Conflict of Laws Commons^™

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not aimed at prohibiting bribes …

The Times They Are A-Changin': Innovation In The Modern Music Festival, Molly R. Madonia

Marquette Intellectual Property Law Review

Musical festivals are, and have always been, a way for friends and families to gather together to celebrate the latest and greatest in music, food, and entertainment. From large festivals in major metropolitan cities to small, intimate shows, music festivals have long been a source of enjoyment to music fans and a source of inspiration to up-and-coming musicians. This Article will explore innovation within the modern music festival, including legal, political, and operational changes that affect festivals across the country. So, as Emerson, Lake, and Palmer so eloquently expressed, “Welcome back my friends to the show that never ends, we’re …

Crossing Troubled Waters: Joining Non-Signatories In Maritime Arbitration - The Co-Optation And Containment Of Consent In United States And British Law, Glenys P. Spence

Roger Williams University Law Review

No abstract provided.

Wisconsin Patent Acquisition In The Final Frontier: Creating A Void, Nicholas J. Thibodeau

Marquette Intellectual Property Law Review

In early 2006, the Wisconsin Legislature passed 2005 Wisconsin Act 335, creating the Wisconsin Aerospace Authority (WAA). Unique to this particular act is the enumeration of the power to acquire intellectual property by the WAA. While granting them the power to acquire intellectual property is not unique, there is an interesting problem with that acquisition: the Act does not conform to the Parker Doctrine, and thus allows the WAA to be subject to antitrust litigation in its intellectual property acquisition under the proper circumstances. Specifically, the Act allows the WAA to enter into exclusive contracts that allow the WAA to …

Reasonable Standards For Contract Interpretations Under The Cisg, Donald J. Smythe

Cardozo Journal of International and Comparative Law

The United Nations ("UN") Convention on Contracts for the International Sale of Good ("CISG") offers the promise of harmonizing international sales law and facilitating international trade and global commerce. But there is a "homeward trend bias" that may encourage domestic courts to construe the gaps in the CISG broadly and fill them with non-uniform domestic legal rules. Questions about contract interpretation under the CISG raise the same concerns about a homeward trend bias as questions about the interpretation of express CISG provisions. The CISG has express provisions governing contract interpretation but their application may not provide an unambiguous interpretation. This …

A Comparative Study Of Party Autonomy And Its Limitations In International Contracts, Sarah Laval

Cardozo Journal of International and Comparative Law

No abstract provided.

Whose Law Of Personal Jurisdiction? The Choice Of Law Problem In The Recognition Of Foreign Judgments, Tanya J. Monestier

Journal Articles

It is black-letter law that in order to recognize and enforce a foreign judgment, the rendering court must have had personal jurisdiction over the defendant. While the principle is clear, it is an open question as to whose law governs the question of personal jurisdiction: that of the rendering court or that of the recognizing court. In other words, is the foreign court’s jurisdiction over the defendant governed by foreign law (the law of F1), domestic law (the law of F2), or some combination thereof? While courts have taken a number of different approaches, it seems that many courts regard …

Convention Providing A Uniform Law On The Form Of An International Will: Problems With State Probate Law, Jack N. Sibley

Georgia Journal of International & Comparative Law

No abstract provided.

Foreign Investment Protection And Icsid Arbitration, Charles Vuylsteke

Georgia Journal of International & Comparative Law

No abstract provided.

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Conflict Of Laws In Arbitration Agreements Between Developed And Developing Countries, Mary Kathryn Lynch

Georgia Journal of International & Comparative Law

No abstract provided.

Symposium - Conflicts Of Law In Contracts Between Developed And Developing Nations, Gabriel M. Wilner

Georgia Journal of International & Comparative Law

No abstract provided.

Too Clever By Half: Reflections On Perception, Legitimacy, And Choice Of Law Under Revised Article 1 Of The Uniform Commercial Code, Mark Edwin Burge

William & Mary Business Law Review

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. …

The Conflict Between Forum-Selection Clauses And State Consumer Protection Laws: Why Illinois Got It Right In Jane Doe V. Match.Com, Marty Gould

Chicago-Kent Law Review

To what extent can companies “contract out” of state consumer protection statutes through the use of choice of law and forum selection clauses in standard form adhesion contracts? The only court in Illinois to rule on the issue, a state court case dealing with Match.com, held that the Illinois Dating Referral Services Act (IDRSA) voids forum-selection clauses contrary to stated Illinois public policy, as declared by Illinois statutes. Outside of Illinois, however, federal courts have held that the exact same Match.com forum-selection clause was valid and enforceable despite being in direct conflict with similar statutes in other states. These cases …

The New Conflict Of Laws Code Provisions Of The Federal Republic Of Germany: Introductory Comment And Translation, Rainer Gildeggen, Jochen Langkeit

Georgia Journal of International & Comparative Law

No abstract provided.

Summary Of Progressive Gulf Ins. Co. V. Faehnrich, 130 Nev. Adv. Op. 19, Jeffrey Pike

Nevada Supreme Court Summaries

The Court determined whether Nevada public policy precludes giving effect to a choice-of-law provision in an insurance contract made by parties residing outside Nevada that would deny Nevada residents injured in Nevada recovery under NRS 485.3091.

Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.

Chicago-Kent Law Review

Legal uncertainty about the applicability of local consumer protection can destroy a consumer’s claim or defense within the consumer arbitration environment. What is worse, because the consumer arbitration system cannot accommodate either legal complexity or legal uncertainty, the tendency will be to resolve cases in the way the consumer’s form contract dictates, that is, in favor of the drafter. To demonstrate this effect and advocate statutory change, this article focuses on fee-shifting statutes in California and several other states. These statutes convert very common one-way fee-shifting terms (consumer pays business’s attorneys fees if business wins but not the other way …

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Non-State Law In The Hague Principles On Choice Of Law In International Contracts, Ralf Michaels

Faculty Scholarship

Article 3 of the Hague Principles on Choice of Law in International Contracts is the first quasi-legislative text on choice of law to allow explicitly for the choice of non-state law also before state courts. This paper, forthcoming in a Festschrift, puts the provision into a broader context, discusses their drafting history and particular issues involved in their interpretation. It also provides a critical evaluation. Article 3 does not respond to an existing need, and its formulation, the fruit of a compromise between supporters and opponents of choosing non-state law, makes the provision unsuccessful for state courts and arbitrators alike.

Putting The Cisg Where It Belongs: In The Uniform Commercial Code, Kina Grbic

Touro Law Review

No abstract provided.

A Decade Of Registered And Unregistered Design Rights Decisions In The Uk: What Conclusions Can We Draw For The Future Of Both Types Of Rights?, Estelle Derclaye

IP Theory

No abstract provided.

An Introduction To The Law Of Unjust Enrichment, Alvin W. L. See

Research Collection Yong Pung How School Of Law

The principle that no one shall be unjustly enriched at the expense of another has been invoked to rationalise the right to restitution in a number of cases which fall outside the provinces of contract and tort. This has eventually led to the recognition of an independent legal discipline known as the law of unjust enrichment. It is among the most debated private law subjects today despite its remarkably recent origin. In Malaysia, despite the increase in judicial reference to the language of unjust enrichment to justify an award of restitutionary relief, there is generally a lack of understanding about …

Were "It" To Happen: Contract Continuity Under Euro Regime Change, Robert C. Hockett

Cornell Law Faculty Working Papers

One way or another, the European Monetary Union (EMU) is apt to endure. The prospect of continuation under the precise contours of the regime as we presently find it, however, is anything but certain. Hence many investors and other actual or prospective contract parties are likely to remain skittish until matters grow clearer. This skittishness, importantly, can itself hamper the prospect of expeditious European recovery. Addressing particular sources of ongoing uncertainty about EMU prospects can itself therefore aid in the project of recovery.

This Essay accordingly aims to impose structure upon one particular, and indeed particularly complex, source of uncertainty …

Choice Of Law: Defining The Place Of Performance For General Contract Disputes In Oklahoma, Patrick L. Stein

Oklahoma Law Review

No abstract provided.

Bargains Bicoastal: New Light On Contract Theory, Geoffrey P. Miller

Cardozo Law Review

Recent research has shown that large companies select New York law and New York courts to govern disputes under commercial contracts. Because these parties make choice-of-law and forum selection decisions before conflicts arise, there is reason to believe that their preference for New York reflects an effort to select efficient terms. This Article compares New York's contract law with that of its most natural competitor, California. It turns out that New York strictly enforces bargains and displays little tolerance for efforts to rewrite deals ex post. California, in contrast, more willingly reforms contracts for reasons of fairness, equity, morality, or …

The Flight To New York: An Empirical Study Of Choice Of Law And Choice Of Forum Clauses In Publicly-Held Companies' Contracts, Theodore Eisenberg, Geoffrey P. Miller

Cardozo Law Review

We study choice of law and choice of forum in a data set of 2,882 contracts contained as exhibits in Form 8-K filings by reporting corporations over as six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. These material contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. They therefore provide evidence of efficient ex ante solutions to contracting problems. In prior work examining merger contracts, acquiring firms incorporated in Delaware tended to select Delaware law or a Delaware forum to govern disputes …

Umdenken Für Die Unidroit - Prinzipien: Vom Rechtswahlstatut Zum Allgemeinen Teil Des Transnationalen Vertragsrechts [Rethinking The Unidroit Principles: From A Law To Be Chosen By The Parties Towards A General Part Of Transnational Contract Law], Ralf Michaels

Faculty Scholarship

The most talked-about purpose of the UNIDROIT Principles of International and Commercial Contracts (PICC) is their applicability as the law chosen by the parties. However, focusing on this purpose in isolation is erroneous. The PICC are not a good candidate for a chosen law - they are conceived not as a result of the exercise of freedom of contract, but instead as a framework to enable such exercise. Their real potential is to serve as objective law - as the general part of transnational contract law.

This is obvious in practice. Actually, choice of the PICC is widely possible. National …

Paying Eliza: Comity, Contracts, And Critical Race Theory, Or 19th Century Choice Of Law Doctrine And The Validation Of Antebellum Contracts For The Purchase And Sale Of Human Beings, Diane J. Klein

ExpressO

During the period before the Civil War, courts in non-slave-holding states were sometimes called upon to enforce contracts for the purchase and sale of human beings (or contracts whose consideration otherwise consisted of human beings), and sometimes did so, for reasons arguably having more to do with inter-state contract law than with the “peculiar institution” itself. What may be more surprising, and more difficult to understand, is that some “Union” courts went on doing so even after the Civil War ended, when substantive changes of law, together with well-established exceptions to general principles favoring out-of-state contract enforcement, made the contrary …

'Prima Paint' Pushed Compulsory Aribitration Under The 'Erie' Train, Richard L. Barnes

ExpressO

As the face of commerce changes, the law usually follows, albeit at some distance. The United States Supreme Court has recently sped the pace. In a line of cases, some old, some recent, but all feeding off of one another, the Court has held that challenges to agreements which contain arbitration provisions must go to the arbitrator first. Courts may hear formational challenges only where they challenge the arbitration provision alone. In the Supreme Court, arbitration, with its vast potential for abuse as well as for good, has found a friend.

The Court’s doctrine of choice, “severability,” raises serious concerns …

Ex Ante Choices Of Law And Forum: An Empirical Analysis Of Corporate Merger Agreements, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Legal scholars have focused much attention on the incorporation puzzle—why business corporations so heavily favor Delaware as the site of incorporation. This paper suggests that the focus on the incorporation decision overlooks a broader but intimately related set of questions. The choice of Delaware as a situs of incorporation is, effectively, a choice of law decision. A company electing to charter in Delaware selects Delaware law (and authorizes Delaware courts to adjudicate legal disputes) regarding the allocation of governance authority within the firm. In this sense, the incorporation decision is fundamentally similar to any setting in which a company selects …