Showing papers on "Principal (commercial law) published in 2009"

The Anatomy of Corporate Law: A Comparative and Functional Approach

Abstract: This is the long-awaited second edition of this highly regarded comparative overview of corporate law. This edition has been comprehensively updated to reflect profound changes in corporate law. It now includes consideration of additional matters such as the highly topical issue of enforcement in corporate law, and explores the continued convergence of corporate law across jurisdictions. The authors start from the premise that corporate (or company) law across jurisdictions addresses the same three basic agency problems: (1) the opportunism of managers vis-a-vis shareholders; (2) the opportunism of controlling shareholders vis-a-vis minority shareholders; and (3) the opportunism of shareholders as a class vis-a-vis other corporate constituencies, such as corporate creditors and employees. Every jurisdiction must address these problems in a variety of contexts, framed by the corporation's internal dynamics and its interactions with the product, labor, capital, and takeover markets. The authors' central claim, however, is that corporate (or company) forms are fundamentally similar and that, to a surprising degree, jurisdictions pick from among the same handful of legal strategies to address the three basic agency issues. This book explains in detail how (and why) the principal European jurisdictions, Japan, and the United States sometimes select identical legal strategies to address a given corporate law problem, and sometimes make divergent choices. After an introductory discussion of agency issues and legal strategies, the book addresses the basic governance structure of the corporation, including the powers of the board of directors and the shareholders meeting. It proceeds to creditor protection measures, related-party transactions, and fundamental corporate actions such as mergers and charter amendments. Finally, it concludes with an examination of friendly acquisitions, hostile takeovers, and the regulation of the capital markets. Contributors to this volume - Hansmann and Kraakman Hansmann and Kraakman Hansmann and Kraakman Hertig and Kanda Hertig and Kanda Rock, Kanda, and Kraakman Davies and Hopt Hertig, Kraakman and Rock Hertig, Hansmann, Kraakman, Rock, Hopt and Kanda Hertig, Hansmann, Kraakman, Rock, Hopt and Kanda Davies, Hertig and Hopt

Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective

Abstract: Children of almost any age can break the law, but at what age should children first face the possibility of criminal responsibility for their alleged crimes? This work is the first global analysis of national minimum ages of criminal responsibility (MACRs), the international legal obligations that surround them, and the principal considerations for establishing and implementing respective age limits. Taking an international children's rights approach, with a rich theoretical framework and the vitality of the UN Convention on the Rights of the Child, this work maintains a critical perspective, such as in challenging the assumptions of many children's rights scholars and advocates. Compiling the age limits and statutory sources for all countries, this book explains the broad historical origins behind most of them, identifying the recurring practical challenges that affect every country and providing the first comprehensive evidence that a general principle of international law requires all nations, regardless of their treaty ratifications, to establish respective minimum age limits.

Foreseeability and Copyright Incentives

Abstract: Copyright law's principal justification has for long been the theory of creator incentives. Creators are presumed to be rational utility-maximizers and therefore induced to create by the mere prospect of controlling a future market for their yet-to-be-created works. Yet, current copyright doctrine does surprisingly little to give effect to this theory. None of its current doctrines enable courts to circumscribe a creator's entitlement by reference to the idea of incentives and the limitations inherent therein. As a consequence, copyright's grant of exclusivity is presumed to extend to all markets and uses for a work, whether or not they were capable of forming any part of a creator's incentive. Through its allocation of costs and benefits, the common law too relies on providing actors with incentives to behave in certain ways. Unlike copyright law however, the common law recognizes the existence of a clear outer limit to its incentive structure and attempts to give effect to this limit through the concept of 'foreseeability'. Premised on the idea that individuals do not process consequences that are temporally or causally far removed from their actions, foreseeability requires courts to eliminate from the liability calculus certain low-probability occurrences when they are unlikely to have influenced an individual's decision at the time of action. Foreseeability thus represents a cognition-based doctrinal limit to the behavioral modification that the common law attempts to induce. This Article argues that if copyright law is to remain true to its theory of incentives, it needs to pay closer attention to the way in which incentives actually influence creative decision-making and internalize the idea that creators, like actors elsewhere, are incapable of fully anticipating all future contingencies associated with their actions, that in turn limits the effectiveness of incentives. To this end, it proposes a test of 'foreseeable copying' to limit copyright's grant of exclusivity to situations where a copier's use was reasonably foreseeable to the creator at the time of creation --the point when the incentive is meant to operate. Adopting a test of foreseeability is thus likely to better align copyright law with its underlying purpose and provide courts with a mechanism by which to give effect to copyright's theory of incentives in individual cases --thereby according it more than just rhetorical significance.

Principal and Expert Agent

Abstract: This paper analyses principal-agent contracts when the agent's action generates information not directly verifiable but used by the agent to make a risky decision. It considers a more general formulation than those studied previously, focusing on the impact on the decision made and the contract between principal and agent. It establishes a precise sense in which distorting decisions reduces the risk borne by a risk-averse agent and conditions under which implementing an optimal decision rule imposes no substantive restrictions on the contract. The paper also uses an application to bidding to supply a good or service to illustrate those results and derive additional ones. A risk-neutral agent with limited liability may optimally choose lower, less risky bids or higher, more risky bids, according to which relaxes the limited liability constraint. There are also natural conditions under which optimal contracts are monotone, possibly with flat sections, like stock option rewards.

Interdisciplinarity and the Authority Paradigm: Should Law Be Taken Seriously by Scientists and Social Scientists?

Abstract: This article questions whether those outside law should take law seriously as an intellectual discipline capable of contributing to the development of epistemological thinking in the natural and social sciences. The discipline is approached from a diachronic and synchronic position with emphasis on the civil law tradition. It will be shown that the governing paradigm in legal studies has always been the ‘authority paradigm’, which results in law being closer to theology than to the social sciences. Its principal actors (judges) make assertions free from the normal constraints of scientific method; accordingly, the idea of a ‘legal science’ (imported into the common law tradition after 1846) must be treated with great caution. It is not a science dedicated to enquiring about the nature of the physical world, society or social relations. Its epistemological development remains trapped in the seventeenth and eighteenth centuries: thus, as a discipline, law has little to offer other social sciences.

Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies

Abstract: TOO MANY THINGS TO DO: HOW TO DEAL WITH THE DYSFUNCTIONS OF MULTIPLE-GOAL AGENCIES Eric Biber* A BSTRACT All federal agencies must cope with the challenges of trying to achieve success on the multiple goals laid out for them by Congress, the President, or the public at large. Recent economics and political science literature provides a theoretical framework that helps explain why agencies might succeed in achieving some goals and fail in achieving others: Agencies will systematically underperform on goals that are hard to measure and that conflict with the achievement of other, more mea- surable goals. While agencies in theory might be able to improve their ability to measure performance through technological and organizational innovation, in many cases agency missions, historical inertia, and the professional orientation of agency staff will interfere with innovation. Principals (such as Congress) have various op- tions to address this problem. Some options focus on changing the agency itself: (1) having the principal take back decision-making authority from the agency; (2) split- ting agencies into components that pursue different goals; or (3) mandating that the agency innovate in developing information about undervalued goals. All of these intra-agency efforts have their limitations: Principals only have so much time and energy to make decisions themselves; splitting agencies is often not feasible; and agencies may be resistant to external cultural change. Another range of options involves having another agency monitor the decision-making agency to ensure mini- mal compliance with performance on one or more goals. This could include having one agency comment on the decision-making agency’s performance on an underval- ued goal (the “agency as lobbyist” model) or could extend to having another agency make legally binding determinations about whether the decision-making agency has met minimum standards for that undervalued goal (the “agency as regulator” model). The more stringent the inter-agency monitoring is, the more effective regu- lation might be at achieving minimum compliance with undervalued goals, but with the consequence of greatly increasing transaction costs such as litigation. Thus, principals will not only have to trade off agency performance among multiple goals, but will also have to trade off among the various solutions they might try to use to address the problems of multiple-goal agencies. T ABLE I. II. OF C ONTENTS Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Dilemma of Multiple-Goal Agencies . . . . . . . . . . . . . . . . . . . . . A. The Ubiquity of Multiple-Goal Agencies . . . . . . . . . . . . . . . . . B. The Logic of Multiple-Goal Agencies . . . . . . . . . . . . . . . . . . . . * Acting Professor of Law, University of California, Berkeley, Boalt Hall School of Law. I am grateful for comments from Dan Farber, Goodwin Liu, Erin Murphy, Anne Joseph O’Connell, Molly van Houweling, Ken Bamberger, KT Albiston, Melissa Murray, Robert Ka- gan, Jacob Gersen, Matthew Stephenson, Heather Elliott, Tino Cuellar, Jonathan Masur, Kris- tin Hickman, David Zaring, Cristina Rodriguez, Dan Ho, Nathan Sayre, Sally Fairfax, Tim Duane, Lisa Blomgren Bingham, Patrick Hanlon, Fred Cheever, John Yoo, Andrew Guzman, Holly Doremus, Bruce Ackerman, Tom Merrill, Ricky Revesz, Joe Sax, and the participants in the 2008 Yale/Stanford Junior Faculty Forum. Special thanks to Patricia Kuo, Daniel Pollak, Jason Malinsky, and Jay Cha-Young Kim for research assistance. Thanks to Doug Avila at the Berkeley Law School Library for invaluable help in collecting sources. All remaining errors and omissions are, of course, my own.

Intra-eu investment agreements and arbitration: is european community law an obstacle?

Abstract: Bilateral Investment Treaties (BITs) between Member States of the EU have long been all but non-existent. However, with the two most recent rounds of EU enlargement about 190 BITs have become intra-EU. This has not only raised doubts about the conformity of these BITs with EC law, but has also prompted some (including the European Commission) to question the admissibility of arbitral proceedings brought under these Treaties. The article assesses the mechanisms through which a conflict between intra-EU BITs and EC law can become relevant from an arbitration perspective. It then analyses the principal alleged inconsistencies between BIT provisions and EC law: differing substantive standards of investment protection, unequal treatment of investors from different Member States and the lack of control by the ECJ. The discussion of these issues in the light of the relevant EC Treaty provisions shows that EC law should not, in fact, be regarded as an obstacle to intra-EU investment arbitration.

Law and Financial Development: What We Are Learning from Time-Series Evidence

Abstract: The legal origins hypothesis is one of the most important and influential ideas to emerge in the social sciences in the past decade. However, the empirical base of the legal origins claim has always been contestable, as it largely consists of cross-sectional datasets, which provide evidence on the state of the law only at limited points in time. There is now a growing body of data derived from techniques for coding crossnational legal variation over time. This time-series evidence is reviewed here and is shown to cast new light on some of the central claims of legal origins theory. Legal origins are shown to be of little help in explaining trends in the law relating to shareholder protection, although the classification of legal systems into English-, French-, and Germanorigin "families" has greater explanatory force in the context of creditor rights. The widely-held view that increases in shareholder rights foster financial development is not supported by time-series analyses. More generally, the new evidence casts doubt on the suggestion that legal origins operate as an "exogenous" force, independently shaping both the content of laws and economic outcomes. It is more plausible to see legal systems as evolving in parallel with changes in economic conditions and political structures at national level. I. Introduction Many scholars believe that legal institutions matter for financial development. According to the "legal origins" hypothesis developed by La Porta et al. and their collaborators ("LLSV"),1 legal systems vary considerably in the way they regulate economic activity. A principal cause of this diversity is the role played by the different legal traditions or "origins" of the common and civil law.2 Some argue that countries in which legal systems have a common law origin emphasize the protection of private property, whereas those with civil law roots favor an activist role for the state.3 These legal differences seem to have tangible economic effects. Common law systems have been found to have more dispersed share ownership,4 more liquid and extensive capital markets,5 and more highly developed systems of private credit6 than civilian ones. In part through the Doing Business reports of the World Bank,7 these findings have come to influence policy reform in "dozens of countries" over the past decade.8 Reforms to corporate and bankruptcy law have seen a strengthening of shareholder and creditor rights, particularly the former.9 Influential as it is, the legal origins hypothesis has raised more questions than it has answered. The idea that a country's approach to the regulation of the economy is fixed at the point when it first adopts or has imposed upon it, through colonization or conquest, a certain type of legal order, implies that national systems are locked into particular developmental paths. This neglects the possibility of feedback effects between legal change and economic development. It also points to a potential contradiction in the use of the legal origins hypothesis to generate policy reforms: the common law model, while apparently more conducive to financial development, might not be appropriate for transplantation into civil law regimes. What is at stake here is the degree of fit between substantive rules and the legal structures said to underpin them. Adherents of the legal origins hypothesis suggest that legal changes can be undertaken "without disturbing the fundamentals of the legal tradition" of the countries concerned,10 a view supportive of the move to align civilian systems with the common law approach. A further issue is whether the postulated relationship between legal rules and economic outcomes is as tight as has been suggested. A central methodological tenet of the legal origins approach is that legal rules can be coded and the extent of cross-national legal diversity quantified as a preliminary step to testing for the economic effects of certain laws. …

Information Sharing in Common Agency: When is Transparency Good?

Abstract: When should principals dealing with a common agent share their individual performance measures about the agent’s unobservable effort for producing a public good? In a model with two principals who offer linear incentive schemes, we show that information sharing always increases total expected welfare if the principal who is less informed about the agent’s effort also cares more about the agent’s output. If the less informed principal cares somewhat (but not too much) less than the other principal about the agent’s output, information sharing reduces total expected welfare. In our model the efficient information regime emerges as an equilibrium outcome.

Administrative Law in South Africa: No Longer a

Abstract: Major constitutional reform was undertaken in South Africa in the mid-1990s. As part of this reform, rights to administrative justice were included in a Bill of Rights. In 2000 national legislation was passed to give effect to these rights. This article reviews one of the principal pieces of such legislation, the Promotion of Administrative Justice Act 2000, highlighting key similarities and differences to the Administrative Decisions (Judicial Review) Act 1977.

Defesa da concorrência

Abstract: The essay intends to analyze the competition policy in Brazil after twelve years of the Law n. 8.884/1994, which has effectively inaugurated it. Thus, it initiates with a historical approach, exposing the principal premises that guide this public policy exercise. Utilizing data from the Administrative Council for Economic Defense (Cade), such as condemnations per economic sector and decisions regarding merger and administrative proceedings, attempts to identify the principal obstacles to the effective competition exercise. Finally, is emphasized the convenient moment to review the regulatory framework and expounded the principal points of the Project of Law n. 3.937/2004, with this purpose.

Functional and normative delegation to non-majoritarian institutions: The case of the European Competition Network

Abstract: There is a normative and a functional dimension to delegation to non-majoritarian institutions. These dimensions are explored in this paper and considered in the context of the recent modernization of European Community (EC) competition law enforcement. The principal – agent model provides insights into how and why Member States delegate extensive enforcement powers to the EC Commission and the National Competition Authorities, but as it offers primarily a functional analysis the normative issues of control, accountability and legitimacy cannot be fully encapsulated within it. Thus, an analysis of the EC competition law regime requires consideration of both dimensions using the twin-track approach of principal – agent analysis and a rule of law analysis in order to understand how public power is and should be exercised within it.

Joint Criminal Enterprise and Its Extended Form: a Theory of Co-Perpetration Giving Rise To Principal Liability, a Notion of Accessorial Liability, or a Form of Partnership In Crime?

Abstract: On 23 and 25 September 2008, the Pre-Trial Chamber (
PTC’) of the Extraordinary Chambers of the Courts of Cambodia (
ECCC’) invited Prof. Cassese, Prof. Ambos and the Center for Human Rights and Legal Pluralism of McGill University to submit, as amici curiae, written briefs in the case against Kaing Guek Eav, alias DUCH1 (alleged chairman of the headquarters of a special branch of the Kampuchean Republic secret police known as S-21 from March 1976 to January 1979). The following two issues were posed to the amici curiae: (a) the development of the theory of joint criminal enterprise and the development of the definition of this mode of liability, with particular reference to the time period 1975–1979; and (b) whether joint criminal enterprise can be applied before the ECCC taking into account the fact that the crimes were committed in the period 1975–1979.

The Costs and Benefits of Additional Information in Agency Models with Endogenous Information Structures

Abstract: We study the effect of additional private information in an agency model with an endogenous information structure. If more private information becomes available to the agent, this may hurt the agent, benefit the principal, and affect the total surplus ambiguously.

Brave New World: The Use and Potential Misuse of DNA Technology in Immigration Law

Abstract: DNA technology revolutionized criminal law, family law and trust and estates practice. It is now revolutionizing immigration law. Currently the Department of Homeland Security does not require DNA tests, but it recommends these tests when primary documentation, such as marriage licenses, birth certificates and adoption papers are not available to prove the relationship between the U.S. citizen petitioner and the beneficiary who is seeking permanent resident status in the United States. DNA tests are attractive to the government as a result of administrative convenience and as a means of countering fraud, but adoption of a wholesale policy of DNA testing poses a host of potential problems. In an area of law where family reunification is described as the primary goal, an increase in the use of DNA sometimes results in separating families and other unintended consequences. By promoting the use of DNA evidence, the social interests that are paramount in a family relationship could become subservient to genetic interests. The beneficiaries could become mere genetic entities, whose biological relationship through their genes is paramount. This promotes the view that shared genes are the principal means of identifying human relationships and that one should be entitled to legal benefits solely on this basis. Quality control in the collection, storage and testing of samples, access of individuals to testing facilities, especially in developing countries, privacy interests and the potential for misuse of the results of these tests, particularly in preventing the admission of aliens on health grounds are among the potential problems identified in this article. Using examples from disciplines where DNA evidence has been adopted—criminal, family and estates and trusts law—this article will present a workable policy for the use of this technology in immigra-

The Role of International Law Firms and Multijural Legal Human Capital in the Harmonization of Legal Regimes

Abstract: Multijuralism is a fundamental attribute of the globalizing world, not merely as a result of the public creation of multijural states or trading zones, but also as a result of privately generated multi-jurisdictional transactions and relationships. Both public and private rule-making are important to the development of law in multijural settings. As important, however, is the dynamic development of rules through the process of interpretation and adjudication. Indeed, harmonization of law through the adoption of literally similar legal rules or contract provisions may have little impact on the harmonization of the ultimate legal treatment of particular conduct if legal rules are interpreted and adjudicated differently in different legal regimes. Courts need access to grounded problem-specific knowledge in order for harmonization to be effective across multiple jurisdictions. The principal source of this judicial legal human capital (Hadfield 2006) is the legal human capital generated by lawyers for clients and shared with courts in the process of dispute resolution. Consequently the global markets in which lawyers' investments in multijural legal human capital take place are important not merely for how well they serve the interests of particular clients but, more fundamentally, for how well they work to generate the legal human capital that ultimately feeds into the quality of the harmonization work of courts. These global legal markets, however, are characterized by both market failure and monopoly restrictions. Market failures arise because of the difficulties that attend the production and distribution of information, difficulties that in other settings are mitigated through the use of intellectual property protection, public subsidy and so on. Law firms are an important organizational form for overcoming legal human capital market failures. In the multijural setting, however, extensive jurisdiction-specific monopolies over the provision of legal services inhibit the development of truly multi-jurisdictional law firms. Reducing the barriers to multi-jurisdictional legal practice is an important policy step in the direction of promoting the harmonization of law in a multijural world.

Principal and agency trades by stockbrokers are complementary: the welfare effects of deregulating agency trading and banning principal trades

Abstract: This paper models the demand for stockbrokers' services in Australia, consisting of two related services, agency trades and principal trades. The relationship between agency and principal trades is estimated. The results indicate that the two services are complements rather than substitutes. Using unique accounting information, a model of agency and principal trading activities is estimated to determine the welfare effects of (i) deregulating brokerage commissions and (ii) a ban on principal trading by brokers. The results show a sizeable welfare gain to investors (amounting to about 60% of the gross revenue of brokers) stemming from deregulation of the minimum charge for agency trades. The loss in profitability by brokers due to deregulation is also computed and shown to be negligible. The results also show that due to complementarity, a ban on principal trading, even with deregulation of agency trading, can impose an arbitrarily high cost on investors which could, in principle, offset the gains from agency deregulation.

Foreseeability and Copyright Incentives

Abstract: Copyright law's principal justification has for long been the theory of creator incentives. Creators are presumed to be rational utility-maximizers and therefore induced to create by the mere prospect of controlling a future market for their yet-to-be-created works. Yet, current copyright doctrine does surprisingly little to give effect to this theory. None of its current doctrines enable courts to circumscribe a creator's entitlement by reference to the idea of incentives and the limitations inherent therein. As a consequence, copyright's grant of exclusivity is presumed to extend to all markets and uses for a work, whether or not they were capable of forming any part of a creator's incentive. Through its allocation of costs and benefits, the common law too relies on providing actors with incentives to behave in certain ways. Unlike copyright law however, the common law recognizes the existence of a clear outer limit to its incentive structure and attempts to give effect to this limit through the concept of 'foreseeability'. Premised on the idea that individuals do not process consequences that are temporally or causally far removed from their actions, foreseeability requires courts to eliminate from the liability calculus certain low-probability occurrences when they are unlikely to have influenced an individual's decision at the time of action. Foreseeability thus represents a cognition-based doctrinal limit to the behavioral modification that the common law attempts to induce. This Article argues that if copyright law is to remain true to its theory of incentives, it needs to pay closer attention to the way in which incentives actually influence creative decision-making and internalize the idea that creators, like actors elsewhere, are incapable of fully anticipating all future contingencies associated with their actions, that in turn limits the effectiveness of incentives. To this end, it proposes a test of 'foreseeable copying' to limit copyright's grant of exclusivity to situations where a copier's use was reasonably foreseeable to the creator at the time of creation --the point when the incentive is meant to operate. Adopting a test of foreseeability is thus likely to better align copyright law with its underlying purpose and provide courts with a mechanism by which to give effect to copyright's theory of incentives in individual cases --thereby according it more than just rhetorical significance.

Tax Evasion in a Principal-Agent Model with Self-Protection

Abstract: Gatekeepers have an increasing role in taxation and regulation While burdening them with legal liability for misconducts that benefit those who resort to their services actually discourages wrongdoings A¢Â€Â” as will be clarified in the paper A¢Â€Â” an alienation eA¯Â¬Â€ect can also arise That is, the gatekeeper might become more interested in covering up the illegal behavior and in cooperating with the perpetrator Such perverse eA¯Â¬Â€ects are diA¯Â¬Âƒcult to detect and to measure This paper studies the problem with respect to tax evasion by firms, by building upon the classical Allingham and Sandmo (1972) model and by providing a more detailed description of the "concealment costs" than that available in the literature, which often simply makes assumptions about their existence and their functional form The relationship between a risk neutral firm owner aiming at evading taxes and a risk averse gatekeeper is described through a simple principal-agent framework The paper highlights the role of legal rules pertaining to liability for tax evasion in shaping the parties choices, since concealment costs vary according to whether the risk neutral principal or the risk averse agent are held responsible when tax evasion is detected The main result of the analysis is that there are simple conditions under which one can easily infer whether harnessing the agent is socially beneficial

Criminal law, public health, and governance of HIV exposure and transmission

Abstract: This paper argues that the principal human rights and policy concerns that have been raised over criminalisation of HIV exposure or transmission since the early days of the epidemic cannot be neatly addressed within the traditional criminal law framework. Public health structures may be better placed, in terms of both their mandate and their structure, to incorporate lessons from the public health and human rights movement. This paper critically explores the potential of emerging models of structured coordination between public health and criminal law actors with a view to a more targeted, human-rights-sensitive application of criminal law to the sexual behaviours of people living with HIV. Finally, it assesses these emerging approaches from new governance and restorative justice perspectives.

England's Legal Monsters

Abstract: This article offers a history of the English legal category monster, a legal category that entered English law in the mid-thirteenth and survived until the mid-nineteenth century. The aim of the article is to provide a close textual analysis of an otherwise absent legal history and to locate law's monsters, and the anxieties that they suggest, within their appropriate contexts: social, political, religious and legal. However, while the principal aim of the article is to address a lacuna in legal historical scholarship, and perhaps precisely because of this fact, the history to be detailed offers a series of valuable insights for future study, particularly in the areas of legal history, philosophy and feminist theory. While full elaboration of these themes is beyond its ambit, the article will draw attention to four different and specific contexts in relation to which future scholarship might benefit from an historical study of England's legal monsters.

The Globalization of Environmental Law

Abstract: Legal systems across the globe are responding to environmental concerns in surprising new ways. As nations upgrade their environmental standards, some are transplanting law and regulatory policy innovations derived from the experience of other countries, including nations with very different legal and cultural traditions. New national, regional, and international initiatives have been undertaken both by governments and private organizations. Greater cross-border collaboration between government officials, nongovernmental organizations, multinational corporations and other entities is shaping environmental policy in ways that blur traditional private/public/and domestic/international distinctions. The result has been the emergence of a kind of “global environmental law”-law that is neither purely domestic nor purely international in its origins and scope. These Articles begin by describing the concept of “global law,” why it is different from domestic and international law, and the areas of law in which it is developing. Environmental law is one of several important fields in which forms of “global law” are emerging as legal systems cope with the consequences of globalization in areas including securities regulation, intellectual property, trade and competition policy. After describing examples of this phenomenon, the Articles examine how the forces of globalization are driving the emergence of “global law” in the environmental law field. The Articles conclude by discussing the future implications of the emergence of global environmental law. They predict that globalization will not result in the complete harmonization of global environmental standards, but rather the emergence of a few principal approaches to regulation employed throughout the world with local adaptations. The environmental lawyers and policymakers of the future will need to be educated in the new discipline of global environmental law by studying these approaches and the experience of the countries that employ them. Thus, they will need to be exposed not only to domestic law, but also to the principal approaches to environmental regulation that are emerging around the world. As globalization blurs tradition public/private and domestic/internationals distinctions in environmental law, it is time to approach the subject instead as the field of “global environmental law.”

Parties to Offences Under the Canadian Crimes Against Humanity and War Crimes Act : An Analysis of Principal Liability and Complicity

Abstract: The present study offers a preliminary and limited analysis of certain modes of participation in offences provided for by the Act, namely perpetration and complicity pursuant to section 21 of the Criminal Code. This analysis aims at assessing, in light of the principles developed in international criminal law with respect to individual responsibility, whether and how Canadian law may be adapted to the particular — collective — nature of international crimes.

A strategic look at the organizational form of franchising

Abstract: An agency relationship exists whenever one party (the principal) delegates authority to another (the agent). Because agents are assumed to be self-interested and to possess goals that diverge from the principal's goals, the principal must expend resources (called agency costs) to insure that agents act in her interest (Jensen & Meckling, 1976). In chains, the firm can choose as outlet managers either employees who are paid a salary (and perhaps a bonus) or franchisees who are granted the right to their outlet's profits after royalties and other expenses. In both cases, an agency problem is created because the firm delegates local decision-making to outlet managers whose interests are not perfectly aligned with that of the franchisor's (Rubin, 1978).

Directors' fiduciary duties and the 2008 Companies Bill : regspraak

Abstract: Certain provisions of the new Companies Bill (final version, B61D-2008, adopted by the National Assembly on 19 November 2008) seem to create a codification or quasi-codification of this area of the common law The purpose of this note is to examine the principal provisions involved and to offer some commentary as to their desirability and utility I must, at the outset, state my observation that I can find nothing in the bill that derogates from the body of established common law and, therefore, the existing case law would remain applicable

Corruption in Serbia

Abstract: In this scientific work, the author dr Aleksandar Djuric investigates and analyses criminal motivation of corruption incrimination through the valid Criminal Law of Serbia and the corruption unification: organizational criminal - institutionalized criminal. Like the previous question in considering cause consequence relationship between criminal motivation and incriminated corruption, the author sets determination of essence of the terms: 'corruption', 'criminal motive' and 'criminal motivation'. Criminal motive is an integrated psychological factor creating and determining the criminal behavior, which consists of undertaking and executing the criminal law act. Criminal motive is also a psychologically-normative category of guilt as subjectively specified criminal act. Criminal motivation is an integral psychological (motivational) process of creating, developing, differentiation, realization of criminal motives. The functions of criminal motivational process are creative, selective, determining, confirming, regulating, controlling. The mentioned functions of criminal motive and criminal motivation determine the guilt and the degree of guilt (premeditation and involuntary manslaughter). The guilt determine principal is valid in a criminal trial. While determining the guilt the criminal court has to determine the content and the sort of the criminal motive, the content of criminal motivation and its influence on the content of the guilt. The court mostly determines greed to be the basic criminal motive with the corruption incrimination (bribe giving and bribe taking). By analyzing of the corruption incriminations in Criminal Law of Serbia, the author realizes that the criminal motives (mostly greed) are present directly or indirectly in the law normatives of the corruption incriminations. The author determines the content of the term 'corruption' by following the formula: GREED = PROFIT + LOVE = INDIVIDUAL PSYCHOLOGICAL ANTAGONISM (the cause of personality split, i.e. multiple soul disorder of psychological character). The author points out that - in case of early diagnosis of the causes of greed - we can easily treat the causes and the consequences as well, i.e. the corruption-organizational criminal-institutional criminal. Greed motive should be legally defined as a gained personality feature and unreasonable, unlimited, egoistic need or greed to gain profit. Greed has got a very intensive, concentrated mental energy which makes people proactive. It should be classified into profitable greed grades like: the profitable greed one (criminal motive being the facultative law qualificative element), the profitable greed two (criminal motive motive being the facultative law hard accusing element). In the end - The Criminal Motivation Law should be necessarily established. In accordance with the NGO report of Transparency International and Belgrade Centre for Human Rights, 2008, the author considers the physical influence of corruption to the gaining and law protection of human rights in Serbia. The main cause of non respecting the rights in Serbia is inside the executive authorities in Serbia. The Serbian executive authorities do not protect or execute the regular law. The reason for such a state the author finds in the social phenomenon called 'corruption-organizational criminal-institutional criminal'. The author finds the corruption so deeply implemented inside of the psychological structure of a civilian personality of an individual that it easily turns into organizational or institutional criminal act. The causes of corruption can and has to be cured. Concerning the corruption consequences sanation, as well as the organizational and institutional criminal acts being at the more perfidy grades of corruption - the author suggests the sequence of preventive and repressive measures. The quality and the sanation measure effectiveness depend on the personality types as well as the quality and intentions of the people engaged in the executive authorities in Serbia. If the state doesn't control the corruption, the corruption will control the state.

Federal Administrative Law

Abstract: This casebook emphasizes current doctrine and its historical evolution in exploring the four basic foundations of federal administrative law: separation of powers, statutorily- and constitutionally-required procedures for agency adjudication and rulemaking, scope of judicial review of agency action, and the availability and timing of judicial review. The book concentrates on federal rather than state administrative law in order to provide the fundamental knowledge and concepts necessary to understand the subject, on the belief that an understanding of federal law can be translated into other settings. The book also maintains the straightforward organization and don't-hide-the-ball presentation that has characterized the book since its inception. The Seventh Edition contains five new principal cases, eight major new note cases, ten shorter new note cases, and updated treatments of all major topics. It also includes a revised Chapter I that includes an extended treatment of statutory interpretation to accommodate the increasing inclusion of Administrative Law in the first-year curriculum.

A Necessary Gatekeeper: The Fiduciary Duties of the Lead Plaintiff in Shareholder Derivative Litigation

Abstract: I. INTRODUCTION II. BACKGROUND A. The Historical Development of the Shareholder Derivative Action B. Representative Litigation C. Comparing Shareholder Derivative Actions and Class Actions 1. Shareholder Derivative Actions a. Direct Versus Derivative b. The Demand Requirement 2. Class Actions D. Fiduciary Duties Generally E. Lead Plaintiff Fiduciary Duties in the Context of Class Action Litigation F. The Private Securities Litigation Reform Act of 1995 G. Litigation Costs III. ANALYSIS A. Current Gatekeeping Functions Do Not Prevent Plaintiffs from Filing Detrimental Shareholder Derivative Actions 1. Special Litigation Committees, Demand Requirements, and High Pleading Standards are Inadequate Gatekeepers Because of Timing 2. The Lead Plaintiff is in a Better Position than the Plaint's Attorney to Police the Course of the Litigation a. Problems with Relying on Plaintiffs' Attorneys to Police Derivative Litigation B. Institutional Investors Provide a Source of Lead Plaintiffs with Knowledge of the System and the Likelihood of a Claim's Success C. Why Settle a Worthless Suit? D. Bringing a Worthless Suit Breaches a Lead Plaint's Fiduciary Duties to the Corporation and Other Shareholders by Wasting Corporate Assets IV. RECOMMENDATION A. State Legislatures Should Enact a Statutory Framework Addressing Lead Plaintiff Fiduciary Duties 1. Require a Plaintiff Filing a Derivative Action to Provide Notice to Shareholders Who May Then Move to Serve as Lead Plaintiff 2. Allow the Court-Appointed Lead Plaintiff to Dismiss the Case 3. Introduce Incentives for Institutional Investors to Serve as Lead Plaintiffs a. The Statutory Scheme Should Fully Compensate Lead Plaints for Their Time and Efforts b. The Statutory Scheme Should Award Bonuses Based on Who Pays the Settlement and for Significant Governance Reforms i. The Statutory Scheme Should Allow Courts to Award a Bonus When the Actual Defendants Contribute to the Settlement ii. The Statutory Scheme Should Allow Courts to Award a Bonus for Significant Governance Reforms iii. Incentives Independent of the Proposed Statutory Scheme 4. Clearly Impose Fiduciary Duties on Shareholder Derivative Action Lead Plaintiffs a. Borrow from Current Statutory Fiduciary Duty Frameworks b. Borrow from Case Law Defining Fiduciary Duties c. Leave Room for Court Discretion 5. Sanction Lead Plaints Who Violate Their Fiduciary Duties V. CONCLUSION I. INTRODUCTION Fraudulent behavior by corporate directors is not a new problem (1) and neither is the derivative action--the tool often used to address this problem. (2) In 1957, one commentator noted that "[i]n 1832 it must have appeared, as it does today, that the individual stockholder was in need of a means of invoking judicial power to curb managerial abuse." (3) This statement is just as true in 2009, as is apparent from the managerial and director abuses that continue to plague corporations. Although the shareholder derivative action provides a useful tool to address the important problem of director misconduct, the action has faults that can prevent it from accomplishing this goal. Shareholder derivative litigation is representative litigation, meaning that the person who brings the suit represents others' interests. (4) A major weakness of representative litigation in general is that the agent controlling the litigation often does not have the same interests as the principal. …

Two Fiduciary Fallacies

Abstract: In this article, I argue that two fallacies may have characterised the way the courts handled the fiduciary dimensions of the recent case that ultimately reached the High Court of Australia as Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 The first fallacy is in the proposition that there is a distinct and freestanding fiduciary obligation of disclosure The second fallacy is in the proposition that there is a fiduciary obligation to give a profit-making opportunity to the principal These two fallacies persist despite clear statements of authority pointing them out and warning against them If fiduciary law is to achieve rationality, and if parties are to know what may and may not be pleaded when bringing fiduciary claims, it is important that courts expose these fallacies whenever they are relied on in argument, and not endorse them or pass over them in silence, as appears to have happened in Farah

The law of impersonal transactions

Abstract: Most economic interactions happen in a context of sequential exchange in which innocent third parties suffer information asymmetry with respect to previous “originative” contracts. The law reduces transaction costs by protecting these third parties but preserves some element of consent by property rightholders to avoid damaging property enforcement — e.g., it is they, as principals, who authorize agents in originative contracts. Judicial verifiability of these originative contracts is obtained either as an automatic byproduct of transactions or, when these would have remained private, by requiring them to be made public. Protecting third parties produces a legal commodity which is easy to trade impersonally, improving the allocation and specialization of resources. Historical delay in generalizing this legal commoditization paradigm is attributed to path dependency — the law first developed for personal trade — and an unbalance in vested interests, as luddite legal professionals face weak public bureaucracies.