In the legal theory and practice disputes are arising related to Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, ratified in New York in 1958. Foreign arbitral award annulled in the country of origin may be enforced in the Czech Republic in exceptional cases on the basis of a decision of a Czech court of general jurisdiction. Such a case could typically be the enforcement of an arbitral award in accordance with Article V of the New York Convention, which was annulled in the country of origin for being contrary to public policy but is not contrary to public policy in terms of Czech law.
{"title":"The Recognition and Enforcement of Arbitral Awards Set Aside in the Country of Origin","authors":"Petr Dobiáš","doi":"10.2139/ssrn.3408735","DOIUrl":"https://doi.org/10.2139/ssrn.3408735","url":null,"abstract":"In the legal theory and practice disputes are arising related to Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, ratified in New York in 1958. Foreign arbitral award annulled in the country of origin may be enforced in the Czech Republic in exceptional cases on the basis of a decision of a Czech court of general jurisdiction. Such a case could typically be the enforcement of an arbitral award in accordance with Article V of the New York Convention, which was annulled in the country of origin for being contrary to public policy but is not contrary to public policy in terms of Czech law.","PeriodicalId":330395,"journal":{"name":"Fordham Law School Legal Studies Research Paper Series","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121934345","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}
Traditionally evidence of exclusion was available to those injured by it. If a dominant firm refused to deal with a competitor, perhaps denying an important input, or priced predatorily, there was no difficulty in presenting evidence of the conduct at issue. As means of exclusion became subtler, such as with rebate structures, the conduct was less public, but still evidence was typically available. Rebate terms were often incorporated in contracts, for example, and copies could be obtained from customers. Exclusion by online platforms is very different. When a competitor is injured by, say, a disadvantageous position in search results, the cause is often an algorithm whose function is entirely internal to the dominant firm. In such instances, a private plaintiff may not have access to evidence that would allow it to allege satisfactorily, let alone prove, a violation. This brief note sets out the difficulty this issue poses for competition law.
{"title":"Algorithmic Opacity and Exclusion in Antitrust Law","authors":"M. Patterson","doi":"10.12870/IAR-12870","DOIUrl":"https://doi.org/10.12870/IAR-12870","url":null,"abstract":"Traditionally evidence of exclusion was available to those injured by it. If a dominant firm refused to deal with a competitor, perhaps denying an important input, or priced predatorily, there was no difficulty in presenting evidence of the conduct at issue. As means of exclusion became subtler, such as with rebate structures, the conduct was less public, but still evidence was typically available. Rebate terms were often incorporated in contracts, for example, and copies could be obtained from customers. Exclusion by online platforms is very different. When a competitor is injured by, say, a disadvantageous position in search results, the cause is often an algorithm whose function is entirely internal to the dominant firm. In such instances, a private plaintiff may not have access to evidence that would allow it to allege satisfactorily, let alone prove, a violation. This brief note sets out the difficulty this issue poses for competition law.","PeriodicalId":330395,"journal":{"name":"Fordham Law School Legal Studies Research Paper Series","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125042996","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}
Cryptocurrencies, the talk of the town, have emerged as a subset of alternative currencies to fiat currencies. Representing money in digital form, they differ, markedly, from conventional currencies as well as digital payment services or mediums. Formally introduced in 2009 with the advent of Bitcoin (the first and basic cryptocurrency), this genus of currency has waxed stronger as there are now no less than a thousand different types of cryptocurrencies globally. Despite this increasing escalation of cryptocurrencies, its reception as well as legal status varies considerably across Jurisdictions. Whilst some countries have clearly permitted their use and trade, others have restricted them or proscribed them outright. Yet some others are yet to definitively define their attitude to them. Even among countries that have taken a stand on cryptocurrencies, the nature of their classifications of cryptocurrencies differs. These issues, coupled with concerns of an unregulated global economy associated with cryptocurrencies, have made cryptocurrencies more topical now than ever before. It is against this background that this article seeks to analyse the emergence of cryptocurrencies in commerce and investments in Nigeria, and its legal implications. Towards this end, this article shall first clarify and expound on what cryptocurrencies are, including their various types, their operations and how they differ from conventional currency system. Afterwards, we would examine cryptocurrencies as currency or money and thereafter undertake a review of current Nigerian currency laws with a view to discern whether and to what extent cryptocurrencies are or could be accommodated under current Nigerian law. We would next examine the response of Nigerian regulators to the emergence of cryptocurrencies in Nigeria and then appraise the reception and treatment of cryptocurrencies across varying national jurisdictions. Finally, we would conclude the article and make recommendations as may be necessary. This paper contends that, ultimately, there is more to be done at the international level to address the challenges posed by this staggering invention as local treatments of the challenges might not suffice.
{"title":"Cryptocurrencies in Nigeria: A Legal Analysis","authors":"Abdullateef Abdul","doi":"10.2139/ssrn.3106296","DOIUrl":"https://doi.org/10.2139/ssrn.3106296","url":null,"abstract":"Cryptocurrencies, the talk of the town, have emerged as a subset of alternative currencies to fiat currencies. Representing money in digital form, they differ, markedly, from conventional currencies as well as digital payment services or mediums. Formally introduced in 2009 with the advent of Bitcoin (the first and basic cryptocurrency), this genus of currency has waxed stronger as there are now no less than a thousand different types of cryptocurrencies globally. Despite this increasing escalation of cryptocurrencies, its reception as well as legal status varies considerably across Jurisdictions. Whilst some countries have clearly permitted their use and trade, others have restricted them or proscribed them outright. Yet some others are yet to definitively define their attitude to them. Even among countries that have taken a stand on cryptocurrencies, the nature of their classifications of cryptocurrencies differs. These issues, coupled with concerns of an unregulated global economy associated with cryptocurrencies, have made cryptocurrencies more topical now than ever before. \u0000It is against this background that this article seeks to analyse the emergence of cryptocurrencies in commerce and investments in Nigeria, and its legal implications. Towards this end, this article shall first clarify and expound on what cryptocurrencies are, including their various types, their operations and how they differ from conventional currency system. Afterwards, we would examine cryptocurrencies as currency or money and thereafter undertake a review of current Nigerian currency laws with a view to discern whether and to what extent cryptocurrencies are or could be accommodated under current Nigerian law. We would next examine the response of Nigerian regulators to the emergence of cryptocurrencies in Nigeria and then appraise the reception and treatment of cryptocurrencies across varying national jurisdictions. Finally, we would conclude the article and make recommendations as may be necessary. This paper contends that, ultimately, there is more to be done at the international level to address the challenges posed by this staggering invention as local treatments of the challenges might not suffice.","PeriodicalId":330395,"journal":{"name":"Fordham Law School Legal Studies Research Paper Series","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133192858","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}
This article considers the ‘orthodox’ rule requiring an election between damages or an account of profits in light of a recent Irish court decision that would appear to open the door for the granting of both remedies. Following a brief review of the background and historical development of the ‘orthodox’ view, the specific judicial arguments underlying the decision are presented. The crux of the judge's reasoning centred on the distinction between special and general damages. Interpreting these terms in the manner set forth by the Irish Supreme Court for trade mark/passing off cases, the judge concluded that the ‘rule’ requiring a plaintiff to make an election between the two remedies refers to an election between special damages and an account of profits, so that nothing precludes a plaintiff from making a claim for general damages and an account of profits. The article shows that the legal and economic logic underlying the judgment is not easily refuted. Moreover, at least in certain situations the ‘orthodox’ position can be seen to send a clear, albeit unintended, signal to potential infringers that they need not worry unduly about the quality of their workmanship, or tarnishing the victim's trade mark or reputation.
{"title":"General Damages and an Account of Profits ‒ An Irish Innovation?","authors":"D. Brodsky","doi":"10.1093/JIPLP/JPX234","DOIUrl":"https://doi.org/10.1093/JIPLP/JPX234","url":null,"abstract":"This article considers the ‘orthodox’ rule requiring an election between damages or an account of profits in light of a recent Irish court decision that would appear to open the door for the granting of both remedies. \u0000Following a brief review of the background and historical development of the ‘orthodox’ view, the specific judicial arguments underlying the decision are presented. The crux of the judge's reasoning centred on the distinction between special and general damages. Interpreting these terms in the manner set forth by the Irish Supreme Court for trade mark/passing off cases, the judge concluded that the ‘rule’ requiring a plaintiff to make an election between the two remedies refers to an election between special damages and an account of profits, so that nothing precludes a plaintiff from making a claim for general damages and an account of profits. \u0000The article shows that the legal and economic logic underlying the judgment is not easily refuted. Moreover, at least in certain situations the ‘orthodox’ position can be seen to send a clear, albeit unintended, signal to potential infringers that they need not worry unduly about the quality of their workmanship, or tarnishing the victim's trade mark or reputation.","PeriodicalId":330395,"journal":{"name":"Fordham Law School Legal Studies Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129157829","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}
The EU Collective Redress Recommendation has invited Member States to introduce collective redress mechanisms by 26 July 2015. The well-known reservations claim potentially abusive litigation and potential settlement of not well-founded claims resulting from controversial funding of cases by means of contingency fees and from ‘opt-out’ class action procedures. The paper posits that there may also be some fear that the European Commission may try to pursue the enforcement of its regulatory agenda in this way at the expense of individual claimants’ interests. Therefore a comparative analysis is carried out to see to what extent concerns about individual rights as opposed to regulatory goals are reflected in the different newly revised systems in place across Europe. As an iterim result the Dutch settlement procedure for mass damage claims, the English Group Litigation Order and the German test case procedure turn out to be relatively well-suited to deal with mass damage claims. At the same time, none of them can quite reach an optimal balance between individual rights and regulatory goals and therefore each of them is subject to criticism. That is why the further question is raised in how far these procedures could complement each other, thus contributing to the enforcement of individual rights without overregulating markets in Europe.
{"title":"Collective Action between Regulatory Goals and Individual Claimants' Rights – Collective Redress Mechanisms in EU Member States as Points of Departure for Procedural Innovation","authors":"Brigitte Haar","doi":"10.2139/ssrn.2990634","DOIUrl":"https://doi.org/10.2139/ssrn.2990634","url":null,"abstract":"The EU Collective Redress Recommendation has invited Member States to introduce collective redress mechanisms by 26 July 2015. The well-known reservations claim potentially abusive litigation and potential settlement of not well-founded claims resulting from controversial funding of cases by means of contingency fees and from ‘opt-out’ class action procedures. The paper posits that there may also be some fear that the European Commission may try to pursue the enforcement of its regulatory agenda in this way at the expense of individual claimants’ interests. Therefore a comparative analysis is carried out to see to what extent concerns about individual rights as opposed to regulatory goals are reflected in the different newly revised systems in place across Europe. As an iterim result the Dutch settlement procedure for mass damage claims, the English Group Litigation Order and the German test case procedure turn out to be relatively well-suited to deal with mass damage claims. At the same time, none of them can quite reach an optimal balance between individual rights and regulatory goals and therefore each of them is subject to criticism. That is why the further question is raised in how far these procedures could complement each other, thus contributing to the enforcement of individual rights without overregulating markets in Europe.","PeriodicalId":330395,"journal":{"name":"Fordham Law School Legal Studies Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129009261","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}
The manipulation of financial benchmarks, such as the London Interbank Offered Rate (Libor), has resulted in swift enforcement by regulators across the globe and the imposition of a multitude of impressive fines. In 2013, the European Commission settled with eight financial institutions for EUR 1.7 billion for their role in an alleged cartel relating to interest rate derivatives pegged to Libor. This article seeks to analyse the manipulation of financial benchmarks under Article 101(1) TFEU from both an economic and legal perspective. It is hoped that this exercise will shed some much needed light on what remains a relatively obscure area in competition law. Following the analysis herein, it is argued that EU competition law, in its current guise, is not well placed to deal with the mischief at issue. In light of the specificities of Libor and the markets in which products indexed to Libor are traded, the manipulation should, instead, be left to market regulatory tools specifically designed for this purpose.
{"title":"Tail Wagging the Dog: The Manipulation of Benchmark Rates – A Competitive Bone of Contention","authors":"A. Pascall","doi":"10.2139/ssrn.2836876","DOIUrl":"https://doi.org/10.2139/ssrn.2836876","url":null,"abstract":"The manipulation of financial benchmarks, such as the London Interbank Offered Rate (Libor), has resulted in swift enforcement by regulators across the globe and the imposition of a multitude of impressive fines. In 2013, the European Commission settled with eight financial institutions for EUR 1.7 billion for their role in an alleged cartel relating to interest rate derivatives pegged to Libor. This article seeks to analyse the manipulation of financial benchmarks under Article 101(1) TFEU from both an economic and legal perspective. It is hoped that this exercise will shed some much needed light on what remains a relatively obscure area in competition law. Following the analysis herein, it is argued that EU competition law, in its current guise, is not well placed to deal with the mischief at issue. In light of the specificities of Libor and the markets in which products indexed to Libor are traded, the manipulation should, instead, be left to market regulatory tools specifically designed for this purpose.","PeriodicalId":330395,"journal":{"name":"Fordham Law School Legal Studies Research Paper Series","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125472967","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}
Julie E. Cohen, C. Hoofnagle, William McGeveran, Paul Ohm, J. Reidenberg, Neil M. Richards, D. Thaw, Lauren E. Willis
This brief, submitted to the Supreme Court of the United States by 15 information privacy law scholars in the case of Spokeo, Inc. v. Robins (No 13-1339), argues that in enacting the Fair Credit Reporting Act (FCRA), Congress crafted a bargain between aggressive, secretive data-aggregating businesses and the public: if those businesses limited disclosures and made reasonable efforts to adhere to practices ensuring “maximum possible accuracy,” they would enjoy a safe harbor from litigation under many other state and federal theories. The FCRA’s consumer transparency requirements and remedial provisions were designed to encourage steady improvement in consumer reporting practices and to relieve pressure on public enforcement authorities. The Petitioner’s claim that Respondents cannot pursue it for its violations of the FCRA would unravel that bargain, preserving consumer reporting agencies’ broad immunity from suit while diminishing incentives to handle data fairly.In an era in which employers increasingly practice “hiring by algorithm,” inaccurate consumer reports — even those that contain putatively favorable inaccuracies — can cause real economic injury to consumers. Such inaccuracies can lead employers to screen out prospective employees as overqualified or too well-paid. Alternatively, employers may suspect resume inflation and dishonesty if background checks reveal inconsistencies or unearned honors. More generally, lawmakers historically have recognized and responded to non-economic and dignity-based injuries by creating rights of action to remedy such wrongs in court. The FCRA follows that pattern. In enacting the FCRA, Congress did not create injury but rather recognized the injury worked by improper disclosure and mishandling of information. Petitioner’s argument to the contrary threatens to upset numerous privacy, consumer protection, and other laws.
这份由15位信息隐私法学者就Spokeo, Inc. v. Robins (No 13-1339)一案向美国最高法院提交的摘要认为，在制定《公平信用报告法》(FCRA)时，国会在激进的、秘密的数据聚合企业与公众之间达成了一种交易:如果这些企业限制披露，并做出合理的努力，坚持确保“尽可能准确”的做法，那么根据许多其他州和联邦的理论，它们将享有免于诉讼的安全港。FCRA的消费者透明度要求和补救条款旨在鼓励消费者报告实践的稳步改进，并减轻公共执法当局的压力。请愿人声称被告不能追究其违反FCRA的行为，这将破坏这一协议，保留消费者报告机构免于诉讼的广泛豁免权，同时减少公平处理数据的动机。在一个雇主越来越多地采用“算法招聘”的时代，不准确的消费者报告——即使是那些假定有利的不准确的报告——也会对消费者造成真正的经济伤害。这种不准确的信息可能会导致雇主以资历过高或薪酬过高为由淘汰潜在员工。另一方面，如果背景调查显示出不一致或不劳而获的荣誉，雇主可能会怀疑简历虚报和不诚实。更一般地说，立法者历来承认并回应非经济和基于尊严的伤害，通过创造在法庭上纠正此类错误的行动权利。FCRA遵循这一模式。国会在制定《联邦信息保护法》时，并没有造成伤害，而是承认了信息披露不当和处理不当造成的伤害。请愿人的相反论点可能会扰乱许多隐私、消费者保护和其他法律。
{"title":"Information Privacy Law Scholars' Brief in Spokeo, Inc. v. Robins","authors":"Julie E. Cohen, C. Hoofnagle, William McGeveran, Paul Ohm, J. Reidenberg, Neil M. Richards, D. Thaw, Lauren E. Willis","doi":"10.2139/SSRN.2656482","DOIUrl":"https://doi.org/10.2139/SSRN.2656482","url":null,"abstract":"This brief, submitted to the Supreme Court of the United States by 15 information privacy law scholars in the case of Spokeo, Inc. v. Robins (No 13-1339), argues that in enacting the Fair Credit Reporting Act (FCRA), Congress crafted a bargain between aggressive, secretive data-aggregating businesses and the public: if those businesses limited disclosures and made reasonable efforts to adhere to practices ensuring “maximum possible accuracy,” they would enjoy a safe harbor from litigation under many other state and federal theories. The FCRA’s consumer transparency requirements and remedial provisions were designed to encourage steady improvement in consumer reporting practices and to relieve pressure on public enforcement authorities. The Petitioner’s claim that Respondents cannot pursue it for its violations of the FCRA would unravel that bargain, preserving consumer reporting agencies’ broad immunity from suit while diminishing incentives to handle data fairly.In an era in which employers increasingly practice “hiring by algorithm,” inaccurate consumer reports — even those that contain putatively favorable inaccuracies — can cause real economic injury to consumers. Such inaccuracies can lead employers to screen out prospective employees as overqualified or too well-paid. Alternatively, employers may suspect resume inflation and dishonesty if background checks reveal inconsistencies or unearned honors. More generally, lawmakers historically have recognized and responded to non-economic and dignity-based injuries by creating rights of action to remedy such wrongs in court. The FCRA follows that pattern. In enacting the FCRA, Congress did not create injury but rather recognized the injury worked by improper disclosure and mishandling of information. Petitioner’s argument to the contrary threatens to upset numerous privacy, consumer protection, and other laws.","PeriodicalId":330395,"journal":{"name":"Fordham Law School Legal Studies Research Paper Series","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130729996","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}
A significant and growing body of commentary considers whether possible manipulation of search results by Google could give rise to antitrust liability. Surprisingly, though, little serious attention has been paid to whether Google has market power. Those who favor antitrust scrutiny of Google generally cite its large market share, from which they infer or assume its dominance. Those who are skeptical of competition law’s role in regulating search, on the other hand, usually cite Google’s 'competition is only a click away' mantra to suggest that Google’s market position is precarious. In fact, the issue of Google’s power is more complicated and interesting than either of these approaches suggests.The commentary on Google has not focused on information as a product and generally has not considered the ways in which it differs from other products. A key feature of information is described by Arrow’s paradox regarding information: 'its value for the purchaser is not known until he knows the information, but then he has in effect acquired it without cost.' As a result, in many instances of search, a consumer will be seeking information only in circumstances in which she will be unable to evaluate the quality of the information she receives. As will be discussed in more detail below, this lack of transparency in quality can give an information provider market power, just as can an absence of transparency in price for other products.
{"title":"Google and Search Engine Market Power","authors":"M. Patterson","doi":"10.2139/ssrn.2047047","DOIUrl":"https://doi.org/10.2139/ssrn.2047047","url":null,"abstract":"A significant and growing body of commentary considers whether possible manipulation of search results by Google could give rise to antitrust liability. Surprisingly, though, little serious attention has been paid to whether Google has market power. Those who favor antitrust scrutiny of Google generally cite its large market share, from which they infer or assume its dominance. Those who are skeptical of competition law’s role in regulating search, on the other hand, usually cite Google’s 'competition is only a click away' mantra to suggest that Google’s market position is precarious. In fact, the issue of Google’s power is more complicated and interesting than either of these approaches suggests.The commentary on Google has not focused on information as a product and generally has not considered the ways in which it differs from other products. A key feature of information is described by Arrow’s paradox regarding information: 'its value for the purchaser is not known until he knows the information, but then he has in effect acquired it without cost.' As a result, in many instances of search, a consumer will be seeking information only in circumstances in which she will be unable to evaluate the quality of the information she receives. As will be discussed in more detail below, this lack of transparency in quality can give an information provider market power, just as can an absence of transparency in price for other products.","PeriodicalId":330395,"journal":{"name":"Fordham Law School Legal Studies Research Paper Series","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123563012","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}
Until recently, there have been few examples around the world of immigration systems that admit low-wage workers under conditions of true mobility and equal rights. While the European Union has permitted free movement of workers between its member states for half a century, and guarantees those workers equivalent rights to citizen workers on the job, many in the United States have assumed that there is little to learn about our own situation from looking at the EU, often perceived as an accord between rich white nations. But times have changed. The EU’s enlargement in 2004 and 2007 brought ten Eastern and Central European nations into the free movement regime. Wage disparities are now as high as sixteen to one between the wealthiest and poorest EU member states, nearly three times the average ratio between the US and Mexico. Using the UK as a primary example, this paper asks to what extent the EU free movement regime has delivered on its promises for new EU nationals doing low-wage work in the UK, and, where it has faltered, seeks to understand why. The paper concludes with an exploration of the insights this experience offers for efforts in the United States to improve the conditions of work for all low wage workers, immigrants and residents alike.
{"title":"Free Movement and Equal Rights for Low-Wage Workers? What the United States Can Learn from the New EU Migration to Britain","authors":"J. Gordon","doi":"10.2139/SSRN.1864628","DOIUrl":"https://doi.org/10.2139/SSRN.1864628","url":null,"abstract":"Until recently, there have been few examples around the world of immigration systems that admit low-wage workers under conditions of true mobility and equal rights. While the European Union has permitted free movement of workers between its member states for half a century, and guarantees those workers equivalent rights to citizen workers on the job, many in the United States have assumed that there is little to learn about our own situation from looking at the EU, often perceived as an accord between rich white nations. But times have changed. The EU’s enlargement in 2004 and 2007 brought ten Eastern and Central European nations into the free movement regime. Wage disparities are now as high as sixteen to one between the wealthiest and poorest EU member states, nearly three times the average ratio between the US and Mexico. Using the UK as a primary example, this paper asks to what extent the EU free movement regime has delivered on its promises for new EU nationals doing low-wage work in the UK, and, where it has faltered, seeks to understand why. The paper concludes with an exploration of the insights this experience offers for efforts in the United States to improve the conditions of work for all low wage workers, immigrants and residents alike.","PeriodicalId":330395,"journal":{"name":"Fordham Law School Legal Studies Research Paper Series","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132582231","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}
Contract law is generally understood to require no more of a person who breaches a contract than to give the injured promisee the “benefit of the bargain.” The law is thus assumed to permit a promise-breaker to keep any profit remaining from breach (after putting the victim in the position he would have been in had the contract been performed). This conventional description is radically wrong: across a wide range of circumstances, standard contract doctrines actually do require people to keep their promises, or to disgorge their entire profit from breach if they don‟t. Rather than protecting the expectation interest of injured promisees, therefore, the law of contract remedies is better characterized as enforcing “promisor expectation” or disgorgement, a regime that puts breaching promisors in the position they would have been in had they performed, even when that means overcompensating injured victims. We offer two explanations for why we so often see “promisor expectation” remedies, even though contracting parties would prefer the remedy of perfect promisee expectation damages. First, promisor expectation is often much easier for courts to compute or implement than promisee-based remedies. Second, promisors themselves prefer to be subject to the promisor expectation regime because it allows them to commit credibly to perform their promises. Such commitments are valuable, but cannot be sustained if the law awards damages that fall short of perfect promisee expectation, as it invariably does. By agreeing to a remedial scheme that makes it unprofitable or impossible for them to profit from breach, promisors can credibly commit to perform, and thus realize a higher contract price ex ante. An “overcompensatory” remedy thus paradoxically serves the interests of promisors by providing them a valuable bonding mechanism.
{"title":"You Do Have to Keep Your Promises: A Disgorgement Theory of Contract Remedies","authors":"S. Thel, Peter Siegelman","doi":"10.2139/SSRN.1353402","DOIUrl":"https://doi.org/10.2139/SSRN.1353402","url":null,"abstract":"Contract law is generally understood to require no more of a person who breaches a contract than to give the injured promisee the “benefit of the bargain.” The law is thus assumed to permit a promise-breaker to keep any profit remaining from breach (after putting the victim in the position he would have been in had the contract been performed). This conventional description is radically wrong: across a wide range of circumstances, standard contract doctrines actually do require people to keep their promises, or to disgorge their entire profit from breach if they don‟t. Rather than protecting the expectation interest of injured promisees, therefore, the law of contract remedies is better characterized as enforcing “promisor expectation” or disgorgement, a regime that puts breaching promisors in the position they would have been in had they performed, even when that means overcompensating injured victims. We offer two explanations for why we so often see “promisor expectation” remedies, even though contracting parties would prefer the remedy of perfect promisee expectation damages. First, promisor expectation is often much easier for courts to compute or implement than promisee-based remedies. Second, promisors themselves prefer to be subject to the promisor expectation regime because it allows them to commit credibly to perform their promises. Such commitments are valuable, but cannot be sustained if the law awards damages that fall short of perfect promisee expectation, as it invariably does. By agreeing to a remedial scheme that makes it unprofitable or impossible for them to profit from breach, promisors can credibly commit to perform, and thus realize a higher contract price ex ante. An “overcompensatory” remedy thus paradoxically serves the interests of promisors by providing them a valuable bonding mechanism.","PeriodicalId":330395,"journal":{"name":"Fordham Law School Legal Studies Research Paper Series","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131538622","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}
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