Law Commons^™

The Renewable Power Of The Mine, Nicolas Maennling, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Access to affordable and reliable energy is key for the mining sector and with rising demand for minerals and falling ore grades, energy demand is estimated to increase by 36% by 2035. Today, energy produced and procured by mining companies is mostly fossil fuel based. This will have to change if the sector is to contribute to the decarbonization of the world economy, needed for countries to meet the target adopted at the Paris Agreement of keeping global temperatures from rising more than 1.5-2 degrees Celsius.

At the same time, the costs of solar, wind and battery storage systems have …

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

All Faculty Scholarship

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of …

Updates To The Uncitral Legislative Guide On Privately Financed Infrastructure Projects, Brooke Guven, Motoko Aizawa

Columbia Center on Sustainable Investment Staff Publications

CCSI, jointly with The Observatory for Sustainable Infrastructure, submitted comments to the UNCITRAL Secretariat regarding updates to the UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects. CCSI’s comments focused on the need for an updated guide, which will now refer to Public Private Partnerships, to holistically and systematically incorporate considerations of: (1) sustainable development and the SDGs, (2) rebalancing of the public versus private nature of PPPs, (3) transparency, participation, accountability, and remedy, (4) empirical evidence-based assessments of contexts in which PPPs may be desirable, (5) objectives of investment and PPPs, (6) human rights, (7) labor, (8) climate change, …

Law Library Blog (November 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Unravelling Civil Conspiracy, Pey Woan Lee

Research Collection Yong Pung How School Of Law

This article seeks to understand civil conspiracy through the lens of its historical rationale. It identifies that purpose to be the protection of public interests as the tort was originally fashioned as an extension of criminal conspiracy to counter serious social ills. For lawful means conspiracy, this rationale is exemplified by the requirement for improper or illegitimate motive whilst “unlawful means” serves the same function in the context of unlawful means conspiracy. Counter-intuitively, understanding the tort in this way provides a means of restricting the tort and reigning in its “revolutionary” tendencies. Recognising the tort’s policy-based foundation would, it is …

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson

Articles

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather …

Texas Gulf Sulphur And The Genesis Of Corporate Liability Under Rule 10b-5, Adam C. Pritchard, Robert B. Thompson

Articles

This Essay explores the seminal role played by SEC v. Texas Gulf Sulphur Co. in establishing Rule 10b-5’s use to create a remedy against corporations for misstatements made by their officers. The question of the corporation’s liability for private damages loomed large for the Second Circuit judges in Texas Gulf Sulphur, even though that question was not directly at issue in an SEC action for injunctive relief. The judges considered both, construing narrowly “in connection with the purchase or sale of any security,” and the requisite state of mind required for violating Rule 10b-5. We explore the choices of the …

Agricultural Investments Under International Investment Law, Jesse Coleman, Sarah Brewin, Thierry Berger

Columbia Center on Sustainable Investment Staff Publications

International investment law, based primarily on international investment treaties, plays an important role in the governance of investment in agriculture, forestry, and fishing. The obligations established by these treaties, and enforced by means of investor–state arbitration, can present challenges for policy-makers and others seeking to ensure that investments are sustainable, including by affecting the ways in which the costs and benefits of investments are distributed among different actors.

CCSI partnered with the International Institute for Environment and Development (IIED) and the International Institute for Sustainable Development (IISD) to produce a briefing note on agricultural investments under international investment law. The …

The Securities Law Implications Of Financial Illiteracy, Lisa Fairfax

All Faculty Scholarship

Every financial literacy study conducted over the last few decades concurs: Americans, including American investors, are financially illiterate. This Article argues that America’s financial illiteracy poses a significant, widespread, and long-term challenge for our federal securities regime because that regime is premised almost entirely on disclosure as the best form of investor protection and, by extension, on investors’ ability to understand disclosure. By advancing a typology of investors and their disclosure needs, this Article further argues that we may have significantly underestimated the extent of the financial illiteracy problem based on at least two flawed assumptions. First, we have presumed …

A New Market-Based Approach To Securities Law, Kevin S. Haeberle

Faculty Publications

Modern securities regulation has three main areas, each of which is plagued by a core problem. Mandatory disclosure law leaves society with suboptimal disclosure, as the government calls for too little of some information (for example, management analysis of company prospects) and too much of other information (for example, data about trivial executive perks). Securities fraud law (specifically, its central fraud-on-the-market theory of reliance) yields damages at odds with any reasonable theory of compensation and deterrence. And insider trading law fails to achieve its ends because incentives to police illegal trading and tipping by executives are currently weak.

In this …

Outcome Report Of Roundtable On International Investment Regime And Access To Justice, Michelle Chan, Kanika Gupta, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

On October 18, 2017, the UN Working Group on Business and Human Rights and the CCSI co-hosted a one-day roundtable on the impacts of the international investment regime on access to justice for investment-affected individuals and communities.

Held at Columbia University in New York, the roundtable brought together 32 individuals from civil society organizations, communities affected by investments at the heart of investor-state claims, governments, academia, donor organizations, UN mandate holders, and other stakeholder groups. The roundtable provided an opportunity for participants to: (i) explore and assess the specific impacts of international investment agreements and investor-state dispute settlement on access …

Community-Investor Negotiation Guide 2: Negotiating Contracts With Investors, Sam Szoke-Burke, Rachael Knight, Kaitlin Y. Cordes, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …

Community-Investor Negotiation Guide 1: Preparing In Advance For Potential Investors, Rachael Knight, Kaitlin Y. Cordes, Sam Szoke-Burke, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …

Shadowing Lenders And Consumers: The Rise, Regulation, And Risks Of Non-Banks, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Since the financial crisis of 2008, “shadow banking” or financial transactions by “non-banks,” has skyrocketed. Non-banks are not depositary institutions and as such, they roam free, largely outside the purview of the bank regulators. They occupy all parts of the credit markets, from mortgage loan origination to payday lenders. Untethered, they operate without government guarantees, such as deposit insurance and have no access to emergency government lending facilities, such as the Federal Reserve's discount window.

There are both positives and negatives in the rise of non-banks. On the positive side is market liquidity and greater diversity of funding sources for …

Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes?

CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors.

By scrutinizing “legal support gaps,” CCSI sought to identify possible weak …

The Avoidance Of Pre-Bankruptcy Transactions: An Economic And Comparative Approach, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

Most insolvency jurisdictions provide several mechanisms to reverse transactions entered into by a debtor prior to the commencement of the bankruptcy procedure. These mechanisms, generally known as claw-back actions or avoidance provisions, may fulfil several economic goals. First, they act as an ex post alignment of incentives between factually insolvent debtors and their creditors, since the latter become the residual claimants of an insolvent firm but they do not have any control over the debtor´s assets while the company is not yet subject to a bankruptcy procedure. Thus, avoidance powers may prevent or, at least, reverse opportunistic behaviors faced by …

Will Fifty Years Of The Sec's Disgorgement Remedy Be Abolished, Roberta Karmel

Faculty Scholarship

No abstract provided.

Implementing The Ahafo Benefit Agreements: Seeking Meaningful Community Participation At Newmont’S Ahafo Gold Mine In Ghana, Benjamin Boakye, Maggie M. Cascadden, Jordan Kuschminder, Sam Szoke-Burke, Eric Werker

Columbia Center on Sustainable Investment Staff Publications

In 2008, ten communities in the Brong Ahafo region of Ghana entered into agreements with Newmont Ghana to govern company-community relations, ensure local job creation, and share the benefits of the company’s mining operations. Ten years later, this report, co-authored by Canadian International Resources and Development Institute (CIRDI), African Center for Energy Policy (ACEP), CCSI, and ISP, looks at the communities’ experience of those agreements and suggests how the agreements might be improved. Though the agreements were celebrated for their attempts to include all stakeholders in decision-making, challenges remain around representation, consultation, and participation. New entities established to facilitate multi-stakeholder …

Check Clearing And Voidable Preference Law Under The Bankruptcy Code, David G. Carlson

Articles

Every business practice must withstand the critique of federal voidable preference law. This article surveys how well check clearing system fares under this adjunct to the principle that unsecured creditors should share equally in a bankruptcy proceeding. Check clearing involves extending short-term credit by depositary banks to their customers. Banks routinely extend unsecured and secured credit. The fate of a bank in its customer's bankruptcy differs, depending on what kind of credit is extended. In the case of an overdraft, banks have preference risk, but they also have powerful defenses to muster against liability. In the case credit is advanced …

Citing Counsel's Opinion About The Merits Of Legal Proceedings In Sec Filings, Wendy Gerwick Couture

Articles

No abstract provided.

The Case For Investor Ordering, Scott Hirst

Faculty Scholarship

Whether corporate arrangements should be mandated by public law or “privately ordered” by corporations themselves has been a foundational question in corporate law scholarship. State corporation laws are generally privately ordered. But a significant and growing number of arrangements are governed by “corporate regulations” created by the U.S. Securities and Exchange Commission (SEC). SEC corporate regulations are invariably mandatory. Whether they should be is the focus of this Article.

This Article contributes to the ongoing debate by showing that whether mandatory or privately-ordered rules are optimal depends on the nature of investors, and their incentives in choosing corporate arrangements. The …

Informed Trading And Its Regulation, Merritt B. Fox, Lawrence R. Glosten, Gabriel V. Rauterberg

Articles

Informed trading--trading on information not yet reflected in a stock's price-- drives the stock market. Such informational advantages can arise from astute analysis of varied pieces of public news, from just released public information, or from confidential information from inside a firm. We argue that these disparate types of trading are all better regulated as part of the broader phenomenon of informed trading. Informed trading makes share prices more accurate, enhancing the allocation of capital, but also makes markets less liquid, which is costly to the efficiency of trade. Informed trading thus poses a fundamental trade-off in how it affects …

Kokesh V. Sec: The Supreme Court Redefines An Effective Securities Enforcement Tool, Conor Daly

Maryland Law Review Online

No abstract provided.

Clearing The Path: Withdrawal Of Consent And Termination As Next Steps For Reforming International Investment Law, Lise Johnson, Jesse Coleman, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

This is a crucial moment in international investment policymaking. Two factors have converged, calling for a new direction. First, it has become increasingly difficult to justify investor-state dispute settlement (ISDS); even governments that had been among its strongest proponents are now changing course and have raised a range of fundamental, systemic and inter-related issues relating to ISDS. Second, policy makers and other stakeholders have a greater awareness of the need to design appropriate policies to maximize the contributions cross-border investment can make to sustainable development. Influenced by these factors, various reform efforts related to investment policy are underway at the …

Making A Market For Corporate Disclosure, Kevin S. Haeberle, M. Todd Henderson

Faculty Publications

It has long been said that market forces alone will result in a problematic under-sharing of information by public companies. Since the 1930s, the main regulatory response to this market failure has come in the form of the massive mandatory-disclosure regime that sits at the foundation of modern securities law. But this regime—especially when viewed along with its speech-chilling antifraud overlay—no doubt leaves society without all the corporate information from which it would benefit. The typical fix offered to the problem has been more of the same: add to the 100-plus-page list of what firms must disclose, often based on …

Universal Proxies, Scott Hirst

Faculty Scholarship

Contested director elections are a central feature of the corporate landscape, and underlie shareholder activism. Shareholders vote by unilateral proxies, which prevent them from “mixing and matching” among nominees from either side. The solution is universal proxies. The Securities and Exchange Commission has proposed a universal proxy rule, which has been the subject of heated debate and conflicting claims. This paper provides the first empirical analysis of universal proxies, allowing evaluation of these claims.

The paper’s analysis shows that unilateral proxies can lead to distorted proxy contest outcomes, which disenfranchise shareholders. By removing these distortions, universal proxies would improve corporate …

Zappers, Phantomware And Other Sales Suppression Software In The State Of Washington, Richard Thompson Ainsworth, Robert Chicoine

Faculty Scholarship

Electronic sales suppression (ESS) is a fraud that has been a (prominent) feature of the North American retail business since at least 1996. The first EES case in the US dates from 1981. ESS is a global problem. Depending on the jurisdiction, and the research study consulted, ESS is estimated to be present in 34% (of Canadian), 50% (of German – two studies), and 70% (of Swedish and Slovenian) businesses. It may be the case today, that “you cannot leave home without” encountering (or participating in) ESS.

The most common types of sales suppression technology are Zappers and Phantomware programming. …

Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes?

CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors.

By scrutinizing “legal support gaps,” CCSI sought to identify possible weak …

Costs And Benefits Of Investment Treaties: Practical Considerations For States, Lise Johnson, Jesse Coleman, Brooke Guven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

This paper analyzes the expected benefits of investment treaties, including: increased inward investment, increased outward investment, and depoliticization of investment disputes. It then considers evidence of the costs of investment treaties, including: litigation, liability, reputational cost, reduced policy space, distorted power dynamics, reduced role for domestic law-making, and uncertainty in the law. The authors set forth practical steps that states can take relating to both existing treaties as well as future treaties with an objective of increasing desired benefits and decreasing unexpected and high costs of investment treaties.

Unicorns, Guardians, And The Concentration Of The U.S. Equity Markets, Amy Deen Westbrook, David A. Westbrook

Journal Articles

No abstract provided.