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Sovereign Debt And The “Contracts Matter” Hypothesis, W. Mark C. Weidemaier, Mitu Gulati 2017 Duke Law School

Sovereign Debt And The “Contracts Matter” Hypothesis, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The academic literature on sovereign debt largely assumes that law has little role to play. Indeed, the primary question addressed by the literature is why sovereigns repay at all given the irrelevance of legal enforcement. But if law, and specifically contract law, does not matter, how to explain the fact that sovereign loans involve detailed contracts, expensive lawyers, and frequent litigation? This Essay makes the case that contract design matters even in a world where sovereign borrowers are hard (but not impossible) to sue. We identify a number of gaps in the research that warrant further investigation.


Contractual Arbitrage, Stephen J. Choi, Mitu Gulati, Robert E. Scott 2017 Duke Law School

Contractual Arbitrage, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

Contracts are inevitably incomplete. And standard-form or boilerplate commercial contracts are especially likely to be incomplete because they are approximations; they are not tailored to the needs of particular deals. Not only do these contracts contain gaps but, in an attempt to reduce incompleteness, they often contain clauses with vague or ambiguous terms. Terms with indeterminate meaning present opportunities for strategic behavior well after a contract has been concluded. This linguistic uncertainty in standard form commercial contracts creates an opportunity for “contractual arbitrage”: parties may argue, ex post, that the uncertainties in expression mean something that the contracting parties, ex ...


The Pdvsa Pricing Puzzle, Paolo Colla, Anna Gelpern, Mitu Gulati 2017 Duke Law School

The Pdvsa Pricing Puzzle, Paolo Colla, Anna Gelpern, Mitu Gulati

Faculty Scholarship

Market reports in the summer of 2016 suggest that Venezuela is on the brink of default on upwards of $65 billion in debt. That debt comprises of bonds issued directly by the sovereign and those issued by the state-owned oil company PDVSA. Based on the bond contracts and other legal factors, it is not clear which of these two categories of bonds would fare better in the event of a restructuring. However, market observers are convinced — and we agree — that legal and contractual differences would likely impact the payouts on the bonds if Venezuela defaults. Using a comparison of recent ...


Differing Perceptions? Market Practice And The Evolution Of Foreign Sovereign Immunity, W. Mark C. Weidemaier, Mitu Gulati 2017 Duke Law School

Differing Perceptions? Market Practice And The Evolution Of Foreign Sovereign Immunity, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The 20th century witnessed a transformative, “tectonic” shift in international law, from “absolute” to “restrictive” theories of sovereign immunity. As conventionally understood, however, this dramatic transformation represented only a shift in the default rule. Under absolute immunity, national courts could not hear lawsuits and enforce judgments against a foreign sovereign without its consent. Under restrictive immunity, foreign sovereigns were presumptively not immune when they engaged in commercial acts. We demonstrate that market practices undermine this conventional understanding. Using an extensive, two-century data set of contracts between foreign governments and private creditors, we show that contracting parties have long treated absolute ...


What We Buy When We "Buy Now", Aaron Perzanowski, Chris Jay Hoofnagle 2016 Case Western Reserve University

What We Buy When We "Buy Now", Aaron Perzanowski, Chris Jay Hoofnagle

Aaron K. Perzanowski

Retailers such as Apple and Amazon market digital media to consumers using the familiar language of product ownership, including phrases like “buy now,” “own,” and “purchase.” Consumers may understandably associate such language with strong personal property rights. But the license agreements and terms of use associated with these transactions tell a different story. They explain that ebooks, mp3 albums, digital movies, games, and software are not sold, but merely licensed. The terms limit consumers' ability to resell, lend, transfer, and even retain possession of the digital media they acquire. Moreover, unlike physical media products, access to digital media is contingent ...


Newsroom: Guiding Startups Through Legal Pickles 11-14-2016, Jill Rodrigues, Roger Williams University School of Law 2016 Roger Williams University

Newsroom: Guiding Startups Through Legal Pickles 11-14-2016, Jill Rodrigues, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


The Law Of Contract And The Concept Of Change: Public And Private Attempts To Regulate Modification, Waiver, And Estoppel, David V. Snyder 2016 Indiana University School of Law - Bloomington

The Law Of Contract And The Concept Of Change: Public And Private Attempts To Regulate Modification, Waiver, And Estoppel, David V. Snyder

David Snyder

This article argues that contractual change is inherently problematic because contract and change are fundamentally antithetical. Because change is inevitable, however, the law of contract attempts to regulate the effect of change. These attempts are divided into two realms: public regulation, including the preexisting duty rule and its substitutes, and private regulation, including contractual "no oral modification" and "no oral waiver" clauses. The article criticizes not only the preexisting duty rule but also the duress and good faith tests that have been suggested as substitutes. Instead, the article proposes a "coercion" test, which is stated in detail and which is ...


The Diminishing Returns Of Incentive Pay In Executive Compensation Contracts, Gregg Polsky, Andrew Lund 2016 University of Georgia School of Law

The Diminishing Returns Of Incentive Pay In Executive Compensation Contracts, Gregg Polsky, Andrew Lund

Andrew Lund

For the past 30 years, the conventional wisdom has been that executive compensation packages should include very large proportions of incentive pay. This incentive pay orthodoxy has become so firmly entrenched that the current debates about executive compensation simply take it as a given. We argue, however, that in light of evolving corporate governance mechanisms, the marginal net benefit of incentive-laden pay packages is both smaller than appreciated and getting smaller over time. As a result, the assumption that higher proportions of incentive pay are beneficial is no longer warranted.

A number of corporate governance mechanisms have evolved to duplicate ...


Leap Of Faith: Determining The Standard Of Faith Needed To Violate The Implied Covenant Of Good Faith And Fair Dealing For Delaware Limited Liability Companies, Pat Andriola 2016 Davis Polk & Wardwell LLP

Leap Of Faith: Determining The Standard Of Faith Needed To Violate The Implied Covenant Of Good Faith And Fair Dealing For Delaware Limited Liability Companies, Pat Andriola

Boston College Law Review

Delaware courts have long respected the right to contract in Delaware, and possibly no entity is afforded more privileges to set the boundaries of its corporate form than the Delaware Limited Liability Company. Unlike nearly every other state, Delaware permits LLCs to abolish the duties of care and loyalty in their operating agreements, but forbids companies to eliminate liability for “any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing.” The problem with the phrase “bad faith violation” is that, when referencing a breach of the implied covenant of ...


Trending @ Rwu Law: Linda Tappa's Post: An Amazing Summer: Public Interest Law In Texas 11/01/2016, Linda Tappa 2016 Roger Williams University School of Law

Trending @ Rwu Law: Linda Tappa's Post: An Amazing Summer: Public Interest Law In Texas 11/01/2016, Linda Tappa

Law School Blogs

No abstract provided.


Pactes D'Actionnaires Et Prévention Des Conflits Dans La Société Anonyme De L'Espace Ohada., Julien Coomlan Hounkpe 2016 University of Abomey Calavi, Benin

Pactes D'Actionnaires Et Prévention Des Conflits Dans La Société Anonyme De L'Espace Ohada., Julien Coomlan Hounkpe

Julien C. Hounkpe

L’expérience enseigne que les pactes d’actionnaires sont le plus souvent méconnus ou insuffisamment utilisés dans les sociétés anonymes en Afrique. Or ces instruments conventionnels permettent de mettre en place un certain nombre de mécanismes qui s’avéreraient efficaces dans la prévention des conflits entre actionnaires dans l’espace OHADA.


Don’T Share This Item! Developing Digital Collections And Services In A Consumer‐Licensed World, William M. Cross, Darby Orcutt 2016 North Carolina State University Libraries

Don’T Share This Item! Developing Digital Collections And Services In A Consumer‐Licensed World, William M. Cross, Darby Orcutt

Charleston Library Conference

Libraries have always faced unique challenges in providing non‐academic content for academic use, but the digital age has brought particular problems of “one size fits all” consumer purchase models and vexing methods of digital rights management (DRM), wrapped up with a large bow of legal uncertainty for many institutions. These proceedings describe some practices for sharing consumer‐licensed popular materials and confronting legal and technical barriers, as well as what some libraries are considering and encountering in applying the law, fair use, user expectations, and common sense in developing collections and services around digital content that is geared directly ...


Private Law In The Gaps, Jeffrey A. Pojanowski 2016 Notre Dame Law School

Private Law In The Gaps, Jeffrey A. Pojanowski

Jeffrey A. Pojanowski

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a ...


Gambling Contract Not Violative Of Public Policy, 2016 St. John's University School of Law

Gambling Contract Not Violative Of Public Policy

The Catholic Lawyer

No abstract provided.


Employment Agreements For The Inventing Worker: A Proposal For Reforming Trailer Clause Enforceability Guidelines, Peter Caldwell 2016 University of Georgia School of Law

Employment Agreements For The Inventing Worker: A Proposal For Reforming Trailer Clause Enforceability Guidelines, Peter Caldwell

Journal of Intellectual Property Law

No abstract provided.


Cashman Equipment Co. V. West Edna Assocs., 132 Nev. Adv. Op. 69 (Sep. 29, 2016), Andrew Hart 2016 Nevada Law Journal

Cashman Equipment Co. V. West Edna Assocs., 132 Nev. Adv. Op. 69 (Sep. 29, 2016), Andrew Hart

Nevada Supreme Court Summaries

The Court determined that (1) NRS 108.2457(5)(e) precludes enforcement of an unconditional release from a bottom-tiered contractor to a higher-tiered contractor, when the higher-tiered contractor properly paid the middle-tiered contractor, but the middle-tiered contractor failed to pay the bottom-tiered contractor; and (2) that equitable fault analysis may not be used to reduce an award in a mechanic’s lien case.


Uas Investments Llc Order On Uas Investments, Llc's Motion To Compel, Elizabeth E. Long 2016 Fulton County Superior Court, Judge

Uas Investments Llc Order On Uas Investments, Llc's Motion To Compel, Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.


Sovereign Debt: Now What?, Anna Gelpern 2016 Georgetown University Law Center

Sovereign Debt: Now What?, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

The sovereign debt restructuring regime looks like it is coming apart. Changing patterns of capital flows, old creditors’ weakening commitment to past practices, and other stakeholders’ inability to take over, or coalesce behind a viable alternative, have challenged the regime from the moment it took shape in the mid-1990s. By 2016, its survival cannot be taken for granted. Crises in Argentina, Greece, and Ukraine since 2010 exposed the regime’s perennial failures and new shortcomings. Until an alternative emerges, there may be messier, more protracted restructurings, more demands on public resources, and more pressure on national courts to intervene in ...


Las Obligaciones Sujetas A Plazo Frente Al Concurso Preventivo Del Obligado Al Pago (Art. 353 Del Código Civil Y Comercial), Romulo Rojo Vivot 2016 Selected Works

Las Obligaciones Sujetas A Plazo Frente Al Concurso Preventivo Del Obligado Al Pago (Art. 353 Del Código Civil Y Comercial), Romulo Rojo Vivot

Rómulo Rojo Vivot

El concurso preventivo genera diversos efectos en el régimen de las obligaciones. Algunos de ellos son atendidos de manera especial por la ley concursal. Otros, en cambio, son regulados por diversas normas del Código Civil y Comercial.
En esta presentación examinaré algunos de los efectos que produce la sentencia de apertura del concurso preventivo sobre las obligaciones a cargo del concursado cuya exigibilidad quedó diferida en fecha posterior a la presentación concursal.
También analizaré y reflexionaré sobre qué es lo que se pretende alcanzar con los efectos establecidos en virtud del art. 353 del CCyC, y cómo podrían superarse los ...


Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr. 2016 University of California - Berkeley

Bankruptcy On The Side, Kenneth Ayotte, Anthony J. Casey, David A. Skeel Jr.

Faculty Scholarship

This article provides a framework for analyzing side agreements in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by one party to remain silent – to waive some procedural right they would otherwise have under the Bankruptcy Code – at potentially crucial points in the reorganization process.


Using simplified examples, we show that side agreements create benefits in some instances, but parties to a side agreement may have incentive to contract for specific performance or excessive stipulated damages that impose negative externalities on non-parties to the agreement. A promise not to ...


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