Law Commons^™

(Don't) Take Another Little Piece Of My Immunity, Baby: The Application Of Agency Principles To Claims Of Foreign Sovereign Immunity, Daniel P. Roy Iii

Fordham Law Review

This Note examines the split among the federal circuit courts regarding the application of agency principles to claims of foreign sovereign immunity. Specifically, a minority of courts have applied the doctrine of apparent authority in determining whether a sovereign is bound by the acts of its agents. The majority of courts have, however, declined to apply the doctrine, holding that only actual authority is sufficient to bind sovereigns to their agents’ acts. This Note examines the policy ramifications of the minority view through the lens of sovereign debt litigation, especially those conducted by so-called vulture funds, and ultimately concludes that …

Can Banks Be Liable For Aiding And Abetting Terrorism?: A Closer Look Into The Split On Secondary Liability Under The Antiterrorism Act, Alison Bitterly

Fordham Law Review

The Antiterrorism Act of 1990 (ATA) explicitly authorizes a private cause of action for U.S. nationals who suffer an injury “by reason of an act of international terrorism.” ATA civil litigation has increased dramatically following September 11, 2001—and banks, because of their deep pockets, have emerged as an increasingly popular target. Courts are divided concerning the scope of liability under the statute, specifically over whether the ATA authorizes a cause of action premised on secondary liability. Under a secondary liability theory, a plaintiff could argue that a bank, through providing financial services to a terrorist client, aided and abetted an …

Transactional Enforcement Discovery, Aaron D. Simowitz

Fordham Law Review

Joseph Stiglitz described the current Argentine sovereign debt crisis as “America throwing a bomb into the global economic system.” And yet, the U.S. Supreme Court decided to tackle only one head of this massive hydra. Presented with numerous issues arising from the controversy, the Court granted certiorari only on the issue of whether the Foreign Sovereign Immunities Act (FSIA) blocked Argentina’s creditors from obtaining discovery of Argentina’s worldwide financial transactions. Justice Scalia, writing for the Court, concluded that because the FSIA says nothing on its face about discovery—it says nothing about discovery.

But the majority did not grapple with the …

Restructuring A Sovereign Bond Pari Passu Work-Around: Can Holdout Creditors Ever Have Equal Treatment?, Natalie A. Turchi

Fordham Law Review

The rise of vulture fund investing in sovereign bonds has created additional hurdles to successful restructuring in an already fragile ad hoc process. Recent litigation in NML Capital, Ltd. v. Argentina has proven courts’ willingness to utilize powers of equity to enforce a ratable payment interpretation of the pari passu clause—the equal treatment provision commonly found in sovereign bond contracts—creating much uncertainty on how the ruling will affect future restructuring efforts. By looking to the tension in interpretations of the pari passu clause, discrepancies in remedial relief awarded, and international institutions’ proposed solutions, this Note analyzes the role of the …

The Internationalization Of Agency Actions, Jason Marisam

Fordham Law Review

U.S. agencies routinely base their domestic regulations on international considerations, such as the benefits of coordinating American and foreign standards or the foreign policy advantages of a particular policy. I refer to this phenomenon as the internationalization of agency actions. This Article examines what the internationalization of agency actions means for agency decision-making processes, institutional design, and legal doctrine. It creates a stylized model of how agencies determine whether to coordinate their standards with foreign regulations. Among other institutional design findings, it shows that court opinions that reduce the stringency of judicial review when agencies implement internationally coordinated standards make …

Less Is More In International Private Law, Susan Block-Lieb, Terence C. Halliday

Faculty Scholarship

No abstract provided.

Legitimacy And Expertise In Global Internet Governance, Olivier Sylvain

Faculty Scholarship

Over the course of the past decade or so, attention among Internet policymakers and scholars has shifted gradually from substantive design principles to the structure of Internet governance. The Internet Corporation for Assigning Names and Numbers in particular now faces a new skepticism about its legitimacy to administer the essential Internet Assigned Numbers Authority function. ICANN has responded to these doubts by proposing a series of major governance reforms that would bring nation-states more into the organization's decisionmaking. After all, transnational governance institutions in other substantive areas privilege nation-states as a matter of course. This Symposium Essay shows that these …

Legal Reform In The Xi Jinping Era, Carl F. Minzner

Faculty Scholarship

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The plenum decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This article attempts to do three things: (1) analyze how and why China’s …

China After The Reform Era, Carl F. Minzner

Faculty Scholarship

China’s reform era is ending. Core factors that characterized it – political stability, ideological openness, and rapid economic growth – are unraveling. In part, this is the result of Beijing’s steadfast refusal to contemplate fundamental political reform. Since the early 1990s, this has fueled the rise of entrenched interests within the Communist Party itself. It has also contributed to the systematic underdevelopment of institutions of governance among state and society at large. Now, to address looming problems confronting the nation, Chinese leaders are progressively cannibalizing institutional norms and practices that have formed the bedrock of the regime's stability in the …