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Cross-Border Mergers: Is India Ready? Lessons from the US and EU
Get PDFIndian corporate law now permits both inbound and outbound crossborder mergers. Since India broadly follows the incorporation theory, it is now possible that the country could be part of a market for incorporation/reincorporation consisting of countries following similar corporate laws. But India, like most other big countries, does not have the right incentives to develop itself as a serious player in such a market. Overall, with the current set of incentives and laws, India is unlikely to emerge as a reincorporation destination.
While permitting cross-border mergers, the Indian law envisages that merger schemes may provide for issuing depository receipts to the merging companies\u27 foreign shareholders to address their concerns. However, attempting to extend Indian securities law to the resultant foreign companies through depository receipts will be onerous, and it would amount to dilution of the incorporation theory that India follows. As a result, it will make a cross-border merger less attractive for the directors. Further, Indian foreign exchange laws put excessive restrictions on the merging companies so that the companies will find cross-border mergers neither desirable nor viable.
Both the US and EU experiences would show that a jurisdiction\u27s approach towards takeover defenses influences the promoters\u27 decision on where to incorporate their companies. A jurisdiction that affords more options to defend hostile takeover tends to be the choice of company promoters. Although it does not matter to controlled companies seeking to reincorporate in another jurisdiction, it can be a serious consideration if the promoters do not have a controlling stake. Similarly, the availability of takeover defenses will influence mergers in which the stake of the controllers undergoes dilution. Because India is a country that does not offer any takeover defenses, in a cross-border merger, the dominant tendency of those promoters who do not have a controlling stake would be to avoid India as a destination jurisdiction
Treaty Validity After Diplomatic Cutoff: The Case of the Taiwan-Panama Free Trade Agreement
Get PDFIn view of the opposing positions of Taiwan and Panama, this paper intends to examine the legal status of the Taiwan-Panama FTA after the termination of diplomatic relations between these two countries. This paper argues that the severance of diplomatic relations does not affect the legal relations of Taiwan-related FTAs. This paper puts forward two arguments in support of the continuous legal validity of the Taiwan-Panama FTA from the perspectives of public international law and the law of the World Trade Organization (WTO). First, as the law of treaties provides, the severance of diplomatic relations shall not affect the treaty relations of the parties concerned, as codified in Article 63 of the Vienna Convention on the Law of Treaties (VCLT).5 According to this rule, which presupposes the existence of the states concerned, legal relations established by treaties and diplomatic ties are legally independent.6 Therefore, breaking off diplomatic relations does not affect treaty relations. However, in light of the extinction of international legal personality, one may argue that if derecognition of a state is the underlying rationale of the severance of diplomatic relations, the treaties between the parties would cease to have effect. For Panama, this reasoning may serve its purpose. Without doubt, Taiwan will never accept that recognition by Panama defines its statehood. Taiwan considers itself a state under international law, regardless of Panama\u27s recognition. Alternatively, even if one accepts that in the context of Taiwan-Panama relations, Taiwan would no longer be considered a state, the Taiwan-Panama FTA continues to have legal effect by virtue of Taiwan\u27s status of separate customs territory, as evidenced by its membership in the WTO. In this context, Taiwan, as a separate customs territory, can be qualified as an other subject of international law in terms of Article 3 of the VCLT.
Against this backdrop, this paper is arranged as follows. Part I presents the factual background relevant to the current dispute. At the outset, it explores how Taiwan, step-by-step, abandoned the claim to be the legitimate government of China. It reveals why long-term TaiwanPanama relations may no longer stand for China-Panama relations. Part I also sets forth the development of the Taiwan-Panama FTA. Part II addresses the relevant issues from the perspective of general international law and reviews the ruls pertaining to treaties governing the severance of diplomatic relations, especially where derecognition, or withdrawal of recognition, is a factor. Indeed, the rupture of diplomatic relations and withdrawal of recognition are legally independent. Yet, in light of Taiwan\u27s impasse in international relations, severance of diplomatic relations with Taiwan is generally an expression of derecognition. Thus, Part II examines whether Panama\u27s derecognition entailed extinction of Taiwan\u27s international legal personality and resulted in the termination of the FTA in 2017.7 Part III approaches this issue in the WTO context and further examines the implications of Taiwan\u27s WTO membership. Based on the foregoing findings, Part IV concludes with remarks on why Panama\u27s revocation of recognition of Taiwan as a state does not mean the end of the Taiwan-Panama FTA
Mitigating the Effects of Intellectual Property Colonialism on Budding Cannabis Markets
Get PDFGlobalization has reduced barriers to trade, communication, and understanding, opening opportunities that extend far beyond national borders. However, in this bounty of opportunity lie obligations, and often those obligations tie a nation\u27s hands when trying to deal with a problem that arises. One obligation nations face is upholding the United Nations\u27 (UN) decision to prevent the illicit use of cannabis. Another is supporting and following the World Trade Organization\u27s (WTO) near elimination of barriers for companies to bring patent and trademark protection with them into any country they do business with. In a modern globalized economy, if a nation fails to uphold the obligations of one agreement, the consequences spill over into the network of obligations upheld by other nations.
The rising cannabis industry is a pristine example of this obligatory burden. Canada broke the UN Single Convention on Narcotic Drugs ( Single Convention\u27], establishing a recreational cannabis industry that rocketed into financial success. The countries that uphold the WTO\u27s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), except Canada, now bear the burden of Canada\u27s decision. That obligation has grown so great that other countries may find following Canada\u27s financial success requires • shirking the monopolistic rights the WTO mandates; otherwise, they risk becoming a playground for Canadian companies seeking to globalize.
This note attempts to provide a solution to these conflicting obligations by proposing a temporary obligation realignment. By proposing a temporal exception to patent enforcement, the WTO TRIPS Agreement can be amended, as minimally as possible, to conform with the obligations cast upon the rest of the world when Canada sluffed its
Indiana Practice Materials: A Selective Annotated Bibliography
Get PDFState Practice Materials: Annotated Bibliographies is intended to provide legal information professionals and legal practitioners timely and relevant state-specific information about the legal sources available to conduct effective legal research in any given state.
DeMaine, Moreland, and Kearney co-authored the chapter on Indiana materials.https://www.repository.law.indiana.edu/facbooks/1294/thumbnail.jp
What\u27s the Harm? Federalism, the Separation of Powers, and Standing in Data Breach Litigation
Get PDFThis Comment will argue that the Supreme Court should analyze standing in data breach litigation under a standard that is deferential to state statutory and common law. Specifically, federal standing analysis should look to state law when determining whether an injury is concrete such that the injury-in-fact requirement is met. Some argue that allowing more data breach cases to proceed to the merits could lead to an explosion of successful litigation and settlements, burdening the federal courts and causing economic losses for the breached businesses. These concerns may be valid. But if state law provides a remedy to the harm suffered, the federal courts should not remove their redress. Federalism instructs otherwise.
Part I explains the current data breach climate. Part II then discusses the more common causes of action that plaintiffs claim in data breach litigation. Part III then begins the standing discussion and lays out the existing state of affairs for standing in data breach litigation. Next, Part IV discusses dignitary harms and the need to respect the sovereignty of the individual states and their ability to define their own laws. That Part argues the Supreme Court should defer to state determinations of what constitutes harm under the law the state wrote. Then, Part V addresses the inconsistent results that the tightening of standing law has created and discusses the possibility of a federal omnibus privacy law. Finally, this Comment concludes by reiterating the point that plaintiffs must allege that a legally protected right has been violated. To effectively analyze this claim, the Supreme Court should defer to the entity that created that legally protected interest and determine what it sought to protect
Torn Between Institutionalisation & Judicialisation: The Demise of the EU-US Privacy Shield
No full textIn July 2016, the EU-US (European Union-United States) Privacy Shield came into force, replacing the EU-US Safe Harbour, to address the concerns around data collection and privacy that arose in the case of Schrems v. European Data Commissioner (C-362/14). The Court of Justice of the European Union (CJEU) in its ruling known as Schrems I took a position in defence of privacy in the context of Edward Snowden\u27s revelations on the National Security Agency\u27s (NSA) surveillance programs. This context had already spurred the development of several instruments and enforcement regimes, such as the General Data Protection Regulation (GDPR), adopted in April 2016, and an agreement known as the EU-US Umbrella Agreement, concluded in December 2016. These two acts, as well as the Privacy Shield, were significant global data transfer instruments on account of their enormous regulatory reach across the Atlantic, at least until July 2020 when the Privacy Shield was struck down. Most commentators agreed that the implementation of the EU-US Privacy Shield raised serious legal concerns insofar as it did not offer sufficient privacy protection. Not surprisingly, actions for annulment5 were brought before the General Court of the Court of Justice of the European Union against the EU-US Privacy Shield (T-670/16 and T-738/16), and preliminary references 6 were initiated, culminating in a recent CJEU judgment (Grand Chamber) (C-311/18) invalidating it.
This article analyses the implementation and eventual demise of the Privacy Shield through a framework that combines two concepts at the heart of the evolution of the EU legal order: institutionalisation and judicialisation. This conceptual framework allows us to capture the relationship between EU and US legal orders and better understand why it is sometimes disharmonious
Judicial Independence at Twilight
Get PDFJudicial independence is a fixture of American government, but its structure has never been fully understood. As long as the federal judiciary has survived episodic attacks with its independence intact, there has been no pressing need to know how or why. But a confluence of cyclical, sustained, and sudden developments now threatens the federal judiciary’s autonomy in arguably unprecedented ways and demands a more comprehensive analysis of judicial independence and its vulnerabilities. This article begins by reconceptualizing the structure of judicial independence in three tiers. At the apex is an ancient, Rule of Law Paradigm, which proceeds from the premise that independence enables judges to set extralegal influences aside and impartially uphold the law. In the middle tier is Article III of the U.S. Constitution, via which the framers implemented the Rule of Law Paradigm in a rudimentary way. At the base tier are informal constitutional conventions that emerged over time to fill gaps in the constitutional design and guide the political branches in their relationship with the courts in a manner consistent with Article III and the overarching paradigm. Next, the article explains how this threetiered structure came into being, how it evolved, later eroded, and how it recently began to collapse with the repudiation of judicialindependence conventions in a neo-populist age that is sweeping the globe. It attributes the long-term erosion of support for judicial independence to the crumbling Rule of Law Paradigm and its increasingly antiquated premise that independent judges impartially uphold the law, unsullied by ideological and other influences. It recommends a gradual shift to what I call a Legal Culture Paradigm, which reframes and defends the role of judicial independence in a government with a judiciary whose judges are deeply acculturated to take law seriously but who are nonetheless subject to extralegal influences at the margins, where operative law is indeterminate. It argues, however, that a reboot of the prevailing paradigm cannot, by itself, quiet the fury firing the ongoing, neo-populist assault on judicial independence, because the judiciary and its autonomy have become little more than pawns subject to sacrifice in a high-stakes chess game played by polarized, partisan political leaders for the future of American Democracy. The article concludes that realistic hope for an accord that restores judicial-independence conventions, guided by a new paradigm, must follow a period of destabilizing, no-holds-barred, partisan combat, in much the same way that settlement in contentious civil cases can often be achieved only after a period of exhausting and unrestrained hardball litigation
Judicial Power—Immigration-Style
Get PDFThroughout this current global pandemic, but of course, even before, former President Trump advocated enacting restrictive immigration measures. Under his tenure, the Department of Homeland Security (DHS) assumed enhanced judicial authority and issued decisions that often adversely affected noncitizens. However, in June 2020, the U.S. Supreme Court struck down one of the DHS\u27s most well-known initiatives, which sought to end the \u27DACA\u27 program. The Court held that the agency could not do so arbitrarily and had to comply with the requirements set forth in the Administrative Procedure Act.
Yet, there have been other areas where the DHS, particularly through its U.S. Citizenship and Immigration Services (USCIS) office, has asserted its judicial power. The result has been a \u27turf battle\u27 with the Department of Justice (DOJ), which has historically housed the country\u27s immigration courts and their presiding judges.
One key conflict between the USCIS and DOJ involves whether the latter\u27s immigration judges (IJs) can allow undocumented immigrants to apply for \u27U visas.\u27 This visa grants noncitizens the opportunity to remain in the country if they have been (1) victims of abuse and (2) helpful to law enforcement in a criminal investigation. The federal appeals courts are split on this question, with two circuits saying that the DOJ\u27s IJs have this power while two others have held that the USCIS has exclusive jurisdiction.
The thesis here is that, as between the DOJ and USCIS, the DOJ\u27s IJs should and do possess such authority. But focusing on this U visa debate highlights a larger structural problem. Immigration adjudicators within both the USCIS and DOJ are, in theory, supposed to be free from political influence. In reality, though, because they serve at the pleasure of executive branch appointees, they must often act in a partisan fashion rather than in a judicious manner.
What is left, therefore, is a system in need of reform. Building upon previous work, this Study urges the removal of immigration adjudication from the USCIS and DOJ, and creation of special Article 1 immigration courts to check presidential power and ensure that an especially vulnerable contingent of litigants has their rights safeguarded
Forensic Evidence in Arizona: Reforms for Victims and Defendants
Get PDFArizona is nationally recognized as a leader in forensic science. Our state court judges serve on the Legal Resource Committee for the National Institute of Science and Technology (NIST) and provide guidance to NIST’s Organization of Scientific Area Committees for Forensic Science. Our Phoenix lab analysts and lab directors have national reputations. And Arizona State University’s Sandra Day O’Connor College of Law has been home to many leading academics in the field of forensics and the law, among them Michael Saks, David Kaye, and Jay Koehler. We have a robust forensic science community in Arizona and in Phoenix in particular.
Thus, this Article identifies the strengths of the current system in Arizona and proposes innovative reforms appropriate for labs that are already leaders in the field. Arizona is particularly well situated to increase its lab independence and to serve additional members of the criminal legal community: namely, defendants and victims.
Regarding defendants, this Article recommends greater transparency and accessibility to fundamental scientific lab findings for defense attorneys, similar to the practices of well-known independent crime labs such as the Houston Forensic Science Center. Additionally, the volunteer-run Arizona Forensic Science Advisory Committee can ensure greater integrity for forensic evidence in the courtroom if it is staffed, ideally with a staff attorney.
Regarding victims, in a moment of calls to “defund the police,” this Article proposes that police departments shift resources to hire more civilian crime scene investigators. More civilian investigators can increase responsiveness to property crimes for victims and also identify the scope of the property crime problem in regularly impacted neighborhoods. Economically struggling neighborhoods are frequently overpoliced for controlled substances violations, yet law enforcement is simultaneously underresponsive to victims of property crime in these communities.
These proposals in the interest of defendants, victims, and the integrity of the Arizona criminal legal system may be more likely to occur alongside ultimate independence for the Arizona crime labs. Independent labs would respond directly to the Governor rather than serve within the Department of Public Safety and individual police departments