学术团体近期讨论会综述

美国The University of Connecticut School of Law, Columbia University, Chicago-Kent College of Law, NYU School of Law, STEP, John Marshall　law school , Brooklyn Law School Centre等学术团体近期讨论会综述
本期的主要内容是关于２００５年美国私法（主要是财产和公司）方面的学术讨论会

Copyright (c) 2005 Berkeley Technology Law Journal
Berkeley Technology Law Journal

Summer, 2005

20 Berkeley Tech. L.J. 1283

SYMPOSIUM: NGO Publishes Study on National Tax Blacklists
简介：此讨论会的是题目是国内税收的有关问题，主要内容涉及了，国内税收黑名单是否是一种经济上的歧视，国际上对各国税收黑名单的政策等问题。

SUMMARY:
On September 19, 2005, during a symposium of the Society for Trust and Estate Practitioners (STEP) in London, England, Jason Sharman, Government and International Relations, University of Sydney, and Gregory Rawlings, Regulatory Institutions Network Research, School of Social Services, The Australian National University, discussed Deconstructing National Tax Blacklists; Removing Obstacles to Cross-Border Trade in Financial Services, a study commissioned by STEP. n1
They discussed: the number and content of blacklists; the implications of being on the lists; and how the lists are compiled. The blacklists tend to be arbitrary and discriminatory because there not complied in line with any objective or consistent rules or criteria. They contradict international norms, in that they violate Most Favored Nation principles.
The report explains that countries take a variety of approaches to guarding their national tax revenues. Many of the measures used to this end impact the international trade in services. National tax blacklists are a common way for governments to try and limit tax losses at home by limiting or barring transactions carried out by their citizens or corporations with certain specified foreign jurisdictions. Such national tax blacklists also have especially serious consequences in restricting the trade in international financial services.
National blacklists are compiled by public authorities. They appear in various parts of the tax codes. The reference to tax blacklists is shorthand for lists of jurisdictions that may exist in many different aspects of onshore countries' tax codes and related laws and regulations. Finally, they are blacklists in that the specified consequences are negative: punitive taxes, more burdensome reporting requirements, and so on.
The report also discusses \"greylists,\" which refer to jurisdictions named in legislation, decrees, or regulations in a way that may entail negative legal consequences for particular types of transactions if certain other conditions are fulfilled.
Only list of specific countries were included. The arbitrary and capricious nature of their compilation make them vulnerable. Some lists are quite broad and long. Some include up to 90 jurisdictions.
Sometimes national developments, such as the Argentine fiscal crisis or U.S. tax inversion debate in 2001-3, influence the compilation of the lists. The work of international organizations, especially the OECD Harmful Tax Practices, is important. In the last twelve months there is a trends towards removal from the black list in exchange for negotiating a tax information exchange agreement (e.g., Venezuela-Barbados). The national blacklists are updated slowly and become obsolete and arbitrary.
Some lists ignore legal reality. Recurrence of silly errors indicate that countries, rather than doing independent research, engage only in cutting and pasting from the blacklists of other countries. When copying Mexico's list, Venezuela blacklisted itself. Meanwhile, since 1996 Mexico has blacklisted a country called Patau, which does not exist. The study assumes it meant Palau, a tiny Pacific island, which until 1994 was a U.S.-administered United Nations Trust territory.
Portugal, Argentina, Mexico and Venezuela also blacklist the UK territories of St. Helena and Ascension Island, although as of April 2004 neither had a bank and St. Helena has a corporate tax rate of 30 per cent. n2
The distinction between listing specific jurisdictions and using abstract objective criteria is important because the former tends to conflict with widely-held principles of the international trade system. Important among these is that which bars discrimination on national grounds, especially the MFN principle. MFN accords that goods and services from one foreign jurisdiction must be treated the same as those from any other foreign jurisdiction, or, conversely, that countries must not discriminate among foreign trading partners on the basis of nationality alone. Article II of the General Agreement on the Trade in Services (GATS) enshrines this principle as a general obligation for all members, but also underpins the work of the World Trade Organization (WTO) in general and all related agreements. In addition, basing rules and regulations on objective and nondiscriminatory criteria is critical for the rule of law at the domestic and international level.
The study provides a warning to any country that has already introduced a blacklist or is considering doing so to be rigorous in ensuring that this list is objective justified and is capable of being updated as circumstances change. The study has tables showing product-based and country-based national tax blacklists. It has appendices showing individual blacklists by issuing country, selected additional countries with national tax blacklists, selected national tax blacklists, the U.S. informal list of tax havens, and U.S. bills introduced to combat corporate inversion and tax haven-facilitated avoidance from 2001.


Copyright (c) 2005 Berkeley Technology Law Journal
Berkeley Technology Law Journal

Summer, 2005

20 Berkeley Tech. L.J. 1283

SYMPOSIUM:  John Marshall　law school: Intellectual property law
简介：介绍了法学院网络知识产权法的发展及现在的一些讨论会

SUMMARY:
By 1943, the Patent Law Association of Chicago by Dean Edward T. Lee had grown to more than 30 lectures in patents, trademarks, copyrights, and unfair trade secrets. The school awarded a new degree, a Master of Patent Law.
Today, that degree has evolved into a Master of Laws in Intellectual Property.
Counting June of 2004 and January of 2005, for example, the school awarded a total of 60 of these degrees, said William T. McGrath, interim director of the school's Center for Intellectual Property Law.
In the mid-1950s, John Marshall began an annual, daylong conference on patent law that brought in speakers from around the nation, and eventually from around the world.
The topics for these daylong conferences show the expansion of IP law through the decades.
In 1959, U.S. Supreme Court Justice John Paul Stevens, then a Chicago lawyer, discussed the importation and sale of French products in the United States by American companies \"for the purpose of excluding competition\" in violation of the Sherman Act.
By 1987, the conference examined, \"The Patentability of Algorithms\" and the benefits to computer programmers.
At the 2004 conference, topics included Internet piracy and trademarks and the Internet.
For more than 12 years, the school has also been a partner with the People's Republic of China in the training of patent attorneys for the State Intellectual Property Office (SIPO) in Beijing. Today, more than 100 attorneys at that office have John Marshall certificates or diplomas, according to the law school.
Some new topics taught include \"right of publicity,\" or control of a celebrity's image and name; trademarks and the Internet, and the impact of information technology here and abroad on patents, trademarks and copyrights.
Upcoming, special programs at the school for the anniversary year are as follows:
- Nov. 18, speakers will discuss \"Creative Processes and the Public Domain.\"


Copyright (c) 2005 Berkeley Technology Law Journal
Berkeley Technology Law Journal

Summer, 2005

20 Berkeley Tech. L.J. 1283

SYMPOSIUM: SPYWARE: THE LATEST CYBER-REGULATORY CHALLENGE: ARTICLE: Spyware and the Limits of Surveillance Law
简介：此次讨论会的内容是关于网络间谍软件对个人隐私的侵犯

NAME: By Patricia L. Bellia+


SUMMARY:
... The controversy over how best to respond to the \"spyware\" problem provides only the most recent illustration of that phenomenon. ... Even though the defendant's device captured keystrokes used in the composition of e-mail, the court concluded that no interception of an electronic communication occurred. ... The SCA requires a showing that a defendant obtained, altered, or prevented authorized access to a communication \"while ... in electronic storage\" in a facility through which an electronic communication service is provided. ... Surveillance law will combat only narrow categories of spyware: perhaps keystroke monitors, but only if courts can move past the problem of applying the \"electronic communication\" definition to data purely internal to a computer; and perhaps certain software designed to generate targeted advertising, but only if such software was installed surreptitiously or if a court finds that the user's consent was otherwise deficient. ... In re Pharmatrak Privacy Litigation presents a rare example of a case in which a claim that placement of a cookie on a user's hard drive, coupled with other conduct, violated a surveillance law statute was allowed to proceed. ... First, it is difficult to identify a \"facility through which an electronic communication service is provided\" to which the content provider or advertiser gains unauthorized access. ...  


Copyright (c) 2005 Berkeley Technology Law Journal
Berkeley Technology Law Journal

Summer, 2005

20 Berkeley Tech. L.J. 1345

SYMPOSIUM: SPYWARE: THE LATEST CYBER-REGULATORY CHALLENGE: ARTICLE: Contracting Spyware by Contract
简介：此次讨论会的内容是关于网络间谍软件对个人权利的侵犯（合同的角度）

NAME: By Jane K. Winn+


SUMMARY:
... Does contract law provide consumers whose computers are clogged with spyware any tools to defend themselves against this onslaught of unwanted software? The answer is likely to be no, as courts have shown themselves to be generally willing to enforce online contracts notwithstanding questions about what consumers actually knew or intended when the contract was formed. ... Distributors of software that includes viruses or other malware - which permit the software developer to commit identity theft or to access the end user's financial accounts without authorization - can distribute their programs with interfaces that do not require the cooperation of the end user. ... If the consumer could claim that unwanted adware running on a computer substantially interfered with the consumer's use of that computer, then it might be possible to make out a trespass to chattels claim. ... If a contract term is drafted in advance and the consumer has no influence over the substance of the term, then it is always considered not to be individually negotiated, and hence subject to review based on substantive fairness. ... Law reform efforts aimed at filling this apparent gap in contract doctrine appear narrowly targeted at problems associated with a particular technology - spyware - and so are unlikely to have any impact on the balance of power between merchant and consumer under contract law doctrine generally. ...  

Copyright (c) 2005 Berkeley Technology Law Journal
Berkeley Technology Law Journal

Summer, 2005

20 Berkeley Tech. L.J. 1363

SYMPOSIUM: SPYWARE: THE LATEST CYBER-REGULATORY CHALLENGE: ARTICLE: Regulating \"Spyware\": The Limitations of State \"Laboratories\" and the Case for Federal Preemption of State Unfair Competition Laws
简介：此次讨论会的内容是关于网络间谍软件对知识产权的侵犯

NAME: By Peter S. Menell+


SUMMARY:
... Like many technological breakthroughs, the Internet has brought about great economic and social advancement, but not without some undesirable consequences. ... It may also violate intellectual property rights: Does using a competitor's trademark to trigger an advertisement infringe trademark rights? Does delivering a pop-up window over the webpage of another company implicate copyright law? Is alerting Internet users querying a particular manufacturer's trademark or URL to a competitor's website or discount offer a form of unfair competition? Unlike most of the other papers prepared for this conference, this Article does not seek to determine the optimal type of regulation to address spyware concerns. ... Given the uncertain contours of state unfair competition law, a federal preemptive regulatory approach provides a better climate than decentralized state regimes for both regulating spyware and encouraging business and software innovation. ... In 1999, The Gator Corporation introduced technology that utilized Internet users' search queries as a vehicle for delivering category-specific advertising in the form of pop-up and pop-under windows and banners that overlay advertisements delivered by the website that a consumer was visiting. ...  


Copyright (c) 2005 Brooklyn Law School
Brooklyn Journal of International Law

2005

30 Brooklyn J. Int'l L. 819

SYMPOSIUM: INTELLECTUAL PROPERTY ONLINE: THE CHALLENGE OF MULTI-TERRITORIAL DISPUTES: Co-sponsored with the Brooklyn Law School Center for the Study of International Business Law: PANEL I: RESOLUTION THROUGH CONFLICT OF LAWS: THE ALI PRINCIPLES ON TRANSNATIONAL INTELLECTUAL PROPERTY DISPUTES: WHY INVITE CONFLICTS?
简介：网络中的知识产权

NAME: Rochelle Dreyfuss *


SUMMARY:
... As those members of the innovation community who focus on procedural law know, the American Law Institute (ALI) is engaged in a project to facilitate litigation of intellectual property disputes that cross national borders. ... The Hague Convention and its Application to Intellectual Property ... And in some instances, servers can be artfully placed so that there is no one country where all the steps of a patent are practiced -- and therefore, arguably, no infringement anywhere. ... A convention tailored to the needs of the intellectual property community could also make the adjudication of international infringements efficient. ... After defining the areas of intellectual property law to which the Principles will apply, the issues dealt with at the Hague are addressed. ... Some of the language in the current draft is essentially a placeholder for changes that will likely be made to conform the Principles to the choice of forum convention currently under negotiation at the Hague. ... If the defendant is found to have directed infringement towards a state, then a plaintiff who is a resident of that state, may assert claims for all the harm resulting from the defendant's activity, no matter where that harm actually occurred. ... Finally, as with the Draft Hague Convention, the Principles list a series of bases that are considered inappropriate predicates for adjudicatory authority. ...  


Copyright (c) 2005 Brooklyn Law School
Brooklyn Journal of International Law

2005

30 Brooklyn J. Int'l L. 849

SYMPOSIUM: INTELLECTUAL PROPERTY ONLINE: THE CHALLENGE OF MULTI-TERRITORIAL DISPUTES: Co-sponsored with the Brooklyn Law School Center for the Study of International Business Law: PANEL I: RESOLUTION THROUGH CONFLICT OF LAWS: A EUROPEAN POINT OF VIEW ON THE ALI PRINCIPLES -- INTELLECTUAL PROPERTY: PRINCIPLES GOVERNING JURISDICTION, CHOICE OF LAW, AND JUDGMENTS IN TRANSNATIONAL DISPUTES
简介：知识产权的转让和国际争端

NAME: Francois Dessemontet *


SUMMARY:
... This Article relates to my personal views on the current status of the American Law Institute (ALI) Principles - Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes (ALI Principles or Principles). ... The Principles cover the most important fields of intellectual property: copyright, neighbouring rights (broadcasters, phonogram producers and performers), trademarks, patents for inventors, trade secrets, trademarks, domain names, other intellectual property rights, and rights stemming from enforcement of unfair competition claims. ... First, consolidation of proceedings could only take place in a country which is a member of the WTO and a party to TRIPS; but that requirement is no longer an element of the Principles. ... It may obtain personal jurisdiction based upon residence of one or several parties in the forum, by agreement, or based upon a wrong committed in that forum. ... Generally speaking, the territoriality of intellectual property rights precludes the conflict of law issues to arise at all, if not the conflicts of interests and policies. ...  

Copyright (c) 2005 Brooklyn Law School
Brooklyn Journal of International Law

2005

30 Brooklyn J. Int'l L. 885

SYMPOSIUM: INTELLECTUAL PROPERTY ONLINE: THE CHALLENGE OF MULTI-TERRITORIAL DISPUTES: Co-sponsored with the Brooklyn Law School Center for the Study of International Business Law: PANEL I: RESOLUTION THROUGH CONFLICT OF LAWS: REMARKS BY GRAEME DINWOODIE *
简介：在知识产权保护方面美国法律协会(ALI)原则的讨论

SUMMARY:
... I am going to comment on several developments in this area in common law systems, and then try and relate those comments to the ALI proposal that we have been discussing. ... The Internet, the topic of our conference, arguably has changed that notion of the appropriate prescriptive authority of the state. ... I'm going to talk now about the territorial enforcement model because I think another great contribution of the ALI project is to start a discussion about consolidation in intellectual property cases. ... On other occasions, I have sensed that, at least in the Internet context, and contrary to the protestations in the commentary, it would be exceptional to adhere to copyright territoriality under the ALI Principles. ... With respect to trademark law, I would argue that the ALI project might encourage the de-Americanization of trademark law because at present the US courts essentially apply American law, particularly in domain-name-related disputes, to almost any case over which they can obtain adjudicative jurisdiction. ... Although I am receptive to the notion that procedural rules are never fully neutral, I agree with Rochelle and Francois that the ALI proposal does not a substantive bias in favor of one view of intellectual property law. ...  


Copyright (c) 2005 Brooklyn Law School
Brooklyn Journal of International Law

2005

30 Brooklyn J. Int'l L. 899

SYMPOSIUM: INTELLECTUAL PROPERTY ONLINE: THE CHALLENGE OF MULTI-TERRITORIAL DISPUTES: Co-sponsored with the Brooklyn Law School Center for the Study of International Business Law: PANEL II: SUBSTANTIVE HARMONIZATION AND OTHER APPROACHES: INTELLECTUAL PROPERTY POLITICS AND THE PRIVATE INTERNATIONAL LAW OF COPYRIGHT OWNERSHIP
简介：国际知识产权法要保持与国内政策的关系

NAME: Graeme W. Austin *


SUMMARY:
... In 1992, a leading British commentator called for the development of a \"much needed private international law of intellectual property. ... Most importantly, a single governing law approach can be justified as consistent with the concept of retaining a strong connection between the intellectual property laws that govern copyright ownership and the domestic policies of the nations for which these laws have greatest relevance. ... The Supreme Court of Canada rejected the Canadian Copyright Board's conclusion that a communication occurs in Canada only if it originates from a server located within Canada. ... Accordingly, it saw \"no reason to exclude the Australian provisions relating to ownership of copyright. ... One might think that copyright ownership issues in the transnational context perhaps can be seen to implicate domestic sovereignty interests to a lesser extent than substantive rules on infringement. ... As an attempt to accommodate some of the broader political concerns arising in intellectual property law today, I would advocate localizing copyright ownership issues broadly in line with the Second Circuit in Itar-Tass. ... At least some of the ALI Project's audience, including its most vigorous interlocutors, are likely to be deeply involved in the political debates that now inform both domestic and international intellectual property lawmaking. ...  
Copyright (c) 2005 Brooklyn Law School
Brooklyn Journal of International Law

2005

30 Brooklyn J. Int'l L. 925

SYMPOSIUM: INTELLECTUAL PROPERTY ONLINE: THE CHALLENGE OF MULTI-TERRITORIAL DISPUTES: Co-sponsored with the Brooklyn Law School Center for the Study of International Business Law: PANEL II: SUBSTANTIVE HARMONIZATION AND OTHER APPROACHES: Trademarks and the Internet: Resolution of International IP Disputes by Unilateral Application of U.S. Laws
简介：关于建立跨国的单一的IP权利

NAME: Richard L. Garnett


SUMMARY:
... What may be needed, more dramatically, is the creation of a single, transnational, IP right similar to the European Union (EU) Community Trademark and the proposed EU Community Patent. ... This test has been applied in the Internet trademark context by the Ninth Circuit to secure jurisdiction over a defendant who registered a trademark belonging to a plaintiff as a domain name, and then tried to sell it back to the company in an extortive fashion. ... GlobalSantaFe is a good example of why ACPA is needed: had it not existed, the U.S. trademark owner would have struggled to obtain personal jurisdiction over a party who was blatantly infringing upon its rights. ... com refused the registrant's claim for a declaration, holding that the domain name infringed upon the City Council's rights under Spanish trademark law. However, the Fourth Circuit reversed this decision, holding that foreign trademark law was irrelevant to a registrant's suit to recover a domain name under ACPA. According to the court, U.S. trademark law had exclusive operation in such a case, and since the word \"Barcelona\" was not protected under U.S. law, the registrant was entitled to keep the domain name. ...  


Copyright (c) 2005 The Catholic University of America
CommLaw Conspectus

Summer, 2005

13 CommLaw Conspectus 1

2005 SYMPOSIUM: THE TELECOMMUNICATIONS ACT OF 1996: A CASE OF REGULATORY OBSOLESCENCE: PARTICIPANT ISSUE PAPER: The Intersection of Sherman Act Section 2 and the Telecommunications Act of 1996: What Should Congress Do?
简介：关于己过时的《1996年电信法》

NAME: By Ray G. Besing

SUMMARY:
... The Bell Companies, or \"the Bells,\" (SBC, Verizon, BellSouth and Qwest) and the FCC have been claiming since last year that the rapid advances in new technology have rendered the Telecommunications Act of 1996 (\"the Act\") obsolete. ... Precisely because this alternative did have the advantage of rather quickly implementing true competition in the local market, however, the ILECs--particularly the Bells--vigorously resisted and impeded prospective competitors. ... Significantly, the Second Circuit found that plaintiff's allegation that it received poor local service because of Verizon's attempt to maintain its monopoly power by refusing to provide competitor AT&T with timely processing of service orders via OSS to its local network could state an antitrust claim. ... Nevertheless, the Supreme Court adopted the notion that, once a regulatory act requires a monopolist to behave, when the monopolist also, or subsequently maintains or increases its monopoly power by violating Sherman Section 2 (by a refusal to deal or by a refusal to provide access to an essential facility) then the monopolist is immune from antitrust remedies. ... \"The essential facilities doctrine has a long and respected history as part of U.S. antitrust law. ... A provider shall not violate any provision of this Act or any regulation promulgated hereunder. ...


Copyright (c) 2005 Berkeley Technology Law Journal
Berkeley Technology Law Journal

Summer, 2005

20 Berkeley Tech. L.J. 1433

SYMPOSIUM: SPYWARE: THE LATEST CYBER-REGULATORY CHALLENGE: ARTICLE: First Do No Harm: The Problem of Spyware
简介：间谍软件问题网络立法的一个挑战

NAME: By Susan P. Crawford+


SUMMARY:
... Online problems are popularly understood to be easily susceptible to offline legal categorizations and, thus, solutions. ... The bill defined \"Context Based Triggering Mechanisms\" as \"a software based trigger or program residing on a consumer's computer that displays an advertisement according to: (a) the current Internet website accessed by a user; or (b) the contents or characteristics of the current Internet website accessed by a user. ... The revised Act defines \"spyware\" as \"software on the computer of a [Utah] user\" that \"collects information about an Internet website at the time the Internet website is being viewed in this state\" and uses that information contemporaneously to display pop-up ads. ... Some of these services may not provide notices of any kind, and may be installed invisibly when a user elects a particular network of relationships or chooses a particular provider of online access. ...  


Copyright (c) 2005 The Trustees of Columbia University in the City of New York
The Columbia Journal of Law & the Arts

Summer, 2005

28 Colum. J.L. & Arts 397

SYMPOSIUM: METAMORPHOSIS OF ARTISTS' RIGHTS IN THE DIGITAL AGE: KEYNOTE ADDRESS
简介：独立个人作者的保护

NAME: Graeme W. Austin*


SUMMARY:
... The odds of making a living from working just as an independent \"author\" are somewhat slim. ... The analog environment has not always been kind to author-blockheads. ... That said, the centrality of authorship in copyright law might at least inform debates about what the Eldred Court meant by copyright's \"traditional contours,\" particularly in the context of fair use. ... Given that the reference in Eldred was made in the context of a decision holding a significant change to U.S. copyright law to be constitutional - the addition of 20 years to existing copyright terms - it is hard to imagine that Justice Ginsburg intended her words as general invitation for a constitutional challenge every time Congress amends the copyright laws. ... The kind of reproduction involved in experiencing these works probably does not implicate the rights of the copyright owner; yet access controls may allow more efficient price differentiation that responds to elasticity in consumer preferences. ... Of course, the Berne Convention mandates that the enjoyment and exercise of copyrights shall not be subject to any formality. ...  


Copyright (c) 2005 The Trustees of Columbia University in the City of New York
The Columbia Journal of Law & the Arts

Summer, 2005

28 Colum. J.L. & Arts 451

SYMPOSIUM: METAMORPHOSIS OF ARTISTS' RIGHTS IN THE DIGITAL AGE:  What's Next? Panel on New Issues
简介：Professor Tribe and Murray关于独立个人作者的保护的讨论

NAME: Moderator: Tim Wu

SUMMARY:
... Timothy Murray is Professor of Comparative Literature and English and Director of Graduate Studies in Film and Video at Cornell University. Professor Murray is also curator of The Rose Goldsen Archive of New Media Art, co-curator of CTHEORY MULTIMEDIA and curator of Contact Zones: The Art of CD-Rom. ... He is Director of Art and Technology at the Columbia University School of the Arts, where he is currently teaching a seminar on intellectual property, technology and the arts. ... He is a co-author of \"Obscenity and Indecency,\" \"Copyright\" and \"Trademark and Unfair Competition Issues,\" in Internet and Online Law. ... MODERATOR: First, Professor Tribe and Murray both spoke to some length of a change to a more collaborative model of authorship and artistry. ... And if you're a publisher, if you're an artist, if you're any other kind of author, and you have to make some determination as to whether or not what you're doing is a fair use, maybe that strikes you as a weakness, because you don't have any legal certainty. ...  


Copyright (c) 2005 Connecticut Law Review
Connecticut Law Review

Spring, 2005

37 Conn. L. Rev. 619

SYMPOSIUM: Piercing the Veil: Is the Common Law the Problem?
简介：在侵权和法定之债的情况下揭开公司面纱原则的适用

NAME: ROBERT B. THOMPSON **


SUMMARY:
... Piercing the veil is the most litigated issue in corporate law. ... Piercing Principle # 3: Piercing or disregard of the separateness of the corporation occurs when we (society) do not trust that private allocation, an analysis that inevitably should be different in bargain cases as compared to tort or statutory cases. When should courts after the fact interfere with the allocation of risk established by Principles 1 and 2? If a contract is obtained by fraud, courts have always been willing to provide relief and corporate law is not needed. ... Tort cases differ from contracts in that the creditor who seeks to look past the likely inadequate corporate assets to gain access to the assets of the shareholder has had no opportunity to bargain for a higher price or additional security from the corporation or to refuse to deal with a \"no asset\" corporation. ... These cases differ from other piercing cases in that the result of recognition of a corporation as separate from its individual or parent shareholder may not be to permit the avoidance of liability, but in the alternative may permit the separate corporation or its shareholders to gain a government benefit, such as unemployment compensation or more attractive regulatory supervision. ...  


Copyright (c) 2005 Connecticut Law Review
Connecticut Law Review

Spring, 2005

37 Conn. L. Rev. 637

SYMPOSIUM: Piercing the Veil in Corporate Groups
简介：关联公司中的揭开公司面纱原则的变化

NAME: KURT A. STRASSER *


SUMMARY:
... Piercing the veil is corporate law's most widely used doctrine to decide when a shareholder or shareholders will be held liable for obligations of the corporation. ... However, the traditional veil piercing rules are not the only doctrinal path to parent company liability, and this part will also note the alternative doctrines that courts sometimes apply to shift contract or tort liability among the entities of a corporate group. ... I. TRADITIONAL VEIL PIERCING AND OTHER DOCTRINES FOR SHIFTING COMMON LAW LIABILITY WITHIN CORPORATE GROUPS ... Limited Shareholder Liability and Traditional Veil Piercing ... There are also a number of cases that hold a parent company liable for defective products made by a subsidiary, even when the parent company was not involved in distribution, although the results here are more mixed with some cases using veil piercing law, including some finding no liability. ... A third group of \"enterprise\" cases finds parent company liability in tort claims also brought against the subsidiary. ... Neither of the questions that are central to traditional veil piercing directs the inquiry to matters of concern to tort policy. ... Because limited liability policy is different within corporate groups, traditional veil piercing and the other doctrines that articulate the outer boundaries of that limited liability will need to be different also. ...  


Copyright (c) 2005 Connecticut Law Review
Connecticut Law Review

Spring, 2005

37 Conn. L. Rev. 605

SYMPOSIUM: The Transformation of Modern Corporation Law: The Law of Corporate Groups
简介：关于关联公司的问题

NAME: PHILLIP I. BLUMBERG *


SUMMARY:
... The response of the law to the challenge presented by the emergence of multinational corporations and other corporate groups as the dominant institutions in the world's economy is a major development in American and world jurisprudence. ... Over the past century, courts and legislatures have been increasingly faced in numerous areas by this choice between focusing on the individual corporate entity or the enterprise in resolving the legal questions before them. ... In numerous areas, American courts and legislatures have turned to concepts of enterprise and have attributed the rights or liabilities of one interrelated affiliate of a corporate group to another affiliate in resolving legal questions. ... While the literature about \"piercing the veil,\" particularly the literature reviewing the economic dimensions of the doctrine of limited liability, tends to concentrate on the choice between traditional entity or enterprise concepts in contract and tort, the fact of the matter is that much, if not most, of the law of corporate groups is found in other areas. ... In these areas including procedure and in personam jurisdiction, entity law rests solely on the traditional jurisprudential concept of the separate juridical personality of the corporation. ... Traditional \"piercing\" jurisprudence rests on a demonstration of three fundamental elements: the subsidiary's lack of independent existence; the fraudulent, inequitable, or wrongful use of the corporate form; and a causal relationship to the plaintiff's loss. ...  


Copyright (c) 2005 Connecticut Law Review
Connecticut Law Review

Spring, 2005

37 Conn. L. Rev. 785

SYMPOSIUM: Changing Paradigms: The Liability of Corporate Groups in Germany
简介：德国《股份公司法》中关于关联公司的责任

NAME: RENE REICH-GRAEFE *


SUMMARY:
... The German law on affiliated companies and groups of companies (\"Konzernrecht\"), as embodied in the German Stock Corporation Act of 1965, as amended (\"Aktiengesetz\"), has often been credited for its innovative approach to the dichotomy of liability strategies relevant to corporate groups -- viz., the traditional concept of entity liability based on the fundamental doctrine of the legal separateness of the corporate entity and, accordingly, resulting in a limitation of investor liability as the rule, and discrete and rare occurrences of what is almost poetically designated the \"piercing of the corporate veil\" (\"Durchgriffshaftung\") as narrow and reluctantly crafted exceptions, and the more modern, revolutionary concept of group or enterprise liability (\"Konzernhaftung\") in the law of corporate groups which -- in its most radical form -- will allow (and even mandate) a court to penetrate all horizontal and vertical \"corporate separateness barriers\" within a ... Thus, if one agrees that such new direct liability strategy of the Federal Supreme Court qualifies, in substance, as veil piercing (at least, when examined through a U.S. corporate law \"lens\"), and if, in addition, one takes into account the Court's complete abandonment of the qualified de facto group doctrine, i.e., of a significant portion of the dualist fabric of German corporate group law as discussed earlier, then another fundamental, this time conceptual paradigm change emerges: The enterprise-liability oriented, hybrid approach pursued by the qualified de facto concern doctrine -- and any and all resemblances thereof -- has been (apparently judiciously) avoided by the Federal Supreme Court while substituting such doctrine with existenzvernichtender Eingriff. ...