Commercial Law Commons^™

Delays, Disruptions, And Diminished Margins: Reassessing Loss Claims In Indian Construction Law, Gautam Mohanty Mr, Gaurav Rai

National Law School of India Review

Loss of Profit claims by a contractor are premised on the assertion that the contractor has incurred financial losses due to the act of illegal and premature termination of the contract by the employer. Loss of profitability, on the other hand, is a claim made by the contractor of a decrease in the profit percentage in a contract on account of delays and disruptions in the work due to the actions attributable to the employer. Due to the homonymic nature of the terms, several judgments in India confuse one with the other and misunderstand the underlying principles of law applicable …

Counterclaims In Investor-State Arbitration: A Tale Of Two Cases, Godwin Tan, Justin Tan

National Law School of India Review

This article explores the evolving role of counterclaims in investment treaty arbitration. While arbitral rules commonly permit counterclaims, their success has historically been limited due to challenges such as the scope of the parties’ consent to arbitration and the lack of a relevant investor obligation to ground the counterclaim. However, a discernible increase in counterclaims under the ICSID Convention over the past 15 years suggests that there may be a shift in practice. Against this backdrop, this article carries out a comparative analysis of two recent decisions – Iberdrola v. Guatemala (2020) and Lopez Goyne Family Trust v. Nicaragua (2023) …

Smart Contracts Are Neither Smart Nor A Contract: The Case Against Smart Contract Utilization In Everyday Consumer Or Commercial Transactions, Jim Moye

Catholic University Journal of Law and Technology

No doubt, most of us have gone into a local electronics store or ordered a new gadget from an online provider. After purchasing the gadget, we are eager to start operating the new purchase. Before fully utilizing the gadget, however, there are a series of screens requiring the user to read, acknowledge, and consent to, various clauses. If this process is not completed, the user is denied full access to the gadget. Thereafter, entry is granted, and the user is free to utilize the electronic device. This is a prime example of utilizing technology to automate a process that would …

Under The Influence: Duties, Deception, Disclosures, And Due Diligence Of Social Media Influencers, Arianna Kiaei

Washington and Lee Law Review

The encroachment of social media into the daily lives of society reflects a major shift in consumer behavior. As social media moves from providing platforms of narrow connectivity among friends and family to social connection beyond one’s personal network, novel channels are being formed for consumers to absorb and share information. It opens opportunity for corporations to market their products beyond traditional methods and establishes the “influencer” sharing personal thoughts and recommendations on such products.

Social media’s immense purchasing power has a direct effect on the decision-making processes of individuals and the profit margins of corporations, and thus, the capacity …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

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 …

Virtual Currency As Real Currency, Jeffrey A. Maine

Faculty Publications

Convertible virtual currency is increasingly equated with the notion of real currency. Indeed, the increased acceptance of virtual currency as a payment method among retailers and consumers, the evolution of new types of virtual currency that alleviate price volatility, and the recent expansion of foreign country initiatives confirm the strong trajectory toward virtual currency’s function as a transactional currency. Yet, the tax system continues to classify all forms of virtual currency as “property,” and not “currency,” which results in immediate taxation every time someone buys something with virtual currency. This Article argues that the adopted tax treatment of virtual currency …

Redefining The Relevant Market: Abandonment Or Return To Brown Shoe, Daniel A. Hanley

Dickinson Law Review (2017-Present)

Defining a relevant market is arguably the most important requirement in antitrust litigation. Between the 1890s and the 1940s, defining a relevant market was a simple and generalized process, typically undertaken by courts as a cursory matter. However, in the 1960s, defining relevant markets became a centerpiece of antitrust litigation. The modern method originates from the Supreme Court’s landmark 1962 decision in Brown Shoe v. United States. The method commonly known as the Brown Shoe test requires judges to construct relevant markets by carefully analyzing accessible and understandable qualitative data, such as internal corporate documents and consumer surveys. Since the …

Ftc V. Amazon: A Turning Point For Antitrust Law?, Matthew Cole Conover

Washington and Lee Journal of Civil Rights and Social Justice

The United States is experiencing crippling economic inequalities that harken back to the Gilded Age. For the first time, legal scholars have turned to antitrust law to reverse this alarming trend. These scholars, including current Federal Trade Commission Chairwoman Lina Khan, are testing this ambitious theory in the E-commerce industry. E-commerce is a market largely dominated by one company: Amazon. With its dominance, Amazon lures small businesses into its third-party seller marketplace, where it controls those business’s prices and punishes those that resist. Lina Kahn’s FTC has formally launched its litigation campaign against Amazon, claiming that the company has violated …

Employment Law Reform From A Contracts Perspective, Rachel Arnow-Richman

UF Law Faculty Publications

For most of history, pro-worker legal reform has meant legislative action. By contrast, this Essay, prepared for the 75th Annual NYU Conference on Labor & Employment Law, looks to contract law as the source and site of progressive change.

This may seem odd. Contract has primarily been a tool of management. Terms set by the “parties” to an employment relationship, are likely to be those imposed by the employer. Yet contract law is essential to employment law reform. Protective legislation is incremental and discrete. Beyond its provisions, the employment relationship is defined entirely by private ordering. The day-to-day experience of …

Repeal The Federal Arbitration Act's "Arising Out Of" Requirement, Stephen J. Ware

American University Business Law Review

Suppose Pfizer and CVS agree to arbitrate not only any disputes that might arise out of their contract containing an arbitration agreement but also any disputes that might arise out of any of the many earlier contracts between these two large corporations. Or Apple and Samsung agree to arbitrate any patent infringement claims either has against the other for the next five years. Or FedEx and UPS agree to arbitrate any tort claims either has against the other due to any collision of their vehicles in the next ten years. Or members of the Walton (Walmart) family agree to arbitrate …

Section 4 -- Jury, Trial: A Misnomer In The Faa, Tracey B. Frisch

American University Business Law Review

The purpose of the Federal Arbitration Act (FAA), according to the Supreme Court, was not merely to reverse judicial hostility towards arbitration by placing agreements to arbitrate on the same footing as other contracts but to actively promote the use of arbitration on a national scale. It is not surprising then that most provisions of the FAA envision limited court intervention into the arbitration process.

The Problem Of Unreasoned Reasoned Awards And The Judicial Failure To Remedy It: Statutory And Rule Solutions, John B. Mcarthur, Mark Travis

American University Business Law Review

American arbitrators have long been choosing between two common forms of awards: "reasoned awards" and "standard awards" with no reasons enumerated. Yet neither arbitration rules nor statutes define "reasoned award." This lack of guidance has gotten arbitration in trouble and threatens its ability to satisfy users' needs.

Rowling Record 2025, The Robert B. Rowling Center For Business Law & Leadership

Rowling Record

No abstract provided.

The Unconscionably Short Warranty, Marie T. Reilly

Faculty Scholarship

A typical consumer product warranty covers products for defects that appear before the warranty period expires. If the manufacturer warrants a vehicle for five years or 60,000 miles, whichever occurs first, problems that require repairs after the warranty period expires are outside the warranty and, therefore, the buyer's problem. Advocates for consumers have developed a theory to escape the claim-barring consequence of expiration of the warranty period. They have argued with some success that the warranty period that would otherwise bar their claim is unconscionable and thus unenforceable under Uniform Commercial Code ("UCC") section 2-302. The warranty period term, they …

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

Faculty Articles

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 …

Confronting The Duty To Capitalize In Veil-Piercing, Douglas C. Michael

Law Faculty Scholarly Articles

In corporate law, the doctrine of “piercing the corporate veil” allows courts to hold shareholders personally liable for corporate obligations. The doctrine—which now also applies to entities other than corporations—has been widely criticized as imprecise and unworkable. I respond to that criticism in the area of veil-piercing law which remains most intractable—the case of the tort victim who remains unsatisfied after exhausting corporate assets. Although most commentators have eschewed talk of any duty owed by the business owner to vest the business with sufficient assets, I argue that courts and legislatures should recognize—confront—such a duty. I look to negligence law …

The Gadfly Of The Dormant Commerce Clause: The Persistence Of The Extraterritoriality Doctrine After National Pork Producers Council V. Ross, Karl Morton Badger

Mitchell Hamline Law Review

No abstract provided.

Under New Management?: Sovereign Wealth Funds And Their Ownership Of U.S. Sports Teams, Benjamin K. Moyer

Dickinson Law Review (2017-Present)

In October 2021, Saudi Arabia’s sovereign wealth fund (“SWF”) successfully purchased the English Premier League soccer team Newcastle United F.C. for $400 million. With this transaction, Saudi Arabia joined fellow Gulf countries, Qatar and the United Arab Emirates, in owning a major European soccer team through one of its state’s SWF. States have long used their SWFs to invest in foreign markets, but recent trends have transformed these originally strictly financial vehicles into political tools. Since the 2007–2008 financial crisis, many states have used their SWFs not only to produce financial gains but also to generate soft power through political …