Law Commons^™

Ec Reforms Of Corporate Governance And Capital Markets Law: Do They Tackle Insiders' Opportunism?, Luca Enriques, Matteo Gatti

Northwestern Journal of International Law & Business

Company and capital markets laws are rapidly evolving everywhere: there are few countries around the world where they have not been the subject of reform or where at least a reform agenda has not been devised. There are various reasons for this, both global and local. Among the global (or common) reasons for reform, two at least deserve to be singled out: large-scale market crises or prominent economic scandals, and financial development.

Korea's Competition Law And Policies In Perspective Symposium On Competition Law And Policy In Developing Countries , Youngjin Jung, Seung Wha Chang

Northwestern Journal of International Law & Business

The aim of this article is to provide an overview of competition law and competition policy in Korea and to analyze their relationship with other important national economic policies. Section II provides a historical survey of the country's competition law and policy. Section III examines the major components of the law and evaluates how the antitrust authority has actually enforced its provisions in practice. It also highlights elements of the law that have been tailored to Korea's unique economic circumstances. Section IV focuses on the relationship between competition policy and related economic policies-in particular, industrial policy and trade and investment …

Fundamentally Conflicting Views Of The Rule Of Law In China And The West & (And) Implications For Commercial Disputes, Benedict Sheehy

Northwestern Journal of International Law & Business

This paper is an examination of the notions of law, the Rule of Law, and commercial practice in the West and China. The paper outlines the basic philosophical principles and legal concomitants of the Rule of Law, and the corollary Chinese principles and concomitants. It examines the traditions, differences, and similarities in thinking about the issues in each tradition. It then examines the implications of these differences in commercial dispute resolution. After this discussion of traditions, similarities, and differences and their impact on commercial dispute resolution, the paper turns to address how the discrepancies could be dealt with in the …

Challenges To The Effective Implementation Of Competition Policy In Regulated Sectors: The Case Of Telecommunications In Mexico Symposium On Competition Law And Policy In Developing Countries , Oliver Solano, Rafael Del Villar, Rodrigo Garcia-Verdu

Northwestern Journal of International Law & Business

This article reviews Mexico's competition law and policy, with particular emphasis on the challenges that the Federal Competition Commission ("CFC") has faced in implementing an effective competition policy. Some of the difficulties analyzed are the loopholes in the current laws, the lack of cooperation between the CFC and other sectoral regulators, and the regulatory arbitrage by market participants. These challenges are then illustrated by the developments in the telecommunications sector. This sector is particularly interesting in the case of Mexico given the overwhelming power of the dominant firm and the overlapping and even conflicting mandates of the different government authorities …

Competition Policy In Developing Economies: The Case Of Brazil Symposium On Competition Law And Policy In Developing Countries , Gesner Oliveira, Thomas Fujiwara

Northwestern Journal of International Law & Business

The objective of this article is to discuss the implementation of competition policy in Brazil through a historical perspective. In contrast with the experience of various OECD countries, including the United States in particular, competition policy in Brazil has only recently become relevant. However, its increasing prevalence has not been preceded by the development of a competition culture and institutions. This fact has several implications for policy making. Best practices in the OECD countries cannot be automatically imported without due attention to the peculiarities of a developing economy. This paper is divided into five sections. Section II describes the different …

Anticipating Regulation Of New Telecommunications Technologies: An Argument For The European Model, Jessica Finley

Northwestern Journal of International Law & Business

This paper argues that the United States should look to the European Community in order to rework its telecommunications regulatory structure. More specifically, the United States should reconsider its current system of regulating various telecommunications sectors separately and follow the European Commission by developing a "single regulatory framework." By regulating the telecommunications transmission separately from telecommunications content, the United States can better anticipate emerging technologies rather than struggling to catch up with new technologies as they exceed the reach of the current regulatory framework. Part II will discuss the U.S. and European telecommunications regulatory frameworks. Part III will discuss the …

A Comparative Analysis Of Shareholder Protections In Italy And The United States: Parmalat As A Case Study, Lorenzo Segato

Northwestern Journal of International Law & Business

The goal of this article is to compare the protections offered to minority shareholders by the Italian system of corporate law with those offered by the U.S. legal system of corporate and securities law in order to determine if Parmalat's minority shareholders would have been better off had Parmalat been an American company listed in the U.S. financial market. This analysis will reveal several weaknesses in Italian corporate and securities laws, thereby providing a basis for suggestions on how to improve minority shareholders' rights in Italy based on the U.S. experience. Section II of this paper provides an overview of …

Merger Control Review In The United States And The European Union: Working Towards Conflict Resolution, Kathryn Fugina

Northwestern Journal of International Law & Business

While the economy continues to grow on a global scale, large companies seeking to stay competitive must look to international markets as a means of expansion and trade. As international mergers become a more common means of accomplishing these goals, an increasing number of countries are adopting competition laws. Unfortunately, the laws of different countries and regions can, and do, come into conflict. This paper examines the merger control laws of both the United States and the European Union, why these laws sometimes conflict, and provides suggestions for possible solutions for minimizing future conflicts. Part II reviews the relevant merger …

At The Crossroads: Making Competition Law Effective In Pakistan Symposium On Competition Law And Policy In Developing Countries , Joseph Wilson

Northwestern Journal of International Law & Business

Just as the first merger wave of the late 1880's in the United States resulted in the birth of Sherman Act, the recent global merger wave of the early 2000's, coupled with the growing liberalization of trade, prompted a large number of developing and transitional economies to adopt competition laws. Pakistan is one of the few developing countries with a competition law in place for more than three decades: the Monopolies and Restrictive Trade Practices Ordinance of 1970 ("MRTPO" or the "Ordinance"). While the Ordinance contained fairly strong provisions, the agency entrusted to implement it, the Monopolies Control Authority ("MCA"), …

Competition Law And Policy In Flux: The Developing Country Experience Symposium On Competition Law And Policy In Developing Countries: Introduction , David Van Zandt

Northwestern Journal of International Law & Business

This issue sheds light on the meaningful themes which are the driving forces in the global sphere of competition law and policy. It is also pertinent to note that the timing of this symposium is unique and coincides with the annual conference of the International Competition Network (ICN) to be held in South Africa in May 2006. The ICN is the only international body devoted exclusively to competition law enforcement and it consists of some ninety-four competition authorities from eighty-three countries. It has also become the premier international discussion forum on competition issues. With great pride, I invite you to …

Competition Advocacy: Time For A Rethink Symposium On Competition Law And Policy In Developing Countries , Simon J. Evenett

Northwestern Journal of International Law & Business

This paper examines the conventional wisdom concerning competition advocacy, paying particular attention to the applicability of such wisdom to developing countries. The definition of competition advocacy, its evaluation, and the likelihood of its successful implementation are discussed in some detail. The paper concludes with a call for considerably more thought about what, hitherto, has been one of the relatively uncontroversial aspects of many competition authorities' activities.

Same Plant, Different Soil: Japan's New Merger Guidelines Symposium On Competition Law And Policy In Developing Countries, Salil K. Mehra

Northwestern Journal of International Law & Business

Japan's New Merger Guidelines ("New Merger Guidelines"), issued by the Japan Fair Trade Commission ("JFTC") in May 2004, mark a turning point for antitrust in Japan. It is likely that Japan's New Merger Guidelines will be seen as a model for legal transplants in the future. Despite the similarities between Japan's New Merger Guidelines and the U.S. Horizontal Merger Guidelines ("U.S. Merger Guidelines"), Japan's New Merger Guidelines are unlikely to be a "success" in the same way that the U.S. Merger Guidelines have been a success since their adoption by the American competition agencies. Although Japan is far from a …

Taiwan's Fair Trade Act: Achieving The Right Balance Symposium On Competition Law And Policy In Developing Countries, Pijan Wu, Caroline Thomas

Northwestern Journal of International Law & Business

Adopting competition laws is part-and-parcel of a global trend. Indeed, it is striking to see how many countries first implemented competition laws within the last twenty-five years. In 2000, Frederic Jenny commented that "today between 80 and 100 countries have a competition law or are in the process of adopting one whereas ten years ago no more than 50 countries had such a law." This compares to less than ten countries in 1960. Promulgated by a Presidential Order on February 4, 1991 and coming into force one year thereafter, Taiwan's Fair Trade Act ("FTA") must be interpreted in this context. …

Development Of Competition Law In Vietnam In The Face Of Economic Reforms And Global Integration, The Symposium On Competition Law And Policy In Developing Countries, Alice Pham

Northwestern Journal of International Law & Business

This article examines the development of a competition regime in Vietnam, with all of the existing difficulties and problems. In the context of this socialist country, we examine the economic reform and integration process and the challenges of liberalization and globalization. Finally, we provide some thoughts for the future. Specifically, Section II addresses the emergence of Vietnam's competition law since the 1980's. Section III describes some of the key legal provisions of the Competition Law of Vietnam. Section IV evaluates the current challenges in the implementation of the Vietnam competition regime, while Section V proposes some recommendations.

Political Economy Of Competition Law: The Case Of Thailand, The Symposium On Competition Law And Policy In Developing Countries, Deunden Nikomborirak

Northwestern Journal of International Law & Business

This paper will address the political economy of competition law in Thailand. Section II will provide a historical perspective of Thai Competition Law. Section III will show what went wrong with the law's implementation since its promulgation in 1999. Section IV will assess the implications of the lack of competition law enforcement on business conduct and the establishment of a competition regime in Thailand. Section V will summarize major lessons learned in the Thai case that may be relevant to other developing countries considering adopting such a law or facing difficulties in its implementation. Finally, Section VI will draw conclusions …

Competition Policy And Practice In South Africa: Promoting Competition For Development Symposium On Competition Law And Policy In Developing Countries , Trudi Hartzenberg

Northwestern Journal of International Law & Business

South Africa's new competition policy and law were drafted during the early years of South Africa's new democracy, a period characterized by important domestic policy and regulatory reform. These reforms were not only part of the comprehensive program for the country's economic, social, and political transformation, but also its integration into the global economy after decades of isolation under the apartheid regime. In the case of competition policy, however, concerns about specific development challenges entrenched by the previous era of political and economic control, had to be explicitly reflected in the new South Africa's law and policy. It was clear …

Choice Of Law In Contracts: A Chinese Approach, Mo Zhang

Northwestern Journal of International Law & Business

This article attempts to emphasize that the choice of law analysis in China is distinct from that of other countries, despite the fact that many of the theories and approaches originate in Western countries. The underlying argument is that the ongoing economic reform in China has become a dramatic and driving force for change in the country. This change necessarily shapes the development of choice of law in China in a unique way, and also de. monstrates how China is getting closer to the rest of world while searching for the "China brand" theory and approach in this regard. What …

Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S.I. Strong

Northwestern Journal of International Law & Business

For years, U.S. courts took a highly deferential, "hands-off' approach to litigation involving a foreign sovereign. However, recent case law out of the D.C. Circuit has radically diminished the jurisdictional elements that plaintiffs must establish before a U.S. court will assert its power to enforce an arbitral award against a foreign state or state agency. This Article investigates this recent shift and describes what contacts, if any, a foreign state or state agency must have with the United States before a U.S. court will assert jurisdiction under sections 1605(a)(1) and 1605(a)(6) of the U.S. Foreign Sovereign Immunities Act ("FSIA").4 This …

Bilateralism Under The World Trade Organization, Y.S. Lee

Northwestern Journal of International Law & Business

The establishment of the World Trade Organization ("WTO"), which replaced the five decades of the General Agreement on Tariffs and Trade ("GATT") regime,' has significantly reinforced multilateral control over international trade on a global scale. As of October 2005, membership in the WTO has reached 148 nations, including the majority of former Soviet bloc and other communist countries,2 making the WTO the "United Nations of International Trade.",3 WTO disciplines have significant impact on world trade today; they have been enforced by the monitoring activities of various WTO bodies and by strengthened dispute resolution mechanisms. In addition, a significant number of …

Personal Jurisdiction For Internet Torts: Towards An International Solution, Holger P. Hestermeyer

Northwestern Journal of International Law & Business

As an introduction to the issue of Internet tort jurisdiction, Part I will recount the Yahoo! case, the most divisive case on the issue recently. Parts II and III will give an overview of the current law on Internet tort jurisdiction in two different legal systems: the United States and Germany. They will show that several recent cases in both countries have applied targeting approaches as advocated by Michael Geist and Rufus Pichler. However, insecurity remains and jurisprudence is far from consistent. Part IV will argue that insecurity about Internet jurisdiction could be reduced significantly if countries were to commit …

The Alien Tort Claims Act: Temporary Stopgap Measure Or Permanent Remedy, Borchien Lai

Northwestern Journal of International Law & Business

As the world has become smaller through technological advances in travel and communication, the international marketplace has grown larger. The United Nations ("U.N.") estimates that the number of multinational corporations tripled between 1988 and 1997 to 60,000. As these corporations increase their investments abroad, they also face proportionately increasing pressure from investors to run successful operations and increase profits. The result of this dynamic is well-documented. Multinational corporations invest heavily in underdeveloped countries where natural resources are abundant and labor is cheap. To facilitate operations in the country, the corporations must establish a rapport with the host governments-and often, in …

Bilateral Investment Treaties And The Possibility Of A Multilateral Framework On Investment At The Wto: Are Poor Economies Caught In Between, Victor Mosoti

Northwestern Journal of International Law & Business

The increased Foreign Direct Investment ("FDI") flows in the past few years have strengthened the belief among many developing countries, especially African countries, that such FDI flows could help in reducing the resource, technology and foreign exchange gaps that constrain their economic development. As a result, many developing countries have beendiligently working to attract foreign investment, for which these countries give some of the highest returns; in the process, these countries make concessions that they would have found unthinkable in the past, when autarchic economic policies were prevalent. For example, due to the liberalization of capital accounts, a foreign investor …

Contractual Liability Of Suppliers Of Defective Software: A Comparison Of The Law Of The United Kingdom And United States, Stephen E. Blythe

Northwestern Journal of International Law & Business

The common law of contracts has its roots in medieval England. Traditional contract law, evolved from the age of feudalism, focused on "hard copy" documents and their authentication. Today, we frequently find ourselves entering into virtual, digital contracts. Instead of signing the written document with a seal, we merely type in our name on the computer screen and click on "I accept." Should contract law be changed to accommodate the digital nature of the modem contract and, if so, to what extent should it be changed? A traditionalist may contend that there is no need to completely overhaul contract law …

Global Diseases, Global Patents And Differential Treatment In Wto Law: Criteria For Suspending Patent Obligations In Developing Countries, Bradly Condon, Tapen Sinha

Northwestern Journal of International Law & Business

Special and differential treatment of members is a controversial subject at the World Trade Organization ("WTO") and nowhere is the debate more pronounced than in the context of life-saving medicines and patent protection. However, concerns have been raised in WTO negotiations regarding how to ensure that special and differential treatment targets developing countries' trade, financial and development needs, without prejudicing the rights of other WTO members. In the fall of 2003, the WTO adopted a decision to amend the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") in order to enhance access to essential medicines in developing countries. In …

The Legal Landscape Of The International Art Market After Republic Of Austria V. Altmann, Sue Choi

Northwestern Journal of International Law & Business

In this note, I will show how Republic of Austria v. Altmann, while seemingly advancing the reparation of Nazi-looted art claims, undermines the stability of the international art market and the ultimate ability of future claimants to successfully recover their artwork due to inconsistent application of state and federal statutes. Part I will summarize the recent Supreme Court decision of Republic of Austria v. Altmann and its claim against a foreign country for the return of Nazi-looted art. Part II will examine what current legal protections exist to buffer the threat of litigation over Nazi-looted artwork that is on loan …

Cross-Border Securitized Transactions: The Missing Link In Establishing A Viable Chinese Securitization Market, Nicholas J. Faleris

Northwestern Journal of International Law & Business

This article proposes that asset-backed securitization in China could be jump-started by first focusing on cross-border (sometimes called transnational) securitization, and by establishing a dependable group of regional investors. Cross-border securitization transactions would enable China to experiment with various packaging of state-owned securities on a trial basis through a transaction-by-transaction process. Thus far, the focus has been specifically on reforming the legal infrastructure so that China eventually would be able to attract investors and capitalize on an emerging market. Rather than attempting to both build an infrastructure and attract asset-backed securitization investors with large, sweeping changes, the market would be …

Injury Investigations In "Material Retardation" Antidumping Cases, Prakash Narayanan

Northwestern Journal of International Law & Business

Despite the criticisms of economists to antidumping measures, they continue to be the most often used trade remedy measure. A new trend that may be observed is the use of the "material retardation" standard of injury to demonstrate injury to domestic industry that is one of the requirements for imposing antidumping duty. It is essential to be wary of this trend as unlike the other two types of injury, the WTO lacks specific guidelines for the use of this standard. The general rules in the Antidumping Agreement are unsuitable for the situations where the material retardation standard is relevant, and …

Test Of Multilateralism In International Trade: U.S. Steel Safeguards, Y.S. Lee

Northwestern Journal of International Law & Business

The highly publicized safeguard measures applied by the United States to an array of steel products in 2002 became one of the biggest and most controversial trade disputes in recent history. Virtually all major trading nations in the world, including the European Community, Japan , China , Brazil , Korea , New Zealand , Switzerland and Norway , were the direct parties to this dispute with the United States . The contentious legal grounds of the U.S. safeguard measures, as well as the lack of adequate consultations between the United States and its trading counterparts, have brought the international community …

Trips' Rebound: An Historical Analysis Of How The Trips Agreement Can Ricochet Back Against The United States, Donald P. Harris

Northwestern Journal of International Law & Business

Recently, scholars and commentators around the world have reexamined the role intellectual property rights (IPRs) play in hindering or helping developing countries. These scholars have questioned the doctrine the IPRs help developing countries by promoting economic development, increasing foreign direct investment, stimulating domestic innovation, and improving access to new technologies, and have concluded that imposing "Western-styled" intellectual property regimes (e.g., the U.S. patent regime) on developing countries harms those countries. In particular, such regimes fail to bring any of the purported benefits, while they impose many costs, including preventing people from obtaining life-saving drugs. This Article argues that it is …

Flores V. Southern Peru Copper Corporation: The Second Circuit Fails To Set A Threshold For Corporate Alien Tort Claims Act Liability, Lori Delaney

Northwestern Journal of International Law & Business

The Second and Ninth Circuit Courts have recently heard cases dealing with the application of the Alien Tort Claim Act (ATCA) against private, U.S. based multinational corporations (MNCs), and come to differing conclusions on the standards that should be used in applying this complicated law to suits by foreign nationals against U.S. based MNCs. The issue of private corporate liability under the ATCA was not definitively resolved by the Supreme Court in its recent decision in Sosa v. Alvarez-Machain , and thus the Circuits must continue to grapple with the application of the ATCA to U.S. based MNCs.

The Second …