Law Commons^™

Convergence And Divergence: Comparative Analysis Of Procedural Rule Changes Of The Hong Kong And Singapore International Arbitration Centers Within The Framework Of Neo-Institutional Theory, Phillip Hoang Tran

Dissertations

International commercial arbitration (ICA) plays an essential role in resolving disputes between companies engaged in complex, cross-border business transactions. It offers an efficient, neutral, and enforceable mechanism for resolving disputes across different legal and cultural backgrounds. ICA is generally conducted at international arbitration centers located throughout the world. According to the extant literature, there is convergence of procedural rules among these centers. Sabharwal and Zaman (2014), for example, claim increasing convergence of procedural rules among all the major arbitration centers. Similarly, Sharma (2021) proposes that this convergence helps build the international arbitration system. However, there is a near absence of …

Delaware's Global Competitiveness, William J. Moon

Faculty Scholarship

For about a hundred years, Delaware has been the leading jurisdiction for corporate law in the United States. The state, which deliberately embarked on a mission to build a haven for corporate law in the early twentieth century, now supplies corporate charters to over two thirds of Fortune 500 companies and a growing share of closely held companies. But Delaware’s domestic dominance masks the important and yet underexamined issue of whether Delaware maintains its competitive edge globally.

This Article examines Delaware’s global competitiveness, documenting Delaware’s surprising weakness competing in the emerging international market for corporate charters. It does so principally …

Is Economic Nationalism In Corporate Governance Always A Threat?, Martin Gelter

Faculty Scholarship

During the past decades, corporate law and corporate governance debates have generally been skeptical of elements of economic ‘Nationalism’ or ‘protectionism.’ Arguably, globalization and convergence in corporate governance have resulted in a reduction of protectionist policies. However, recently COVID-19 has resulted in nationalist and protectionist conduct in economic policy across jurisdictions. Contrary to the predominant view, this paper argues that corporate governance policies intended to serve a particular country’s interest may at times be justified. First, globalization and convergence in corporate governance are likely to have beneficial effects only when outside investors pursue financial rather than political goals. Protectionist policies …

The Omega Man Or The Isolation Of U.S. Antitrust Law, Spencer Weber Waller

Faculty Publications & Other Works

There is a classic science fiction novel and film that present a metaphor for the isolation of United States antitrust law in the current global context. Richard Mathiesson's 1954 classic science fiction novel, I am Legend, and the later 1971 film released under the name of The Omega Man starring Charleton Heston, both deal with the fate of Robert Neville, a survivor of a world-wide pandemic who believes he is the last man on Earth.

While I am Legend and The Omega Man are obviously works of fantasy, it nonetheless has resonance for contemporary antitrust debate and discourse. United States …

Land Of The Falling "Poison Pill" Understanding Defensive Measures In Japan On Their Own Terms, Alan K. Koh, Masafumi Nakahigashi, Dan W. Puchniak

Research Collection Yong Pung How School Of Law

Embraced by United States ("U.S.") managers in the 1980s as a lifeline in a sea of hostile takeovers, the poison pill fundamentally altered the trajectory of American corporate governance. When a hostile takeover wave seemed imminent in Japan in the mid-2000s, Japanese boards appeared to embrace this American invention with equal enthusiasm. Japan's experience should have been a ringing endorsement for the utility of American corporate governance solutions in foreign jurisdictions -but it was not to be. Japan's unique interpretation of the "poison pill" that was so eagerly adopted by Japanese companies in the mid-to-late 2000s has turned out to …

Queer Sacrifice In Masterpiece Cakeshop, Jeremiah A. Ho

Faculty Publications

This Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission , as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and …

Mass Incarceration Paradigm Shift?: Convergence In An Age Of Divergence, Mugambi Jouet

Journal of Criminal Law and Criminology

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies. Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term to be “cruel and unusual punishment” under the Eighth Amendment. By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice. Many scholars concluded that punitiveness had …

Transnational Business Governance Interactions And Financial Regulation Change: A Case Of Asian Financial Markets, Simin Gao, Christopher Chen

Transnational Business Governance Interactions Working Papers

This chapter examines the interactions of transnational business governance schemes regulating the global derivatives markets with multiple levels of interactions. The chapter describes the process of interactions via the theory of isomorphism. First, after examining the interactions of futures exchanges, we identify that governance techniques among futures exchanges are rather similar, illustrating the forces of mimetic and normative isomorphism. Second, the monopoly of the International Swaps and Derivatives Association (ISDA) scheme in the over-the-counter (OTC) market provides signs of mimetic isomorphism. Third, through imparity of market power and major market dealers, the ISDA scheme became the only governance scheme for …

Opportunity Makes A Thief: Corporate Opportunities As Legal Transplant And Convergence In Corporate Law, Martin Gelter, Geneviève Helleringer

Faculty Scholarship

The paper surveys the corporate opportunities doctrine in four jurisdictions: the US, the UK, Germany, and France. Our analysis enables us to trace the development of the doctrine, exposing the way in which certain models of dealing with a particular issue have arisen, and how these models have then spread. Fiduciary duties are often today held out as typical instruments of shareholder protection in the US and the UK, both of which are often held out as model jurisdictions in corporate governance internationally. However, fiduciary duties in these two jurisdictions often operate in strikingly different ways. While the US relies …

Lessons Learned, Lessons Lost: Immigration Enforcement's Failed Experiment With Penal Severity, Teresa A. Miller

Teresa A. Miller

This article traces the evolution of “get tough” sentencing and corrections policies that were touted as the solution to a criminal justice system widely viewed as “broken” in the mid-1970s. It draws parallels to the adoption some twenty years later of harsh, punitive policies in the immigration enforcement system to address perceptions that it is similarly “broken,” policies that have embraced the theories, objectives and tools of criminal punishment, and caused the two systems to converge. In discussing the myriad of harms that have resulted from the convergence of these two systems, and the criminal justice system’s recent shift away …

Will We Ever Close The Gaap?: A Look Into The International Convergence Of Accounting Standards, Melanie Rosin

Michigan Business & Entrepreneurial Law Review

This Note examines the trend toward the international convergence of accounting standards and then identifies the factors contributing to the process of this trend as well as the obstacles standard setters face in moving to one high quality, unified set of standards. The Note next identifies the possible outcomes for the future of convergence, including the mandatory adoption of International Financial Reporting Standards (IFRS) by the United States, the Securities & Exchange Commission’s (SEC) encouragement of the voluntary of adoption of IFRS by the United States, requiring public companies to comply with both U.S. Generally Accepted Accounting Principles (U.S. GAAP) …

Copyright Competition: The Shifting Boundaries Of Convergence Between U.S. And Canadian Copyright Regimes In The Digital Age, David Amar

Brooklyn Journal of International Law

The great copyright debate between protecting creators and encouraging information-sharing has always been a contentious and likely unresolvable battle. However, with the crafting of new legislation designed to rein in unscrupulous sharing in the age of online sharing and piracy, the discussion grows ever more heated. The economies of Canada and the U.S. have always been intertwined, and in a copyright context, this has never been clearer. Since Canada began to appear on the U.S. “Special 301” piracy reports, the two nations have been locked into a system of promulgating ever-more restrictive copyright policy, the logical extreme of which may …

Convergence And Persistence In Corporate Law And Governance, Jeffrey N. Gordon

Faculty Scholarship

This chapter discusses the question of “convergence or persistence” in corporate law and governance. It first considers efforts to measure convergence directly by focusing on the evolution of law-on-the-books governance provisions before analyzing capital market evidence on convergence, with particular emphasis on capital market indicators such as the decline in “cross-listings” onto US stock exchanges by firms from jurisdictions with weaker investor protection and the increase in initial public offerings (IPOs) on emerging market stock markets. The chapter proceeds by reviewing evidence of divergence, especially “divergence within convergence,” and the failure of the European Union to produce more convergent corporate …

Public Health Regulation: Convergence, Divergence, And Regulatory Tension: An Asian Perspective, Locknie Hsu

Research Collection Yong Pung How School Of Law

Regulatory issues relating to public health, including regulation of access to medicines and tobacco control have increasingly been the source of tension in recent trade and investment negotiations, treaties and disputes. The ongoing Trans-Pacific Partnership negotiations, which include a number of developing Asian states, are an example that brings some of these issues to the fore and show a divergence of negotiating views.

The intersection between public health regulation and trade and investment treaties has given some Asian states significant pause for thought; it has further led the international system to a critical need to confront the overlap of legal …

Patent Club Convergence Among Nations, Daniel Benoliel

Marquette Intellectual Property Law Review

The article uncovers profound empirical and conceptual shortcomings concerning the "one-size-fits-all" innovation and intellectual property-related policies used internationally. These policies surely are funneled by the World Trade Organization (WTO) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) or the World Intellectual Property Organization’s (WIPO) archetypical Development Agenda. The article offers a novel delineation of these policies vis-à-vis distinct country groups or “convergence clubs.”

In so doing, the article offers a unique statistical model carrying out hierarchal cluster analyses for sixty-six innovating countries twice during the 1996–2011 time series period. The model detects country groups that are …

Anarchy, Order, And Trade: A Structuralist Account Of Why A Global Commercial Legal Order Is Emerging, Bryan H. Druzin

Bryan H. Druzin

While still fragmented, we are witnessing the emergence of a global commercial legal order independent of any one national legal system. This process is unfolding both on the macro-level of state actors as well as that of private individuals and organizations. On the macro-level, the sources of this legal order are complex international agreements; on the micro-level, private contracts employing commercial customary practices and arbitration are driving this process forward. Yet there is no comparable evolution occurring (in any substantial sense) in non-commercial areas of law such as criminal, tort, or family law. There is an overall asymmetry in the …

The Impact Of Next Generation Television On Consumers And The First Amendment, Rob Frieden

Rob Frieden

Consumers have access to an ever increasing inventory of video content choices as a result of technological innovations, more readily available broadband, new business plans, inexpensive high capacity storage and the Internet’s ability to serve as a single medium for a variety of previously standalone services delivered via different channels. They increasingly have little tolerance for “appointment television” that limits access to a particular time, channel and device. Access to video content is becoming a matter of using one of several software-configured interfaces capable of delivering live and recorded content anytime, anywhere, to any device and via many different transmission …

The Sum Of All Our Fears: Transnational Corporations And The Crisis Of Convergence In Australia, Caroline Colton

Faculty of Law, Humanities and the Arts - Papers (Archive)

The article discusses the desire of the businesses to improve infrastructure construction by increase their infrastructure investment in superannuation funds and in the government of Australia. It highlights the privatisation of public assets and reduction of services for corporate profit optimisation in the government. It examines the impact of environmental law to the development of infrastructure such as power plants for economic development.

The Impact Of Next Generation Television On Consumers And The First Amendment, Rob Frieden

Fordham Intellectual Property, Media and Entertainment Law Journal

Consumers have access to an ever increasing inventory of video content choices as a result of technological innovations, more readily available broadband, new business plans, inexpensive high capacity storage and the Internet’s ability to serve as a single medium for a variety of previously standalone services delivered via different channels. They increasingly have little tolerance for “appointment television” that limits access to a particular time, channel and device. Access to video content is becoming a matter of using one of several software-configured interfaces capable of delivering live and recorded content anytime, anywhere, to any device and via many different transmission …

The Human Rights Council And The Convergence Of Humanitarian Law And Human Rights Law, Daphne Richemond-Barak

Daphne Richemond-Barak

This Article examines and challenges the assumption that the Human Rights Council can and ought to address violations of international humanitarian law. Though envisaged as the main guardian of human rights within the United Nations system, the Human Rights Council views its mandate as encompassing both human rights and international humanitarian law. This extension of its mandate to humanitarian law is not entirely surprising, given the close relationship between IHL and human rights law. Yet, a comparison with other human rights bodies shows that the Council has gone further and with less caution than any other human right body called …

Converging And Coexisting Systems Towards Smart Surveillance, Katina Michael, Mg Michael

Professor Katina Michael

Tracking and monitoring people as they operate within their personal networks benefits service providers and their constituents but involves hidden risks and costs.

Automatic identification technologies, CCTV cameras, pervasive and mobile networks, wearable computing, location-based services and social networks have traditionally served distinct purposes. However, we have observed patterns of integration, convergence and coexistence among all these innovations within the information and communication technology industry.1For example, ‘location-based social networking’ can draw on a smart phone's capacity to identify a user uniquely, locate him within 1–2m and share this information across his social network in real time. The resulting ability to …

International Convergence On Flags Of Convenience, Ryan M. Mott

Ryan M Mott

In maritime law, a ship follows the laws of the flag that it flies. Ship owners, however, are not constrained to fly the flag of the country that they are from. Instead, they can choose what flag they will sail under, and thus have their pick of laws among all of the countries in the world. Much like the corporate “internal affairs rule” of common law countries that regulates a business at its place of incorporation instead of its primary source of business, a vessel is governed by the country whose flag it flies, regardless of where the ship conducts …

Convergence And Its Discontents: A Reconsideration Of The Merits Of Convergence Of Global Competition Law, Thomas K. Cheng

Thomas K. Cheng

This Article examines the recent phenomenon of the convergence of competition law regimes across the globe. The increasing harmonization of competition law, at both the procedural and substantive levels, has been widely discussed and applauded in recent years. This Article casts doubt on the conventional wisdom that convergence necessarily constitutes a positive development in global competition law. After analyzing the causes of the phenomenon, this Article argues that there should be limits to the pursuit of convergence. First, the costs of convergence should not be overlooked. The most important of such costs is the loss of national regulatory prerogative. Second, …

Convergence And Divergence In International Dispute Resolution Symposium, Peter Rutledge

Journal of Dispute Resolution

This symposium submission draws heavily on law and economic literature to develop its thesis. Part I lays out the literature behind the parties' choice to opt for arbitration. It also builds upon that literature by attempting to sketch out some preliminary reasons why parties might opt for arbitration over another form of dispute resolution. Part II charts how, along various axes, arbitration has begun to converge with litigation - thereby depriving it of a comparative advantage that it once enjoyed - due to innovations in arbitration and innovations in the field of international civil litigation. In brief, the traditional advantages …

Digital Platforms In A Competition Law Context. A New Function Of Competition Law In The Digital Era, Vincenzo Franceschelli

Vincenzo Franceschelli

In a classical approach, competition law is a combination (or, if you prefer, a blend or a mixture) of law and economics. The ultimate traditional accepted goal of antitrust is to increase competition and consequently to protect the consumer.

In the digital era, competition law is going beyond its original objective of creating and preserving a competitive market.

Monopoly or dominant position in the digital world effects the communication system, and therefore citizen’s fundamental rights.

Freedom of expression, the right to be informed, privacy, access to information and to the net are preserved in a competitive and pluralistic market and …

Rationales For And Against Fcc Involvement In Resolving Internet Service Provider Interconnection Disputes, Rob M. Frieden

Rob Frieden

Internet Service Providers (“ISPs”) provide end users with access to and from the Internet cloud. In addition to providing the first and last mile carriage of traffic, ISPs secure upstream access to sources of content via other ISPs typically on a paid (transit), or barter (peering) basis. Because a single ISP operates in two separate segments of traffic routing, both the terms and conditions of network interconnection and the degree of marketplace competition can vary greatly. In this double-sided market, ISPs typically have many transit and peering opportunities upstream to content providers, but downstream end users may have a limited …

Rationales For And Against Fcc Involvement In Resolving Internet Service Provider Interconnection Disputes, Rob M. Frieden

Rob Frieden

Internet Service Providers (“ISPs”) provide end users with access to and from the Internet cloud. In addition to providing the first and last mile carriage of traffic, ISPs secure upstream access to sources of content via other ISPs typically on a paid (transit), or barter (peering) basis. Because a single ISP operates in two separate segments of traffic routing, both the terms and conditions of network interconnection and the degree of marketplace competition can vary greatly. In this double-sided market, ISPs typically have many transit and peering opportunities upstream to content providers, but downstream end users may have a limited …

Response: Metaphor And Meaning In Trawling For Herring, Colin Starger

All Faculty Scholarship

In this essay responding to Professor Jennifer Laurin’s essay, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, I advance Laurin’s project of recovering the exclusionary rule’s lost lineage through a critical reflection upon her doctrinal metaphors. Specifically, I parse the jurisprudential significance of Laurin’s idea of “trawling” in order to understand Herring v. United States and show how this metaphor successfully builds upon a second water-based metaphor animating Laurin’s analysis — the “hydraulics” of borrowing and convergence. By attending to both Laurin’s specific exclusionary rule arguments and to how Laurin’s conceptualization of “hydraulics” extends Professors Tebbe and Tsai’s constitutional …

"Consumer Choice" Is Where We Are All Going - So Let's Go Together, Neil W. Averitt, Robert H. Lande, Paul Nihoul

All Faculty Scholarship

Globalisation of business makes it important for firms to predict how their behaviour is likely to be treated in the roughly 200 nations that have competition laws. In that context, a crucial question is: are we in a position to develop a common intellectual framework that would give coherence to policy statements made on specific competition related issues and, at the same time, be acceptable, broadly, in a variety of legal systems, not necessarily based on identical assumptions? We believe that the answer is “yes.” A concept is emerging as a possible source of unification for competition policies around the …

The Evaluation Of The Implementation Of Fair Value Accounting: Impact On Financial Reporting, Karen Cascini, Alan Delfavero

WCBT Faculty Publications

The accounting industry is in a state of continuous change. In the United States, the historical cost principle has traditionally been the foundation of accounting. Until recently, assets and liabilities have been required to be recorded at their acquisition prices, with the exception of designated financial assets and financial liabilities. However, the Financial Accounting Standards Board (FASB) has now created accounting standards that are distant from the cost principle. Statement of Financial Accounting Standards No. 157: Fair Value Measurements, issued in September 2006 (FAS157, now codified as ASC 820) and Statement of Financial Accounting Standards No. 159: The Fair Value …