Showing papers in "American Journal of Comparative Law in 1983"

A propos the 1980 Vienna Convention on Contracts for the International Sale of Goods

Abstract: The rigor commercialis which supported Shylock could only have been neutralized by an even greater rigor commercialis. Such harsh practices are less necessary nowadays, at least in domestic laws: rigor commercialis has diminished. It is perhaps sufficient to refer to the general equity clauses, the increasing limitations on excluding or restricting liability in the sphere of standardized contracts, and the expanding prohibition of abuse of rights. However, the effect of domestic laws to protect the weak does not extend to international trade.1 There are significant forces, however, intent on changing this situation, most recently under the banner of the New International Economic Order.

Interest Balancing and Extraterritorial Jurisdiction

Abstract: The extraterritorial application of United States law has been an irritant in United States relationships with its allies and other trading partners since World War II. Other governments have regularly voiced objections in principle to assertions by United States courts, government officials or commentators that the norms of United States regulatory legislation govern events or persons located abroad.' The sharpest confrontations and the ones with the greatest potential for disrupting amicable political and economic relations, however, occur when the United States seeks to use its power over persons or entities before its courts or agencies to enforce its policies by requiring or prohibiting acts or omissions abroad that are contrary to the laws or policies of the foreign territorial sovereign.2

Simplified civil procedure in West Germany

Abstract: Eliminating undue delay in the legal process is a main task of the administration of justice in most countries of the world. Efforts to expedite justice was one topic of comparative civil procedure thoroughly discussed at the first International Congress on the Law of Civil Procedure, which took place in Ghent in 1977.1 At that time some essential improvements in the West German Code of Civil Procedure concerning the regular progress of ordinary civil proceedings had just been enacted but had not yet become effective. Now, six years later, we have enough practical experience with the new law. As a consequence of the reform, West German civil procedure has substantially changed since it was last considered by American and English scholars.2

The extraterritorial impact of the anti-trust laws: protecting British Trading Interests

Abstract: In recent years the extraterritorial impact of the United States' anti-trust laws has attracted growing attention in the United Kingdom. The British Government decided to respond to this threat from abroad by means of legislation: hence the introduction in Parliament in 1979 of the Protection of Trading Interests Bill, which became law on 20 March 1980 as the Protection of Trading Interests Act 1980. The tone of parliamentary debate concerning this measure was characterized by an extraordinary degree of shrillness,' reflecting the extent to which British industry is widely perceived to be the hapless victim of attempts by the U.S. Department of Justice and private litigants to enforce the anti-trust laws of the United States in a manner that involves unacceptable intrusions on the sovereignty of the United Kingdom. In this article the provisions of the 1980 Act will be examined against the background of an account of the areas in which the extraterritorial impact of the United States'

Integrating the corporate income tax

Abstract: Now that the late 1970s debate in the U.S. about the policy questions involved in "integrating" the corporate income tax with the individual shareholder income tax has quieted, and the activity in many nations to adopt some form of integration has slowed, it seems time for a good, reflective and technically masterful book on the subject. Such a book would be especially appealing if it took a comparative perspective and drew on the knowledge and experience of other highly developed economies and income tax systems. Appearing to be such a book is the volume by Martin Norr, The Taxation of Corporations and Shareholders.** This valuable book, another in the series done in the International Tax Program of the Harvard Law School, has many virtues, of which-as with so many books-one or two are also its vices. Moreover, it needs one very important warning on its label. The warning should announce that this 1982 copyrighted book is really a 1977 book, and it consequently lacks a description of more recent developments in the law and analysis of the integration problem. Even though some recent literature (up to 1981) is cited in the footnotes and excellent bibliography,1 the text in effect stops in 1977, for reasons of misfortune. The named author, Martin Norr, completed a draft of this study but had not revised it when he died in 1972.2 Others pitched in, especially Prof. Elizabeth Owens (Director of Research at the International Tax Program), who supervised a third year Harvard Law student, Christopher A. Klein, while he updated the manuscript to 1977, Professor Hugh Ault of Boston College Law School (whose Appendix, excerpted from his article, covers the 1977 German integration system), Prof. Richard M. Bird of Toronto, and far from least, Mr. Mitsuo Sato, of the Ministry of Finance in Japan. These collaborators have largely completed and updated the book to 1977, and-spottily-later.3 Allowing for the fact that it does not cover some important recent developments in the U.S. and elsewhere, a few of which will be mentioned below, the reader will find this book to have many

The European Convention on Human Rights and labor law

Abstract: In October 1975 the European Court of Human Rights decided its first case involving labor law questions, the National Union of Belgian Police case.' This has been followed by three other decisions, the Swedish Engine Drivers' Union case2 and the Schmidt and DahlstrOm3 cases of February 1976, and the Young, James and Webster case4 of August 1981. These developments prompt consideration of the impact human rights instruments, especially the European Convention on Human Rights and Fundamental Freedoms5 (hereinafter the European Convention), will have on substantive labor law.6

Extension of Parent Company Shareholders' Rights to Participate in the Governance of Subsidiaries

Abstract: Rarely does a common law decision from outside the American orbit provide an opportunity for developing American corporation law doctrine, and more rarely still does a civil law system case harbor this potential. Yet a recent decision of the German Supreme Court, In re J. F. MUller & Sohn AG,1 itself indirectly but clearly influenced by American principles, affords an unusual comparative opportunity to clarify American doctrine in some important particulars. The case not only extends German doctrine beyond its primarily statutory framework because of clear inadequacies of coverage found by the German Supreme Coureme Court to exist in that statutory system, but also breaks new ground in developing a shareholder's remedy that may be a first step towards a "common law" derivative suit. Most significantly, however, it contributes to the appropriate placement of affiliated enterprise systems within corporation law rules originally tailored to the context of single, unaffiliated entities, and in doing so offers the opportunity constructively to rethink American doctrine in that field.

Pour une loi sur les accidents de la circulation

Abstract: DES 1964, LE PROFESSEUR TUNC AVAIT PROPOSE UNE NOUVELLE CONCEPTION DE L'ASSURANCE AUTOMOBILE, QUI AURAIT PERMIS L'INDEMNISATION DE TOUTES LES VICTIMES. BIEN QUE SOUTENU PAR LE MINISTRE DE LA JUSTICE, LE PROJET DUT ETRE ABANDONNE. IL A EN REVANCHE INSPIRE DES REFORMES DANS D'AUTRES PAYS, NOTAMMENT AU QUEBEC ET EN SUEDE. LE PROFESSEUR TUNC A RECEMMENT ENTREPRIS UN NOUVEL EFFORT AU SERVICE DES VICTIMES. IL A ASSOCIE A L'ELABORATION D'UN NOUVEAU PROJET, LORS DE JOURNEES INTERNATIONALES TENUES A LA SORBONNE, LES REPRESENTANTS LES PLUS EMINENTS DES MILIEUX CONCERNES :MAGISTRATURE, DOCTRINE, ASSURANCE, BARREAU, SECURITE SOCIALE, AINSI QUE TREIZE JURISTES ETRANGERS CHOISIS PARMI LES MEILLEURS EXPERTS EN LA MATIERE. (ALLEMAGNE, BELGIQUE, ANGLETERRE, CANADA, ITALIE, PAYS-BAS, SUEDE ET SUISSE). CE LIVRE REPRODUIT LEURS TRAVAUX.