13 July 2012

NOTICE: Comparative Law on SSRN (Thanks to the Irish Society of Comparative Law)

Additional articles from SSRN have been noted by our friend in the Irish Society of Comparative Law:

Dari-Mattiacci, Giuseppe, Guerriero, Carmine and Huang, Zhenxing, The Good-Faith Purchaser: Markets, Culture, and the Legal System (June 20, 2012). Amsterdam Law School Research Paper No. 2012-70; Amsterdam Center for Law & Economics Working Paper No. 2012-01.
A key legal institution is the set of rules balancing theft with markets as alternative means to transfer property rights. Even if all legal systems forbid theft, different societies provide different ex post solutions to the conflict arising between the original owner and the good-faith buyer of a stolen good. These rules range from the full protection of the original owner's property right to the full protection of the buyer's reliance on contract. In situations in which only intermediaries can transfer goods by using either theft or markets, society should condone transfers occurred through theft when innocent buyers value the good more than original owners and reverse them otherwise. We show that, in the first case, provided that the difference between the owner's and the buyer's valuation is not too wide, there are separating equilibria in which moral intermediaries --- i.e., those for whom theft entails a sufficiently high moral cost --- signal their proper title by charging higher prices. In the second case, the market shrinks since moral intermediaries refrain from stealing. In the most likely case, in which buyers tend to value the good more than original owners, the extent of protection of the owner increases (decreases) with the share of moral intermediaries (the quality of the legal system) because of the lower probability of theft (lower impact of public enforcement). Instrumental variables estimates based on a cross section of 77 jurisdictions are consistent with this prediction.

Salomons, Arthur F., Comparative Law and the Quest for Optimal Rules on the Transfer of Movables for Europe (June 8, 2012). Amsterdam Law School Research Paper No. 2012-72; Centre for the Study of European Contract Law Working Paper Series No. 2012-09; European property Law Journal 2012(3), (forthcoming).

The drafters of Book VIII Draft Common Frame of Reference (DCFR) have devoted an impressive amount of time and energy in collecting and publishing comparative data with regard to the existing property law within all Member States of the European Union, and in particular with regard to the subject matter of that Book: acquisition and loss of ownership of movables. This in itself suggests that comparative research played an important role in the drafting process, and this impression is enhanced by the abundance of comparative references and notes in the official Comments to Book VIII. However, the fact that the drafters made an extensive study of the relevant property law of every European legal system does not imply per se that the outcome of their comparative research was taken as guiding in the establishment of the DCFR rules.

In order to gain a better insight into the character of the rules of Book VIII, this contribution seeks to answer the question whether comparative arguments really weighed heavily in the drafting of Book VIII: is the ‘comparative activism’ of its drafters a manifestation of a determination that common or even majority solutions should be the basis of the model rules to be proposed, or did the drafters feel free to propose novel rules even if these were contrary to what applies in most European countries, according to the comparative data they collected and presented themselves? ...

Schill, Stephan W., Deference in Investment Treaty Arbitration: Re-Conceptualizing the Standard of Review Through Comparative Public Law (June 28, 2012). Society of International Economic Law (SIEL), 3rd Biennial Global Conference.

The standard of review to be applied by investment treaty tribunals when reviewing host state conduct is a crucial, but still insufficiently analyzed issue. Although tribunals frequently make reference to “deference” as the applicable standard, the criteria they apply to concretize that concept remain uncertain and little predictable. What is more, the conceptual foundations of granting deference to host states are opaque. The present paper focuses on these foundations and argues that they are intrinsically connected to how investment treaty arbitration is qualified as either a form of commercial arbitration, a means to settle disputes under public international law, or as an internationalized form of judicial review in public law disputes. Siding with the latter, the present paper proposes to conceptualize the standard of review within a separation of powers framework that fuses domestic and international legal considerations in allocating power between states and arbitral tribunals. Within this framework, considerations originating from both international dispute settlement and comparative public law interact to determine and concretize the standard of review.

Hirsch, Jeffrey M., A Comparative Perspective on Unjust Dismissal Laws (2012). in Global Labor and Employment Law: Reports from Law Offices Worldwide (Samuel Estreicher ed.) 2012.

This book chapter is based on a larger project with Samuel Estreicher in which we examine in detail the unjust dismissals regimes of numerous countries. The study of these laws goes beyond the text of the relevant statues and cases, as it uses input from foreign employment law practitioners and available data — particularly claimants’ success rates and average remedies — in an attempt to observe how the laws actually operate in practice.

The conclusion drawn from this study challenges the common “American exceptionalism” premise that argues that adopting a just cause rule would place the U.S. in the same company as the rest of the world. It is true that most countries provide employees with more protection against unjust dismissals than the U.S. But even on paper, the protections in many of the surveyed countries are often weaker than the typical American view of just cause protection assumes. Moreover, the actual practice in these countries frequently reveals even less protection, particularly when remedies are taken into account. These considerations make American dismissal law, although certainly weaker, appear less than exceptional.

In addition, the variances in unjust dismissal regimes suggest that many economic studies of employment protection fail to account for the full range of differences that exist among countries. For instance, a study on the effect of employment regulation on a country’s or firms’ economic performance should not rely solely on the laws as they are written because similar looking laws may have substantially different effects due to their available remedies or other operational disparities. Thus, studies should do more to account for these differences or, where appropriate data are unavailable, at least acknowledge that limitation.

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