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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.


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 ...


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 ...


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 ...


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.


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 ...


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 ...


The 5th Annual Professor Anthony J. Santoro Business Law Lecture: Enforcing Insider Trading Laws: The Changing Landscape, Stephen L. Cohen, Roger Williams University School of Law 2016 Roger Williams University

The 5th Annual Professor Anthony J. Santoro Business Law Lecture: Enforcing Insider Trading Laws: The Changing Landscape, Stephen L. Cohen, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

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 ...


Newsroom: A Changing Landscape: Insider Trading Law 09/20/2016, Roger Williams University School of Law 2016 Roger Williams University

Newsroom: A Changing Landscape: Insider Trading Law 09/20/2016, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Section 3: Business, Institute of Bill of Rights Law at The College of William & Mary School of Law 2016 College of William & Mary Law School

Section 3: Business, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


The Trouble With Basic: Price Distortion After Halliburton, Jill E. Fisch 2016 University of Pennsylvania Law School

The Trouble With Basic: Price Distortion After Halliburton, Jill E. Fisch

Jill Fisch

Many commentators credit the Supreme Court’s decision in Basic, Inc. v. Levinson, which allowed courts to presume reliance rather than requiring individualized proof, with spawning a vast industry of private securities fraud litigation. Today, the validity of Basic’s holding has come under attack as scholars have raised questions about the extent to which the capital markets are efficient. In truth, both these views are overstated. Basic’s adoption of the fraud on the market presumption reflected a retreat from prevailing lower court recognition that the application of a reliance requirement was inappropriate in the context of impersonal public ...


Regulation Fd: An Alternative Approach To Addressing Information Asymmetry, Jill E. Fisch 2016 University of Pennsylvania Law School

Regulation Fd: An Alternative Approach To Addressing Information Asymmetry, Jill E. Fisch

Jill Fisch

This chapter traces the development of the SEC’s use of Regulation Fair Disclosure (FD) to address information asymmetry in the securities markets. The chapter describes the SEC’s developing enforcement policy and notes, in particular, the SEC’s efforts, through its selection and settlement of Regulation FD cases, to provide guidance to corporations and corporate officials about areas of key concern. The chapter concludes by highlighting current areas of particular importance, including disclosure of information through private meetings and the implications of technological innovations such as the internet and social media. The chapter is forthcoming in Research Handbook on ...


Federal Securities Fraud Litigation As A Lawmaking Partnership, Jill E. Fisch 2016 University of Pennsylvania Law School

Federal Securities Fraud Litigation As A Lawmaking Partnership, Jill E. Fisch

Jill Fisch

In its most recent Halliburton II decision, the Supreme Court rejected an effort to overrule its prior decision in Basic Inc. v. Levinson. The Court reasoned that adherence to Basic was warranted by principles of stare decisis that operate with “special force” in the context of statutory interpretation. This Article offers an alternative justification for adhering to Basic—the collaboration between the Court and Congress that has led to the development of the private class action for federal securities fraud. The Article characterizes this collaboration as a lawmaking partnership and argues that such a partnership offers distinctive lawmaking advantages. Halliburton ...


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