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2008

Commercial Law

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Articles 1 - 30 of 32

Full-Text Articles in Law

Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen Dec 2008

Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen

Faculty Scholarship

Introduction to an issue of the journal that brings together the papers presented, as revised by the participants, at a conference held at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany in the summer of 2007.


Corporate Ethics In A Devilish System, Kent Greenfield Dec 2008

Corporate Ethics In A Devilish System, Kent Greenfield

Boston College Law School Faculty Papers

Prepared for a roundtable on corporate ethics at the University of Maryland School of Law, this essay argues that discussions of corporate ethics that focus on mere compliance with law are too narrow. While an emphasis on legal compliance is indeed crucial, a dedication to legality standing alone is hardly a robust sense of ethics, corporate or otherwise. Whether one takes guidance from religious norms or from secular philosophers, there are significant areas of agreement as to what amounts to ethical behavior: acting with due care for others; taking responsibility for the effect of one's actions; being honest; considering ...


The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl Nov 2008

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 ...


Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett Oct 2008

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Cornell Law Faculty Publications

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally ...


Should Securities Industry Self-Regulatory Organizations Be Considered Government Agencies?, Roberta S. Karmel Oct 2008

Should Securities Industry Self-Regulatory Organizations Be Considered Government Agencies?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.


Section 4: Business, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2008

Section 4: Business, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Changing The Paradigm Of Stock Ownership From Concentrated Towards Dispersed Ownership? Evidence From Brazil And Consequences For Emerging Countries, Erica Gorga Sep 2008

Changing The Paradigm Of Stock Ownership From Concentrated Towards Dispersed Ownership? Evidence From Brazil And Consequences For Emerging Countries, Erica Gorga

Cornell Law Faculty Working Papers

This paper analyzes micro-level dynamics of changes in ownership structures. It investigates a unique event: changes in ownership patterns currently taking place in Brazil. It builds upon empirical evidence to advance theoretical understanding of how and why concentrated ownership structures can change towards dispersed ownership.

Commentators argue that the Brazilian capital markets are finally taking off. The number of listed companies and IPOs in the Sao Paulo Stock Exchange (Bovespa) has greatly increased. Firms are migrating to Bovespa’s special listing segments, which require higher standards of corporate governance. Companies have sold control in the market, and the stock market ...


The Moral Hazard Problem In Global Economic Regulation, Frank J. Garcia Jul 2008

The Moral Hazard Problem In Global Economic Regulation, Frank J. Garcia

Boston College Law School Faculty Papers

Global regulation of international business transactions presents a particular form of the moral hazard problem. Global firms use economic and political power to manipulate state and state-controlled multilateral regulation to preserve their opportunity to externalize the social costs of global economic activity with impunity. Unless other actors can effectively counter this at the national and global regulatory levels, globalization re-creates the conditions for under-regulated or “robber baron” capitalism at the global level. This model of economic activity has been rejected at the national level by the same modern democratic capitalist states which currently dominate globalization, creating a crisis of legitimacy ...


Summary Of Loomis V. Whitehead, 124 Nev. Adv. Op. No. 7, Emily Reed May 2008

Summary Of Loomis V. Whitehead, 124 Nev. Adv. Op. No. 7, Emily Reed

Nevada Supreme Court Summaries

Appeal from a district court order granting partial summary judgment in a contract action. The appeal addresses whether NRS 602.070 bars a partnership operating under a fictitious name from bringing an action for breach of contract when the contract was not entered into under the fictitious name.


What's At Stake In The Sovereignty Debate?: International Tax And The Nation-State, Diane M. Ring Apr 2008

What's At Stake In The Sovereignty Debate?: International Tax And The Nation-State, Diane M. Ring

Boston College Law School Faculty Papers

The international tax problems of today are typically beyond the scope of a single nation to solve. However, the prospect of multinational problem solving, often under the auspices of an international organization, unleashes objections grounded in sovereignty. Despite widespread reliance on sovereignty arguments, little attention has been directed at what precisely is meant by sovereignty and what place it has in international tax policy. This article contends that a loss of sovereignty undermines both significant functional roles played by a nation-state (revenue and fiscal policy) and important normative governance values (accountability and democratic legitimacy). Whether these limitations are severe enough ...


Globalizing Commercial Litigation, Jens C. Dammann, Henry B. Hansmann Mar 2008

Globalizing Commercial Litigation, Jens C. Dammann, Henry B. Hansmann

Faculty Scholarship Series

The world’s nations vary widely in the quality of their judicial systems. In some jurisdictions, the courts resolve commercial disputes quickly, fairly, and economically. In others, they are slow, inefficient, incompetent, biased, or corrupt. These differences are important not just for litigants, but for nations as a whole: effective courts are important for economic development. A natural implication is that countries with underperforming judiciaries should reform their courts. Yet reform is both difficult and slow. Another way to deal with a dysfunctional court system is for litigants from afflicted nations to have their commercial disputes adjudicated in the courts ...


The Argentine Financial Crisis: State Liability Under Bits And The Legitimacy Of The Icsid System, William W. Burke-White Jan 2008

The Argentine Financial Crisis: State Liability Under Bits And The Legitimacy Of The Icsid System, William W. Burke-White

Faculty Scholarship at Penn Law

This essay examines the jurisprudence of the International Center for the Settlement of Investment Disputes (ICSID) arbitral tribunals in a series of cases brought against the Republic of Argentina in the wake of the 2001-2002 Argentine financial collapse. The essay considers the ICSID tribunals' treatment of non-precluded measures provisions in Argentina's bilateral investment treaties (BITs) and the customary law defense of necessity and argues that the ICSID tribunals have sought to radically narrow the opportunities available to states to craft policy responses to emergency situations while strengthening investor protections beyond the intent of the states parties to the BITs ...


Proposed Legislation: A (Second) Modest Proposal To Protect Virginia Consumers Against Defective Products, Peter N. Swisher Jan 2008

Proposed Legislation: A (Second) Modest Proposal To Protect Virginia Consumers Against Defective Products, Peter N. Swisher

Law Faculty Publications

The purpose of this article is to suggest a viable, necessary, and eminently reasonable legislative alternative that the Virginia General Assembly should enact for legitimate and pressing public policy reasons in order to properly protect Virginia consumers from defective and unreasonably dangerous consumer products. Adopting this alternative would bring the Commonwealth of Virginia into the mainstream of twenty-first century American, and transnational, products liability law.


A Framework For Automatic Sla Creation, Halina Kaminski, Mark Perry Jan 2008

A Framework For Automatic Sla Creation, Halina Kaminski, Mark Perry

Computer Science Publications

Negotiation is fundamental to business. Increased automation of business to business or business to customer interaction is demanding efficient but flexible systems that can manage the negotiation process with minimal direct human intervention. Industries that provide online services rely on Service Level Agreements as the basis for their contractual relationship. Here we look at a means for generating these with a negotiating tool (SLA Negotiation Manager) that complies with e-negotiation rules and creates the agreements from existing business objectives.


Are All Contracts Alike?, Margaret F. Brinig Jan 2008

Are All Contracts Alike?, Margaret F. Brinig

Journal Articles

No abstract provided.


Unification Of Payments Law And The Problem Of Insolvency Risk In Payment Systems, James S. Rogers Jan 2008

Unification Of Payments Law And The Problem Of Insolvency Risk In Payment Systems, James S. Rogers

Boston College Law School Faculty Papers

No abstract provided.


The Future Of The Economic Analysis Of Law In Latin America: A Proposal For Model Codes, Juan Javier Del Granado, M C. Mirow Jan 2008

The Future Of The Economic Analysis Of Law In Latin America: A Proposal For Model Codes, Juan Javier Del Granado, M C. Mirow

Faculty Publications

Nothing excites civilian lawyers and judges more than commissions for codification. Codification is more than an academic enterprise. Codification projects directly cut across the interface between law and life. ALACDE intends to harness this Latin American interest in codification to bring the economic approach to Latin America. A new-generation law and economics civil and commercial code will be a conscious project to restate Roman law's usefulness for coping with today's problems. Through law and economics, Roman law will renew itself. As a paradigmatic private-law system, Roman law is eminently amenable to a state-of-the-art fusion with law and economics ...


The Hanging Chads Of Corporate Voting, Marcel Kahan, Edward B. Rock Jan 2008

The Hanging Chads Of Corporate Voting, Marcel Kahan, Edward B. Rock

Faculty Scholarship at Penn Law

Never has voting been more important in corporate law. With greater activism among shareholders and the shift from plurality to majority voting for directors, the number of close votes is rising. But is the basic technology of corporate voting adequate to the task? In this Article, we first examine the incredibly complicated system of US corporate voting, a complexity that is driven by the underlying custodial ownership structure, by dispersed ownership and large trading volumes, and by the rise in short-selling and derivatives. We identify three ways in which things predictably go wrong: pathologies of complexity; pathologies of ownership; and ...


Albert Kritzer: Pioneer Of Open Access To International Private Law, Marie Stefanini Newman Jan 2008

Albert Kritzer: Pioneer Of Open Access To International Private Law, Marie Stefanini Newman

Elisabeth Haub School of Law Faculty Publications

This essay explores the enormous contributions that Professor Albert H. Kritzer has made to the field of international commercial law through the creation of a unique and powerful database that explicates the United Nations Convention on Contracts for the International Sale of Goods (ClSG).


International Commercial Arbitration And International Courts, Mark L. Movsesian Jan 2008

International Commercial Arbitration And International Courts, Mark L. Movsesian

Faculty Publications

The editors of this symposium have asked us to address an interesting question. Why hasn't international commercial arbitration’s (ICA's) success been repeated in the context of international courts? In the last few decades, states have created scores of permanent tribunals with jurisdiction to resolve disputes about international law. By and large, though, states have not been as receptive to the rulings of these tribunals. What accounts for this comparative lack of hospitality? Why do states treat ICA and international adjudication so differently?

In this essay, I offer an explanation. States treat ICA and international adjudication differently because ...


Unauthorized Payment Transactions And Who Should Bear The Losses, Francis J. Facciolo Jan 2008

Unauthorized Payment Transactions And Who Should Bear The Losses, Francis J. Facciolo

Faculty Publications

This article is concerned with how losses should be allocated between account holders that are implicated in payment systems and the financial institutions that participate in those payment systems by acting as intermediaries between account holders. The account holders that are discussed in this article are not limited to individual consumers. This article also examines how an unauthorized transaction can be prevented and what this suggests about who should bear the loss of such a transaction. In doing so, this article looks at two moments at which an unauthorized payment transaction might be prevented: before the first unauthorized transaction, and ...


Commercial Contracting: Sales, Leases, And Computer Information, David Frisch Jan 2008

Commercial Contracting: Sales, Leases, And Computer Information, David Frisch

Law Faculty Publications

Commercial Contracting: Sales, Leases, and Computer Information includes cases, problems, note materials and questions, as well as excerpts from law review articles and other secondary sources that explain the fit among the contemporary sources of Commercial Contracting Law. The authors emphasize Uniform Commercial Code Articles 1 (as revised) and 2 (as enacted), but there are liberal references to Article 2A, UCITA, UETA, E-Sign.


Anatomy Of An Experiment: Consolidation Of Eu Contract Law, Ljiljana Biuković Jan 2008

Anatomy Of An Experiment: Consolidation Of Eu Contract Law, Ljiljana Biuković

All Faculty Publications

This article analyzes the process of harmonization of Contract Law in the European Union (EU) in the context of the general debate on the need for international harmonization of commercial law on one hand, and, on the other hand, in the context of the integration of the European market and the omnipresent European discussions on the need for harmonization, appropriate methodologies for reform and on the institutional competence to pursue the harmonization process. Part II of the article establishes interrelationships between major international harmonization efforts in the area of contract law. Part III focuses on the current situation in the ...


The Roles Of Standardization, Certification And Assurance Services In Global Commerce, Margaret M. Blair, Cynthia A. Williams, Li-Wen Lin Jan 2008

The Roles Of Standardization, Certification And Assurance Services In Global Commerce, Margaret M. Blair, Cynthia A. Williams, Li-Wen Lin

All Faculty Publications

In this article we examine the rapid emergence and expansion of standardized product and process frameworks and a private-sector compliance and enforcement infrastructure that we believe may increasingly be providing a substitute for public and legal regulatory infrastructure in global commerce. This infrastructure is provided by a proliferation of performance codes and standards, many of which define acceptable social and environmental behavior, and a rapidly-growing number of privately-trained and authorized inspectors and certifiers that we call the third-party assurance industry. We offer reasons for this development, evidence of its scope and scale, and then describe the phenomenon in more detail ...


The Role Of Financial Regulation In Private Financial Firms: Risk Management And The Limitations Of The Market Model, James A. Fanto Jan 2008

The Role Of Financial Regulation In Private Financial Firms: Risk Management And The Limitations Of The Market Model, James A. Fanto

Faculty Scholarship

No abstract provided.


Choice Of Law For Unjust Enrichment/Restitution And The Rome Ii Regulation, Adeline Chong Jan 2008

Choice Of Law For Unjust Enrichment/Restitution And The Rome Ii Regulation, Adeline Chong

Research Collection School Of Law

After being considered as niche territory for a long period, conflicts of law and restitution has provided a fertile ground for exposition in recent times. Whilst some development on the jurisdictional front has occurred, choice of law has lagged behind somewhat as, in England at least, no one seemed to be quite sure what was or should be the choice of law rule for restitutionary claims. However, the Regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (commonly known as the Rome II Regulation) has now entered into force and will apply from ...


Restitution, Tiong Min Yeo Jan 2008

Restitution, Tiong Min Yeo

Research Collection School Of Law

In the year under review, there was one major decision from the Singapore Court of Appeal dealing with the relationship between the punitive legislative framework and the common law restitutionary claim by a principal against a bribed agent. In addition, several important issues on the shape of the law of restitution in Singapore received some airing in a number of cases. The three most significant issues related to the law on the recovery of contractual deposits, the nature and structure of the claim commonly called “knowing receipt”, the defence of change of position and the related potential defence of change ...


Duty Issues In The Ever-Changing World Of Payments Processing: Is It Time For New Rules?, Sarah Jane Hughes Jan 2008

Duty Issues In The Ever-Changing World Of Payments Processing: Is It Time For New Rules?, Sarah Jane Hughes

Articles by Maurer Faculty

No abstract provided.


"Arbitration As A Final Award: Challenges And Enforcement" Published As Chapter 10 In International Sales Law And Arbitration: Problems, Cases, And Commentary, Jack M. Graves, Joseph F. Morrissey Jan 2008

"Arbitration As A Final Award: Challenges And Enforcement" Published As Chapter 10 In International Sales Law And Arbitration: Problems, Cases, And Commentary, Jack M. Graves, Joseph F. Morrissey

Scholarly Works

No abstract provided.


Debt And Democracy: Towards A Constitutional Theory Of Bankruptcy, Jonathan C. Lipson Jan 2008

Debt And Democracy: Towards A Constitutional Theory Of Bankruptcy, Jonathan C. Lipson

Faculty Scholarship at Penn Law

This article examines the relationship between bankruptcy and constitutional law. Article I, § 8, cl. 4 of the Constitution provides that Congress shall have the power to make “uniform laws on the subject of bankruptcies.” While there are many good social, political and economic theories of bankruptcy, there has been surprisingly little effort to explore what it means to have constitutionalized financial distress. This article is a first step in that direction. Constitutional problems with bankruptcy are not new, but present three under-appreciated puzzles: First, why have we put a bankruptcy power in the Constitution, and what does its “peculiar” language ...