Business Law International January 2010
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Foreign Sovereign Immunity During the New Nationalisation Wave
Tom McNamara
The global financial crisis of 2008–2009 greatly increased economic intervention by both industrialised and non-industrialised states. States took partial or total public ownership of many formerly private enterprises, particularly in the financial, insurance and automobile sectors, through nationalisations, expropriations, bailouts, recapitalisations, investments and asset protection schemes. These changes have resulted in the creation of many new state enterprises. This article focuses on foreign sovereign immunity considerations with respect to recent state economic intervention. The author traces the historical development of state immunity law and analyses the scope of the US Foreign Sovereign Immunities Act, state immunity approaches in other jurisdictions and multilateral state immunities treaties. The author posits that recent state economic intervention is likely to result in more foreign sovereign immunity issues surfacing in international transactions and litigation. The article describes some of the legal implications.
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US Class Actions with Non-US Citizens as Class Members: Fairness Issues Considered
Daniel P Shapiro and Gail H Kim
With the continuing expansion of international commerce, it is inevitable that a growing number of US class action lawsuits will involve classes of plaintiffs that include non-US litigants. These non-US class members, however, may also be able to bring their own individual lawsuits under the laws of their home countries against the same defendants for the same conduct, regardless of the outcome of the US class action. These 'second bite' lawsuits present new issues of fundamental fairness for defendants. As this new jurisprudence develops, US courts should keep in mind the basic procedural protections for defendants that have always been part of US class litigation.
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A Legal Analysis and Practical Application of the PRC Enterprise Bankruptcy Law
John J Rapisardi and Binghao Zhao
As the global recession strikes China, China's Enterprise Bankruptcy Law (EBL) is being tested by a wave of insolvencies. This article provides an in-depth examination of the EBL more than two years after its promulgation. The article initially discusses two fundamental, well-founded principles of bankruptcy law that have been recognised and adopted by the EBL. The third part of the article then describes and analyses the fundamental challenges for the EBL and the PRC bankruptcy professionals, for example: the ambiguities of the EBL itself; lack of transparency of the PRC bankruptcy regime; and the absence of the debtor-in-possession (DIP) financing mechanism. The fourth part of the article goes on to examine, in detail, the roles and motivations of key participants in PRC bankruptcy cases, including the People's Court, the bankruptcy judge, the administrator and the DIP. The fifth section offers three China-related bankruptcy case studies before the concluding sixth part.
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Regulation of International Consumer Contracts in the Americas
Paula Serra Freire
Consumer protection is one of the pressing issues in the field of international private law. There is no doubt about the importance of having rules in place that are protective to the consumer. However, consumers are not the only group involved. Businesses all over the world are already dealing with the changes those rules brought about. As the Organization of American States has selected consumer protection as one of the subjects for its next conference on international law, it is imperative that both consumers and businesses understand the proposals that might become the protective rules applicable to international consumer contracts among Member States.
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CASE NOTE
Contractual Damages – Remoteness of Damage and Assumption of Liability
Andrew Chew and Geoff Wood
The House of Lords in
Transfield Shipping Inc v
Mercator Shipping Inc ('
The Achilleas') recently considered the law on remoteness of damage. Lord Hoffmann (and Lord Hope) reformulated the traditional
Hadley v
Baxendale test for remoteness such that a party will be held liable for another party's loss (even if it was of a nature that fell within the so-called first limb of
Hadley v
Baxendale), only if it can be established on the evidence through interpreting the contract as a whole that the loss was of a nature that the party had 'assumed responsibility' for. The article discusses the likely implications of
The Achilleas case.
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