb” Mr. Mackey promoted his Whole Foods chain, boasted about personal stock gains in Whole Foods stock, company plans and performance …

The Trademark Trap, Aneta Ferguson

Aneta Ferguson

The currently existing scheme of two filing systems for recordation of security interests in trademarks causes a lot of legal uncertainty and numerous problems for lenders and trademark owners. The uncertainty about the rules of perfection and priorities increases costs associated with financing transactions involving trademarks and contributes to the complexity of those transactions. The empirical study of the security interests in trademarks shows that fifteen percent of creditors failed to fulfill the requirements of the currently existing dual filing system and as a consequence are left in a position of unsecured creditors. Legislative reform is very urgently needed in …

Ripping Off Grandma And Grandpa Without Hurting The Banks Of America: Allowing The Elderly And Other Easy Prey To Pay For The Crimes Of Immoral Individuals And Institutions, Brett D. Maxfield

Brett D Maxfield

This paper looks at the abuses of the banks of America in the ways they influence the law of credit and debt collection and what can be done to reform the system.

The Nafta Cross-Border Trucking Pilot Program: Honoring Nafta Through A Modified U.S. Demonstration Project, Jack D. Ross

Jack D. Ross

Abstract: Since 1982, the U.S. Department of Transportation has prohibited Mexican truck drivers from obtaining operating authority to drive their trucks beyond a twenty-five mile commercial zone within the United States. In September 2007, the Bush Administration and the Department of Transportation launched a one year NAFTA Pilot Program that would allow one hundred pre-screened Mexican carriers to operate freely within the entire United States. Subsequently, the Pilot Program has created controversy between U.S. labor, afraid of job loss, and U.S. corporations, who desire cheaper movement of goods. Moreover, Congress has repeatedly, yet futilely, tried to forestall the Program. This …

A Strategic Functionalist Approach To International Commercial Mediation, Antonin I. Pribetic

Antonin I. Pribetic

Mediation in the international context is a relatively recent phenomenon. As an Alternative Dispute Resolution (ADR) mechanism, third-party neutral mediation is firmly entrenched in the legal ethos and procedural rules of most common law jurisdictions; such as the United Kingdom, the United States and Canada. However, in the rest of the world, including many European, Latin American and Asian nations with civil law traditions, mediation remains an elusive concept. Some commentators suggest this may be due in part to differences in systemic (i.e. adversarial vs. inquisitorial) and cultural (i.e. mediation vs. conciliation) orientations.

This paper considers whether International Mediation is …

International Commercial Arbitration In Cuba, Kevin S. Tuininga

Kevin S Tuininga

This article discusses the prospect of international commercial arbitration in Cuba.