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Full-Text Articles in Law

Proportionality: An Addition To The International Centre For The Settlement Of Investment Disputes’ Fair And Equitable Treatment Standard, Anne Marie Martin Nov 2014

Proportionality: An Addition To The International Centre For The Settlement Of Investment Disputes’ Fair And Equitable Treatment Standard, Anne Marie Martin

Boston College International and Comparative Law Review

The fair and equitable treatment standard, established in state law, customary law, and bilateral investment treaties, requires that states treat investors in a consistent and transparent manner. With its decision in Occidental Petroleum Corp., Occidental Exploration and Production Company v. Republic of Ecuador, the International Centre for the Settlement of Investment Disputes (ICSID) interpreted the ever-expanding fair and equitable treatment standard to include the principle of proportionality. After concluding that Ecuador’s termination of the investor’s contract was a disproportionate response to the investor’s breach of that contract, the ICSID Tribunal awarded an incredible $1.77 billion in ...


Leveraging Litigation: Enforcing Sovereign Debt Obligations In Nml Capital, Ltd. V. Republic Of Argentina, Emma Kingdon Nov 2014

Leveraging Litigation: Enforcing Sovereign Debt Obligations In Nml Capital, Ltd. V. Republic Of Argentina, Emma Kingdon

Boston College International and Comparative Law Review

In the sovereign debt market, the typical remedies to resolve sovereign default are either the negotiation route or a unilateral exchange offer. However, as a result of increasing insecurity in the sovereign debt market due to rogue sovereign debtors who take advantage of their immunity to opportunistically default and create unfavorable restructuring deals, creditors began resorting to a previously limited remedy: litigation. Although litigation to resolve sovereign default was not a new concept in the sovereign debt market, it was ineffective due to the creditor’s inability to actually recover the money judgment from the sovereign debtor. In NML Capital ...


Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee M. Jones Aug 2014

Unfit For Duty: The Officer And Director Bar As A Remedy For Fraud, Renee M. Jones

Boston College Law School Faculty Papers

Many commentators have questioned the efficacy of the SEC’s enforcement program in the aftermath of the 2008 financial crisis. Some criticize the agency for allowing corporate defendants to settle charges without admitting or denying liability. Others dispute the impact of astronomical fines levied against too-big-to-fail financial institutions. Still others urge prosecutors to bring criminal charges against those who led the failed financial firms to ruin. This Article, written for a symposium on SEC enforcement, focuses attention on an underutilized weapon in the SEC’s arsenal: the power to bar officers and directors of public companies from future service in ...


The New Human Equity Transactions, Shu-Yi Oei, Diane M. Ring Jun 2014

The New Human Equity Transactions, Shu-Yi Oei, Diane M. Ring

Boston College Law School Faculty Papers

This article begins to explore the legal and policy implications of a new form of financing -- income sharing agreements -- which have raised concerns that the effectively created "equity" in humans.


Rollover Risk: Ideating A U.S. Debt Default, Steven L. Schwarz Jan 2014

Rollover Risk: Ideating A U.S. Debt Default, Steven L. Schwarz

Boston College Law Review

This Article examines how a U.S. debt default might occur, how it could be avoided, its potential consequences if not avoided, and how those consequences could be mitigated. The most realistic default would result from rollover risk: the risk that the government will be temporarily unable to borrow sufficient funds to repay its maturing debt. The United States, like most governments, routinely finances itself through short-term debt, which is less expensive than long-term debt. But this cost-saving does not come free of charge: it increases the threat of default. A U.S. debt default—even a mere “technical” default ...


The Home Mortgage Foreclosure Crisis: Lessons Learned, Patricia A. Mccoy Jan 2014

The Home Mortgage Foreclosure Crisis: Lessons Learned, Patricia A. Mccoy

Boston College Law School Faculty Papers

From 2007 through 2011, the United States housing market suffered a severe imbalance in supply and demand due to an excessive number both of foreclosed homes and homes awaiting foreclosure in the shadow housing inventory. Foreclosure prevention can help reduce the shadow housing inventory by keeping troubled mortgages from entering that inventory to begin with. The loan modification experience post-2008 yielded four main lessons about the best way to optimize foreclosure prevention. First, servicers should design loan modifications to lower monthly payments, including through principal reduction whenever appropriate. Second, servicers should evaluate loss mitigation as soon as possible following delinquency ...