Commercial Law Commons^™

Conflicted Counselors: Retaliation Protections For Attorney-Whistleblowers In An Inconsistent Regulatory Regime, Jennifer M. Pacella

Jennifer M. Pacella, Esq.

Attorneys, especially in-house counsel, are subject to retaliation by employers in much the same way as traditional whistleblowers, often experiencing retaliation and loss of livelihood for reporting instances of wrongdoing about their clients. Although attorney-whistleblowing undoubtedly invokes ethical concerns, attorneys who “appear and practice” before the Securities and Exchange Commission (“SEC”) are required by federal law to act as internal whistleblowers under the Sarbanes-Oxley Act (“SOX”) and report evidence of material violations of the law within the organizations that they represent. An attorney’s failure to comply with these obligations will result in SEC-imposed civil penalties and disciplinary action. Recent federal …

The Customary Practice Of Gerawee In Afghanistan: A Case For Transitioning To Real Equity-Based Finance, Haroun Rahimi

Haroun Rahimi

The customary practice of Gerawee, in principle, refers to a specific form of synthetic loan. It is a pledge-lease transaction that enables owners of immovable properties to obtain financing based on the market value of those properties in exchange for either paying regular payments in form of rent or transferring the right to lease those properties to a financer. The practice has been developed to help debtors and creditors avoid the prohibition of interest bearing loans under Shari’ah. Despite the efforts of some Muslim jurists to justify the practice under Shari’ah, it is widely criticized. In particular, Afghan muftis …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Enduring Design For Business Entities, William E. Foster

William E Foster

The success or failure of an institution may hinge on some of the earliest decisions of its founders. In constitutional design literature, endurance is a widely accepted drafting objective. Indeed, constitutional endurance is positively associated with prosperous and stable societies. Like drafters of constitutions, business organizers have almost innumerable objectives for their enterprises, and attorneys drafting organizational documents must take into account these myriad goals. Oftentimes the drafting process fails to fully address some of the most important of these aims and results in suboptimal structures that lack predictability and reliability. This article looks specifically at small business organizations and …

Regulatory Institutions Of The Global South: Why Are They Different And What Can Be Done About It?, Yugank Goyal

Yugank Goyal

Developing countries suffer from underperforming regulatory agencies compared to those in the developed world. The paper attempts to theorize general reasons behind such divergence. It argues that the differences lie in developing countries’ (a) higher priorities for redistribution, (b) structurally different institutional endowments, especially at informal level, and (c) limited informational channels. The paper proposes that a multi-stakeholder (with increased emphasis on judiciary and civil society) approach has potential to address the shortcomings. It tests these claims through studying cases of telecom and electricity regulation in India.

Avoiding The Road To Ferc-Dom: The Supreme Court Affirms The Right To Contract In Morgan Stanley V. Snohomish, Jorge A. Mestre

Jorge A Mestre

No abstract provided.

Preventing Cold War: Militarization In The Southernmost Continent And The Antarctic Treaty System's Fading Effectiveness, Dillon A. Redding

Dillon A Redding

This note argues that the preservation of Antarctica for peaceful research and internationally cooperative activity as envisioned originally by the Antarctic Treaty in 1961 has gone unrealized amid growing international interest in the strategic advantages offered by Antarctica, including the possibility of large swathes of mineral deposits and optimal locations for satellite stations. Part 1 describes the motivations behind the Antarctic Treaty System (ATS) and outlines the relevant provisions of the Antarctic Treaty. Part 2 examines the military advantages to a state presence in Antarctica and the ways in which the ATS allows for such a presence to be carried …

Let Educators Educate, Let Builders Build: Making A Case For School Facility Privatization, John Pizzo

John Pizzo

No abstract provided.

Client Trust Account Fraud: Analyzing State, Federal, And International Rules And Regulations While Developing Effective Solutions For Prevention, Daniel H. Smith

Daniel H Smith

CLIENT TRUST ACCOUNT FRAUD: ANALYZING STATE, FEDERAL, AND INTERNATIONAL RULES AND REGULATIONS WHILE DEVELOPING EFFECTIVE SOLUTIONS FOR PREVENTION Daniel Hooper Smith Abstract Client Trust Account Fraud: Analyzing State, Federal, and International Rules and Regulations While Developing Effective Solutions for Prevention examines client trust accounts and fiduciary duties associated with them and categorizes three types of client trust account fraud (“CTA fraud”). In addition, this Article compares four states’ client trust account rules and regulations and discusses how fraudsters attempt to circumvent the law in each jurisdiction. This Article then analyzes state, federal, and international agency regulation with respect to client …

The Underutilized Foreign Investor, Griffin Weaver

Griffin Weaver

For most states, if not all, the push for economic advancement is at the front of every administration’s agenda. This is especially true for developing countries in the Middle East whose standard of living and international power is largely tied to its economic condition. An important indicator, if not condition, of a state’s economic health is the level of foreign direct investment (FDI) received by the state. This inflow of money is essential for the growth and stability of a state’s economy. As one U.S. official once noted, the United States “need[s] a net inflow of capital of $3 billion …

Book Review: The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea J. Boyack

Andrea J Boyack

This review situates Gulati & Scott’s findings with respect to sovereign debt instruments and the contracting process in the context of a legal profession on the brink of change. Gulati and Scott’s book addresses the inexplicable failure of lawyers to respond to a sovereign debt litigation outcome by clarifying a boilerplate provision after an adverse judicial interpretation. Their fascinating study of boilerplate in sophisticated transactional legal practice is timely and compelling both in terms of the specific story it tells, namely the persistence of the pari passu clause in sovereign debt instruments, as well as its broader implications: Structural flaws …

Wasting The Corporate Waste Doctrine: Why Waste Claims Are Obsolete In Delaware Corporate Law And Why The Waste Doctrine Is The Wrong Solution To The Problem Of Executive Compensation, Kris S. Swift

Kris S. Swift

Abstract

Kristen S. Swift

This Note makes several points, drawn from Delaware litigation history, on the futility of pleading corporate waste in Delaware. At inception, the waste doctrine was a tool for shareholder protection and empowerment; however, as calculated business risk became encouraged and later formally protected by the business judgment rule, the waste doctrine evolved to protect officers and boards and now sets a nearly impossible benchmark for misconduct that would allow shareholders to recover on a waste claim. The waste doctrine is inextricably tied to how business risk-taking is perceived by Delaware courts and shifting attitudes toward risk …

Csr And Law As Alternative Regulatory Systems, Benedict Sheehy

Benedict Sheehy

Abstract: CSR (Corporate Social Responsibility) is an increasingly important area of corporate and legal concern. In addition to problems defining the meaning of the term and understanding the implications for, there is a lack of understanding how it can, does and should interact with law. This paper answers this gap using a method used in the sociology of law, systems theory. The paper argues that CSR can be understood as a response to social costs and law’s apparent failure to curb those costs. It focuses the examination on social costs generated by large industrial organisations and how they are regulated …

The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun

Daniel M Braun

The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …

Rise Of The Intercontinentalexchange And Implications Of Its Merger With Nyse Euronext, Latoya C. Brown

Latoya C. Brown, Esq.

This paper examines the impending merger between the IntercontinentalExchange (ICE) and NYSE Euronext against the backdrop of the current structure of the global financial services industry. The paper concludes that the merger embodies what the financial services industry is becoming and captures the model that will allow exchanges to remain competitive in today’s marketplace: mega-exchanges with broader asset classes and electronic platforms. As technology and globalization threaten their vitality, exchanges will need to continue reinventing and adapting. Increasingly over the last decade they have done so by merging and by moving, at least a part of, their operations on screen. …

Tricky Business: A Decision-Making Framework For Legally Sound, Ethically Suspect Business Tactics, Corey A. Ciocchetti

Corey A Ciocchetti

TRICK: “a crafty or underhanded device, maneuver, stratagem, or the like, intended to deceive or cheat.” Tricks are designed to outwit others in a cunning and skillful manner. Despite well-written, philosophically sound codes of ethics and core values, businesses are not above employing tricky tactics to suit their pecuniary interests. These strategies often involve the legal system as the outwitted ask courts to vindicate their rights. However, the most successful tricks are skillfully crafted to survive legal scrutiny. This article evaluates three tricky business tactics found lawful by United States Supreme Court during its most recent term. The story begins …