Commercial Law Commons^™

An App For Third Party Beneficiaries, David G. Epstein

Law Faculty Publications

Every year, more than 100 reported court opinions consider the question of whether an outsider can sue for damages under a contract made by others-in part because the law is so ambiguous. While contract enforcement by a third party is controlled largely by the facts of the particular case, it also materially depends upon the relevant legal standards. At present, not just the standards, but also the reasons for these standards, are unclear. Eighty years ago, Lon Fuller, a professor teaching contracts at a then-Southern law school, and William Perdue, a student at that school, significantly clarified and improved decision …

The Need For An International Convention On Data Privacy: Taking A Cue From The Cisg, Morgan Corley

Brooklyn Journal of International Law

In light of the invalidation of the U.S.-EU Safe Harbor, along with the increase in sales of personal data as a commodity, data privacy has become a major concern amongst different nations. The lack of harmonization of data-privacy laws around the world continues to pose obstacles to the free flow of data across national borders. The free flow of data is, nonetheless, essential the international economy. As a result, nations continue to work together to try to create mechanisms by which data can be transferred across borders in a secure manner. This Note examines the current state of data-privacy law …

The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross

Brooklyn Journal of Corporate, Financial & Commercial Law

Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.

More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …

Open Sesame: The Myth Of Alibaba's Extreme Corporate Governance And Control, Yu-Hsin Lin, Thomas Mehaffy

Brooklyn Journal of Corporate, Financial & Commercial Law

In September 2014, Alibaba Group Holding Limited (Alibaba) successfully launched a $25 billion initial public offering (IPO), the largest IPO ever, on New York Stock Exchange. Alibaba’s IPO success witnessed a wave among Chinese Internet companies to raise capital in U.S capital markets. A significant number of these companies have employed a novel, but poorly understood corporate ownership and control mechanism—the variable interest entity (VIE) structure and/or the disproportional control structure. The VIE structure was created in response to the Chinese restriction on foreign investments; however, it carries the risk of being declared illegal under Chinese law. The disproportional control …

Share And Share Dislike: The Rise Of Uber And Airbnb And How New York City Should Play Nice, Alexandra Jonas

Journal of Law and Policy

Uber and Airbnb are two companies in the emerging “sharing economy” that provide individuals with a means to become entrepreneurs and benefit from a laissez-faire business model. The problem, however, is that while the benefits to users are great, so too are the risks. The dangers of operating without restraint and circumventing existing law are not only potentially harmful to unapprised users, but also adversely affect the continued use of these businesses. Every aggrieved user complaint has the potential for a lawsuit and every violation creates an opportunity for penalties. Left over are attempts by the courts and city government …

Payment Systems, Consumer Tragedy, And Ineffective Remedies, Marc L. Roark

St. John's Law Review

(Excerpt)

This Article engages how those social considerations interact with commercial contracting principles and payments policies to recommend an over-arching narrative of fairness. At the core is the desire to create balance amongst the competing interests, while recognizing the role that risk and access should play in defining the legal remedies available to consumers. To do so, the Article attempts to understand the competing interests represented by different constituents of SVPs, including consumers and merchants. In particular, the Article attempts to tell a story of two different types of consumers. The first is one whom we might not care much …

Dikai Emporikai: A Response To Alberto Maffi, Mark J. Sundahl

Law Faculty Articles and Essays

No abstract provided.

Out Of Sight, Out Of Mind: Hidden Disclaimers And Ucc § 2-316’S Conspicuousness Requirement, Gavin Thole

University of Michigan Journal of Law Reform Caveat

Money now, terms later” agreements, or rolling contracts, are commonplace in consumer transactions. Courts frequently allow these agreements to stand. But problems arise when product manufacturers disclaim a warranty that protects consumers, such as the implied warranty of merchantability, without disclosing the disclaimer upfront—effectively rendering the warranty useless. Suppose, for example, a consumer purchases a refrigerator or computer where the implied warranty of merchantability disclaimer is printed on the last page of a thick instruction booklet. The booklet is hidden deep inside the box, buried in a morass of cords and paperwork. The consumer has no way of knowing about …

An Analysis Of Warranty Claims Instituted By Non-Privity Plaintiffs In Jurisdictions That Have Adopted Uniform Commerical Code Section 2-318 (Alternatives B & C), William L. Stallworth

Akron Law Review

The purpose of this Article is to discuss case law developments under Uniform Commercial Code Section 2-318 Alternatives B3 and C.4. The Article will also propose a solution to various problems that arise under section 2-318 in the the law of defenses. In order to follow this discussion, one must understand the law of warranty claims and defenses under Article 2 of the Uniform Commercial Code (henceforth, the "Code" or the "UCC").

Foreign Investment In The People's Republic Of China: Compensation Trade, Joint Ventures, Industrial Property Protection And Dispute Settlement, Kevin K. Maher

Georgia Journal of International & Comparative Law

No abstract provided.

Is The Albert H Kritzer Database Telling Us More Than We Know?, Thomas Neumann

Pace International Law Review

This article is the first in a series of articles attempting to provide a geographical and temporal overview of the application practice of the United Nations Convention on Contracts for the International Sale of Goods (CISG). In this first article, the success of CISG is explored. The article develops the idea of using the Albert H. Kritzer Database to achieve an overview of the success of the Convention in practice. It is argued that the success of the Convention is useful to measure by its uniformity in practice, and therefore a set of criteria relating to the Convention’s application by …

Good Faith: Helping Commercial Parties Or Creating An Unnecessary Burden?, Ee-Ing Ong

Research Collection Yong Pung How School Of Law

One of the challenges facing Asian legal systems in the coming years is whether the courts should impose a general duty of good faith in contracts. The doctrine of good faith has been making inroads in various common law jurisdictions, most recently in Canada where the Supreme Court held in Bhasin v. Hrynew, 2014 SCC 71 that there was a duty of honest performance in all contracts. The idea behind imposing a duty of good faith in all contracts is to ensure that parties essentially “play fair” in contract negotiations and/or performance. However, is such a duty really necessary for …

Courts Gone “Irrationally Biased” In Favor Of The Federal Arbitration Act?—Enforcing Arbitration Provisions In Standardized Applications And Marginalizing Consumer-Protection, Antidiscrimination, And States’ Contract Laws: A 1925–2014 Legal And Empirical Analysis, Willy E. Rice

William & Mary Business Law Review

Spanning nearly forty years, the Supreme Court has issued multiple decisions and stated categorically that “judicial hostility to arbitration” was the sole impetus behind Congress’s decision to enact the Federal Arbitration Act of 1925. In fact, before the FAA, systemic trade-specific problems and practices generated heated disputes and widespread litigation among merchants and trade organizations. Thus, to arrest those constituents’ concerns, Congress enacted the FAA. Briefly, under the FAA section 2, arbitration is mandatory if a contractual arbitration provision is valid and a controversy “arises out of the contract.” However, common-law rules of contract formation are equally clear: Standing alone, …

Too Clever By Half: Reflections On Perception, Legitimacy, And Choice Of Law Under Revised Article 1 Of The Uniform Commercial Code, Mark Edwin Burge

Faculty Scholarship

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. …

Insuring Floods: The Most Common And Devastating Natural Catastrophes In America, Christopher French

Faculty Scholarship

Flooding is the most common natural catastrophe Americans face, accounting for 90% of all damage caused by natural catastrophes. Hurricanes Katrina and Sandy, for example, collectively caused over $160 billion in damage, but only approximately 10% of the Hurricane Katrina victims and 50% of the Hurricane Sandy victims had insurance to cover their flood losses. Consequently, both their homes and lives were left in ruins in the wake of the storms. Nationwide, only approximately 7% of homeowners have insurance that covers flood losses even though the risk of flooding is only increasing as coastal areas continue to be developed and …

The Joint Venture And Related Contract Laws Of Mainland China And Taiwan: A Comparative Analysis, Clyde D. Stoltenberg, David W. Mcclure

Georgia Journal of International & Comparative Law

No abstract provided.

Contract Resurrected! Contract Formation: Common Law – Ucc – Cisg, Sarah Howard Jenkins

Law Faculty Scholarship

No abstract provided.

Reservations And The Cisg: The Borderland Of Uniform International Sales Law And Treaty Law After Thirty-Five Years, Ulrich G. Schroeter

Brooklyn Journal of International Law

No abstract provided.

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Rizwaan J. Mokal

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Book Review: Commentary On The International Sales Law. The 1980 Vienna Sales Convention. C.M. Bianca And M.J. Bonell Et Al. Milan, Italy: Guiffre 1987. Pp. 678 Plus Appendices And Index., Joseph J. Darby

Georgia Journal of International & Comparative Law

No abstract provided.

Commercial Letters Of Confirmation In International Trade: Austrian, French, German And Swiss Law And Uniform Law Under The 1980 Sales Convention, Michael Esser

Georgia Journal of International & Comparative Law

No abstract provided.

Compliance With Most Favored Customer Clauses: Giving Meaning To Ambiguous Terms While Avoiding False Claims Act Allegations, Mitchell S. Ettinger, James C. Altman

Notre Dame Law Review Reflection

Federal and state contracting authorities more frequently are including Most Favored Customer (MFC) clauses in contracts for procurement of privately manufactured products. These clauses seek to ensure that the contracting authority (typically a federal or state agency) receives at least as favorable pricing as other customers making similar purchases. For example, the government agency may request that the contractor warrant that the prices it charges under the contract will be as favorable as those offered to other parties purchasing similar products of similar quantity under similar terms and conditions. In theory, the request to be treated equally to others making …

Coming Up Short: The United States' Second-Best Strategies For Corralling Purely Speculative Derivatives, Timothy E. Lynch

Faculty Works

Purely speculative derivatives (PSDs) are derivatives in which neither counterparty is engaged in hedging. Unless used for entertainment purposes, PSDs are irrational, less-than-zero-sum transactions. Entities that engage in PSDs jeopardize their stakeholders and increase systemic risk. PSDs can also increase moral hazard, be used for regulatory arbitrage, and redirect resources away from efficient allocation of market capital. PSDs should be unenforceable, void for public policy reasons, except where expressly permitted to provide gambling entertainment, enhance price discovery, or increase liquidity for hedgers. In the U.S., however, PSDs are often legal and enforceable, even after the financial crisis of 2008 that …

Contract Law Update 2014, Yihan Goh

Research Collection Yong Pung How School Of Law

With the end of 2014 almost upon us, it is apposite to take stock of the more important developments in Singapore contract law in the year. This entry examines four cases that straddle important developments across various fields in contract law, namely, formation, terms, breach and illegality. In each case, it can be seen that the Singapore courts are anxious to consolidate existing law, and to chart new courses where relevant and appropriate.

Uniform Interpretation Of The 1980 Uniform Sales Law, Franco Ferrari

Georgia Journal of International & Comparative Law

No abstract provided.

Reconstructing Iraq: An Analysis Of, And Proposed Solutions To, The Financing Challenges Facing Iraqi Small And Mid-Sized Businesses, Timothy B. Mills

Georgia Journal of International & Comparative Law

No abstract provided.

Restitution Of Mistaken Enrichment Under Section 73 Of Malaysia's Contracts Act 1950: Pouring New Wine Into An Old Bottle?, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article makes two main suggestions regarding the interpretation of s 73 of Malaysia's Contracts Act 1950, which sets out the right to recover a mistaken enrichment. The first suggestion is that the courts should have regard to the historical background against which the section was enacted, especially because the pre-enactment common law was a historical curiosity. This will dispel certain misconceptions about the nature of the statutory right by shedding light on its supposed affinity with contract and its relationship with the obsolete forms of action and the principle of unjust enrichment. The second suggestion is that the content …

The Essential Role Of Courts For Supporting Innovation, Erin O'Hara O'Connor, Christopher R. Drahozal

Scholarly Publications

Commercial parties commonly resolve their disputes in arbitration rather than courts. In fact, some estimate that as many as 90 percent of international commercial contracts opt for arbitration of future disputes, and others claim that some industries never resort to courts. However, a study of arbitration clauses in a wide variety of contracts, including franchise agreements, CEO employment contracts, technology contracts, joint venture agreements and consumer cell phone contracts, reveals that parties very often carve out a right to resort to courts for the resolution of claims designed to protect information, innovation, and reputation. Studies of international and cross-border contracts …

Fulton County Business Court: A Specialized Solution For The Modern Business Community, Megan K. Johnson

Georgia State University Law Review

Business courts or complex commercial divisions are growing in popularity as an effective tool to channel the most complex civil cases into one place before experienced judges with the background and training necessary to resolve the sophisticated issues often presented in those cases. According to North Carolina Business Court Judge Ben F. Tennille, one of the first judicial advocates of the business court model, the evolution of specialty business courts is a necessary response to “‘the rapidly increasing complexity, rate of change and globalization of business.’”

In 2005, Fulton County Superior Court launched a Business Case Division (“Fulton Business Court”) …