Law Commons^™

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Do Foreigners Need Title Insurance In Mexico? - An Analysis Of U.S. Title Insurance And Mexican Real Estate Law, Jeffrey G. Boman

ExpressO

This paper analyzes the title insurance industry in the United States and comparable institutions in Mexico. It begins with an overview of the history of title in both counties, followed by a description of their respective real estate systems. Finally, a summary of the laws that affect holding title to property in Mexico reveals that, although title insurance may provide other benefits for foreign investors, it provides duplicitous coverage for property in Mexico.

The Death Of The Doha Round. What Next For Services Trade?, Rafael Leal-Arcas

ExpressO

With the indefinite suspension of the WTO multilateral trade negotiations in July 2006 by WTO Director-General Pascal Lamy, the world trading system must now find ways and means to unblock what is perceived as a danger to the world order. This article analyzes the legal and policy implications of the currently fatal Doha Round for the two main developed WTO Members, i.e., the U.S. and the EC, and the most relevant developing countries of the WTO. The specific focus of attention will be mainly on services trade. Thoughts on alternative ways to move forward in the multilateral trading system are …

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

Polycephalous Anatomy Of The Ec In The Wto: An Analysis Of Law And Practice, Rafael Leal-Arcas

ExpressO

This article analyzes the unique legal position of the European Community (EC) in the world trading system. Its polycephalous anatomy derives from the fact that all 25 Member States of the EC are members of the World Trade Organization (WTO) along with the EC itself. This means that when referring to the EC, the whole as well as its parts are independent Members of the WTO. This has legal and political consequences related to the allocation of powers between the national and supranational levels that will be analyzed. The article explains what is meant by a “mixed agreement” and analyzes …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali

ExpressO

As the wave of outsourcing to India swells, there is growing concern about the inadequacies of the India legal system in protecting data being transferred to it from other nations for the purpose of processing. India has a smattering of laws that scantily address the issue of data privacy. Under pressure from the business processing industry in India, as well as from the European Union and other nations, it is but a matter of time before India adopts a slate of laws that address the issue of data protection. Once these laws are enacted, the main issue that remains is …

Is Ec Trade Policy Up To Par?: A Legal Analysis Over Time - Rome, Marrakesh, Amsterdam, Nice, And The Constitutional Treaty, Rafael Leal-Arcas

ExpressO

This article is an attempt to a thorough chronological analysis of the European Community’s (EC) existing law and policy in the field of international trade law since the beginning of the European Economic Community. It deals with the evolution of the EC’s common commercial policy competence through the years, starting with the European Coal and Steel Community (ECSC), moving on to the necessary changes brought by the World Trade Organization (WTO) Agreement, signed in Marrakesh in 1994, until the days of the European Union (EU) Constitutional Treaty, with a view to enabling the EC with a coherent trade policy in …

Damages In Lieu Of Performance Because Of Breach Of Contract, John Y. Gotanda

Working Paper Series

In contract disputes between transnational contracting parties, damages are often awarded to compensate a claimant for loss, injury or detriment resulting from a respondent’s failure to perform the agreement. In fact, damages may be the principal means of substituting for performance or they may complement other remedies, such as recision or specific performance.

Damages for breach of contract typically serve to protect one of three interests of a claimant: (1) performance interest (also known as expectation interest); (2) reliance interest; or (3) restitution interest. The primary goal of damages in most jurisdictions is to fulfil a claimant’s performance interest by …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Chameleon Effect: Beyond The Bonding Hypothesis For Cross-Listed Securities, Cally Jordan

ExpressO

This paper is based on a presentation made at the New York Stock Exchange Conference on the Future of Global Equity Trading, March 12, 2004, Sarasota, FL.

Looking back, was it a momentary enthusiasm? The dramatic increase in cross-listed securities, particularly in the United States, was one of the remarkable phenomena of the 1990s capital markets. The bonding, or corporate governance, hypothesis was one of the more intriguing theories to surface to explain the phenomenon. Cross-listing, the hypothesis suggested, might be a bonding mechanism by which firms, incorporated in a jurisdiction with “weak protection” of minority shareholder rights or poor …

Identity Theft And Consumer Protection: Finding Sensible Approaches To Safeguard Personal Data In The United States And Canada, Kamaal Zaidi

ExpressO

This paper examines identity theft in both the United States and Canada. Various examples of commercial fraud and scams are discussed in the context of a growing trend of identity thieves assuming identities of innocent consumers. As such, various pieces of legislation and consumer initiatives (involving online consumer complaint mechanisms)in U.S. and Canadian jurisdictions are highlighted to demonstrate the pursuit towards broader consumer protection of personal data used in daily commercial transactions. The author argues that these modern efforts to safeguard consumers from identity theft is a progressive measure that will continue to afford increasing protections for consumer personal data, …

Of Shrinking Sweatsuits And Poison Vine Wax: A Comparison Of Excuse For Nonperformance Under The Ucc And The Cisg, Carla Spivack

ExpressO

This article compares the doctrine of excuse/exemption for nonperformance under UCC 2-615 and CISG Article 79 analyzing texts, commentary and cases, and the underlying policy concerns of both regimes. It argues that a narrow interpretation of Article 79's basis for excuse/exemption is the reading intended by the drafters and most likely to promote the CISG's goal of facilitating transborder transactions.

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

Informal Economy: Is It A Problem, A Solution Or Both? The Perspective Of The Informal Business, Omar E. Garcia-Bolivar

ExpressO

This paper deals with the informal economy. For many it is a solution, for others it is a problem. What can the law do to incorporate the informal economy into the formal economy? Does it really matter? What are the challenges?

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

Understanding Jurisprudential Approaches To Islam, Marc L. Roark

ExpressO

The United States recent deal with a United Arab Emirites Company to operate seven U.S. Ports highlights a growing tension in U.S. and Arabic commercial relations. One tension that has remained unnoticed is the role that U.S Courts play in interpreting Islamic texts when the commercial or legal outcome depends on an understanding of the religious culture. This article describes seven cases that demonstrate various approaches to this problem. This article utilizes an approach by James Boyd White, and suggests that translation or its kin transliteration can help judges in deciding Islamic legal principles.

Comparative Corporate Governance: Irish, American, And European Responses To Corporate Scandals, Manish Gupta

ExpressO

A comparative review of legislative reactions to corporate scandals such as Enron and WorldCom. This paper examines American, Irish, and European Union legislation meant to deal with regulating corporations.