自贸试验区法院适用CISG 的分歧及对策

从实证研究角度看,四大自贸试验区法院在适用CISG问题上分歧较大,各种类型的适用情形都存在,不仅导致法律适用的不统一,而且不利于构建国际化的营商环境。适用CISG的分歧原因在于对CISG适用规则的认识不足、国内法律供给不足以及对CISG的熟悉程度不足。为增强自贸试验区法院在准确适用国际条约方面起到的表率作用,建议最高人民法院通过司法解释或指导性案例的方式,要求或引导自贸试验区法院准确、统一适用CISG。此外,加大培养精通国际经贸规则的高层次法律人才是增加CISG适用的基础性条件。     

Simon Middleton. From Privileges to Rights: Work and Politics in Colonial New York City. Philadelphia, Pa.: University of Pennsylvania Press, 2006. 320 pp. ISBN 0-8122-3915-6, $45.00 (paper)

The idea of a transition from small producer to capitalist productionin late eighteenth-century America, a popular topic in 1980sand 1990s, is wrong. This is the message of Simon Middleton’sFrom Privileges to Rights, a study of New York City artisansin the colonial era. Using records from the Mayor’s Court(roughly equivalent to municipal courts today), and variousother sources, Middleton finds possessive individualism to bea growing force among New York City artisans at least     

论反倾销司法审查制度

反倾销司法审查制度是指法院通过对反倾销行政行为进行审查，发挥司法权力对行政权力的制约作用。国内法院的反倾销司法审查与WT0的争端解决机制是相互独立的关系。我国反倾销司法审查的范围应包括对不启动反倾销调查的行政决定。反倾销司法审查的标准包括事实问题和法律问题两个方面，体现了国内法院对行政权限一定程度的尊重。     

Access to justice for consumers: A perspective from common law countries

The paper examines techniques suggested in recent times by the “access to justice” movement for overcoming the inadequacy of traditional means of consumer protection, which are very dependent upon the individual consumer's initiative and financial resources. The jurisdictions discussed are the United States, Britain, Australia, and Canada. The author first examinesclass actions. They have found recognition only in the United States, and even there, courts have begun to follow a more restrictive line. There is little reason to believe that the introduction of the institute into other jurisdictions — as recommended in Australia — will have great impact upon the consumer's position.Small claims courts have become popular, both in the United States and the other countries discussed, due to the cumbersome and expensive procedures in ordinary courts. The main deficiency of small claims courts lies in the fact that they may be used by enterprises for cheap debt collection. The procedure of awarding monetarycompensation to consumers who have experienced loss as a result of an offence — instituted by law reform in certain places — has a very limited scope. Finally, the author discussesactions by consumer organizations and agencies. They are not very frequent in common law countries, and if consumer organizations do no get public funding, such a system will hardly turn out to be adequate. In his conclusion, the author is rather skeptical of the role of the courts in the improvement of consumer protection: They have too little input from consumer quarters and they are limited to a case-by-case reasoning. Courts have only a supplementary role to play in consumer protection.     

Winning in Small Claims Courts: An Empirical Analysis

Small claims courts provide consumers with a potentially effective method for complaint resolution. Little is known, however, about the factors which influence the probability of consumers winning their cases in court or of successfully settling their cases out of court. This study estimated these probabilities using 1975–76 data from the Syracuse, New York Small Claims Court. A major goal of the research was to determine if plaintiffs' demographic characteristics, the amount and type of advice sought by plaintiffs and the specific characteristics of the cases differentially affected the probability of successful consumer outcomes. Major findings were that economic variables such as the amount of the claim and the amount offered by way of settlement of the claim primarily determined the probability of settling out of court. Neither sex nor race had any impact on the probability of winning in court. Advice from the small claims court staff and from lawyers both were found to lower the probability that the consumer would win in court. The results point to the need for more empirical analyses of small claims court cases and may aid educators in advising consumers on the use of the institution and policy makers concerned with court reform.     

Must be the Music: Examining the Placement Effects of Character-Brand Association and Brand Prestige on Consumer Brand Interest within the Music Video Context

First introduced as a way to promote an artist's music, the music video now serves as a communication tool that influences viewers’ consumption patterns across a variety of product categories. Through the use of a quasi-experiment, the effects of the artist-brand relationship and brand prestige on consumer brand interest are examined. Findings indicate that characteristics of the focal brand as well as the brand's link with an individual in the video may especially impact a consumer's interest in owning a brand. Managerial and scholarly implications are also advanced.     

Gossage Revisited: Reflections of Advertising's Legendary Iconoclast

This article is an examination of the Supreme Court decisions that pertain to the status of advertising under the First Amendment's freedom of speech provision. The author asks to what extent national advertising—commercial communication from producers to consumers promoting the producers' brands—is constitutionally protected, and concludes that instead of giving the national advertiser greater freedom, the Court may have reduced his freedom by expecting more legitimate commercial information. In Virginia Pharmacy the Court made it clear that protection did not preclude regulation to insure that “the stream of commercial information flow(s) cleanly as well as freely.”     

Identification Effects on Advertising Response: The Moderating Role of Involvement

This study examines two important variables for advertisers, ethnicity and product involvement. We investigate the effectiveness of Hispanic-targeted advertising by exploring the impact of ad model's ethnicity on attitudes toward high- and low-involvement products. The results of our quasi-experiment suggest that appealing to strong Hispanic identifiers may be highly desirable in terms of creating favorable attitudes when advertising low-involvement products. For high-involvement products, Hispanic-targeted advertising may not be as effective since ethnicity may not be an important cue. Theoretical implications regarding the impact of distinctiveness theory and practical implications for practitioners trying to spend advertising dollars more efficiently are discussed.     

Saying Nothing With Words

Good legislation depends on clearly articulated policy objectives. This paper argues that a significant threat to effective consumer protection is posed by fuzzy thinking at the policy-making stage. Three major Australian law reform initiatives are examined: the Contracts Review Act 1980 (New South Wales); new uniform truth in lending laws; and product liability legislation. In each case, effective policy choices were left unresolved, either because the choice was politically too difficult or simply because of a failure by the policy makers to perceive that there was a choice needing to be made. In each case, the problem has been disguised by resort to drafting at a high level of abstraction, and this serves to make rhetorical claims in support of the legislation seem plausible. The truth, however, is that legislation drafted this way is bound to be indeterminate and it is left to the courts to invent policy as part of the interpretation process. This is not a legitimate judicial function.     

The FTC's Public Interest Requirement: An Anomoly in Consumer Protection*

Proposals for consumer class actions and individual law suits have been considered by Congress during its last two sessions. Both bills sponsored by the administration condition recovery by the consumer upon successful completion of action by the FTC. FTC action, under these proposals, would be an absolute prerequisite to private recovery. Since private recovery is made to depend upon FTC action, the jurisdiction of the Federal Trade Commission becomes critical in determining whether or not a consumer will be entitled to relief. The “Public Interest Requirement” has long been viewed by the courts as a limitation upon Commission Jurisdiction. Thus, if the administration proposals are adopted, that requirement will have to be satisfied before individual consumer recovery will be available. This article seeks to identify the elements of the public interest requirement. Both judicial opinions and the Commission's criteria are considered and evaluated.     

Green productivity and bilateral trade flows in an augmented gravity model – A panel data analysis

Motivated by the debate in the trade liberalization and the environment literature, this article examines the effect of enhancing green productivity (GP) on bilateral trade flows. The uptake of per capita ISO14001 certification counts is used to measure GP. The existing literature provides other key determinants of bilateral trade flows. This article employs an augmented gravity model and presents panel data analysis on 26 countries from 1995–2004. Since GP is closely related to quality management, this article also examines the joint effect of the measure of quality management systems (QMS) and the measure of GP. Several fixed effects regression equations are estimated. The results support the hypothesis that enhancing green productivity is a positive and statistically significant determinant of real bilateral exports. The joint significance of the measures of GP and QMS is also supported. This article lends empirical support for the new trade theory and Linder's hypothesis and is consistent with those obtained in the existing literature.     

构建科学司法权监督机制 提高司法公信力

党的十七大以来,我国司法体制和工作机制改革取得新进展,司法独立性大大加强,促进了司法公正;克服了人少案多的不足,司法效率大大提高。但当前我国不规范的司法行为还一定程度存在,司法公信力还有待加强。必须认真贯彻党的十八大精神,进一步深化司法体制改革,充分发挥司法机关内部监督作用,加强检察监督作用,高度重视律师监督作用,自觉接受人大和政协监督,科学对待新闻媒体的舆论监督作用,构建科学司法权监督机制,提高司法公信力。     

The supreme struggle: ‘Obamacare’ and the new limits of federal regulation

On June 28, 2012, the U.S. Supreme Court rejected legal challenges to the Patient Protection and Affordable Care Act, commonly known as ‘Obamacare,’ by a vote of 5-4. In National Federation of Independent Business v. Sebelius (2012), a majority of the justices affirmed Congress's power to expand Medicaid and impose an individual mandate requiring people to obtain health insurance or face increasing tax penalties. The Court's decision was widely condemned as a dramatic expansion of federal power that threatened state sovereignty and individual liberty. The Court was heavily criticized for betraying the principles of federalism and limited government in the U.S. Constitution. The harshest criticism was reserved for Chief Justice John Roberts, a Republican appointee who—though considered a conservative justice—authored the Court's opinion and cast the critical deciding vote to uphold the Act. In reality, far from dramatically expanding federal power, the Court's decision placed groundbreaking limits on Congress's power to regulate commerce and use federal funds to pressure states into doing its bidding. These aspects of the Court's decision received less attention in the popular media, but may actually prove to have a more significant impact on the scope of federal regulation in the future. This installment of Business Law & Ethics Corner explains how those aspects of the Court's decision place new limits on the nature and scope of federal regulation.     

Judicial Independence and Cash Flow: Evidence from a Natural Experiment in China

This paper supplements studies on the economic consequences of judicial independence from the perspective of cash flow. It explores the rotation of local judges as an exogenous shock that increases local judicial independence in China and analyses the impact of rotation on provincial cash inflow using data from China's high‐value payment system. The difference‐in‐difference estimates indicate that the rotation of the judges can attract more outside cash inflow, including amount and average size. This effect persists even after controlling for the endogeneity concern and the effect of disaster. The results of the dynamic effects show that the impact of the rotation of the judges on cash inflow mostly originates in the second and third years after the rotation. We further find that judicial independence can promote more foreign direct investment, venture capital's investment, and bank loans and clarify the impacting mechanisms of judicial independence on cash inflow.     

Reaching those at highest risk to fires and burns: Young children,older adults,and people in low-income communities

Injury specialists have not successfully convinced policy makers and the public that injuries can be controlled. That failure may be due in part to the lack of a unified understanding of injury control. The two most important models utilized in injury control are Haddon's Matrix1 and the Public Health Approach (PHA). This paper argues that the PHA should be combined with the two axes of Haddon's Matrix to result in a model that is coherent and comprehensive. Thus it is better than either one of the original models on their own. Haddon's Matrix has two axes. The first includes elements of the epidemiological triad, host, vector, and environment and likens injury to disease. The second axis includes three time intervals, pre-event, event, and post-event. The importance of including time was that injury was conceptualized as predictable and preventable. The weakness of Haddon's matrix is that it lacks a systematic plan of action. The Public Health Approach is a methodology for addressing injury, which consists of a hierarchy of four levels; surveillance, risk factor identification, intervention evaluation and program implementation. The use of the PHA with no specific orientation or means of application is its weakness. The PHA lacks a systematic point of application. Haddon's Matrix lacks a systematic action plan. Therefore we propose the PHA as the systematic strategy for the more theoretical framework of Haddon's matrix. By combining these concepts a coherent and comprehensive three-dimensional framework is defined. The unified model closes the potential gaps in the two original models and includes a systematic approach not previously achieved. This unified model is practical in defining individual studies and groups of studies. It can be used as an inventory, for a complete understanding of a particular injury. Diagrams of the model are presented to help teach the concepts of injury described in this unitary model. In conclusion, we can say that the inclusion of three injury concepts in one framework provides a rigorous and coherent construct for the understanding of injury and implementation of control activities. It can therefore be used to design more comprehensive programs for injury control and promote policies and funding commensurate with the magnitude of the injury problem.     

Curriculum reform and teachers' training needs: the case of higher education in Ghana

Professional development is the key to curriculum‐based reform, yet there is little empirical evidence upon which to base decisions of design or implementation of training and development programmes. This study examined the training and development needs of Ghana's polytechnic teachers in an existing curriculum reform scenario as they became involved in curriculum design. Forty‐four teachers and four heads of mechanical engineering departments and representatives of the leadership of four polytechnics granted comprehensive interviews and responded to questionnaires. Findings revealed that updating subject knowledge through industrial attachments was a major training and development need for teachers. Teachers indicated that they were keen to get more involved in curriculum design and argued for their subject knowledge to be improved to give them the confidence to do so. The results of the study suggest higher education teachers have training and development needs in relation to effective curriculum design and implementation. It is proposed that polytechnic–industry links are strengthened and that teachers should draw on teamwork to plan and undertake industrial attachments.     

Reasonable accommodation under the ADA: What's an employer to do?

As many observers expected when the Americans with Disabilities Act became law, employers have faced numerous court cases regarding the matter of appropriate accommodations for disabled workers under the law. The difficulty is that no consensus has emerged on the various interpretations of that law. Three particular areas of concern and disagreement have emerged, namely, how the accommodation request is made, how to handle reassignments, and whether to permit telecommuting as a substitute to working on premises. Several federal circuit courts have determined that the employer must respond to an employee's request in virtually any form, while others have stated that the employee must be specific in requesting an accommodation for disability. In two circuits, the employee must show some evidence of disability. The case law governing reassignment also varies by circuit, but in general a disabled employee who is being transferred would be given priority over prospective hires for the same position. The work of existing employees is not to be increased as a consequence of the ADA. Finally, telecommuting has thus far not found favor in most courts, but an employer who permits telecommuting for some employees will find it difficult to claim hardship for a worker who seeks to telecommute under the ADA's provisions. The courts have been most supportive of employers who have made a specific, fact-based determination regarding an employee's request for accommodation. By focusing directly on the situation at hand, an employer can document the particulars of an ADA request, regardless of whether the employee is satisfied by the employer's determination.     

Reforming the Governance of the International Monetary Fund

Democratising the governance of the IMF will significantly improve the institution's capacity to manage crises. The implementation of a democratic framework requires a reform of the Fund's ‘quota regime,’ which mediates the distribution of voting power. An optimal reform of the quota regime that reflects the increased weight of emerging economies requires matching the number of policy objectives with the number of policy instruments. Presently, there is a classic ‘assignment problem’ whereby one policy instrument (i.e., the quota regime) is aimed at achieving three objectives (i.e., member contribution obligations, access rights, and voting rights). Three different instruments need to be adopted. Member contributions should be based on member's capacity to pay; access to resources should be based on need; and voting rights should balance the rights of creditors with the principle of sovereign equality. These reforms will enhance the Fund's legitimacy and accountability as a forum for global economic policy‐making.     

落实科学发展观的公共收入制度与政策研究

作为政府筹集公共资金的基本制度，政府公共收入制度是国民收入分配的重要工具和调控手段。建立一个规范、合理的政府公共收入制度和机制，是目前我国促进科学发展观贯彻落实的配套条件和保障因素。从现实看，除了要继续调整税制结构，完善税制体系，包括调整流转税税率和结构、改进和完善所得税、开征物业税、改革税收征管体制外，还应当从改革和完善政府非税收入体系，特别是改革地方政府土地出让和土地收入制度，改革和完善资源、环境税费制度，深化政府间财政收入分配体制的改革等方面加大力度，以促进资源节约型、环境友好型社会建设，促进落实科学发展观。     

Reformoptionen des Länderfinanzausgleichs unter politökonomischer Betrachtung

The German states Bavaria and Hesse have initiated a legal case against the German fiscal equalisation system. The German Federal Constitutional Court has already made rulings concerning this system on three occasions, and thus this new case is not expected to result in major changes. Consequently, states may have to depend on the Bundestag and Bundesrat to implement any changes to the system. Minor reforms would be likely to pass muster with the Court. This is important, as even minor changes can have a significant impact on states’ revenues. This study analyses whether there are policy reform options that could attain majorities in the Bundestag and Bundesrat and estimates the possible effects of the policies on states’ revenues.