Law Commons^™

The Fork In The Road After Strasbourg: Effective Remedy Or Moral Victory?, Riccardo De Caria

Riccardo de Caria

The article deals with the enforcement of judgments of the European Court of Human Rights in domestic systems, particularly focusing on the Italian law. It starts with a historical background on European integration, highlighting the leadership role played by Italy in this process (§ 1). It then considers the main provision governing the matter, namely Art. 46 of the European Convention on Human Rights, that provides for the duty to “abide by the final judgment of the Court”, and shows how the way this provision is construed influences European integration (§ 2). After that, the article considers the Italian approach. …

To Have And To Hold, For Richer Or Richer: Premarital Agreements In The Comparative Context, Margaret Ryznar, Anna Stępień-Sporek

Margaret Ryznar

The premarital agreement, perhaps one of the world’s most unromantic documents, also happens to be quite powerful and complex. Although its most highly-publicized use has been to control post-divorce property division, the premarital agreement’s most significant importance is in its power to circumvent the statutory defaults governing spouses’ rights and responsibilities not only during divorce or death, but also during marriage. However, the enforceability of premarital agreements is subject to procedural and substantive review in the United States. Such agreements also raise universal public policy issues with regard to the meaning of fairness and the limits on freedom of contract. …

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

anna di robilant

This article deploys a comparative approach to question a widely-shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian “invention”, absent in the common law. Drawing on an influential strand of functionalist comparative law, the article identifies the “functional equivalents” of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late 19th and early 20th century in fields as diverse as water law, nuisance, tortious interference with contractual relations and labor law. The article investigates the reasons why …

A Troubled Path To Private Property: Agricultural Land Law In Russia, Ira Kenneth Lindsay

Ira Kenneth Lindsay

When the Soviet Union collapsed many observers hoped that decollectivization would improve the infamously inefficient Soviet agricultural sector and raise collective farm workers out of poverty. The initial results of market reform in Russian agriculture were a severe disappointment in both respects. Under Putin, Russia has finally allowed agricultural land to be bought and sold. The effects of this latest reform have been less than was hoped by supporters or feared by opponents. Russia’s experience with land reform suggests that while private ownership of farmland may offer significant advantages, successful land reform requires much more than the creation of legal …

No Longer A Vacuum, Corneliu Marian

Corneliu Marian

The article reviews the Scalia-Breyer debate on the use of foreign sources in three contexts. First, the article draws on the increasing interdependency between the American domestic judiciary and foreign legal institutions. By interpreting the Maher¬-case and the reaction of the Canadian judiciary, the author concludes that American jurisprudence may no longer operate on an isolationist basis. Second, the article draws on the Israeli debate on the use of torture in sensitive circumstances. The Israeli jurisprudence has a long-standing experience in interpreting when torture should be sanctioned. American jurisprudence will be improved if it directly discusses the strengths and weaknesses …

Corporate Scandals, Executive Compensation, And International Corporate Governance Convergence: A U.S.-Australia Case Study, Jacob Barney

Jacob Barney

The first decade of the 2000s began with a rash of large-scale corporate scandals touching every corner of the globe, and it draws to a close in the midst of a worldwide recession which, somewhat ironically, has brought to light gargantuan executive compensation packages, resulting in widespread public outcry. Given the global nature of these two sets of corporate crises, it stood to reason that there would emerge a universal movement to revise the laws and practices controlling executive compensation. However, the mere fact that such a movement has emerged does not mean that the response to this movement will …

Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray

David C. Gray

The doctrine of odious debts came into its full in the eighteenth and early nineteenth century to deal with the financial injustices of colonialism and its stalking horse, despotism. The basic rule, as articulated by Alexander Sack in 1927, is that debts incurred by an illegitimate regime that neither benefit nor have the consent of the people of a territory are personal to the regime and are subject to unilateral recision by a successor government. While the traditional doctrine focused on the nature and circumstances of individual debts, it has been expanded in recent years, moving the focus from the …

An Excuse-Centered Approach To Transitional Justice, David Gray

David C. Gray

Transitional justice asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those most responsible, amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice. This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define …

Japanese Independent Director Mechanism Revisited: The Corporate Law Setting, Current Status And Its Explanations, Chien-Chung Lin

Chien-Chung Lin

This article discusses the experiment of the independent director mechanism in Japanese corporate law. Accompanied by the introduction of the committee type company, the independent director mechanism in Japan has faced a strange stagnation after nine years’ implementation. This article describes the phenomenon first and then analyze the background and structural reasons for this stagnation. Last it provides an account for the possible future development of the independent director mechanism in Japan.

Caveat Lessor: U.S. Aircraft Financiers Beware - 11 U.S.C. § 1110 Expectations May Not Be Met In Cross-Border Insolvencies, Kevin Gaunt

Kevin Gaunt

The Viação Aérea Rio Grandense (“Varig”) airline judicial recuperation in Brazil was the first major test case under the New Bankruptcy and Restructuring Law of Brazil (“the NBRL”), ratified in February of 2005 and going into effect on June 9, 2005. The experience was largely negative for aircraft and engine lessors and creditors, most of whom were United States-based and accustomed to special protections afforded them by 11 U.S.C. § 1110, which specifically provides greater protection to aircraft owners in bankruptcy procedures than other secured creditors enjoy. In the United States, an aircraft creditor may use § 1110 to circumvent …

Protecting Foreign Investors From International Securities Fraud, Derek N. White

Derek N White

This article discusses the subject matter jurisdiction of national courts in a little-known type of international securities cause of action that has vexed courts of the developed world. The cause of action is labeled the “foreign-cubed class action”, which is brought when a dispute arises regarding purported improprieties in an international securities transaction that contains foreign investors who purchase securities of foreign issuers on foreign stock exchanges. Notice the three “foreign” elements of the transaction ("foreign" meaning foreign to the court presiding over the action).

The number of foreign-cubed class actions brought in U.S. courts has risen sharply over the …

A Kiss Is Just A Kiss, Or Is It? A Comparative Look At Italian And American Sex Crimes, Michael Vitiello

Michael Vitiello

A Kiss is Just a Kiss, or is it? A Comparative Look at Italian and American Sex Crimes Abstract: Ask an American about Italian sex offenses and you are likely to hear about the case in which a court found that a woman wearing tight jeans cannot be raped. Americans largely assume that the male dominated Italian culture does not provide significant protection for women against unwanted sexual advances. Surprisingly, at least to co-author Vitiello, Italian courts have been quite protective of women in some recent decisions. This article is a conversation between two criminal law scholars, one Italian and …

La Mauvaise Qualité De La Loi : Vagueness Doctrine At The French Constitutional Council, Patricia Rrapi

Patricia RRAPI

No abstract provided.

Inflation In Unjustified Enrichment Claims: Reflections From Abroad On The New Brazilian Civil Code, Aimite Jorge

Aimite Jorge

Inflation can be one of the risks assumed by the parties to a contract. But contractual terms may provide for monetary corrections (adjustments) to offset that risk in cases of regular inflation because the parties are in a bilateral agreement. The same may not hold true however for claims arising in unjustified enrichment because the parties are not necessarily in a bilateral agreement. They may find themselves in the position of two innocents because the events that brought about the decline of purchasing power of the currency were unconnected to them. In such cases, the change-of-position (loss of enrichment) defense …

Labor Relations And Labor Law In Japan, Manabu Matsunaka, Atsushi Tsuneki

Manabu Matsunaka

This article discusses the relationship between Japanese labor law and employment customs, building on this rationalistic understanding of the Japanese employment customs. Our basic conclusion is as follows. The Japanese employment custom developed naturally through an agreement among the members of Japanese employment society and attained efficient economic performance up till the 1990s. During the time, the Japanese labor law mainly worked toward setting the stage for private bargaining and respected its agreement instead of enforcing the desirable result directly through legal regulations. Through this indirect approach toward labor relations in Japan, at least part of the Japanese labor law …

“Taking Lives: How The United States Has Violated The International Covenant Of Civil And Political Rights By Sentencing Juveniles To Life Without Parole”, Marina A. Magnuson

Marina A Magnuson

In the wake of the Supreme Court’s recent decision in Roper v. Simmons, which outlawed death sentences for juveniles, several human rights organizations have begun to question the legality of life sentences without parole for juvenile offenders. I will explore the issue of life sentences without the possibility of parole for juvenile offenders and how they violate specific articles of the International Covenant on Civil and Political Rights (ICCPR). The United States ratified the ICCPR in 1992. However, it reserved the right, in exceptional circumstances, to treat juveniles as adults.

My comment will begin with a brief discussion of the …

The Evolution Of The Chinese Merger Guidelines: A Work In Progress Integrating Global Consensus And Domestic Imperatives, Susan Beth Farmer

Susan Beth Farmer

Abstract: The Evolution of the Chinese Merger Guidelines: A Work in Progress Integrating Global Consensus and Domestic Imperatives

China is among the most recent entrants into global competition enforcement, having adopted the first competition law of general application, the Anti-Monopoly Law (AML) after more than a decade of drafting. The AML and Merger Notification Thresholds, rules issued by decree of the State Council, became effective on August 3, 2008. Both the law and the guidelines were subject to public review and comment, and went through a number of drafts before final adoption.

This article is a comprehensive comparison of merger …

Harmonizing Trade Liberalization And Migration Policy Through Shared Responsibility: A Comparison Of The Impact Of Bilateral Trade Agreements And The Gats In Germany And Canada, Kamaal Zaidi

Kamaal Zaidi

For many years, developed nations have been facing serious challenges with respect to demographic shifts. This has led to shape migration policy by hiring foreign workers or inviting business services from developing nations, which are characterized by a large work force. This paper examines the relationship between trade liberalization and migration policy by comparing Canada and Germany. The thesis of this paper is that bilateral trade agreements between Canada, Germany and other developing nations create more favorable migration policy for non-residents seeking employment in these two developed nations. This is more favorable compared to multilateral trade, particularly within Mode 4 …

Sovereign Wealth Funds As Regulatory Chameleons: The Norwegian Sovereign Wealth Funds And Public Global Governance Through Private Global Investment, Larry Cata Backer

Larry Cata Backer

The character of global regulation has changed dramatically over the last decade. Today, multinational corporations sometimes assert substantial regulatory power across borders, and states sometimes enter markets as participants rather than as regulators—especially when they engage in economic activity outside their borders through sovereign wealth funds (SWFs). In both cases the current transnational ordering has settled on voluntary principles based approaches to regulation. SWFs are controlled by states but seek to participate in private markets in the same way as private investment vehicles. But the difficulty has been the need to overcome the inherent sovereign character of state investment, central …

Exporting Class Actions To The European Union, Tiana Leia Russell

Tiana Leia Russell

In this paper, I present the theoretical debates regarding the value of class action litigation, both with respect to compensation and deterrence. I begin by reviewing the class action litigation model in the United States. The paper then explores the current state of private antitrust enforcement in the European Union, with specific focus on the availability of class action litigation within Europe. I discuss recent calls within the European Union for greater private enforcement of competition law and outline steps the Commission has taken in addressing that need, including the recently published White Paper on Damages for Breach of EC …

Citing Outside The Law Reports: Citations Of Secondary Authorities On The Australian State Supreme Courts Over The Twentieth Century, Russell Smyth

Russell Smyth

The purpose of this study is to examine trends in citations of secondary authorities in the six Australian State Supreme Courts based on decisions reported in the official state reports at decade intervals between 1905 and 2005. The main conclusions from the study are that citations of secondary authorities have increased over time; the State Supreme Courts cite fewer secondary authorities than the High Court; most citations of secondary authorities are to legal sources; and of the legal secondary authorities cited, the State Supreme Courts cites far fewer journal articles than legal texts. The study considers the implications of these …

Republic Of Philippines V. Pimentel: The Return Of Rigidity To The Analysis Of Questions Of Indispensability, Lucas J. Myers

Lucas J. Myers

In Part I, this Note recounts the history of indispensable party jurisprudence. Part I concludes with a detailed discussion of Rule 19(b) in its modern form and the Court’s analysis in Provident Tradesmens Bank & Trust Co. v. Patterson, the seminal treatment of indispensability prior to Pimentel. Part II analyzes the Court’s decision in Pimentel, beginning with the underlying facts and procedural history and concluding with a discussion of the Court’s changed mode of analysis. Part III examines the differences between the Court’s analysis in Pimentel and Provident Tradesmens, arguing that each Rule 19(b) analysis should fully account for all …

Utilitarian Information Works – Is Originality The Proper Lens?, Dana Beldiman

Dana Beldiman

As the information society advances, vastly increased numbers of utilitarian information works (UIW) are being produced. In general, these works are deemed protected by copyright law, even though the philosophical underpinnings of copyright law clash with the attributes of utilitarian information works. This article examines the cause for the uneasy relationship between utilitarian information works and the concept of “originality.”

Part I discusses the role of information and utilitarian information works as one of the core wealth-producing assets of the knowledge-based economy. This economy is characterized by a rapid pace of innovation, which in turn, requires unrestricted access to information. …

Jurisdiction To Prosecute Non-National Pirates Captured By Third States Under Kenyan And International Law, James Thuo Gathii

James Thuo Gathii

On January 16, 2009, Kenya and the United States signed a Memorandum of Understanding (MOU) under which Kenya agreed to try suspected pirates captured by the U.S. In addition, Kenya signed a similar MOU with the European Union on March 6, 2009. Another is planned between Kenya and China.

This paper examines Kenya’s decision to receive and prosecute these suspects, as well as an important new Merchant Shipping law, (currently awaiting Presidential assent), that confers on Kenyan Courts jurisdiction over non-nationals for hijacking and robbery committed on the high seas. This statute effectively establishes universal jurisdiction over piracy. This new …

Thomas Paine And The Rights Of Man In European Jurisprudence: European Caselaw Confronts New York Times V. Sullivan : Different Results, Methods And Considerations: Time To Rethink Sullivan?∗, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. It is suggested that american courts should themselves weigh and evalue the facts of defamation (as the NYTimes ct did); and also consider whether justification should be demanded for opinion statements, free attorney appointments for public interest defendants in defamation cases, and consideration given to a sliding scale of defamatory review for public officials who hold non-elected, lower rank positions.

Do Independent Boards Behave Differently? Examining The Voluntary Adoption Of Board Monitoring Mechanisms, Anita I. Anand

Anita I Anand

We ask whether firms with an independent board of directors are more likely than firms without an independent board to adopt recommended corporate governance practices designed to enhance the board's monitoring capabilities. Using hand-collected data from Canadian firms listed on both American and Canadian stock exchanges, we find that firms with both types of boards voluntarily adopt corporate governance practices and that independent boards are no more likely to adopt these practices than their non-independent counterparts. One exception to this statement is the formation of board committees. When boards are independent, the audit and compensation committees are far more likely …

Investments In Sub Saharan Africa: The Role Of International Arbitration In Dispute Settlement, Oladiran Ajayi

Oladiran Ajayi

Africa has grown significantly in this decade and is attracting investors. Economic growth can however be cyclical. The World is now going through a major economic downturn and Africa is not exempted. In different countries, including African States, parties may find themselves in positions where they cannot meet their contractual requirements and this will lead to a dispute. This paper considers the arbitration mechanisms for resolving such disputes relating to investments in Sub Saharan Africa. It will look at Nigeria and Angola and the avenues for arbitration in diputes relating to them. It wll conclude that structures exist for international …

Rethinking The Foreign Direct Investment Process In Post Conflict Transition Couuntries, Kojo Yelpaala

Kojo Yelpaala

ABSTRACT Burdened by the remnants of conflict, continuing threats of security lapses, significant market failures and weak institutions, post conflict transition countries can hardly be described as normal economies. The task of transforming them into vibrant, productive and self-sustaining economies is no simple assignment. Constructing the blueprint for reconstruction and economic development requires creativity of the first order. Conventional theories or pure neo-liberal market driven policy levers preached by the Washington Consensus group are not likely to be productive. The design of the investment regime for development should therefore focus on non conventional policy constructs. Contrary to the received theories, …

The Relative Bargaining Power Of Employers And Unions In The Global Information Age: A Comparative Analysis Of The United States And Japan, Kenneth G. Dau-Schmidt, Benjamin C. Ellis

Kenneth G. Dau-Schmidt

In this paper, we examine and compare the impact of American and Japanese labor law on the relative bargaining power of the labor and management within the context of the new global economy based on information technology. We begin by providing a simple economic definition of bargaining power and examining how it can be influenced by economic and legal factors. Next we discuss the impact of the new information technology and global economy on the employment relationship and how this has decreased union bargaining power relative to management bargaining power. Finally, we compare various facets of American and Japanese labor …

Effects Of Strategic Tax Behaviors On Corporate Governance, Nicola Sartori

Nicola Sartori

This paper addresses agency tensions and conflicts that may emerge between managers (agents) and shareholders (principals) as a result of aggressive tax planning strategies adopted by publicly held corporations. The interactions between corporate governance and taxation are bilateral and biunique: in fact, on one side, the manner in which corporate governance rules are structured affects the way a corporation fulfills its tax obligations; on the other side, the way tax designs (from the government perspective) and related tax strategies (from the corporation perspective) are planned influences corporate governance dynamics. This article investigates such bilateral relationship limiting the analysis to the …