Commercial Law Commons^™

Legal Origins, Investor Protection, And Canada, Poonam Puri

BYU Law Review

No abstract provided.

Patening The Curve Ball: Business Methods And Industry Norms, Gerard N. Magliocca

BYU Law Review

No abstract provided.

Intent To Contract, Gregory Klass

Georgetown Law Faculty Publications and Other Works

There is a remarkable difference between black-letter contract laws of the United States and England. In England, the existence of a contract is supposedly conditioned on the parties' intent to be legally bound, while section 21 of the Second Restatement of Contracts states that "[n]either real nor apparent intention that a promise be legally binding is essential to the formation of a contract." There are also differences within U.S. law on the issue. While section 21 describes courts' approach to most contracts, the parties' intent to contact can be a condition of validity of preliminary agreements, domestic agreements and social …

Section 3: Business, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Costs Of Liquidity Enhancement: Transparency Cost, Risk Alteration, And Coordination Problems, Edward J. Janger

Faculty Scholarship

No abstract provided.

Success, Dominance, And Interoperability, Alan Devlin, Michael Jacobs, Bruno Peixoto

Indiana Law Journal

In September 2007, the European Court of First Instance (CFI) ruled that Microsoft violated the European Union's competition law by failing to provide certain of its rivals with proprietary computer protocols that would have enabled them to make their products fully "interoperable" with Microsoft's dominant operating system. In the process, the court suggested that an owner of certain kinds of dominant intellectual property is obliged to share its property with rivals to the extent necessary to allow those rivals to compete "viably" with the dominant firm. Thus, in theory, should protocol sharing fail to achieve the requisite degree of "viability, …

Recent Supreme Court Patent Decisions: The Trend To Limit The Power Of Patent Holders, Peter O. Huang

The Journal of Appellate Practice and Process

No abstract provided.

Capitalizing On Digital Entrepreneurship For Low-Income Residents And Communities, Janet Thompson Jackson

West Virginia Law Review

No abstract provided.

Maybe Dick Speidel Was Right About Court Adjustment, Robert A. Hillman

Cornell Law Faculty Publications

In a symposium to honor Professor Richard Speidel, a giant in the field of contract and commercial law for over four decades, this contribution argues that Speidel may have been correct in asserting that, in limited circumstances, court adjustment of disrupted long-term contracts makes sense. I assert that nothing courts have decided or writers have analyzed since the ALCOA case proves that court adjustment is wrong-headed. But, as with so many policy issues, we may never identify the "best" judicial approach to disrupted long-term contracts because resolution depends on too many variables and unknowns.

The Company And Its Directors As Co-Conspirators, Pey Woan Lee

Research Collection Yong Pung How School Of Law

In Nagase Singapore Pte Ltd v Ching Kai Huat and Lim Leong Huat v Chip Hup Hup Kee Construction Pte Ltd, the High Court of Singapore affirmed the proposition that a company may, like a natural person, conspire with its director to inflict harm on a third person even if the latter is its “directing mind and will”. In both cases, the courts’ focus was directed at a conceptual enquiry, ie, whether a company, whose “mind” is the same as that of its director, could properly be said to have “combined” or “agreed” to conspire. This article argues, however, that …

Common Challenges Facing Shareholder Suits In Europe And The United States, Randall Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

Episodic and even sometimes systematic misbehavior by businessmen and corporate entities is ubiquitous. While Enron and WorldCom were the battle cries for corporate reform in the U.S. so it was with Ahold and Parmalat across Europe. No country is free of concern that company officers will misbehave thereby injuring investors, consumers and destroying shareholder value. Thus, this symposium issue collects the recent experiences across Europe in strengthening shareholder suits. Most recent legislative efforts in Europe, and hence the comments in the symposium, are focused on the derivative suit. Just as the American experience with class actions, reviewed separately in this …

Worsening Foreclosure Crisis: Is It Time To Reconsider Bankruptcy Reform?: Hearing Before The Subcomm. On Administrative Oversight And The Courts Of The S. Comm. On The Judiciary, 111th Cong., July 23, 2009 (Statement Of Adam J. Levitin, Associate Prof. Of Law, Geo. U. L. Center), Adam J. Levitin

Testimony Before Congress

The clear finding from my research is that mortgage prices are largely insensitive to bankruptcy modification risk. Permitting bankruptcy modification is unlikely to result in higher mortgage costs or lower mortgage credit availability.

The foreclosure crisis is not about to stop any time soon. Judicially-supervised restructuring of mortgages is the only tool we have left in the box. It's a tool we know can work. It's a tool that can save hundreds of thousands of families their homes and help stabilize communities, housing markets, and the economy. It's time to use it.

Legal Analysis Of Off-Hire Clauses, Li Ma

World Maritime University Dissertations

No abstract provided.

The First Amendment And Commercial Speech, C. Edwin Baker

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

A Question Of Sovereignty, Development, And Natural Resources: A New Standard For Binding Third Party Nonsignatory Governments To Arbitration, Jacob Stoehr

Washington and Lee Law Review

No abstract provided.

Reconciling The Patent Exhaustion And Conditional Sale Doctrines In Light Of Quanta Computer V. Lg Electronics, Erin Julia Daida Austin

Cardozo Law Review

No abstract provided.

Case Comment: Robertson Quay Investment Pte Ltd V Steen Consultants Pte Ltd, Yihan Goh

Research Collection Yong Pung How School Of Law

In recent times, the venerable principles relating to remoteness of damage in contract have undergone a period of sustained re-evaluation. Key amongst this exercise is the House of Lords’ decision in Transfield Shipping Inc v Mercator Shipping Inc—referred to as ‘The Achilleas’, which represents a fundamental shift in the understanding of remoteness principles. Caught in the winds of The Achilleas is the considered judgment of the Singapore Court of Appeal in Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd.In direct contrast with some of the speeches in The Achilleas, the judgment delivered by Andrew Phang JA in Robertson …

Finding A Place For Embedded Advertising Without Eroding The First Amendment: An Analysis Of The Blurring Line Between Verisimilar Programming And Commercial Speech, Jacob J. Strain

Brigham Young University Journal of Public Law

No abstract provided.

Equalizing The Playing Field: The Time Has Come For Secondary Meaning In The Making In Small Restaurant Trade Dress Infringement Cases, John Pesek

Journal of Food Law & Policy

Imagine it is opening day for your first restaurant. It has taken months, if not years, to get to this point and you have spent a lot of money in developing the menu, artist style, and feel for the restaurant. A few months after the opening of your restaurant, a competing restaurant, right down the block from your restaurant, opens its doors; its menu and overall look are virtually indistinguishable from your restaurant. You are left wondering what remedies, if any, you have as a small restaurant owner. This was the case for Chef Rebecca Charles and her Pearl Oyster …

Unrevised Section 2-207--Different Terms Revisited, Sidney Kwestel

Scholarly Works

No abstract provided.

The Mexican Constitution And Its Safeguards Against Foreign Investments, Álvaro Ramírez Martínez

Cornell Law School Inter-University Graduate Student Conference Papers

Every state has safeguards against foreign investment in its country. Most of the times these safeguards are contained in a main document which governs said countries. This document can take the form of a Constitution.

The Mexican constitution contains a safeguard against foreign investments in Article 27, where it is stated that the Mexican state can expropriate private property among other things, due to public interest. Any expropriation must be followed by an indemnification. The price to pay as indemnification shall not exceed the assessment for tax purposes.

Mexico has an invaluable opportunity to attract foreign investments but it must …

The Economics Of Deal Risk: Allocating Risk Through Mac Clauses In Business Combination Agreements, Robert T. Miller

Working Paper Series

In any large corporate acquisition, there is a delay between the time the parties enter into a merger agreement (the signing) and the time the merger is effected and the purchase price paid (the closing). During this period, the business of one of the parties may deteriorate. When this happens to a target company in a cash deal, or to either party in a stock-for-stock deal, the counterparty may no longer want to consummate the transaction. The primary contractual protection parties have in such situations is the merger agreement’s “material adverse change” (MAC) clause. Such clauses are heavily negotiated and …

Commerce Flaws: "Taking Exception" With Garb V. Poland'S Misinterpretation Of The Commercial Activity And Takings Exceptions Of The Fsia, Joshua A. Kirstein

Cardozo Journal of International and Comparative Law

The Second Circuit's application of the Foreign Sovereign Immunities Act (FSIA) in the Garb case was flawed, as it incorrectly used the "core functions" test instead of the "legal characteristics" test. This led to the improper granting of sovereign immunity to Poland, denying justice to the plaintiffs in a Holocaust-era property dispute. The decision undermines the FSIA's intent and sets a concerning precedent.

The (Misunderstood) Genius Of American Corporate Law, Robert B. Ahdieh

Faculty Scholarship

In this Reply, I respond to comments by Bill Bratton, Larry Cunningham, and Todd Henderson on my recent paper - Trapped in a Metaphor: The Limited Implications of Federalism for Corporate Governance. I begin by reiterating my basic thesis - that state competition should be understood to have little consequence for corporate governance, if (as charter competition's advocates assume) capital-market-driven managerial competition is also at work. I then consider some of the thoughtful critiques of this claim, before suggesting ways in which the comments highlight just the kind of comparative institutional analysis my paper counsels. Rather than a stark choice …

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Faculty Publications

No abstract provided.

Arbitration Reform: What We Know And What We Need To Know, Peter B. Rutledge

Scholarly Works

The future of commercial arbitration has become a centerpiece of the domestic congressional agenda. According to one estimate, ten different bills introduced in the 110th Congress would chip away at the enforceability of pre-dispute arbitration agreements. By far the most significant bill, the Arbitration Fairness Act, would retroactively invalidate arbitration agreements in all employment, consumer, securities and franchise contracts. An especially vague provision in a prior version of the bill would invalidate agreements involving claims under statutes intended to protect civil rights or designed to regulate transactions between parties of unequal bargaining power. Are these wise moves?

Summary Of Terracon Consultants W., Inc. V. Mandalay Resort Group, 125 Nev. Adv. Op. No. 8, Ian Houston

Nevada Supreme Court Summaries

Pursuant to Nevada Rule of Appellate Procedure 52, the United States District Court for the District of Nevada, hearing a breach of contract and professional negligence case, certified the following questions regarding the scope of Nevada’s economic loss doctrine: [1] Does the economic loss doctrine apply to contractors who solely provide services in construction defect cases? [2] Does the economic loss doctrine apply in construction defect cases to design professionals, such as engineers and architects, who solely provide services, regardless of whether the services are rendered before or during construction?

Jurisdictions And Causes Of Action In Bullying, Stress And Harassment Cases Part 1, Niall Neligan

Articles

This is the first of a two part article in which the author will critically evaluate the different causes of action and myriad of jurisdictions for bringing a claim in the inter-related fields of bullying, stress and harassment in the workplace from a commercial law perspective. The author will define and trace the separate headings under which the law governing bullying, stress and harassment has evolved. In the second part of the article (which will
appear in the next edition of the journal), the author will examine recent developments in tortious claims for psychiatric injuries arising from bullying, stress and …

Protecting Trade Secrets And Confidential Information In Georgia, C. Geoffrey Weirich, Daniel P. Hart

Mercer Law Review

To corporate and employment lawyers, it is a familiar conversation.

"I need your advice," says the General Counsel of one of your clients. "About a year ago we hired a new VP of R&D to oversee the development of a new product that we plan to launch next quarter. Unfortunately, just last week he gave us notice of his resignation, effective immediately. During his exit interview, he told our VP of HR that he plans to pursue some 'consulting' work. He was pretty vague about it, but I've since heard through the grapevine that he's planning to work as a …

Information Disclosure, Risk Trading And The Nature Of Derivative Instruments: From Common Law Perspective, Christopher Chao-Hung Chen

Research Collection Yong Pung How School Of Law

This paper explores issues of pre-contractual disclosure for derivative instruments, of which this paper describes as contracts to trade risks, in the UK and US. While there is no general duty of disclosure in common law, this paper focuses on whether there should be a duty of disclosure for derivative instruments by comparing with securities law and insurance law. This paper argues that mandatory disclosure in the securities market cannot be extended to exchange-traded futures contracts (save where securities are involved) because of the nature of securities. In addition, this paper argues that derivative instruments, though similar to insurance in …