Comparative and Foreign Law Commons^™

The Future Of Hedge Fund Regulation: A Comparative Approach: United States, United Kingdom, France, Italy, And Germany, Anne Riviere

Richmond Journal of Global Law & Business

No abstract provided.

The Irony Of International Business Law: U.S. Progressivism And China's New Laissez Faire, Andrew B. Spalding

Law Faculty Publications

As the financial crisis draws U.S. business overseas and developing countries rise in influence, the regulation of international business has never figured so prominendy in federal law. But the dominant paradigm through which academics and policymakers continue to view that law-the so-called Washington Consensus-proves deeply misleading. A more accurate account of the components, origins, and aims of U.S. international business law reveals two striking ironies.

First, in discrete but critical ways, the United States no longer represents the comparatively laissez-faire approach to federal business regulation. Rather, owing to its origins in the Progressive Era, U.S. federal law directs corporations toward …

Arab Spring Brings Winds Of Change To The Maghreb And Mena Region: Does That Spell Opportunity For Infrastructure Development And Project Finance?, Silvano Domenico Orsi

Richmond Journal of Global Law & Business

No abstract provided.

When Responsive Legislation Ignores The Forest For The Trees, Matthew G. Curtis

Richmond Journal of Global Law & Business

No abstract provided.

Introduction To The 2011 Annual Survey, Noah J. Nelson

Richmond Journal of Global Law & Business

No abstract provided.

Tort Liabilities And Torts Law: The New Frontier Of Chinese Legal Horizon, Mo Zhang

Richmond Journal of Global Law & Business

China did not have a single body of torts law until 2009. As a new piece of legislation in the country, the Torts Law of China, effective as of July 1, 2010, forms a comprehensive framework that regulates torts and provides a legal mechanism to govern liabilities and remedies. A product of the civil law tradition, common law practice and Chinese reality combined, adoption of the Torts Law is hailed in China as an important move toward a civil society that is ruled by law.

The Torts Law premises torts on the fault liability with a few exceptions where the …

The United Nations Sale Convention: Delimitation, Influences, And Concurrent Application Of Domestic Law, Tamo Zwinge

Richmond Journal of Global Law & Business

The United Nations Convention on Contracts for the International Sale of Goods ("CISG"or "Convention") aims to create uniform international sales law to facilitate international trade. However, there are numerous sources of divergence in interpretation and application of the Convention in different jurisdictions. It is therefore possi- ble that courts of different countries interpret the words of the Convention differently. This article investigates the major influences of domestic law on the Convention's interpretation and application. Notably, the so-called "homeward trend" of interpreters is discussed. Furthermore, the article scrutinizes the scope of Article 4 of the CISG in order to delimitate the …

From Russia With Love: The Eu, Russia, And Special Relationships, Eric Engle

Richmond Journal of Global Law & Business

This paper compares the institutions and goals of the USSR, the EU, and the CIS to understand the differing origins and competing tendencies of these alternative models of transnational governance. It then projects those models through history to examine the current relationships of the former Soviet Republics to the EU and the United States. Understanding the historical sources and development of transnational relations in Eastern Europe will enable better international relations among the EU, the Russian Federation, and the other former Soviet Republics. This comparison will also help the Russian Federation and other former Soviet Republics to take up EU …

Doing Business In Egypt After The January Revolution: Capital Market And Investment Laws, Radwa S. Elsaman

Richmond Journal of Global Law & Business

Despite the Egyptian economy’s remarkable growth during the last decade, unequal treatment at law and unfair distribution of wealth led to the Revolution on January 25, 2011. The Revolution affected investment in Egyptian markets. Reforming business laws— specifically the Capital Market and Investment Laws— has become essential to restore confidence in Egyptian markets. These two branches of business law have undergone many developments over the years, which have improved them significantly. Legal compliance, however, remains a major concern. This Article surveys the economic activity in Egypt from a legal perspective. It evaluates Egyptian laws affecting economic activity by analyzing the …

Yukos Universal V. Russia: Shell Companies And Treaty Shopping In International Energy Disputes, Paul M. Blyschak

Richmond Journal of Global Law & Business

No abstract provided.

Pakistan’S Failed Commitment: How Pakistan's Institutionalized Persecution Of The Ahmadiyya Muslim Community Violates The International Covenant On Civil And Political Rights, Qasim Rashid

Richmond Journal of Global Law & Business

The United Nations (“UN”) adopted the International Covenant on Civil and Political Rights (“ICCPR”) in 1966 and officially implemented it in 1976 to ensure, among other guarantees, that no human is denied his or her right to equal voting, freedom of political association, due process of law, freedom of life, freedom of religion, freedom of speech, and freedom of assembly. The Islamic Republic of Pakistan is among 166 nations that have signed and ratified the ICCPR. Since signing the ICCPR in 2008 and ratifying it in 2010, however, Pakistan has perpetuated state-sanctioned and violent persecution of religious minority groups such …

Stretching The Dispute Settlement Understanding: U.S.—Cotton’S Relaxed Interpretation Of Cross-Retaliation In The World Trade Organization, David J. Townsend

Richmond Journal of Global Law & Business

In August 2009, the World Trade Organization (“WTO”) au-thorized Brazil to impose sanctions against the United States for its continued subsidization of cotton producers in violation of the WTO Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) and the Agreement on Agriculture. The WTO approved Brazil’s use of sanctions outside the General Agreement on Tariffs and Trade (“GATT”), authorizing cross-retaliation against rights owed to the United States under the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). This is the third case of cross- retaliation authorized by a WTO arbitrator under the Understanding on Rules and Procedures Governing the …

Enhancing The Wto Tool Kit: The Case For Financial Compensation, Rebecca Ullman

Richmond Journal of Global Law & Business

World Trade Organization Dispute Settlement Understanding 160 represents an intersection of domestic law and international law. The subject of Dispute Settlement Understanding 160 (“DSU 160”) is the Fairness in Music Licensing Act, an American legislative act that extended copyright protection terms and carved out significant exemptions for commercial establishments. The exemptions set forth in the Fairness in Music Licensing Act (“FMLA”) conflict with U.S. international intellectual property obligations such that one must question whether there should be new and different remedies available to assist parties in meeting their international obligation.

The Rule Of Law: Its History And Meaning In Common Law, Civil Law, And Latin American Judicial Systems, Nadia E. Nedzel

Richmond Journal of Global Law & Business

“Rule of law” is an expression both praised and ridiculed by adherents of opposite political philosophies, and it is a principle claimed as the lodestar for widely differing legal theories. As much as an ideality as an ideal, the words “rule of law” have served a wide range of purposes, stretching from political sloganeering to the protection of individual rights from the power of government.

Stakeholder Theory In Corporate Law: Has It Got What It Takes?, Andrew Keay

Richmond Journal of Global Law & Business

There has been much debate for many years regarding what should be the objective of the large public corporation. This issue is important for a number of reasons, not least of which is that the theory nominated will underpin corporate governance and dictate, to a large extent, the kind of corporate governance system that will exist. As far as the corporation’s objective is concerned, two theories have been dominant: the shareholder primacy theory and the stakeholder theory. The former is operative in what I will call “Anglo-American jurisdictions,” namely jurisdictions that model their law and practice on one or both …

Two Understandings Of Supremacy: An Essay, Vincent J. Samar

Richmond Journal of Global Law & Business

Does the supremacy provision of Article VI of the U.S. Constitution undermine the legal force of international law in the United States? Recently, there has been some debate on this issue arising out of the claim that if the U.S. Constitution is “the supreme law of the land,” and that only constitutional officers of the United States, in keeping with their responsibilities to uphold the Constitution, can decide what is international law for the U.S. Such debates are not new to the history of the world. For much of world history, national rulers have claimed that their legal authority derives …

It Takes Two To Tango, And To Mediate: Legal Cultural And Other Factors Influencing United States And Latin American Lawyers’ Resistance To Mediating Commercial Disputes, Don Peters

Richmond Journal of Global Law & Business

This article examines legal cultural and other factors influencing the resistance to mediating commercial disputes displayed by U.S. and Latin American lawyers. After surveying current contexts in which commercial mediation occurs in the United States and in Latin American countries and summarizing data regarding commercial ac- tors’ knowledge of the benefits of mediating, it analyzes the relatively infrequent use of mediation despite its potential advantages over adju- dicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods. Analyzing similarities arising from universal decision-making …

Unwitting Sanctions: Understanding Anti-Bribery Legislation As Economic Sanctions Against Emerging Markets,, Andrew B. Spalding

Law Faculty Publications

Although the purpose of international anti-bribery legislation, particularly the U.S. Foreign Corrupt Practices Act (FCPA), is to deter bribery, empirical evidence demonstrates a problematic collateral effect. In countries where bribery is perceived to be relatively common, the present enforcement regime goes beyond the deterrence of bribery, and ultimately deters investment. Drawing on literature from political science and economics, this Article argues that anti-bribery legislation, as presently enforced, functions as de facto economic sanctions. A detailed analysis of the history of FCP A enforcement shows that these sanctions most often occur in emerging markets, where historic opportunities for economic and social …

Why Should International Law Be Concerned About State Failure?, Chiara Giorgetti

Law Faculty Publications

In the last fifty years, the international community has undergone a transformation, as social, economic, and political dynamics have been altered. In fact, the international power structure has shifted towards a more complex structure, economies have been largely liberalized, new powerful international actors have emerged, and security threats have altered significantly. These transformations impacted all nation States. Indeed, a new standard of governance emerged that resulted in increased responsibility to each State's nationals. Similarly, States have become increasingly interindependent and have additional (both in numbers and substance) obligations towards each other and the international community in general. Certain States, however, …

Hostile Takeover Bids In Japan? Understanding Convergence Using The Layered Approach, Michael Cody

Richmond Journal of Global Law & Business

No abstract provided.

Evaluating South Africa’S Post-Apartheid Democratic Prospects Through The Lens Of Economic Development Theory, Jonathan L. Marshfield

Richmond Journal of Global Law & Business

Political scientists have identified compelling correlations between economic development and democratic stability. In general, the wealthier and more developed a country, the greater its chances of maintaining a long-term, stable democracy. This Article evaluates whether South Africa’s post-apartheid economic conditions are trending towards conditions that generally correlate to stable democracies. It compares South Africa’s post-apartheid economic conditions to the empirical trends that development theorists have identified as correlative to democratic stability. This analysis is important because if South Africa’s post-apartheid economic conditions do not exhibit positive trends, this may suggest that despite the just end of apartheid, conditions are becoming …

Foreword, Daniel T. Murphy

Richmond Journal of Global Law & Business

In this Forward, Murphy introduces the annual symposium sponsored by the Richmond Journal of Global Law and Business, entitled “A Collision of Authority: The U.S. Constitution and Universal Jurisdiction.” He briefly discusses presentations given by three prominent constitutional law and international law scholars: Dean Erwin Chemerinsky, Professor Mary Ellen O’Connell, and Professor Jeremy Rabkin.

The New Deference-Based Approach To Adjudicating Political Questions In Corporate Ats Cases: Potential Pitfalls And Workable Fixes, Seth Korman

Richmond Journal of Global Law & Business

Much has been made of executive-branch attempts to exert control over cases brought against corporations under the Alien Tort Stat- ute. Under the Bush Administration, the executive branch repeatedly sought to influence district court opinions through targeted letters to the court or statements of interest. These letters, frequently written by the State Department legal advisor, sought to convince courts that adjudication of claims against corporate defendants would have an ad- verse effect on U.S. foreign policy, thus triggering the political question doctrine and forcing the courts to rule the claims nonjusticiable. Though some courts have, in fact, deferred entirely to …

“To Remand, Or Not To Remand”: Ventura’S Ordinary Remand Rule And The Evolving Jurisprudence Of Futility, Patrick J. Glen

Richmond Journal of Global Law & Business

Presumably few federal appellate judges are confronted with the Danish prince’s existential angst: “To be, or not to be: that is the question. . . .” Nonetheless, a similar ambivalence may be present in the circumstance of judicial review of administrative agency decisions. No less eminent an authority than former Second Circuit Judge Henry Friendly expressed just such angst in the introduction to his 1969 Duke Law Journal article, in which he attempted to discern bright-line rules in the Supreme Court’s 1943 SEC v. Chenery decision: “Although when I began my labors, I had the hope of discovering a bright …

Reforming Fairness: The Need For Legal Pragmatism In The Wto Dispute Settlement Process, Webb Mcarthur

Richmond Journal of Global Law & Business

The World Trade Organization (“WTO”) dispute settlement system is intended to be the central pillar of the international trade system by which trade disputes involving WTO member states are adjudicated, whether regarding trade in goods, services, or in intellectual property rights. However, an innocuous statement such as this, when closely considered, indicates potential problems for the system. The WTO is an international treaty-based organization, established in 1994 by 123 countries in Marrakesh, Morocco. In addition to settling disputes in international trade, the WTO is also a negotiating forum and a set of rules. The organization is more than a “table” …

Enforcement Of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect To The Eu Data Protection Directive?, Kristen A. Knapp

Richmond Journal of Global Law & Business

Enforcing discovery against companies located in foreign nations is not a new phenomenon. The U.S. Supreme Court took up the conflict between U.S. discovery rules and foreign non-disclosure law in a 1958 case. Despite more than fifty years to reach a settled jurisprudence regarding how to enforce U.S. law against foreign domiciled companies, there has yet to be a clear articulation of a standard applicable in all cases. Currently, there are two main sets of rules under which U.S. courts may enforce discovery laws against foreign companies, and if necessary impose sanctions for non-compliance: the Hague Convention and the U.S. …

World Trade Organization Agreements And Principles As A Vehicle For The Attainment Of Energy Security, Dennis J. Hough Jr.

Richmond Journal of Global Law & Business

Do you remember how you felt on Wednesday, January 7, 2009? Perhaps you do not. I know how some Europeans felt — cold. That was the day that Russia stopped all natural gas exports to Ukraine. By itself, this was a serious course of action. However, because Ukraine is the main transmission corridor for natural gas pipelines shipping gas to Europe, the situation commanded worldwide attention.

Post-Sox Trends In Delistingsand Deregistration, Samuel Wolff, Clarence D. Long Iv

Richmond Journal of Global Law & Business

No abstract provided.

Simplifying The Prophecy Of Justiciability In Cases Concerning Foreign Affairs: A Political Act Of State Question, Deborah Azar

Richmond Journal of Global Law & Business

Justiciability doctrines in the foreign affairs arena have been described as involving large elements of prophecy. First, this article will examine the justifications and application of the political question doctrine in cases involving foreign affairs. Second, this article will discuss the justifications and application of the act of state and political question doctrines. Third, this article will analyze whether the act of state doctrine can be encompassed within the political question doctrine. Fourth, this article will propose a framework that can be applied in cases involving political questions in foreign affairs.

Symposium Transcript, Erwin Chemerinsky, Mary Ellen O'Connell, Jeremy Rabkin

Richmond Journal of Global Law & Business

No abstract provided.