Law Commons^™

Uncitral, Security Rights And The Globalisation Of The Us Article 9, Gerard Mccormack Professor

Gerard McCormack

Abstract – “UNCITRAL, Security Rights and the globalisation of the US Article 9” UNCITRAL, the United Nations Commission on International Trade Law, has recently produced a Legislative Guide on more particularly on secured transactions, or secured credit law as it is variously called. The Guide follows the broad contours of Article 9 of the United States Uniform Commercial Code though it is not an exact copy. It aims to harmonise and modernise the law of secured credit across the globe. In UNCITRAL’s view, the Legislative Guide will aid the growth of individual businesses and also in general economic prosperity. Harmonisation …

Making Wto Remedies Work For Developing Nations: The Need For Class Actions, Phoenix X. Cai

Phoenix X. Cai

Making WTO Remedies Work for Developing Nations: The Need for Class Actions

Abstract

Developing nations comprise more than four-fifths of the membership of the World Trade Organization (“WTO”). Yet, they seldom participate in the WTO’s powerful dispute settlement process. This is problematic because the WTO is essentially a self-enforcing system of reciprocal trade rights that relies on proactive monitoring and enforcement by all members. Use of the self-enforcement mechanism – by initiating cases under the WTO’s Dispute Settlement Understanding (“DSU”) - is critical.

There are five primary reasons why developing nations do not actively invoke the DSU. This Article argues …

Consumer Protection Initiatives In The Eu Mortgage Market: A Behavioral Economics Based Critique And Proposal, Debra P. Stark, Jessica M. Choplin

Debra Pogrund Stark

This article critiques the Commission of the European Union's recent consumer protection initiatives for the EU mortgage market focusing on the revised form of disclosures that the Commission appears poised to mandate in a Directive, providing suggested reforms to this form to make it more effective and proposing four additional consumer protections to empower EU consumers to make wise home loan decisions. The article argues that these additional consumer protections are a necessary condtion to creating the integrated EU mortgage market (with more cross border home loans) that the Commission desires.

Towards Cultural Autonomy In Tibet, George Zheng

George Zheng

Accommodating cultural distinctiveness of minority ethnic groups in multi-ethnic states has been an issue of theoretical importance and practical urgency for decades. China is the most populous multi-ethnic country in the world with a unique institutional design for ethnic minorities. However, this institutional design, namely, Minzu Quyu Zizhi (Regional Ethnic Autonomy), has not been properly studied before being criticized or ignored by the western commentators. In the western world, the Tibet issue has been extensively discussed in the context of human rights and “universal” constitutional principles, but rarely in the context of Chinese constitutional law. This article aims to fill …

How Powerful Is The Ioc? – Let’S Talk About The Environment, Marc A. R. Zemel

Marc A. R. Zemel

The International Olympic Committee (IOC) is in a unique position as the supreme administrator of an immensely popular international mega-event and a self-proclaimed champion of environmental issues and sustainable development. Every two years, cities from all over the world spend millions of dollars for the mere privilege of competing to host the Olympic Games, and those cities must play by the IOC’s rules. In addition, Article 2 of the Olympic Charter, the constitution-like instrument governing the IOC and the Olympic Movement, requires the IOC to ensure that the Olympics are held to promote sustainable development and show concern for the …

Financial Market Regulation After The Crisis: The Case For Hedge Fund Regulation Via Basel Iii, Wulf A. Kaal Ph.D.

Wulf A. Kaal Ph.D.

Hedge funds have been blamed for their part in the financial market crisis of 2008-09. The exact role and the scope of hedge funds’ involvement in the financial crisis is unclear. Regulators increasingly scrutinize the hedge fund industry worldwide. Regulation of hedge funds could help minimize moral hazard, social externalities and systemic risk generated by the hedge fund industry. The paper evaluates recent regulatory changes including the US Dodd-Frank Act, the European Union Directive on Alternative Investment Fund Managers and other pertinent regulation. Using the methodological tool of New Institutional Economics, the paper provides an impact analysis of regulatory changes, …

Teaching Negotiation To A Globally Diverse Audience: Ethics, Morality And Cultural Differences, David Allen Larson, Vanessa Seyman

David Allen Larson

"Teaching Negotiation to a Globally Diverse Audience: Ethics, Morality, and Cultural Differences" (by David Allen Larson and Vanessa Seyman) This is a short article discussing the challenges of teaching negotiation, and also the challenge of actually negotiating, in a globally diverse environment. Issues of ethics, morality and culture can surface quite quickly when teaching and negotiating in a multicultural environment. The article builds upon our recent experiences as participants in the Second Generation Global Negotiation conference held Istanbul, Turkey. The article provides examples of how cultural and language differences can impact both actual negotiations and negotiation teaching and provides suggestions …

Losing The War Against Dirty Money: Rethinking Global Standards On Preventing Money Laundering And Terrorism Financing, Richard K. Gordon

Richard K Gordon

Global standards for preventing money laundering and terrorism financing are among the most widely observed standards in the world today. Unfortunately there is substantial evidence that they do not work. A main reason is that the division of responsibility for gathering and evaluating information about criminal finances is misaligned. Private sector parties are asked to do more than they reasonably can do given their expertise, access to key data, and incentives. At the same time, public law enforcement agencies are being asked to do too little. This Article argues that the way governments have divided tasks between the private and …

Utilizing Rule Based Bias Filtering To Standardize Reasonable Doubt And Ameliorate Cognitive Biases, Yali Corea-Levy

Yali Corea-Levy

The standard of “proof beyond a reasonable doubt” is meant to, at least in part, ensure that the government meets the highest practical standard of proof possible before imposing a criminal penalty on a person. This article argues that the standard, as currently applied in trial settings, does not succeed in being the vanguard of prudence and equity it was meant to be. Specifically, it falls short because of its vagueness coupled with our cognitive peculiarities, including our tendency to feel certain about facts more easily than we should. This article describes the problem and ultimately suggests a relatively simple …

On The Road To Recognition: Irish Travellers’ Quest For Ethnic Identity, Kamaria A. Kruckenberg

Kamaria A Kruckenberg

This paper explores and defends Irish Travellers’ efforts to push the Republic of Ireland to recognize them as an ethnic minority group under law. Irish Travellers are a small indigenous minority group who have lived primarily in Ireland for centuries. They rank at the bottom of Irish society in rates of poverty, unemployment, life expectancy, infant mortality, health, education levels, political representation and access, and living conditions. Much like the Roma, with whom they share a nomadic tradition, Irish Travellers are in the midst a movement to improve living conditions, fight widespread discrimination, and gain recognition as an ethnic minority …

Fighting Terrorism With One Hand Tied Behind The Back: Delineating The Normative Framework For Conducting The Struggle Against Terrorism Within A Democratic Paradigm, Emanuel Gross

Emanuel Gross

Israel, Aug 2010.

Dear Editor.

I would like to submit my note entitled: Fighting Terrorism with One Hand Tied Behind the Back: Delineating the Normative Framework for Conducting the Struggle against Terrorism within a Democratic Paradigm.

The new age and the globalization process exposed us to many new phenomenons; some are totally unfamiliar, and some are deviate variation of their old version. Terrorism, one of the most despised and rejected phenomenon, can meet both these descriptions. The purpose of this article is to suggest a preference for a democratic state to conduct itself in her struggle against terrorism. The article …

No Innocents Here: Using Litigation To Fight Against The Costs Of Universal Service In France, Dorit Reiss

Dorit R. Reiss

Liberalization of utility sectors may bring the benefits of competition to customers, but it also creates risks of manipulation of the new system by powerful industrial actors. Litigation is one tool available to undermine or delay effective regulation. In 2001 the European Court of Justice declared the French system of funding universal service in telecommunications untreaty, and ordered France to redesign it. The commission and observers understood the case as a triumph of open market over France’s narrow protection of the "national champion" French Télécom. An alternative interpretation that fits the data better describes the story as successful use of …

Is Latin American Taxation Policy Appropriate For Promoting Foreign Direct Investment In The Region?, Hugo A. Hurtado

Hugo A Hurtado

Adoption of an appropriate international tax policy in Latin America can promote greater foreign direct investment. Latin American countries should work together on a tax integration process to give foreign direct investment a more regional approach rather than each country competing to attract its own foreign direct investment. Such intraregional competition results in lost tax revenues with no proven effect on foreign direct investment. A tax integration process would reduce the use of advanced tax planning techniques by multinational companies to take advantage of loopholes created by disparities between tax systems; however, it would also provide the foreign investor with …

Are Muslims The New Catholics? Europe's Headscarf Laws In Comparative Historical Perspective, Robert Kahn

Robert Kahn

ABSTRACT: Many European opponents of the headscarf view themselves as engaged in a “struggle against totalitarianism.” This article explores an alternative framing: What if Muslims—rather than Nazis or Communists in training—are the more like nineteenth century Catholics, who were seen as a religious threat to European (and U.S.) liberalism? To explore this idea, this article looks at the headscarf debate through the lens of the German Kulturkampf (1871-1887) and nineteenth century U.S. laws that banned public school teachers from wearing clerical garb. It reaches two tentative conclusions. First, many of the claims made against European Muslims—especially about the “backward” nature …

How Should China Respond To Online Piracy Of Sports Telecasts, Seagull Haiyan Song Dr.

Seagull Haiyan Song

No abstract provided.

Designing Privilege For The Tax Profession: Comparing I.R.C. § 7525 With New Zealand’S Non-Disclosure Right, Keith A. Kendall

Keith A Kendall

The United States and New Zealand are the only two common law jurisdictions to have successfully extended attorney-client privilege to non-lawyer tax advisers. While aimed at the common goal of such an extension, the two statutory rules implement very different means to achieve this purpose; the United States importing the common law into statute, with New Zealand creating a completely separate statutory right. An examination of the context and legislative histories of the respective statutory provisions finds that these forms are consistent with the legislative approach to evidentiary privileges in each jurisdiction and is, therefore, appropriate in each case. Other …

Labor Relations And Labor Law In Japan, Manabu Matsunaka

Manabu Matsunaka

This article discusses the relationship between Japanese labor law and employment customs, building on this rationalistic understanding of the Japanese employment customs. Our basic conclusion is as follows. The Japanese employment custom developed naturally through an agreement among the members of Japanese employment society and attained efficient economic performance up till the 1990s. During the time, the Japanese labor law mainly worked toward setting the stage for private bargaining and respected its agreement instead of enforcing the desirable result directly through legal regulations. Through this indirect approach toward labor relations in Japan, at least part of the Japanese labor law …

Liability For Trademark Infringement For Internet Service Providers, Katja G. Weckstrom

Katja G Weckstrom

ABSTRACT Liability for Trademark Infringement for Internet Service Providers Katja Weckström*

At the wake of the millennium and the rise of the internet, legislative action was taken to shelter internet service providers (ISPs) from various forms of legal action. In the turmoil of chartering new and unregulated territory, such a safe harbor was deemed necessary to protect up-starting businesses. Today, these internet actors e.g. Google, Amazon and eBay have grown strong and powerful. Thus, intellectual property holders have started to challenge this privilege in court. Increasingly, owners of famous marks seek liability and damages for direct and indirect trademark infringement …

A Comparative Copyright Analysis Of Isp Liability In China Versus The United States And Europe, Seagull Haiyan Song Dr.

Seagull Haiyan Song

The accompany article will be the first to examine the secondary liability theories of internet service provider (ISP) in the U.S., Europe and China. By conducting a comparative study of the legislation and case law developed in the aforesaid regions, the article addresses problems and uncertainty under the existing PRC copyright law as to the liability of ISPs, and then proposes a number of recommendations to be considered in its future legislative reform.

Tratos Preliminares Y Su Ruptura: Un Ejercicio De Comparative Law And Economics, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

El objetivo de la presente nota se centra en evidenciar, a colacion del analisis de las reglas de responsabilidad precontractual en los sistemas estadounidense y peruano, la utilidad del comparative law and economics. Para tales efectos se tomara en cuenta la influencia de las reglas de responsabilidad en la creacion de incentivos de inversion en los sujetos involucrados en una tratativa.

"Is It Legal?": An American Law Professor's Tribute To An English Lawyer Tv Sitcom, Robert M. Jarvis

Robert M. Jarvis

This paper introduces readers to a forgotten 1990s English TV sitcom called "Is It Legal?" and then compares it to a similar American TV sitcom called "Sparks." In the course of describing the show's characters and plots, the paper discusses the regulation of attorneys, the functioning of law firms, and the business aspects of the television industry.

Environmental Mitigation Aspects Of Water Resources In Geothermal Development: Using A Comparative Approach In Building A Law And Policy Framework For More Sustainable Water Management Practices In Canada, Kamaal Zaidi

Kamaal Zaidi

This paper examines environmental mitigation measures for water resources in the context of geothermal energy development among selected jurisdictions of the United States and New Zealand in the hopes of recommending a law and policy framework in Canada. These common law jurisdictions are chosen to reveal advances in the emerging area of geothermal law and policy. First, the geothermal energy process is explained, followed by a discussion of the legal aspects of geothermal energy development. Second, the benefits of geothermal law and policy are assessed from the experiences of the U.S. and New Zealand in terms of environmental mitigation measures …

A Policy Of Disregarding Public Policy: Pursuing The Comity Of Nations In Private International Law, Anthony Bessette

Anthony Bessette

Private agreements stipulating the forum, procedure, and substantive law to govern commercial relationships have become a common feature of international business. Companies that enter international contracts, and thus the economies of their countries to an extent, rely on them for certainty and stability. Almost all countries that honor foreign jurisdiction clauses reserve an exception for public policy. U.S. law has drifted from international standards and its modern roots in Bremen by narrowing its public policy exception to the vanishing point. This article examine the history of foreign jurisdiction clauses, the way other countries approach them, and recent developments which may …

Never Say Never: Searching For Common Ground Between Muslim And Western Nations On The Issues Of Human Dignity And Human Rights, Travis Weber

Travis Weber

Travis Weber 3736 Silina Drive Virginia Beach, VA 23452 703-470-5411 tsweber@gmail.com May 4, 2010 To Whom It May Concern: Enclosed is an abstract for my article, entitled Never Say Never: Searching for Common Ground Between Muslim and Western Nations on the Issues of Human Dignity and Human Rights. My article examines the gap between Islamic and Western views of human rights, explores how this gap developed, and briefly reviews how different theories of jurisprudence would approach this gap. Due to the current world-wide increase in religious activity, including the prominence of Islam, and the version of morality that Islam brings …

Because The Cart Situates The Horse: Unrecognized Movements Underlying The Indian Supreme Court’S Internalization Of International Environmental Law, Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

The text that follows is intended to serve as an examination of the approaches and methods employed by the Indian Supreme Court in its effort to integrate international environmental norms such as the principle of Sustainable Development, the Precautionary Principle and the Polluter Pays Principle as part of the existing body of binding, municipal rules in India. Virtually all of Indian legal jurisprudence that speaks to this subject has been developed by the Supreme Court. Likewise, in no small part for this contribution, the Court has developed a reputation for being an activist institution that has since the mid 1980s …

The International Anti-Money Laundering And The Combating The Financing Of Terrorism Regulation: A Critical Analysis Of Compliance Determinants In International Law., Navin Beekarry

Navin Beekarry

Concerns about risks of money laundering (ML) and terrorist financing (TF) to the stability of the international financial system have resurfaced in the context of the liquidity problems faced by financial institutions resulting from the recent credit crisis (2007). Because of their constantly evolving nature linked with new criminal activities and methodologies, ML and TF present threats of a systemic nature to the stability of the financial system. Addressing those changing faces of ML/TF and associated risks requires the design of a sufficiently flexible and adaptable international regulatory strategy. In this paper, I examine the international anti-money laundering and combating …

Universalising The American – Secured Credit And Uncitral, Gerard Mccormack

Gerard McCormack

Abstract - Universalising the American – Secured Credit and UNCITRAL This paper turns the spotlight on harmonisation and modernisation of secured credit law. The whole harmonization and modernization agenda appears to be driven by a desire to remove restrictions on the taking of security. This is because of a widespread belief that a “liberal” secured transactions regime promotes economic growth by widening the availability of credit. But the agenda also has its critics. The law of secured finance embodies cultural attitudes and public policy choices that vary greatly among States. Changes to legal doctrine often mirror changes that have taken …

No Innocents Here: Using Litigation To Fight Against The Costs Of Universal Service In France, Dorit Reiss

Dorit R. Reiss

Liberalization of utility sectors may bring the benefits of competition to customers, but it also creates risks of manipulation of the new system by powerful industrial actors. Litigation is one tool available to undermine or delay effective regulation. In 2001 the European Court of Justice declared the French system of funding universal service in telecommunications untreaty, and ordered France to redesign it. The commission and observers understood the case as a triumph of open market over France’s narrow protection of the "national champion" French Télécom. An alternative interpretation that fits the data better describes the story as successful use of …

Leashing The Internet Watchdog: Legislative Restraints On Electronic Surveillance In The U.S. And U.K., John P. Heekin

John P. Heekin

This article examines the legislative approaches undertaken by the United States and the United Kingdom to regulate the surveillance and interception of electronic communications. Drawing from the recognition of individual privacy in each country, the author explores the development and impact of statutory provisions enacted to accomplish effective oversight of the respective intelligence services. In the U.S., the shifting purposes and provisions of the Foreign Intelligence Surveillance Act of 1978 are tracked from implementation to its revisions following the terrorist attacks of September 11, 2001. Along that timeline, a distinct trend toward greater deference to Executive authority for electronic surveillance …

To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary Farber

Hillary B. Farber

Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the …