Trade and Culture in International Law : Paths to (Re)Conciliation

The UNESCO Convention on cultural diversity marks a wilful separation between the issues of trade and culture on the international level. The present article explores this intensified institutional, policy- and decision-making disconnect and exposes its flaws and the considerable drawbacks it brings with it. These drawbacks, the article argues, become particularly pronounced in the digital media environment that has impacted upon both the conditions of trade with cultural products and services and upon the diversity of cultural expressions in local and global contexts. Criticising the strong and now increasingly meaningless path dependencies of the analogue age, the article sketches some possible ways to reconciling trade and culture, most of which lead back to the WTO, rather than to UNESCO.

The Changing Environment of Audiovisual Media. New Technologies, New Patterns of Consumer/Business Behaviour and Their Implications for Audiovisual Media Regulation

Digital TV offers of 200 channels and 500 video-on-demand films, podcasting, mobile television, a new web blog being created every two seconds - these are some of the factual elements depicting contemporary audiovisual media in the digital environment. The present article looks into some of these technological advances and sketches their implications for the markets of media content, in particular as newly emerging patterns of consumer and business behaviour are concerned. Ultimately, it puts forward the question of whether the existing audiovisual media regulatory models, which are still predominantly analogue-based, have been rendered obsolete by the transformed (and continually transforming) digital environment.

The Law of the WTO and the Communications Law of the EC : On a Path of Harmony or Discord?

This paper presents an overview of the law of the World Trade Organization (WTO) relevant to telecommunications services and correlates this body of law with the current regulatory framework for electronic communications networks and services in the European Community. The latter has been adapted to meet the challenges of technological and market developments in communications, epitomized by the processes of digitization, enhanced transport networks and convergence. The novel solutions embodied in the EC electronic communications regime, notably, a new design of the Significant Market Power mechanism, a projected withdrawal of sector specific regulation and an affirmation of the principle of technological neutrality, pose interesting questions as to the conformity of this reformed EC communications law with the WTO rules on telecommunications services and the obligations of the European Communities and their Member States. Looking beyond the WTO legal compatibility test, essential questions regarding the need for evolution of the WTO telecommunications rules are raised. The present paper contributes to the ongoing debate in that context in light of the EC experience.

Commentary of GATS Article IX : Business Practices

Commentary of Article IX of the General Agreement on Trade in Services (GATS) on business practices, including a textual analysis of the provision, as well as an examination of the pertinent WTO case law and of other related international and regional rules and practices.

Regulatory Objectives for Contemporary Electronic Communications : Talking Business or Talking Culture?

The common mantra in telecommunications regulatory fora (be it national, regional or international) now goes along the lines of 'deregulation-good; regulation-bad' and competition is said to be the ultimate answer to basically every question. A generalised dictum like this is in itself suspicious and even more so, when it refers to a sector such as telecommunications, which has a history of heavy regulation and has been the very epitome of state intervention. In the contemporary environment of vibrant communications, subcribing to a purely 'black-or-white' aproach may be, to put it mildly, unsafe. Before answering the question of appropriate regulatory model for communications markets, it is essential to figure out what goals are to be pursued in order to consider what kind of measures could bring about their attainment. In the words of Robert Bork, 'only when the issue of goals has been settled is it possible to frame a coherent body of substantive rules'. Against this backdrop, the present paper looks into the goals and objectives of telecommunications regulation, their complexity and inherent tension between commercial and public interests.

Patenting genes and gene sequences: Analysis of public health implications and the law

At issue is whether or not isolated DNA is patent eligible under the U.S. Patent Law and the implications of that determination on public health. The U.S. Patent and Trademark Office has issued patents on DNA since the 1980s, and scientists and researchers have proceeded under that milieu since that time. Today, genetic research and testing related to the human breast cancer genes BRCA1 and BRCA2 is conducted within the framework of seven patents that were issued to Myriad Genetics and the University of Utah Research Foundation between 1997 and 2000. In 2009, suit was filed on behalf of multiple researchers, professional associations and others to invalidate fifteen of the claims underlying those patents. The Court of Appeals for the Federal Circuit, which hears patent cases, has invalidated claims for analyzing and comparing isolated DNA but has upheld claims to isolated DNA. The specific issue of whether isolated DNA is patent eligible is now before the Supreme Court, which is expected to decide the case by year's end. In this work, a systematic review was performed to determine the effects of DNA patents on various stakeholders and, ultimately, on public health; and to provide a legal analysis of the patent eligibility of isolated DNA and the likely outcome of the Supreme Court's decision. ^ A literature review was conducted to: first, identify principle stakeholders with an interest in patent eligibility of the isolated DNA sequences BRCA1 and BRCA2; and second, determine the effect of the case on those stakeholders. Published reports that addressed gene patents, the Myriad litigation, and implications of gene patents on stakeholders were included. Next, an in-depth legal analysis of the patent eligibility of isolated DNA and methods for analyzing it was performed pursuant to accepted methods of legal research and analysis based on legal briefs, federal law and jurisprudence, scholarly works and standard practice legal analysis. ^ Biotechnology, biomedical and clinical research, access to health care, and personalized medicine were identified as the principle stakeholders and interests herein. Many experts believe that the patent eligibility of isolated DNA will not greatly affect the biotechnology industry insofar as genetic testing is concerned; unlike for therapeutics, genetic testing does not require tremendous resources or lead time. The actual impact on biomedical researchers is uncertain, with greater impact expected for researchers whose work is intended for commercial purposes (versus basic science). The impact on access to health care has been surprisingly difficult to assess; while invalidating gene patents might be expected to decrease the cost of genetic testing and improve access to more laboratories and physicians' offices that provide the test, a 2010 study on the actual impact was inconclusive. As for personalized medicine, many experts believe that the availability of personalized medicine is ultimately a public policy issue for Congress, not the courts. ^ Based on the legal analysis performed in this work, this writer believes the Supreme Court is likely to invalidate patents on isolated DNA whose sequences are found in nature, because these gene sequences are a basic tool of scientific and technologic work and patents on isolated DNA would unduly inhibit their future use. Patents on complementary DNA (cDNA) are expected to stand, however, based on the human intervention required to craft cDNA and the product's distinction from the DNA found in nature. ^ In the end, the solution as to how to address gene patents may lie not in jurisprudence but in a fundamental change in business practices to provide expanded licenses to better address the interests of the several stakeholders. ^

Family Business in Mexico: Responses to Human Resource Limitations and Management Succession

Indigenous firms in Mexico, as in most developing countries, take the shape of family businesses. Regardless of size, the most predominant ones are those owned and managed by one or more families or descendent families of the founders. From the point of view of economics and business administration, family business is considered to have variety of limitations when it seeks to grow. One of the serious limitations is concerning human resource, which is revealed at the time of management succession. Big family businesses in Mexico deal with human resource limitations adopting measures such as the education and training of the successors, the establishment of management structure that makes control by the owner family possible and divisions of roles among the owner family members, and between the owner family members and the salaried managers. Institutionalization is a strategy that considerable number of family businesses have adopted in order to undergo the succession process without committing serious errors. Institutionalization is observed in such aspects as the establishment of the requisite condition to be met by the candidate of future successor and the screening by an institution which is independent of the owner family. At present these measures allow for the continuation of family businesses in an extremely competitive environment.

Business ethics: a way to identify fraud from the basics

When we look to perform a work for developing a framework to create a business and take it correctly, there are always some persons looking as a challenge those bases and finding a mistake. The way to work in these situations is not a matter of law, is a matter of devoting time to identify these situations. It is always said that the evil goes a step ahead. The business ethics have been altered for quite time by some would-be entrepreneurs. These people have learned to play with business ethics to show your business as prosperous as something that is sought to highlight and adulterate their results quickly. Once the company reaches an international dimension, many companies take on global responsibility and, in these cases where you can see if the objective has been to obtain a rapid capital increase or growth is in line with its proportions. A business ethics is based on establishing a strong base so that interest is encouraged from an early time. Good staff, organizational level should be achieved and not only at the company but, out of the company too. Thus, you can create a secure base to convince potential investors and employees about the business. There are no freeways in business ethics and all fast track can be or a genius or leads to failure. We must find where these jumps are occurring, such errors or corrections to business ethics and their rules. Thus we can differentiate a company or an entrepreneur who is working correctly from the cloaking. Starting from the basics of business ethics and studying the different levels from the personal to the prospect that the company shows in the world. Lets see where these changes are occurring and how we can fight against them and anticipate the market to possible cases of fraud or strange movements seeking to attract the unwary

A responsabilidade civil dos administradores de companhias abertas: artigo 159, § 6°, LSA e a Business Judgment Rule

O estudo da responsabilidade civil dos administradores de companhias abertas na doutrina nacional trata usualmente dos deveres fiduciários, do ato regular de gestão e da teoria ultra vires, da culpa ou dolo do administrador, das ações ut universi e ut singuli e da solidariedade entre a responsabilidade do administrador e a da companhia. Poucos abordam as causas extintivas dessa responsabilidade, e raro são os que tratam da hipótese de exclusão de responsabilidade do artigo 159, § 6º, da Lei nº 6.404/76. Como a disciplina dos deveres fiduciários prevista na lei societária brasileira tem forte influência do Direito norte-americano, buscou-se na legislação, doutrina e jurisprudência daquele país os fundamentos necessários à melhor interpretação e aplicação da regra de exclusão e, em especial, na business judgment rule, doutrina que protege os administradores contra responsabilização por prejuízos à companhia decorrentes de decisões por eles adotadas, proteção esta também conferida pela hipótese do artigo 159, § 6º, da Lei nº 6.404/76, ao administrador leal e de boa-fé.

The Future Direction of Delaware Law (Including a Brief Exegesis on Fee Shifting Bylaws)

Delaware sets the governance standards for most public companies. The ability to attract corporations could not be explained solely by the existence of a favorable statutory regime. Delaware was not invariably the first or the only state to implement management friendly provisions. Given the interpretive gaps in the statute and the critical importance of the common law in the governance process, courts played an outsized role in setting legal standards. The management friendly nature of the Delaware courts contributed significantly to the state’s attraction to public corporations. A current example of a management friendly trend in the case law had seen the recent decisions setting out the board’s authority to adopt bylaws under Section 109 of the Delaware General Corporation Law (DGCL), particularly those involving the shifting of fees in litigation against the corporation or its directors. The DGCL allows bylaws that address “the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders, directors, officers or employees.” The broad parameters are, however, subject to limits. Bylaws cannot be inconsistent with the certificate of incorporation or “the law.” Law includes the common law. The Delaware courts have used the limitations imposed by “the law” to severely restrict the reach of shareholder inspired bylaws. The courts have not used the same principles to impose similar restraints on bylaws adopted by the board of directors. This can be seen with respect to bylaws that restrict or even eliminate the right of shareholders to bring actions against management and the corporation. In ATP Tour, Inc. v. Deutscher Tennis Bund the court approved a fee shifting bylaw that had littl relationship to the internal affairs of the corporation. The decision upheld the bylaw as facially valid.The decision ignored a number of obvious legal infirmities. Among other things, the decision did not adequately address the requirement in Section 109(b) that bylaws be consistent with “the law.” The decision obliquely acknowledged that the provisions would “by their nature, deter litigation” but otherwise made no effort to assess the impact of this deterrence on shareholders causes of action. The provision in fact had the practical effect of restricting, if not eliminating, litigation rights granted by the DGCL and the common law. Perhaps most significantly, however, the bylaws significantly limited common law rights of shareholders to bring actions against the corporation and the board. Given the high dismissal rates for these actions, fee shifting bylaws imposed a meaningful risk of liability on plaintiffs. Moreover, because judgments in derivative suits were paid to the corporation, shareholders serving as plaintiffs confronted the risk of liability without any offsetting direct benefit. By preventing suits in this area, the bylaw effectively insulated the behavior of boards from legal challenge. The ATP decision was poorly reasoned and overstepped acceptable boundaries. The management friendly decision threatened the preeminent role of Delaware in the development of corporate law. The decision raised the specter of federal intervention and the potential for meaningful competition from the states. Because the opinion examined the bylaw in the context of non-stock companies, the reasoning may remain applicable only to those entities and never make the leap to for-profit stock corporations. Nonetheless, the analysis reflects a management friendly approach that does not adequately take into account the impact of the provision on the rights of shareholders.

Legislative Proposals to Modernize Business Development Companies and Expand Investment Opportunities, Testimony Before the House Subcommittee on Capital Markets and Government Sponsored Enterprises

This testimony discusses proposed legislation to amend the definition of accredited investor. It also discusses proposed legislation designed to reform the regulatory framework for business development companies. Among other things, the regulatory regime for BDCs would change to allow these companies to invest a greater portion of their assets in financial companies, potentially reducing the percentage of assets invested in operating companies.

The eight hours day for wage earning women: United States Supreme Court upholds the California law : List of eight hours laws

National Consumers' League.