Browsing by Author "Emmert, Frank"

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    Administrative and Court Reform in Central and Eastern Europe
    (2003) Emmert, Frank
    The pre-accession programmes of the European Union and the candidate coun- tries have focused heavily on law reform. Only relatively recently, it was recognised that successful administrative and court reform would be just as necessary in order to achieve the desired goals, namely that the candidates would eventually be able to take on their obligations as new members of the Union. Unfortunately, it has now become evident that it is easier to write new laws than to get them properly applied in every day practice. This article describes a number of cases to illustrate the problem. It shows that administrators and judges in Central and Eastern Europe have significant difficulties with Western working methods, specifically the application of international norms in the national legal order, due process and procedural safeguards, treatment ofprecedents, resolution of ambi- guities and lacunae in the law, etc., which may in turn result in unjust and sometimes absurd application of laws. These difficulties cannot be resolved merely by organising ever more training courses and other theoretical programmes. The author claims that the majority of efforts promoting administrative and court reform applied so far have ren- dered only meager results. Therefore, additional and more creative measures have to be designed and implemented and have to be continued for years beyond accession of most of these countries to the EU in 2004. Otherwise, rule of law deserving its name will not materialise in the new Member States. The author concludes by offering some ideas based on many years of experience in the region.
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    The Argument for Robust Competition Supervision in Developing and Transition Countries
    (2016) Emmert, Frank; Robert H. McKinley School of Law
    The article discusses first the differences between market economic models, socialist or planned economies, and economies controlled by monopolies or cartels, to make the case for competition supervision. Subsequently it argues for a broad approach to competition super-vision - beyond a narrow view of antitrust law. The second part of the paper discusses monopoly or dominant position and the criteria to measure them. It reviews the reasons for merger control as a preventive step against monopoly or dominant position. Finally it discusses the issues related to collusion in the form of cartels and how to detect them. The third part of the paper focuses on the best ways for developing and transition countries to introduce or reinforce comprehensive competition supervision: Functioning institutions and how they have to be empowered and structured; priorities to be set; how competition oversight has to be embedded in the legal system, including court review; and why effective enforcement is so important and how it can be promoted. In an annex** there are links to some 75 countries which have newly introduced competition laws in the past 25 years and their legislative materials. Finally, there are links to another 30 countries which have substantially revised their legislative bases in the same time frame.
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    Blockchain and Private International Law – The Perspective of the United States of America
    (2023) Emmert, Frank
    Lawyers in the United States apply rules on ‘conflict of laws’ rather than ‘private international law’ when it comes to the applicable substantive law, jurisdiction of one forum versus another, and the recognition and enforcement of foreign judicial decisions. These conflict rules are largely the same whether the conflict is between sister states in the U.S. (California, New York, Ohio, etc.) or between a foreign jurisdiction and the U.S. This should make things relatively easy. However, many areas of law, such as contract law, labour law, tort liability, as well as real and personal property law, are matters of state law in the U.S. Disputes in these areas of law have to be brought in state court or, if they can be brought in federal court, for example based on diversity jurisdiction, they will still be subject to state law. Unfortunately, state law is often not codified at all or at least not comprehensively, and it is certainly not uniform across the 50+ jurisdictions in the U.S. This includes the conflict rules. Therefore, analysis of Private International Law as applied to a given blockchain and digital currency transaction or dispute in the U.S. potentially requires analysis of statutory material and – more likely – case law from a variety of states where the matter could be brought to court. This will be hard, if not impossible, for foreign lawyers. The problem is exacerbated by the fact that the U.S. allows several options for creating jurisdiction over foreign parties that are commonly referred to as exorbitant jurisdictions. For example, the so-called transient jurisdiction of a forum can be established by serving a natural person or an executive representing a corporation while they are merely travelling through the forum state. Private parties can reduce their exposure with carefully crafted contracts containing suitable choice of law and arbitration clauses, although this obviously does not work in tort cases and in disputes with regulatory agencies like the SEC and the CFTC. Therefore, the chapter elaborates not just on conflict rules but also on blockchain and cryptocurrency regulation and regulatory authorities in the U.S.
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    Das Bonum Commune in der Globalisierungsfalle
    (2004) Emmert, Frank
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    Cross-border Mergers and Acquisitions: The Case of Merger Control v. Merger Deregulation
    Bedier, Mohammad El-Saied; Emmert, Frank
    During the last century, not only the legal literature but also the literature in many fields along with government efforts on all levels, were all mainly devoted to the debate of trade liberalization in general, and specifically to the case of the expected gains from using international agreements as a tool to remove the trade barriers. Meanwhile, all the parties have paid little attention to profound questions about identifying the impediments that they are facing and the other possible options that might maximize the general welfare, which are the cross-border merger and acquisition transactions. This dissertation will address that under-researched question, and it will try to identify some of those impediments that are facing the cross-border merger and acquisition transactions. The dissertation will mainly focus on the different premerger control laws that are adopted around the globe, as an impediment that faces the cross-border mergers and acquisitions, and it will try to identify the drawbacks of those laws and most importantly develop and examine reforming proposals. The underlying result of this dissertation will reveal that the multijurisdictional premerger control laws across the globe have numerous drawbacks that are actual impediments that face mergers and acquisitions in general, and especially the cross-border transactions. In addition to that, the best reformative option is the abolishing of the premerger control laws, or in other words the deregulation of the cross-border merger and acquisition transactions. The conclusion of this dissertation is that using the law as a useful tool should be reinvented on two dimensions, at one end of the spectrum the law should enable the state possibilities that are required to give a hand and facilitate the entry to markets, by abolishing the premerger control laws i.e. deregulating mergers and acquisitions, and at the other end of the spectrum the law should grant the state the power to monitor and challenge those practices that might cause harm to employees or consumers, before the courts, along with the primary power to challenge anticompetitive behaviors.
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    Die Klagebefugnis von Verbänden in Verfahren vor dem Gerichtshof der Europäischen Gemeinschaft in Luxemburg
    (University of Maribor, Faculty of Law, Insittute of Civil, Primerjalno and Private International Law, 1996) Emmert, Frank
    The complaint power of federations in procedures before the Court of Justice of the European community in Luxembourg.
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    The Draft Common Frame Of Reference (DCFR) - the Most Interesting Development in Contract Law Since the Code Civil and the BGB
    (2012) Emmert, Frank
    The paper presents the DCFR, which is the blueprint for the future Code of Obligations of the European Union and works or works a bit like the UCC in the United States, that is, as a model of commercial code. After a brief historical justification of the project, there is a presentation of what may or may not make the DCFR today. Finally, the potential effect of the MCR project to be chosen by the parties to an international sale transaction is explained through a hypothetical situation.
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    The Family Policy of the European Community
    (Martinus Nijhoff Publishers, 1993) Emmert, Frank
    The task of this chapter is to examine 'the family policy' of the Community. The first part of this report will examine past and present declarations and actions of the Community which may be taken as expressions of a family policy. This part could be called common ground or the established legal situation of families in Community law and policy. In the second part, the focus will be on the question, whether the expressions of family policy identified in the first part can be applied to relationships of lesbians and gay men. The third part will then examine whether the existing legal situation in its treatment of same-sex relationships can be found to be satisfactory from a Community point of view; or, to say it differently, whether the Community should be satisfied with its existing family policy and leave the improvement of the situation of lesbians and gay men to the Member States. The report will conclude by proposing de lege ferenda action by the Community wherever it may be necessary or at least useful, to end unjustified differences in the treatment of same-sex relationships.