Court-Ordered Interim Measures in International Arbitration: A Comparative Approach

This paper argues that there is a distinct cross-border law concerning court-ordered interim measures in aid of international arbitration, which is made up of two key (intertwined) sources, namely: the relevant provisions of the UNCITRAL Model Law on International Commercial Arbitration and supporting case law and legislation in both Model Law states and non-Model Law states. The principles identified in this paper are assumed to qualify as general principles of law. In order for a court at the seat to grant interim relief in international arbitral proceedings the requesting party must demonstrate a prima facie case worthy of consideration, the likelihood of irreparable harm and a balance of inconvenience. There is at present no general consensus as to ex parte interim measures, with many states and national courts showing significant reluctance to grant these on account of the absence of procedural guarantees that they entail. In equal measure, in the absence of bilateral or multilateral treaties that allow national courts to recognize and enforce foreign interim measures in respect of arbitral proceedings seated abroad, states are equally reluctant to allow parties seated in other jurisdictions to approach their courts for interim relief on the ground that the other party has assets or interests there. Although the courts of some powerful nations allow for such requests, there is no general rule in this regard and none is expected in the near future

Conceptual Overlaps between Investment Protection Standards: Analysis of a Yet Unexplored Systemic Problem of ISDS

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Corporations' Contracts with ICE Have an Explicit and Implicit Duty to Protect Immigrant Detainees

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Front Matter Volume 41 Issue 2

JLC Front Matter Vol. 41 Issue 2 (Spring 2023

Going Hybrid: How Hybrid Choice of Law Clauses Can Save the CISG

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Rise and Fall of Ordinary Course Covenants and MAE Clauses: Case and Trend Analysis

In the United States, the ordinary course of business provision has received inadequate attention in the field of corporate mergers and acquisitions. As anyone in the field is probably aware, the ordinary course of business covenant (“OC Covenant”) is one of the most common provisions included in almost every merger agreement. Illustrated by the fact that there are remarkably few notable precedents for the OC Covenant, despite its prevalence in merger agreements, notions of implementations and implications of the covenant have not drawn much attention from related professionals and scholars. In turn, material adverse effect provisions (“MAE Provision”) have been “The Beatles” of mergers and acquisitions in the United States. Since its increased practical relevance from the subprime mortgage crisis, many notable precedents have since proved and confirmed that the MAE Provision’s sophisticated and complex enforcement standards made this provision extremely difficult to execute in the real world. However, in actual merger negotiations the provision has never stepped down from its celebrity status. Many influential theorists view the MAE Provision as having absolute authority in connection with risk allocation during the time from signing agreements to closing the transaction, and with such recognition in past decades, the MAE Provision holds an untouchable significance by being perceived as an attractive route to call off agreed transactions in a crisis. This article proclaims that given recent trends in contract drafting and court decisions in connection with risk allocation during the interim period between signing and closing the merger, the role of the OC Covenant has been strengthened. To support this analysis, this article will proceed as follows. In Part I, this article will introduce the general features and background for the MAE Provision and the OC Covenant. In Part II, this article will introduce relevant risk allocation theories that have been suggested to govern risk allocation in order to present the history of important theories and their developments. In Parts III and IV, this article will examine features and developments of the MAE Provision and the OC Covenant with case examinations and literature analysis. The sections will refer to the 2021 data examination that Professor Guhan Subramanian conducted by examining 1,293 merger agreements in the MergerMetrics Database. The analysis will cover current structural shapes, as well as legal interpretation standards from meaningful precedents. Finally, in Part V, this article will propose a new understanding scheme for the risk allocation structure that implements and combines the academic theories, and drafting and litigation trends

Subsequent Remedial Contract Measures: The Case for Applying Rule 407's Bar on Subsequent Remedial Measures in Breach of Contract Claims

Imagine you are preparing a new insurance coverage agreement for 2020 effective April 1, 2020. One exclusion provision from the 2019 policy in particular stands out to you. It is the microorganism exclusion, which bars coverage for losses “directly or indirectly arising out of or relating to: mold, mildew, fungus, spores, or other microorganisms of any type, nature, or description, including but not limited to any substance whose presence poses an actual or potential threat to human health.” Reviewing this exclusion provision, you believe in light of the COVID-19 pandemic it should be made crystal-clear that it includes viruses. Therefore, you add an exclusion for “losses attributable to any communicable disease, including viruses,” to the new 2020 policy. As you weather the COVID-19 pandemic, your business begins to experience litigation over your insurance policy. Your policyholders expect the 2019 agreement to cover losses attributable to the COVID-19 pandemic. To support said position, one plaintiff argues your addition of the communicable diseases exclusion in the 2020 policy supports their position that the 2019 policy covers losses attributable to the COVID-19 pandemic. Yet, you know this added language was only meant to clarify future policies, not show that the 2019 policy covered losses attributable to the COVID-19 pandemic. Whether a federal court will admit this evidence depends on the circuit in which it sits. Federal courts are divided on whether Rule 407, which bars evidence of subsequent remedial measures, applies to modified language in contractual agreements.The majority approach applies Rule 407 to contract cases because such disputes apply under the plain-meaning of Rule 407 and implicate its policy goals. On the other hand, a minority of circuits do not apply Rule 407 to contract cases because Rule 407 is written with tort-based language and the policy goals of Rule 407, such as preventing future injuries, are in their opinion not implicated in contract disputes. This article argues the majority approach, that Rule 407 applies in breach of contract cases, is the correct application for future courts to apply when tasked with this matter. Following this introductory Part I, this paper proceeds in four parts. Part II introduces the reader to Rule 407 by explaining the Rule’s history, application, and policy goals. Part III explores the split among federal courts regarding Rule 407’s applicability to contract cases. This portion articulates the rationale for both the majority and minority approaches to Rule 407 in breach of contract disputes. Part IV argues for the majority approach. The majority approach applies the plain-meaning approach to Rule 407’s text and fulfills the Rule’s policy objective. Part V displays how the Federal Rules of Evidence could be amended to conclusively adopt the majority approach for all future contract cases in the federal court system

The Right Visa at the Right Time: Proposing a Targeted Special Immigrant Visa as a Flexible Tool for Practical Immigration Reform

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Rethinking Decentralized Antitrust Regimes: A Window on the Future of Protectionism and Overregulation

Over 100 jurisdictions have a domestic competition law, making competition law one of the most widespread forms of economic regulation around the world. The existing decentralized antitrust regimes have increased transaction costs and uncertainties, enforcement conflicts, antitrust protectionism, and global overenforcement of antitrust laws. Yet international coordination has received little attention. Why? Two interest-based explanations suggest that the European Union and the United States have adopted different approaches to regulating competition, making the two leading regulators race to spread their regulatory models. Moreover, the balance of benefits under existing international legal rules continues to favor major corporations in both developed and developing countries. As a result, the developed world, particularly the United States, has viewed attempts at multilateral coordination as against its interests. This Article challenges this conventional wisdom. It argues that the increasing heterogeneity among decentralized antitrust regimes poses a larger long-term threat to the US than is commonly believed. A closer examination of the proliferation of antitrust laws demonstrates why antitrust protectionism and overregulation are not temporary and not destined to level off. In addition, as more developing countries have the capacity to prosecute multinationals and as the strictest jurisdiction has the power to set the de facto world standard, today’s positive balance of benefits will disappear tomorrow. This Article argues that the United States should reverse its hands-off approach to international antitrust coordination and instead enact proposals that place greater convergence among national antitrust regimes. It highlights why the present moment is an opportune time to initiate, but notes that the window for initiation is likely to close as developing countries acquire increased economic strength and enforcement capacity. &nbsp

Leading the Way in Payments: How Central Banks are Using Innovation to Promote Financial Inclusion and Reshape Competition

Central banks have increasingly embraced their role in advancing financial inclusion besides their more traditional goals of maintaining price and financial stability. To that end, some central banks are using not just rules and regulations but innovation through direct intervention. Pix, the instant payments scheme powered by the Central Bank of Brazil, is a case in point. It illustrates the impact a proactive central bank can have on achieving inclusion and competition in payments while flashing out elements related to the discussion about public and private participation in the payments industry. Pix indicates that central-bank protagonism in payments can be a potent tool to promote inclusion and enhance competition, notably when private actors seem unwilling or incapable of doing so by themselves. However, the legitimacy of central-bank innovative interventions in payments may be questioned if central banks do not have a clear legal authority underpinning and setting the boundaries of their activism. This article thus examines how far central banks can go with their innovative actions without overplaying their hand or displacing private initiative and ingenuity