Authors (D-L).

Gillies, Peter and Dahdal, Andrew (Australia): Waiver of a right to arbitrate, in the context of international commercial arbitration

Goss, Ernie (USA): Trust, Transparency and Foreign Direct Investment

Gubby, Helen; Kleve, Pieter and De Mulder, Richard (Netherlands): Taking patents seriously

Hugg, Patrick (USA): The New EU Services Directive: Metaphor for Europe Today- Model for Expanding International Harmonization Tomorrow

Keupink, Bart (Netherlands): Virtual criminal law in boundless new environmentsy

Lakshmanan, Vydyanathan (India): Traditional Knowledge, the CBD and the TRIPS Regime: Synthesising the Discordant Discourses at the WTO

Leal-Arcas, Rafael (UK, Spain): Bridging the Gap in the Doha Talks: A Look at Services Trade

Recognition & Enforcement of  Foreign Arbitral Awards -A Comparative Study by Anirudh Dadhich and Arun Kumar Bajaj, Hidayatullah National Law University, India.
Anirudh Dadhich is a B.A. LL.B. [Hons] student at Hidayatullah National Law University, He was awarded with the Best Memorial Prize in National Moot Court Competition conducted by K.L.E Society Law College, Bangalore (Karnataka) (Feb.2004-05) and a Runners-up Trophy in X- All India Moot Court Competition-2006 conducted by University Law College, Bangalore (Feb 2006).
Arun Kumar Bajaj is an LL.B. [HONS] student at Hidayatullah National Law University
Abstract
Since last two decades, governments in Asia and other third-world areas have embarked on and initiated bold reforms to liberalise their economies. This has meant larger and keener interaction by local businesses with their counterparts in the industrialised nations for cross-border trade and investment.

The seller, manufacturer, supplier or agent in any part of the world, when dealing with a counterpart outside his country, keeps three issues in mind:

  1. that both parties perform their respective contractual obligations;
  2. that no disputes arise between the parties and if they do, with all commercial adjustments, they are amicably resolved; and
  3. in a worst-case scenario, he/she is able to retain the right to have the dispute determined by a court/tribunal at home, as against in a foreign country.

On the international plane, therefore, nations attempt to project their "investor-friendliness' by enacting local legislation aimed at easing the enforcement of foreign judgments and awards -- impartially, promptly and at a reasonable expense. As a vital emerging market, India has also such legislation in place in comparison to other developed countries like U.S.A. It is the purpose of this article to discuss this bundle of procedural laws and the judicial response in the respective Countries for the benefit of the readers.

Globalization and China's Pathway in Quest for a New Identity by Wei Dan, University of Macau.







Wei Dan (LL.B of Law majored in International Law and International Economic Law at the Peking University, China; MCL of Law majored in European Union Law at the University of Coimbra, Portugal;PhD of Law majored in Economic Law at the University of Coimbra, Portugal) is an Assistant Professor and Associate Coordinator of Master Program of International Business Law of Faculty of University of Macau teaching various courses in Chinese, English and Portuguese Languages, e.g. International Trade Law and Inter-regional Trade Law, General Theory of Chinese Law, Legal History, Constitution of China and the Basic Laws of Hong Kong and Macau. She is an Arbitrator of World Trade Center Macau (Macau Voluntary Arbitration Center) and a member of the Chartered Institute of Arbitrators. She participated in several bilateral trade negotiations between China and Brazil in 2004 and 2005 and was a participant in the Participation in the WTO Ministerial Conference, Hong Kong, 2005.
Abstract
In the context of globalization, the concept of national identity becomes much richer and the governments’ policy-makings have been largely monitored by the markets. If some countries have been more successful than others in responding to the same challenges posed by incorporation by the world economy, then the reason for these different answers is to be found in their national choices. In recent years, few developing countries have enjoyed benefits from interaction with outside world as much as China has. As a late-comer of globalization, China has been confronted with a clash between the dissolution of a traditional society and the construction of a modern one. Taking into consideration China’s history, population, size, potential and geo-political influence, this article reviews her unique pathway in quest for a new identity in the era of globalization and tries to find some enlightenments equally useful for other developing countries

Auditor’s liability towards third parties within the EU: A comparative study between the United Kingdom, the Netherlands, Germany and Belgium by Ingrid de Poorter, Financial Law Institute of Ghent University.
Dr. Ingrid de Poorter obtained a law degree at Ghent University in July 2000, where she was also active as student representative, Ingrid de Poorter is a Doctor-Assistent at the Financial Law Institute of Ghent University. In September 2006 she obtained her doctoral thesis (Ph.D.) on oversight on financial information (Audit and public oversight CBFA)). Apart from monitoring students, her research focuses on company and financial law.
Abstract
Auditors’ liability is a hot topic nowadays. Due to the increased risks of auditors and the lack of appropriate insurance, a limitation of auditors’ liability seems to be appropriate. Based on the economic study of the London Economics, the European Commission issued a consultation paper to discuss a European harmonization of auditors’ liability. But to harmonize a liability cap on auditors, one needs to examine not only the economic implications, but also the legal restraints and differences of auditors’ liability regimes within the European Union. This paper shows that there are large discrepancies concerning auditor’s liability towards third parties within the legal systems of the European Union. In Belgium an auditor is liable towards each interested party. However, the public role of an auditor is not acknowledged in the United Kingdom, the Netherlands and Germany. In those countries the purpose of audited statements is to fulfill the auditor’s duty to the shareholders collectively and not to the stockholders as individual parties or third parties. In Germany, the Netherlands and the United Kingdom, an auditor has to encompass a special duty of care towards the third party to be liable. Only a special relationship of the auditor towards a third party could imply auditor’s liability toward those parties. This element wasn’t discussed in the London Economics Study However, these findings could have a major impact on the debate to harmonize an auditor’s liability cap because the more parties can pursue an auditor, the more damage can be claimed and the higher the liability cap needs to be fixed.

Democracy and Human Rights: Reappraising the Rhetoric of Interdependence and Mutual Reinforcement by Ubong E Effeh, University of Sunderland.
Dr Ubong E Effeh (LLB , N. Lond); LLM, Essex; PhD ,Kent) is a Senior Lecturer in Law at the University of Sunderland, United Kingdom. Prior to his arrival at Sunderland, Ubong taught in various capacities at Kent and Oxford Brookes universities, also in the UK.
Abstract
For most observers, the relationship between democracy and civil and political rights is self-evident - so much so that the traditional references to "democratic governance" in the global media are often synonymous with this category of rights. What is often less obvious is the relationship between democracy and the less "photogenic" aspects of the Universal Declaration of Human Rights, namely, economic and social rights. Of late, China (a totalitarian "People's Republic), and India have emerged as global economic giants, and (if it could be assumed that economic growth is the essential catalyst for the realization of these rights) should soon be in a position to realize them. Meanwhile, although much of sub-Saharan Africa has embraced multiparty democracy since the 1990s, its people have in fact become poorer - their prospects of realizing these rights increasingly gloomy. In other words, neither despotism nor democracy has made much difference in the region. Yet, human rights advocates and policy makers continue to cling to what has become an article of faith, i.e., that "democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing." This short article seeks to determine the extent to which this rhetoric is sustainable in light of these emerging realities.

Understanding the main motives for Foreign Direct Investment, an East -West Country contrast. Is the host country legislation an important factor? by David Floyd and Sandhla Summan, University of Lincoln, UK.
David Floyd is Senior Lecturer in International Business at Lincoln University UK. He is also guest lecturer at the university of Hong Kong. His work focuses on the internationalisation process of the firm. He has published recent papers in the Europan Business Review and has undertaken consultancy projects for the DTI and the United Nations.
Sandhla Summan LL.B, LL.M, Senior Lecturer in Law, Law School, University of Lincoln, U.K. Teaching interests include International Trade Law; The Law of Tort and Contract. Research interests; International Trade and Business Law; aspects of pedagogical design and implementation.




Abstract
Foreign investment continues to play a greater role in business activity across the globe, it is therefore important to assess the main trends and reasons behind this increased activity so that business can make effective decisions on how they wish to engage in further global expansion. The paper further explores the importance of country specific legislation in determining the decision whether to invest. FDI can also have positive benefits on employment and enterprise which will also be considered. This article sets out to contrast the investment flows taking place in both East and Western countries and considers the main determinants of activity in these countries. Theories of internationalisation will be drawn upon as well as the use of investment data in order to explain investment behaviour. A Business History perspective will also be drawn upon. The article then considers future possible trends in light of these recent developments.

Waiver of a right to arbitrate, in the context of international commercial arbitration by Peter Gillies and Andrew Dahdal, Macquarie University.
Peter Gillies (MA, LLM (Sydney), PhD (NSW); Solicitor, New South Wales) is a Professor and the Director of Postgraduate Studies (Coursework), Law Division at Macquarie University, Sydney. He is the author of numerous books and papers in the fields of international trade law, commercial law, environmental taxation, criminal law and evidence. His most recent book is (with Gabriel Moens), International Trade: Law, Business and Ethics, 2nd edn, Routledge-Cavendish, Oxon, 2006. Editor of the Macquarie Journal of Business Law.
Andrew Dahdal graduated with honours from Macquarie University in 2005 having completed a double degree in Law and Commerce majoring in economics. He has taught in the Business Law department at Macquarie University for two years and is currently an associate lecturer in the Division of Law. He is presently completing a Masters dissertation on the constitutional history of commercial regulation, specifically banking. His areas of interest and publication include corporate regulation and domestic commercial law in an international context.
Abstract
This paper examines the circumstances in which a party to an arbitration agreement may be deemed to have waived its right to arbitrate a dispute comprehended by the agreement, by involvement in litigation concerning this dispute. The focus is on the law in common law jurisdictions, particularly Australia and the United States of America. The paper focuses on the 2006 decision of the Australian Federal Court in Comandate Marine Corp v Pan Australia Shipping Pty Ltd, which afforded the topic significant treatment. The theoretical bases for sustaining waiver claims are analysed, including waiver as a discrete doctrine, abandonment, estoppel, election, repudiation of contract and variation of contract. The policies that underlie and inform the development of principles for testing waiver submissions are noted.

Trust, Transparency and Foreign Direct Investment by Ernie Goss, Creighton University.



















Ernie Goss ( Ph.D.) is the MacAllister Chair in Regional Economics & Professor of Economics at Creighton University, Nebraska. He received his Ph.D. in Economics from The University of Tennessee in 1983 and is a former faculty research fellow at NASA's Marshall Space Flight Center. He was a visiting scholar with the Congressional Budget Office for 2003-04 and is a research fellow at the Theodore Roosevelt Institute. He has published over eighty research studies focusing primarily on economic forecasting and on the statistical analysis of business and economic data. His research paper entitled, "The Internet's Contribution to U.S. Productivity Growth," received the National Association of Business Economics Edmund A. Mennis Contributed Papers Award for 2001. He is a member of the Editorial Board of The Review of Regional Studies and editor of Economic Trends, an economics newsletter published three times per year. He is the past president of the Omaha Association of Business Economics, and President of the Nebraska Purchasing Management Association. Goss produces a monthly business conditions index for the nine state Mid-American region and the three state Mountain region. He and Bill McQuillan, CEO of City National Bank, initiated a survey of bank CEOs in rural portions of 8 states. Results from the three surveys are cited each month in approximately 100 newspapers. Newspaper citations have included the New York Times, Wall Street Journal, Investors Business Daily, The Christian Science Monitor, Chicago Sun Times and other national and regional newspapers and magazines. Each month 75-100 radio stations carry his Regional Economic Report.
Abstract
We find that a higher propensity to trust and greater financial transparency are associated with increases in foreign direct investment for a sample of 36 countries. Furthermore, we find that cross-country differences in trust and transparency are strongly related to the different enforcement level, rather than the content, of legal rules covering investor protection.

Taking patents seriously by Helen Gubby, Pieter Kleve and Richard De Mulder, and Jaap van den Herik, Erasmus University Rotterdam, The Netherlands.
Helen Gubby studied law in England where she was called to the bar. She has worked in the Netherlands as a legal translator and lawyer and now lectures on legal English and business law at the Erasmus University Rotterdam.
Dr Pieter Kleve (1954) has been a lecturer in Computer Law at the faculty of law, Erasmus University Rotterdam, since 1986. He is a participant in the research school safety and society and has a special interest in intellectual property and ecommerce.
Prof. R. (Richard) V. De Mulder(1946) holds the chair of Computers and Law at the faculty of law, Erasmus University of law. He is the director of the Erasmus University research programme "Safety and Monitoring" which is part of the national research school "Safety and Security in Society" (onderzoeksschool maatschappelijke veiligheid, OMV). Richard De Mulder has a special interest in jurimetrical research and the application of new technology, especially for monitoring and safety.
Abstract
Do patents make economic sense? This question is as actual today as it was at the time of the Industrial Revolution. It is contended in this article, that in some cases patent protection is largely irrelevant and in other cases it is still not clear whether the protection is useful either to the inventor himself or to society in general. The value of the patent may lie primarily in the status it affords the innovator.
The Information Revolution has changed society by introducing new technology and altering our means of communication. The question of what a patent could protect resurfaced. One reason for this was the appearance of a new form of property: computer software. While computer hardware was more easily understood by judges to be patentable, software was a more challenging form of property for judges to come to terms with. Could software only be the subject of copyright, as a literary work, or could it be protected by patent? Once again, the question arises as to how valuable patent protection is to the patentee today. With rapid technological change, patent protection for a maximum period of twenty years may extend well beyond the economic viability of the invention. The necessity of lodging a detailed specification also gives competition possibly even more time than it needs to have a better replacement lined up at the end of the protected period. Furthermore, there is no compelling evidence to suggest patent protection is good for the community. Patent protection on gene research and drug development is a case in point. During the Industrial Revolution, a patent was often applied for because otherwise it was difficult to find an investor. A patent showed that the invention had to be taken seriously. Perhaps today too, that is the true value of a patent: it is an award of status.

The New EU Services Directive: Metaphor for Europe Today- Model for Expanding International Harmonization Tomorrow by Patrick Ryan Hugg, Loyola University School of Law.
Patrick Ryan Hugg (LL.M. Tulane University School of Law With Distinction; J.D. University of Louisville; A.B. Spring Hill College) is Assistant Professor to Full Professor at Loyola University School of Law. He was guest professor at the University of Vienna LAW Faculty in 1995 and Yditepe University Law faculty in 2002. He is also a John McAulay Professor of Law and Director of Vienna Summer Legal Studies Program and Director of law school International Programs
Abstract
The recent adoption of the European Union’s controversial Services Directive marks a palpable advance in the evolution of Europe’s transborder collaboration and especially in its efforts to stimulate trade. The Services Directive mandates increased Member State cross-border cooperation in the economically dominant services sector, and requires the creation of trade facilitation processes and structures, with a new level of transparency and accountability. This Directive’s design may serve as a model for expanding broader cooperation in promoting international trade in services. Moreover, the fierce legislative debate leading to the Directive’s amendment and enactment reflects the uncertainty and conflict in today’s EU regarding how to manage globalized trade and competitive forces, pitting market economy advocates versus opponents seeking to safeguard European social cohesion.

Virtual criminal law in boundless new environments by Bart J.V. Keupink, Erasmus University, Rotterdam.



Bart J.V. Keupink LL.M. graduated in 2005 at the Law Faculty of the Erasmus University Rotterdam (The Netherlands) in the fields of criminal and private law. He has worked at the Law Faculty as a student-assistant at the department of financial law as well as external clerk of the Rotterdam Court in administrative law cases. After his graduation Bart was appointed a Junior lecturer in Criminal procedural law at the Criminal law department at the Erasmus University. As of January 2006 he is a PhD researcher at the aforementioned department of criminal law, where the core of his research will be to move ‘Towards new fundamentals of liability in criminal law’. It will hold an overview of the legal grounds on which citizens are held criminally liable for their acts.
Abstract
With the financial importance of virtual worlds growing fast, crime takes a flight as well. This paper looks at the current status of criminal behaviour in virtual worlds as more and more seems to be possible. The author comes to the conclusion that real life criminal law is applicable on virtual life activities when those activities break through the expectations participants and developers are legitimately allowed to have. Even though criminal law can be applied to virtual criminal behaviour, the question remains whether it is opportune to use criminal law and to prosecute virtual world participants. The answer to this question can ,without empirical data only be a political one and is therefore left open in the end.

Traditional Knowledge, the CBD and the TRIPS Regime: Synthesising the Discordant Discourses at the WTO by Vydyanathan Lakshmanan, Tamil Nadu Dr. Ambedkar Law University, Chennai, India.











Vydyanathan Lakshmanan is an undergraduate student of law from the School of Excellence in Law, the Tamil Nadu Dr. Ambedkar Law University, Chennai, India. He is currently in his third year of studies. He holds a distinction in academics and represented his institution in the 2006 Philip C Jessup International Law Moot Court Competition, India National Rounds as Speaker. Vydyanathan specializes in international law and has significant publications to his credit with the Indian Society of International Law, the Hague Conference on Private International Law, the TMC Asser Institute and the Indian Journal of Human Rights & Refugee Law. He has written on diverse subjects like state immunity, human rights and international criminal law. In the area of Indian law, he has had publications with the Madras Law Journal and has bagged for his University the first position in the All India Students Seminar, 2005, with his paper ‘Social Responsibility of the Legal Fraternity’ which he ultimately presented before legal luminaries in the Indian legal field, including sitting and former Supreme Court judges. He hopes to take up further studies after his undergraduation and is planning a career in international lawyering.
Abstract
This paper evaluates the discussions in the WTO on the specific issues of Traditional Knowledge, the CBD and the TRIPS. Members have taken divergent approaches but have seen TK through the lens of the CBD. Neither of the arguments of complete harmony or conflict between the TRIPS and the CBD has been agreeable. The prior informed consent of indigenous peoples/governments, regulation of access to biological and TK material and benefit-sharing being the objectives of the debate, I submit that the harmony-conflict argument is unnecessary and can be overcome if the TRIPS is expressly amended to provide for CBD requirements. The paper tries to amalgamate the best from the various approaches to suggest a model regime for TK protection. It recommends that the implementation process be monitored by the TRIPS Council, obliging states to report whenever appropriate and for periodical review of the provisions.

Bridging the Gap in the Doha Talks: A Look at Services Trade by Rafael Leal-Arcas, Queen Mary, University of London.






Rafael Leal-Arcas (Ph.D. Cand., M.Phil. (EUI); J.S.M. (Stanford); LL.M. (Columbia); M.Phil. (LSE); B.A., LL.B. (Granada) is a lecturer in international economic law and Deputy-Director of Graduate Studies, Queen Mary, University of London. Previously he was a Visiting Researcher at Harvard Law School (European Law Research Center) and Fellow at the Real Colegio Complutense (Harvard University), an Emile Noel Fellow at New York University School of Law (Jean Monnet Center for International and Regional Economic Law and Justice), and a Visiting Scholar at the University of Wisconsin-Madison Law School (Institute for Legal Studies). He completed his first law degree at the universities of Granada (Spain), Regensburg (Germany), Bologna (Italy), and Angers (France).
Abstract
Following the suspension of the World Trade Organization (WTO) multilateral trade negotiations in July 2006 – and its subsequent resumption in February 2007 - by WTO Director-General Pascal Lamy, the world trading system must now find ways and means to integrate developing countries in the world trading system. Failing that could be perceived as a danger to the world order. This paper analyzes the legal and policy implications of the current Doha Round for the two main developed WTO Members, i.e., the United States and the European Community, and the most relevant developing countries of the WTO, such as India, Brazil, and China. The specific focus of attention will be mainly on services trade. Thoughts on alternative ways to move forward in the multilateral trading system are presented.