bluuebunny/crossref_metadata_2025 huggingface dataset:
Wrong Turns in Exclusive Dealing Law
Authors: Calkins Stephen
Published: January 2009

This paper focuses on case law concerning vertical arrangements and exclusive dealing law. It begins by providing an overview of older Supreme Court case law. It then examines appellate court's alterations to standards regarding exclusive dealing and vertical arrangements in Microsoft and Dentsply.
Water Management in the European Union
Authors: Louka Elli
Published: January 2009

This chapter discusses water management in the European Union. Topics covered include the adoption of the water framework directive in 2000, instituting public participation in water management, and making water policy matter.
Implementing Water Management
Authors: Louka Elli
Published: January 2009

This chapter discusses the implementation of water management in the EU. Topics covered include the role of the European Commission, and developing, testing, and evaluating the implementation strategy for the water framework directive.
Case Studies
Authors: Louka Elli
Published: January 2009

This chapter presents case studies on water management in various EU countries. These include Czech Republic, Slovakia, Slovenia, Netherlands, Hungary, Romania, Bulgaria, and Greece.
Public Participation in Practice
Authors: Louka Elli
Published: January 2009

This chapter examines public participation in water management in the Netherlands and the UK. The waterschap (water board), as it has evolved in the Netherlands, offers lessons as a stakeholder-based institution focused on water management. The Ribble pilot project in the UK sought to test public participation by experimenting with various forms of participation and identifying the lessons learned and usability in the water framework directive context.
Sketches from National and Transnational Experience
Authors: Louka Elli
Published: January 2009

This chapter uses the Australian experience as a benchmark for measuring EU performance in practicing integrated water resources management (IWRM). The Murray-Darling Commission (MDC) in Australia has been projected as a good illustration of IWRM.
Optimal Territorial Scope of Laws
Authors: Parisi Francesco , Fon Vincy
Published: January 2009

A third problem faced by lawmakers when planning their legislative intervention concerns the territorial scope of application of their laws. Because political units are frequently subdivided into smaller units, rules can be enacted and enforced at different levels, whether by the central government or by local governments. This chapter considers what factors should be considered when allocating a given policy function at a particular level, and how do these factors affect the growth and evolution of multilevel governments. These issues are addressed with reference to the existing economic literature and with the aid of a model of subsidiarity and rule competition. After discussing the interplay of economies of scale, economies of scope, and heterogeneity of preferences in determining the optimal level of legal intervention, it is shown that the subsidiarity principle can have mixed effects as a firewall against progressive centralization.
Litigation and the Evolution of Legal Remedies*
Authors: Parisi Francesco , Fon Vincy
Published: January 2009

This chapter considers an often-overlooked ingredient of the creation of legal precedents and revisits the role of litigation in the evolution of judge-made law. It addresses one important observation made by Posner (2006), who observed that judicial opinions and emotions play a relevant role in case decisions — a subjectivity that may render it desirable to promote an (ideologically) diverse judiciary. It examines the extent to which an increase in judges' diversity will actually avoid biases in the evolution of the common law. An adverse selection theory of litigation is developed, suggesting that the tendency toward increasing expansion of legal remedies, and more generally the entire process of creation and change of legal precedent in civil cases, is driven by a pervasive adverse selection mechanism.
Judicial Path-Dependence and Legal Change*
Authors: Parisi Francesco , Fon Vincy
Published: January 2009

This chapter considers the dynamic process of case selection and its role in generating the different patterns of change of legal remedies in various areas of the law. It examines the importance of the win-loss ratios (essentially, what a plaintiff stands to win if litigation is successful versus what he stands to lose if it is not) and the prospect of success of legal claims for the resulting process of legal change. Section 1 briefly assesses existing explanations of the process of legal change and reviews the seminal papers that evaluate the process of selection of disputes as an ingredient of the efficient evolution of legal rules. Section 2 proposes a model that evaluates the impact of case selection on legal evolution in different litigation contexts, highlighting the interaction among selection of disputes, litigation stakes in the case, and litigation costs, as well as their impact on legal change.
Theories of Legal Precedent
Authors: Parisi Francesco , Fon Vincy
Published: January 2009

This chapter begins by briefly introducing the theory of legal precedent from comparative and historical perspectives, and then focuses on one modern-day product of such evolution: the doctrine of jurisprudence constante. Although developed in a system that emphasizes certainty and stability, it is argued that this doctrine of precedent potentially leads to quite contrary results.
Customary Law and Articulation Theories*
Authors: Parisi Francesco , Fon Vincy
Published: January 2009

This chapter extends the analysis of Chapter 10 to consider new theories of customary law formation, with special emphasis on the role of articulation. The chapter is structured as follows. Section 1 presents the traditional doctrines of customary law and models the traditional process of custom formation for the case of bilateral custom. Section 2 extends the bilateral custom model to the case of multilateral custom, and to situations of uncertainty and delay in the formation and recognition of an emerging custom. It examines how the participation and effort incentives of states are affected by the presence of such conditions. Participation and effort incentives assume particular importance for identifying the limits of the traditional customary processes in real-life conditions. These limits are considered in Section 3, examining the potential role of alternative doctrines and processes of customary law formation in mitigating the shortcomings of traditional customary law theory.
Stability and Change in Customary Law*
Authors: Parisi Francesco , Fon Vincy
Published: January 2009

This chapter considers two legal doctrines that allow states to avoid the binding force of international customary law: the persistent objector and subsequent objector doctrines. The first doctrine gives objecting states an opportunity to avoid, partially or entirely, the binding force of an international norm by objecting to it. Under the subsequent objector doctrine, states can gain an exemption to depart from an existing rule of customary law only by securing the acquiescence of other states.
Lawmaking through Agreement
Authors: Parisi Francesco , Fon Vincy
Published: January 2009

This chapter presents an overview of Chapters 14 to 16. The chapters consider the role of treaties among the sources of law, with special attention to the rules governing their formation and process of evolution. Treaties are a unique source of law and are difficult to analogize to any of the other sources of law considered thus far in this book.
Formation and Accession to Treaties*
Authors: Parisi Francesco , Fon Vincy
Published: January 2009

This chapter develops a model of international treaty formation to analyze the different modalities by which states can become party to an international treaty. It analyzes the advantages original signatory states have over acceding states that justify undertaking the initial treaty negotiation costs. Section 1 starts by describing the main categories of treaty accession: (1) closed treaties; (2) semi-open treaties; and (3) open treaties. Section 2 considers the process of treaty formation under these categories. Section 3 discusses some variations of the basic model and draws conclusions.
The Hidden Bias of Treaty Law*
Authors: Parisi Francesco , Fon Vincy
Published: January 2009

This chapter suggests that in spite of the apparent neutrality of the reciprocity principle, a hidden bias of the Vienna Convention creates a systematic advantage for states with high costs and low benefits. The analysis sheds light on the troubled evolution of Article 21 of the Vienna Convention, and explains why, at times, economically disadvantaged states favored the reciprocity principle adopted by the Vienna Convention.
Conclusions
Authors: Parisi Francesco , Fon Vincy
Published: January 2009

This concluding chapter presents a synthesis of discussions in the preceding chapters. The book considered four different methods of lawmaking: (1) lawmaking through legislation; (2) lawmaking through adjudication; (3) lawmaking through practice; and (4) lawmaking through agreement. It considered various distinguishing features of these alternative sources of law, evaluating their relative advantages in the production of law. Lawmaking costs, agency problems in representation, legal stability, and institutional design of lawmaking are discussed.
Lawyers in the Dock
Authors: Abel Richard L.
Published: January 2009

Our legal system is built on the trustworthiness of lawyers: clients must trust their fidelity, adversaries their undertakings, and courts the veracity of their legal and factual claims. Lawyers who betray trust undermine these foundations. Although legal scholars focus on refining the ethical rules, we know very little about the nature and reasons for their violation. The files of disciplinary proceedings are an underutilized resource for understanding lawyer deviance. This book mines the reports of New York disciplinary proceedings to illuminate the three most common and troubling categories: neglect of clients, overcharging, and excessive zeal. Because their livelihoods are at stake and they possess technical skills and resources, disciplined lawyers litigate these cases very thoroughly; those found guilty offer intimate personal details in mitigation during the penalty phase. The book concludes with practical recommendations for reducing lawyer deviance and restoring trust.
Juggling Too Many Balls
Authors: Abel Richard L.
Published: January 2009

Because their labor is their only commodity, service providers systematically overbook, forcing clients to queue for their attention. Solo practitioners are tempted to increase their caseload by delegating to under-qualified and inadequately supervised subordinates. The result is systematic neglect: missed deadlines, failure to obtain evidence, lack of communication, and endless delay. When this also creates cash-flow problems, lawyers may be tempted to bribe adversaries to settle.
The Perils of Perfectionism
Authors: Abel Richard L.
Published: January 2009

Friendship and business do not mix, especially when they lead to oral, incomplete fee agreements. When a lawyer achieved an unusually good result in a tax dispute for his client friend, the lawyer felt entitled to appropriate the entire refund as his fee, recalculating his hours and hourly rate to exactly match the refund. The lawyer refused to acknowledge the existence of a fee dispute or to escrow the funds. Even when applying for readmission after a two-year suspension, the lawyer could not admit culpability.
God Is Winning: Religion in Global Politics
Authors: Shah Timothy Samuel , Toft Monica Duffy
Published: January 2009

This chapter sets the stage by giving an overview of the influence of religion on world politics in recent decades. It shows that world politics is increasingly marked by what could be called “prophetic politics” in which voices claiming transcendent authority are filling public spaces and winning key political contests. Some, like Al Qaeda, act through violence; others, like American evangelicals, act through elections; still others, like Hamas as well as some Indian Hindu revivalists, combine the two. But the overall trend is clear. Whether the field of battle is democratic elections or the more inchoate struggle for global public opinion, religious groups are increasingly competitive, putting secular movements on the defensive. The spread of democracy often enhances their reach. Democracy is giving the world’s peoples their voice, and many want to talk about God.
Jesus Christ, Superstar: The Passion of the Press
Authors: Lott Jeremy
Published: January 2009

This chapter reviews critical coverage of Mel Gibson’s The Passion of the Christ and finds little attempt to understand or portray the movie on its own terms—that it was not any effort at a literal portrayal of the gospels but was structured around a very specifically Catholic piety centered on the Stations of the Cross and the Eucharistic sensibility of Christ’s body and blood. Because they did not grasp these liturgical dimensions, the media instead focused on controversies about the movie’s purported anti-Semitism, its bloodiness, and supposed literalism. This led to many wrong predictions, including that the movie would bomb at the box office, that Gibson would lose his fortune, and that it would ignite a wave of anti-Semitism, and missing a major story—that millions of evangelicals warmly embraced a picture of very Roman Catholic sensibility.
Getting Religion in the Newsroom
Authors: Mattingly Terry
Published: January 2009

This chapter explores newsroom barriers to covering religion well, and draws on a series of interviews with journalists and editors generally believed to be doing well at connecting religion and journalism. It highlights the need for journalists to examine the religious language and labels that they use; the need for diversity of religious knowledge and awareness in newsrooms; the role of editors in offering better training and resources both to religion reporters per se and others whose work veers into religious territory; and the need to strive to get inside the daily lives and mindset of the people covered.
Getting It Right
Authors: Ahmanson Roberta Green
Published: January 2009

This chapter explores some of the conceptual barriers that journalists face in covering religion, particularly the common modern assumption, shared by many journalists, that religions cannot be understood as forms of knowledge. It recommends that journalists strive to understand what religion is, try to take seriously an individual’s faith or lack thereof, take history seriously, question their own assumptions and the assumptions of our time, consciously try to avoid “pack journalism,” and realize that even in religious affairs, details matter a great deal.
Created Equal
Authors: Berman Joshua A.
Published: January 2009

This book reveals the Hebrew Bible to be a sophisticated work of political philosophy, and the birthplace of egalitarian thought. Focusing on the Pentateuch, this book lays bare the manner in which the Bible appropriated and reconstituted ancient norms and institutions to create a new blueprint for society. Theology, politics, and economics were marshaled anew to weaken traditional seats of power, and to create a homogeneous class of empowered common citizens. Much of this anticipates developments in the history of political thought that would recur only during the Enlightenment and in the thought of the American Founding Fathers. Ancient religion granted sacral legitimation to the ruling classes and saw the masses as mere servants. The Pentateuch, by contrast, elevates the common citizenry in the eyes of God by invoking the political institution of the vassal treaty, and casting Israel as a subordinate king to the Almighty through the theology of covenant. Through the prism of the political philosophies of Plato, Aristotle, and Montesquieu, the book demonstrates the Pentateuch to be history's first proposal for the distribution of political power. Utilizing the anthropology of pre‐modern economies, ancient norms are explored concerning land tenure, taxation, and loans are reworked so that the common citizenry remains economically secure. Invoking the transformational role of the printing press in the spread of the Reformation and the birth of the Enlightenment, the book identifies far‐reaching consequences in the Bible's approach to what was then the new technology of communication: the alphabetic text.
Egalitarian Politics
Authors: Berman Joshua A.
Published: January 2009

This chapter examines how Deuteronomy offers an egalitarian political prescription for the shape of Israelite society and its leadership regime. The program is egalitarian in that it attenuates, in the first place, the institutional power of the monarchy as construed in the ancient Near East in the following realms: the military, the cult, the judiciary, the economy, and the harem. It further establishes a set of checks and balances that curb the power of the various seats of authority: the king, the priesthood, the judiciary and the prophet. Moreover, Deuteronomy's egalitarian program for the regime is reflected in its rejection of the institutions and language of tribal patriarchy so evidenced in the other pentateuchal texts, in favor of collective, national identity. Whereas earlier studies that examined Deuteronomy's plan for the regime have focused on chapters 16–18, this study maintains that one must read all of Deuteronomy as an integrated whole in order to perceive the full intricacy of its blueprint for a society in the land. Particular attention is paid to the role played in this regard by the so‐called narrative frames of the book—chapters 1–4, and chapters 27–30. While previous studies have noted that Deuteronomy seems to adopt a form of checks and balances, this study locates the statement it makes in this regard within the history of political thought on the subject. Scanning theories from Roman jurists through Montesquieu, this study concludes that the kernel of a theory of checks and balances that one may adduce from a reading of Deuteronomy is suggestive of formulations that we do not encounter again until the writings of the American Founding Fathers.
Egalitarianism and Assets
Authors: Berman Joshua A.
Published: January 2009

Class may be defined as the formation of groups around the extraction, production, transformation, distribution, exchange, and consumption of economic surplus. A program for an egalitarian order, therefore, must address the distribution of capital. In the capitalist world that we inhabit, social relations become embedded in the economic system. Yet, in premodern societies, including the ancient Near East, the dynamic was reversed: the economic order was but a function of the social order in which it was contained. This chapter examines stipulations concerning land tenure, taxation, lending, ownership rights, debt easement, poverty relief, and manumission. To be sure, the various legal corpora found in the Pentateuch concerning nearly all of these issues reveal inner tension and discord. Yet, we may see that in many instances, concepts and institutions whose origins were in statist and feudal orders elsewhere in the ancient Near East are recast in these legal corpora in accordance with a new communal agenda. This chapter maintains that where the greatest reworking has been done we may see that it has been carried out with the aim of ensuring that a broad swath of the citizenry remain landed and economically secure. What emerges is the western tradition's first prescription for an economic order that seeks to minimize extreme advantage and the distinctions of class based on wealth.
Banning Piracy: The State Monopoly on Military Force
Authors: Stiles Kendall
Published: January 2009

Norms on piracy have moved through several distinct cycles of change, involving intense disputes over definitions of piracy and over rules for the high seas. The trigger for the development of antipiracy norms, however, was not a specific disputed event but rather the emergence of naval technologies that allowed states to suppress piracy. This chapter examines three cycles of normative development. In the first cycle, through about 1600, states moved from acceptance of privateering to contesting its legitimacy. The second cycle culminated in the 19th-century prohibition of piracy. A third cycle, embedded within the larger cycle of antipiracy norms, carved out in the nineteenth and twentieth centuries a political exception to the ban on piracy. Finally, the chapter assesses the still unresolved debate regarding universal jurisdiction over pirates.
Slavery: Liberal Norms and Human Rights
Authors: Stiles Kendall
Published: January 2009

This chapter begins with a brief review of slavery through the late-18th century, with an emphasis on the broad consensus over the legitimacy of the institution and its centrality to international economic life. It then explores the origins of the ban on the slave trade and its subsequent implementation. This leads to a discussion of the ban on slavery itself which progressed in tandem but as a result of somewhat different forces. Finally, the chapter considers how the modern struggle against human trafficking is informed by and yet departs from these normative origins.
Genocide
Authors: Stiles Kendall
Published: January 2009

This chapter focuses on the development of international norms prohibiting genocide. Prior to the beginning of the 20th century, genocidal killing occurred with depressing regularity around the world. From Antiquity through the Middle Ages, victors in war considered such massacres a necessary element in suppressing conquered and rebellious peoples. These atrocities rarely elicited anything more than expressions of regret from the international community. Against this context, the international norm prohibiting genocide developed through two cycles of norm change, one triggered by the Armenian genocide of 1915 and a second following the Holocaust. Subsequent cycles clarified the application of the norm.
Humanitarian Intervention
Authors: Wood Heather Jacques , Nuttall Taylor , Stiles Kendall
Published: January 2009

This chapter reviews the normative context (the state of the discourse and international practice regarding humanitarian intervention) circa 1945. It assesses the extent to which the debates surrounding the UN Charter and ancillary post-war human rights treaties established principles relevant to humanitarian intervention. It then turns to the Cold War and the immediate post-Cold War period to chronicle how specific crises triggered the development of humanitarian intervention norms. Finally, the chapter provides a more detailed examination of the debates surrounding intervention in Somalia, Rwanda, and Bosnia, with a brief discussion of the Darfur situation.
The Creative Development of Johann Sebastian Bach Volume 1: 1695-1717
Authors: Jones Richard D. P.
Published: January 2009

This book gives an account of the individual works of one of the greatest composers. This first volume, the first of a two-volume study of the music of J. S. Bach, covers the earlier part of his composing career, 1695-1717. By studying the music chronologically a coherent picture of the composer's creative development emerges, drawing together all the strands of the individual repertoires (e.g., the cantatas, the organ music, the keyboard music). The book is divided into two parts, covering the early works and the mature Weimar compositions, respectively. Each part deals with four categories of composition in turn: large-scale keyboard works; preludes, fantasias, and fugues; organ chorales; and cantatas. Within each category, the discussion is prefaced by a list of the works to be considered, together with details of their original titles, catalogue numbers, and earliest sources. As indicated by the subtitle ‘Music to Delight the Spirit’ borrowed from Bach's own title-pages, the book draws attention to another important aspect of the book: not only is it a study of style and technique but also a work of criticism, an analytical evaluation of Bach's music, and an appreciation of its extraordinary qualities. It also takes account of the remarkable advances in Bach scholarship that have been made over the last fifty years, including the many studies that have appeared relating to various aspects of Bach's early music, such as the varied influences to which he was subjected and the problematic issues of dating and authenticity that arise. In doing so, it attempts to build up a coherent picture of his development as a creative artist, helping us to understand what distinguishes Bach's mature music from his early works and from the music of his predecessors and contemporaries. Hence we learn why it is that his later works are instantly recognizable as ‘Bachian’.
Introduction
Authors: Jones Richard D. P.
Published: January 2009

This introductory chapter begins with a discussion of Bach's family background and his childhood musical experiences. It then details the start of his study of composition and his early music. The influence of his early exposure to church music on his own music is also described.
The Neumeister Collection and other organ chorales
Authors: Jones Richard D. P.
Published: January 2009

This chapter focuses on the importance of the chorale in Lutheran worship. The chorale was an effective means of congregational participation — an essential feature of Luther's reforms — and its simple texts, strophic, metrical, and vernacular, helped to bring home the Christian message by paraphrasing biblical or liturgical words and reinforcing the theological doctrine derived from the Gospel and expounded in the sermon. The Neumeister chorales, miscellaneous organ chorales, chorale motets, chorale fantasias, and chorale paritas are presented.
Conclusion
Authors: Jones Richard D. P.
Published: January 2009

This chapter presents a synthesis of the discussions in Part I of this book. It argues that certain general characteristics of Bach's early music, notably the preponderance of pattern play and the North-German rhetoric of the stylus phantasticus, distance it considerably from his mature style. And conversely, characteristics that we expect to hear in his later works, such as the continuous motion of short note-values, caused by the expressive elaboration of all parts, have not yet become fully established. However, in several crucial ways the Bach we know so well from the great masterpieces of later years is already to some extent recognizable in the early works.
Introduction
Authors: Jones Richard D. P.
Published: January 2009

This chapter begins with a discussion of Bach's attainment of full maturity as a composer. It argues that the favourable conditions Bach experienced at the Weimar court facilitated the approach and eventual arrival of complete mastery in the handling of a mature style that is recognized instantly as ‘Bachian’. It identifies two important features of Bach's later career are already anticipated in Weimar. First, he was in increasing demand as a teacher: about a dozen students of his are known by name from this period, including Schubart and Vogler, both of whom had moved with him from Mühlhausen. Secondly, the conception of systematic cycles, which plays such a central role in Bach's creative work from the Cöthen period onwards, is already anticipated in Weimar.
Fugue and fantasy II
Authors: Jones Richard D. P.
Published: January 2009

This chapter focuses on Bach's prelude-and-fugue form. At Weimar, the two-movement structure of prelude and fugue, already prominent in Bach's early music, became fully established along the lines of a blueprint: the Prelude and Fugue in G minor, BWV 535a, the most advanced of the early works of this kind. As reflected in the revision of that work, however, the prelude is expanded and consolidated so that it becomes a more equal partner to the following fugue. This development applies specifically to organ music; only sporadic works survive in this dual form for harpsichord, and there is no evidence that the prelude and fugue for manuals only was established in any consistent fashion before The Well-Tempered Clavier. Such is the centrality of the prelude-and-fugue form within Bach's oeuvre that other genres are now assimilated to it: the toccata (BWV 911and 538; later 540), fantasia (BWV 944), and passacaglia (BWV 582).
The Orgelbüchlein and other chorales
Authors: Jones Richard D. P.
Published: January 2009

This chapter focuses on Bach's Orgelbüchlein chorale. It argues that the gulf in style and quality between Bach's early chorales and the Orgelbüchlein is so immense that it is difficult to account for it in terms of a continuous process of development. The distinctive type of chorale setting that Bach developed in the Orgelbüchlein is virtually without precedent among his early works. Six organ chorales are considered which appear to witness Bach in the process of evolving certain key features of the Orgelbüchlein chorale.
Introduction
Authors: MacCormick Neil
Published: January 2009

This introductory chapter begins with a discussion of the institutional theory of law, which aims to develop a better understanding of law than other current legal theories offer, starting from a definition of law: Law is institutional normative order. In explaining the elements of the definition, it is first explains ‘norms’, and then ‘normative order’. Finally, by discussing the institutionalization of normative order, it reaches a grasp of the whole defining phrase ‘institutional normative order’. An overview of the subsequent chapters is presented.
On Normative Order
Authors: MacCormick Neil
Published: January 2009

This chapter argues the importance of understanding the idea of normative — the idea is of our having ways to differentiate right from wrong in what we do, of having common or overlapping conceptions of what one ought to do in various recurring situations. Human beings are norm-users, whose interactions with each other depend on mutually recognizable patterns that can be articulated in terms of right versus wrong conduct, or of what one ought to do in a certain setting. Understanding this use of norms precedes understanding any possibility of deliberately creating relevant norms that are to become patterns for behaviour. However, deliberate creation of norms also occurs. Norm-usage can acquire a more formal character, indeed, can become ‘institutionalized’. To understand this is to understand the transition into institutional normative order, and thus law.
On Institutional Order
Authors: MacCormick Neil
Published: January 2009

This chapter begins with a discussion of queuing as a matter of purely informal normative order grounded in the social conventions of ordinary everyday life. It distinguishes between informal or conventional norms on the one hand, and on the other hand the explicit or implicit rules that may be introduced and established, or developed and recognized, by persons holding some position of authority. It then discusses institutional agencies and their role in the institutionalization of order.
A Problem: Rules or Habits?
Authors: MacCormick Neil
Published: January 2009

This chapter explores the issue of the potential ‘gap’ between law as enacted and law as acted out. It identifies two kinds of gap. First, judges and lawyers and other court officials are likely to have their own routines and habits and ways of carrying out their official or professional work. The formal rules will come to be modified and overlaid with other considerations and habits in the overall folk-ways of working legal life in any real setting. The second sense of the ‘gap’ is the ‘efficacy gap’. It is very much an open question how much of the official law is any part of the working consciousness of laypersons. It is also questionable to what extent their sense of what is right and proper depends on, and how far it diverges from, what the official law enjoins either in the sense of abstract texts or in the mediated form filtered through professional and official practice.
Legal Positions and Relations: Rights and Obligations
Authors: MacCormick Neil
Published: January 2009

This chapter begins by analyzing ‘obligations’ in the sense of ‘legal ties’ or ‘vincula iuris’, that is, in the sense involved in discussions of the ‘law of obligations’. It then considers rights in relation to duties, with a view to showing when rights exist and how they correlate with duties, in particular whether or not some element of choice about or control over another person's fulfilment of a duty is necessarily involved. Finally, more complex rights of the kind involved, for example, in human rights instruments are explained in a preliminary way.
Political Yardstick Competition and Corporate Governance in the European Union
Authors: Salmon Pierre
Published: January 2009

The question whether regulatory competition in the area of company law could take place in the European Union (EU) in a way similar to that in the United States (the Delaware phenomenon) ignores the importance of voters and tends to view competition among governments as if it was exclusively based on the mobility of firms across jurisdictions. But intergovernmental competition can also take the form of yardstick, or relative performance, competition. This chapter begins by spelling out some characteristics of the mechanism. The second part stresses some aspects of the path followed by European integration. The third and fourth parts are devoted to corporate governance and law making in the EU context. Yardstick competition between the EU and other parts of the world is likely to start a dynamic process that could lead to the centralization of a large part of company lawmaking at the EU level and the emergence of a distinctive legal environment for firms doing business in Europe.
A Legal Options Approach to EC Company Law
Authors: Hertig Gerard , McCahery Joseph A.
Published: January 2009

In recent years, legal options have gained acceptance in the European Union. Legal options refer to the ex ante and ex post choices that are created by law. Not surprisingly, legislators have tended to introduce choice for Member States or private parties when they have found it difficult to make headway with resolving a conflict. This chapter contends that allowing firms the choice of different legal rules would be beneficial and would respond to industry demands for low-cost regulatory choices. It shows that bringing options to the forefront of company law reform can reduce costs for small and medium-sized firms, and provide clear benefits to companies that differ in their ownership and control structure from most large public corporations. Switching to a company law regime with different sorts of options can have a good effect on stakeholders as well. As a regulatory strategy, it advocates a step-by-step change, beginning with the adoption of a limited number of opt-in provisions.
How Can Corporate Governance Codes Be Implemented?
Authors: Wymeersch Eddy
Published: January 2009

In most European States, corporate governance rules are laid down in self regulatory instruments, drawn up by different types of specialists or practitioners (academic, stock exchanges, business associations). Legislators have most of the time refrained from intervening in this matter. However, a great variety of factual situations exist: in some States, the corporate governance code is a mere recommendation, without any enforcement mechanism; in others the code is part of the listing conditions. This chapter reviews the different enforcement instruments, going from market-led enforcement, enforcement by civil law instruments, or by name and shame techniques. Most systems are based on the ‘comply and explain’ technique, which is also recommended by the European Corporate Governance Forum. In some States, the securities commission has recently been charged with an unclear mandate for supervising compliance.
The European Securities Industry. Further Evidence on the Roadmap to Integration
Authors: Alemanni Barbara , Lusignani Giuseppe , Onado Marco
Published: January 2009

The integration of the European securities market is one of the most important and ambitious steps of the making of a unified financial system. This chapter shows why the issue of costs and competition between different trading and post-trading systems is the key point of future integration. In particular, the analysis starts with the roadmap set by the European Commission and the evolution of the regulatory approach towards the integration of the trading and post-trading sectors. It then reviews the results of the research on the main issues related to the integration of securities markets and comments on the present situation. In addition, some original measures of the explicit costs of trading for all main European exchanges are presented, adopting a bottom-up approach, which allows a comparison of the prices paid by different investors for different sizes of trades. The debate on fragmentation of different European post-trading systems is also briefly reviewed. The chapter concludes with some policy implications.
The Eclipse of Contract Law in the Investment Firm-Client-Relationship: The Impact of the MiFID on the Law of Contract from a German Perspective
Authors: Mülbert Peter O.
Published: January 2009

Articles 19 to 24 of the Markets in Financial Instruments Directive (MiFID) establish a new regulatory framework for the legal relationship between an investment firm and its clients. At first glance, the regulatory framework and the contractual framework are completely independent of each other. In particular, Article 19 (7) only recognizes that investment services are provided on a contractual basis by requiring an investment firm to establish a documentary record regarding the contractual terms, but does not mandate any specific contents of such a contract. However, a more detailed analysis shows the MiFID framework to have a profound impact on the structure and contents of the respective contractual relationships. In this respect, Article 20 dealing with the provision of services received through the medium of another investment firm, and Articles 31 and 32 providing for maximum harmonization of the conduct of business rules, are of particular importance.
Structuring Securities Regulation in the European Union: Lessons from the U.S. Experience
Authors: Langevoort Donald C.
Published: January 2009

Politics aside, the question of whether the EU should create an SEC is about the trade-offs between scale and accountability. This chapter considers that trade-off in the US context, with specific attention the SEC's apparent role as a ‘global’ securities regulator on matters relating to issuer disclosure. The principal claim is that in making enforcement decisions, there will likely be a ‘home bias’ toward domestic enforcement actions that makes extraterritorial actions less likely, thus reducing the incentives to comply. To the extent that this is typical of regulatory behaviour, then there may be lessons for Europeans considering the question of institutional design. More broadly, the chapter also considers some of the institutional features that make SEC enforcement policy what it is, which may or may not be exportable (or which policy makers in Europe may not want to import) to the European context.
Derivative Actions and Corporate Governance
Authors: Reisberg Arad
Published: January 2009

This book provides the first comprehensive law scholarship to focus solely on the subject of derivative actions, which is an important aspect of the current ever-expanding debate in the UK, and in other jurisdictions, about corporate governance. In particular it: (1) provides the first detailed and clear overview, commentary and theoretically informed explanation of the law governing derivative actions by revealing underlying principles, making it an essential resource for corporate law academics, law makers and practitioners; (2) uses these principles to suggest how the law should develop in the future; (3) provides the first, most comprehensive and detailed assessment of the new regime governing derivative actions under the new Companies Act 2006 including a commentary on all the new provisions of the Act on the subject; and (4) includes a comparative perspective to derivative actions in foreign jurisdictions focusing in particular on recent developments so as to compare and explain how the law might develop. The book attempts a fundamental rethink of the content of the derivative action and its objectives. Intertwining these objectives into a cohesive model of derivative actions, the book conceptualizes the derivative action mechanism and argues that action should be taken at three parallel levels: (1) conceptual (i.e., adoption of a new framework in the guise of the ‘Functional and Focused Model’ as set out in the book); (2) strategic (i.e., employment of appropriate incentives and fee rules which advance the premises behind the Model); and (3) maintaining doctrinal consistency (i.e., clarification of the interaction between the derivative action and other remedies available to shareholders.
The Way to Reform and a New Statutory Derivative Action: Much Ado About Nothing?
Authors: Reisberg Arad
Published: January 2009

This chapter analyses the reforms of the derivative action in the UK. It begins by highlighting the deficiencies in the common law, the approach to reform, and the guiding principles for resolving the problems identified. Section 4.3 analyses the new statutory derivative action introduced by the Companies Act 2006. It provides a summary of the reform package while discussing the scope of the new derivative action and the procedural framework for the application for leave. Section 4.4 assesses critically the recent reforms, looking in particular at major possible obstacles, drawing on recent experience in foreign jurisdictions in which the derivative action has been put on a statutory footing. This analysis is meant to bring the reader forward to see the impact (in cost/benefit terms) of reforms in what proved to be a rather contentious area of reform.
A Proposed Model for Derivative Actions: the Functional and Focused Model (FFM)
Authors: Reisberg Arad
Published: January 2009

This chapter develops a model to analyse and explain the use of the derivative action referred to as the Functional and Focused Model (FFM). It is organized in two parts. Part A provides the setting. Section 5.2 discusses the role of derivative actions in the corporate governance matrix. Section 5.3 then discusses the specific role that the derivative action may play in such a constantly changing system. The various points teased out throughout the preceding discussion are finally crystallized in Part B of the chapter. First, section 5.4.1 sets out the aims of the model, followed by an outline and the policy premises underlying the FFM. Section 5.4.2 then unearths and illuminates the value of deterrence against corporate misconduct. Section 5.4.3 considers strategies that can be pursued to reverse the negative effects of those forces that weaken the social meaning of derivative actions. Subsequently, these key characteristics are reduced to practical recommendations in Section 5.4.4.
The Interrelationship between the Derivative Action and the Unfair Prejudice Remedy
Authors: Reisberg Arad
Published: January 2009

This chapter looks into the interrelationship between the Derivative Action and the Unfair Prejudice Remedy. Should the derivative action be dispensed with in favour of a single form of action, making identification of the type of wrong less significant? Alternatively, if both forms of action should be retained, should the derivative action be applicable to corporate wrongs and the unfairly prejudicial conduct action solely reserved for personal wrongs? Section 8.2 examines the history of s 994 of CA 2006. Subsequently, the arguments of assimilating the derivative and the unfair prejudice remedy into a single provision are assessed. Section 8.3 evaluates the merits of the demarcation of the two remedies. As will be seen, the assimilation of these two remedies should be resisted. Accordingly, section 8.4 explores the measures that can be introduced to clarify and simplify the interaction between the two remedies. Section 8.5 concludes.
Introduction
Authors: Brown Chester
Published: January 2009

This chapter gives a short introduction to the history of international dispute settlement by third-party adjudication. It notes that there is a gap in the existing literature, being an examination of procedure and remedies before different international courts, and an answer to the question of whether the same procedural rules obtain, and the same remedies are available, before different international judicial bodies. It presents the book's central thesis — that international courts often adopt common approaches to questions of procedure and remedies, which leads to increasing commonality in the case law of international courts. It then explains that the term ‘common law of international adjudication’ refers to the emergence of an increasingly homogeneous body of rules applied by international courts and tribunals relating to procedure and remedies. It then defines the terms ‘procedure’ and ‘remedies’. It also covers certain selected aspects of international adjudication, and reviews the jurisprudence of certain selected international courts and tribunals.
Aspects of Evidence in International Adjudication
Authors: Brown Chester
Published: January 2009

This chapter examines whether commonalities exist in the rules of evidence applied by different international courts and tribunals. It begins by considering the sources of rules of evidence in international law. These are the constitutive instruments of international courts, rules of procedure, general principles of law, and inherent powers. It then selects a number of evidential issues, being the admission of evidence, the burden of proof, and the standard of proof, and reviews whether international courts adopt similar approaches. The chapter then turns to an examination of the evidence-gathering powers of international courts, such as taking judicial notice of facts, ordering the production of evidence, making site visits, and ordering expert reports. The practice of international courts generally indicates a common approach to these issues, although the application of the rules is not completely consistent.
Power of International Courts to Grant Provisional Measures
Authors: Brown Chester
Published: January 2009

This chapter examines the power of international courts to grant provisional measures and analyses whether there is an emerging common practice. It first describes the purpose of provisional measures in international adjudication. It then considers the source of the power to grant provisional measures. Many international courts have an express power in their constitutive instruments, but several international courts have exercised the power as an inherent power. The chapter then examines the features common in the exercise of the power by a range of international courts — consideration of the question of jurisdiction over the merits of the dispute; the circumstances relevant to the granting of provisional measures; and the binding quality of provisional measures. Finally, the chapter considers the power of international courts to grant provisional measures ultra petita and proprio motu. It concludes that there is substantial commonality in the practice of international courts concerning provisional measures.