Commercial Law Commons^™

Us Trade Policy, China And The Wto (Foreword), Paolo Davide Farah

Book Chapters

In ‘U.S. Trade Policy, China and the WTO’, Nerina Boschiero addresses a key topic in contemporary international economic law and global governance. By focusing on a turning point in global politics and the shaping/framing of trade policy in the U.S.– the election of President Donald Trump sheds light on the tumultuous process of reshaping of global governance. The crisis of multilateralism has been discussed at length in academia and mainstream media. However, little attention has been paid to how the U.S. is reacting to the rise of China in the global order, in practical terms. In particular, focus …

M/S Bremen V Zapata Off -Shore Company: Us Common Law Affirmation Of Party Autonomy, Ronald A. Brand

Book Chapters

In the 1972 decision in M/S Bremen v Zapata Off -Shore Company, the U.S. Supreme Court brought together the development of doctrines dealing with party autonomy in choice of court and forum non conveniens. Especially when considered alongside developments favoring arbitration clauses in U.S. courts, the case provides a rich study of conflicts of laws jurisprudence in the twentieth century. This chapter begins with a discussion of fundamental elements of the development of party autonomy in U.S. law and the historical context of the law prior to The Bremen. A brief mention of how one prominent political family …

Jurisdiction Over Non-Eu Defendants: The Brussels I Article 79 Review, Ronald A. Brand

Book Chapters

When the original EU Brussels I Regulation on Jurisdiction and the Recognition of Judgments was “recast” in 2011, the Commission recommended that the application of its direct jurisdiction rules apply to all defendants in Member State courts, and not just to defendants from other Member States. This approach was not adopted, but set for reconsideration through Article 79 of the Brussels I (Recast) Regulation, which requires that the European Commission report in 2022 on the possible application of the direct jurisdiction rules of the Regulation to all defendants. Without such a change, the Recast Regulation continues to allow each Member …

Pathway To Minority Shareholder Protection: Derivative Actions In The People's Republic Of China, Donald C. Clarke, Nicholas C. Howson

Book Chapters

Using a dataset of Chinese judicial opinions arising in over fifty cases, this paper analyses the development and current implementation of shareholder derivative actions in the courts of the People’s Republic of China (“PRC”), both before and after the derivative lawsuit was explicitly authorized in the PRC’s 2006 Company Law effective January 1, 2006. In addition, we describe the very unique ecology of enterprise organization and corporate governance in modern China, and critique the formal design of the derivative action and offer reform suggestions. We find the design of the Chinese derivative lawsuit to be, in some respects, innovative and …

China's Restructured Commercial Banks: Nomenklatura, Nicholas C. Howson

Book Chapters

In the wake of the Asian Financial Crisis of 1997-98, and accelerating after 2003 the People's Republic of China (PRC or China) has implemented an ambitious reform program directed at the commanding heights of what once pa ed for China ' financial system-the large state-owned and state-managed commercial banks. Contrary to a good deal of advice offered by policy and finance specialists, China did not liquidate or fully privatize these institutions. Instead, the PRC sought to avoid the significant social (and no doubt political) cost associated with liquidation, or real privatization, by instead changing (1) the internal dynamics of, and …

Boilerplate And Economic Power In Auto-Manufacturing Contracts, Omri Ben-Shahar, James J. White

Book Chapters

This chapter examines the boilerplate contracts used by auto makers to procure parts from suppliers. It identifies drafting and negotiation techniques that are used to secure advantageous terms. It also explores some prominent specific arrangements as evidence that firms with bargaining power are exploiting their position to dictate self-serving but inefficient terms. Finally, it shows how standard contractual clauses solve the problem of ex-post hold-up by suppliers.

Gas Sale Contracts Under The Uniform Commercial Code, James J. White

Book Chapters

In the last decade, many oil and gas lawyers have learned more than they wish to know about the Uniform Commercial Code (U.C.C.). Like it or not, Article 2 of the U.C.C. governs most contracts for the sale of natural gas. Section 2-107(1) draws a distinct line between leases, deeds, and other conveyances of minerals in place, on the one hand, and the sale of the minerals by the miner or producer after the minerals have been severed, on the other. The consequence of this rule is that Article 2 has little or nothing to say about the sale of …

State Regulation Of Commerce (Update), Donald H. Regan

Book Chapters

In the period covered by this supplementary article, the Supreme Court has decided a case or two a year on state regulation of commerce. Considered individually, none of the cases through mid-1989 seems destined to become a landmark in DORMANT COMMERCE CLAUSE doctrin. Collectively, however, the cases may indicate a decreasing emphasis on "balencing" and an increasing focus on preventing states from intentionally discriminating against out-of-state interests.

The Expansion Of Federal Legislative Authority, Terrance Sandalow

Book Chapters

During the 190 years since the Constitution's adoption, the legislative authority of the Congress has greatly expanded. In the beginning, Congress's powers were closely circumscribed, but over the years the boundaries by which they were initially confined have been almost entirely obliterated. Congress has ceased to be merely the legislative authority of a federal government; it has for all practical purposes acquired the legislative authority of a unitary nation. Especially in the economic sphere, it is only a small exaggeration to say that Congress now possesses plenary authority.

Of course, Congress need not-and, in fact, does not--exercise all the power …

Practical Pitfalls In Handling Scientific Evidence, John W. Reed

Book Chapters

In this article we are concerned with the techniques of what is more often an art than a science. Before going into the specifics, it is useful to take a look at scientific evidence in general-where it stands in relationship to other kinds of evidence, on what theory or theories it is admitted, and how to maximize its effect when it is admitted.

Impossibility, Impracticability, And Supervening Illegality, James J. White

Book Chapters

The Doctrine of Impossibility, or as the Uniform Commercial Code knows it, Excuse by Failure of Presupposed Conditions, remains one of the unclimbed peaks of contract doctrine. All of the famous early and mid-twentieth century mountaineers, Corbin, Williston, Farnsworth and many lesser men have made attempts on this doctrine, but none have succeeded in climbing it to the very top. The doctrine inheres in Section 2-615 of the UCC, in Sections 454 - 469 of the Restatement of Contracts and in a series of Anglo-American cases stretching back for many years. In spite of attempts by all of the contract …