Commercial Law Commons^™

Privatization Slow-Down: Government Reluctance Or Economic Failure?, Sara Alam El-Din

Archived Theses and Dissertations

This research is trying to disclose the reasons behind the slow down of the privatization program in Egypt. It does so by assessing the government's policy with regard to privatization by reference to secondary material and two case studies: the banking and the maritime sectors. These two case studies were carefully chosen in order to highlight particular issues related to the slow down of the process of privatization and the government's policies. The banking sector, for example, is one of the sectors that the government seems reluctant to privatize and only last January did the government announce the willingness to …

International Antisuit Injunctions: Enjoining Foreign Litigations And Arbitrations - Beholding The System From Outside, Marco Stacher

Cornell Law School J.D. Student Research Papers

Antisuit injunctions are issued by a court to prevent a party from bringing suit in another forum. They are a powerful tool available to American courts to implement their decision on jurisdiction. It goes without saying that granting such an injunction de facto affects the capability of the other forum to hear the dispute, which conflicts with the principle of comity. American courts therefore only enjoin a party from proceeding in another forum if certain criteria are satisfied. This paper discusses these criteria in the context of international litigations and arbitrations. It analyzes the case law on this issue and …

Stop The Abuse Of Gmail!, Grant Yang

Duke Law & Technology Review

Gmail, a highly anticipated webmail application made by Google, has been criticized by privacy advocates for breaching wiretapping laws, even before its release from beta testing. Gmail's large storage space and automated processes developed to scan the content of incoming messages and create advertisements based on the scanned terms have enraged privacy groups on an international level. This iBrief will compare Gmail's practices with its peers and conclude that its practices and procedures are consistent with the standards of the webmail industry. The iBrief will then propose additional measures Gmail could institute to further protect webmail users' and alleviate the …

Harmonizing Business Laws In Africa: Ohada Calls The Tune, Claire M. Dickerson

ExpressO

OHADA (in English, “Organization for Harmonization in Africa of Business Laws”) is a system of business laws and implementing institutions. Sixteen West African nations adopted this regime in order to increase their attractiveness to foreign investment. Because most of the member-states are former French colonies, the OHADA laws are based on the French legal system. Despite certain economists’ recent, well-publicized assertions that any French-based legal system is incompatible with development, other studies challenge those claims and in doing so outline characteristics that a pro-development system of business laws should possess. A review of selected provisions from OHADA’s corporate law and …

What Makes Asset Securitization "Inefficient"?, Kenji Yamazaki

ExpressO

Despite the damage caused by the recent Enron scandal , the asset securitization market has been vibrant and has become a popular financing alternative . A number of academics emphasize its merits and suggest that it is a more favorable way of financing, and Congress’s proposal to make sales of asset in securitization immune from characterization as secured transactions under the Bankruptcy Reform Act of 2001 (the “Reform Act”) almost materialized when the Enron scandal hit the scene. Conversely, there have been accusations that securitization is not a legitimate way of financing because, for example, it fosters fraudulent transactions.

Why …

Interstate Commerce And Interstate Endangered Species: The Controversy And The Need For Compromise, Paul Ziel

Brigham Young University Journal of Public Law

No abstract provided.

The Effects Of Judicial Immunization Of Passive Sellers In Sanns V. Butterfield Ford And A Proposal For The Shifting Nature Of Fault, Jason R. Burt

BYU Law Review

No abstract provided.

The Deregulation Of International Trucking In The European Union: Form And Effect, Francine Lafontaine, Laura M. Valeri

Law & Economics Working Papers Archive: 2003-2009

This paper examines how the deregulation of the international road transport industry in Western Europe has affected 1- the total quantity of cross-border road transport in the region; 2- the degree to which shippers outsource rather than integrate vertically their cross-border transport needs; and 3- the extent to which different countries participate in international road freight transport in Western Europe. Not surprisingly, we find that deregulation has had a large positive effect on the amount of international road transport net of the effect of the trade ties that grew over time among European Union countries. Moreover, consistent with the fact …

Antitrust Analysis Of B2b Transaction, Akira Inoue

Cornell Law School Inter-University Graduate Student Conference Papers

B2B is a business-to-business market place that uses internet to connect each other business. It has gotten a lot more attention recently in Japan as well as in the U.S. because it is possible to lower the procurement costs of raw material and accomplish several procompetitive effects such as communication efficiencies. However, in spite of these pro transactional natures of B2B, it could also cause anticompetitive effects on market place. In other words, the fact that buyers communicate easily through the internet means they could easily form a cartel or conclude an agreement to restrain the free competition and it …

Summary Of Rttc Communications, Inc. V. The Saratoga Flier, Inc., 121 Nev. Adv. Op. 6, Patrick Murch

Nevada Supreme Court Summaries

Appeal from a final district court judgment in a contract dispute and an order awarding attorney fees.

Investor Protection And Foreign Investment Under Nafta Chapter 11: Prospects For The Western Hemisphere Under Chapter 17 Of The Ftaa, Jacqueline Granados

Cardozo Journal of International and Comparative Law

The article argues that adopting NAFTA-like investor protection provisions in the Free Trade Area of the Americas (FTAA) could significantly increase foreign direct investment (FDI) across the Americas, benefiting both investors and host countries. It emphasizes the importance of balancing investor rights with public interest considerations, such as environmental regulation, and highlights the need for clear definitions and procedural safeguards in the FTAA's investment chapter. The article also underscores the role of legal reforms and policy liberalization in Latin American and Caribbean countries (LAC) to maximize the agreement's potential benefits.

From St. Ives To Cyberspace: The Modern Distortion Of The Medieval 'Law Merchant', Stephen E. Sachs

ExpressO

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or "law merchant." This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a law of their own creation. The standard history …

Price, Path & Pride: Third-Party Closing Opinion Practice Among U.S. Lawyers (A Preliminary Investigation), Jonathan C. Lipson

ExpressO

This article presents the first in-depth exploration of third-party closing opinions, a common but curious – and potentially troubling -- feature of U.S. business law practice. Third-party closing opinions are letters delivered at the closing of most large transactions by the attorney for one party (e.g., the borrower) to the other party (e.g., the lender) offering limited assurance that the transaction will have legal force and effect.

Hundreds, if not thousands, of legal opinions are delivered every week. Yet, lawyers often complain that they create needless risk and cost, and produce little benefit. Closing opinions thus pose a basic question: …

Patterns In A Complex System: An Empirical Study Of Valuation In Business Bankruptcy Cases, Bernard Trujillo

ExpressO

This Article applies complex systems research methods to explore the characteristics of the bankruptcy legal system, presenting the results of an empirical study of twenty years of bankruptcy court valuation doctrine in business cramdown cases. These data provide solid descriptions of how courts exercise their discretion in valuing firms and assets.

This Article accomplishes two objectives: First, using scientific methodology, this Article explains the content of bankruptcy valuation doctrine. Second, this Article uses doctrine as a variable to explore system dynamics that govern the processes of change over time.

Significant findings include (i) courts tend to “split the difference” in …

Institutions, Incentives, And Consumer Bankruptcy Reform, Todd Zywicki

George Mason University School of Law Working Papers Series

Consumer bankruptcy filing rates have soared during the past 25 years. From 225,000 filings in 1979, consumer bankruptcies topped 1.5 million during 2004. This relentless upward trend is striking in light of the generally high prosperity, low interest rates, and low unemployment during that period. This anomaly of ever-upward bankruptcy filing rates during a period of economic prosperity had spurred calls to reform the Bankruptcy Code to place new conditions on bankruptcy relief. Although bankruptcy reform has drawn broad bipartisan support on Capitol Hill, these proposals have proven controversial within the academy. Critics have argued that these reforms are unnecessary …

Global Credit Card Use And Debt: Policy Issues And Regulatory Responses, Ronald J. Mann

ExpressO

The rise of card-based payments has transformed the landscape of payments in the last half century, from one dominated by government-supported paper-based payments to one dominated by wholly private systems. The rise of those payments presents a number of policy problems, the most serious of which is the empirically demonstrable likelihood that use of the cards contributes to an undue level of consumer credit and that borrowing on the cards contributes to a rise in the level of consumer bankruptcy. Although the existing pattern shows great variation from country to country, regulators should take no solace in those variations. Building …

The False Promise Of De-Regulation In Banking, Jonathan R. Macey

ExpressO

Jonathan R. Macey

The False Promise of De-Regulation in Banking

Abstract

This Article presents new approach to the concept of "deregulation" in financial services and particularly banking. Generally regulatory policy is thought to involve more or less straightforward choices between regulation and deregulation. Those most concerned with market failure and equality of outcomes favoring regulation and those with faith in markets and concerns about efficient outcomes favoring deregulation.

This Article shows that government regulation, sometimes in heavy doses, is necessary in order for private markets to function effectively. Consequently, government has in important role to play in fostering markets. The …

Peggy J. Blair On Commercial Law And Human Rights Edited By Stephen Bottomley And David Kinley. Burlington, Vt: Ashgate, 2001. 356pp., Peggy J. Blair

Human Rights & Human Welfare

A review of:

Commercial Law and Human Rights edited by Stephen Bottomley and David Kinley. Burlington, VT: Ashgate, 2001. 356pp.

Limiting The Vicarious Liability Of Franchisors For The Torts Of Their Franchisees, Joseph H. King, Jr.

Washington and Lee Law Review

No abstract provided.

Salvaging States' Rights To Protect Children From Internet Predation: State Power To Regulate Internet Activity Under The Dormant Commerce Clause, Julie Sorenson Stanger

BYU Law Review

No abstract provided.

The Missing Preferred Return, Victor Fleischer

ExpressO

Managers of buyout funds typically offer their investors an 8% preferred return on their investment before they take a share of any additional profits. Venture capitalists, on the other hand, rarely offer a preferred return. Instead, VCs take their cut from the first dollar of nominal profits. This disparity between venture funds and buyout funds is especially striking because the contracts that determine fund organization and compensation are otherwise very similar. The missing preferred return might suggest that agency costs pose a larger problem in venture capital than previously thought. Is the missing preferred return evidence, perhaps, that VCs are …

Contingency And Contracts: A Philosophy Of Complex Business Transactions, Jeffrey Marc Lipshaw

ExpressO

In this article, I argue that the prevailing literature on contract theory does not adequately address the way real-world lawyers address uncertainty in complex business transactions. I attribute this to the constraints imposed by thinking in legal models, the dominant tendency to turn to economics for analysis and normative prescription, and the focus on adjudicative issues of hindsight interpretation. Commercial uncertainty, and the law’s response to it, is only a subset of the broader philosophical issue of contingency. As an alternative to prevailing thought, I trace philosophical approaches to contingency, utility and morality that have come down to us since …

The Syracuse Conference On A World Rule Of Law: American Perspectives An Introduction, Malcolm M. Feeley

Syracuse Journal of International Law and Commerce

The working group was charged with exploring virtually all facets of democracy and the rule of law, as they pertain to established constitutional democracies, societies undergoing "transitions to constitutional democracies," and those societies where democracy remains little more than a hopeful wish. Papers and much of the discussion during the two days probed beneath the structural formalities that are obvious and important requisites of democracy, to explore the subtexts of and cultural conditions for democracy and the rule of law, those features that may be so taken-for-granted that they usually go unacknowledged, let alone unexplored in discussion of democratic theory. …

The Oas And Constitutionalism: Lessons From Recent West African Experience, Stephen J. Schnably

Syracuse Journal of International Law and Commerce

The Inter-American Democratic Charter commits the OAS to respond to "an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state." The Declaration of Florida envisions the possibility of an OAS mechanism to "address[] situations that might affect the workings of the political process of democratic institutions or the legitimate exercise of power." Other organizations have similar commitments. MERCOSUR, a free trade association among several South American nations, agreed in 1996 to respond to any "interruption in the democratic order" of its members or associates. The Organization of African Unity formally bound itself in …

Reflecting On The Rule Of Law, Its Reciprocal Relation With Rights, Legitimacy And Other Concepts And Institutions, Samuel J.M. Donnelly

Syracuse Journal of International Law and Commerce

When bringing social science to the study of law, understanding the role of law in the process of social change is central. The great American example of social change influenced by law begins, of course, with the end of our Civil War, the freeing of the slaves, and continues through the establishment of segregation, the attacks upon it, desegregation and the development of affirmative action. May I suggest that another very important sequence of legal and social changes is the development and recognition of human rights in the European Union since · World War 11. In the first part of …

American Society And The Rule Of Law, Philip Selznick

Syracuse Journal of International Law and Commerce

I am here to bring some thoughts about my own country's experience in trying to understand the meaning of the rule of law and to make good on its promise. I will have to take up some issues in jurisprudence, and also some aspects of American legal history. I do not apologize for combining jurisprudence and sociology of law, for that combination faithfully reflects what we are trying to achieve in the Jurisprudence and Social Policy Program (JSP) in the Boalt School of Law at the University of California, Berkeley. I begin with some comments on the meaning of the …

Community And Democracy: Syracuse Reflections, Richard E.D. Schwartz

Syracuse Journal of International Law and Commerce

How does the American experience with democracy contribute to our understanding of the prospects for, and paths to, democracy worldwide?" Another half of the papers prepared for the Conference deal with the experience of other countries, many of them moving toward rule-of-law democracy. Taken together, they represent a sample of our present knowledge-and they suggest new directions for future research. Communities with certain qualities contribute to the development and sustaining of democracy. The qualities to which I refer include: mutual respect across lines of division and the creative composition of differences. At Syracuse, we saw two kinds of community: local …

The Contribution Of Brown V. Board Of Education To Law And Democratic Development, Charles V. Willie

Syracuse Journal of International Law and Commerce

This article on law and democratic development will focus on Brown v. Board of Education. We celebrated the fiftieth anniversary of Brown I in the year 2004 and we celebrated the fiftieth anniversary of Brown II in the year 2005. I know that Brown is an important event on which to anchor an analysis of law and democratic development because of a conference I attended in April 2004, in South Africa. The conference was sponsored by the University of Pretoria and was staged for the purpose of celebrating the tenth anniversary of South Africa as a democracy and the fiftieth …

Franklin D. Roosevelt's Psychological Contribution To The United Nations, Richard E. D. Schwartz

Syracuse Journal of International Law and Commerce

FDR promoted U.S. participation in the United Nations in several ways. In this article I focus on his use of mass communication to reach individuals and families in the U.S. In his ''fireside chats, " he empathically addressed widely experienced problems and then proposed solutions requiring publicly supported governmental actions. In his first term, that technique gained Roosevelt popular support for the New Deal programs. In his second term, FDR turned the nation's attention to the international situation, drawing on the motivations he had earlier tapped. In the 1940 election, both major parties chose internationalist candidates, and Roosevelt was able …

Reinventing Public Administration While "De-Inventing" Administrative Law: Is It Time For An "Apa" For Regulating Outsourced Government Work, David H. Rosenbloom, Suzanne J. Piotrowski

Syracuse Journal of International Law and Commerce

Using state-of-the art "reinvented" public administration, which emphasizes steering rather rowing,2 the DOD outsourced creation of the database to a private firm, BeNow, Inc. In the process of reinventing its public administration the U.S. is "de-inventing" administrative law. More importantly, perhaps, it is doing so by default, that is, without serious and substantial public discussion and political debate on whether cost-effectiveness and other values associated with reinvented public administration should trump the norms embodied in administrative law. The readiness to accept the reinventers' vision of "a government that works better and costs less" is all the more striking in view …