Comparative and Foreign Law Commons^™

Resolving Economic Disputes In Russia's Market Economy, Karen Halverson

Karen Halverson Cross

The purpose of this paper is to examine the recent transformation of state arbitrazh into economic courts along with the development of commercial arbitration in Russia, and to consider the relative utility of these mechanisms for resolving disputes in Russia's evolving market economy. Part I describes state arbitrazh and details its evolution into the existing system of economic courts. Part II discusses the past and recent development of commercial arbitration in Russia as an alternative to litigating domestic disputes. Part III considers various social and historic factors that hinder genuine reform.

Shareholder Exit Signs On Us And Eu Highways, Raluca Papadima

Raluca Papadima

Shareholder Wealth Maximization As Means To An End, Robert P. Bartlett, Iii

Robert Bartlett

In several recent cases, the Delaware Chancery Court has emphasized that where a conflict of interest exists between holders of a company’s common stock and holders of its preferred stock, the standard of conduct for directors requires that they strive to maximize the value of the corporation for the benefit of its common stockholders rather than for its preferred stockholders. This article interrogates this view of directors’ fiduciary duties from the perspective of incomplete contracting theory. Building on the seminal work of Sanford Grossman and Oliver Hart, incomplete contracting theory examines the critical role of corporate control rights for addressing …

Treating The New European Disease Of Consumer Debt In A Post-Communist State: The Groundbreaking New Russian Personal Insolvency Law, Jason J. Kilborn

Jason Kilborn

This article examines the tumultuous transition from restrictive Communism to the debt-fueled consumer economy of modern Russia. In particular, it surveys Russia’s legal response to severe debt distress, situating it in the context of nearly one thousand years of historical development. Effective 1 October 2015, Russia finally joined most of its European neighbors in adopting a personal bankruptcy law, with characteristics that reflect both evolving international best practices and a series of lessons not learned. This article offers the first detailed exposition in English of the two steps forward represented by this new law, as well as an evaluation of …

Legal Transplantation Or Legal Innovation? Equity-Crowdfunding Regulation In Taiwan After Title Iii Of The U.S. Jobs Act, Chang-Hsien Tsai

Chang-hsien (Robert) TSAI

Sales Or Plans: A Comparative Account Of The "New" Corporate Reorganization, Stephanie Ben-Ishai, Stephen J. Lubben

Stephanie Ben-Ishai

In this article, Professors Stephanie Ben-Ishai and Stephen Lubben explore the recent surge in popularity of “quick-sales,” essentially the pre-reorganization plan sale of an insolvent debtor’s assets. In their examination of quick sales, the authors use the recent examples of Lehman Brothers and Chrysler to illustrate the popularity and relevance of the pre-plan sales. The authors then move on to a more detailed discussion of the quick sales process in both Canada and the United States, isolating the differences and similarities between both countries, and weighing the costs and benefits of each approach. Ultimately, the authors argue that questions of …

Promoting Commercial Law Reform In Eastern Europe, Samuel Bufford

Hon. Samuel L. Bufford

This article is my account of what I did in a decade of advising governments and teaching judicial seminars on commercial law matters in Central and Eastern Europe, beginning in 1991. This article contains my individual reflections on more than a dozen visits to developing countries in Central and Eastern Europe to advise governments and to educate their judges, and several visits of judges from some of those countries to the United States. In many ways, my experiences are typical of United States judges who have done the same kind of work in developing countries. In some ways, my experiences …

Parol Evidence Under The Cisg: The "Homeward Trend" Reconsidered, 68 Ohio St. L.J. 133 (2007), Karen H. Cross

Karen Halverson Cross

The CISG has been described as one of history 's most successful attempts to harmonize international commercial law. Consistent with its goal of harmonizing the law of international sales, Article 7(1) of the CISG instructs courts and arbitrators to interpret the Convention in light of "its international character and the need to promote uniformity in its application. " MCC-Marble v. Ceramica Nuova D'Agostina is a U.S. decision that has been praised for its adherence to Article 7(1). In contrast with conventional academic commentary, which praises MCC-Marble and criticizes the tendency of courts to interpret the CISG in light of their …

China's Wto Accession: Economic, Legal, And Political Implications, 27 B.C. Int'l & Comp. L. Rev. 319 (2004), Karen H. Cross

Karen Halverson Cross

This Article discusses the unparalleled economic, legal, and political change that has confronted China during WTO accession. The Article focuses on the relationship between China's unique WTO accession process and China's reform over the past two decades. The author suggests that WTO accession has acted as a lever for economic and legal reform by locking in reform and making it irrevocable. The Article begins with a historical background of China's long road to accession and the way that this process worked to further the previously instated economic reform program. Next, the Article analyzes the manner in which WTO accession has …

Improvements To Combat Money Laundering And Terrorist Financing: A Comparative View Of Spain And The United States, William Byrnes

William H. Byrnes

No abstract provided.

Discriminatory Internal Taxation In The European Union: The Power Of The European Court Of Justice To Limit The Tax Sovereignty Of Member-States Under Article 110 Of The Tfeu, Jarrod Tudor

Jarrod Tudor

Protectionism can come in a variety of methods including the use of internal taxation policies that discriminate against imports making those imports more expensive on the domestic market and thus favoring domestically-produced goods. Discriminatory taxation policies have been developed by member-states to mask protectionism by distinguishing products based on import status, product similarity, product life cycle, consumption, tax collection practices, transportation charges, and state aid. The Framers of the Treaty on the Functioning of the European Union (TFEU) wrote Article 110 with the objective in mind to prohibit internal taxation policies from discriminating against goods in made in other member-states. …

Insuring Floods: The Most Common And Devastating Natural Catastrophies In America, Christopher French

Christopher C. French

The Harmonization Of Browsewrap Agreements Abroad And The Protection Of American Consumers, Tinsley A. Ashley

Tinsley A Ashley

No abstract provided.

How Do Macau And Brazil Use "Eletronic Payment" To Improve Chinese-Lusophone Business Relations? - China-Brazil Relations And Macau, Claudia Ribeiro Pereira Nunes

Claudia Ribeiro Pereira Nunes

Macau's position as a privileged place in the connection between the People’s Republic of China and the Portuguese-speaking countries opens a space for the creation of entities in these countries as a way to facilitate, and even encourage, international financial relations; particularly among Brazil, the Pearl River Delta (Macau and Hong Kong) and the People’s Republic of China. This paper highlights the various challenges of electronic payment, also known as payment by securities receivables, and examines the comparative perspective of Brazil-Macau. It is necessary to investigate two research subjects: (i) Brazilian Law’s use of electronic payment from Brazil to China; …

The Failure Of Corporate Internal Controls And Internal Information Sharing: A Conceptual Framework For Taiwan, Chang-Hsien Tsai

Chang-hsien (Robert) TSAI

Although East Asian jurisdictions such as Taiwan have been adopting similar models of Anglo-American independent directors and audit committees in recent years, we can find that common issues are failure of internal controls, in general, and dysfunctional internal information-sharing mechanisms, in particular. To accommodate Taiwan’s reform trend towards furthering the adoption of independent directors and audit committees, this paper offers a roadmap for conceptual solutions which are harmonic with each other as prerequisites to enable monitors of management to have the incentives and means to exercise their oversight. First, the board’s duty to monitor should be reiterated while being transplanted …

Litigating In The Qatar International Court / لتقاضي في محكمة قطر الدولية, Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.

Exchange Of Information: Fatca, Gatca, Beps, In The Context Of Latin America, William Byrnes

William H. Byrnes

No abstract provided.

Presentation Slides - How Do Brazil And Macau Use "Eletronic Paymente To Improve Chinese-Lusophone Business Relations?, Claudia Ribeiro Pereira Nunes

Claudia Ribeiro Pereira Nunes

Macau's position as a privileged place in the connection between the People’s Republic of China and the Portuguese-speaking countries opens a space for the creation of entities in these countries as a way to facilitate, and even encourage, international financial relations; particularly among Brazil, the Pearl River Delta (Macau and Hong Kong) and the People’s Republic of China. This paper highlights the various challenges of electronic payment, also known as payment by securities receivables, and examines the comparative perspective of Brazil-Macau. It is necessary to investigate two research subjects: (i) Brazilian Law’s use of electronic payment from Brazil to China; …

Directors’ Legal Duties And Csr: Prohibited, Permitted Or Prescribed In Contemporary Corporate Law?, Benedict Sheehy, Donald Feaver

Benedict Sheehy

Abstract: The interaction between CSR obligations and directors’ legal duties is seriously under examined. This article addresses that lack by examining directors’ duties in case law and legislation across the major commonwealth countries and the USA. It provides an analysis of leading cases and examines how they deal with the issues of the shareholder primacy doctrine, corporate legal theory, CSR and directors’ duties. The article reviews fiduciary relations and duties, analyses the directors’ duties to exercise power in the best interests of the company as a whole and for proper purposes. As this area of law is highly contested there …

Soft Law And The Principle Of Fair And Equitable Decisionmaking In International Contract Arbitration, Larry Dimatteo

Larry A DiMatteo

This article provides a survey of the special relationship between international commercial arbitration and soft law instruments. It briefly traces the historical roots of the lex mercatoria to its present enunciation in the Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts. It discusses the characteristic of the hardness and softness of laws in an international commercial law context. The CISG is studied not only as a hard law, but also as an example of soft law. The affinity between soft law and international commercial arbitration is explored, as well as …

Intergovernmental Agreements & Automatic Exchange With The Usa: Is This The End Of The United States As The World’S Largest Offshore Centre?, William Byrnes

William H. Byrnes

No abstract provided.

Categorization Of Trusts By Fatca And The Intergovernmental Agreements, William Byrnes

William H. Byrnes

No abstract provided.

Consequences For The Accidental (Latin) American And Us Reciprocal Automatic Exchange, William Byrnes

William H. Byrnes

No abstract provided.

Oportunidades Para Las Empresas Dentro De La Omc, Rodolfo C. Rivas Rea Esq.

Rodolfo C. Rivas

The author provides a brief overview of the World Trade Organization (WTO), the International Monetary Fund (IMF) and the World Bank (WB) by explaining the context of their interrelationship. Afterwards, the author delves into a brief analysis of Mexico’s role in the International Trade arena and concludes by describing the paths through which the private sector can benefit from the WTO.///////////////////////////////////////////////////////////////////////////////////////El autor pone en contexto la interrelación entre la Organización Mundial del Comercio (OMC) el Banco Mundial (BM) y el Fondo Monetario Internacional (FMI). Posteriormente, el autor describe brevemente el rol de México dentro de las instituciones de Comercio Internacional …

La Industria Del Libro 3.0 Y J.K. Rowling, Rodolfo C. Rivas Rea Esq., Maria Alejandra Lopez Garcia Esq.

Rodolfo C. Rivas

The authors provide a brief overview of what could be called the 3.0 version of the book industry. Under the 3.0 book industry, the author’s role in exploiting their creations has to embrace new and creative business models, which may often come into conflict with publisher’s old business models. In the article, the authors take a look at the innovative business models implemented by J.K. Rowling, Stephen King, Radiohead and Frank Ocean amongst others. ///////////////////////////////////////////////////////////////////////////////////////////////////// Los autores proporcionan una breve descripción de lo que podría llamarse la versión 3.0 de la industria del libro. En la industria del libro 3.0, …

Cambio De Perspectiva: El Nuevo Papel De Los Creadores En El Entorno Digital, Rodolfo C. Rivas Rea Esq., Maria Alejandra Lopez Garcia Esq.

Rodolfo C. Rivas

The authors provide a brief overview of the author’s role in exploiting their creations and how new technologies have made authors and publishers explore new business models. In the article, the authors take a look at the innovative business models implemented by J.K. Rowling, Stephen King, Radiohead and Frank Ocean amongst others./////////////////////////////////////////////////// Los autores proporcionan una breve descripción de la función del autor en la explotación de sus creaciones y cómo las nuevas tecnologías han obligado a los autores y editores explorar nuevos modelos de negocio. En el artículo, los autores echan un vistazo a los modelos de negocio innovadores …

Changing Places: A New Role For Creators In The Digital World, Rodolfo C. Rivas Rea Esq., Maria Alejandra Lopez Garcia Esq.

Rodolfo C. Rivas

The authors provide a brief overview of the author’s role in exploiting their creations and how new technologies have made authors and publishers explore new business models. In the article, the authors take a look at the innovative business models implemented by J.K. Rowling, Stephen King, Radiohead and Frank Ocean amongst others./////////////////////////////////////////////////// Los autores proporcionan una breve descripción de la función del autor en la explotación de sus creaciones y cómo las nuevas tecnologías han obligado a los autores y editores explorar nuevos modelos de negocio. En el artículo, los autores echan un vistazo a los modelos de negocio innovadores …

Implementación De Políticas Corporativas Sobre Internet Y Redes Sociales En México, Rodolfo C. Rivas Rea Esq.

Rodolfo C. Rivas

The author analyzes and describes the necessary elements of a successful social media and Internet corporate policy; through citing common pitfalls and learning lessons from different jurisdictions across the world. The author then offers general guidelines on policies for Mexican enterprises under Mexican legislation.///////////////////////////////////////////////////////////////////////////////////////El autor analiza y describe los elementos necesarios de una política corporativa sobre internet y redes sociales exitosa, citando los errores más comunes y aprendiendo lecciones de las legislaciones de distintos países.

Lo Que Usted Debe Saber Al Invertir En Una Franquicia En México, Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq.

Rodolfo C. Rivas

The authors provide a brief account of the increasing importance of franchises in the current economic environment. Furthermore, in this walkthrough the authors discuss the existing legal regime for franchises in Mexico and provide an analysis of the negotiating positions involved in successfully developing a franchise.//////////////////////////////////////////////////////////////////////Los autores proporcionan un breve estudio sobre la creciente importancia de las franquicias en el entorno económico actual. Además, los autores analizan el régimen jurídico vigente para las franquicias en México y ofrecen un análisis sobre las negociaciones necesarias para el desarrollo exitoso de una franquicia.

Information Disclosure, Risk Trading And The Nature Of Derivative Instruments: From Common Law Perspective, Christopher Chao-Hung Chen

Christopher Chao-hung CHEN

This paper explores issues of pre-contractual disclosure for derivative instruments, of which this paper describes as contracts to trade risks, in the UK and US. While there is no general duty of disclosure in common law, this paper focuses on whether there should be a duty of disclosure for derivative instruments by comparing with securities law and insurance law. This paper argues that mandatory disclosure in the securities market cannot be extended to exchange-traded futures contracts (save where securities are involved) because of the nature of securities. In addition, this paper argues that derivative instruments, though similar to insurance in …