Comparative Corporate Law
The corporation is a complex mechanism for getting together to make money and do other good things. It is bedeviled, however, by a host of problems, all of which eventually stem from what we are: social animals. While the basic structure of companies in modern economies is largely universal, different countries – with their different legal systems, market structures, and other social institutions, such as norms and culture – address these issues differently. This presents a challenge both to policy – and law-makers as well as to legal and business practitioners. The first term of this course provides an introduction to the field of comparative corporate governance. First, the basic issues that every corporate governance system needs to address will be identified. Next, prominent expamples of the ways in which countries address these issues will be explored, including observing the reasons for variability and trying to understand their roots. Finally, term one will deal with the interactions between different legal systems in financial markets from the vantage-point of comparative corporate governance. The second term of the course focuses on the corporate governance of Chinese firms. Due to the global economic downturn and significance of China as the second largest economic power in the world, it is essential for commercial lawyers and business executives to acquire some basic knowledge of company law and governance from both comparative and Chinese perspectives. Equipped with this knowledge, lawyers or business executives will be able to put themselves in the best possible strategic position when negotiating, drafting, performing and enforcing contracts in cross-border or China-related legal transactions. Topics to be covered include corporate governance and performance, corporate structure and division of corporate power, minority shareholder protection, fiduciary duties, cross-border mergers and acquisitions and cross-listings, private equity investment and corporate finance. No prior knowledge of corporate law or securities regulation is assumed or required.
Taught by Licht and Shen
Constitutional Law: Minorities and Territories in India and China
This course will introduce students to comparative constitutional perspectives from the emerging economies of the two most populous countries – India and mainland China. After a brief exposure to fundamental principles of constitutional law and governance structure in each jurisdiction, the course will explore two areas in greater detail. The first focal point will be the relation between the central government and the governments in states, provinces, or regions. A related issue will be the constitutional status of, and the actual practice in relation to, autonomous regions within both India and China. The second focal point will be the treatment of ethnic minorities in vastly diverse Indian and Chinese societies. An attempt will be made to understand both differences and similarities between the constitutional traditions of India and China. Although the legal position in these two jurisdictions will be dealt with in sequence on after another rather than together, students should be able to draw comparative insights from classroom discussions and prescribed reading materials.
Taught by Deva and Zhu
The Global Financial Crisis and Bankruptcy
This course will offer a comparative approach to insolvency law, with a focus on corporate insolvency systems. Given the recent worldwide financial crisis, the need for insolvency law reform has once again been publicized, and many countries are in the midst of such reform. The first term of this course will begin by considering the philosophical underpinnings of insolvency law and secured transactions and the supporting factors and conditions (e.g., judicial, legal, and economic) necessary to make an insolvency regime work. It will then provide an overview of Asian insolvency law systems prior to the onset of the 1997 Asian financial crisis. A variety of topics integral to corporate insolvency law will be explored, including the following: systems for the enforcement of debt, formal corporate rehabilitation procedures, informal out-of-court restructuring procedures, employee rights in insolvency, and avoidance powers. Recent and on-going insolvency law reform efforts in Asia will be highlighted. The second term of the course will cover an overview of Japanese insolvency law, including the history of Japanese insolvency law, the Bankruptcy Act, the Corporate Reorganization Act, the Civil Rehabilitation Act, the Act on Recognition of and Assistance for Foreign Insolvency Proceedings, and outside of court arrangements.
Taught by Booth and Kashiwagi
Introduction to American Law
This course is intended to provide a broad introduction to key elements of American law. The first term of this course will introduce students to some of the distinctive aspects of United States law and legal institutions, including sources of U.S. law, the role that lawyers play in the U.S. legal profession, U.S. legal education, issues of federalism, and the protection of individual rights. In the second half of the course, special attention will be given to developing a working understanding of the American litigation system, including pre-trial discovery and trial procedure, and the growth of alternatives to litigation, such as mediation. Students will conduct a mock civil trial, playing the roles of attorneys, witnesses, and jurors.
Taught by Ward and Dimond
Law and Governance in Southeast Asia
This course will be a comparative survey of constitutionalism in various countries in South East Asia. Human rights and democratic movements have idealized constitutionalism and the Rule of Law ideal of “a government of laws and not of men,” and this has in turn been pushed forward in South East Asia by international donor programs, political parties, and civil society organizations. Yet in many SE Asia contexts, there is only a weak tradition of rights-based thinking and the necessary formal “rule of law” institutions, like independent courts, are not fully developed. Moreover, some SE Asian states are only nominally secular or ethnically-neutral and, thus beholden to dominant majorities, they are likely to be at best “illiberal democracies.” Other SE Asian societies are in a state of transition from command to market economies, and are testing to what extent their centralized politics are compatible with economic liberalization. The course will explore the place of law in communal governance in SE Asia, examining the factors affecting governance issues, and the extent to which the historically Western tradition of constitutionalism has taken root or is yet to take root in these societies. The following issues will be examined: constitutionalism and constitution-making; liberalism and the dilemmas of transplanted constitutionalism; constitutions and human rights, human rights agencies; constitutional courts and enforcement of constitutional law; the developmental state: economic liberalization, and political centralism; the neutral, secular state: religious and ethnic majorities and minorities; governance, regulation, and independent agencies; foreign aid programs and law reform; social and redistributive justice; and anti-corruption programs.
Taught by Harding and Pangalangan
Legal Traditions and Cultures: East and West
This course offers students an opportunity to develop an understanding of the legal and cross-cultural dimensions of resolving international business disputes through means of arbitration in a global context. The first term will present an introduction to the law of international commercial arbitration including establishing jurisdiction, admissibility and applicable law followed by discussion of the cross-cultural dimensions of international dispute resolution in the East Asian context. Students will be asked to negotiate and draft agreements and to prepare and present arguments in arbitration settings involving issues of commercial law. Following on the first term’s consideration of legal and cross-cultural dimension of resolving private participant’s international disputes, the second term will consider the legal and cross-cultural dimensions of resolving state-to-state international business and economic law disputes. First, the role of legal cultures in the public international business and economic legal order will be examined. Legal culture is one of the most significant but ignored factors in the development and operation of the law. This is particularly problematic as among the more intractable yet hidden barriers in transnational law are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from different legal cultures are forced to interact as part of the implementation of the law across two different legal cultures. That conflictual interaction can impede or block the success of that law. While present in domestic legal systems, those conflicts are more likely and the conflicts may be deeper between the many different legal cultures involved in the international legal order. This course will focus on those issues in the international business and economic law context. Specifically, the course will consider the legal cultures present in Western and non-Western legal cultures, with particular focus on those interacting across the Pacific in the fields of international trade, investment and development law. These three fields provide a rich environment for the course to explore legal cultural conflicts as they daily play out in the legal interactions between participants from the very different legal cultures that surround the Pacific.
Taught by Ali and Picker