Banking and Finance Law Commons^™

Memo To The Sec On The Proposed Rule On Disclosure Of Payments By Resource Extraction Issuers, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

CCSI strongly supports the transparency of contracts and tax flows. CCSI shares the belief of many stakeholders that transparency is essential to leverage extractive industries for sustainable development and is in the mutual interest of all stakeholders. However, some industry players continue to voice the concern that increased transparency would be harmful for their business. Therefore, CCSI is working to also establish the business case for transparency.

In one such case, some industry players have been lobbying against the regulations developed by the Security and Exchange Commission to implement the mandatory disclosure provisions of the Dodd Frank Wall Street Reform …

Institutionalization, Investment Adviser Regulation, And The Hedge Fund Problem, Anita Krug

All Faculty Scholarship

This Article contends that more effective regulation of investment advisers could be achieved by recognizing that the growth of hedge funds, private equity funds, and other private funds in recent decades is a manifestation of institutionalization in the investment advisory context. That is, investment advisers today commonly advise these “institutions,” which have supplanted other, smaller investors as advisory clients. However, the federal securities statute governing investment advisers, the Investment Advisers Act of 1940, does not address the role of private funds as institutions that now intermediate those smaller investors’ relationships to investment advisers. Consistent with that failure, investment adviser regulation …

Noción Y Elementos Existenciales Del Título De Crédito, Bruno L. Costantini García

Bruno L. Costantini García

Discernir la noción y elementos de existencia de los títulos de crédito, considerando la doctrina y la denominación expresada en nuestra Ley General de Títulos y Operaciones de Crédito, conceptualizando el término de los documentos que consignan un derecho crediticio propio de su naturaleza y deslindando de manera dogmatica y exegética los elementos que lo forman y le dan su funcionamiento, mediante una visión de las instituciones jurídicas que les dan su existencia y aplicación dentro del devenir de los actos de comercio.

Negotiability, Property, And Identity, James S. Rogers

James S. Rogers

In this Article, Professor Rogers challenges the assumption that securities transfer law has always been based on negotiable certificates and suggests that the reign of negotiability is a relatively recent, and brief, phase in the long history of investment securities trading. Professor Rogers posits that the difficulties currently facing the law of securities transfers are in large part due to the transition from paper to electronic representations of investments. To place these challenges into perspective, Professor Rogers first surveys the history of securities trading and then examines the theoretical underpinnings of the law of securities transfers.

Derivatives: A Twenty-First Century Understanding, Timothy E. Lynch

Faculty Works

Derivatives are commonly defined as some variation of the following: a financial instrument whose value is derived from the performance of a secondary source such as an underlying bond, commodity or index. But this definition is both over-inclusive and under-inclusive. Thus, not surprisingly, derivatives are largely misunderstood, including by many policy makers, regulators and legal analysts. It is important for interested parties such as policy makers to understand derivatives, because the types and uses of derivatives have exploded in the last few decades, and because these financial instruments can provide both social benefits and cause social harms. This Article presents …

Generalidades De La Propiedad Intelectual En México, Bruno L. Costantini García

Bruno L. Costantini García

Presentación de las Generalidades de la Propiedad Intelectual en México (Propiedad Industrial y Derechos de Autor), legislación que la rige, aplicación y modalidades

Ownership Unbundling In European Energy Market & Legal Problems Under Eu Law, Michael Diathesopoulos

Michael Diathesopoulos

In this paper we will examine the issue of ownership unbundling and forced divestiture remedies imposed in a series of recent competition law cases of the energy market - examined in other papers - in relation to the possible existence of a series of legal obstacles. These energy market decisions belong to a group of antitrust cases in which a structural divestiture remedy has been imposed under the provisions of Article 9 of Regulation 1/2003. This divestiture refers to transmission networks and to generation capacity and is meant to lead to severe structural changes, which are compatible with the findings …

Recuperação De Empresas Viáveis Em Dificuldades: Prevenção E Preservação De Valor [Restructuring Distressed Viable Business Entities: Prevention And Value Preservation], Bruno Ferreira

Bruno Ferreira

No abstract provided.

La Jurisprudencia En México, Bruno L. Costantini García

Bruno L. Costantini García

Breve presentación de la jurisprudencia en México, su aplicación, objetivos y fines para el Derecho Mexicano. ¿Por qué es util para el derecho? ¿Quién la emite?

Notariado Y Correduria Y Su Registro En México, Bruno L. Costantini García

Bruno L. Costantini García

Introducción al Derecho Notarial y Registral en México, cuyo objeto es conocer los elementos de las figuras del notario y del corredor público, la formalización de sus actos y su registro.

The Trouble With Investment Banking: Cluelessness, Not Greed, Will Bunting

San Diego Law Review

We assume that the set of marketable financial instruments can be divided into two distinct categories: (1) easy to price and (2) difficult to price, and then isolate two behavioral effects as most important with respect to securities trading in difficult-to-price securities; specifically, the "house money effect" and the "earned money effect." It is shown that these behavioral effects discourage profitable investment in research effort.

We then argue that the Private Securities Litigation Reform Act (PSLRA) safe harbor should not apply to investment banks that issue/underwrite difficult-to-price securities. We also advocate for the return of the private investment banking partnership …

The Shadow Banking System And Its Legal Origins, Erik F. Gerding

Erik F. Gerding

The global financial crisis cannot be understood without closely analyzing the development and the failure of the shadow banking system. Shadow banking, in turn, cannot be understood without examining how law shaped it. This article provides a definition of the shadow banking system and describes the critical role law and legal change played in shaping it.

The shadow banking system describes a web of financial instruments (asset-backed securities, credit derivatives, money market mutual funds, repurchase agreements) that connected commercial and household borrowers to investors in capital markets. This system differs, however, from traditional bond markets and is marked by six …

Toward Transatlantic Convergence In Financial Regulation, Hwa-Jin Kim

Law & Economics Working Papers

This Article reviews the historical background of the Glass-Steagall Act of 1933 along with the developments in the markets that led to the Gramm-Leach-Bliley Act of 1999. It analyzes the discussions on the Volcker Rule in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 from a comparative perspective. It shows how the reform in the United States may impact financial institutions and markets in other jurisdictions. Germany and Switzerland, where universal banking is the hallmark of the financial services industry, are the primary jurisdictions of interest. After taking a historical and political look at the regulation of …

Competition Law And Sector Regulation In The European Energy Market After The Third Energy Package: Hierarchy And Efficiency, Michael Diathesopoulos

Michael Diathesopoulos

The aim of this research is to provide the basic parameters for a model for the definition of the relation between the general competition and sector specific frameworks and rules regarding the regulation of the Internal Energy Market, especially after the Third Energy Package. The research considers the recent sector specific framework in relation to a series of recent competition law cases of the Energy Market where structural remedies were applied under the commitments procedure. Essential facilities doctrine and generally competition law tools do not seem to provide a suitable framework for effectively addressing the dynamic competition concept, treating the …

Implementing Dodd-Frank: A Review Of The Cftc‟S Rulemaking Process: Testimony, Michael Greenberger

Congressional Testimony

The Relationship of Unregulated OTC Derivatives to the Meltdown. It is now accepted wisdom that it was the non-transparent, poorly capitalized, and almost wholly unregulated over-the-counter (“OTC”) derivatives market that lit the fuse that exploded the highly vulnerable worldwide economy in the fall of 2008. Because tens of trillions of dollars of these financial products were pegged to the economic performance of an overheated and highly inflated housing market, the sudden collapse of that market triggered under-capitalized or non-capitalized OTC derivative guarantees of the subprime housing investments. Moreover, the many undercapitalized insurers of that collapsing market had other multi-trillion dollar …

Regulating Financial Innovation: A More Principles-Based Proposal?, Dan Awrey

Cornell Law Faculty Publications

Modem financial markets are characterized by complexity, seemingly perpetual innovation, chronic asymmetries of information and expertise, and pervasive agency costs. Perhaps nowhere are these characteristics-or their attendant regulatory challenges-more pronounced than within OTC derivatives markets. Mounting effective responses to these challenges must be considered amongst the most difficult and important tasks confronting financial regulators. Prescriptive, rules-based approaches toward financial regulation have thus far proven inadequate to this task. Through the utilization of outcome-oriented principles, enhanced dialogic relationships, intensive supervision, and targeted and proportional (yet vigorous) enforcement, "more principles-based" financial regulation (MPBR) manifests the potential to overcome these challenges and, in …

Derivatives And The Legal Origin Of The 2008 Credit Crisis, Lynn A. Stout

Cornell Law Faculty Publications

Experts still debate what caused the credit crisis of 2008. This Article argues that dubious honor belongs, first and foremost, to a little-known statute called the Commodities Futures Modernization Act of 2000 (CFMA). Put simply, the credit crisis was not primarily due to changes in the markets; it was due to changes in the law. In particular, the crisis was the direct and foreseeable (and in fact foreseen by the author and others) consequence of the CFMA’s sudden and wholesale removal of centuries-old legal constraints on speculative trading in over-the-counter (OTC) derivatives.

Derivative contracts are probabilistic bets on future events. …

Making Sense Of The New Financial Deal, David A. Skeel Jr.

All Faculty Scholarship

In this Essay, I assess the enactment and implications of the Dodd-Frank Act, Congress’s response to the 2008 financial crisis. To set the stage, I begin by very briefly reviewing the causes of the crisis. I then argue that the legislation has two very clear objectives. The first is to limit the risk of the shadow banking system by more carefully regulating the key instruments and institutions of contemporary finance. The second objective is to limit the damage in the event one of these giant institutions fails. While the new regulation of the instruments of contemporary finance—including clearing and exchange …

Overseeing Controlling Shareholders: Do Independent Directors Constrain Tunneling In Taiwan?, Yu-Hsin Lin

San Diego International Law Journal

This Article intends to explore the extent to which independent directors constrain tunneling by controlling shareholders in Taiwan. Taiwan serves as an appropriate jurisdiction for research since the private benefits agency problem is prevalent among Taiwanese public companies. A further twist in Taiwan?s case is that independent directors were newly introduced to Taiwan?s corporate boards, which follow dual-board system where the traditional monitoring function is served by statutory supervisors, instead of board committees, which adds to the complexity in analyzing the effectiveness of independent directors in constraining tunneling activities. Part II reviews relevant literature and lays the foundation for this …

Activist Distressed Debtholders: The New Barbarians At The Gate?, Michelle M. Harner

Michelle M. Harner

The term “corporate raiders” previously struck fear in the hearts of corporate boards and management teams. It generally refers to investors who target undervalued, cash-flush or mismanaged companies and initiate a hostile takeover of the company. Corporate raiders earned their name in part because of their focus on value extraction, which could entail dismantling a company and selling off its crown jewels. Today, the term often conjures up images of Michael Milken, Henry Kravis or the movie character Gordon Gekko, but the alleged threat posed to companies by corporate raiders is less prevalent—at least with respect to the traditional use …

Overwhelming A Financial Regulatory Black Hole With Legislative Sunlight: Dodd-Frank’S Attack On Systemic Economic Destabilization Caused By An Unregulated Multi-Trillion Dollar Derivatives Market, Michael Greenberger

Michael Greenberger

It is now accepted wisdom that it was the non-transparent, poorly capitalized and almost wholly unregulated over-the-counter (“OTC”) derivatives market that lit the fuse that exploded the highly vulnerable worldwide economy in the fall of 2008.[1] Because tens of trillions of dollars of these financial products were pegged to the economic performance of an overheated and highly inflated housing market, the sudden collapse of that market triggered under-capitalized OTC derivative guarantees of the subprime housing market; and the guarantors’ multi-trillion dollar interconnectedness with thousands of other OTC derivatives’ counterparties within that OTC market (through interest rate, currency, foreign exchange, and …

Reflections On The Securities Law Of Jordan , Bashar H. Malkawi, Haitham A. Haloush

American University International Law Review

No abstract provided.

Reflections On The Securities Law Of Jordan , Bashar H. Malkawi, Haitham A. Haloush

American University International Law Review

No abstract provided.

El Derecho De Sucesiones Se Debe Atemperar A Los Cambios De La Sociedad Del Siglo Xxi, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Is The Public Utility Holding Company Act A Model For Breaking Up The Banks That Are Too-Big-To-Fail, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

323 Non-Managing Underwriters’ Role In Securities Offerings: Just Eye Candy?, Elena Marty-Nelson

Fordham Journal of Corporate & Financial Law

While there is considerable scholarship on the due diligence defense of lead underwriters in defective corporate securities offerings, there is surprisingly little analysis of the due diligence defense of non-managing underwriters. This article challenges the common perception that lead and non-managing underwriters necessarily “sink or swim” together for purposes of due diligence. An analysis of the statutory structure of Section 11 of the Securities Act of 1933 reveals that non-managing underwriters are not inextricably tethered to the lead. Rather, non-managing underwriters who actively question the lead’s due diligence investigation should be able to meet their own affirmative defense even when …

Clearing And Trade Execution Requirements For Otc Derivatives Swaps Under The Frank-Dodd Wall Street Reform And Consumer Protection Act, Willa E. Gibson

Akron Law Faculty Publications

This paper examines Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the “Wall Street Transparency and Accountability Act of 2010” (the “Act”). The Act provides a comprehensive regulatory framework for swap transactions that designates the Commodities Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC) as the primary regulators of the OTC derivatives swap market. The Act provides a very broad definition of swaps to include most OTC derivatives transactions, and it grants the CFTC regulatory jurisdiction over them with the exception of security-based swaps to which the SEC is granted regulatory jurisdiction. …

“Adiantamentos Sobre Lucros No Decurso Do Exercício: Algumas Reflexões” [Interim Dividends In The Course Of The Annual Accounting Period: Some Reflexions], Bruno Ferreira

Bruno Ferreira

A realização de adiantamentos sobre lucros no decurso do exercício ocupa uma posição bastante particular no esquema orgânico-societário das sociedades anónimas. Este facto, conjugado com uma maior atenção que o tema tem recebido recentemente, aconselham a uma reflexão sobre os procedimentos, limites e natureza jurídica de tais distribuições, em especial no confronto com a distribuição de lucros aos accionistas mediante deliberação em assembleia geral.

Advances on profits made in the course of the annual accounting period occupy a somewhat special position on the corporate-organizational structure of sociedades anónimas. This fact, in addition to a recent heightened focus on the matter, …

“The Law Of Corporate Restructuring And Insolvency In Portugal: A Brief Introduction From A Financial Creditor’S Perspective", Bruno Ferreira

Bruno Ferreira

In times of economic slump, the law of restructuring and insolvency, particularly its statutory provisions, assume an indisputable relevance. The involvement of financial creditors in informal and formal restructuring procedures and the eventual ensuing formal insolvency procedures presents significant challenges and risks. This article provides a brief introduction to the law of restructuring and insolvency in Portugal and addresses some of these challenges and risks.

D. Joaquín Garrigues: Mestre Dos Mercantilistas Espanhóis, Bruno Ferreira

Bruno Ferreira

No abstract provided.