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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 ...


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 ...


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 ...


The U.S. Law Regime Of Sovereign Immunity And The Sovereign Wealth Funds, Victorino J. Tejera 2016 University of Miami Law School

The U.S. Law Regime Of Sovereign Immunity And The Sovereign Wealth Funds, Victorino J. Tejera

University of Miami Business Law Review

This article is concerned with the applicability of sovereign immunity to the so-called sovereign wealth funds (“SWFs”) within the U.S. legal system. While sovereign immunity has existed for at least two centuries, SWFs and the types of investment activities they conduct on behalf of their parent foreign states are a rather recent phenomenon. As a result, the issue of the applicability of the rules on sovereign immunity to the SWFs poses novel legal challenges and difficulties. In a nutshell, this article is intended to answer the following questions: Are SWFs entitled to invoke sovereign immunity before U.S. courts ...


The Role Of Blue Sky Laws After Nsmia And The Jobs Act, Rutheford B. Campbell Jr. 2016 University of Kentucky College of Law

The Role Of Blue Sky Laws After Nsmia And The Jobs Act, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

State securities laws—in particular, state laws requiring that securities offered by issuers be registered with the states—have been an impediment to the efficient movement of capital to its highest and best use. The pernicious effects of these laws—generally referred to as “blue sky laws”—have been felt most acutely by small businesses, a vital component of our national economy.

It has been difficult to remedy this problem. States and state regulators have been tenacious in protecting their registration authority from federal preemption. The Securities and Exchange Commission, on the other hand, has been reluctant to advocate for ...


Dashboard Compliance: Benefit, Threat, Or Both?, James Fanto 2016 Brooklyn Law School

Dashboard Compliance: Benefit, Threat, Or Both?, James Fanto

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article poses the basic question that is reflected in its title and that was the subject of the conference where the Article was initially presented: whether technology poses any threats to the mission of compliance and the position of compliance officers, whether it is just another useful tool for them, or whether it is something of both. It begins by explaining the origin of compliance in broker-dealers and investment advisers and its important current position in those firms. It then discusses why compliance officers have always been drawn to technology, particularly to keep up with the business sides of ...


The Cybersecurity Threat: Compliance And The Role Of Whistleblowers, Jennifer M. Pacella 2016 Brooklyn Law School

The Cybersecurity Threat: Compliance And The Role Of Whistleblowers, Jennifer M. Pacella

Brooklyn Journal of Corporate, Financial & Commercial Law

In today’s technologically dependent world, concerns about cybersecurity, data breaches, and compromised personal information infiltrate the news almost daily. The Securities and Exchange Commission (SEC) has recently emerged as a regulator that is keenly focused on cybersecurity, specifically with respect to encouraging disclosures in this arena by regulated entities. Although the SEC has issued non-binding “guidance” to help companies navigate their reporting obligations in this sector, the agency lacks binding cybersecurity disclosure regulations as they pertain generally to public companies. Given that the SEC has already relied on such guidance in threatening enforcement actions, reporting companies are increasingly pressured ...


Preserving Human Agency In Automated Compliance, Onnig H. Dombalagian 2016 Brooklyn Law School

Preserving Human Agency In Automated Compliance, Onnig H. Dombalagian

Brooklyn Journal of Corporate, Financial & Commercial Law

As technology transforms financial services, so too must it transform the regulation of financial markets and intermediaries. The imperative of real-time, prophylactic regulation increasingly compels reallocation of regulatory and compliance budgets to surveillance and enforcement technology. At the same time, in light of the well-known weaknesses of automated systems, securities firms (and their regulators) must temper investment in automation with efforts to augment the agency of compliance professionals. This symposium contribution considers how investment in the professional development of compliance personnel can better integrate automated tools within established compliance and supervisory structures and thereby advance regulatory and operational objectives.


Mandatory Third Party Compliance Examinations For Investment Advisers: An Sec Waterloo?, Mercer Bullard 2016 Brooklyn Law School

Mandatory Third Party Compliance Examinations For Investment Advisers: An Sec Waterloo?, Mercer Bullard

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission (SEC or Commission) appears to be on the verge of requiring investment advisers to undergo third party examinations. One justification for the rulemaking is that the Commission lacks sufficient resources to examine advisers frequently enough. Another is to create indirectly a self-regulatory organization (SRO) for investments advisers. Both may leave a rulemaking particularly vulnerable to challenge as arbitrary and capricious under the Administrative Procedures Act. This Article considers three novel grounds on which a rulemaking may be successfully challenged. Congress has repeatedly rejected SEC requests to provide additional funding for examinations or to create an ...


The Choice Is (Not) Yours: Why The Sec Must Further Amend Its Rules Of Practice To Increase Fairness In Administrative Proceedings, Madeline Ilibassi 2016 Brooklyn Law School

The Choice Is (Not) Yours: Why The Sec Must Further Amend Its Rules Of Practice To Increase Fairness In Administrative Proceedings, Madeline Ilibassi

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission (SEC) plays an extremely important role within the securities industry—it oversees the financial markets; protects consumers; and maintains market efficiency. One of the most important (and recently one of most criticized) responsibilities of the SEC is its duty to enforce the securities laws and punish violators. During the past two decades; and especially after the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010; the SEC’s Division of Enforcement has grown substantially and has utilized administrative enforcement proceedings at an increasing rate. However; this utilization has been occurring without ...


Integration Of Securities Offerings: Obstacles To Capital Formation Remain For Small Businesses, Perry E. Wallace, Jr. 2016 Selected Works

Integration Of Securities Offerings: Obstacles To Capital Formation Remain For Small Businesses, Perry E. Wallace, Jr.

Perry Wallace

No abstract provided.


Integration Of Securities Offerings: Obstacles To Capital Formation Remain For Small Businesses, Perry E. Wallace, Jr. 2016 Selected Works

Integration Of Securities Offerings: Obstacles To Capital Formation Remain For Small Businesses, Perry E. Wallace, Jr.

Perry Wallace

No abstract provided.


Crowdfunding Without The Crowd, Darian M. Ibrahim 2016 William & Mary Law School

Crowdfunding Without The Crowd, Darian M. Ibrahim

Popular Media

No abstract provided.


Taxing Wealth Seriously, Edward J. McCaffery 2016 University of Southern California;California Institute of Tecnology

Taxing Wealth Seriously, Edward J. Mccaffery

University of Southern California Legal Studies Working Paper Series

The social and political problems of wealth inequality in America are severe and getting worse. A surprise is that the U.S. tax system, as is, is a significant cause of these problems, not a cure for them. The tax-law doctrines that allow those who already have financial wealth to live, luxuriously and tax-free, or to pass on their wealth tax-free to heirs, are simple. The applicable legal doctrines have been in place for nearly a century under the income tax, the primary social tool for addressing matters of economic inequality. The analytic pathways to reform are easy to see ...


Incentivizing Corporate America To Eradicate Transnational Bribery Worldwide: Federal Transparency And Voluntary Disclosure Under The Foreign Corrupt Practices Act, Peter R. Reilly 2016 University of Florida Levin College of Law

Incentivizing Corporate America To Eradicate Transnational Bribery Worldwide: Federal Transparency And Voluntary Disclosure Under The Foreign Corrupt Practices Act, Peter R. Reilly

Florida Law Review

In 1977, the U.S. Securities and Exchange Commission (SEC) discovered that hundreds of U.S. companies had spent hundreds of millions of dollars in bribes to improve business overseas. In response, Congress passed the Foreign Corrupt Practices Act (FCPA), thereby making it illegal to bribe foreign officials to obtain a business advantage. A major tension has emerged between the federal agencies charged with enforcing the FCPA (i.e., the U.S. Department of Justice (DOJ) and the SEC), and the corporate entities trying to stay within the legal and regulatory bounds of the statute. Specifically, while the government appears ...


White Collar Crime, Robert J. Anello, Miriam L. Glaser 2016 Morvillo Abramowitz Grand Iason & Anello P.C.

White Collar Crime, Robert J. Anello, Miriam L. Glaser

Fordham Law Review

This Article will address six different areas of white collar law and procedure: (1) fraud, (2) the Racketeer Influenced & Corrupt Organizations Act (RICO), (3) conspiracy, (4) public corruption, (5) white collar practice, and (6) sentencing. Many of the cases profiled in this Article have driven legal and cultural developments far beyond the federal courts, including the cases of Leona Helmsley, one of New York’s most prominent real estate moguls; the “Mafia Commission,” a take-down of the bosses of the Five Families of La Cosa Nostra; and Abscam, a massive sting operation created by the federal government to expose corrupt officials. Of course, the cases and doctrines discussed can only scratch the surface of the vast wealth of jurisprudence and leadership that the Second Circuit has provided in the arena of white collar crime. Even more fascinating material therefore awaits the interested and industrious reader in his or her own research.


Shining The Light A Little Brighter: Should Item 303 Serve As A Basis For Liability Under Rule 10b-5?, Lauren M. Mastronardi 2016 Fordham University School of Law

Shining The Light A Little Brighter: Should Item 303 Serve As A Basis For Liability Under Rule 10b-5?, Lauren M. Mastronardi

Fordham Law Review

This Note discusses a securities disclosure issue stemming from a split between the Second Circuit and the Ninth Circuit. The question presented is whether failure to comply with a disclosure requirement created by Item 303 of Regulation S-K can provide a basis for liability under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The Ninth Circuit held that such violation does not provide a basis for liability. Conversely, in Stratte-McClure v. Morgan Stanley, the Second Circuit explicitly disagreed with the Ninth Circuit and concluded that this violation may serve as a basis for liability. This ...


Securities And Financial Regulation In The Second Circuit, Karen Patton Seymour 2016 Sullivan & Cromwell LLP

Securities And Financial Regulation In The Second Circuit, Karen Patton Seymour

Fordham Law Review

The Second Circuit has long been the country’s preeminent court in the field of securities and financial regulation. The reputation of the Second Circuit in the realm of securities has been so great that other courts, including the Supreme Court, often mention by name the particular judges that decided a given Second Circuit precedent to justify their reliance on that decision. Many courts have long looked to its jurisprudence for guidance in deciding novel or complex securities law issues. This article tracks the Second Circuit’s significant role in developing civil enforcement mechanisms for federal securities laws and making ...


The Sec, Administrative Usurpation, And Insider Trading, Adam C. Pritchard 2016 University of Michigan Law School

The Sec, Administrative Usurpation, And Insider Trading, Adam C. Pritchard

Articles

The history of insider trading law is a tale of administrative usurpation and legislative acquiescence. Congress has never enacted a prohibition against insider trading, much less defined it. Instead, the SEC has led in defining insider trading, albeit without the formality of rulemaking, and subject to varying degrees of oversight by the courts. The reason why lies in the deference that the Supreme Court gave to the SEC in its formative years. The roots of insider trading law are commonly traced to the SEC’s decision in Cady, Roberts & Co. Cady, Roberts was only made possible, however, by the Supreme ...


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