Antisuit Injunctions and International Law

/in /by
image_pdfimage_print

Those interested in antisuit injunctions and/or corporations accountability for human rights violations should not miss Roger Alford’s post on a Second Circuit amicus brief addressing the propriety of antisuit injunctions under international law.  The amicus brief addresses an appeal of Judge Kaplan of the Southern District of New York’s preliminary injunction enjoining Ecuadorians and their lawyers from enforcing the $18 billion Ecuadorian judgment (the so called “Lago Agrio” judgment), concluding that their was a substantial likelihood that Chevron would prevail in its argument that the judgment was procured by fraud.

Australian article round-up 2011: Finance

/in /by
image_pdfimage_print

Continuing the Australian article round-up, readers may be interested in the following three articles raising points about finance:

  • Anthea Markstein, ‘The Law Governing Letters of Credit’ (2010) 16 Auckland University Law Review 138:

Letters of credit are frequently used to effect payment in commercial transactions where parties are resident in different jurisdictions. While it seems prudent for parties to give careful consideration to the governing law of these contracts, in reality, letters of credit generally make no provision for a governing law. … In attempting to find a governing law in keeping with the commercial expectations of the parties, the courts have endeavoured to apply the same law to all the contracts in the letter of credit transaction (with the exception of the underlying contract). … This article argues that finding a governing law that provides legal certainty and has a close connection to the contract is vital in determining a governing law in the absence of choice in the letter of credit context. Achieving consistency in the governing law across all the contracts, however, is only important where commercial expectations require this outcome. This article suggests that commercial expectations do not require this outcome in the context of freely negotiable letters of credit, and sets out three alternative methods for determining the governing law of a freely negotiable letter of credit. Finding a consistent method with which to determine the governing law of a letter of credit contract is of particular importance given that it is likely to have implications for tortious and restitutionary claims arising in connection with a letter of credit contract.

  • David Chaikin, ‘A Critical Examination of How Contract Law is Used by Financial Institutions Operating in Multiple Jurisdictions’ (2010) 34 Melbourne University Law Review 34:

Financial institutions operating in multiple jurisdictions are vulnerable to extraterritorial jurisdictional claims, especially under United States anti-money laundering and economic sanctions laws. A survey shows that banks licensed in Australia have revised their standard form contracts so as to reduce the risks arising from the extraterritorial enforcement of foreign laws. Under the new contracts, customers have purportedly consented ex ante to banks supplying confidential information directly to foreign states and agreed to the freezing of their bank accounts based on a possible breach of foreign law. The contractual provisions are controversial because they circumvent the legal procedures that would otherwise apply in cases of international criminal, civil or regulatory assistance. The legal efficacy and policy implications of the contractual terms are analysed.

  • The Honourable J J Spigelman AC, ‘The Global Financial Crisis and Australian Courts’ (2010) 84 Australian Law Journal 615:

Nearly two years after the collapse of Lehman Brothers, the effects of the global financial crisis are increasingly discernible in Australian courts. In this speech, Chief Justice Spigelman surveys the range of legal proceedings that have accompanied recent corporate collapses. The litigation discussed is characterised by its complexity, which is partly a consequence of the highly leveraged and interlocked nature of failed companies and investment schemes, and by the significance of cross-border issues. With respect to the latter, the crisis has highlighted the need for cross border judicial co-operation.

Second Issue of 2011’s Belgian PIL E-Journal

/in /by
image_pdfimage_print

The second issue of the Belgian bilingual (French/Dutch) e-journal on private international law Tijdschrift@ipr.be / Revue@dipr.be was just released.

The journal essentially reports European and Belgian cases addressing issues of private international law, but it also offers academic articles. This issue includes one article by Patrick Wautelet (Liège University) on International Aspects of the Franchise Contract (Le contrat de franchise – aspects internationaux).

Wedding Shopping in NYC

/2 Comments/in /by
image_pdfimage_print

On June 29th, 2011, the New York state’s lawmaker legalized gay marriage.

The law is meant to bring marriage equality to the state of New York (hence its name: the Marriage Equality Act).  This is because, the bill memo explained, “the freedom to marry is, in the words of the US Supreme Court, one the vital personal rights essential to the orderly pursuit of happiness by free people”.

But it is also expected that the law will bring some USD 311 million in revenue of all kinds to the state. A report released by the state Senate’s Independent Democratic Conference has estimated that, within three years, the state would earn in marriage license fees (3m), sales tax (22m), but also in wedding revenue and tourism (283m) and hotel occupancy taxes (259,000).

The reason why the new law would generate tourism revenue would not only be because the relatives of the future spouses would travel to New York for the ceremony. It would first and foremost be because couples living in states where same sex marriage is not allowed would come to marry in New York. The report predicts that while 21,000 couples living in New York would benefit from the new law, 3,300 couples living in surrounding states with less liberal laws would also come to marry in New York, and that more than 40,000 couples would travel to New York as a wedding destination.

Australian article round-up 2011: Insolvency

/in /by
image_pdfimage_print

Continuing the Australian article round-up, readers may be interested in the following three articles raising points about insolvency:

  • Stewart Maiden, ‘A comparative analysis of the use of the UNCITRAL Model Law on Cross-border Insolvency in Australia, Great Britain and the United States’ (2010) 18 Insolvency Law Journal 63:

UNCITRAL’s Model Law on Cross-border Insolvency has been adopted by parliaments in 18 states across six continents. Each separate implementation departs from the archetype for various reasons, principally the necessity to tailor the Model Law to fit domestic law and policy. Model Law Art 8 requires courts to have regard to the international origin of the Model Law and the desirability of uniformity when interpreting local enactments of the Model Law. However, the nuances of the foreign texts, and differences between the suites of insolvency laws of which the texts form part, mean that a study of the text and context of any foreign implementation is required before its impact on the operation of the local enactment can properly be considered. For those reasons, this article compares the implementation of the Model Law in Australia, Great Britain and the United States. It also attempts to assist the reader to understand how courts in each of the three states are likely to deal with problems presented under the Model Law.

  • Lindsay Powers, ‘Cross-Border Insolvency: The Austrailan Approach to Ascertaining COMI’ (2011) 22 Journal of Banking and Finance Law and Practice 64:
The Cross-Border Insolvency Act 2008 (Cth) (Cross-Border Act) brought to Australia the Model Law on Cross-Border Insolvency (Model Law) adopted by the United Nations Commission on International Trade Law. The spirit of the Model Law is cooperation with, and recognition of, foreign insolvency representatives. Australian courts can grant recognition even if the country of the foreign insolvency representative has not adopted the Model Law. That said, the process of recognition is not simply a “rubber stamp”. A court in Australia hearing the application for recognition must be satisfied that all the preconditions are satisfied and, if they are, what relief should be granted. From the relatively few decided cases under the Cross-Border Act, it is clear that the approach of Australian courts is accommodating, but cautious. In the recent decision Ackers v Saad Investments Co Ltd, the Federal Court undertook a careful examination of what needs to be established to satisfy one of the central concepts of the Model Law: the location of an insolvent company’s “centre of main interests” (COMI).
  • Lionel Meehan, ‘Cross Border Insolvency Law: Reform and Recent Developments in Light of the JAL Corporate Reorganisation Filing’ (2011) 22 Journal of Banking and Finance Law and Practice 40:

Japan Airlines Corporation and certain subsidiaries (together, JAL) filed for corporate reorganisation under the Japanese Corporate Reorganisation Law on 19 January 2010. JAL’s filing presents an opportunity for the insolvency community to learn more about both the Japanese Corporate Reorganisation Law and the UNCITRAL Model Law on Cross Border Insolvency (Model Law). The JAL case has generated recognition of JAL’s corporate reorganisation proceedings as “foreign main proceedings” in the United States under the American implementation of the Model Law in Ch 15 of the US Bankruptcy Code, in the United Kingdom under the Cross Border Insolvency Regulations 2006, in Australia under the Cross Border Insolvency Act 2008 (Cth), and in Canada under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36.