University of Miami International and Comparative Law Review最新文献

The Low Use of Bankruptcy Procedures in Spain: Reasons and Implications for the Spanish Economy 西班牙破产程序使用率低:原因及其对西班牙经济的影响

University of Miami International and Comparative Law Review Pub Date : 2016-06-17 DOI: 10.2139/SSRN.2783666

Aurelio Gurrea-Martínez

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引用次数: 6

The Rise of Independent Directors in Australia: Adoption, Reform and Uncertainty 澳大利亚独立董事制度的兴起:采纳、改革与不确定性

University of Miami International and Comparative Law Review Pub Date : 2015-03-19 DOI: 10.2139/SSRN.2567504

L. Nottage, F. Aoun

{"title":"The Rise of Independent Directors in Australia: Adoption, Reform and Uncertainty","authors":"L. Nottage, F. Aoun","doi":"10.2139/SSRN.2567504","DOIUrl":"https://doi.org/10.2139/SSRN.2567504","url":null,"abstract":"Australia has a tradition of surprisingly large non-institutional blockholders in companies listed on the Australian Securities Exchange (ASX). This has arguably impacted on the roles and composition of boards. As outlined in Part II of this paper, for a book project on the spread of independent directors (IDs) throughout the Asian region, there has been a longstanding tension between those in Australia preferring a narrower view of directors’ roles and duties (focused on corporate performance) and those advocating a broader view (including more emphasis on risk management, which may favour smaller shareholders with less information about their firm’s activities). Nonetheless, there has been a shift since the early 1990s away from executive boards towards “monitoring” boards, with fewer members and more IDs, who are expected moreover to maintain minimum standards across a variety of roles.Yet this transition has not been rapid or particularly smooth (Part III). Following the corporate excesses of the late 1980s, in 1992 the ASX suggested the introduction of mandatory requirements for IDs. Following business opposition, it then proposed a UK-style “comply-or-explain” regime in 1994, but eventually had to settle on an even weaker disclosure regime from 1996. Only after a wave of much more serious corporate failures from around 2001, including one (One.Tel) harming very influential blockholders, did the ASX implement (from 2004) a requirement for listed companies to adopt a majority of IDs on an “if not, why not” basis. Minor revisions were made in 2007, but somewhat more stringent standards were implemented from 2014. The latter changes occurred in the shadow of some post-GFC legislative initiatives and case law that generally expanded the scope of duties owed by directors (including IDs), even though for various reasons Australia did not suffer major bank failures or a recession.As explained in Part IV, the cornerstone remains these ASX “Principles and Recommendations”, underpinned by Listing Rules (which furthermore mandate an audit committee since 2004, and a remuneration committee since 2011 albeit only for the largest 300 companies, each requiring a majority of IDs). There are comparatively and increasingly detailed criteria for assessing independence, such as whether the director has direct (or, since 2014, “family”) links with a “substantial” (5% ) shareholder. This factor differs from the US and appears to be derived from the UK, but it makes more theoretical sense in Australia given its significant blockholder tradition. Another interesting development has been a compromise reached in the 2014 ASX Principles regarding length of tenure, partly influenced by developments further afield including in Singapore and Hong Kong.Nonetheless, there is still only weak empirical evidence in Australia of positive effects from IDs, with respect to enhancing risk management and particularly corporate performance overall (Part V). A controversial economet","PeriodicalId":357173,"journal":{"name":"University of Miami International and Comparative Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131590214","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

Klaus Tiedemann: Business-Related Criminal Law in Europe: A Critical Inventory 克劳斯·蒂德曼:《欧洲与商业有关的刑法:一个重要的清单》

University of Miami International and Comparative Law Review Pub Date : 2012-11-15 DOI: 10.2139/ssrn.2176421

Edgardo Rotman

引用次数: 0

‘Surrender’ vs. ‘Extradition’: A Comparison Focused on Innovations of the European Arrest Warrant “投降”与“引渡”:以欧洲逮捕令创新为中心的比较

University of Miami International and Comparative Law Review Pub Date : 2011-06-01 DOI: 10.1007/978-3-319-07338-5_13

L. Klimek

引用次数: 1

The 'War on Terror' Slippery Slope Policy: Guantanamo Bay and the Abuse of Executive Power “反恐战争”的滑坡政策:关塔那摩湾和行政权力的滥用

University of Miami International and Comparative Law Review Pub Date : 1900-01-01 DOI: 10.2139/SSRN.1004102

M. Pereira

{"title":"The 'War on Terror' Slippery Slope Policy: Guantanamo Bay and the Abuse of Executive Power","authors":"M. Pereira","doi":"10.2139/SSRN.1004102","DOIUrl":"https://doi.org/10.2139/SSRN.1004102","url":null,"abstract":"On September 11, 2001, the United States, the most powerful democracy in the world, was struck by a horrible event: aircraft hijackers' attacks to the heart of the City of New York put an end to the lives of 2,973 innocent civilians. An international terrorist organization, Al Qaeda, took responsibility for the act. In response to the attacks, the U.S. Government Executive branch put in place a series of highly controversial procedures. Amongst these procedures, the Executive branch claimed authority to detain indefinitely individuals who were arbitrarily labeled as enemy-combatants. In light of the foregoing events, the central goal of this Article is to assess the legitimacy of current presidential policies toward the detainees held in Guantanamo. Specifically, I will analyze the dangers of a system that allows equivalent detentions for the following vastly different groups: 1) those detained and yet to be adjudged enemy combatants; 2) those adjudged to be enemy combatants, who may or may not be subject to military commissions; and 3) those adjudicated and found not be enemy combatants at all. The Article, however, will do more than analyze the nature of these detentions. On the one hand, it will question the disparate treatment visited upon non-citizen enemy combatants, as opposed to the constitutional safeguards provided to U.S. citizen enemy-combatants. Additionally, with regard to the authorization of this treatment, this Article will challenge the U.S. Supreme Court to meaningfully accept the burden of ensuring that constitutionally required separation of powers are observed between the branches. Part I of this Article presents an analysis of the Executive actions which led to the creation of Guantanamo Bay and the use of Military Commissions, and questions whether the Executive branch holds the power to undertake such actions in light of the principles of separation of powers and checks and balances among the three branches of Government. In developing the analysis of relevant congressional actions, Part II will argue that separation of powers principles are at heart of the organization and function of the U.S. Constitution. This Part will further challenge these congressional actions as part of a discussion about whether certain congressional delegations of legislative power to the President were appropriate. Part III will develop a discussion on the critical role the Judiciary plays in directing a more active congressional response or 'check' on presidential actions. This Article suggests that such a role has not been satisfied to the level the Founders intended. A critical reading of the Federalist Papers evinces that the Founders spelled out the necessity that checks and balances be preserved. By virtue of the U.S. Supreme Court review of the substance of legislation Congress enacted, the Framers' aimed at fostering a system in which individuals' liberties should remain protected as enunciated in the Constitution. This part will then ","PeriodicalId":357173,"journal":{"name":"University of Miami International and Comparative Law Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124431109","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

Hostis humani generis : piracy, terrorism and a new international law 对人类的敌意:海盗、恐怖主义和新的国际法

University of Miami International and Comparative Law Review Pub Date : 1900-01-01 DOI: 10.14288/1.0077587

Douglas R. Burgess

{"title":"Hostis humani generis : piracy, terrorism and a new international law","authors":"Douglas R. Burgess","doi":"10.14288/1.0077587","DOIUrl":"https://doi.org/10.14288/1.0077587","url":null,"abstract":"In order to facilitate the pursuit and prosecution of terrorists worldwide, and to ensure upon capture that they receive equitable treatment under the law, a new international law of terrorism must be created. This law must provide a universal definition of terrorism, include a list of terrorist offences, offer guidelines for international pursuit and capture by states, and give the parameters of domestic and international jurisdiction. This thesis argues that the crime of terrorism be based on the existing international crime of piracy, most particularly with regard to pirates' definition as hostis humani generis, enemies of the human race. Such definition would also allow universal jurisdiction over terrorist crimes, as well as distinguishing terrorists as international criminals from legitimate, politically-motivated persons such as insurgents and revolutionaries, and from crimes committed by the state itself. Moreover, this thesis demonstrates that piracy and terrorism are not separate crimes under the law, but inextricably bound in both legal and historical precedent. A recognition of terrorism as a crime of piracy not only has felicitous effects in determining future prosecutions, it also gives terrorism its correct definition in international law.","PeriodicalId":357173,"journal":{"name":"University of Miami International and Comparative Law Review","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127091428","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: 19

Combating Terrorism at Sea: the Suppression of Unlawful Acts against the Safety of Maritime Navigation 打击海上恐怖主义:制止危害海上航行安全的非法行为

University of Miami International and Comparative Law Review Pub Date : 1900-01-01 DOI: 10.1163/EJ.9789004164277.V-594.13

Helmut Tuerk

引用次数: 18