Principal (commercial law)

About: Principal (commercial law) is a research topic. Over the lifetime, 1579 publications have been published within this topic receiving 35379 citations. The topic is also known as: Principal (commercial law).

The canadian constitution, federalism and the conflict of laws

Abstract: The author argues that there is a constitutional dimension to each of the three principal issues judicial jurisdiction, recognition and enforcement of foreign judgments, and choice of law that arise in the Conflict of Laws. Provincial claims to assert a jurisdiction over defendants who are not in the province must be limited by the same tests as limit the extra-territorial reach of provincial law under the constitution. There is no justification for giving greater extra-territorial scope to provincial law merely because that scope is set by traditional choice of law rules. If this constitutional standard is met in relation to jurisdiction and choice of law, the problems of the enforcement of the judgments of one province in another are largely avoided, for there can no longer be any possibility of such enforcement, when judged by the standards of the enforcing court, being unfairly prejudicial to the defendant. The consequence of these arguments is that the Supreme Court of Canada has a special role to play in the development of the law. This role permits the complete replacement of conflicts rules, first by constitutional tests to set limits to the reach of provincial law, and second, by the application of substantive rules of provincial law within their proper scope.

The UNCITRAL Model Law – its background, salient features and purposes

Abstract: THE most promising effort ever undertaken to harmonise national laws on arbitration has reached its decisive stage: A Working Group of the United Nations Commission on International Trade Law (UNCITRAL) has elaborated a model law on international commercial arbitration1 which the Commission will review and finalise at its next annual session in June 1985. All governments and interested international organisations have been invited to comment on the draft text, and a wide range of further views (and tremendous interest) has been expressed already at various conferences, seminars and symposia in all continents of the world. The opportunity to present here – in the first issue of a new journal specifically geared to international arbitration – the underlying ideas and salient features of the draft model law is both a fitting task and a rewarding honour. It should also be regarded as a recognition of UNCITRAL's work in the field of international dispute settlement.2 Of its previous achievements, the most prominent one was certainly the preparation and adoption in 1976 of the UNCITRAL Arbitration Rules which are now well known and widely used around the world.3 Also noteworthy are the more recent UNCITRAL Conciliation Rules (1980) for independent amicable settlement efforts as a viable alternative to adversary proceedings.4 The current work on the model law, again carried out with global representation of different economic and legal systems, with considerable expertise and in consultation with other organisations,5 promises to result in another important United Nations contribution to the cause of international commercial arbitration. As an eminent rapporteur to the ICCA – Interim Meeting at Lausanne put it, ‘the new Model law, when it is completed by UNCITRAL and enacted by states, will stand along with the New York Convention and the UNCITRAL Arbitration Rules as a principal …

Oil on troubled waters? The slippery interface between the contract of employment and statutory labour law

Abstract: This article examines the underlying relationship between the contract of employment and statutory labour law, which together constitute the essence of individual labour law (or 'employment law', to use the more common international term). It argues that in South Africa contract and statute have become inextricably intermingled, resulting in a growing number of ambiguities and a confusing overlap and / or competition between statutory and contractual rights and remedies. It is further argued that the trend towards the establishment of two parallel regimes-one based on statute and the other on common law - has been given added momentum by the judgment in Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA). The article explores possibility of a more consistent articulation between the two principal regulators of the employment relationship, based on the underlying constitutional rights.

Agency Law and Contract Formation

Abstract: A number of issues in the common law arise when agents make contracts on behalf of principals. Should a principal be bound when his agent makes a contract with some third party on his behalf which the principal would immediately wish to disavow? The tradeoffs resemble those in tort, so the least-cost-avoider principle is useful for deciding when contracts are valid, and may be the underlying logic behind a number of different doctrines in agency law. In particular, an efficiency explanation can be found for the undisclosed principal rule, under which the principal is bound even when the third party is unaware that the agent is acting as an agent.

Shareholder Litigation: Reexamining the Balance Between Litigation Agency Costs and Management Agency Costs

Abstract: Shareholder lawsuits are a principal legal means to control management agency costs in corporations, yet they generate their own agency costs from the attorneys who bring representative litigation. The key policy question, and one that is central to good corporate governance, has long been how to properly balance the positive management agency reductions from shareholder litigation against the often-maligned litigation agency costs. We address the tradeoff inherent in this debate using our empirical study of shareholder litigation in Delaware. Our data set of all 1000 corporate fiduciary duty cases filed in Delaware in 1999 and 2000 is the largest empirical study of shareholder litigation. We find that more than 80% of these cases are class actions against public companies challenging one type of director decision - whether or not to participate in a corporate acquisition. By contrast, derivative suits, the traditional shareholder litigation that is the staple of corporate law casebooks, make up only about 14% of all fiduciary duty suits. The acquisition-oriented class actions are a new, previously unstudied category of representative litigation, an area long dominated by studies of state derivative suits and federal securities fraud class actions. We find these suits do provide some management agency costs reductions, but these are concentrated in only one subset of the suits that are brought. Settlements leading to relief in an acquisition setting are not spread across all acquisitions complaints (including hostile, second bidder acquisitions etc.), but rather concentrated where there is a majority shareholder who is attempting to cash-out the minority interest held by public shareholders on terms that have been picked by the majority. On the opposite side of the equation - whether these suits possess high litigation agency costs - we find conflicting evidence. The acquisition oriented class action suits have many characteristics that have been identified in other contexts as indicators of agency costs (e.g., suits filed quickly, many suits per transaction). Yet, these litigation agency costs are below the level of perceived costs that spurred securities fraud legislation, for example. We suggest that Delaware could reduce the litigation agency costs associated with class actions without increasing management agency costs by instituting two procedural reforms. First, Delaware should enact a lead plaintiff provision, similar to that adopted for federal securities fraud class actions in PSLRA, to encourage larger investors to become more active monitors of fiduciary duty litigation. Second, we suggest that Delaware should put in limitations on professional plaintiffs as in PSLRA in order to reduce litigation agency costs further. Our article also examines derivative lawsuits from the two-year period, but we find that they do not look much like our acquisition cases (e.g., longer time to file and to settle, fewer suits per transaction and more motions). Derivative cases in our database are concentrated in areas where management agency costs seem likely to be high and produce a number of beneficial settlements that are concentrated in duty of loyalty contexts. Given these characteristics and the current balance between reducing management agency costs and increasing litigation agency costs in derivative litigation, we suggest that Delaware could loosen some of the restrictions that it has placed on shareholder plaintiffs in derivative cases.