Commercial Law Commons^™

International Franchising: Focus On Central And Eastern Europe And Russia, Aksinia Zaharieva Dintcheva

LLM Theses and Essays

This thesis discusses and analyzes international franchising and its introduction and development in the emerging democracies in Eastern Europe. After a general presentation of the franchise marketing method, the advantages and disadvantages to both parties of the franchise relationship are discussed. Attention is given to the alternatives available to foreign franchisors contemplating international franchising in the Eastern European region. The thesis further reviews the newly enacted foreign investment laws in six Eastern European countries - Hungary, Czech Republic, Poland, Bulgaria, Romania, and Russia - as they relate to the joint venture operations in the region and the attending legal issues. …

The Legal Regulation Of Hedge Funds In The United States Long-Term Capital Management Episode, Jong Cheol Park

LLM Theses and Essays

Mutual funds and hedge funds are popular forms of investment in the United States and throughout the world. Mutual funds are regulated by securities' regulators in the United States. Hedge funds, however, are not regulated because of their operational flexibility in investment. U.S. regulators are concerned that if they regulate hedge funds, hedge funds will, along with their economic benefits, emigrate to offshore havens. However, if we consider the importance of the American financial markets in the world, this idea can be dismissed. Due to globalization in the capital markets, small events in the United States can have large effects …

Liability Issues Facing Online Businesses, David E. Shipley

Scholarly Works

Online businesses are confronted by a wide variety of liability issues covering almost the full range of the standard law school curriculum. The liability problems that face a small business in Vidalia, Georgia, which is selling Vidalia onion products at specialty stores, through print advertising, and by mail, do not go away when the business starts marketing through a Web site. In fact, there might be more exposure doing business online, and there are variations depending upon the nature of the business in question. For example, as discussed below, an Internet Service Provider ("ISP") like America Online has worries that …

State Taxation Of Electronic Commerce: Perspectives On Proposals For Change And Their Constitutionality, Kendall L. Houghton, Walter Hellerstein

Scholarly Works

Over the past few years, an enormous amount of attention has been devoted to the problems raised by state taxation of electronic commerce, possible solutions to those problems, and, more recently, the question of whether there is a ‘problem‘ at all. We have both been, and continue to be, deeply involved in the debate over these issues -- a debate that has sometimes generated more heat than light. We view this forum as furnishing us an opportunity to take a step back from the fray and to offer our views not only on the critical issues that are dominating the …

Africa And Her Charter On Human And Peoples' Rights -Notyet "Ominira", Thomas Adeoye Olugbemiga Fawole

LLM Theses and Essays

It is in the light of the foregoing that we intend in this thesis to examine the state of human rights in Africa. It would be the province of the thesis to find out how far the African Charter on Human and Peoples' Rights has enhanced the independence of the various African countries and improved on the quality of the rights enjoyed by the citizenry. While Chapter 2 deals with human rights in precolonial Africa, human rights in "modern day" Africa, i.e. from the colonial era, are dealt with in Chapter 5. Treating human rights under colonial rule and human …

Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul

LLM Theses and Essays

A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …

Derivatives And Risk Framework, Ravichandra Vasant Kini

LLM Theses and Essays

The purpose of this thesis is to explore the dynamics of the fast-growing international financial markets and to study in particular the risks associated with the different kinds of financial instruments. The Barrings Bank Crisis, Proctor and Gamble, Gibson Greetings cases against Bankers Trust, and the Orange County Bankruptcy has prompted regulatory authorities to focus on the risks involved in the derivatives markets. In this paper, the first chapter explains the basic working of the different kinds of derivative instruments especially concentrating on Swaps, Futures, and Options. The second chapter goes on to explain, the risks involved in the uses …

Transfer Pricing, Anders Leif Allvin

LLM Theses and Essays

Transfer pricing is one of the principal international taxation issues of the 1990s and potentially of future decades as well. For corporate enterprises, it can be difficult enough to do business in just one country, but it gets even more complex when they go international. The growth of multinational enterprises (MNEs) creates complex taxation issues for both the tax administrations as well for the MNE. Transfer pricing concerns allocation of income earned within affiliated corporate groups in different countries, which must satisfy tax authorities that they are not evading taxes through the use of transfer pricing. The main problem with …

Legal Aspects Of International Transfer Of Technology, Anna Mikhailovna Otkina

LLM Theses and Essays

For any international law practitioner issues relating to technology and proprietary information can arise in a number of a different situation. For example, transactions involving foreign distribution and sales rights relating to domestic products are a common part of the day-to-day practice of anyone engaged in the multinational business arena. Many of those transactions involve a contractual agreement in the form of a license, which is intended to transfer to the licensee the technology and related information, and the legal rights therewith, necessary to complete successfully the objective of the transaction: the distribution and sale of the domestic product at …

Investments In Free Economic Zones: Analysis Of Factors And Policies Underlying Their Success, Ihor Mehedynyuk

LLM Theses and Essays

This thesis will focus on the experience of those developing countries whose FEZs have been regarded as successful in attracting foreign investment and creating a suitable environment for the activity of zone-based foreign enterprises. Furthermore, it will examine the major aspects of FEZ operations and legal and economic strategies of host countries. Chapter I will concentrate on issues relating to foreign investment, types of attitudes towards foreign investment and their relationship with investment policies of host countries and the role of legal systems in attracting foreign investment. Chapter II will provide an overview of various types and characteristics of FEZs, …

Poison And Dead Hand Pills, Markets For Corporate Control, And Implications For An Emerging Market Like China, Shueiqing Zhou

LLM Theses and Essays

In the past twenty years, the Chinese government has been adopting open door and economic reform policies. Because of historical, economic, legal, and cultural traditions, a modern corporation system is far from being established in China. There are lots of things that need to do to establish a perfect corporate system. This thesis reviews diverse interpretations of the function of poison pills in light of recent judicial decisions and underlying empirical evidence. It also reviews recent judicial decisions regarding the new version of poison and dead hand pill. The author discusses the recent trend of by-law restrictions in an attempt …

State And Local Taxation Of Electronic Commerce: Reflections On The Emerging Issues, Walter Hellerstein

Scholarly Works

When Ed Cohen honored me with the invitation to present the principal paper on state and local taxation of electronic commerce for this conference, I was pleased to accept, but with one caveat. Because most of my waking hours over the past year seem to have been consumed by the preparation of papers addressed to state taxation of electronic commerce, I warned Ed that much of what I might have to say would not be new -- at least to me. But a funny thing happened on the way to this forum. When I set about my task to prepare …

The Interpretation Of The Remedial Provisions Of The Cisg, Evelina Wilhelmina Innocentia Visser

LLM Theses and Essays

The drafting process of the most successful international uniform law of the last decades, the 1980 United Nations Convention on the International Sale of Goods (CISG) reflected that in order to become a set of "well-balanced subsidiary rules," international uniform must be drafted and implemented carefully. It is essential that an international uniform law is adapted to diverse cultures. The different needs and demands of the varied socio-economic systems and legal structures, perceptions, procedures, and cultures of the distinct legal systems of this world are a main and omnipresent consideration and must be capable of absorbing the unified law. Either …

Debt Instruments' Tax Treatment In Corporate Mergers And Acquisitions, Tae Oon Jang

LLM Theses and Essays

The increase of merger and acquisition(M&A) activity since 1992 has resulted mainly from a domestic economic recovery. The current M&A trend shows that M&A is still an important means of enhancing many corporations' competitive power and of stimulating growth in such areas as computer software and services, wholesale and distribution, miscellaneous services, banking and finance, and leisure and entertainment. Fundraising for mezzanine-fund financing, which reflects investors' foresight about current and future M&A trends, has also seen rapid growth. After the Tax Reform Act of 1986 and the repeal of the General Utilities doctrine, the elimination of the capital gain preference …

Domestic Subsidies Under The Wto Agreement On Subsidies And Countervailing Measures And Their Treatment In Section 771 Of The Tariff Act Of 1930, Cecil Carl-Erich Kramer

LLM Theses and Essays

Governments provide subsidies for a variety of reasons and they are an important tool "to promote important objectives of national policy. The Organization for Economic Co-operation and Development (OECD) is comprised of industrialized countries, all of which are Members of the OECD Convention also have shown a steady rise in the provision of subsidies. The policy behind the fact that subsidies are addressed in international agreements is that they create a distortion in international trade and that they can quickly and destructively spread from nation to nation. They create a disparity between the actual costs incurred in producing a particular …

Business Subsidies And The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

In this Article, I seek to respond to the Court's overture with a treatment of of subsidies under the dormant Commerce Clause that moves progressively from the general to the specific. Part I examines key Supreme Court cases to show that the basic question of whether state business subsidies are constitutional remains open and important. Part II then turns to how that question should be resolved, focusing on whether subsidies are fairly distinguishable from ostensibly equivalent, and concededly unlawful, discriminatory tax relief. The thrust of Part II is that both precedent and policy support the traditional, pre-West Lynn Creamer" view …

Taxing Electronic Commerce: Preliminary Thoughts On Model Uniform Legislation, Walter Hellerstein

Scholarly Works

This report on Taxing Electronic Commerce was presented at the symposium on multi-jurisdictional taxation of electronic commerce at Harvard University on April 5, 1997. This report describes the normative principles shared by most serious analyses of the problems raised by state taxation of electronic commerce. It then attempts to translate these principles into legal rules that could provide a model for uniform legislation in this area. Finally it addresses constitutional questions that will likely be encountered in any effort to implement such legislation.

State User Fees And The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

This Article considers the interplay of two central tenets of the U.S. Supreme Court's dormant commerce clause jurisprudence. The first of these principles exempts from the general proscription on discrimination against interstate commerce a state's actions as a "market participant," rather than as a "market regulator." The second principle, in contrast, renders the nondiscrimination rule fully applicable to the imposition of state "user fees."

Part II of this Article shows why these doctrinal pronouncements stand in an uneasy tension. It also explains how this tension revealed itself in Oregon Waste Systems, Inc., v. Department of Environmental Quality of Oregon, when …

State Taxation Of Electronic Commerce, Walter Hellerstein

Scholarly Works

The coming of the information age has profound implications for state taxation as it does for just about everything else. The exponential growth and increasing commercialization of the Internet, along with the sweeping technological and regulatory changes that have reconfigured the telecommunications industry, pose a daunting challenge to the states’ traditional approaches to taxing business activity and the telecommunications system that facilitates it. State tax administrators and policymakers, alarmed at the prospect that their tax bases will disappear into cyberspace, are seeking means to accommodate their taxing regimes to the new technological environment. The business community, on the other hand, …

Developing A "Transnational" Law For International Sales: The Vienna Convention's Treatment Of Trade Usages, Ainhoa Veiga-Torregrosa

LLM Theses and Essays

The 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG or Vienna Convention), conceived for worldwide acceptance, sets forth a uniform set of rules aimed at regulating some of the issues that, in an international sales contract, are likely to arise between the parties to such international transaction. The extent to which the substantive solutions that the Vienna Convention provides with the aim of filling in gaps within international sales contracts, are to achieve the standing of a predictable, global, and uniform legal background for these contracts, is the question to be treated in this paper …

Enforcement Of International Arbitral Awards, Davd Levon Shahzadeyan

LLM Theses and Essays

The primary objective of this thesis is to show the proposals that have been made in order to amend the New York Convention. This study tries to analyze the problems that the proposed modifications seek to eliminate. In general these proposals were aimed at amending the Convention in order to widen the scope of application of the Convention and to eliminate the difficulties with the enforcement of arbitral awards in national courts Chapter two of this study gives a historical overview of the multilateral enforcement conventions prior to the New York Convention and a brief drafting history of the New …

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 …

Legal Aspect And Problems In International American Franchise Transaction In Indonesia, Veronika

LLM Theses and Essays

The Republic of Indonesia, a country in Southeast Asia, faced serious economic problems in 1966, the total debt was (U.S.) $2.3 billion and exceeded export earnings. The government encourages the private sector to take part in this economic development since the government itself faced a scarcity of fund. The government has tried to attract private investment either domestic or foreign investor by launching the deregulation program. The purpose of this thesis is to make an argument that Indonesian franchises need protection and that it is time now for the legislative body in Indonesia to enact a franchise law. The study …

Oppression Of Minority Shareholders In Close Corporations: The Dissolution And Buy Out Remedies, Alexis Wochenmarkt

LLM Theses and Essays

To understand the potentially dramatic consequences of oppression in a close corporation it is in the first instance necessary, to outline the specific characteristics of these corporations. This thesis concentrates on the peculiarities of close corporations. Most states enacted "oppression" as a generic ground for remedial action. This study evaluates the different standards emphasizing reasonable expectations. Reasonable expectations if properly limited appears to be an efficient tool to measure oppression. In other jurisdictions, mainly where oppression is not available as a ground for dissolution, courts encountered the needs of close corporations by enhancing the owed fiduciary duties. Thus, in some …

An Analysis Of The Nature And Impact Of Legal Complexities Facing United States Corporations Considering Investment Into The New South Africa, Philip R. Mcdougall

LLM Theses and Essays

Due to sanctions imposed against South Africa’s Apartheid government, the South African economy suffered as little international investment was made in the country. With these sanctions lifted following the democratic elections of 1994, South Africa is now an alluring country for international investment. Despite this attractiveness, U.S. corporations face many legal concerns before entering the South African economy. An analysis of these issues is made in the context of American and South African law with solutions proposed in an effort to avoid deterring foreign investment. These concerns include political and non-economic risks that often hinder investment in the African continent, …

Lawyers As Exchange Engineers In Commerce: An Empirical Overview, Sandra M. Huszagh, Fredrick W. Huszagh

Scholarly Works

This article empirical explores the exchange relationship between lawyers and their clients with particular attention on the variables of experience and practice specialty. The lawyers' perceptions of client relationships are preliminarily analyzed in terms of their discrete or relational properties and their distribution within experience segments within the firm. Enriched understanding of these matters can assist both lawyers and their clients in crafting more efficient and effective exchange relationships here viewed as critical to commercial activities.

The Relevant Market In European Merger Law, Benedicte Haubold

LLM Theses and Essays

Due to the rapid acceleration of merger movements in the 1980s, the adoption of new merger regulation was a must for the European market. Before the new merger regulation was adopted in 1989, the European Commission used to apply the general competition rules of the Rome Treaty when dealing with mergers. The Commission used to interpret Articles 85 and 86 of the Rome Treaty as a means to condemn mergers that would lead to an abuse of a dominant position at a European level; at that time, there was an absence of complete and systematic control as far as structural …

Priorities In Chattel Paper: Analysis Of § 9-308 Of The U.C.C., Joseph Wilson

LLM Theses and Essays

Article 9 of the Uniform Commercial Code (UCC) governs any transaction which creates a security interest in personal property or fixtures. Generally when there is a conflict between secured parties in the same collateral, the UCC’s default priority rule declares the first secured party to file a financing statement or perfect its interest to have priority. However, section 9-308 creates an exception to this default rule when the security interest is claimed in chattel paper. Chattel paper is a group of writings taken together that evidence both a monetary obligation and a security interest in or a lease of specific …

Notification Of Documentary Discrepancies In Letter Of Credit Transactions, Hong Liu

LLM Theses and Essays

The objective of the thesis is to examine only one aspect of the legal relationship between an issuer and a beneficiary, i.e., an issuer’s duties regarding notifying a beneficiary of documentary discrepancies in the letter of credit transactions. To lay down a theoretical foundation, the basic principle of the letter of credit law and policy considerations for this legal obligation will be explored in the thesis. In Chapter II, the relevant provisions of the U.C.C and U.C.P. will be examined and compared. Chapter III will focus on how the courts interpret and apply the U.C.C and U.C.P. in the cases …

The Impact Of The Garcia Decision On The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

In National League of Cities v. Usery, the Supreme Court recognized a strong state-sovereignty-based limit on Congress's exercise of its commerce power. In Garcia v. San Antonio Metropolitan Transit Authority, however, the Court overruled National League of Cities, relying in part on past difficulties in trying to distinguish between protected state “governmental” activities and unprotected state “proprietary” activities. In the wake of Garcia, commentators have urged that its reasoning undermines the Court's longstanding exemption of state proprietary activities from dormant Commerce Clause challenge under the so-called “market-participant” doctrine.

In this article, Professor Dan Coenen refutes this argument by showing that …