Corporate Governance in China: Shareholder Primacy under the Chinese Communist Party’s Influence

China, as a nominally socialist country, has a shareholder-primacy corporate governance model. Chinese company law grants shareholders strong rights, and Chinese companies have concentrated shareholding structures. As a result, shareholders can effectively dominate the board of directors and control the company. However, Chinese shareholders and companies are ultimately subject to the influence of the Chinese Communist Party (CCP). By drawing on empirical data, this article argues that Chinese corporate governance is sui generis. Shareholder primacy and party influence merge in a party-centered governance model in SOEs with party organizations (the CCP’s grassroots branches) dominating major decision-making. In private companies, shareholder primacy is the norm, and stakeholders are vulnerable to management’s exploitation and opportunism. The CCP sometimes intervenes to protect stakeholders but sometimes sides with companies. Its stance depends on its policy goals, which might vary from case to case and from time to time

New Currency, Same Story: How the CFA Franc Facilitates French Neocolonialism in West and Central Africa

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Volume 43 Issue 1 Front Matter

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The Formation of the CISG Contracts (Smart Contracts and Artificial Intelligence)

The 1980 Vienna Convention on Contracts for the International Sale of Goods (CISG) is currently the law of ninety-seven countries around the world. Part II (Formation of the Contracts) deals with the conclusion of the contract by way of the meeting of minds through offer and acceptance. CISG has been able to adapt to modern electronic means of communication such as email, despite the fact that the means of communication mentioned in the CISG are the ancient telegram and telex.When dealing with the electronic contract of sale, we are referring to those in which the offer and acceptance are made by electronic means, as derived from the rules of the offer and the acceptance under the CISG.In short, we are thinking about computers—today also mobile phones—connected to a network (internet). From this perspective, every purchase and sale contract under the CISG is capable of being concluded by electronic means following the classic and universal parameter (we find it in all legal systems in the world) of consent through the two declarations of will that give life to the contract, the offer and the acceptance. The offer and acceptance as a mechanism well present in the life of the contract and not only in its formation since other issues such as its modification or termination are observed under those parameters.The Vienna Convention has demonstrated its flexibility by adapting and applying without problems to electronic contracting. Technologies are evolving rapidly and we no longer question the validity of contracts concluded through electronic means but new and interesting perspectives emerge, as well as various legal problems that can be associated with the era of the digital economy, from the use of platforms as an intermediary in the contracting of goods or services—or simply as a meeting place or recreational or social exchange—when not as part of the commercial contracts themselves, the use of computer programs in the formation and performance of the contract, legal transactions on data, or the use of artificial intelligence in contracting.From a legal perspective, the question is whether the CISG, which is a traditional instrument of contract law, is sufficient to respond to the problems posed by the digital economy, specifically in the rise of the so-called SmartCcontracts, and the use of Artificial Intelligence (AI) in the formation of the contract

Misinterpreting Section 5(n) of the FTC Act: A Critique of the District Court’s Rulings in FTC v. Kochava

In August 2022, the Federal Trade Commission (“FTC”) commenced a lawsuit against Kochava, Inc. (“Kochava”) in the United States District Court for the District of Idaho. The FTC’s lawsuit contains a single count, which claims that Kochava, by its sale of customized geolocation data feeds that allow purchasers of those feeds to identify and track specific mobile device users at “sensitive locations,” is engaged in an “unfair” trade practice towards consumers, in violation of Section 5(a) of the FTC Act. In its press release announcing the lawsuit, the FTC explained the theory of its unfairness claim against Kochava thusly: “Kochava’s sale of geolocation data puts consumers at significant risk. The company’s data allows purchasers to track people at sensitive locations that could reveal information about their personal health decisions, religious beliefs, and steps they are taking to protect themselves from abusers. The release of this data could expose them to stigma, discrimination, physical violence, emotional distress, and other harms.” Commentators immediately recognized that the “unfairness” theory at the heart of the FTC’s lawsuit represented a departure from the FTC’s prior practice of focusing its privacy violation inquiries on whether a company’s data collection practices are “deceptive” towards consumers, due to procedural failures like inadequate privacy notices or a failure to obtain required consumer consents. As such, they rightly characterized the FTC’s action as being a groundbreaking one that could have widespread implications for businesses collecting consumers’ geolocation data, as it had the potential for prohibiting collection of geolocation data outright, rather than merely prohibiting such collection from being done deceptively. And they questioned whether the FTC could meet its burden of proving a Section 5(a) violation based on such collection efforts being “unfair” towards consumers within the meaning of Section 5. The District Court has subsequently rendered two rulings on the legal sufficiency of the unfairness theory being advanced by the FTC against Kochava, the first on May 4, 2023 (“Kochava I”) and the second on February 3, 2024 (“Kochava II” and, jointly with Kochava I, the “Kochava Rulings”). Among other issues, the Kochava Rulings address whether the FTC’s claim against Kochava is affected by Section 5(n) of the FTC Act, the first sentence of which provides that the FTC “shall have no authority under” Section 5 of the FTC Act to declare an act or practice unlawful on the grounds that such act or practice is “unfair” within the meaning of Section 5(a) “unless the act or practice [1] causes or is likely to cause substantial injury to consumers [2] which is not reasonably avoidable by consumers themselves and [3] not outweighed by countervailing benefits to consumers or to competition.” Specifically, the in the Kochava Rulings the District Court ruled that: • An intangible injury such as “invasion of privacy” can constitute “substantial injury” to a consumer within the meaning of Section 5(n)’s first prong. • An act or practice is “likely” to cause an injury to a consumer within the meaning of Section 5(n)’s first prong where it creates a “significant risk” that the consumer will incur that injury. • An act or practice is sufficiently alleged to fail the cost-benefit test inherent in Section 5(n)’s third prong merely by alleging that the cost of safeguards to prevent the consumer injury threatened by the act or practice would be “reasonable.” • Evidence sufficient to satisfy the three prongs of Section 5(n) is in and of itself sufficient to establish that the act or practice in question is “unfair” to consumers within the meaning of Section 5(a). Each of the District Court’s four above-described Section 5(n) rulings embraced an interpretation of Section 5(n) advanced by the FTC and rejected a contrary interpretation advocated by Kochava. Moreover, as described in this article, each of these rulings either represented a “first-ever” judicial ruling on the issue in question or contradicted at least one other prior judicial ruling that had already addressed that issue. As a result it is small wonder that the Kochava Rulings led one leading commentator to remark that the court’s decision “would be a game changer in the consumer protection realm, if it continues to hold water later in this case and across other courts,” and prompted a Democratic-appointed FTC Commissioner to state publicly that the Kochava Rulings’ backing of the unfairness theory advanced by the FTC in Kochava is a “very big deal” for the FTC and in the data privacy community generally. Unfortunately, as discussed in this article, the Kochava Rulings’ interpretations of Section 5(n) of the FTC Act are not only novel but also, at least in this author’s view, incorrect. Those rulings therefore stand as a “potential game changer” and as a “very big deal” for all the wrong reasons. If the District Court’s misinterpretations of Section 5(n) in FTC v. Kochava are upheld in that case as it moves forward and/or are followed in other cases by other courts around the country, the FTC will have achieved a dramatic, albeit legally indefensible, expansion of its unfairness authority under Section 5(a) not only in the consumer data privacy realm but in all other consumer contexts as well. It is vitally important, then, for courts and litigants alike to understand how badly the Kochava Rulings misinterpret Section 5(n), so they can prevent those misinterpretations from taking hold more widely and causing even more mischief than they have already caused for Kochava. This article seeks to provide such an understanding

Closing the Reverse Revolving Door: Proposed Restrictions on Employees of Contractors Seeking Government Employment

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Costly Mistakes

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Lost in Translation: Interpreting Diverging but Equally Authentic CISG Texts

There are six different authentic CISG texts, which are to be deemed equally authoritative. Despite the efforts during the diplomatic conference, the texts encompass divergencies amongst their provisions. The issue raises a question as to the uniform interpretation of the CISG. This article examines some of the specific instances of discrepancy and how to resolve them under the CISG and the Vienna Convention of the Law of Treaties. It also discusses the issue of how parties may expressly or impliedly choose under Article 6 CISG a specific authentic or nonauthentic version of the CISG to govern their contract

Digital Goods and the CISG

The digital age requires rules for the purchase and sale of digital goods. Do the traditional sales rules—codified or judge-made—still suffice for trading such goods? Only a few years ago, in 2019, the European Union enacted special norms for these sales by two Directives, although essentially restricted to transactions between businesses and consumers.1 The Member States of the European Union (EU) had to implement the norms of the Directives. For instance, the German legislator included a considerable number of new provisions into the German Civil Code (BGB); partly they are entirely new, partly they replace or modify the formerly applicable ones. The new rules have applied since January 1, 2022. This was the mandatory date on which the new law entered into force in all Member States. The following text pursues whether, in the international arena, the CISG is still fit for the digital age or also needs a digital refurbishment

Unified Law in a Fragmented World: CISG and Conformity in Global Production

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