Conflict of Laws Commons^™

“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

ExpressO

At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, …

The Shari'a Factor In International Commercial Arbitration, Faisal M. Kutty

ExpressO

The world has witnessed a phenomenal growth in commercial disputes transcending national borders due to our increasingly interrelated and globalized world economy. In addition to issues in interpretation of commercial agreements and practices, differences in custom, language, culture and religion will continue to fuel conflicts and disagreements between commercial players. Over the last few decades there have been growing commercial interaction between Western companies and their Middle Eastern counterparts. Given this interaction and the great geo-political and economic importance of this region, it is imperative that Western lawyers and dispute resolution professionals have a reasonable grasp of the general principles …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Law, Boundaries, And City Life In Early Modern Poland-Lithuania, Magda Teter

Early Modern Workshop: Resources in Jewish History

The dynamics of relations within cities thus are shaped not only by class or religious or ethnic membership but also by the legal framework. In the Polish-Lithuanian Commonwealth, divisions between the private and royal domains within cities disrupted not only their legal coherence but also that of Jewish communities themselves, sharpening economic competition and often also conflict. This is what the 1711 decree of the Lithuanian Tribunal against the kahal of Minsk highlights--legal distinctions sometimes exacerbated urban tensions.

This presentation is for the following text(s):

• Decree of the Lithuanian Tribunal against the Kahal of Minsk (1711)

Click here to view …

Looking For Sullivan In Cyberspace, Geoffrey A. Neri

ExpressO

No abstract provided.

Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward

ExpressO

Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to improve our …

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

Towards A Cosmopolitan Vision Of Conflict Of Laws: Redefining Governmental Interests In A Global Era, Paul Schiff Berman

ExpressO

It has now been ten years since the idea of global online communication first entered the popular consciousness. And while the internet has undoubtedly opened up new worlds of interaction and cooperation across borders, this increased transnational activity has also at times inspired parochialism, at least among the legislatures and courts of nation-states around the globe. Thus, we have seen a slew of national laws and court decisions purporting to regulate a wide variety of online activities, from gambling to chat rooms to auction sites, and seeking to enforce territorially based rules regarding trademarks, contractual relations, privacy norms, “indecent” content, …

A New Agenda For The Cultural Study Of Law: Taking On The Technicalities, Annelise Riles

Cornell Law Faculty Publications

This article urges humanistic legal studies to take the technical dimensions of law as a central focus of inquiry. Using archival and ethnographic investigations into developments in American Conflict of Laws doctrines as an example, and building on insights in the anthropology of knowledge and in science and technology studies that focus on technical practices in scientific and engineering domains, it aims to show that the technologies of law - an ideology that law is a tool and an accompanying technical aesthetic of legal knowledge - are far more central and far more interesting dimensions of legal practice than humanists …

Abu Ghraib, Diane Marie Amann

Scholarly Works

This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …

Victims Of Peace: Current Abuse Allegations Against U.N. Peacekeepers And The Role Of Law In Preventing Them In The Future, Alexandra R. Harrington

ExpressO

This article addresses the increasingly prevalent and horrific allegations of sexual abuse made against U.N. peacekeepers. The primary allegations addressed are those from the Congo, as the most plentiful and readily available evidence of these abuses comes from the region. The goal of this paper is not merely to critique the U.N. and its handling of the current peacekeeper abuse allegations, as such a critique would only serve half of the problem. Rather, this paper will use the past and current understandings of the U.N. Charter, peacekeeping, international law, and military justice to suggest several options for handling both the …

Markets & Democracy: The Illegitimacy Of Corporate Law, Daniel J.H. Greenwood

ExpressO

Corporate law does not conform to ordinary democratic norms. Unlike human citizens, corporations may decide which law will govern their most fundamental acts of self-governance. The corporate law corporation choose in turn influences the corporate goals and decision-making processes that determine what the corporation looks for in corporate law in a reflexive system independent of ordinary political processes.

This system seems on its face to violate the most fundamental principle of popular sovereignty–all non-Delaware citizens of the United States are excluded from even formal participation in the process of determining American corporate law, and even Delaware citizens are reduced to …

The Globalization Era And The Conflict Of Laws: What Europe Could Learn From The United States And Vice Versa, Milena Sterio

Law Faculty Articles and Essays

Europe has been under the increasing influence of European Union (E.U.) lawmakers, who have undertaken a harmonization movement attempting to somewhat unify member states' laws. The conflict of laws area has not escaped the harmonization movement and will become increasingly subject to Brussels's regulations and directives. Thus, traditional bilateral rules will have to adapt themselves in light of the new political reality in Europe.

Second, the conflicts field in general, be it in Europe or in the U.S., has been transformed under today's globalization trend. In other words, with the rise of international commerce, traditional private law conflicts are being …

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 …

Law Beyond Borders: Jurisdiction In An Era Of Globalization, Introduction To The Symposium, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Public Policy In The Judicial Enforcement Of Arbitral Awards: Lessons For And From Australia, Winnie Ma

Winnie Ma

Judicial enforcement of arbitral awards is necessary where there is no voluntary compliance by the relevant parties. Courts world-wide may refuse to enforce arbitral awards if such enforcement would be contrary to the public policy of their countries. This is known as ‘the public policy exception to the enforcement of arbitral awards’. It is enshrined in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) and the UNCITRAL Model Law on International Commercial Arbitration 1985 (Model Law), which are two of the most prominent international instruments in promoting and regulating international commercial …

Transfer Of Company’S Registered Office And Forum-Shopping In International Insolvency Cases: An Important Decision From Italy, Federico M. Mucciarelli

Federico M. Mucciarelli

The Italian Supreme Court (Corte di Cassazione) has issued an important decision on companies’ freedom of establishment in the European Union (EU) and on jurisdiction over insolvency proceedings. It was a typical forum-shopping case in insolvency situations, in which a company decides to shift its registered office abroad before a court from its original country declares the insolvency. The Cassazione did not apply EC-Regulation 1346/2000 on cross-border insolvency, but declared the company as liquidated because of the transfer of the registered office. This solution leaves many questions unclear, both under EC-freedom of establishment and under jurisdiction rules for cross-border insolvency.

Note: Minnesota’S Proposed Same-Sex Marriage Amendment: A Flamingly Unconstitutional Violation Of Full Faith And Credit, Due Process, And Equal Protection, Jolynn M. Schlichting

William Mitchell Law Review

This note examines the constitutionality of Minnesota’s proposed marriage amendment. The note begins with a description of the recent national events leading up to the amendment’s proposal, followed by a discussion of the history of marriage in Minnesota, including passage of the Defense of Marriage Act in May 1997. Next, the note examines the language of Minnesota’s proposed marriage amendment and briefly addresses the process of amending state constitutional provisions. It then analyzes the proposed amendment’s constitutionality under the Full Faith and Credit Clause, the Due Process Clause, and the Equal Protection Clause of the United States Constitution. Finally, the …

“Stop Me Before I Get Reversed Again”: The Failure Of Illinois Appellate Courts To Protect Their Criminal Decisions From United States Supreme Court Review, 36 Loy. U. Chi. L.J. 893 (2005), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

Ambiguity, Sovereignty And Identity In Ireland: Peace And Transition, James J. Friedberg

Faculty & Staff Scholarship

No abstract provided.

Patients Beware: Preemption Of Common Law Claims Under The Medical Device Amendments, 39 J. Marshall L. Rev. 75 (2005), Michael P. Dinatale

UIC Law Review

No abstract provided.

The Use Of Hiring Preferences By Alaska Native Corporations After Malabed V. North Slope Borough, James P. Mills

Seattle University Law Review

This article argues that Native corporations can provide employment preferences for Alaska Natives, so long as they are appropriately tailored to provide employment preferences to that corporation's shareholders or those closely related to the shareholders. Moreover, a hiring preference based on shareholder status is not a preference based on race and, as such, does not violate Alaska state law.24 But even if the Alaska Supreme Court found that these hiring preferences did violate the state constitution, given the federal government's unique relationship with Native corporations 25 and Congress's clear intent for Native corporations to favor Alaska Natives in their hiring …

State Ballot Initiatives In The Federal Preemption Equation: A Medical Marijuana Case Study, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

As with the political reform initiatives, this second type of ballot initiative represents a category for which the initiative process is especially appropriate: issues requiring experimentation in the area of health, traditionally a topic of strong concern at the state level. Furthermore, this category of initiative does not suffer from the ills that detractors note in other contexts. These initiatives expand personal rights and do not infringe on others' rights, and they address elemental issues, so citizens can be sufficiently informed to cast votes representing their convictions. These types of initiatives, however, confront a significant problem. They frequently involve areas …

Private Harms In The Cyber-World: The Conundrum Of Choice Of Law For Defamation Posed By Gutnick V. Dow Jones & Co., Shawn A. Bone

Washington and Lee Law Review

No abstract provided.

Defamation In The Digital Age: Some Comparative Law Observations On The Difficulty Of Reconciling Free Speech And Reputation In The Emerging Global Village, Ronald J. Krotoszynski, Jr.

Washington and Lee Law Review

No abstract provided.

Globalizing Savigny: The State In Savigny’S Private International Law, And The Challenge Of Europeanization And Globalization, Ralf Michaels

Faculty Scholarship

How can conflict of laws respond to the challenges from globalization? Some argue that state-based approaches like governmental interest analysis are inadequate, and advocate a return to the approach taken by the German scholar Savigny in the 19th century. The article shows that the assumption is correct: state-based approaches have indeed become problematic. However, a return to Savigny's approach will not help: While Savigny's approach is multilateral and pays little regard to governmental interest, closer analysis reveals how central the state is to his theory. The consequences are shown in an analysis of a recent European case. It follows that …

From The World Court To Oklahoma Court: The Significance Of Torres V. State For International Court Of Justice Authority, Individual Rights, And The Availability Of Remedy In Vienna Convention Disputes, Heather L. Finstuen

Oklahoma Law Review

No abstract provided.

The Chimera Of The Real And Substantial Connection Test, Joost Blom, Elizabeth Edinger

All Faculty Publications

This paper was first presented at a symposium held at the University of British Columbia Faculty of Law on November 5 and 6, 2004 to honour the late Mr. Justice Kenneth Lysyk, a former faculty member and Dean of Law at U.B.C. For this paper we chose a topic that combines both of Ken Lysyk's favourite subjects. We set out to examine how the Supreme Court of Canada has used the "real and substantial connection" test in the conflict of laws and in related areas of constitutional law. This test has been adopted for a variety of purposes. We suggest …

Resurrecting Comity: Revisiting The Problem Of Non-Uniform Marriage Laws, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This paper addresses the age-old problem of interstate marriage recognition, raised anew by the legalization of same-sex marriage in Massachusetts. The problem, in a nutshell, is whether and when a state should recognize a marriage validly celebrated elsewhere when its own laws would have prohibited the marriage from taking place.

Non-uniform marriage laws and the conflicts they engender are not new. To the contrary, states historically disagreed about many aspects of domestic relations laws, and in particular about marriage prohibitions. Conflicts arose when couples married in one state and then sought recognition of their union in a state that would …

Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman

Faculty Publications

One of the central problems of contracts jurisprudence is the conflict between autonomy theories of contract and efficiency theories of contract. One approach to solving this conflict is to argue that in the realm of contracts between corporations, autonomy theories have nothing to say because corporations are not real people with whose autonomy we need to be concerned. While apparently powerful, this argument ultimately fails because it implicitly assumes theories of the corporation at odds with economic theories of law. Economics, in turn, offers a vision of the firm that is quite hospitable to autonomy theories of contract. The failure …