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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.


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 ...


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 ...


The Perverse Behavioral Economics Of Disclosing Standard Terms, Tess Wilkinson-Ryan 2016 University of Pennsylvania Law School

The Perverse Behavioral Economics Of Disclosing Standard Terms, Tess Wilkinson-Ryan

Faculty Scholarship

In consumer contracting, the ritual of documentation and provision of terms is essentially vestigial, at least as a form of deal-making communication between the parties. This paper starts with a thought experiment: what would it look like to have contracts but no standard terms? Most scholarly and political approaches to the mismatch of contract law and consumer contracting have focused on the information problem in consumer contracting—the difficulty of the required cognitive processing—and thus the proposed solutions have focused on how to make terms more salient or easier to assimilate. I argue that the focus on salience is ...


How Much Is This Clause? Debt Managers On Pricing Bond Contract Terms, Anna Gelpern, Mitu Gulati 2016 Georgetown University Law Center

How Much Is This Clause? Debt Managers On Pricing Bond Contract Terms, Anna Gelpern, Mitu Gulati

Georgetown Law Faculty Publications and Other Works

Whether bond contract terms are priced is a classic question at the intersection of law and finance. One contract provision, the Collective Action Clause or CAC in sovereign bonds, has been the subject of extensive analysis in an effort to answer this question. The research, much of it quantitative, has yielded seemingly contradictory results. In this article, we come at the pricing question from a different perspective: we ask government officials responsible for executing their countries’ bond issuance strategies, how and why they choose particular contract terms in their bonds, and specifically about the relevance of pricing information to their ...


The Long Road Back: Business Roundtable And The Future Of Sec Rulemaking, Jill E. Fisch 2016 Selected Works

The Long Road Back: Business Roundtable And The Future Of Sec Rulemaking, Jill E. Fisch

Jill Fisch

The Securities and Exchange Commission (SEC or Commission) has faced a number of challenges in the last few years. Judge Rakoff’s decision in Citigroup, the Madoff scandal, and the Business Roundtable decision are just a few of the developments that have dealt lasting damage to the SEC’s reputation. Critics have scrutinized the agency’s decisionmaking on multiple fronts—from its enforcement policy to the quality of its rulemaking—and the SEC has largely come up short in the analysis. The once-revered top cop of the securities markets has taken a hit, and it is unclear whether it can ...


Mistakes In Contracts For The Sale Of Goods, John D. McCamus 2016 Osgoode Hall Law School of York University

Mistakes In Contracts For The Sale Of Goods, John D. Mccamus

John D. McCamus

No abstract provided.


The Law Of Society: Governance Through Contract, Peter Zumbansen 2016 Osgoode Hall Law School

The Law Of Society: Governance Through Contract, Peter Zumbansen

Peer Zumbansen

This paper focuses on contract law as a central field in contemporary regulatory practice. In recent years, "governance by contract" has emerged as the central concept in the context of privatization, domestic and transnational commercial relations, and law-and-development projects. Meanwhile, as a result of the neo-formalist attack on contract law, "governance of contract" through contract adjudication, consumer protection law, and judicial intervention into private law relations has come under severe pressure. Building on early historical critique of the formalist foundations of an allegedly private law of the market, the paper assesses the current justifications for contractual governance and posits that ...


Rethinking The Nature Of The Firm: The Corporation As A Governance Object, Peer Zumbansen 2016 Selected Works

Rethinking The Nature Of The Firm: The Corporation As A Governance Object, Peer Zumbansen

Peer Zumbansen

This Article attempts to bridge two discourses—corporate governance and contract governance. Regarding the latter, a group of scholars has recently set out to develop a more comprehensive research agenda to explore the governance dimensions of contractual relations, highlighting the potential of contract theory to develop a more encompassing theory of social and economic transactions. While a renewed interest in the contribution of economic theory for a concept of contract governance drives one dimension of this research, another part of this undertaking has been to move contract theory closer to theories of social organization. Here, these scholars emphasize the “social ...


Too Big To Nail: How Investor-State Arbitration Lacks An Appropriate Execution Mechanism For The Largest Awards, Jacob A. Kuipers 2016 Boston College Law School

Too Big To Nail: How Investor-State Arbitration Lacks An Appropriate Execution Mechanism For The Largest Awards, Jacob A. Kuipers

Boston College International and Comparative Law Review

Typically, when an international arbitration tribunal renders an award, it includes a specific date by which the defendants must pay the award. If the defendants refuse to pay the award by the mandated deadline and the defendants are not seeking that the award be set aside, then the claimants have the ability to seize assets of the defendants through national courts that could enforce the tribunal’s judgment. Those courts may issue orders to seize a party’s assets in their jurisdiction as a way to enforce all or part of the tribunal’s award. This presents an uphill battle ...


"The End Of Bankruptcy" Revisited, Robert Rasmussen 2016 University of Southern California

"The End Of Bankruptcy" Revisited, Robert Rasmussen

University of Southern California Legal Studies Working Paper Series

The End of Bankruptcy, published in 2002, set forth a view of corporate bankruptcy based on a theory of the firm. It argued that, for a traditional Chapter 11 proceeding to be necessary, it had to be the case that a firm had going concern surplus, that the firm’s investors cannot realign the capital structure through normal bargaining, and that a going-concern sale is not possible. Changes outside of bankruptcy had made each of these necessary preconditions less common. This chapter revisits this work, and shows that, despite the upheaval of the Great Recession, it remains the case that ...


Subject To Review? Consideration, Liquidated Damages And The Penalty Jurisdiction, Eliza MIK 2016 Singapore Management University

Subject To Review? Consideration, Liquidated Damages And The Penalty Jurisdiction, Eliza Mik

Eliza Mik

The paper examines the relationship between what seem to be basic principles in contract law: "consideration need not be adequate" and "the rule against penalties applies only to sums payable on breach." The 'reluctant inspiration' lies in the recent Australian case of Andrews v. Australia and New Zealand Banking Group Ltd, which establishes that the absence of breach or an obligation to avoid the occurrence of an event upon which a sum becomes payable, does not render such sum incapable of being characterized as a penalty. This decision constitutes an unexpected divergence from the position in most other common law ...


The Danger Of Winning: Contract Law Ramifications Of Successful Bailey Challenges For Plea-Convicted Defendants, T. Alper 2016 Berkeley Law

The Danger Of Winning: Contract Law Ramifications Of Successful Bailey Challenges For Plea-Convicted Defendants, T. Alper

Ty Alper

Evaluates contract law ramifications of successful challenges for plea-convicted defendants. Examination of district courts that allowed reindictment subsequent to successful collateral attack; Defendant obligations under a typical plea agreement; Factors dictating the frequency of using the contract law doctrine of frustration of purpose.


The Danger Of Winning: Contract Law Ramifications Of Successful Bailey Challenges For Plea-Convicted Defendants, T. Alper 2016 Berkeley Law

The Danger Of Winning: Contract Law Ramifications Of Successful Bailey Challenges For Plea-Convicted Defendants, T. Alper

Ty Alper

Evaluates contract law ramifications of successful challenges for plea-convicted defendants. Examination of district courts that allowed reindictment subsequent to successful collateral attack; Defendant obligations under a typical plea agreement; Factors dictating the frequency of using the contract law doctrine of frustration of purpose.


Financial Hospitals: Defending The Fed’S Role As A Market Maker Of Last Resort, José Gabilondo 2016 Selected Works

Financial Hospitals: Defending The Fed’S Role As A Market Maker Of Last Resort, José Gabilondo

José Gabilondo

During the last financial crisis, what should the Federal Reserve (the Fed) have done when lenders stopped making loans, even to borrowers with sterling credit and strong collateral? Because the central bank is the last resort for funding, the conventional answer had been to lend freely at a penalty rate against good collateral, as Walter Bagehot suggested in 1873 about the Bank of England. Acting thus as a lender of last resort, the central bank will keep solvent banks liquid but let insolvent banks go out of business, as they should. The Fed tried this, but when the conventional wisdom ...


The Puzzle Of Pdvsa Bond Prices, Anna Gelpern, Paolo Colla, Mitu Gulati 2016 Georgetown University Law Center

The Puzzle Of Pdvsa Bond Prices, Anna Gelpern, Paolo Colla, Mitu Gulati

Georgetown Law Faculty Publications and Other Works

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 ...


Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge 2016 Texas A&M University School of Law

Apple Pay, Bitcoin, And Consumers: The Abcs Of Future Public Payments Law, Mark Edwin Burge

Mark Edwin Burge

As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears hopelessly behind the curve. The patchwork of state, federal, and private legal rules seems more worthy of condemnation than emulation. This Article argues, however, that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systems - exemplified by Articles 3 and 4 of the Uniform Commercial ...


Changing The Game: The Effects Of The 2012 Revision Of The Icc Arbitration Rules On The Icc Model Arbitration Clause For Trust Disputes, Colin Connor 2016 University of Georgia School of Law

Changing The Game: The Effects Of The 2012 Revision Of The Icc Arbitration Rules On The Icc Model Arbitration Clause For Trust Disputes, Colin Connor

Georgia Journal of International & Comparative Law

No abstract provided.


Forum Selling, Daniel M. Klerman, Greg Reilly 2016 USC Law School

Forum Selling, Daniel M. Klerman, Greg Reilly

University of Southern California Legal Studies Working Paper Series

Forum shopping is problematic because it may lead to forum selling. For diverse motives, including prestige, local benefits, or re-election, some judges want to hear more cases. When plaintiffs have wide choice of forum, such judges have incentives to make the law more pro-plaintiff, because plaintiffs choose the court. While only a few judges may be motivated to attract more cases, their actions can have large effects, because their courts will attract a disproportionate share of cases. For example, judges in the Eastern District of Texas have distorted the rules and practices relating to case assignment, joinder, discovery, transfer, and ...


Foreign Nation Judgments - If State Law Provides For The Enforceability Of Foreign Judgments, The Judgment Is Enforceable Without Determination Of Whether The Arbitration Award On Which It Is Based Is Independently Enforceable Under The Convention On The Recognition And Enforcement Of Foreign Arbitral Awards, John W. Kindt 2016 University of Georgia School of Law

Foreign Nation Judgments - If State Law Provides For The Enforceability Of Foreign Judgments, The Judgment Is Enforceable Without Determination Of Whether The Arbitration Award On Which It Is Based Is Independently Enforceable Under The Convention On The Recognition And Enforcement Of Foreign Arbitral Awards, John W. Kindt

Georgia Journal of International & Comparative Law

No abstract provided.


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