Copyright (c) 2009 All rights reserved. http://works.bepress.com/gotanda Recent documents in John Y Gotanda en-us Tue, 18 Aug 2009 08:04:05 PDT 3600 http://works.bepress.com/gotanda/29 http://works.bepress.com/gotanda/29 Wed, 22 Jul 2009 07:41:39 PDT John Y. Gotanda Dispute Resolution http://works.bepress.com/gotanda/28 http://works.bepress.com/gotanda/28 Wed, 22 Jul 2009 07:38:16 PDT John Y. Gotanda Commercial Law http://works.bepress.com/gotanda/27 http://works.bepress.com/gotanda/27 Wed, 22 Jul 2009 07:33:37 PDT John Y. Gotanda Dispute Resolution http://works.bepress.com/gotanda/26 http://works.bepress.com/gotanda/26 Mon, 04 Aug 2008 10:58:56 PDT John Y. Gotanda http://works.bepress.com/gotanda/25 http://works.bepress.com/gotanda/25 Mon, 04 Aug 2008 10:52:47 PDT John Y. Gotanda http://works.bepress.com/gotanda/24 http://works.bepress.com/gotanda/24 Mon, 04 Aug 2008 10:48:41 PDT John Y. Gotanda http://works.bepress.com/gotanda/23 http://works.bepress.com/gotanda/23 Mon, 04 Aug 2008 10:46:22 PDT John Y. Gotanda http://works.bepress.com/gotanda/22 http://works.bepress.com/gotanda/22 Mon, 04 Aug 2008 10:36:17 PDT John Y. Gotanda http://works.bepress.com/gotanda/21 http://works.bepress.com/gotanda/21 Mon, 04 Aug 2008 10:29:26 PDT This essay discusses a number of developments outside of the United States concerning punitive damages, which may ultimately signal a change in the way other countries view American awards of such damages.To date, courts in many countries have refused to recognize and enforce American punitive damages awards on the ground that they violate the host country's public policy. In most civil law countries, such as France and Germany, penal damages can only be ordered in criminal proceedings; a civil award of such damages has been viewed as contrary to ordre public. In common law countries, while punitive damages generally may be awarded in civil suits, there is no agreement on the circumstances warranting punitive damages, and courts differ on the appropriate amount of such an award.While traditionally American awards of punitive damages have been difficult to enforce abroad, this practice may be about to change. Recently developments in France, Germany and the European Union, as well as decisions in Australia, Canada and Spain point toward greater receptivity to punitive damages and enforcement of foreign awards of these damages. In France, proposed revisions to the French Civil Code call for awarding punitive damages in certain cases. In Germany, a study by a prominent scholar finds that German courts are beginning to award penal damages in civil actions. In the European Union, a European Commission Green Paper raises the possibility of allowing the doubling of damages in certain antitrust cases. In Australia, a recent decision by the Supreme Court of South Australia opines that Australian courts would enforce large punitive damages awards ordered by American courts. Moreover, in Canada and Spain, appellate courts affirm decisions to enforce American judgments that included punitive damages. While these developments do not point toward clear sailing for American punitive damages abroad, when viewed together they may foreshadow a change in the wind that may ultimately lead to greater enforcement of these damages. John Y. Gotanda http://works.bepress.com/gotanda/20 http://works.bepress.com/gotanda/20 Mon, 04 Aug 2008 09:58:47 PDT In this article, we posit that when arbitral tribunals decide international disputes, they typically fail to fully compensate claimants for the loss of the use of their money. This failure occurs because they do not acknowledge that businesses typically invest in opportunities that pose a significantly greater risk than the risk reflected in such commonly used standards as U.S. T-bills and LIBOR rates. Claimants also must share the blame when they do not set out a well-constructed claim for interest as damages. However, even when claimants do so, tribunals often award damages at a statutory rate or at rate reflecting a nearly risk-free investment because they are unfamiliar with modern economic and financial principles. We propose changing this practice. We set out a legal framework for allowing an award of interest as damages and then furnish a model for claimants and tribunals to use. Under this model, interest reflects market realities with the interest award to be compounded on a yearly basis. This model would bring awards in line with modern economic realities and more accurately compensate injured parties. John Y. Gotanda