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What Does the Transnationalisation of the Commercial Contract Mean? Is There a New Model and Are There Minimum Standards? Is There a Law and Economics Perspective? 商务合同的跨国化意味着什么?有没有新模式，有没有最低标准?有法律和经济学的视角吗?
LSN: Law & Economics: Private Law (Topic) Pub Date : 2017-10-19 DOI: 10.2139/ssrn.3055808
J. Dalhuisen
{"title":"What Does the Transnationalisation of the Commercial Contract Mean? Is There a New Model and Are There Minimum Standards? Is There a Law and Economics Perspective?","authors":"J. Dalhuisen","doi":"10.2139/ssrn.3055808","DOIUrl":"https://doi.org/10.2139/ssrn.3055808","url":null,"abstract":"The subject of this contribution is the model of the professional contract as it increasingly must operate in the international flows of goods, services, money, information and technology, which flows are now far larger than any domestic ones as manifested in particular in international supply, production and distribution chains and in international finance. Legally to continue to require the cutting up of those flows and the transactions therein into domestic pieces in the hope that they together present a proper legal framework for these economically integrated activities is no longer rational if only because these domestic laws were never made for them.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129223368","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
International Arbitration as Private or Public Good 国际仲裁是私人的还是公共的
LSN: Law & Economics: Private Law (Topic) Pub Date : 2017-07-27 DOI: 10.2139/ssrn.3019557
R. Michaels
{"title":"International Arbitration as Private or Public Good","authors":"R. Michaels","doi":"10.2139/ssrn.3019557","DOIUrl":"https://doi.org/10.2139/ssrn.3019557","url":null,"abstract":"This chapter goes at the private and public nature of international arbitration in a manner different from the usual one. It asks not whether arbitration is private or public law, which remains a problematic categorical distinction, but instead whether it is a private or public good. The distinction between private goods and public goods, developed in economics, promises new insights for an assessment of arbitration, too. The chapter first introduces that economic distinction between private and public goods. It then demonstrates the ways in which adjudication by courts combines elements of private and public goods, before finding a parallel combination of private and public good aspects in international arbitration. The discussion will concern mainly commercial arbitration, though investment arbitration will also be considered to some extent as well. The chapter ends by laying out some implications.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116900223","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 Forfeiture of Coverage Defenses Rule: An Economic Analysis 丧失覆盖防御规则:一个经济学分析
LSN: Law & Economics: Private Law (Topic) Pub Date : 2017-07-25 DOI: 10.2139/ssrn.2919372
T. Baker, E. Friedman, Kyle D. Logue
{"title":"The Forfeiture of Coverage Defenses Rule: An Economic Analysis","authors":"T. Baker, E. Friedman, Kyle D. Logue","doi":"10.2139/ssrn.2919372","DOIUrl":"https://doi.org/10.2139/ssrn.2919372","url":null,"abstract":"In liability insurance, the duty to defend is broader than the duty to cover. Thus it is possible that an insurer that has a duty to defend a suit may not have the duty to cover the policyholder's liabilities in the suit. However, if the penalty for a breach of the duty to defend is limited to actual legal costs spent by the defendant, the insurer may have an incentive to refuse to defend, even when the duty to defend is clear. This occurs because the insurer will not internalize the consequences of an inadequate defense when it ultimately can avoid covering the claim. If the penalty for a breach of the duty to defend also includes a forfeiture of the right to contest coverage of the claim, the insurer will never refuse to defend when the duty to defend is clear, but such a penalty could induce an insurer to defend even when it has a good legal argument against the duty to defend. We argue that tying a forfeiture of the right to assert any defense of coverage to an unreasonable refusal to defend can give an insurer incentives to internalize the cost of an inadequate defense while allowing the insurer to make reasonable legal arguments challenging a duty to defend.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116842375","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
Compensation for Loss of Work Income in Personal Injury Cases 人身伤害案件工作收入损失赔偿
LSN: Law & Economics: Private Law (Topic) Pub Date : 2017-07-07 DOI: 10.2139/ssrn.3014785
L. Danziger, E. Katz
{"title":"Compensation for Loss of Work Income in Personal Injury Cases","authors":"L. Danziger, E. Katz","doi":"10.2139/ssrn.3014785","DOIUrl":"https://doi.org/10.2139/ssrn.3014785","url":null,"abstract":"What is the appropriate lump-sum compensation for loss of work income in personal injury cases? Since generally future work income is not known with certainty, compensation for its loss must be based on statistical considerations. Typically, courts have based awards on mean or median work income, but apparently without meaningful grounding in economics. We use economic theory to address this issue. We find that the relation between the appropriate compensation and the mean and median work income depends on the uncertainties of work income and of consumption facilitated by the lump-sum compensation awarded, as well as the degree of risk aversion. Since the consumption uncertainty associated with compensation generally exceeds that associated with work income, we conclude that the lump-sum compensation should exceed mean and therefore median work income.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124522160","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
Justice, Fault, and Efficiency in Contract Law 合同法中的正义、过错与效率
LSN: Law & Economics: Private Law (Topic) Pub Date : 2017-06-28 DOI: 10.2139/ssrn.2994325
Larry A. DiMatteo
{"title":"Justice, Fault, and Efficiency in Contract Law","authors":"Larry A. DiMatteo","doi":"10.2139/ssrn.2994325","DOIUrl":"https://doi.org/10.2139/ssrn.2994325","url":null,"abstract":"This article explores some of the core concepts that underlie contract law. It rejects the feasibility of a uniform theory of contract law including a critique of the economic analysis of contract law. The importance of efficient contract rules and efficient contracts is not disputed, but efficiency’s explanatory power is limited due to the breadth of contract law, as well as the complexity and dynamism of modern contracting. Behavioral law and economics is introduced as a method for making law and economics more predictive of real world contracting. The article selects three core principles for analysis—justice, fault, and efficiency that help explain the essence of contract law. It also reflects on the tension between freedom of contract and paternalism.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"17 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120996241","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
Patent 'Trespass' and the Royalty Gap: Exploring the Nature and Impact of Patent Holdout 专利“侵权”与版税差距:探索专利抵制的性质和影响
LSN: Law & Economics: Private Law (Topic) Pub Date : 2017-06-06 DOI: 10.2139/ssrn.2981577
Bowman J. Heiden, N. Petit
{"title":"Patent 'Trespass' and the Royalty Gap: Exploring the Nature and Impact of Patent Holdout","authors":"Bowman J. Heiden, N. Petit","doi":"10.2139/ssrn.2981577","DOIUrl":"https://doi.org/10.2139/ssrn.2981577","url":null,"abstract":"This paper studies the problem of patent holdout. Part I reviews the economic theory of holdout, with a specific emphasis on patents. It shows that the ordinary concept of holdout refers to the non-transacting conduct of a property owner, and that “patent trespass” is a better characterization for technology implementers’ attempt to evade the conclusion of licensing agreements. Part II proposes a definition and provide illustrations of patent trespass. To that end, the paper relies on the qualitative data gathered during interviews with industry stakeholders as well as on an analysis of holdout in case-law. Part III exposes the factors that determinatively make patent trespass transactional, systematic and/or systemic. Part IV records the results of of a quantitative study of patent trespass, based on the intuitions that arose from received theory and qualitative interviews as exposed in previous parts. The preliminary empirical results show a correlational link between the nature of patent trespass and the heterogeneity of market actors and markets. In particular, MNCs operating in developed markets seem to primarily deploy extensive delaying tactics with the main goal of reducing their royalty payments, while large firms in emerging markets (LFE) and small to medium-sized enterprises (SMEs), especially the “long tail” of microvendors, seek to avoid payment altogether.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132757853","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: 17
Products Liability and the Internet of (Insecure) Things: Should Manufacturers Be Liable for Damage Caused by Hacked Devices? 产品责任和(不安全的)物联网:制造商应该为被黑客攻击的设备造成的损害负责吗?
LSN: Law & Economics: Private Law (Topic) Pub Date : 2017-04-19 DOI: 10.36646/mjlr.50.4.products
Alan Butler
{"title":"Products Liability and the Internet of (Insecure) Things: Should Manufacturers Be Liable for Damage Caused by Hacked Devices?","authors":"Alan Butler","doi":"10.36646/mjlr.50.4.products","DOIUrl":"https://doi.org/10.36646/mjlr.50.4.products","url":null,"abstract":"While the application of products liability to insecure software is a frequently-discussed concept in academic literature, many commentators have been skeptical of the viability of such claims for several reasons. First, the economic loss doctrine bars recovery for productivity loss, business disruption, and other common damages caused by software defects. Second, the application of design defects principles to software is difficult given the complexity of the devices and recent tort reform trends that have limited liability. Third, the intervening cause of damage from insecure software is typically a criminal or tortious act by a third party, so principles of causation might limit liability for manufacturers.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127963734","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: 5
The Anatomy of European Investment Fund Law 欧洲投资基金法剖析
LSN: Law & Economics: Private Law (Topic) Pub Date : 2017-04-12 DOI: 10.2139/SSRN.2951681
D. Zetzsche
{"title":"The Anatomy of European Investment Fund Law","authors":"D. Zetzsche","doi":"10.2139/SSRN.2951681","DOIUrl":"https://doi.org/10.2139/SSRN.2951681","url":null,"abstract":"As of 31 December 2016 investment fund managers in the European Union (EU) and the European Economic Area (EEA) managed more than €14trillion, equivalent to 33.2% of worldwide investment fund assets. More importantly all asset classes and fund types experience significant growth for more than a decade. While outside of Europe most commentators point to the UCITS brand’s success to explain the development, little is known about the legal fundamentals underpinning European investment law. This article holds that at least to some extent the remarkable growth story of European investment funds is due to unique features of European investment fund law and regulation. Drawing on this hypothesis, this article introduces to the principles of European investment law, summarizes the most important legislation and highlights to what extent European investment law differs from other fund management legislation. \u0000After providing an overview of the relevant sources of law, we introduce to the regulatory objectives of European investment law. Next we explain the pillars of European investment fund law, including the investment triangle, and the joint basis of European manager, depositary, sales and product regulation. We go on to discuss the crucial definitions of and difference between UCITS and AIF, prior to unvealing the unique features of the UCITSD, and hence the UCITS product. We conclude with an analysis of the future trajectory of European’s investment fund law.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117209565","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: 6
Behavioural Law and Economics As Litmus Test 行为法和经济学作为试金石
LSN: Law & Economics: Private Law (Topic) Pub Date : 2017-04-03 DOI: 10.2139/ssrn.2973907
P. Cserne
{"title":"Behavioural Law and Economics As Litmus Test","authors":"P. Cserne","doi":"10.2139/ssrn.2973907","DOIUrl":"https://doi.org/10.2139/ssrn.2973907","url":null,"abstract":"This paper discusses a few meta-theoretical questions about Behavioural Law and Economics (BLE) in order to better understand both its popularity and the criticisms it has received. It argues that BLE provides a litmus test to reveal dividing lines, manifest latent tensions and polarize debates between various camps or traditions in both positive and normative (law and) economics, thus making epistemic and methodological commitments of economists more visible. These dividing lines include the methodological character of rationality assumptions, naturalistic and mentalist models of human behaviour, and the normative force and relevance of individual preferences, autonomy and objective metrics of welfare.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116188515","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: 5
Law, Market, and Marketization 法律、市场与市场化
LSN: Law & Economics: Private Law (Topic) Pub Date : 2017-01-15 DOI: 10.6092/ISSN.2531-6133/6356
Robin Paul Malloy
{"title":"Law, Market, and Marketization","authors":"Robin Paul Malloy","doi":"10.6092/ISSN.2531-6133/6356","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/6356","url":null,"abstract":"Marketization is a process occurring in many transitional economies as countries seek to adjust their legal systems to facilitate broader market participation while expanding global trade. This essay sets out one way of understanding this process by focusing on the relationship among, law, markets, and marketization.  It identifies and explains basic legal requirements for marketization and links these to a need to transform legal thinking by integrating a greater understanding of economics into both law and public policy.","PeriodicalId":162065,"journal":{"name":"LSN: Law & Economics: Private Law (Topic)","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127132117","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
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