Law Commons^™

International Commercial Courts In The United States And Australia: Possible, Probable, Preferable?, S. I. Strong

Faculty Articles

As worldwide interest in international commercial courts grows, questions arise as to whether individual nations can or should seek to compete in the “litigation market” by developing their own cross-border business courts. This essay compares the prospects of the United States and Australia in this regard, focusing on whether it is possible (Section II), probable (Section III), and preferable (Section IV) for one or both of these two federalized, common law nations to develop an international commercial court as part of their national judicial systems. The inquiry is particularly intriguing given that one country (the United States) has had a …

Crowding Out Theory: Protecting Shareholders By Balancing Executives’ Incentives In France, The United States, & China, Palden Flynn

Northwestern Journal of International Law & Business

This paper explores the differences between executive compensation regimes in France, the United States, and China. It asks whether there is a link between state regulation of real options as a form of executive compensation and state regulation of shareholder protections. This paper argues that if a country regulates the use of real options as compensation, then that country is also more likely to have strong shareholder protection laws. This argument seems to be true based on a descriptive review of executive compensation law and shareholder protections in France, the United States, and China.

If it is true that countries …

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better …

Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

The Case For American Muslim Arbitration, Rabea Benhalim

Publications

This Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated …

Between Power Politics And International Economic Law: Asian Regionalism, The Trans-Pacific Partnership And U.S.-China Trade Relations, Jiangyu Wang

Pace International Law Review

This Article examines the interactions of power politics and international economic law in the development of regionalism in Asia, particularly in the context of United States-China trade relations. It argues that the process of regional economic integration in Asia has been slow-moving because of the politicization of regionalism by power rivalries. China’s initial regional integration initiatives apparently ignored the United States, a superpower which has always been a major player in Asia and an indispensable part of the region’s economic process. The United States-led Trans-Pacific Partnership was allegedly designed to exclude China, Asia’s largest economy. On the other hand, the …

Commercial Arbitration: Germany And The United States, Jill I. Gross, Christian Duve

Elisabeth Haub School of Law Faculty Publications

Arbitration has deep roots in the legal cultures of the United States and Germany--and is still an important option for resolving disputes in both countries today. As far back as Colonial times, US merchants used arbitration to settle industry disputes, and in the early 19th century, American stockbrokers resolved intra-industry disputes through arbitration at the New York Stock Exchange. In Germany, a country with a civil law rather than a common law tradition, commercial arbitration has been practiced for centuries: the first draft of the German Code of Civil Procedure from 1877 included a section establishing the legal foundations of …

Drugs, Drugs Everywhere But Just Not For The Poor, Srividhya Ragavan

Srividhya Ragavan

The objective for this article is to understand the legitimacy and limitations of US involvement in another country’s sovereign actions taken expressly in the public interest, or to protect public health, such as the compulsory licensing of pharmaceuticals.

Drugs, Drugs Everywhere But Just Not For The Poor, Srividhya Ragavan

Faculty Scholarship

The objective for this article is to understand the legitimacy and limitations of US involvement in another country’s sovereign actions taken expressly in the public interest, or to protect public health, such as the compulsory licensing of pharmaceuticals.

Financing Consumer Sales And Product Defences In Canada And The United States, Benjamin Geva

Benjamin Geva

No abstract provided.

The Faces Of Japanese Labor Relations In Japan And The U.S. And The Emerging Legal Issues Under U.S. Labor Laws, Ronald C. Brown

Ronald Brown

The so-called "traditions" of Japanese labor relations are being put into practice in the United States in adapted form by Japanese investors and are being adopted by U.S. companies as well. This Japanese-style labor relations is in effect - the "new labor relations" in the United States.

A Proposed Modification Of U.S. Import Relief Measures In The Context Of A U.S. - Canada Free Trade Agreement: Safeguard, Countervail, And Antidumping, Roland J. Behm

Georgia Journal of International & Comparative Law

No abstract provided.

A Comparative Study Of Monitoring Of Management In German And U.S. Corporations After Sarbanes-Oxley: Where Are The German Enrons, Worldcoms, And Tycos?, Florian Stamm

Georgia Journal of International & Comparative Law

No abstract provided.

Regulation - The Balance Point , W. D. Brewer

Pepperdine Law Review

No abstract provided.

American Parent Bank Liability For Foreign Branch Deposits: Which Party Bears Sovereign Risk?, Adam Telanoff

Pepperdine Law Review

No abstract provided.

Prospects For Satisfactory Dispute Resolution Of Private Commercial Disputes Under The North American Free Trade Agreement, Jonathan I. Miller

Pepperdine Law Review

No abstract provided.

Settling With Your Hands Tied: Why Judicial Intervention Is Needed To Curb An Expanding Interpretation Of The Foreign Corrupt Practices Act, Pete J. Georgis

Golden Gate University Law Review

This Comment argues that the broad interpretation of the FCPA’s business nexus requirement, which criminalizes payments that both directly and indirectly “obtain or retain business,” encourages prosecutorial abuse and deviates from the intended purpose of the Act. The Justice Department’s expansive approach to FCPA enforcement has cost companies tremendously, even though the Act’s drafters intended for a more balanced approach. Part I of this Comment will discuss the history and background of the Foreign Corrupt Practices Act of 1977 and its amendments in 1988 and 1998. Part II will examine the application of the business nexus requirement in United States …

Coyote Publishing, Inc. V. Miller: Blurring The Standards Of Commercial And Noncommercial Speech, Nicole E. Wolfe

Golden Gate University Law Review

In Coyote Publishing, Inc. v. Miller, the Ninth Circuit considered the constitutionality of a Nevada statute that regulates commercial advertising of legal brothels. The Ninth Circuit held that severe restrictions on brothel advertising, even in counties where brothels are legal, are valid under the First Amendment. The court concluded that Nevada Revised Statutes sections 201.430(1) and 201.440, which largely prohibit the advertising of licensed brothels, met the four prongs of the Central Hudson test. Although the Ninth Circuit held that Nevada Revised Statutes section 201.430(1) was constitutional, the facts of the case did not apply to Nevada Revised Statutes section …

Interstate Compacts Establishing State Entitlements To Water: An Essential Part Of The Water Planning Process, Charles T. Dumars, Stephen Curtice

Oklahoma Law Review

No abstract provided.

Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth Thornburg, Camille Cameron

Articles, Book Chapters, & Popular Press

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Faculty Publications

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better …

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 …

The Threat Of Border Security On Indigenous Free Passage Rights In North America, Joshua J. Tonra

Syracuse Journal of International Law and Commerce

This note will examine the development and current state of passage rights under United States (Part I), Canadian (Part II), and Mexican law (Part 111). Part IV of this note will then critically explore the current state of the law as it affects two tribes whose homelands are bisected by the United States' borders with its neighbors: the Mohawk Nation, along the U.S.-Canada border; and the Tohono O'odham, on the U.S.-Mexico border. The Note will conclude with an examination of a number of possible changes to border policies affecting the indigenous nations, and a proposal for a unified policy for …

Getting A Good Buy With A Little Help From A Friend: Turning To The United States To Go Forward With Australian Takeovers Regulation, James Mcconvill

Syracuse Journal of International Law and Commerce

The idea behind this article is to unlock the hidden "genius" of Australian takeovers law. 1 This is to be achieved not by way of legislative reform, but rather by taking a fresh look at the law which already exists, in light of the structure of U.S. takeovers law and innovation in U.S. corporate law scholarship, along with the use of principles and concepts in marketing. It will draw upon the U.S. economic analysis of law and corporate law; more specifically, treating law as a product in a market. Accordingly, this makes it useful to draw upon principles of marketing …

A Gradual Shift In U.S. Privacy Laws Towards A Comprehensive Regime , Kamaal R. Zaidi

ExpressO

This paper examines the current trends in a predominantly sectoral U.S. privacy regime that appears to be becoming more comprehensive in nature with respect to data privacy protection. This trend has been greatly attributed to the European Union's comprehensive position on data privacy protection. This paper investigates the growth in U.S. data privacy protection in relation to federal and state legislative history, federal administrative procedures, and private industry efforts. This shift from sectoral to comprehensive regimes is significant in the backdrop of U.S-EU trade relations.

Should Shareholders Have A Greater Say Over Executive Pay??, Randall S. Thomas, Brian R. Cheffins

Vanderbilt Law School Faculty Publications

Executive pay arrangements in Britain's publicly quoted companies have been subjected to much criticism in recent years. Proposals that shareholders should have a greater direct say over managerial remuneration have been a by-product of the concerns expressed. Debate on this point, however, has been largely speculative. This is because there is little evidence available in the United Kingdom indicating how shareholders would exercise any new powers they might be given. This paper addresses the evidentiary gap by drawing upon the experience in the United States, where empirical work indicates that shareholder voting only operates as a potential check when pay …

How Free Trade Can Save The Everglades, Aaron Schwabach

Faculty Scholarship

No abstract provided.

Poison Pills: Developing A Canadian Regulatory And Judicial Response, Jody W. Forsyth

Dalhousie Law Journal

It is trite to say that the United States has witnessed an explosion of hostile take-over activity in recent years. Potential acquirers have employed both non-coercive techniques such as conditional bids and proxy solicitations, and coercive techniques such as "street sweeps' 4 and two-tier, front-end loaded bids.5 In response, target corporations have fought back with a wide variety of" defences designed to defeat any undesired take-over attempt. One of the most widely contested of these defences is the shareholder rights plan, or "poison pill" as it is better known.

Technology Transfer In The People's Republic Of China: An Assessment, Stanley J. Marcuss, Arthur R. Watson

Syracuse Journal of International Law and Commerce

Perhaps the most striking aspect of the trading relationship between the United States and the People's Republic of China is its explosive growth over the last fifteen years. In 1973, the total value of bilateral trade between the U.S. and China was $805 million (up from a mere $5 million just two years earlier). In 1987, this figure reached $10.4 billion - an increase of over 1000 per cent. This growth notwithstanding, the United States is not a commanding presence in the PRC's overall trade picture. The U.S. share of total PRC imports in 1986 (almost $43 billion) is only …

Prosecuting Nazi War Criminals In The United States: The Time In Which To Punish Them Is Running Out, Debbie Morowitz

Syracuse Journal of International Law and Commerce

The purpose of this Note is to demonstrate that the United States can and must assert jurisdiction over Nazi war criminals in order to punish them properly.