Commercial Law Commons^™

Does Mandatory Corporate Human Rights Due Diligence Offer A Path To Resolving Global Food Insecurity Challenges?, Ying Chen, Benedict Sheehy

American University International Law Review

Despite the 2015 implementation of the United Nations Sustainable Development Goal to end hunger and all forms of malnutrition by 2030 (the Zero Hunger Goal), food insecurity remains a persistent global problem. Well past the halfway point to 2030, the world is woefully off track to reach this goal. Current efforts to address global food insecurity are led by the public sector and focused on government interventions, and these are proving to be insufficient on their own. This Article argues that the private sector, and business enterprises and multinational corporations in particular, as important stakeholders in society, can and must …

Judging Judiciaries: How Sticky Defaults, Status Quo Bais, And The Sovereign Prerogative Influence The Perceived Legitimacy Of The New International Commercial Courts, S.I. Strong

American University Law Review

Forum shopping is routinely criticized as contrary to procedural justice. However, recent years have seen an increasing number of jurisdictions engaged in the process of forum selling, in which countries actively seek to bring lucrative litigation business to their national judicial systems. One of the most common types of forum selling involves the creation of new international commercial courts designed to increase a nation’s competitiveness in the global litigation market.

Most studies of the new international commercial courts have focused on how procedural innovations adopted by different courts are likely to affect party choice. While useful, these analyses assume that …

Regulating Global Stablecoins: A Model-Law Strategy, Steven L. Schwarcz

Vanderbilt Law Review

Digital currencies have the potential to improve the speed and efficiency of the payment system. The principal challenge is retail: to facilitate day-to-day payments among consumers as an alternative to cash, both domestically and across national borders. Two models of digital currencies are becoming viable: central bank digital currencies and nongovernment-issued currencies that are backed by assets having intrinsic value (stablecoins or, when widely used internationally, global stablecoins). Because they are not government issued, global stablecoins present complex and novel cross-border regulatory challenges, including managing the costs of complying with a multitude of national laws and ensuring international legal enforceability. …

Incomplete International Investment Law -- Applying The Incomplete Contract Theory, Tae Jung Park

University of Cincinnati Law Review

There is a puzzle in the field of international investment law: many negotiating countries fail to complete their International Investment Agreements (“IIA”) and postpone the renegotiations for completion as well. The literature on IIAs has neglected to consider the existence, causes, and solutions of this phenomenon. This study employs the incomplete contract theory to explain the causes and solutions surrounding this phenomenon.

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

Delaware's New Competition, William J. Moon

Northwestern University Law Review

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law.

This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector …

Finding A Forest Through The Trees: Georgia-Pacific As Guidance For Arbitration Of International Compulsory Licensing Disputes, Karen Mckenzie

Marquette Intellectual Property Law Review

This paper will examine the challenges of international compulsory licensing by examining the issue historically and legally as well as offer possible solutions. Thus, this paper will explore the challenge of balancing corporate interests against the affordability and availability of pharmaceuticals by focusing on discrete situations in developing countries, the history of compulsory licensing, and how the World Health Organization (the “WHO”) and the WTO have attempted to tackle these challenges through compulsory licensing, and it will suggest a possible framework for use in arbitration, which balances equities through a Georgia-Pacific analysis.

The Corporation As Sovereign, Allison D. Garrett

Maine Law Review

In the past two hundred years, sovereignty devolved from the monarch to the people in many countries; in our lifetimes, it has devolved in several significant ways from the people to the corporation. We are witnesses to the erosion of traditional Westphalian concepts of sovereignty, where the chess game of international politics is played out by nation-states, each governing a certain geographic area and group of people. Eulogies for the nation-state often cite globalization as the cause of death. The causa mortis is characterized by the increase in the power and normative influence of supranational organizations, such as the United …

Choosing The Partnership: English Business Organization Law During The Industrial Revolution, Ryan Bubb

Seattle University Law Review

For most of the period associated with the Industrial Revolution in Britain, English law restricted access to incorporation and the Bubble Act explicitly outlawed the formation of unincorporated joint stock companies with transferable shares. Furthermore, firms in the manufacturing industries most closely associated with the Industrial Revolution were overwhelmingly partnerships. These two facts have led some scholars to posit that the antiquated business organization law was a constraint on the structural transformation and growth that characterized the British economy during the period. Importantly, however, the vast majority of manufacturing firms in the modern sector were partnerships. An easy explanation for …

Friendship, Commerce, And Navigation Treaties: An Analysis Of The Foreign Corporation's Exemption From United States Labor Standards , Gregory S. Lane

Pepperdine Law Review

No abstract provided.

My Brother's Keeper: An Empirical Study Of Attorney Facilitation Of Money-Laundering Through Commercial Transactions, Lawton P. Cummings, Paul T. Stepnowsky

Faculty Scholarship

In recent years, various “gatekeeping initiatives” have been introduced through inter-governmental standard-setting organizations, such as the Financial Action Task Force, as well as through federal legislation in the United States, which seek to apply the mandatory customer due diligence, record keeping, and suspicious activity reporting obligations contained in the existing anti-money laundering regime to lawyers when they conduct certain commercial transactions on behalf of their clients. The organized bar has argued against such attempts to regulate it, in part, due to the lack of empirical data showing that, as a threshold matter, lawyers unwittingly aid money laundering in a significant …

Introducing Efficiency Into The 2010 Iba Rules On Evidence: Does This Create A Back Door For Introducing Additional Inefficiencies Into The System?, Paola Sanchez

Arbitration Brief

No abstract provided.

Remarks On The Cooperation Between The Latin American Judiciary And Arbitral Tribunals With Respect To The Taking Of Evidence, Nicolás Gamboa-Morales

Arbitration Brief

No abstract provided.

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

Foreword, Stephen M. Schwebel

Vanderbilt Journal of Transnational Law

I was glad to return to Vanderbilt Law School to take part in this Symposium on International Commercial Arbitration. I came because Jon Charney telephoned me last autumn to ask me to come. Jon Charney was a superb international lawyer and a splendid human being. He became a reigning expert on the Law of the Sea. But his interests in international law were wider than that wide subject. He wrote, for example, on the proliferation of international tribunals and on the position of the persistent objector in international law with exceptional acuity and insight.

Jon's professional accomplishments were increasingly large. …

Choice Of Law In Third-Millennium Arbitrations, Fabrizio Marrella

Vanderbilt Journal of Transnational Law

There is little doubt that third-millennium international arbitrators will face the flowering of a transnational rule such as the UNIDROIT Principles for international commercial contracts. They will be used to solve problems of characterization, preliminary questions, and choice of law to the merits of the dispute. In this sense, it appears clearly that these rules are to be construed under a triangular scheme. Thus, lex mercatoria and transnational rules like the UNIDROIT Principles will intervene more and more in the arbitral choice-of-law process in three competing contexts: (1) as a lex contractus; (2) as a means to interpret, supplement, or …

The Culture Of Arbitration, Tom Ginsburg

Vanderbilt Journal of Transnational Law

The relationship between "legal culture" and the practice of international arbitration has received increasing attention in recent years. Many see arbitration as a meeting point for different legal cultures, a place of convergence and interchange wherein practitioners from different backgrounds create new practices. Some have suggested that this process has led to an emergent "international arbitration culture" fusing together elements of the common law and civil law traditions. Others see arbitration as a locus of conflict among traditions or as competition among various players.

This comment contests the view that the current state of convergence in arbitration is properly considered …

Commercial Common Law, The United Nations Convention On The International Sale Of Goods, And The Inertia Of Habit, David Frisch

Law Faculty Publications

This Article develops a model of judicial behavior that rests on the idea that a judge's decision is a function of her attitudes and role orientations and these, in turn, are heavily influenced by her law school education. The result is an intellectual stubbornness that may lead judges to reject not only optional innovations that may present themselves, but may also cause them to construe mandatory provisions as if no change had occurred. This model and the Convention on the International Sale of Goods illustrate situations in which the emerging international commercial code may play an important role in the …

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 …

Emerging Leader Of The Tax Avant-Garde, Andrzej J. Burba

Vanderbilt Journal of Transnational Law

In 1998, Poland's Minister of Finance Leszek Balcerowicz unveiled a plan to restructure the tax system. His fiat tax proposal promises numerous benefits to individual and corporate taxpayers with significant reduction in tax rates for both groups. The new plan offers to further strengthen Poland's growing economy--a consequence that is especially significant in light of the country's aspiration to join the European Union. It provides a remedy for virtually every ailment plaguing the current tax system and, most importantly, the reform offers to finance itself This Note argues that the plan should be adopted immediately for the following reasons: (1) …

Economic Globalization: The Challenge For Arbitrators, Ranee K.L. Panjabi

Vanderbilt Journal of Transnational Law

CHOICE OF LAW IN INTERNATIONAL COMMERCIAL ARBITRATION

By Okezie Chukwumerije

Westport, Connecticut: Quorum Books, 1994. Pp. 219.

Arbitration at the municipal level is becoming more frequently used because it is regarded as a more expeditious process for resolving disputes. In the realm of labor relations, for instance, arbitration is often the dispute resolution method of choice and is incorporated in numerous collective agreements. In an arbitration the two parties usually select an arbitrator and jointly pay the costs of the process. In the collective agreement or contract, the parties stipulate the terms of the procedure that generally bind the arbitrator, …

1990-91 Survey Of International Law In The Second Circuit, Douglas Hollowell

Syracuse Journal of International Law and Commerce

WARSAW CONVENTION : Victoria Sales Corp. v. Emery Air Freight Inc., 917 F.2d 705 (2d Cir. 1990); Recovery of money damages afforded under article 18 of the Warsaw Convention does not extend to loss of cargo outside the physical boundaries of an airport . In re Air Disaster At Lockerbie, Scotland (Rein v. Pan American World Airways, Inc.), 928 F.2d 1267 (2d Cir.), cert. denied, 112 S. Ct. 331 (1991); Punitive damages are not recoverable under article 17 of the Warsaw Convention even in the case of willful misconduct by an airline. C. Sulewski v. Federal Express Corp., 933 F.2d …

Legal Aspects Of Foreign Investments And Financing Of Energy Products In Nigeria, Niki Tobi

Dalhousie Law Journal

Nigeria is a Federation consisting of twenty-one States, and a Federal Capital Territory. It is the largest African Country with probably the largest concentration of foreign investment potentialities with a viable and adequate financing. In the true tenet of Federalism, the 1979 Constitution provided for a distinction in the legislative powers between the central Government and the State Governments. The Constitution of the Federal Republic of Nigeria 1989 has also maintained this federal arrangement. Although that is the constitutional position, the Military Government has, as a matter of policy, built into the system some element of unitarism in a federal …

Cyprus And The Rule Of Law, Eugene T. Rossides

Syracuse Journal of International Law and Commerce

This article addresses two broad questions. First, whether the Turkish government, by its 1974 invasion and occupation of over a third of Cyprus using American-supplied arms, violated United States laws, bilateral agreements between Turkey and the United States under those laws, and any international charters, treaties and conventions. Second, whether the government of the United States, through the actions of Secretary of State Henry A. Kissinger, violated its own laws in connection with Turkey's invasion and occupation of Cyprus. The last section of the article briefly discusses a future course of action.

Law For A World Community, John Quigley

Syracuse Journal of International Law and Commerce

Changes in international relations are creating a context for a new role for law. The exigencies of survival require solutions that can be achieved only at a supranational level. In the process, international law is being transformed from a law between and among states to a law that includes international organizations, individual persons, corporations, and other non-state groups. It is moving from a set of negative prohibitions that sought to keep states from injuring each other by acts of violence to a set of positive obligations to preserve and improve life for all. Law is shifting from being an interstate …

Private International Law As A Means To Control The Multinational Enterprise, Dimitris Tzouganatos

Vanderbilt Journal of Transnational Law

This Article explores the different approaches taken by the academic and judicial communities of Germany and the United States in their respective attempts to derive the optimal legal policy to deal with the multinational enterprise phenomenon. It attempts to assess the success of the Private International Law method as applied in most European countries by examining whether its criteria are operational and a reflection of economic reality. The Article also analyzes whether application of such criteria ensures the enforcement of the policies of the forum. It concludes by questioning whether the Private International Law approach is a viable alternative to …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Books Received

The Utilization of Nuclear Energy and International Law By Vanda Lamm Atlantic Highlands, New Jersey: Humanities Press International, Inc. 1984 Pp. 151. $29.95

War, Foreign Affairs, and Constitutional Power By Henry Bartholomew Cox Cambridge, Massachusetts: Ballinger,1984. Pp. xx, 331 $35.00

Guidelines For International Election Observing Prepared by Larry Garber Washington, D.C.: The International Human Rights Law Group, 1984. Pp. iii, 90. $7.95

International Codes and Multinational Business: Setting Guidelines for International Business Operations By John M. Kline Westport, Connecticut: Qurom Books, 1985Pp. vi, 184. $35.00

Public Enterprises in Mixed Economies: Some Macroeconomic Aspects By Robert H. Floyd, Clive …

The Status Of The Gulf Of Sirte In International Law, Francesco Francioni

Syracuse Journal of International Law and Commerce

This article examines whether Libya's declaration that the Gulf of Sirte is part of its territory is lawful.

1983-1984 Survey Of International Law In The Second Circuit, Patricia J. Youngblood

Syracuse Journal of International Law and Commerce

During 1983 and 1984, the United States Court of Appeals for the Second Circuit and the New York Court of Appeals decided significant cases raising issues of international law and of domestic law presented in international contexts.

The Delimitation Of Territorial Waters In The Mediterranean Sea, Andrea De Guttry

Syracuse Journal of International Law and Commerce

This article focuses on the delimitation of territorial waters in the Mediterranean Sea.