scholarly journals Rise in the Freedom of Contract: Development and Enforceability of Forum Selection Clauses

2014 ◽  
Vol 3 (1) ◽  
pp. 43-59
Author(s):  
Shreyan Sengupta ◽  
Anirudhya Dutta
Keyword(s):  
United States ◽  
United States Of America ◽  
Common Law ◽  
The United States ◽  
Law System ◽  
Freedom Of Contract ◽  
The United Kingdom ◽  
Evolution And Development ◽  
The Common ◽  
Judicial Interpretations

Corporations and business houses of the present day require sound redressal mechanisms to mitigate commercial disputes with ease and efficiency. „Forum selection clauses‟ are an easy way out of the turmoil often faced by firms during contractual disputes. Traditionally, the United Kingdom and the United States of America have been very restrictive about enforcing forum selection clauses, however liberalizing it very recently. This article through doctrinal study shows the present situation for forum selection enforcement in India and United States. Courts in India generally have followed the trend as laid down in the United States. There have been diverse judicial interpretations regarding validity of forum selections clauses across the common law system. The article discusses the judicial interpretations which has led to the evolution and development of such contract clauses.

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

The Rights of Shareholders

1953 ◽  
Vol 2 (4) ◽  
pp. 564-578
Author(s):  
F. de Sola Canizares
Keyword(s):  
United States ◽  
United States Of America ◽  
Western Europe ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
Private Capital ◽  
General Survey ◽  
English Speaking ◽  
The Common

We propose here to lay before English-speaking lawyers a general survey of the rights of shareholders in that form of société, which is described in continental law as société anonyme, compagnie anonyme or société par actions; and we shall endeavour to do it in a way which will be easily understood by “common” lawyers. We shall be considering in general continental rights, that is to say, those prevailing in the civil law countries not only of Western Europe but also of Latin America. We shall leave aside the Soviet countries, where the problems of shareholders' rights do not arise in the same way as under the so-called capitalist régimes; it may even be said that in fact there are no sociétés anonymes there with private capital and therefore these problems do not arise in practice. We shall also disregard the law of the United States of America, which lies within the common law framework and is more accessible to English lawyers.

The Practice of Multiple Shari'ah Board Directorship and Fiduciary Duties

2020 ◽  
pp. 372-405
Author(s):  
Abd Hakim Abd Razak
Keyword(s):  
Common Law ◽  
The United States ◽  
Best Interest ◽  
Fiduciary Duties ◽  
Law System ◽  
Legal Studies ◽  
Business Operations ◽  
The United Kingdom ◽  
Islamic Financial Institutions ◽  
The Common

This chapter examines the legal paradigm of the application of multiple Shari'ah board directorship practice from the common law context of directorial fiduciary duties. It employs the critical legal studies approach to analyse the principles, legislations, case laws, policies, and guidelines in the United States, European Union, the United Kingdom, Ireland and Germany. This study scrutinises the polarity of views concerning the pragmatic Masyaqqah (necessity) surrounding the practice in discussion: the Masyaqqah that encourages and one that discourages the application of the practice and places these against the two predominant directorial fiduciary duties under the common law system namely, the duty to act bona fide and in the best interest of the company, and the duty to avoid conflict of interest. Whilst the practice has proven to benefit Islamic financial institutions (‘IFIs'), the findings also notice the substantial risks it could inflict on the IFIs' business operations; some which could seriously damage their Shari'ah compliance assurance.

“A Refractory and Turbulent Spirit”: Origins of Mississippi Law

2019 ◽  
pp. 10-34
Author(s):  
Joseph A. Ranney
Keyword(s):  
United States ◽  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
Economic Opportunity ◽  
Law System ◽  
Legal Code ◽  
The Common ◽  
Civil Law System

Mississippi operated under a civil-law system for more than a century as a French and Spanish colony, a system very different from the common-law system that replaced it after the United States acquired Mississippi. Important elements of civil law were preserved in the new territory’s law and in its first legal code, created by governor Winthrop Sargent (1798-99). After statehood (1817) political power shifted away from Natchez planters and merchants to the small planters and farmers who settled the rest of the state. Mississippi’s legal system likewise evolved from one that favored the Natchez aristocracy to one based on popular democracy and the promotion of economic opportunity. The state’s second constitution (1832) vividly expressed these ideals.

A Comparison of the Rationales for the Prohibition Against Hearsay Evidence in the USA and Nigeria

2011 ◽  
Vol 55 (2) ◽  
pp. 230-260
Author(s):  
Lawrence Azubuike
Keyword(s):  
United States ◽  
United States Of America ◽  
Common Law ◽  
The United States ◽  
Legal Systems ◽  
Legal Norms ◽  
The World ◽  
The Usa ◽  
The Common ◽  
Hearsay Evidence

AbstractThe influence of the United States of America in the world is reflected not just in the export of its values and policies, but also in the spread of US jurisprudence and legal norms around the world. Many nations try to emulate US trial practice and procedure, while others measure the utility of their procedural rules by US standards. The rule generally prohibiting the admissibility of hearsay evidence is firmly rooted in the common law which is the basis of the legal systems in both the USA and Nigeria. This article explores and compares the jurisprudential and other rationales underpinning the hearsay rule in both jurisdictions. It finds that, although there are slight differences in the trial procedures of the two systems, the general stricture against hearsay evidence is informed by similar rationales in both jurisdictions.

scholarly journals The Sh(e)aring Economy. Debates on the Law on Takings

Laws ◽  
2021 ◽  
Vol 10 (3) ◽  
pp. 54
Author(s):  
Nofar Sheffi
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
United States Of America ◽  
Common Law ◽  
The United States ◽  
The Body ◽  
The Common ◽  
The Law ◽  
Definition Of ◽  
The Relationship

Rethinking ‘sharing’ and the relationship between ‘sharing’ and ‘jurisdiction’, this meander proceeds in three parts. It begins with a journey to and through the forests of the nineteenth-century Rhineland, rereading Marx’s journalistic reports on debates in the Sixth Rhine Province Assembly about proposed amendments to forest regulation (including an extension of the definition of ‘wood theft’ to include the gathering of fallen wood) as a reflection on the making of law by legal bodies. From the forests of the Rhineland, the paper journeys to the forests of England, retracing the common story about the development, by legal bodies, of the body of common law principles applicable to ‘innkeeping’. Traveling to and through the ‘concrete jungles’ of the United States of America, the paper concludes with a reflection on Airbnb’s common story of creation as well as debates about the legality of Airbnb, Airbnb-ing, and ‘sharing’.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

scholarly journals A Comparative Discussion of the Judicial Disqualification of Directors under the South African Companies Act

2020 ◽  
pp. 1-24
Author(s):  
Rehana Cassim
Keyword(s):  
United States ◽  
United Kingdom ◽  
South African ◽  
United States Of America ◽  
The United States ◽  
The South ◽  
The United Kingdom ◽  
Locus Standi

Abstract Section 162 of the South African Companies Act 71 of 2008 empowers courts to declare directors delinquent and hence to disqualify them from office. This article compares the judicial disqualification of directors under this section with the equivalent provisions in the United Kingdom, Australia and the United States of America, which have all influenced the South African act. The article compares the classes of persons who have locus standi to apply to court to disqualify a director from holding office, as well as the grounds for the judicial disqualification of a director, the duration of the disqualification, the application of a prescription period and the discretion conferred on courts to disqualify directors from office. It contends that, in empowering courts to disqualify directors from holding office, section 162 of the South African Companies Act goes too far in certain respects.

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