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Full-Text Articles in Securities Law

Table Of Contents, Seattle University Law Review Sep 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Can Bad Law Do Good? A Retrospective On Conflict Minerals Regulation, Karen E. Woody Jul 2019

Can Bad Law Do Good? A Retrospective On Conflict Minerals Regulation, Karen E. Woody

Karen Woody

Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) created a novel approach to corporate social responsibility (“CSR”) in supply chains by requiring public companies to disclose the presence of conflict minerals in their products. Dodd-Frank, as a whole, has faced a barrage of criticism since its passage, and Section 1502 was not immune from intense critical backlash. As I argued in prior scholarship and congressional testimony, Section 1502 was ill-conceived in substance and form. Its application resulted in the improper use of securities laws to the detriment of its laudable public international law ...


Can Bad Law Do Good? A Retrospective On Conflict Minerals Regulation, Karen E. Woody Apr 2019

Can Bad Law Do Good? A Retrospective On Conflict Minerals Regulation, Karen E. Woody

Maryland Law Review

Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) created a novel approach to corporate social responsibility (“CSR”) in supply chains by requiring public companies to disclose the presence of conflict minerals in their products. Dodd-Frank, as a whole, has faced a barrage of criticism since its passage, and Section 1502 was not immune from intense critical backlash. As I argued in prior scholarship and congressional testimony, Section 1502 was ill-conceived in substance and form. Its application resulted in the improper use of securities laws to the detriment of its laudable public international law ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Investment Disputes Oltre Lo Stato: On Global Administrative Law, And Fair And Equitable Treatment, Sebastián López Escarcena Nov 2018

Investment Disputes Oltre Lo Stato: On Global Administrative Law, And Fair And Equitable Treatment, Sebastián López Escarcena

Boston College Law Review

Global Administrative Law is an academic project that attempts to describe the emergence of a regulatory space beyond the state and to prescribe solutions to the problems it diagnoses through certain normative principles like participation, transparency, reasoned decision-making, judicial review, accountability, proportionality, and legitimate expectations. In the case of investment treaty arbitration, the principles advanced by Global Administrative Law are akin to the constitutive elements of the fair and equitable treatment that international arbitral tribunals have identified in investor-state disputes. As classified by international law scholars, these constitutive elements of fair and equitable treatment include due process, arbitrariness, non-discrimination, vigilance ...


Should Investment Treaties Contain Public Policy Exceptions?, Caroline Henckels Nov 2018

Should Investment Treaties Contain Public Policy Exceptions?, Caroline Henckels

Boston College Law Review

The increasing inclusion of exceptions in newly concluded investment treaties, together with the divergent manner in which tribunals and annulment committees have approached these provisions, suggests that a greater understanding of their role and purpose is needed. In particular, the question whether exceptions operate as permissions or as defenses is a crucial but unaddressed issue that has significant implications for both litigation and practice and, in turn, implications for the stability of the regime. This Essay argues that as a starting point, exceptions should be understood as permissions that limit the scope of the substantive treaty obligations, and not as ...


Introduction: Investment Law For The Twenty-First Century, Frank J. Garcia, Sebastián López Escarcena Nov 2018

Introduction: Investment Law For The Twenty-First Century, Frank J. Garcia, Sebastián López Escarcena

Boston College Law Review

No abstract provided.


Third-Party Funding As Exploitation Of The Investment Treaty System, Frank J. Garcia Nov 2018

Third-Party Funding As Exploitation Of The Investment Treaty System, Frank J. Garcia

Boston College Law Review

Third-party funding of international investment arbitration is on the rise. Through TPF funders will cover the legal fees of investors filing claims under investment treaties in exchange for a portion of the arbitral award. Proponents of third-party funding claim that it provides access to justice for parties that normally would not have the funds to arbitrate against state actors. Given that the international investment law that governs these claims is unbalanced, and that funding only flows towards investor-claimants, and at the expense of states and their taxpayers, allowing third-party funding in investment arbitration risks creating unjustifiable wealth transfers from the ...


Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo Nov 2018

Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo

Boston College Law Review

Recent initiatives for investment reform demonstrated by the 2016 United Nations Conference on Trade and Development and 2018 World Investment Reports have raised key issues for sustainable development in the context of investment in natural resources and energy. Where there has been increasing convergence between trade and environmental norms as trade regimes confront domestic regulatory measures for environmental protection and climate change mitigation, similarly investment regimes also have had to address such domestic measures but with little progress towards normative convergence. At the same time, there’s an increasing skepticism for the traditional models of globalization of the 1990s and ...


Justice For All? Protecting The Public Interest In Investment Treaties, Alessandra Arcuri, Francesco Montanaro Nov 2018

Justice For All? Protecting The Public Interest In Investment Treaties, Alessandra Arcuri, Francesco Montanaro

Boston College Law Review

Investment arbitration has come increasingly under fire because of its design flaws. There is an emerging consensus that investment treaty arbitration not only falls short of ensuring a sufficient degree of transparency of arbitral proceedings and impartiality of arbitrators, but also that its institutional architecture is unjustifiably asymmetric, entrusting foreign investors with significant rights while no protection is afforded to the host states’ constituencies. In response to these criticisms, several states have attempted in recent years to reform the rules governing investor-state arbitration. A perusal of recently concluded international investment agreements, however, reveals that the reform efforts so far have ...


Avoiding The Planned Obsolescence Of Modern International Investment Agreements: Can General Exception Mechanisms Be Improved, And How?, Camille Martini Nov 2018

Avoiding The Planned Obsolescence Of Modern International Investment Agreements: Can General Exception Mechanisms Be Improved, And How?, Camille Martini

Boston College Law Review

In light of the increase in investor-state disputes brought by foreign investors under the arbitration clauses contained in international investment agreements (“IIAs”), treaty negotiators have started to develop safeguards in recent IIAs in an attempt to mitigate the impact of these agreements on their regulatory powers. General exception clauses modeled on Article XX of the General Agreement on Tariffs and Trade are part of these new treaty provisions. General exceptions clauses are, in their current form, a source of uncertainty rather than coherence. Recent arbitration cases have shed light on the unworkable enforceability requirements contained in general exceptions clauses, preventing ...


(Re)Calibration, Standard-Setting And The Shaping Of Investment Law And Arbitration, Eric De Brabandere Nov 2018

(Re)Calibration, Standard-Setting And The Shaping Of Investment Law And Arbitration, Eric De Brabandere

Boston College Law Review

Calibrating or (re)calibrating investment law and arbitration—depending on whether the exercise takes place for the first or a subsequent time—is different from rebalancing investment law and arbitration. A balancing exercise denotes a situation in which different elements are equal or in the correct proportions to maintain a sort of equilibrium. This Essay argues that investment law and arbitration are not necessarily about creating a situation in which all “elements” are in balance and that (re)calibrating is an interesting starting point for a discussion about the contemporary regime of investment law and arbitration, and especially to explore ...


Legitimacy Concerns Of The Proposed Multilateral Investment Court: Is Democracy Possible?, José Manuel Alvarez Zárate Nov 2018

Legitimacy Concerns Of The Proposed Multilateral Investment Court: Is Democracy Possible?, José Manuel Alvarez Zárate

Boston College Law Review

Growing concerns in Europe about international investment regimes and investor-state dispute settlement systems pushed the European Union into pursuing the creation of an investment court system and a multilateral investment court. The European Union started this reform through the Comprehensive Economic Trade Agreement, the Vietnam-EU Free Trade Agreement, and by direct persuasion of other countries to start negotiations at the United Nations Commission on International Trade Law. Visible reasons for the change include concerns over the perception of a lack of transparency, coherence, and arbitrators’ partiality, all of which diminish the legitimacy of the multilateral investment court. Other reasons might ...


Making Investment Arbitration Work For All: Addressing The Deficits In Access To Remedy For Wronged Host State Citizens Through Investment Arbitration, Emmanuel T. Laryea Nov 2018

Making Investment Arbitration Work For All: Addressing The Deficits In Access To Remedy For Wronged Host State Citizens Through Investment Arbitration, Emmanuel T. Laryea

Boston College Law Review

The current dominant system for resolving international investment disputes is the Investor-State Dispute Settlement system or, more precisely, the Investor-State Arbitration system (ISA). The ISA system has proved to be an effective avenue for remedy for foreign investors whose investments are wrongfully impaired by host states. However, the system is not accessible to Host State Citizens (HSCs) whose interests may be harmed by investors. Wronged HSCs can seek redress in domestic fora only. The domestic fora in many jurisdictions leave many wronged HSCs without remedy, a problem that has long been acknowledged. This Essay proposes a solution. It proposes that ...


Expansive Disclosure: Regulating Third-Party Funding For Future Analysis And Reform, Rachel Denae Thrasher Nov 2018

Expansive Disclosure: Regulating Third-Party Funding For Future Analysis And Reform, Rachel Denae Thrasher

Boston College Law Review

Third-party funding (TPF) is a relatively new phenomenon in the field of international investment arbitration. TPF takes place when a non-party to a dispute provides funding to one of the parties (usually the claimant) in return for a percentage of the amount recovered. International investment arbitration is a unique context, however, because investor-states dispute settlement puts States always in the role of respondent and private investors in the role of claimants. Despite this apparent imbalance, TPF proponents argue, among other things, that it provides much needed access to justice for poorer clients and adds value to the system by providing ...


Investment Treaties, Offshore Finance, And The Resource Curse, Karl M.F. Lockhart Nov 2018

Investment Treaties, Offshore Finance, And The Resource Curse, Karl M.F. Lockhart

Boston College Law Review

Questions of how best to understand offshore financial centers (“OFCs”)—countries that have low or zero tax rates, strong banking secrecy regulation, and easy-to-form legal entities—and what, if anything, the international community should do about them remain fixed on the agenda of national and international discourse. This Essay seeks to provide a new theoretical perspective on tax havens and applies this perspective to the cross-border legal regimes that govern international investment. This new analytical framework sees offshore financial centers as countries that are victims of the “resource curse,” as that term is described in economic development literature. Often physically ...


Greening Investor-State Dispute Settlement, Daniel B. Magraw, Sergio Puig Nov 2018

Greening Investor-State Dispute Settlement, Daniel B. Magraw, Sergio Puig

Boston College Law Review

Climate change poses serious threats to human society. Climate change is already affecting our environment and thus, many aspects of human and economic activity. Among the challenges ahead, governments will need to more actively adopt regulatory policies given the international obligations in this area, such as the Paris Agreement, as well as promote green private investment as a means toward unlocking sustainable growth. How can international investment law be adapted and modernized to respond to these challenges? In this Essay, we summarize a comprehensive set of innovations that could be included in International Investment Agreements to address international obligations regarding ...


Reforming International Investment Law: Opportunities, Challenges, Paradigms, Frank J. Garcia, Leo Gargne, Eric De Brabandere, Rachel Denae Thrasher, William Park Nov 2018

Reforming International Investment Law: Opportunities, Challenges, Paradigms, Frank J. Garcia, Leo Gargne, Eric De Brabandere, Rachel Denae Thrasher, William Park

Boston College Law Review

Transcription of a panel discussion.


China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow May 2018

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not ...


The Dragon And The Eagle: Reforming China’S Securities Ipo Laws In The U.S. Model, Pros And Cons, Stuart R. Cohn, Miao Yinzhi Jan 2018

The Dragon And The Eagle: Reforming China’S Securities Ipo Laws In The U.S. Model, Pros And Cons, Stuart R. Cohn, Miao Yinzhi

Washington University Global Studies Law Review

China is about to undergo a major reform of its securities offering and listing processes. Since the inception of China’s securities market in the early 1990s, the government has exercised tight control to determine which companies will be allowed to engage in initial public offerings and become listed on a national exchange. The system has led to both corruption and favoritism and has blocked numerable companies from access to capital markets. With the ascension in 2013 of Xi Jinping and Li Keqiang as the heads of the Chinese Communist Party and Premier, the government adopted reform of the market ...


Investment Treaties Are About Justice, Frank J. Garcia Mar 2017

Investment Treaties Are About Justice, Frank J. Garcia

Frank J. Garcia

This Perspective argues that investment law is ripe for a paradigm shift away from pure capital protection. Rather, investment law should be recognized as part of a comprehensive global economic governance system for ensuring justice and the rule of law, in this case in the allocation of investment capital.


Consistently Inconsistent: What Is A Qualifying Investment Under Article 25 Of The Icsid Convention And Why The Debate Must End, Jeremy Marc Exelbert Dec 2016

Consistently Inconsistent: What Is A Qualifying Investment Under Article 25 Of The Icsid Convention And Why The Debate Must End, Jeremy Marc Exelbert

Fordham Law Review

International investment has helped to pave the way for an increasingly globalized world community. Consequently, the International Centre for Settlement of Investor Disputes (ICSID)—existing under the mandate of the World Bank and with the stated purpose of increasing economic development abroad—has become the leading international arbitration mechanism currently available for settling disputes arising out of such investments. It is unsettling, therefore, that the interpretation of “investment” within article 25 of the ICSID Convention (the provision that determines whether an ICSID tribunal may exercise jurisdiction over a dispute) has given rise to a unique interpretive controversy because the ICSID ...


Investment Treaties Are About Justice, Frank J. Garcia Oct 2016

Investment Treaties Are About Justice, Frank J. Garcia

Boston College Law School Faculty Papers

This Perspective argues that investment law is ripe for a paradigm shift away from pure capital protection. Rather, investment law should be recognized as part of a comprehensive global economic governance system for ensuring justice and the rule of law, in this case in the allocation of investment capital.


Will We Ever Close The Gaap?: A Look Into The International Convergence Of Accounting Standards, Melanie Rosin Oct 2016

Will We Ever Close The Gaap?: A Look Into The International Convergence Of Accounting Standards, Melanie Rosin

Michigan Business & Entrepreneurial Law Review

This Note examines the trend toward the international convergence of accounting standards and then identifies the factors contributing to the process of this trend as well as the obstacles standard setters face in moving to one high quality, unified set of standards. The Note next identifies the possible outcomes for the future of convergence, including the mandatory adoption of International Financial Reporting Standards (IFRS) by the United States, the Securities & Exchange Commission’s (SEC) encouragement of the voluntary of adoption of IFRS by the United States, requiring public companies to comply with both U.S. Generally Accepted Accounting Principles (U ...


21st Century Investment Agreements: Justice, Governance And The Rule Of Law, Frank J. Garcia Jul 2016

21st Century Investment Agreements: Justice, Governance And The Rule Of Law, Frank J. Garcia

Boston College Law School Faculty Papers

Investment treaty law can no longer be managed as if it were merely a system of private ordering setting out the protected rights of capital owners. This philosophy has contributed to the ongoing legitimacy crisis affecting investment law today, including the TPP and TTIP negotiations. In response to a similar legitimacy crisis in the 1990s, the international trade system began a profound paradigm shift, recognizing that trade law was not simply a technical regime for liberalizing economic flows, but a system of treaty-based governance for managing transnational economic resources for the good of society as a whole.

Investment law has ...


The Judicial Role In Extraterritorial Application Of The Securities Exchange Act Of 1934: Vesco, William A. Aileo Jun 2016

The Judicial Role In Extraterritorial Application Of The Securities Exchange Act Of 1934: Vesco, William A. Aileo

Georgia Journal of International & Comparative Law

No abstract provided.


Regulating Foreign-Based Institutions For Collective Investment: The German Statute, The American Experience, And The Oecd Standard Rules, Charles B. Robson Jr. Jun 2016

Regulating Foreign-Based Institutions For Collective Investment: The German Statute, The American Experience, And The Oecd Standard Rules, Charles B. Robson Jr.

Georgia Journal of International & Comparative Law

No abstract provided.


Living Under The Boot: Militarization And Peaceful Protest, Charlotte Guerra Apr 2016

Living Under The Boot: Militarization And Peaceful Protest, Charlotte Guerra

Seattle Journal for Social Justice

No abstract provided.


In Her Words: Recognizing And Preventing Abusive Litigation Against Domestic Violence Survivors, David Ward Apr 2016

In Her Words: Recognizing And Preventing Abusive Litigation Against Domestic Violence Survivors, David Ward

Seattle Journal for Social Justice

No abstract provided.


Let’S Invest In People, Not Prisons: How Washington State Should Address Its Ex-Offender Unemployment Rate, Sara Taboada Apr 2016

Let’S Invest In People, Not Prisons: How Washington State Should Address Its Ex-Offender Unemployment Rate, Sara Taboada

Seattle Journal for Social Justice

No abstract provided.