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The Icarus Syndrome: How Credit Rating Agencies Lost Their Quasi Immunity, Norbert Gaillard, Michael Waibel 2019 University of Cambridge

The Icarus Syndrome: How Credit Rating Agencies Lost Their Quasi Immunity, Norbert Gaillard, Michael Waibel

SMU Law Review

Subsequent to the 2007–2008 subprime crisis, the SEC and the US Senate discovered that it was common practice for major credit rating agencies (CRAs) to produce inflated and inaccurate structured finance ratings. A host of explanations were posited on how this was able to happen from the “issuer pays” model of CRAs and conflicts of interest to underscoring the CRA’s regulatory license and their ensuing insulation from legal liability. Historically, credit ratings were akin to opinions. However, when courts started to consider structured finance ratings as commercial speech in the 2000s, CRAs became more vulnerable to litigation. This ...


Crowdfunding Capital In The Age Of Blockchain Based Tokens, Patricia H. Lee 2019 Saint Louis University School of Law

Crowdfunding Capital In The Age Of Blockchain Based Tokens, Patricia H. Lee

All Faculty Scholarship

Less than three years ago, the Securities and Exchange Commission (“SEC”) adopted investment crowdfunding regulations (“Reg. CF”) to facilitate small companies’ efforts to raise capital and jumpstart employment, providing companies potentially one of the most disruptive transformations in capital markets.

As the lion share of securities are offered under public offerings or Reg. D safe harbor exemptions, outcomes and impacts of Reg. CF offerings are not studied or monitored to the same extent. One line of inquiry is the scope of Reg. CF, including questions about the level of company participation, the types of businesses seeking capital formation, and the ...


The Howey Test: Are Crypto-Assets Investment Contracts?, Justin Henning 2018 University of Miami Law School

The Howey Test: Are Crypto-Assets Investment Contracts?, Justin Henning

University of Miami Business Law Review

With innovation always comes unknowns. Blockchain technology and crypto–assets are no different. Often times, innovators are so worried about getting their product to market or scaling at mass that they overlook the legal ramifications of their innovations. As Mark Zuckerberg infamously said, “move fast and break things.” Facebook was in no way alone in this style of innovation. However, with respect to crypto–assets, the SEC has stepped in and is attempting to prevent the “break things” aspect. One of the major issues relating to crypto–assets is that many people still do not understand what they are, or ...


The Problem Of Sunsets, Jill E. Fisch, Steven Davidoff Solomon 2018 University of Pennsylvania Law School

The Problem Of Sunsets, Jill E. Fisch, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

An increasing percentage of corporations are going public with dual class stock in which the shares owned by the founders or other corporate insiders have greater voting rights than the shares sold to public investors. Some commentators have criticized the dual class structure as unfair to public investors by reducing the accountability of insiders; others have defended the value of dual class in encouraging innovation by providing founders with insulation from market pressure that enables them to pursue their idiosyncratic vision.

The debate over whether dual class structures increase or decrease corporate value is, to date, unresolved. Empirical studies have ...


Are Passive Index Funds Active Owners? Corporate Governance Consequences Of Passive Investing, Giovanni Strampelli 2018 University of San Diego

Are Passive Index Funds Active Owners? Corporate Governance Consequences Of Passive Investing, Giovanni Strampelli

San Diego Law Review

The exponential rise of mutual funds designed to track stock indices has been one of the drivers behind the re-concentration of ownership of listed companies in the United States. Because of the high concentration of the passive index funds industry, the three leading passive fund managers—BlackRock, Vanguard, and State Street—make up an increasingly important component of the shareholder base of listed companies. In spite of this however, it remains questionable whether they are actually interested in playing an active role in the corporate governance of investee companies. In fact, although passive investors are, by definition, focused on the ...


Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff 2018 University of Pennsylvania Law School

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of ...


A Critical Review Of U.S. Securities Laws And The Status Of Initial Coin Offerings: Potential Solutions For Issuers, Muhammed Kus 2018 Indiana University Maurer School of Law

A Critical Review Of U.S. Securities Laws And The Status Of Initial Coin Offerings: Potential Solutions For Issuers, Muhammed Kus

Theses and Dissertations

Securities law in the United States has a unique approach to defining what is a security and what is not a security. It includes broadly defined terminology and describes several investment instruments that may be considered a security. Courts use one of two methods to determine whether an investment contract is a security: the Howey Test and the Risk Capital Test.

Initial Coin Offerings are one of the most recent instruments that courts and other governmental organizations need to examine in order to answer whether they meet the criteria of being a security. Depending on the result, the issuers may ...


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

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 ...


Justice For All? Protecting The Public Interest In Investment Treaties, Alessandra Arcuri, Francesco Montanaro 2018 Erasmus School of Law

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 ...


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

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 ...


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

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 ...


Investment Treaties, Offshore Finance, And The Resource Curse, Karl M.F. Lockhart 2018 University of Virginia School of Law

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 ...


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

(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 ...


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

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

Boston College Law Review

No abstract provided.


Legitimacy Concerns Of The Proposed Multilateral Investment Court: Is Democracy Possible?, José Manuel Alvarez Zárate 2018 Externado University of Colombia

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 ...


Investment Disputes Oltre Lo Stato: On Global Administrative Law, And Fair And Equitable Treatment, Sebastián López Escarcena 2018 Pontifical Catholic University of Chile

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 ...


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

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.


Avoiding The Planned Obsolescence Of Modern International Investment Agreements: Can General Exception Mechanisms Be Improved, And How?, Camille Martini 2018 Cleary Gottlieb Steen & Hamilton;

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 ...


Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo 2018 Texas A&M University Law School

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 ...


Greening Investor-State Dispute Settlement, Daniel B. Magraw, Sergio Puig 2018 Johns Hopkins School of Advanced International Studies

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 ...


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