Conflict of Laws Commons^™

Understanding Jurisprudential Approaches To Islam, Marc L. Roark

ExpressO

The United States recent deal with a United Arab Emirites Company to operate seven U.S. Ports highlights a growing tension in U.S. and Arabic commercial relations. One tension that has remained unnoticed is the role that U.S Courts play in interpreting Islamic texts when the commercial or legal outcome depends on an understanding of the religious culture. This article describes seven cases that demonstrate various approaches to this problem. This article utilizes an approach by James Boyd White, and suggests that translation or its kin transliteration can help judges in deciding Islamic legal principles.

How Do You Take Your Multi-State, Class-Action Litigation? One Lump Or Two?, Daniel R. Karon

ExpressO

The Class Action Fairness Act of 2005, which essentially federalizes all multi-state class-action cases, has introduced the class-action bar, and necessarily the judiciary, to myriad substantive and procedural issues never before envisioned in class-action litigation’s history. While some of these issues have already surfaced, many others haven’t but will as newly federalized multi-state class-action lawsuits move through litigation to the class certification stage. A major and unavoidable issue involves whether federal judges, when deciding multi-state claims’ class certification under Federal Rule 23, may consider well-developed, state class-action jurisprudence applying a single state’s substantive law or whether doing so violates the …

The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering For Interoperability Purposes, Daniel Laster

ExpressO

As patent protection has emerged to protect software, courts and commentators have mistakenly focused on copyright law and overlooked the centrality of patent preemption to limit contract law where a mass market license which prohibits reverse engineering (RE) for purposes of developing interoperable products leads to patent-like protection. Review of copyright fair use cases on RE and Congress’s policy favoring RE for interoperability purposes in the Digital Millennium Copyright Act reinforce the case for patent preemption. Also, the fundamental freedom to RE embodied in state trade secret law, coupled with federal patent and copyright law and policies, cumulatively should override …

Equal Treatment Of Foreign Shareholders In Transnational Securities Class Action Against A Foreign Issuer—A Chinese Example, Clark Yao

ExpressO

As the world economy and financial markets become increasingly more integrated, cross-boarder securities transaction becomes a daily event. Because Unite States has the world’s largest and arguably most liquid capital markets, it has attracted a significant number of foreign companies to cross-list their stocks in a U.S. stock exchange. Unavoidably, such transactions will not only bring out fortune, but also disputes between transacting parties. Relying on the powerful federal securities law , U.S. investors who have bought or sold such stocks have routinely sued foreign stock issuers through class action when the stock prices went down, alleging their loss is …

Choosing Tribal Law: Why State Choice-Of-Law Principles Should Apply To Disputes With Tribal Contacts, Katherine J. Florey

American University Law Review

The Supreme Court has, in recent years, developed a detailed set of rules governing whether cases with tribal contacts should be heard in a state or tribal forum. It is therefore all the more remarkable that courts considering such cases have devoted almost no attention to the question of which law should apply once a forum has been chosen. Instead, courts have broadly assumed, without explicit consideration of the issue, that the forum in which the case is brought will apply its own law. Where state courts are concerned, two problems exist with this approach. First, the assumption that state …

Fundamentally Conflicting Views Of The Rule Of Law In China And The West & (And) Implications For Commercial Disputes, Benedict Sheehy

Northwestern Journal of International Law & Business

This paper is an examination of the notions of law, the Rule of Law, and commercial practice in the West and China. The paper outlines the basic philosophical principles and legal concomitants of the Rule of Law, and the corollary Chinese principles and concomitants. It examines the traditions, differences, and similarities in thinking about the issues in each tradition. It then examines the implications of these differences in commercial dispute resolution. After this discussion of traditions, similarities, and differences and their impact on commercial dispute resolution, the paper turns to address how the discrepancies could be dealt with in the …

Merger Control Review In The United States And The European Union: Working Towards Conflict Resolution, Kathryn Fugina

Northwestern Journal of International Law & Business

While the economy continues to grow on a global scale, large companies seeking to stay competitive must look to international markets as a means of expansion and trade. As international mergers become a more common means of accomplishing these goals, an increasing number of countries are adopting competition laws. Unfortunately, the laws of different countries and regions can, and do, come into conflict. This paper examines the merger control laws of both the United States and the European Union, why these laws sometimes conflict, and provides suggestions for possible solutions for minimizing future conflicts. Part II reviews the relevant merger …

Choice Of Law In Contracts: A Chinese Approach, Mo Zhang

Northwestern Journal of International Law & Business

This article attempts to emphasize that the choice of law analysis in China is distinct from that of other countries, despite the fact that many of the theories and approaches originate in Western countries. The underlying argument is that the ongoing economic reform in China has become a dramatic and driving force for change in the country. This change necessarily shapes the development of choice of law in China in a unique way, and also de. monstrates how China is getting closer to the rest of world while searching for the "China brand" theory and approach in this regard. What …

Greed And Pride In International Bankruptcy: The Problems Of And Proposed Solutions To 'Local Interests', John A. E. Pottow

Articles

The collapses of Yukos, Parmalat, and other international juggernauts have focused scholarly attention on the failure of multinational enterprises. Even what one might consider "American" companies, such as Chicago-based United Airlines, have made clear in their restructuring plans that their operations have profound effects on the dozens of nations around the globe where they transact business. Government and quasi-government reform efforts to regulate these cross-border insolvencies have abounded, including among others, the UNCITRAL Model Law on Cross-Border Insolvency. UNCITRAL is also building on World Bank and INSOL efforts at promulgating a Legislative Guide for "best practices" bankruptcy codes. Scholars vary …

Law, Norms, And Legal Change: Global And Local In China And Japan, Nicholas C. Howson, Mark D. West

Articles

The editors of the Michigan Journal of International Law have boldly brought together four articles and commentary that focus on different aspects of the same problem in China and Japan: the relationship between domestic legal change and foreign and/or "international" law and regulation, "soft" agreements, norms, or even cultural practices. The compilation is bold in part because scholarship on change in East Asian law and legal systems often suffers from one of two defects. First, it often focuses on purely domestic phenomena in only one system, ignoring the comparative connections. Second, scholars often attack the problem from an exclusively comparative …

From The Oau To The Au: A Normative Shift With Implications For Peacekeeping And Conflict Management, Or Just A Name Change?, Jonathan D. Rechner

Vanderbilt Journal of Transnational Law

Many of the nations of Africa have struggled with violence since their independence from colonial powers. The formation of an intercontinental body, the Organization for African Unity, did little to reduce the number or severity of the conflicts. The failure of this organization to maintain peace was due in large part to normative boundaries that prevented its involvement in the internal conflicts of its member nations. The Organization of African Unity was dissolved in favor of a new organization, the African Union, in 2001. The mandate of the African Union is much more proactive than that of its predecessor with …

Harold G. Maier: A World Class Fellow Indeed, Paul M. Kurtz

Vanderbilt Journal of Transnational Law

Hal Maier has played many roles in my life: he has been my teacher, my boss, my advisor, my colleague, and most and best of all, my friend. In all those roles, he has exhibited enthusiasm, patience, tact, and brilliance. Not at all a bad combination, I would say.

Come with me back to his classroom, circa 1970-1971. The subject is Conflict of Laws (which was required back then) or Law of the European Economic Community (which one with no interest in international law only took because of the masterful teacher). Clad in white shirt and oh-so-narrow tie which he …

Transnational Litigation: Is There A "Field"? A Tribute To Hal Maier, Linda Silberman

Vanderbilt Journal of Transnational Law

I was pleased to be asked to offer a few words in honor of my friend, Professor Hal Maier, on the occasion of his retirement from Vanderbilt University Law School. I owe a particular debt of gratitude to Hal, not only because he has been a wonderful friend and colleague over the years, but also because he sparked my interest in a field to which I had only recently turned when we first met and one that now absorbs much of my time and attention. The "field"--if it can be characterized as such--is "international litigation" or "transnational litigation," and that …

Borrowing Help - Using Conflicts Of Law To Aid Clients And Lawyers, Susan Franck

Scholarly Articles in Law Reviews & Journals

A colleague from another law firm calls you on the phone. He has a client with a clear-cut personal injury case, but, as a result of his failure to mark the critical date down in his calendar, the statute of limitations has expired. It is a lawyer's worst nightmare. What can be done to salvage the case and still provide an opportunity to help the injured client?

Rex Travis, an attorney in Oklahoma City, OK, received a phone call somewhat like this, hypothetically. Rex had an ace up his sleeve. He knew something that might remedy the damage and provide …

Interview With Michael Leathes, Nadja Alexander

Research Collection Yong Pung How School Of Law

Alexander: Can you describe your professional role and how it relates to international mediation?Leathes: I have been an in-house counsel for most of my 36-year career, including general counsel of Pfizer International and of International Distillers & Vintners and general manager of BAT’s intellectual propertycompany. In all these roles I have been responsible for litigation portfolios internationally—in total, thousands of cases. Before I figured out a better way, I’m certain that I must have been responsible for about as many losses as wins. Then, in the late 80s, I discovered mediation…A: And what happened?L: Together with the teams of people …

Crossing Borders In The Classroom: A Comparative Law Experiment In Family Law, Barbara Atwood, Graciela Jasa Silveira, Nicole Laviolette, Tom Oldham

Journal of Legal Education

No abstract provided.

Is There A Curricular Core For The Transnational Lawyer?, Michael Bogdan

Journal of Legal Education

No abstract provided.

“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 …

Letter To Derrida/America, Anton Schütz

Cardozo Law Review

No abstract provided.

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 …