Law Commons^™

Blue Carbon, Red States, And Paris Agreement Article 6, Adam D. Orford

Scholarly Works

Coastal U.S. states, including many that have opposed proactive U.S. climate policies, are contemplating entrance into the supply side of the international carbon credit markets by, among other things, hosting revenue-generating blue carbon projects on their submerged lands. The voluntary carbon credit markets already facilitate private investment in such activities, and the emerging Paris Agreement Article 6 framework is poised to generate investment interest at the national level as well. Reviewing these trends, this Perspective questions whether this is good climate, environmental, and social policy, and advises further oversight and accountability.

European Union Law In The Member State Courts: A Comparative View, Michael Wells

Scholarly Works

Both the European Union and the United States are federal systems. Both divide law-making authority between the central government and the member states. Each has a dual judicial system, consisting of member state courts and central government courts. But the EU and the U.S. approaches to federalism diverge in two important ways. First, unlike the U.S., the EU has no system of lower federal courts. Second, in the U.S., the Supreme Court may review state court rulings that turn on issues of federal law. The European Court of Justice has no power of appellate review over the Member State courts. …

Corporate Governance Reform In A Time Of Crisis, Christopher M. Bruner

Scholarly Works

In this article I argue that crisis-driven corporate governance reform efforts in the United States and the United Kingdom that aim to empower shareholders are misguided, and offer an explanation of why policymakers in each country have reacted to the financial crisis as they have. I first discuss the risk incentives of shareholders and managers in financial firms, and examine how excessive leverage and risk-taking in pursuit of short-term returns for shareholders led to the crisis. I then describe the far greater power and centrality that U.K. shareholders have historically possessed relative to their U.S. counterparts, and explore historical and …

A Common Lawyer’S Perspective On The European Perspective On Punitive Damages, Michael Wells

Scholarly Works

Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems. This paper argues that the main reasons for the difference are historical and cultural. Roman law and the French Revolution heavily influenced the civil law. Civilians were taught that legal development comes from the top down. They learned to treat law as a system of general principles and to resist anomalies. They found it relatively easy to reject the intrusion of criminal themes into private law. The common law developed one case at a time, with no particular emphasis on systematic coherence. It was …

No. 6 - 30th Anniversary Issue, Henry Kissinger, James Baker, Warren Christopher, Madeleine Albright, Colin Powell, Lee Hamilton, Daniel R. Fung, Diana Wallis

Occasional Papers Series

With this issue of the Occasional Papers, we celebrate the 30th anniversary of the founding of the Dean Rusk Center, which bears the name of the late School of Law faculty member who served as secretary of state under Presidents John F. Kennedy and Lyndon B. Johnson from 1961 until 1969.

Our purpose in hosting the conference and lectures published in this volume was to provide a forum for developing the comprehensive new focus necessary to met the American foreign policy demands of the 21st century. In so doing, it is our intent that the advice and counsel of the …

A Comparative Study On The Trade Barriers Regulation And Foreign Trade Barriers Investigation Rules, Junrong Song

LLM Theses and Essays

The Trade Barriers Regulation and Foreign Trade Barriers Investigation Rules are enacted in the European Union and China respectively. Both of them establish a procedure for the private sector to petition the government to challenge foreign trade barriers. Through the comparative study on the two pieces of law, this paper intends to dig out the similarities and differences between them and develop some suggestions for the improvement of them.

Protection Of "Persona" In The Eu And In The Us: A Comparative Analysis, Anna E. Helling

LLM Theses and Essays

The American Right of Publicity has been developed and applied differently in the states of the U.S. for several decades and still several questions remain regarding the nature of the right. In Europe, many countries seem to follow the American development or have a similar right protecting the commercial value of a person’s identity emerging in their legal system. With the constant globalization and increase in interaction of the sports and entertainment markets in the world, harmonization of the different rules protecting this commercial interest in a persona is necessary to grant sufficient protection. This work is a comparative study …

The Drafting Process For A Hague Convention On Jurisdiction And Judgments With Special Consideration Of Intellectual Property And E-Commerce, Knut Woestehoff

LLM Theses and Essays

This thesis is a study of the drafting process for the Hague Convention on Jurisdiction and Judgments. It will be demonstrated why the original goal of a broad treaty was given up in favor of a draft convention that only applies in international cases to exclusive choice of court agreements concluded in civil and commercial matters in the business-to-business setting. The reader will get an understanding of how the participating nations and interest groups influenced the negotiations and modified the outcome of the discussions. Special consideration was given to the matters of intellectual property and e-commerce, which were nearly completely …

Free Movement Of Goods: A Comparative Analysis Of The European Community Treaty And The North American Free Trade Agreement, Pedro A. Perichart

LLM Theses and Essays

The European Union is currently an economic union, which means that it has almost removed every internal barrier to trade, therefore achieving the free circulation of all factors of production (goods, services, capital, and persons) across the union. The North America Free Trade Agreement (“NAFTA”) establishes a free trade area, with the main purpose of eliminating tariffs among its members, and to some extent, reducing other non-tariff barriers to facilitate the cross-border movement of goods. Despite their differences, both regions seek to achieve certain degree of free movement when trading goods within their respective internal markets. This study will analyze …

International Income Allocation In The Twenty-First Century: The Case For Formulary Apportionment, Walter Hellerstein

Scholarly Works

From an international perspective, formulary apportionment has traditionally been viewed as little more than transfer pricing’s “poor relation” as a division-of-income methodology. It receives only grudging recognition as a method of attributing the profits to a permanent establishment under Article 7 of the OECD Model Tax Convention; it receives no mention at all in Article 9 as a method for distributing the profits of associated enterprises among the contracting states in which they conduct their activities; and it was assailed by the international business community and by the EU Member States as out of step with internationally excepted norms in …

Contracts And Electronic Agents, Sabrina Kis

LLM Theses and Essays

The purpose of this thesis is to analyze the formation of contracts concluded by electronic agents both in the European Union and the United States. Technology is in constant evolution and the possibilities offered by electronic agents today are far from the ones that could be developed tomorrow. Thus, law faces a permanent challenge to adapt itself to these changes. This paper aims to show that the existing principles do not provide an appropriate legal frame for this new type of contract. In addition, since legislatures have attempted to regulate this new way of doing business, this thesis analyzes the …

Unilateral Refusals To Deal In Intellectual Property As Monopolistic Conduct, Bolanle Meshida

LLM Theses and Essays

Much has been written about the antitrust intellectual property conflict. The former promotes competition by prohibiting monopolies that harm competition, while the latter promotes competition by granting monopolies. This paper focuses on refusals to deal in intellectual property rights as violation of antitrust law. The paper explores refusals to deal as monopolistic conduct in antitrust law and relates this with refusals to deal in intellectual property rights. The paper concludes with an analysis of the success rate of antitrust scrutiny of intellectual property rights.

Unipolar Disorder: A European Perspective On U.S. Security Strategy, Diane Marie Amann

Scholarly Works

Much has been said about the National Security Strategy that U.S. President George W. Bush released one year after the terrorist assaults of September 11, 2001. The Strategy's declaration that the United States would strike first to prevent attack even before an enemy possessed the capability to attack-a point in time much earlier than when tradition would have condoned an act of anticipatory self-defense-provoked considerable comment. Debate within America encompassed multiple points of view; nonetheless, and perhaps not surprisingly, much of the debate reflected an American perspective. This essay, in contrast, considers the Strategy from a European perspective, one that …

The European Commission’S Report On Company Income Taxation: What The Eu Can Learn From The Experience Of The Us States, Walter Hellerstein

Scholarly Works

The European Union Commission has proposed using consolidated base taxation and formulary apportionment to tax the EU-source income of multinational companies. This paper examines US state experience with a similar approach. Despite some positive lessons, especially the need to consolidate income of affiliated companies, lessons are mostly negative, especially regarding the choice of apportionment formula, the use of economic criteria to define the group whose income is to be consolidated, and complexity caused by lack of uniformity. US experience says nothing about using value added to apportion income—an approach that is conceptually attractive, but subject to transfer pricing problems.

The Main Characteristics Of State's Jurisdiction To Tax In International Dimension, Alfred Nizamiev

LLM Theses and Essays

This thesis analyzes the general characteristics of a state’s fiscal jurisdiction and how they influence the process of interaction with other national tax jurisdictions. The paper figures out essential internal substance of fiscal jurisdiction and its reflection on the necessity of interstate fiscal cooperation. After considering this substance the thesis goes on to explore the limits beyond which national jurisdictions cannot go in collection of taxes. Absence of common bases of these limits leads to conflicts between national jurisdictions and calls for close international fiscal cooperation. The thesis argues that the process of cooperation becomes more evident. In summary the …

Mergers And Acquisitions In Europe: Analysis Of Ec Competition Regulations, Youngjun Lee

LLM Theses and Essays

This paper analyzes three competition regulations in the European Community—article 85 and 86 of the EC Treaty and the EC Merger Regulation. Specifically, article 85 focuses on the market structure and article 86 focuses on the market dominance. The paper explores the Merger Regulation, its objectives and its scope. The amendment to the Merger Regulation extending its scope to include smaller-scale mergers and cooperative joint ventures is explained. The paper concludes with the extraterritoriality of the EC competition regulations.

International Corporate Governance Practices And Their Implications On Investors, Namwandi Hamanyanga

LLM Theses and Essays

Corporate governance has become a bonafide subset of company’s law that is concerned with who directs the company and for whose benefit. Its application varies in countries found in the main legal jurisdictions of common and civil law. This thesis identifies these differences by highlighting national corporate governance systems existing in Germany, Japan, United Kingdom and United States. Together, these countries represent systems adopted by several countries located on all continents. Increased cross border investment in this era of globalization has been significantly affected by these governance systems. The thesis shows the reasons why investors, multinational corporations and nations have …

Modernization Of European Community Competition Law, Alejandro Leon-Vargas

LLM Theses and Essays

The modernization of EC Competition Law is discussed as a necessity on the European Union. Its counterpart, the U.S. Antitrust Law system followed a different evolution. The legislation, institutions and procedures remark the differences among these advanced systems of market control. The role of the EC Commission, national authorities and national courts of Member States will determine the elements to change. Its American counterpart, the Antitrust Division, the Federal Trade Commission, and the federal courts, developed the most effective and dynamic pathways for antitrust enforcing. The analysis of both frameworks must consider several factors, other that legal factors. The relevance …

David Vs. Goliath (2001): An Analysis Of The Oecd Harmful Tax Competition Policy, Truman Butler

LLM Theses and Essays

The OECD or Organization for Economic Cooperation and Development has produced a report titled Harmful Tax Competition An Emerging Global Issue. The report is the single largest threat to the offshore finance industry. Further, the sweeping recommendations made by the report would at worst potentially discourage foreign investment in some of the more established offshore financial centers. This thesis represents an analytical view of the report and further gives some highlights to the anomalies found in the tax regimes of the major industrialized countries. It is clear that the actions of the OECD does create in effect a tax cartel. …

The Application Of Ec Competition Law To Non-European (U.S.) Corporations, Federico Cavicchioli

LLM Theses and Essays

The present thesis deals with the application of European Community (EC)1 Competition Law by the competent Communitarian institutions, namely the Commission, the Court of First Instance and the European Court of Justice. Because the discussion will concern its application to non-European legal entities, one explanatory remark is necessary. Dealing with the application of Competition Law with regard to non-European corporations is not meant to suggest that any form of discrimination based on nationality exists. As former Commissioner Sir Leon Brittan commented with regard to one of the early cases involving non-EC companies, “the location of a party’s incorporation or headquarters …

The Nafta Package And The Environment: A Green Analysis Of Its Origins And Effects, Pedro M. Morales-Gomez

LLM Theses and Essays

When the presidential candidate Clinton announced that he would not support NAFTA without environmental and labor side agreements, and during the period before NAFTA's ratification by the American Congress, Mexicans lived in most tense suspense. Even though, the idea of an environmental side agreement seemed to please most environmentalists in Mexico who hoped that this would lead to creating a major environmental conscience in the Mexican government. The purpose of this thesis is to elaborate a critical analysis of the North American Free Trade Agreement, its related documents and their effects concerning the environment, specifically its legal protection. We will …

Freedom Of Religion In Public Schools In Germany And In The United States, Inke Muehlhoff

LLM Theses and Essays

Unfortunately, in terms of religions, the strict neutrality is almost impossible to reach and most countries that have adopted such a principle still face religious conflicts. However, these conflicts have shifted from armed conflicts to legal conflicts and battles of words, which offer at least a more peaceful way to fight. One major battleground for these religious conflicts concerns the role of religion in the public school system. That battleground is the subject of this thesis. The discussion of how religion should be treated in the public school system will be based on a comparison between Germany and the United …

The Liability Of The Automobile And Motorcycle Manufacturers And Their Suppliers For Defective Products In The United States Compared To Germany, Daniel Karl Robyn

LLM Theses and Essays

This thesis deals with the lability of automobile and motorcycle manufacturers, as well as their suppliers, in situations where a defective product causes a harmful event. Specifically, it compares the product liability laws of the Federal Republic of Germany to those of the United States of America. Before entering into the details of legal doctrine, the introductory note provides background information on the social and economic aspects of automobile use in those two countries. Next, Chapter I describes the liability regime governing claims against German motor vehicle manufacturers and their suppliers. Chapter II focuses on the comparable law in the …

An Analysis Of The Personal Use Principle Under Copyright Law, Hsin-Chih Cheng

LLM Theses and Essays

Personal use is when an individual uses a copyrighted work for private purposes, such as learning or entertainment. Personal use is a right given in the Copyright Clause of the U.S. Constitution, however, an issue arises when the individual wants to make a copy of the copyrighted work. New technologies like photocopying and videotaping make this issue more prominent today. Some copyright owners think that the individual’s copying for private use is harmful to their potential market and they argue for compensation. Does the individual have the right under the personal use principle to reproduce the copyrighted work for private …

Fair Use In American And Continental Laws, Omar M.A. Obeidat

LLM Theses and Essays

Intellectual property, unlike tangible property, does not exclusively occupy one place at a designated time. Instead, intellectual property is composed of information which can be reproduced or used in multiple places at any given time. This fundamental difference between intellectual and tangible property is reflected in the legal provisions that regulate these types of property. There are two dominant theories that justify the legal protection of intellectual property: the individualistic European approach, and the commercial Anglo-American approach. Under the European approach, the protection of the creation is a natural right guaranteed to the author. In other words, natural law guarantees …

Double Taxation - Treatment Of Corporate Earnings Under American And German Law, Roland Schmidt

LLM Theses and Essays

This thesis is going to describe the different ways the United States and Germany deal with the problem of double taxation in the legal context of corporate distributions to its shareholders in the form of dividends. Tax law is particularly one of the areas of laws that are subject to frequent and often substantial changes. This is true for the German as well as for the U.S. tax laws. Since some of the issues being discussed in the United States today in connection with the corporate tax law are similar if not identical to the issues discussed in Germany before …

Restitution Regimes In Post-Communist Eastern Europe: A Legal Analysis, Sophia Von Rundstedt

LLM Theses and Essays

When the Communist regimes in Central and Eastern Europe collapsed at the end of the last decade, the opposition, which had been united in their goal to defeat Communism, quickly disintegrated into a variety of factions. One of their tasks was to decide on enacting a constitution, in order to stabilize and entrench the new democratic institutions. Apart from establishing the legal framework for democracy, politicians had to develop strategies to convert the state-run economy into a free-market economy. Such a transition required as a first step the privatization of state property. Legal reform of property rights raises the question: …

The Issue Of The Legal Validity Of Using Economic Sanctions To Enforce Human Rights, Thomas Hailu

LLM Theses and Essays

The international legal regime as it pertains to human rights is neither as established nor as definitive as it appears. It suffers from many disadvantages, the first and most important of which is the fact that the international legal regime has never been capable of effectively enforcing its rules or instituting appropriate remedies for its breaches. Some states have attempted to make up for this inability on behalf of international law by undertaking an enforcement mechanism either unilaterally or multilaterally; economic sanctions are often regarded as valuable tools of enforcement to be used against countries which are allegedly engaged in …

Major Changes In Council Regulation 3283/94: Its Compatibility With The Uruguay Round Anti-Dumping Code, Sangsoo Son

LLM Theses and Essays

Dumping can be defined as exporting goods at prices below those charged on the domestic market or at prices insufficient to recover the cost of the goods sold. Dumping is considered an unfair trading practice because it interferes with free market economy principles. During the 1980s, anti-dumping measures were an important issue for a few developed countries that had attractive markets for foreign producers; these countries were the United States, the European Community, Canada, and Australia. The European Community (EC) has developed its own anti-dumping laws over the years; Article 113 of the EEC Treaty gives power to Community institutions …

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These …