Litigation & Procedure eJournal最新文献_第7页

The Prospect of Enforcement of Hague Arbitration Awards Against State-Controlled Companies in the United States and the United Kingdom 美国和英国对国有控股公司执行海牙仲裁裁决的前景

Litigation & Procedure eJournal Pub Date : 2015-12-15 DOI: 10.2139/ssrn.2706250

D. Gololobov

{"title":"The Prospect of Enforcement of Hague Arbitration Awards Against State-Controlled Companies in the United States and the United Kingdom","authors":"D. Gololobov","doi":"10.2139/ssrn.2706250","DOIUrl":"https://doi.org/10.2139/ssrn.2706250","url":null,"abstract":"In 2014 the Permanent Arbitration Court in The Hague made unprecedented awards totalling US $50 billion against the Russian Federation. The awards crowned more than nine years of arbitration proceedings initiated by the former shareholders of the liquidated oil company Yukos. Although the former shareholders of Yukos represented by the GML Group declared their intention to only enforce the awards against the assets of the Russian state, the lack of assets not covered by state immunity inevitably opens the possibility of enforcement of the awards against the assets owned by the Russian majors controlled by the state. Due to its involvement in the Yukos case, Rosneft, the biggest Russian oil company, will undoubtedly be the first and the main target of such enforcement. This article aims to examine whether the former shareholders of Yukos could succeed in enforcement of foreign arbitration awards in the two main jurisdictions: the United Kingdom and the United States. The article examines the existing legal tests applicable in enforcement proceedings in these jurisdictions to state-controlled companies by considering the corporate structure of Rosneft and its business operations. The findings of the research are widely applicable to the other state-controlled Russian companies.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"117 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124212642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

Collective Redress in EU: Can Pitfalls of US Class Actions Be Avoided? At What Cost? 欧盟集体救济:能否避免美国集体诉讼的陷阱?代价是什么?

Litigation & Procedure eJournal Pub Date : 2015-10-16 DOI: 10.2139/ssrn.2675050

K. Zajc, Jaka Cepec

引用次数: 1

The Landscape of Civil Litigation in State Courts 在州法院民事诉讼的景观

Litigation & Procedure eJournal Pub Date : 2015-10-01 DOI: 10.2139/ssrn.2700745

Paula Hannaford Agor, Scott E. Graves, S. S. Miller

{"title":"The Landscape of Civil Litigation in State Courts","authors":"Paula Hannaford Agor, Scott E. Graves, S. S. Miller","doi":"10.2139/ssrn.2700745","DOIUrl":"https://doi.org/10.2139/ssrn.2700745","url":null,"abstract":"The Landscape of Civil Litigation of State Courts examined case characteristics and outcomes for civil cases disposed during a one-year interval from all courts exercising jurisdiction over civil cases in 10 urban counties in the United States. This report is the first significant multi-jurisdiction study of civil caseloads since the 1992 Civil Justice Survey of State Courts, and is more comprehensive than the 1992 study insofar that it examined the entire civil caseload rather than just cases filed in general jurisdiction courts. The Landscape dataset consisted of 925,344 cases, which reflects approximately 5% of civil caseloads nationally. Key findings: more than half of the Landscape cases were low-value debt collection, landlord/tenant, and small claims cases; three-quarters of the judgments entered in the Landscape cases were $5,200 or less; most cases were resolved through an administrative process rather than an adversarial proceeding; and at least one party was self-represented in more than three-quarters of the cases. These findings offer a dramatically changed picture of civil caseloads compared to two decades ago and to perceptions held by many civil trial lawyers and judges.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122580498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 20

Empirical Studies of Claim Construction 索赔构建的实证研究

Litigation & Procedure eJournal Pub Date : 2015-09-15 DOI: 10.4337/9781789903997.00049

Jonas Anderson, Peter S. Menell

{"title":"Empirical Studies of Claim Construction","authors":"Jonas Anderson, Peter S. Menell","doi":"10.4337/9781789903997.00049","DOIUrl":"https://doi.org/10.4337/9781789903997.00049","url":null,"abstract":"Patent claims define the scope of the patent right and hence are central to the operation of the patent system. Patent prosecutors devote substantial effort to crafting patent claims so as to maximize the scope of their right without “reading on” prior art (and thereby defeating novelty). Businesses seeking to enter a technology marketplace must be careful to avoid encroaching patent claims. Thus, when patentees enforce their rights, the interpretation of claim boundaries guides both validity and infringement analysis. Following the Supreme Court’s decision in Markman v. Westview Instruments (517 U.S. 370 (1996)), holding that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court,” district judges began the practice of construing patent claims in advance of trial following so-called “Markman” hearings. These constructions became subject to appellate review after the trial or summary judgment ruling. The Markman decision thus opened a valuable window into an important facet of patent law and the litigation process. This has led to a wide range of empirical studies examining: (1) reversal rates; (2) the sources and methodologies that judges employ in construing patent claims; and (3) appellate behavior generally. This chapter examines the hypotheses underlying these studies, the data used, the empirical methods deployed, and the principal results. It also suggests directions for further research.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127660264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

The Enforcement of Settlement and Jurisdiction Agreements and Parallel Proceedings in the European Union 欧盟和解和管辖权协议的执行及并行程序

Litigation & Procedure eJournal Pub Date : 2015-06-01 DOI: 10.2139/SSRN.2748292

Mukarrum Ahmed

{"title":"The Enforcement of Settlement and Jurisdiction Agreements and Parallel Proceedings in the European Union","authors":"Mukarrum Ahmed","doi":"10.2139/SSRN.2748292","DOIUrl":"https://doi.org/10.2139/SSRN.2748292","url":null,"abstract":"This article examines the private law enforcement of English settlement and jurisdiction agreements where pre-emptive parallel proceedings have been commenced in the courts of another EU Member State. It will be argued that in The Alexandros T the UK Supreme Court adopted a narrow and instrumental ‘mirror images’ interpretation of the ‘same cause of action’ issue in Article 27 of the Brussels I Regulation which allowed the English and the Greek proceedings to continue in parallel. In cases where the strict tripartite test of Article 27 is not met, Article 28 with its discretionary power to stay in case of related actions is available as a more flexible alternative. It will be argued that the exercise of the discretion to stay proceedings under Article 28 of the Brussels I Regulation was legitimately denied effect in order to accord deference to jurisdictional party autonomy. The Court of Appeal’s decision clarifying that the claims for declarations and damages for breach of exclusive jurisdiction agreements are not in breach of EU law will not be the final word on this contentious and as yet unresolved issue. Any argument supporting the enforcement of the private law rights and obligations of the parties to the jurisdiction or settlement agreement may be deemed by the CJEU as necessarily infringing the principle of effectiveness of EU law (effet utile) and the principle of mutual trust which animates the multilateral jurisdiction and judgments order of the Brussels I Regulation.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125231874","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Law and Economics of Litigation 诉讼法与经济学

Litigation & Procedure eJournal Pub Date : 2015-06-01 DOI: 10.2139/SSRN.2613145

Bruce H. Kobayashi

{"title":"The Law and Economics of Litigation","authors":"Bruce H. Kobayashi","doi":"10.2139/SSRN.2613145","DOIUrl":"https://doi.org/10.2139/SSRN.2613145","url":null,"abstract":"This chapter examines the basic model of the law and economics of litigation. Because the Rules of Civil Procedure and the Economics of the Litigation/Settlement decision are covered in separate chapters of this volume, this chapter will focus on private civil litigation, in particular the litigation value of a lawsuit and the incentives generated for filing a suit. The chapter begins with the simple one-stage single plaintiff/single defendant investment model of litigation, and sets out the conditions for filing, default, settlement, and litigation. The analysis then examines the effects of litigation cost and fee‐shifting as well as the effects of percentage contingency fee arrangements within the standard one‐stage model.The model is then modified to take into account sequencing and option value. We show how litigation with multiple stages and the revelation of information alter the investment value of litigation, as well as the effects of litigation reform proposals such as fee‐shifting. Finally, the chapter discusses third party or external effects. We examine how these additional complications affect the outcome of litigation, the viability of a lawsuit and the predictions of the standard model of litigation.This chapter is not intended to be a comprehensive overview of economic analyses of litigation and civil procedure (See Cooter & Rubinfeld (1989), Kobayashi & Parker (2000), Spier (2007)). Rather, this aim of this chapter is to set out the basic mechanics of the law and economics of private civil litigation, and examine how a more robust examination of sequential decision‐making in litigation alters some of the basic predictions of the simple model.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122172976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

The Favoring Plaintiff Fee-Shifting Rule in Europe: An Alternative to Legal Aid in Financing Civil Litigation 欧洲有利于原告的费用转移规则:民事诉讼融资法律援助的一种选择

Litigation & Procedure eJournal Pub Date : 2015-05-28 DOI: 10.2139/ssrn.2611608

Filippo Rodà

引用次数: 0

Do Audit Report Disclosures Lead to Increased Liability Exposure? An Investigation of Jurors’ Consideration of Auditors’ Disclosure of Significant Deficiencies in Internal Control 审计报告披露会导致负债风险增加吗?陪审员对审计师披露内部控制重大缺陷的考虑调查

Litigation & Procedure eJournal Pub Date : 2015-03-27 DOI: 10.2139/ssrn.2586128

J. Alderman

{"title":"Do Audit Report Disclosures Lead to Increased Liability Exposure? An Investigation of Jurors’ Consideration of Auditors’ Disclosure of Significant Deficiencies in Internal Control","authors":"J. Alderman","doi":"10.2139/ssrn.2586128","DOIUrl":"https://doi.org/10.2139/ssrn.2586128","url":null,"abstract":"Proposals for increased transparency and disclosure within audit reports are consistently met with conflict. Some suggest that auditor disclosures increase liability exposure for auditors, and should be the responsibility of management. Others suggest that such disclosures are beneficial to the users of the financial statements. Currently, the PCAOB is proposing a requirement for increased disclosure within the audit report on financial statements. This study proposes a similar requirement within the Section 404 auditor’s report on internal controls. A 2x2 between-subjects experiment manipulated the disclosure level (disclosed/not disclosed) and the auditability of the significant deficiency in controls (less auditable/more auditable) for a sample of 93 jury-qualified individuals. Results indicate that auditors may experience benefits of decreased liability exposure when they provide additional disclosure within the Section 404 report on internal controls. However, these favorable conditions are only present when the auditor discloses a deficiency in internal controls that is more auditable (less subjective), and not when the control is less auditable (more subjective). Results suggest that auditors are perceived as more blameworthy for their inaccurate judgments in subjective situations, and that this perception cannot be overcome by providing a disclosure within the 404 report. Implications for standard setters, auditors, and regulators are discussed.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115360073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

Litigation with Judgment Proof Defendants 有判决证明被告的诉讼

Litigation & Procedure eJournal Pub Date : 2015-01-27 DOI: 10.2139/ssrn.2556300

A. Farmer, Paul Pecorino

引用次数: 0

The Poker-Litigation Game 扑克诉讼游戏

Litigation & Procedure eJournal Pub Date : 2015-01-25 DOI: 10.2139/ssrn.2193993

E. Guerra-Pujol

引用次数: 3